Decision #03/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 7, 1998, at the request of an advocate, acting on behalf of the employer. On December 7, 1998, the Panel met to discuss the case.

Issue

Whether the employer should be provided with cost relief.

Decision

That the employer should not be provided with cost relief.

Background

While employed as a chipper operator on March 19, 1991, the claimant's right hand was caught and crushed in a chipping machine. The resulting injuries consisted of a compound fracture of the trapezium with possible fracture of the base of the third metacarpal. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.

Subsequent information revealed that the claimant underwent a number of surgical procedures to the right hand and was assessed by numerous specialists including psychologists in relation to the compensable injury. In May 1996, a WCB psychological advisor interviewed the claimant and stated in part, "...it is evident there is a range of Cluster B personality dynamics; there are significant elements here of major depression, with subjective, vegetative cognitive symptoms, and from the sound of it, there is, potentially, under-reported alcohol abuse."

On March 9, 1998, an advocate acting on behalf of the employer, spoke to a WCB adjudicator and expressed her view that the employer was entitled to cost relief due to the claimant's long term personality disorder.

In a letter to the advocate dated March 20, 1998, Claims Services stated that the claimant did not have a pre-existing psychological problem and that her depression was directly related to the compensable injury. Accordingly, the employer was not entitled to cost relief. This decision was later confirmed by the Director of Vocational Rehabilitation & Employment Services in a letter dated May 20, 1998.

On June 29, 1998, the employer's advocate appealed the WCB's decision not to grant cost relief and made reference to a January 9, 1997, report from a Registered Psychologist and Consultant which stated in part, "I believe that Ms. [claimant's name] depressive state is directly related to her compensable injury, rather than to any longstanding personal issues preceding her accident." The advocate was of the opinion that the WCB's vocational rehabilitation involvement was inappropriate and could be viewed as a major factor to the claimant developing the major depressive disorder, which was disabling the claimant from participating actively in a return to work program. The advocate requested cost relief under policy 31.05.10 schedule C with supporting policy 44.10.80.40.

On July 17, 1998, the Review Office denied the request for cost relief and determined the following:

  • the claimant's condition was considered compensable under Board Policy 44.20.60, Psychological Conditions, rather than Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, as was suggested by the employer's advocate; and
  • that Board Policy 31.05.10 made no reference to the acceptance of a condition as compensable under Board Policy 44.20.60 leading to the consideration of providing cost relief.

The employer's advocate appealed the Review Office's decision dated July 17, 1998, and requested an oral hearing which was held on December 7, 1998.

Reasons

The issue in this appeal is whether the employer should be provided with cost relief. The submission of the employer's representative is that the claimant's depression was not directly related to the compensable injury, and that cost relief should be provided to the employer on either of two grounds:

    a) That the claimant had a pre-existing condition, in particular a pre-existing personality disorder, and that the post-accident depression was an exacerbation of the pre-existing condition;

    b) That the claimant's depression was a further separate injury that occurred during the administration of vocational rehabilitation, over which the Workers Compensation Board (WCB) exercised direct specific control.

The relevant WCB policies in this appeal are Section 31.05.10, Cost Relief/Cost Transfers, and Section 44.10.80.40, Further Injuries Subsequent to a Compensable Injury.

WCB Policy 31.05.10 states in part:

A. Policy

3. Class E employers are eligible for cost relief and cost transfers as provided in all Schedules.

    a. Cost relief is available to all eligible employers in the following circumstances:

    (i) Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition. The cost relief and method of cost allocation are set out in Schedule A.

    (ii) Where a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss (Schedule C).

Schedule A states that "for claims where a pre-existing condition has affected the disability duration and/or associated costs, the WCB may provide cost relief" and later indicates that "for other claims involving a pre-existing condition where time loss exceeds 12 weeks, the employer will receive cost relief for 50% of the entire costs of the claim."

Schedule C states:

Where a worker is receiving benefits and the duration of the benefits is extended due to a further separate injury which is compensable under the Board's policy on "Further Injuries Subsequent to a Compensable Injury," the additional costs attributable to the further injury may be eligible for cost relief in the following circumstances:

  (i) Where the further injuryarises out of a situation over which the WCB exercises direct specific control; or  

  (ii) Where the further injury arises out of the delivery of treatment for the original compensable injury.

Schedule C refers to Section 44.10.20. Further Injuries Subsequent to a Compensable Injury which stated in part.

A. Policy

A further injury occurring subsequent to a compensable injury is compensable: 

             (i) Where the cause of the further injury is predominantly attributable to the compensable injury;

             (ii) Where the further injury arises out of a situation over which the WCB exercises direct specific control;

where the further injury arises out of the delivery of treatment for the original compensable injury.

Based on our review of the file evidence and on considering the evidence and submission made by the representative for the employer at the hearing, we find that the evidence supports a conclusion, on a balance of probabilities, that the claimant's depression is related to the March 19, 1991 compensable accident, and not to a pre-existing condition or to a further separate injury subsequent to the compensable injury.

In reaching these conclusions, we note the following evidence:

  • Evidence at the hearing that the claimant had worked with the employer for 11 years prior to the workplace accident, had no absences due to psychological issues, and had never been diagnosed or treated prior to the workplace accident for depression or any other major affective disorder.
  • A report by a WCB vocational rehabilitation consultant dated January 20, 1993 refers to a meeting with the employer, who indicated that the claimant was a good worker.
  • The claimant sustained a serious crush injury to her right hand in March 1991 which required three surgeries to repair, in 1991, 1992, and 1993. These surgeries were for an open reduction fixation of a fractured trapezoid on March 30, 1991, for release of adhesions and a tendon arthroplasty of the right thumb on January 20, 1992, and a significant third surgery on August 19, 1993 to excise the remainder of her trapezium, redo the tendon arthroplasty at the carpal metacarpal joint, reduce, fuse a third carpal metacarpal joint, and excise the radial sensory nerve. All these surgeries were authorized by WCB, with a continuity of symptoms between each.
  • The first indication of psychological problems are noted in April 1992 when the WCB vocational rehabilitation consultant refers the claimant to a psychologist to help her deal with the effects of the compensable injury.
  • There is a continuity of psychological problems noted throughout the remainder of 1992 and 1993 during the ongoing medical management of the claimant's injuries, for which WCB authorized treatment:
    • A report by a psychologist dated May 21, 1992.
    • A report by a second psychologist dated November 25, 1992 states that:
        "It was evident that this woman's personal history (which she reluctantly discussed) had left her suspicious and not trustful of those situations where one takes emotional risks. These feelings have been exacerbated and reinforced by the events surrounding her injury. I suspect that prior to the accident, [claimant] kept tight reins on her feelings and took considerable control over her life situation. Her injury and the fact that she cannot return to her previous work has left [claimant] feeling that she is not in control over her life any more and has likely brought forward previously unresolved issues."
    • A memo by a vocational rehabilitation consultant dated April 4, 1993, prior to the third surgery, that authorizes an additional 2 - 3 months in psychotherapy.
    • A progress report by the second psychologist dated May 3, 1993, which confirms her ongoing psychological difficulties, in particular depression, and indicates that the claimant was on anti-depressant medication as of April 1993.
    • A progress report by the second psychologist dated August 31, 1993, including a visit subsequent to the August 1993 third surgery notes "your client remains pessimistic about the benefits that will be derived from this current operation and it has only served to deepen her despair over her injury."

There is a continuity of WCB authorized treatment for psychological issues subsequent to the third surgery:             

  • A progress report by the second psychologist dated January 23, 1995 indicates that the claimant met with the psychologist approximately once every two weeks between November 19, 1992 and January 3, 1995. He notes that, "she was depressed, held a poor self image and showed little motivation to wanting to improve her life. These issues made Ms. [claimant] difficult to engage and limited her future vocational options.
  • A report by a WCB vocational rehabilitation consultant dated July 31, 1995 details a series of psychological obstacles that hindered a summer work placement program.
  • A report by a WCB psychiatrist based on a call-in examination on May 1, 1996, states that "it is evident there is a range of Cluster B personality dynamics; there are significant elements here of major depression, with subjective, vegetative cognitive symptoms "
  • A report by a third psychologist, after referral by WCB, dated September 23, 1996 states that she shared with the WCB psychiatrist the impression that the claimant was clinically depressed and that her attending physician be consulted regarding possible use of antidepressant medication.
  • A detailed report by the third psychologist, dated January 9, 1997 states that "[claimant] is suffering from a Major Affective Disorder, with much hopelessness, lack of energy, anhedonia, depressed mood, irritability, social withdrawal and mistrust." She concludes that "from the history which she gives, I believe that Ms. [claimant]'s depressive state is directly related to her compensable injury, rather than to any long-standing personal issues preceding the accident. In fact, [claimant] indicates she was fully functional and that there is no history of psychiatric or medical treatment for any emotional disorder before the accident."

In reviewing all the evidence, we find on a balance of probabilities that:

  • The major affective disorder (depression) was apparent early in the treatment of the claimant's acute physical consequences of the workplace accident, and with a continuity that leads us to conclude that the major affective disorder was directly related to the workplace injuries.
  • The Cluster B personality dynamics do not qualify as a pre-existing condition, there is no evidence of a pre-existing depression or of absences from work over a 11 year period, and there is no medical evidence to support a causal linkage between the Cluster B personality dynamic and the major affective disorder. Accordingly, we do not find that there is a pre-existing condition that satisfies the cost relief provisions of Schedule A to WCB Policy 31.05.10, Cost Relief/Cost Transfers.
  • The early onset of the claimant's depression following the compensable injuries and the continuity of psychological difficulties subsequently, lead us to find there was not a "further separate injury" that would trigger the cost relief provisions of Schedule C to WCB Policy 31.05.10, Cost Relief/Cost Transfers.
  • Additionally, we note that this Schedule C only becomes operative "where a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss." We find that the evidence does not support a finding of a second accident or of an injury that arose "out of a situation over which the WCB exercises direct specific control," as required by WCB Policy 44.10.40, Further Injuries Subsequent to a Compensable Injury;

Accordingly, the Panel denies the employer's request for cost relief.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of January, 1999

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