Decision #128/99 - Type: Workers Compensation
An Appeal Panel hearing was held on March 1, 1999, at the request of the claimant. The claimant was appealing decisions rendered by the Review Office of the Workers Compensation Board (WCB) as noted below. The Panel discussed the appeal on March 1, 1999, and requested a Medical Review Panel (MRP) in accordance with Section 67(3) of the Workers Compensation Act (the Act) which later took place on June 10, 1999. With respect to issue number three the Panel requested that the case be referred back to the WCB for further investigation on an expedited basis therefore no decision was rendered. On August 26, 1999, the Panel met to render its final decision.
Whether the claimant suffered a depressive episode in 1998 which was causally related to his 1985 accident;
Whether the claimant is entitled to temporary total disability benefits subsequent to April 24, 1998; and
Whether the claimant should be provided with further vocational rehabilitation services.
That the claimant did not suffer a depressive episode in 1998 which was causally related to his 1985 accident;
That the claimant is not entitled to temporary total disability benefits subsequent to April 24, 1998.
A complete background concerning the details of this case can be found under Appeal Panel Decision No. 48/94 dated March 14, 1994. The following background will deal only with pertinent file information relevant to the issues now under appeal.
Briefly, the claimant injured his lower back region in June 1985 from moving and shoveling broken concrete. As a result of his injury, the claimant incurred a permanent partial impairment award and has been in receipt of vocational rehabilitation benefits and assistance. In August 1996, the claimant secured employment assembling computers.
In December 1997, a progress report was received from the attending physician indicating that the claimant had experienced increased low back and neck pain and that he was totally disabled effective December 17, 1997. The claimant was later provided with four weeks of physiotherapy treatment after which he was considered to have recovered from the exacerbation and was capable of resuming employment. Wage loss benefits were paid from December 1997 to April 24, 1998, inclusive and final. The claimant was also notified on April 27, 1998, that he was not entitled to further vocational rehabilitation assistance as there was no significant change in his compensable restrictions.
On April 28, 1998, the attending physician indicated that the claimant was exhibiting suicidal thoughts and was diagnosed as suffering from depression. In a letter dated June 14, 1998, a psychologist noted that the claimant was "fixed on his need to have WCB reinstate his benefits to previous levels and to have the WCB support him on returning to school for upgrading/retraining." Later in the report, the psychologist indicated that the claimant displayed a level of anger and resistance which made it difficult to determine whether he was suffering from a full major depression.
In a report dated August 31, 1998, a psychiatrist diagnosed the claimant as suffering from a major depressive disorder. The psychiatrist indicated that the claimant felt his depression was related to his compensable injury and its consequences. The psychiatrist was of the impression that the claimant's chronic pain and being unable to work was a major contributor to his depression.
On September 1, 1998, the attending physician reported that the claimant had been diagnosed with depression secondary to his chronic lumbar disc problem since 1990. The exact diagnosis at that time was agitated depression and the claimant was prescribed medication. The attending physician was not aware of any additional stressors that might have significantly impacted on the claimant's psychological state other than his chronic low back pain and subsequent disability.
Between October 9, 1998, and October 14, 1998, the claimant was hospitalized with a diagnosis of multi-drug and Tricyclic overdose.
On October 29, 1998, the claimant was interviewed by a WCB psychiatric consultant. The consultant summarized, in part, that the claimant appeared to be frustrated and angry that he was not offered vocational rehabilitation services at the time he was ready to return to work in March when his employer had gone out of business. He clearly felt that he would benefit from vocational rehabilitation assistance with retraining or failing that, finding a suitable line of work for him. He felt that this was a reasonable request and that he was entitled to this and that his request was not forthcoming. The consultant was of the view that the claimant was not clinically depressed.
On November 17, 1998, the claimant was advised by Claims Services that there was no medical evidence to support a diagnosis of clinical depression; there was no entitlement to wage loss benefits other than what the claimant was currently receiving; and he was not entitled to any further vocational rehabilitation services. The claimant appealed this decision on December 22, 1998.
In a decision dated January 8, 1999, the Review Office determined that the claimant suffered a depressive episode in 1998 which was not causally related to his 1985 accident; that the claimant was not entitled to temporary total disability benefits subsequent to April 24, 1998; and that the claimant should not be provided with further vocational rehabilitation services.
Regarding the first issue, the Review Office accepted that the claimant was suffering from a degree of depression in at least July 1998. However, it was not accepted that the claimant's depression was causally related to his 1985 accident. Review Office considered it was related to the employment situation in which the claimant found himself and his reaction to the WCB for not providing him with what he considered his due. Review Office did not accept that if an injured worker becomes depressed because events do not unfold as he or she would like, that the depression was necessarily compensable.
Regarding the second issue concerning temporary total disability benefits, the Review Office indicated there was no evidence that the claimant had been precluded from working within his compensable restrictions due to the effects of his 1985 accident subsequent to April 24, 1998.
With respect to entitlement to further vocational rehabilitation services, Review Office noted that the claimant had tempered his request from retraining as a computer programmer to assistance in finding work as a computer assembler. The Review Office cited several instances whereby the claimant was provided with extensive vocational rehabilitation assistance and had not always participated fully in the process. The Review Office stated that provision of vocational rehabilitation services was discretionary under subsection 27(20) of the Workers Compensation Act (the Act) and that the claimant had been amply provided for under the circumstances and what had transpired relative to his claim. On January 13, 1999, the claimant appealed the Review Office's decisions and requested an oral hearing.
On March 1, 1999, an Appeal Panel hearing was held after which it was determined that a Medical Review Panel (MRP) would be convened in accordance with subsection 67(3) of the Act in order to assist the Panel with their deliberations of issues one and two. With respect to issue number three, the Panel requested that the case be referred back to the WCB for further investigation on an expedited basis. It was clear at the hearing that the claimant was not ready to proceed on this issue at the Appeal Commission level as there was new information regarding different vocational rehabilitation services that should be dealt with firstly at the board level. This proposed course of action was discussed with and consented to by the claimant at the hearing.
A MRP was later held on June 10, 1999 and on July 12, 1999, the claimant was provided with a copy of the MRP's findings. On August 26, 1999, the Panel met to render its final decision.
With respect to the first issue before this Appeal Panel, the Panel is in substantial agreement with the findings of the MRP in their June 10, 1999, report. In particular, the MRP did "not consider that there [was] any evidence that [the claimant] was suffering from a Major Depressive Episode prior to 1998." In fact, in the opinion of the MRP, the claimant probably should never have been diagnosed with a Major Depressive Episode up to the date of their report. Although there was a worsening of the claimant's psychological condition beginning in April 1998, the MRP did not consider this in any way related to the 1985 incident. They attributed his condition commencing in April 1998 and culminating in the October 9, 1998 suicide attempt as being more likely related to "Adjustment Disorder With Depressed Mood In Response To Disputes With The Compensation Board Personnel." They also attributed his condition to alcohol abuse.
The MRP was also quite clear that the incident of suicide attempt in October of 1998 was not causally related to the compensable injury but "rather to the relationship of [the claimant] with the WCB." The Appeal Panel would concur with this finding of the MRP particularly in light of the claimant's preoccupation with his dealings with WCB personnel as described in his evidence at the hearing of this matter. The MRP was of the opinion that:
- "...the episode of October 9, 1998 was due to [the claimant's] response to issues of benefits entitlement and frustration over a lack of access to retraining decisions."
The Appeal Panel is accordingly of the unanimous opinion that the depressive episode suffered by the claimant in 1998 was not causally related to his 1985 accident. We are also in agreement with Review Office in their decision of January 8, 1999, in that it did not accept that "if an injured worker becomes depressed because events do not unfold as he or she would like, that the depression is necessarily compensable."
With respect to the second issue, the Appeal Panel is of the view that the claimant is not entitled to temporary total disability benefits subsequent to April 24, 1998. There is no evidence on the claimant's file or in his oral evidence given at the hearing of this matter, that the claimant was unable to work within his compensable restrictions. There was never any change in the claimant's restrictions and it appears that he was laid off for economic reasons that were unrelated to the effects of his 1985 accident. The claimant could therefore have obtained employment and is not entitled to benefits after April 24, 1998.
K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of September, 1999