The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on January 30, 2008 at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 8, 2006; and

Whether or not responsibility should be accepted for the worker’s psychological problems including associated costs.

Decision

That the worker is not entitled to wage loss benefits beyond March 8, 2006; and

That responsibility not be accepted for the worker’s psychological problems including associated costs.

Decision: Unanimous

Background

On December 24, 1997, the worker was involved in a work related motor vehicle accident and sustained injuries to both of his feet and heels, right knee, arm, hand and neck. Subsequent to the accident, the worker was treated by his family physician, a physiotherapist, an orthopaedic surgeon, a psychiatrist and a mental health worker. In 1999, it was determined by a WCB psychological consultant that the worker met the diagnostic criteria for chronic post traumatic stress disorder (PTSD) and major depression which was felt to be related to the worker’s compensable injury.

On August 21, 2000, a WCB psychiatric advisor and a WCB psychological advisor diagnosed the worker to have “PTSD chronic (mild) and Major Depression in remission,” with restrictions related to driving on wet or icy road conditions.

In October 2000, the worker returned to modified duty work and then later obtained full time employment in a different position with the accident employer. This position respected medical restrictions regarding climbing, which had been part of his pre-accident duties. The position utilized the worker’s trade skills, but was at a lower pay scale. The accommodation with the employer maintained the worker’s pre-accident wages, and the WCB therefore stopped paying wage loss benefits on the claim.

In a letter dated March 6, 2001, the treating psychiatrist indicated that the worker did not require any additional intervention to help manage his anxiety or depression. He stated that the treatment received by the worker now and in the past appeared to be adequate. On July 9, 2001, a WCB psychological advisor indicated that the worker no longer required restrictions for psychiatric reasons.

On October 16, 2006, the worker advised the WCB that his employment with the accident employer had been terminated and he was claiming full wage loss benefits as he could not work.

On October 17, 2006, the accident employer advised the case manager that the worker was terminated on March 8, 2006 due to reasons unrelated to his WCB claim. At the time of his termination from employment, the worker was accommodated with work that respected his compensable restrictions. There had been other issues at the workplace, and the worker had signed a “last chance agreement”. The worker breached the terms of the agreement in March 2006, and was terminated from his employment on that basis.

Based on this information, the worker was advised in a decision dated October 17, 2006 that he was not entitled to wage loss benefits beyond March 8, 2006, as he was terminated from his employment for reasons unrelated to his compensation claim. He was also advised that the WCB was seeking information from his treating psychiatrist and it would then decide whether he was entitled to any benefits in this regard.

In a letter dated October 23, 2006, the treating psychiatrist responded to specific questions posed by the case manager. He stated that since his letter of March 6, 2001, he saw the worker at least three times in 2001 and intermittently since then. More recently, he was seeing the worker every two months for persistent depression and anxiety which had been complicated by substance abuse for which he had been in treatment and was presently abstinent. He outlined the worker’s current diagnosis as:

Axis I:     Major Depressive Episode, recurrent;
                Generalized Anxiety Disorder, with anxiety attacks;
                Multiple substance abuse…currently in remission

Axis II:    Deferred

Axis III:    Persistent disability secondary to injury to his feet in a work-related accident in 1997

Axis IV:    Unemployment, at this time, with significant financial difficulties creating more stress and anxiety.

The treating psychiatrist attributed the worker’s current psychological difficulties to “stress related to work and a conflict at work. Subsequently, he is being terminated, marital breakdown, inability to find a job to support himself.”

On December 18, 2006, the file information was reviewed by the WCB’s psychological advisor at the request of primary adjudication. This included the opinion expressed by the treating psychiatrist in March 2001 and his current opinion dated October 23, 2006. Based on this information, the psychological advisor opined that the worker’s current psychological difficulties were not related to PTSD and were unrelated to the compensable injury.

On January 3, 2007, the worker was advised that the WCB was unable to accept responsibility for any psychological treatment or the associated costs beyond March 6, 2001 on the basis that his current psychological difficulties were unrelated to his claim.

The case was considered by Review Office on March 30, 2007 based on appeal submissions by the worker dated February 6, 2007 and February 8, 2007. On March 16, 2007, the worker clarified to Review Office that he was requesting mileage to attend psychological treatment, coverage for counselling and medications and for wage loss benefits beyond March 9, 2006. With regard to his termination from employment, the worker indicated that his contract was broken with the employer due to substance use which he attributed to the stress from his compensable injury.

With regard to the issue of whether the worker was entitled to wage loss benefits beyond March 8, 2006, Review Office noted that the worker’s loss of earning capacity after March 8, 2006 was due to his employer’s decision to terminate his employment for reasons unrelated to the effects of the compensable injury. It found that the employer accommodated the worker within his compensable restrictions without any wage loss up to the date of his termination. The termination was due to the worker breaking the “last chance agreement” between him and his employer. The “agreement” was not related to the compensable injury and did not fall within WCB jurisdiction and there was no evidence that the duties were outside of the worker’s compensable restrictions or that the accommodation would not have continued after March 8, 2006 if it were not for the worker’s termination for reasons unrelated to his claim. Review Office found no evidence that the compensable injury (i.e. PTSD or bilateral heel/foot problems) resulted in the worker’s loss of earnings after March 8, 2006. The worker’s appeal was denied on this issue.

Regarding the second issue, Review Office could not find material evidence to attribute the worker’s psychological problems to the compensable injury, based on its review of the file evidence which consisted of reports on file dated August 21, 2000 from a WCB psychiatric consultant and psychological advisor, the treating psychiatrist dated March 6, 2001 and October 23, 2006 and the WCB psychiatric consultant dated December 18, 2006. It found that the worker’s psychological problems of depression, generalized anxiety, and mixed substance abuse in remission were not considered related to the compensable injury. As a result, no further responsibility would be accepted for any related medical aid treatment, medications or mileage.

On October 2, 2007, a worker advisor appealed Review Office’s decision on the worker’s behalf and a hearing was arranged. On October 26, 2007, the worker advisor provided the Appeal Commission with additional medical information from the treating psychiatrist of progress reports of visits covering the period March 1, 2001 to March 20, 2007, for the panel’s consideration.

Reasons

The worker in this case is seeking firstly to have his wage loss benefits to be restored as of March 6, 2006, and secondly, to have his current psychological conditions declared as being causally related to his 1997 workplace injury. For the worker to succeed on the first issue, the panel would have to find that the worker’s loss of earnings after that date is causally related to the 1997 injury. Within the facts of this case, this would entail a finding that the worker’s actions that led to his termination from his employment were causally related to his injury. For the worker to succeed on the second issue, the panel would have to find that the worker’s current psychological conditions are directly related to the original injuries or a direct sequela of those injuries. The panel was unable to make these findings, and our reasons follow.

Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

In accordance with subsections 39(1) and 39(2) of the Act, wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury provides that:

“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; …”

WCB Policy 44.10.20.10, Pre-Existing Conditions provides that:

1. WAGE LOSS ELIGIBILITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The worker’s position:

At the hearing, the worker provided considerable evidence in response to questions posed by his worker advisor and later by the panel, as to the chronology of events from the time of his compensable injury in 1997 to the present. He described in considerable detail the traumatic nature of the motor vehicle accident in which he was involved and his experiences with the occupants of the other vehicle.

He then described his physical challenges with both feet following the accident, and his eventual return to work with his employer in a modified duties position that respected his reduced capacity for climbing, which was a significant and required component of his pre-accident job duties. The worker’s new position was several pay grades lower than his pre-accident position which also included some supervisory components, but his eventual accommodation was “red-circled”, meaning that he was protected and guaranteed his pre-accident wages of the higher position and his pension entitlements. The worker’s evidence was that he was continually attempting to get his pre-accident job back, which would have required the removal or adjustments of permanent restrictions that the WCB had assigned to him, in particular the ability to climb for at least 2.5 hours at a time. The worker indicated that in his quest to get his old job back, he was continually frustrated by the lack of support offered by his supervisors and other human resources staff of his employer, as well as his union, and the WCB. By October 2005, he had arranged for two tests of his climbing ability which he passed, and also had the employer’s physician agree to the relaxation of the worker’s climbing restrictions. The worker’s evidence is that to his knowledge the WCB did not change his permanent restrictions, and his original position was not offered to him in the following months. The worker also provided information to the panel about a customer complaint made against him in December 2005, and the internal investigation process that followed, that he described as being a “kangaroo court.” The worker’s evidence is that he anticipated being fired in early March 2006, and that he used substances on two occasions, knowing this would result in a breach of his last chance agreement.

The worker also described the progress of his psychological conditions since the compensable injury. He noted that he was diagnosed with PTSD following the accident, and by 2001 he also had depression and anxiety which his psychiatrist had linked to his PTSD condition. He says he has continued to suffer from those conditions, even though WCB stopped paying for treatment for his psychological conditions and medications by 2004. The worker described how a youth involved in the accident would make threatening gestures towards him, up to five times per month, and how the mother had threatened to kill him.

The worker’s evidence was that he has continually tried to get his pre-accident job back, and that he has suffered ongoing stress at work, dealing with supervisors who would not help him, having to work with an incompetent co-worker in his former position and supervisors who ignored his complaints, as well as union officials and the WCB who also would not help him. The worker acknowledged that he had been on at least two lengthy stress leaves that were not covered by WCB, and that he broke a “last chance agreement” that he had signed with his employer in late 2004, because he felt his employer had it in for him. His position is that his breach of that agreement was directly caused by all the stresses that he had been under at work, as a direct consequence of his compensable injury. He states all the stresses related to his attempts to get his job back, and that he would not have lost his pre-accident job if it hadn’t been for the accident. As such, his actions in breaching the agreement are the WCB’s responsibility, and his wage losses after his termination are due to his compensable injury.

With respect to the second issue, the worker says that he is suffering from exactly the same conditions that his treating psychiatrist identified in March 2001, which was later confirmed by his psychiatrist in a letter of October 23, 2006, and thus they should be the WCB’s responsibility.

The worker’s representative confirmed these arguments in her presentation.

The employer’s position:

The employer’s representative argued that the worker had been fully accommodated in alternative duties that respected the physical and psychological restrictions placed on the worker by the WCB. The duties were in his field of expertise, and both his wages and pension benefits were protected.

Dealing with the psychological issues, the representative reviewed the medical reports on file, and noted that the PTSD diagnosis was found to have resolved in early 2001, and that the only later mention of PTSD was in 2005, which referred to childhood memories. While the psychiatrist’s report referred to residual depression and anxiety issues, the representative noted that many other issues began to confront the worker after that date, including two stress leaves that were not considered to be compensable, as well as marital, anger management, and substance abuse issues. She also described the worker’s conduct within the workplace in 2003 that had led to the development of the “last chance agreement” and had precluded a “just cause” termination of employment at that time. Her position was that any depression and anxiety experienced by the worker in 2005 or 2006 or later was no longer related to the worker’s earlier PTSD issues, but to the many non-compensable issues faced by the worker at the present time.

The employer’s representative also commented on the merits of a “stress claim” that appeared to be advanced by the nature of the worker’s evidence, and noted that the evidence suggested a “chronic stress” claim that would not be a compensable accident under the Act.

Analysis:

For the worker’s appeal on the first issue to be successful, the panel must find that the worker suffered a loss of earning capacity after March 6, 2006 which was causally related to his workplace injury. In other words, the panel must find that the worker was unable to earn his pre-accident wages as of that date, because of the workplace injury. The panel was not able to make this finding, and therefore concludes that the worker was not entitled to wage loss benefits beyond that date.

At the outset, the panel notes that the worker had not medically recovered from his compensable injury at the time of his termination in March 2006. He had permanent compensable medical restrictions at that date that precluded him from working in his pre-accident job duties, and in 2007 the worker was assessed for and granted a permanent partial impairment award for his bilateral foot injuries.

The panel notes, however, that the worker had ultimately been successfully placed in a modified duties position with his employer. While the worker did suffer both a physical and a psychological injury in 1997, the worker acknowledged at the hearing that his appeal is not based on his physical capacity to perform his modified duties position as of March 2006, but rather, an array of psychological issues. In this vein, the panel has reached a similar finding: While the worker has a permanent partial impairment for his bilateral foot injuries, they did not preclude the worker from earning his pre-accident wages up to March 6, 2006, and would not have precluded him from earning those wages the day after.

As such, while the worker’s physical condition will provide a context for our analysis of the worker’s entitlement to ongoing wage loss benefits, it is not central to the entitlement issue.

The panel further notes that there is considerable cross-over between the two issues under appeal, as they both deal in some measure with the compensability of the worker’s psychological conditions in 2006 and what, if any role, did the worker’s pre-existing substance addiction condition play with respect to the worker breaching the last chance agreement in March 2006. In other words, was the worker’s conduct that led to the breach of the last chance agreement a consequence of a continuing compensable psychological condition?

After a review of all the evidence and submissions on file and from the hearing, the panel answered “no” to the first part of that question – the current psychological conditions are no longer related to the worker’s 1997 accident, which leaves the second part of the question moot, based on the following observations and findings:

o Following completion of treatment for PTSD, the worker was successfully accommodated at the workplace. Progress reports from 2001 and forward by the worker’s attending psychiatrist demonstrate a generally successful reintegration of the worker back into his workplace.

o The worker went on a 16 month stress leave in 2003-2005, leading to the worker eventually signing a “last chance agreement”. It was precipitated by behavior by the worker that led to his forced departure from the workplace. During this period, longstanding substance abuse issues became apparent, and treatment for that condition was one of the pre-conditions for restoration of the employment. The panel notes that the worker was covered under his long term disability plan, and that the worker ceased submitting receipts for psychological treatment and medications to the WCB during this period of time and forward. The worker’s psychiatrist in fact bills elsewhere for both treatments and medications.

o The panel finds that the circumstances in 2003 leading to the “last chance agreement” which allowed the worker to continue his employment were not related to the compensable injury. The evidence discloses that the worker was involved in incidents at work with co-workers, as well as concurrent substance abuse issues at that time, and these matters eventually led to the last chance agreement. The panel finds that the agreement and its precursors were related to distinct events at that time, and had no causal relationship to the 1997 compensable injury. These are more appropriately characterized as personal or labour relations issues that are not covered by the Act.

o The panel notes that the worker’s lengthy descriptions of ongoing “workplace stress” were a significant component of the worker’s evidence at the hearing, and in his mind, a major factor leading to the circumstances of his termination. He spoke at length as to the incompetence of the person who had replaced him, the failure of his supervisors to respond to his complaints, and their failure to restore him to his previous position (which was outside his permanent restrictions). The worker was dealing with this stress well before the last disciplinary matter that arose in December 2005. The panel notes and finds that these ongoing “chronic stress” situations in the worker’s daily work life are not causally related to the worker’s 1997 workplace accident. Rather, they may fall into the areas of labour relations matters and organizational behaviour issues. In this regard, the panel notes that this type of workplace accident claim has not been filed.

o While the worker asserts that he was “clean” under the last chance agreement for many months prior to his termination and had passed many monthly drug tests, the panel finds that the worker has a history of substance abuse, which it considers to be a very significant factor in this case. The panel notes references on file to a “first sober Christmas in 34 years,” chemical dependency treatment in the early 1990s, and ongoing substance abuse and facility-based addictions treatments at various points throughout the period of this claim as noted by his attending psychiatrist, both when he was working and when he was on stress leave from his employer. The panel notes that treatment for these addiction or abuse issues was not covered by WCB at any point in the file, nor was there an attempt by the treating psychiatrist or others involved in his care to seek WCB funding or to relate those treatments to his workplace injury. The panel further notes that the worker’s use of substances was not necessarily correlated to work issues – the worker noted for example that he first tried an extremely addictive substance on New Years Eve 2005, which led to addiction and intensive intervention in the months following. The panel finds that the worker had a very significant pre-existing substance addiction/abuse condition, which would in and of itself lead to significant psychological conditions and issues because of the general impact on those around him. These findings are supported by comments made by the worker’s psychiatrist who in October 2006 who describes some of the issues faced by the worker, including “stress related to work and a conflict at work. Subsequently, he is being terminated, marital breakdown, inability to find a job to support himself.”

o This finding regarding the very dominant nature of the pre-existing substance abuse condition is buttressed by the specific circumstances leading to the worker’s termination in March 2006. The evidence discloses that the worker was under significant stress from January to March 2006 because of a customer complaint dated back to December 2005, which would have breached his last chance agreement if proven. The panel finds that this event and its consequences have no causal connection to his 1997 workplace injury. The worker acknowledged that his employment had become in jeopardy because of this complaint, and the panel finds that the worker made a series of personal choices at that time that impacted on his last chance agreement, and in fact resulted in his breach of the agreement.

The worker’s representative argued that even if there was a significant pre-existing condition, the events surrounding the termination amounted to an aggravation of that condition which should be covered under WCB policy. The panel has a different view of this evidence, though, and finds that the worker had likely breached the last chance agreement at least as far back as January 2006, when the worker’s treating psychiatrist noted that he had been phoned by the worker’s wife who indicated her concern about the worker’s possible substance abuse.

On the basis of these findings, the panel concludes that while the worker may well have had residual depression and anxiety conditions from his resolved PTSD condition in March 2001 (as per his treating psychiatrist), the worker in the following years went through a number of labour-relations issues as well as non-compensable leaves, overlaid with or by longstanding substance abuse issues, which are the basis for the worker’s psychological difficulties. The panel also notes that by 2004, the worker’s treating psychiatrist was himself no longer looking at the worker’s psychological or substance abuse issues as being work-related, and was billing his services elsewhere.

Bringing these findings into relevant WCB Policy, the panel finds that:

• In the context of the WCB Policy on further injuries, the worker’s personal actions that led to the breach of the last chance agreement are predominantly attributable to the worker’s pre-existing substance addiction/abuse condition, and not to the 1997 accident.
• In the context of the WCB Policy on pre-existing conditions, the workplace accident is no longer contributing to a material degree to the worker’s psychological conditions, and was not a contributing factor to the worker’s substance addictions/abuse conditions.

Based on the totality of the evidence, that panel has concluded on a balance of probabilities that the worker’s current psychological conditions are not related to his 1997 accident but rather to the many significant intervening events that followed. As such, the worker’s appeal on the second issue is denied.

Based on this conclusion, the panel also finds that the worker’s loss of earning capacity after March 6, 2007 was not caused by either his physical injuries or from a compensable psychological condition. As such, the worker’s appeal on the first issue is also denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of February, 2008