Decision #159/06 - Type: Workers Compensation
Preamble
This case involves a worker who was diagnosed with post-traumatic stress disorder (PTSD) as a result of a workplace injury. On April 30, 2003 during the course of her employment as an adult care counselor the worker was assaulted by a client. The worker applied for benefits from the Workers Compensation Board (WCB). Her claim was accepted and benefits were paid until November 9, 2005 at which time it was determined that the worker had recovered from her injury. The worker appealed this determination to the Appeal Commission.
A file review was held on August 30, 2006, at the worker’s request.
Issue
Whether or not the worker is entitled to wage loss benefits beyond November 9, 2005.Decision
That the worker is not entitled to wage loss benefits beyond November 9, 2005.Decision: Unanimous
Background
On April 30, 2003, the worker was escorting a client during the course of her employment as an adult care counselor when the client became agitated and scratched and bit the worker’s hands and upper right arm. On May 29, 2003, the worker quit her job as an adult care counselor and claimed that she was unable to work in that type of environment. As a result, she was claiming wage loss benefits from the Workers Compensation Board (WCB).
In a report dated June 24, 2003, the treating physician indicated that she saw the worker on May 14, 2003 with some unhealed wounds on her right hand. The physician saw her again on May 30, 2003. At this time she was crying anxiously and was given a note to be off work for two weeks and to start an antidepressant. Her next visit was on June 10, 2003. She had a low mood, no energy and diminished concentration.
The WCB accepted the claim for compensation and wage loss benefits were paid to the worker commencing May 30, 2003.
On August 1, 2003, a clinical psychologist stated that she met with the worker on two occasions. The worker complained of anxiety, panic and sleep disturbance. A list of the worker’s symptoms were outlined which included crying spells, agitation, irritability, etc. The diagnosis rendered was a post-traumatic stress disorder (PTSD).
The clinical psychologist provided the WCB with up-dates of the worker’s progress with therapy on October 23, 2003 and November 24, 2003.
On January 12, 2004, the worker’s condition was assessed by a psychiatrist. In his report dated March 9, 2004, it was documented that the worker’s symptoms were consistent with PTSD which was now becoming chronic. He also diagnosed the worker with panic disorder with agoraphobia. The psychiatrist recommended that the worker not return to similar work to which she was previously doing as the work incident had left her with quite a bit of anxiety and fear. He felt that the worker might be employable in related type fields such as daycare.
On April 19, 2004, the worker was interviewed by a WCB psychiatric consultant. It was confirmed that the worker’s symptoms fulfilled the diagnosis of PTSD.
In a report dated June 30, 2004, the clinical psychologist stated, in part, “I agree with [the psychiatrist’s ] opinion, as well as [the WCB psychiatric consultant] that [the worker’s] severe reaction is likely due to a post traumatic stress symptomatology added to pre-existing personality characteristics”. The psychologist reported that her treatment was ending as the worker was not benefiting from cognitive behavioral therapy.
The worker was interviewed by a psychiatrist on August 27, 2004. In his report of September 3, 2004, the psychiatrist diagnosed the worker with PTSD and depression. He further added, “There may be some premorbid characterologic factors but there was no clear history suggestive of a personality disorder from this cross-sectional assessment. There is no way for me to determine how much of her difficulties are related to the compensable injury and how much are related to non-compensable or pre-existing difficulties.”
The WCB psychiatric consultant reviewed the file on September 13, 2004. She indicated that the worker had features unusual to PTSD; that the worker was showing marked avoidance of situations to the extent that she refused to attend treatment in many locations and that she had not participated in homework as part of her treatment.
A mental health therapist attended the worker’s home on September 23, 2004 to complete a mental status assessment of the worker. A treatment plan was outlined which included cognitive behavioral treatment strategies.
On January 31, 2005, the WCB psychiatric consultant commented that the worker had not moved forward with her condition and that significant progress would have been expected a long time ago. Therefore, it was likely that a number of non-compensable factors were delaying the worker’s recovery. A call-in examination was suggested to determine the worker’s current status.
In a memo to file dated March 31, 2005, the case manager recorded that she spoke with the mental health therapist regarding the worker’s current mental status. The worker was reported to be doing well and was more in control of her emotions. The worker was volunteering one afternoon a week and was assisting an elderly friend by taking her to appointments.
The worker was again interviewed by the WCB’s psychiatric consultant on February 21, 2005. It was concluded that the worker displayed characteristics which made PTSD difficult to diagnosis. The worker was exhibiting anxiety, both verbally and non-verbally. The worker did not have evidence of depression. The worker was able to carry out normal activities of daily living and her energy level and ability to focus her attention and concentration appeared within normal limits. The psychiatric consultant anticipated that the worker would be able to participate in a return to work program in six to eight weeks time.
On April 29, 2005, the WCB case manager met with the worker, her husband and the mental health therapist to discuss ongoing entitlement to benefits. The case manager informed the worker that her benefits would be coming to an end as she was found to be functioning well. The worker disagreed with the position and stated that she had no job to go back to, she was not functioning well, and that she would never be able to be in a public place where she might run into a mentally handicapped person.
On May 9, 2005, the mental health therapist provided the WCB with an up-date of the worker’s progress and commented that the worker is able to move to the next steps in vocational programming.
The case was reviewed by the WCB psychiatric consultant on May 16, 2005 who reported that “Objective evidence indicates clt [claimant] has improved substantially ([mental health therapist]). The CM [case manager] met with clt April 29/05, indicating that benefits would be ending. The clt then saw [doctor] a few days later – had begun scratching herself again, couldn’t sleep and was anxious. This would appear to be in reaction to her meeting with the CM. Her present difficulty would be expected to be transient, and settle as she comes to terms with returning to the workforce. It would not be considered to be actually related to the CI [compensable injury].”
In a letter dated June 2, 2005, the WCB case manager formally advised the worker that her wage loss benefits would be ending effective June 13, 2005. It was the case manager’s opinion following review of file evidence, that the worker was mentally able to function in a work place setting.
On June 6, 2005, a WCB sector manager called the worker’s mental health therapist for an update on the worker’s status with treatment. According to the mental health therapist, the worker was employable and was capable of moving forward. She felt that getting the worker back into the work world would be therapeutic for the worker and would help her to not dwell on the past. The worker was no longer agoraphobic. The therapist indicated that the worker’s anxiety and thought obsessions would not be a barrier to returning to work.
On June 20, 2005, the worker was advised that the WCB was reinstating her wage loss benefits effective June 14, 2005 and that she would be reassessed by the WCB’s psychiatric consultant prior to rendering a decision regarding her ability to return to work.
The worker was interviewed by the WCB psychiatric consultant on July 18, 2005. The consultant concluded that the worker does not currently meet the diagnosis of Axis 1 psychiatric disorder including PTSD or depression. The consultant concluded that the worker does not currently meet the diagnosis of Axis I psychiatric disorder.
On August 17, 2005, the WCB sector manager advised the worker that her wage loss benefits would be extended to December 7, 2005 (later changed to November 9, 2005) in accordance with WCB policy 44.30.60. The sector manager determined that the worker had recovered from her compensable injury which was accepted with the diagnosis of PTSD and that there were no restrictions regarding her return to the workforce. He stated that the worker’s progress with psychotherapy and her volunteer placements had been corroborated and documented. It was identified that the worker was able to carry out normal activities of daily living and was able to function competently within her volunteer placements. In November 2005, the worker appealed this decision to the Review Office.
On November 23, 2005, Review Office confirmed that the worker had recovered from the effects of her compensable injury and that she was not entitled to wage loss benefits after November 9, 2005. Review Office concluded from the whole of the evidence, particularly the opinions expressed by the mental health therapist and WCB psychiatric consultant, that the worker had made a good recovery from the effects of her compensable injury. On May 10, 2006, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Worker’s Position
In support of her appeal, the worker made a written submission. The worker noted that she had asked the WCB to have another Beck Anxiety inventory completed. She noted that the WCB failed to have such a test administered. She advised that she completed an inventory on March 8, 2006 and that the results demonstrated that she continued to suffer from severe anxiety.
The worker expressed concern that errors were made in adjudicating her claim. She noted that she became pregnant during the claim and that the WCB did not take her condition into consideration when treating her for PTSD. She felt the WCB discriminated against her because she was pregnant. She submitted that her benefits should be reinstated.
The worker provided a mood disorders assessment prepared by a psychiatrist and nurse from a mood disorders clinic. The assessment notes that “[the worker] has experienced significant improvement in her symptoms of Post Traumatic Stress Disorder.”
The assessment described the worker’s mental status examination as follows:
“[The worker] presented as a very well groomed, neatly dressed, thirty-two-year-old woman. She was pleasant and cooperative. Her speech was normal. Her thought content focused on her difficulties over the past three years since she was assaulted. Her thought processes appeared to be normal. There was no evidence of any psychotic symptoms. There was evidence of irrational thinking in her over-estimation of her risk of being assaulted again. She had also generalized her fear of the specific person who attacked her to a fear of all individuals with psychiatric or mental challenges. She was able to state that these fears are irrational, yet she still experiences intense fear and anxiety related to them. She displayed a wide range of appropriate affect. She described her mood as being anxious as opposed to depressed. She denied any suicidal ideation. There were no gross abnormalities in memory or concentration. Her judgment and insight appeared to be very good.”
The assessment diagnosed the worker with Axis I PTSD and recommended cognitive therapy treatment for her PTSD condition and re-institution of a specific medication to help reduce anxiety.
Employer’s Position
The employer was represented by an advocate who provided a written submission dated August 23, 2002. The employer’s representative submitted that the medical evidence and the worker’s demonstrated level of functioning show that the worker is capable of returning to the workforce. The representative reviewed the medical information on the file and commented that the worker has been adequately compensated and is not entitled to benefits beyond November 9, 2005.
Applicable Legislation
In this case the worker is seeking wage loss benefits. Under The Workers Compensation Act (the Act) the worker is entitled to wage loss benefits if she has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond November 9, 2005. For the appeal to be successful the panel must find that the worker was unable to work after this date as a result of her workplace injury. The panel is unable to make this finding. The panel finds, on a balance of probabilities that the worker did not suffer a loss of earning capacity after November 9, 2005 as a result of the workplace injury. The panel finds that the worker’s compensable condition is not preventing her from returning to work.
In arriving at this decision, the panel places significant weight upon the opinions of the mental health therapist who treated the worker and the WCB psychiatric consultant who examined the worker.
The panel notes the mental health therapist’s comments in a report dated May 9, 2005. She commented that:
“As a result of [the worker’s] abilities to demonstrate a proactive functioning lifestyle, it is my recommendation at this time that [the worker] is demonstrating the ability to proceed towards the next steps in vocational programming…”
A WCB memo dated June 6, 2005 notes that the therapist’s opinion that the worker “…is employable and is capable of moving forward. In fact. Getting back into the work world is actually going to be therapeutic for [the worker] and help her to not dwell on the past.”
As noted, the panel places significant weight upon the opinion of the WCB psychiatric consultant. The panel notes that the consultant examined the worker on three occasions, followed her progress closely and made referrals for treatment. The panel accepts the opinion of the WCB psychiatric consultant in a report dated July 18, 2005. The consultant concludes:
“Having examined [the worker] on three occasions including April 19, 2004, February 21, 2005 and July 18, 2005, it is concluded that the claimant does not currently meet the diagnostic criteria of any Axis I psychiatric disorder including PTSD or Depression. By the claimant’s report, she does catastrophize events. This would not be a manifestation of the workplace incident but rather, reflects long-standing pre-existing coping skills. In light of the absence of an accident-related psychiatric diagnosis and the May 9, 2005 report from [name] indicating improvement, it is concluded that there is no reason to impose restrictions on the claimant in the workplace.”
Finally the panel also notes that since the workplace injury, the worker has successfully participated as a volunteer at a daycare and as an attendant for an elderly person. The panel considers these activities demonstrate the worker’s ability to function in a work setting and support the finding that the worker is able to return to work. As such, the panel finds that there is no basis to extend wage loss benefits beyond November 9, 2005.
The worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of October, 2006