The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Rehabilitation Committee Order No. 34/85 dated July 16, 1985 which held in part that the worker’s vocational rehabilitation benefits should be suspended effective February 28, 1985.

The worker suffered a workplace injury on August 24, 1959. Though the worker returned to work with the accident employer a couple of weeks later, he continued to complain of symptoms which took him off work on multiple occasions; these complaints were ultimately determined to be psychosomatic and were diagnosed as post-traumatic neurosis. In 1983 he was awarded a 50% neurosis impairment award retroactive to 1972 for this condition (that being the first year that neurosis was recognized by the legislation as being compensable).

After his workplace accident, the worker remained in the employ of his accident employer until 1969 when he was terminated for failure to perform his alternate duties. From 1969 to 1975 he worked at a variety of jobs for variable periods of time with relatively long periods of unemployment between each job.

In 1983 he began vocational rehabilitation and received vocational rehabilitation benefits which were suspended on February 25, 1985 on the basis that the worker was not fully participating in the process. The worker appealed this suspension to the Rehabilitation Committee on the grounds that he was unable to fully participate for compensable medical reasons. The Rehabilitation Committee upheld the suspension of the worker’s benefits in a July 22, 1985 decision on the grounds that it found that the worker’s lack of participation was due to non-compensable reasons and a general lack of effort.

The worker appealed this decision to the Appeal Commission. On June 19, 2007, a hearing took place. The worker appeared and provided evidence. He was represented by legal counsel. A psychiatrist who had performed medical examination of the worker appeared and presented evidence. No one appeared on the employer’s behalf.

Issue

Whether or not the worker is entitled to vocational rehabilitation benefits beyond February 28, 1985 due to the compensable psychological condition.

Decision

That the worker is entitled to vocational rehabilitation benefits beyond February 28, 1985 due to the compensable psychological condition.

Background

Reasons

Introduction

This appeal deals essentially with mitigation issues and thus requires a determination of the reasons that took the worker out of vocational rehabilitation in 1985.

As this appeal is more than 20 years after the suspension of the worker’s vocational rehabilitation benefits, this task is, to say the least, difficult. Memories have faded and views (of both the medical profession and the WCB) on psychological injuries have changed dramatically. There is also a lack of documentation surrounding the suspension of benefits which adds to the difficulty. The panel found the adjudication of this claim to be difficult given this context - the “knowing what we know now” and applying that knowledge to events that took place so long ago. Guided however by the legal test that the panel must apply - a balance of probabilities - and considering the worker’s psychological condition and his work history and assisted by the testimony of the psychiatrist, the majority of the panel finds that the worker was willing and able to participate in the vocational rehabilitation plan within the confines of his psychological condition, that the worker’s participatory issues in the vocational rehabilitation plan were due to his compensable psychological condition, and that, as a result he is entitled to further vocational rehabilitation benefits beyond February 28, 1985 due to his compensable psychological condition.

Background

On August 24, 1959, the worker was struck on the top of his head while at work. He sought medical treatment and was diagnosed with a simple hematoma. On September 8, 1959, the worker returned to work with the accident employer but began to complain of a variety of symptoms including recurrent and persistent headaches, vertigo, leaking eyes, cervical pain, upper chest pain, pain in his arm, pain in his back and nervousness. He was seen by several physicians and specialists who were unable to find a physical reason for his complaints; his complaints were thought to be psychiatric in nature. In 1962, a psychiatrist opined that the worker suffered from post-traumatic neurosis.

Between 1964 and 1968, the worker filed 13 claims with the WCB for neck, back, shoulder and elbow complaints. The worker also took multiple medical leaves of absence which resulted in a considerable amount of time off work. In January 1969, he was ultimately dismissed from his employment with the accident employer because of his multiple absences and his failure to perform alternate duties.

Since that time, the worker obtained various jobs that were often separated by periods of unemployment as follows:

• A temporary clerk position in February 1969;
• An administrative position in August 1969;
• A clerical/bookkeeping course from September 1969 to June 1970;
• A clerical position for 10 days in August 1970;
• A duplicating machine operator from November 2, 1970 to October 16, 1973;
• A three month position as a cashier from February to April 1974;
• A three month job from April to June 1974 as a maintenance worker;
• A three week position as a security guard in September 1974;
• A five week position in 1975 as a billing clerk.

Three more WCB claims were filed by the worker between 1973 and 1974. The file notes that the worker did not have any performance issues related to these positions. Though some jobs were short-term in nature, the file does indicate that he lost a substantial amount of time from work because of health issues, including medical appointments or because he felt physically unable to do the job.

In addition to these various jobs, the worker was also involved in a non-profit advocacy organization that he established in 1971 to assist injured workers. A November 16, 1982 summary of WCB hearing notes however that the worker also felt unable to work at this job because he felt unable to sit most of the time and therefore lost too much time from work.

The medical reports from 1959 forwards indicate a series of medical complaints for which he took time off work and sought medical treatment. As mentioned above, these medical reports generally opine that the worker’s complaints were psychological in nature. A review of these medical files and an examination of the worker was done by a psychiatrist retained by the WCB to rate the degree of impairment of the worker’s psychological condition. His June 8, 1983 report notes the following:

“The present complaints which this man has are; constant headache, constant watering of the eyes, ringing in his ears, a “kink” in his neck, profuse sweating, weakness of the arms so that he could not raise them above his head without great difficulty, general weakness of his legs, low back pain and chronic fatigue. [The worker] states that most of these symptoms have been progressively although slowly increasing since his injury.

These symptoms have interfered with [the worker’s] life in the social inter-personal sphere as well as in the vocational sphere. He continued to work for the [accident employer] for ten years following the injury but it appears that his capacity for work there was progressively deteriorating so that he was dismissed in 1969. Following that he has been unable to maintain consistent employment because of limitations produced by his various symptoms. He noted that the worker’s life style at the present was apparently quite limited…

He finds that he can be active for only two or three hours at a time, then must return to bed for a period of time to rest…

In my opinion this man is suffering from a post-traumatic neurosis.

This condition is at this time fixed and chronic and will not respond to psychiatric treatment. The prognosis because of the chronic and fixed nature of the symptoms is relatively poor. I suspect that the symptoms will wax and wane somewhat in severity over the coming years but that the condition will always be present to significant degree.” [Emphasis ours]

He concluded that the worker suffered from a neurosis which was equivalent of Class 3 in severity and that a rating of 50 percent was appropriate.

Shortly thereafter, in November 1983, the worker advised his WCB rehabilitation counsellor that he was ready to seek suitable employment consistent with his restrictions where there was a variety of sitting, standing and walking involved. He indicated that he could do a light duty job and would attempt anything within his restrictions. As the worker had been out of the work force for a lengthy amount of time, he was referred to the Employment Preparation Centre (EPC) for a 3 week work assessment beginning August 7, 1984.

A senior vocational evaluator at the EPC authored a six page report dated September 4, 1984. The report notes that the worker was no longer attending psychiatric treatment. He was however seeing his family doctor every 2-3 weeks, a chiropractor once a week and a physiotherapist 3 times a week. During assessment, it was noted that the worker would get up and stretch and began complaining of discomfort in his back and neck. Because of these complaints he missed one day and left early another. Throughout the assessment period there were on-going complaints of discomfort. He told the evaluator that at the end of the day he had to return home and lay down for 2 hours to relieve the pain. The worker also expressed concern about his ability to work full-time. The evaluator noted “although his ability to work through his discomfort was pointed out, this did not allay the general anxiety he experiences around his condition”. The evaluator also noted that despite these complaints the worker was noted to demonstrate many good work habits and a definite potential for an entry level clerical/bookkeeping position. Given the worker’s work history, problems reported during the EPC evaluation and age, it was felt that a part-time position in the field of clerical/bookkeeping would be best suited for the worker. The evaluator also recommended monitoring of the worker’s condition given the worker’s concern around his back condition and its effects on employment.

In a memorandum to file dated September 24, 1984, the WCB Vocational Rehabilitation Counsellor (VRC) noted that he spoke with a WCB orthopaedic specialist regarding the worker’s present medical condition and the worker’s status of working on a part-time or full time basis. The specialist indicated the worker was still having pain and discomfort in his neck area. He suggested that the VRC should be very patient with the worker and not put added pressure on the worker’s rehabilitation program. He added that the worker needed much positive feed-back and should gradually be placed in a part-time sedentary position working 3 to 4 hours daily, to be reviewed in three months and probably lengthened to five to six hours each day.

The worker then began his job search and submitted weekly lists of “Employer Contacts” in October 1984 which indicated there were no positions or vacancies available. Though the file does not contain any further “Employer Contacts” sheets after this time, memoranda at the beginning of February 1985 do indicate that the worker did continue to search for employment at least up until that time.

The worker met with a VRC on January 14, 1985. A memorandum dated January 17, 1985 records the particulars of that meeting. It notes that the VRC advised the worker that job search expectations were still in effect and that he recommended a referral to the Job Finding Club. The VRC noted that it was the worker’s impression that his job search requirements were only up to December 30, 1984. He also thought that he should be allowed to continue his work with the non-profit advocacy organization instead of being obliged to search for work elsewhere. The VRC noted his opinion that the worker was physically capable of attending the Job Finding Club and conducting a job search at the same time. He referred to the EPC memorandum regarding the worker’s discomfort and limitations but opined that the Job Finding Club was an entirely sedentary activity. The VRC noted that the worker would have a difficult time finding employment during the winter months but thought that this was all the more incentive to engage in the Job Finding Club.

The VRC consulted an orthopaedic specialist on January 21, 1985 to discuss the worker’s physical ability to participate in both the Job Finding club and the job search. A memorandum of same date recording this consultation notes that “as [the worker] is continuing to participate in both a job search and in his capacity with the [non-profit advocacy organization], it is probably fair to suggest that [the worker] is already engaged in work related activity for approximately five or six hours a day. Taking [the orthopaedic specialist’s] suggestions and the claimant’s restrictions into account, I would recommend that a rehabilitation plan of involvement in a job search program and the Job Finding Club include the present restriction of sedentary employment, but that the hourly expectation be allowed to be flexible, taking into account that the claimant would appear to be capable of a five to six hour work day.” A letter of same date was then provided to the worker advising him of the WCB’s expectations.

A February 5, 1985 memorandum outlines the subsequent turn of events:

• On January 28, 1985, the worker indicated that no one would hire him for two to three hours per day and that his age was a factor. He said he was in a lot of pain and was going back to bed. He stated he would rather work for the non-profit advocacy organization if they had a position available;

• On January 29, 1985, the worker met with the VRC and the re-employment officer and agreed to attend the Job Finding Club. He stressed however that he had difficulties standing and sitting for any length of time. He had continued to apply for clerical jobs during the month of January but still felt that he was only able to work 2 to 3 hours a day as he was still experiencing a lot of pain;

• On January 30, 1985, the re-employment officer tried to reach the worker by phone to no avail to advise him of a part-time parking lot attendant position that was possibly available;

• On February 1, 1985, the worker called stating he was in bed for the last two days with pain in his back and that he would be unable to attend the Job Finding Club. He had however continued to look for employment;

• On February 4, 1985, the worker said he would not go for any job interviews for a parking lot attendant or gas station cashier positions and that he would only apply for clerical positions.

The re-employment officer indicated that her attempts to assist the worker in re-employment were unsuccessful as the worker created barriers to rehabilitation, mainly his fixation on his disability and his unrealistic expectations of the labour market.

The assistant director of the rehabilitation department concurred with this assessment. In a February 13, 1985 memorandum, he indicated that the worker’s presentation was paradoxical in that he contended total disability while simultaneously conducting a job search. Attempts to provide direction to the worker with his job search were met with resistance from the worker and he flatly refused to co-operate with the Job Finding Club. Given these factors, it was highly unlikely that the worker would be successful in obtaining suitable employment. He therefore felt that he could not recommend further vocational rehabilitation services and benefits until the worker became willing to take advantage of the services of the Job Finding Club.

It is against this backdrop that the worker met with the VRC on February 14, 1985. At that time the worker advised that he was undergoing medical tests and because of that he was not medically fit to participate in the vocational rehabilitation plan. A letter of same date was then sent to him advising that as his alleged degree of disability was not supported by objective medical findings his failure to attend the next session of the Job Finding Club would result in the suspension of his services and benefits.

The day after the worker was supposed to attend the Job Finding Club the VRC talked to the worker about his participation in it. During this conversation the worker advised the VRC that he decided not to attend the Job Finding Club or participate in a job search program for medical reasons; he was involved in ongoing tests and was under his doctor’s care and was therefore not available to participate in a rehabilitation plan. Based on the worker’s decision not to avail himself to rehabilitation activity, his benefits were suspended effective February 25, 1985.

Further discussion ensued with the worker on March 7, 1985. During this discussion the worker stated he had been sent for x-rays approximately one week prior and that his current problems were located in the low back and chest area which he felt could be related to his neck condition. On March 26, 1985 the worker’s family physician confirmed that he was undergoing tests but that these were for his stomach, duodenal and gallbladder which were done on February 13, 1985. The results were normal. The worker was also scheduled for an abdominal ultrasound on March 21, 1985. The physician commented that these problems were not related at all to “the injury”. Regarding the worker’s neck discomfort, the family physician noted that the worker was receiving physiotherapy in September and was presently using a cervical traction with water weights at home.

The worker appealed the WCB’s decision of February 27, 1985 stating that his benefits should be reinstated as his inability to participate in the vocational rehabilitation plan was due to medical reasons rather than any lack of cooperation or motivation on his part.

On July 22, 1985, the Rehabilitation Committee confirmed the suspension of rehabilitation services and benefits on February 28, 1985 on the grounds that the major deterrents to the worker’s gainful employment were not as a result of his compensable condition but rather non-compensable health issues and an inadequate fair and honest effort in regard to rehabilitative measures along with questionable motivation factors.

The next relevant medical report or correspondence is not until 2004.

In 2004, counsel for the worker retained a psychiatrist to perform an independent medical examination of the worker with a view to determining whether the worker’s psychological condition and its related symptomatology was, on a balance of probabilities, related to his workplace injury. This included an interview with the worker together with conversations with family members and a review of the worker’s WCB file.

The psychiatrist’s opinion was that the worker suffered from a pain disorder associated with both psychological factors and a general condition. He thought that as a result of the initial workplace injury in 1959 and his subsequent workplace injuries, the worker had begun to see himself as physically marginalized and depressed. Then his ability to see himself as being able to function and cope in the occupational force in a substantial manner became impaired as the years evolved. He concluded that the worker’s impairment was real and genuine and his ability to function on an ongoing basis in an occupational world was significantly impaired subsequent his accident in 1959.

Evidence at the Hearing

The worker testified at the hearing that prior to his 1959 workplace accident he was physically fit with no health issues. Employment wise he had a variety of jobs but no unemployment; he always felt able and willing to work. That had changed since his workplace accident.

The worker explained that he was unable to attend the Job Finding Club in 1985 as he was experiencing his usual physical symptoms. Though he had continued to work at the non-profit advocacy organization up until February 1985, he only worked on an as-able basis; this was usually for a maximum period of 2 – 3 hours a couple of days a week. After February 1985 he was however unable to continue work with this organization as he did not feel physically well enough.

A psychiatrist who had been retained by legal counsel to perform a medical examination also appeared at the hearing and provided evidence. He testified that the worker suffered from a psychological condition which is now referred to as a pain disorder. This psychological disorder translated into reduced perseverance and resilience, namely short periods of employment of reduced work hours and an inability to sustain ongoing long-term occupational relationships. He explained that the worker would muster up the courage to “put himself out there”, take risks and then withdraw because he felt overwhelmed.

After reviewing the worker’s medical file and the reports of the multiple medical practitioners he noted the worker’s myriad of physical complaints that were, for the main, diagnosed as non-organic or psychological in nature, were consistent with his psychological condition.

He thought that with respect to the worker’s vocational rehabilitation program in 1985, the worker had made his best attempts to cooperate but simply found it too hard and gave up; that was not to say that he shut it down completely – there was a part of him that entertained some hope that he would find some type of employment. He added that the medical testing done at the time and which revealed no pathology was not unlike all of his other medical complaints which were non-organic in nature.

Worker’s Position

Counsel’s submissions on behalf of the worker were very thorough and will not be reproduced here. Succinctly however, counsel says that the worker is entitled to further vocational rehabilitation benefits beyond February 25, 1985 because he did not fail to mitigate; he was not taken out of vocational rehabilitation for a non-compensable condition, but rather his compensable condition, and he did make his best efforts to fully participate in the vocational rehabilitation to the best of his ability.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that the worker mitigated his damages. Based on the evidence before us, we are able to make that finding.

As indicated previously, the issue before us deals with the worker’s level of participation in the vocational rehabilitation program taking into consideration his psychological condition. This determination is somewhat complex given that the worker’s psychological condition manifests itself physically. He suffers from a pain disorder (previously referred to as a neurosis) which, in layman’s terms, means that he feels pain and discomfort although there is no organic basis for that pain or discomfort.

The medical evidence on file indicates that these complaints of pain and discomfort have been a consistent theme since his 1959 accident. As stated by the psychiatrist at the hearing, as well as the psychiatrist retained by the WCB in 1983, and as is evident by his work history since 1959, these complaints of pain and discomfort have had an impact on the worker’s ability to work. The evidence is that since 1959, he would refuse to carry out his duties because of pain complaints, would miss work because of pain complaints and would quit or be dismissed from employment because of his inability to perform his job duties on a regular basis. This evidence has to be contrasted to his pre-1959 employment history; there is no evidence that the worker had any such difficulties performing work duties as a result of pain complaints.

This work history was, as previously noted, commented upon by both psychiatrists, the first as early as 1983. It was also noted that going into his vocational rehabilitation that the worker might have difficulties sustaining a protracted course of vocational rehabilitation and that it would be wise to start him off gently at approximately 3 hours per day. When the worker started vocational rehabilitation in the fall of 1984, his physical complaints persisted and he took some time off the program because of his perceived inability to continue.

When the worker had still not found employment by the end of 1984, the next step, in the eyes of the WCB vocational rehabilitation department, was to put the worker in the Job Finding Club. This would increase the worker’s hours of participation in the vocational rehabilitation program. Though it was sedentary in nature, there is no evidence that any thought was given to the worker’s psychological perception of his ability to increase his level of participation or that if it was, it was done on the misconception that the worker was involved with the non-profit advocacy organization 2 to 3 hours per day, 5 days per week. As stated previously, this was not the case. The worker only put in the time he felt physically able to and often slept during the day to ‘recover’.

Though the worker did say that he preferred to work at the non-profit advocacy organization, the evidence before us is that it was not really a job; he worked at it on a reduced basis and gave it up altogether after February 1985. We are therefore not persuaded that this was the reason for the worker’s unwillingness to continue further in the vocational rehabilitation. If it was, why did he participate up until that point? The evidence does show that the worker was participating in the vocational rehabilitation program and on one occasion did concede to go ahead with the Job Finding Club but changed his mind stating that he would not be able to as he was not up to it physically. Once again, no organic cause was found for his complaints.

This leads us to question what was going on with the worker at that time. The only medical evidence that we have before us that explains what happened is that of the 1983 report of the psychiatrist and the 2004 report and testimony of the psychiatrist that performed the medical examination. These reports indicate that the worker’s psychological condition caused him to complain of physical pain that impacted his attachment to the workforce; sometimes he could cope, other times he could not – simply, the psychological condition waxed and waned, allowing for greater or lesser participation. This was just one more situation where the worker felt that he could not cope and he experienced physical pain that he perceived prohibited him from participating.

On the basis of this evidence and on a balance of probabilities, we therefore find that the worker’s inability to participate in the vocational rehabilitation program in February 1985 was related to his compensable psychological injury and not non-compensable or motivational issues.

For these reasons we find that the worker is entitled to vocational rehabilitation benefits beyond February 28, 1985 due to his compensable psychological condition.

Accordingly his appeal is granted.

As a final note, we wanted to clarify that although other arguments and issues were raised during the hearing, and in particular, with respect to the reconsideration of the worker’s permanent partial disability award, we have not dealt with them as they were not properly before us and as such, not within our jurisdiction to hear them.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer

Signed at Winnipeg this 10th day of August, 2007

Commissioner's Dissent

Under these circumstances, I would describe the theory of tentativeness and trauma as speculative at best. Simply stated, it is an argument presented very late in the claim that is not supported by any facts or corollary evidence, and as such, I attach very little weight to it, especially since it does not accord with the real functional capabilities that the worker has had (as described above), since the 1960s with a condition that has remained the same throughout the next four decades.

The work history itself, even saddled with a rating of 50% PPD, which has not changed since the 1960s, suggests that the compensable psychological condition does not and had not rendered the worker totally disabled from employment either before 1985, or in early 1985 when the worker was in a job search process targeted at a reattachment to the work force. Nor is there medical evidence suggesting either a temporary “waxing” or a permanent enhancement of his compensable condition between 1983 (when the worker was assessed by a psychiatrist and granted the 50% PPD) and 1985 that would have precluded the worker from gaining employment or from simply participating in the job search activities that the WCB had asked of him.

I find that the worker’s refusal to participate in the return to work was not due to a lack of functional capacity to work or to the proposed tentativeness or job trauma. Rather, the worker’s refusal is a by-product of his admirable commitment to his voluntary advocacy organization. The evidence on file amply demonstrates that he was indeed prepared to work with that organization, should a position become available, suggesting that a work capacity did indeed exist. Regrettably, the pursuit of other employment (both the job search and a potential later hiring) would have stood in the way of his volunteer commitments. This, to my mind, was a central reason for the worker’s refusal to participate in the job search process, and unfortunately leaves the worker in the situation where he had failed to mitigate the consequences of his workplace accident in 1985.

For these reasons, I find on a balance of probabilities that the suspension of the worker’s benefits was appropriate at that time, and the worker is thus not entitled to vocational rehabilitation benefits beyond February 28, 1985. I would therefore deny the worker’s appeal.

A. Finkel, Commissioner