The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 21, 1999, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a decision made by the Review Office of the Workers Compensation Board (WCB) that she was not entitled to further wage loss benefits after March 2, 1998, in respect of her work related accident in October 1995. On June 21, 1999, the Appeal Panel met to render its final decision.

Issue

Whether the claimant is entitled to further wage loss benefits after March 2, 1998, in respect of her work related accident in October 1995.

Decision

That the claimant is entitled to further wage loss and benefits after March 2, 1998, in respect of her work related accident in October 1995.

Background

While employed as a housekeeping aide on October 22, 1995, the claimant was assaulted on the employer's parking lot when she arrived for work. The claimant sustained injuries to her head, bruises to her face, arms, legs and back. As a result of the accident, the claimant was seen and treated by a number of specialists with regard to her physical/psychological symptoms. Responsibility for the claim was accepted by the WCB and benefits were paid accordingly.

On December 10, 1997, the claimant was interviewed by a medical advisor from the Pain Management Unit of the WCB. Based on the interview, the medical advisor's opinion was that the claimant suffered from chronic pain syndrome compounded by some lingering aspects of a post-traumatic stress disorder and partly controlled reactive depression. Recommendations outlined by the medical advisor were to continue with anti-depressant medication as well as 4 to 6 more psychotherapy sessions and to consider corrective lenses for the right eye. It was also recommended that the claimant should be started on a return to work program in a graduated fashion beginning as soon as possible. The medical advisor indicated that any further delay in instituting a return to work would significantly decrease the claimant's chances of a successful return to work or return to a better quality of life.

In a letter dated January 12, 1998, the claimant was advised of the details regarding the graduated return to work program which was to commence on January 19, 1998 and was to continue until March 2, 1998. The duties of the graduated return to work program were outlined in a work site assessment dated June 19, 1997. The potential work duties included feeding residents, dining room assistance, dusting, folding laundry, etc. It was anticipated that upon completion of the graduated return to work program, the claimant would be considered fit to return to her full pre-accident duties as a housekeeper.

On February 24, 1998, a Vocational Rehabilitation Consultant (VRC) documented that the claimant continued to participate in the graduated return to work program and was working 7 hours per day. The claimant stated, however, that she could not work beyond 7 hours as she was experiencing headaches and could not move her head quickly without considerable pain. The claimant stated she was meeting with her employer and would likely be applying for long term disability benefits. The claimant felt that she would not be able to return to her full regular duties as a housekeeper.

In a letter dated February 28, 1998, the VRC advised the claimant that benefits and services would end effective March 3, 1998, and that the WCB would continue to pay for costs associated with medication up to February 1999. On April 19, 1998, the claimant appealed the adjudicator's decision to discontinue benefits after March 2, 1998.

On May 15, 1998, the Review Office determined that the claimant was not entitled to further wage loss benefits after March 2, 1998, in respect of her work-related accident in October 1995.

The Review Office acknowledged that the claimant had likely not recovered fully from the emotional consequences of her work-related accident in October 1995. However, Review Office was of the opinion that:

• there was no significant physical impairment preventing the claimant from returning to full duties in March 1998;

• the claimant’s psychological injuries and/or elements of chronic pain were unlikely to prevent a return to employment in March 1998;

• that the claimant had received more than adequate opportunity to improve her conditioning and work tolerances through treatment such as physiotherapy and occupational therapy, and a graduated return to employment activities;

• further recovery/improvement in the claimant’s psychological effects was likely contingent upon her resuming both normal activities and employment duties.

The Review Office also considered Section 22 of the Workers Compensation Act, which states the board is allowed to reduce compensation benefits when, in the opinion of the board, a worker fails to mitigate the effects of a work-related accident, and consequently extends the period of disablement beyond a point that was reasonably expected. Review Office was of the view that the claimant exhibited a degree of unexplained, inappropriate behavior that had hindered her return to employment. Review Office was of the opinion that the claimant failed to fully mitigate the effects of her work-related accident. This included the avoidance of prescribed treatment and a physical presentation which was described as “remarkable for the degree to which she protects her right arm and shoulder.”

On February 25, 1999, a worker advisor submitted additional medical information to the Review Office for consideration. These included a January 6, 1999, letter from a physical medicine and rehabilitation specialist and a report from a psychiatrist dated February 2, 1999. On March 12, 1999, the Review Office confirmed its earlier decision that the claimant’s loss of earning capacity after March 2, 1998, was not a consequence of her work-related accident in October 1995.

At the request of the worker advisor, an oral hearing was arranged for June 21, 1999. At the hearing of the matter, the Appeal Panel also considered medical reports dated May 3, 1999 from a psychiatrist and June 4, 1999 from an occupational health specialist.

Reasons

The Appeal Panel is of the unanimous opinion that the claimant is entitled to further wage loss benefits after March 2, 1998, in respect of her work related accident in October, 1995. The Panel would also recommend that the claimant be provided with further vocational rehabilitation assistance that would provide her with a lengthy and gradually paced re-entry into the work force that would be carefully crafted in conjunction with the advice of the medical professionals who have assisted the claimant throughout her difficulties.

In arriving at the above noted decision, the Appeal Panel has considered the many facets of the claimant's case. Prior to her accident, the claimant had no psychiatric history whatsoever. She was a fairly healthy individual and described herself as "very social and involved in activities with her children". She had not missed any time from her job due to disability prior to her accident and by all accounts she enjoyed her job and was a good employee.

At the time of the hearing of this matter, the claimant is described by a psychiatrist in his May 3, 1999 report as having various physical problems (all of which are well documented on the file). Her life had changed dramatically since the accident. She has few friends and is less involved in her children's activities. She enjoys few activities and is "scared to go on her own" for any activities. She is frightened to meet people in public situations. She has panic attacks and is often stressed by simple activities. In short, the claimant's life has been completely changed by the accident.

It is acknowledged and well documented on the file that the claimant has had significant resources provided for her to deal with what is described as "post traumatic stress disorder". In addition, she has received some physiotherapy and acupuncture for her shoulder. Most treatment has been helpful. However, it is also apparent that the claimant continues to have severe problems and that she continues to suffer from a psychological condition attributable to her accident. In particular she is suffering from a psychological reaction or condition which is a direct result of the serious, life-threatening injuries that she was subjected to when she was assaulted.

The psychiatrist in his report dated May 3, 1999 is of the opinion that the claimant needs to be "treated aggressively in regards to her panic symptomatology." He states that she should also be treated for her "depressive symptomatology" and have further assessment by vocational rehabilitation. She should also be supported in returning to physiotherapy and acupuncture treatment as "it appears her musculoskeletal problems continue to date." This latter opinion is supported by the occupational health specialist who felt that previous medical opinion which stated that the claimant would not benefit from specific treatments for myofascial pain, did not mean that there was no physical basis for pain.

All of the medical opinion seems to be unanimous that the psychological aspects of the claimant's situation have contributed significantly to her less than successful response to treatment and reintegration into the workforce. The Panel is of the opinion that the claimant's return to work program was not well conceived in this and other aspects. At the time the claimant commenced her return to work program, her pre-accident duties were well beyond her capabilities. Her light duty work involved tasks completely unrelated to her regular duties and consequently she was never properly prepared for or given time to reintegrate herself back into her regular duties. The claimant was justifiably nervous about what was expected of her. She not only suffered from psychological hurdles by returning to the place where she was assaulted but she was also worried about whether she would be able to physically perform back at work to the expectations of others and herself. In the opinion of the occupational health specialist "this pervasive worry is both rational and valid, and would significantly undermine the therapeutic intent of reintroducing her to the workplace". It is also noted that "similar concerns were expressed by her clinical psychologists."

In conclusion, the Panel is of the view that the claimant's current inability to resume her regular work duties is directly related to her accident in October, 1995. Furthermore, the graduated return to work plan set up for her was not appropriate particularly in light of the lack of professional psychological support during this period and the unreasonable expectations that in a six week program she could move from unrelated light duties to her regular employment duties.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of August, 1999