Decision #32/08 - Type: Workers Compensation
Preamble
A file review was held on January 16, 2008 at the worker’s request.Issue
Whether or not the worker is entitled to full wage loss benefits.Decision
That the worker is not entitled to full wage loss benefits.Decision: Unanimous
Background
In December 1996, the worker filed a claim with the Workers Compensation Board (“WCB”) for post traumatic stress disorder which he related to an incident that occurred in the workplace. The WCB accepted the claim for compensation and the worker was provided with wage loss benefits and medical aid. In 1998, the worker commenced vocational rehabilitation and received retraining as an electrician (NOC 7241). Although the worker completed the community college courses necessary to become an electrician, in 1999 he chose to move to a new location and did not want to participate in a job search. As a result, he was provided with partial wage loss benefits based on a deemed earning capacity as an apprentice electrician. These wage loss benefits were gradually reduced over the next four years to correspond with the four year apprenticeship which the worker would have completed had he continued with the vocational rehabilitation plan.
In March, 2003, the worker wrote the WCB to request that full wage loss benefits be reinstated. He advised that he was seeing a psychiatrist for his continuing severe depression which he related to his 1996 workplace accident and noted that his depression was preventing him from fulfilling his obligations to become a journeyman electrician. Based on this information, the WCB wrote to the treating psychiatrist for a report.
In his report to the WCB dated April 10, 2003, the treating psychiatrist indicated that he saw the worker in his office on March 21, 2003 and that the worker had a follow up appointment in four weeks time to review his response to treatment. The psychiatrist outlined his opinion that the worker’s current difficulties had a direct connection with the incidents that took place at work. He indicated that whenever the worker thought about the workplace incident, his functioning deteriorates. Because of this, the worker is unable to work full time and was presently unemployed.
By letter dated August 22, 2003, the psychological consultant for the WCB wrote to the treating psychiatrist and requested clarification on the issue of the worker’s employability. The psychological consultant noted that the worker, in fact, was not necessarily “unemployed” but rather was “self-employed” and the psychiatrist’s specific comments on this issue were requested.
In a subsequent report dated September 11, 2003, the psychiatrist indicated that the worker suffered from post traumatic stress syndrome with symptoms of anxiety. On the issue of employability, the psychiatrist reported that the worker: “has complained that he has been unemployed and has not been able to work as an electrician but he is not suffering from any shortage of money because he owns approximately 20 houses … that he manages and rents out. He is able to deal with the necessary maintenance work as well as the business aspect of these things. He is actively involved in the community… He is involved with his family and he is athletically quite active and was recently in the Winnipeg marathon…” In the psychiatrist’s opinion, the worker was: “quite employable, at this time, in that he is self-employed. He chooses not to work as an electrician because it is not necessary for him to work in that manner. Being self-employed with rental property, he has a great deal of flexibility in doing what he wants to do on his own schedule and he has certain periods of the month when he has to collect rent, etc. and other times, he has to, from time to time, provide maintenance to the property that he rents out.”
On October 8, 2003, the worker was interviewed by the WCB psychological consultant. In his opinion, the worker “remains partially disabled with relatively circumscribed psychological symptomatology. In regards to the compensable injury, he has Post-Traumatic sequelae, has had Depressive Disorder, now well treated with the medication, and he is not unable to work as an electrician; this a choice he has made as was the choice, from what I understand it, of his moving from [town] to [town]. He clearly has a business…He seems to function well outside of the [workplace setting], although there may be continuing Post-Traumatic triggers. In my opinion, the work as an electrician is something that he most likely could have continued with…there is no evidence at this point, particularly given my assessment and the update from the psychiatrist, that he was unable to, by virtue of the compensable injury, become employed as an electrician and no evidence that not working as an electrician relates to his compensable injury.”
In a decision dated October 28, 2003, the WCB adjudicator denied the worker’s request to provide him with reinstatement of full wage loss benefits. The adjudicator outlined the WCB psychological advisor’s opinion that the worker’s inability to work as an electrician was the result of personal choices he made and was not the result of the compensable injury. The adjudicator noted that the worker operated a successful business, was active in the community and had recently completed a marathon. She indicated that the file evidence did not support the contention that the worker’s inability to work as an electrician was related to his post-traumatic stress disorder.
On January 8, 2004, the worker was advised that he was no longer entitled to partial wage loss benefits given that he would have completed his 4 year apprenticeship program and would be considered a journeyman electrician if he had continued on with his vocational rehabilitation program.
In response to the WCB’s request for updated information, the treating psychiatrist indicated on April 28, 2004, that the worker “remains unfit to work in any capacity because of his severe anxiety, lack of confidence and inability to assert himself. He would not be able to work as an electrician or a handyman or in any other occupation at this time. Even though he is trained to be an electrician, his emotional state is such that he cannot function in a job or a self-employed situation.”
On May 5, 2004, the worker requested again that the WCB reinstate his benefits based on the report from his treating psychiatrist dated April 28, 2004.
In a decision dated June 23, 2004, the adjudicator advised the worker that no change would be made to the decision of October, 2003 which stated that the WCB could not reinstate full wage loss benefits. The adjudicator referred to the recent opinion expressed by the WCB psychological advisor that there was insufficient evidence to support the worker’s inability to work was related to his post traumatic stress disorder.
In a February 17, 2005, report the treating psychiatrist stated that the worker’s symptoms of post traumatic stress disorder remained prominent. He noted that the worker needed cognitive behavior therapy and should be referred to a psychologist.
On May 4, 2005, the worker was re-assessed by the WCB psychological consultant. He accepted the treating psychiatrist’s diagnosis of post traumatic stress disorder with residual symptoms and recommended that the worker receive up to 8 sessions of cognitive behavioral psychotherapy. He also stated in his report that there was obvious claim focus concerning issues regarding the worker’s business, his financial status and that this may or not be related to the post traumatic symptoms. He said post traumatic stress disorder was a chronic disorder that can wax and wane over the course of time.
Reports were received from the treating psychologist dated November 7, 2005 and May 19, 2006. In his last report, the psychologist noted that he was more convinced than ever that the worker suffers from post traumatic stress disorder, chronic, and that this condition affects him quite substantially producing at least moderate impairment in his life functioning. The prognosis would be for limited improvement, gained gradually over years, hopefully progressing to the point where the impairment would be reduced to mild levels. He outlined a number of recommendations, including that the worker continue to see his treating psychiatrist and follow his guidance with respect to medications to treat his symptoms, to reduce his sessions with the mental health worker, so as to reduce focus on his illness and disability and increase his emphasis on developing as normal a life as possible, and to expand his roles as parent, landlord and property manager, and follow the principles of a healthy lifestyle.
The case was reviewed again by the WCB psychological consultant on January 11, 2007 and in his opinion, the worker was capable of performing his duties as an electrician. He stated that the current diagnosis remained to be post traumatic stress disorder, chronic and depressive disorder. He stated that this was the consensus of the treating psychologist in his report of November 7, 2005 and May 19, 2006. He stated further that the worker may be fearful of certain individuals but this did not stop his self-employed income generation.
In a January 15, 2007 adjudication decision, the worker was advised that there was no new information to support a change in the previous WCB decision that any symptoms experienced by the worker would not prevent him from pursuing work activities as an electrician. On March 16, 2007, the worker appealed the decision to Review Office.
On May 8, 2007, Review Office confirmed that the worker was not entitled to full wage loss benefits. Review Office stated that the worker wanted to remain employed in his pre-accident work, however this career was no longer available to him. He then chose to be an electrician but never attempted to pursue employment as an electrician as he indicated that he had self-generating income and was not interested in being an electrician for various personal reasons. The fact that the worker was not interested in this career or fears that he may be injured was not grounds to reinstate wage loss benefits. Review Office indicated that the worker’s contention of him not being able to work as an electrician was not medically supported. In this regard, Review Office referred to the psychologist’s report of March 7, 2006 and the psychiatrist’s report of May 19, 2006. Review Office also indicated that in its view, the worker maintained an earning capacity associated with a journeyman electrician.
In August 2007, the worker was assessed for a permanent partial impairment (“PPI”) award. In the context of the assessment, medical reports from the WCB psychological consultant and the treating psychiatrist were obtained. In his August 1, 2007 report, the WCB psychological consultant gives an extensive description of his call-in examination findings and impressions, then concludes by recommending that the worker be given a PPI rating of 20%. He notes: “This is in the Class II rating given the fact that (the worker) has, what appears to be, at this point, credible symptoms, he is not incapable of adaptive behavior and there is some reduction in daily activities, and there is change in his personal efficiency. However, this does not come close to the level of a Class III rating, as there is no need for supervision. There have been inconsistencies in his report and he is functioning, albeit for posttraumatic phobic anxiety.”
The treating psychiatrist’s report of August 1, 2007 reports that the worker’s level of functioning has continued to decline, particularly since discontinuing the use of marijuana and alcohol. He outlines symptoms, which include increased fearfulness, decreased involvement in community and volunteer commitments, avoidance of going out of the house and spending a great deal of time worrying or sleeping. The worker’s quality of life is reported to be deteriorated and the scope of his life narrowed. The treating psychiatrist writes: “It is my understanding that you agree that he is permanently disabled and you are at this time trying to determine to what degree of disability to assign. In my opinion, (the worker) is completely disabled. And even though he has income being generated from rental properties, his ability to continue with this appears to have gradually declined and it may decline further with the passage of time.”
On November 2, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Worker’s Position
The worker relies on the August 1, 2007 report of his treating psychiatrist and states that the report accurately describes the worker’s PTSD and how it has affected his life. The worker submits that he is completely disabled and should receive full wage loss benefits.
Analysis
The issue before the panel is whether or not the worker is entitled to full wage loss benefits. In this case, the worker developed chronic Post Traumatic Stress Disorder and chronic depression, which caused a loss of earning capacity in that he could no longer function in his pre-accident employment.
As the nature of the worker’s injuries prevented him from resuming his pre-accident employment, vocational rehabilitation assistance was provided to him by the WCB. The goal of the worker’s Individualized Written Rehabilitation Plan (“IWRP”) was to establish a post-plan earning capacity of an electrician.
Although the worker completed the required program courses, he chose not to pursue an apprenticeship and he moved with his family to another town. This was a personal decision made by the worker which resulted in him not completing his IWRP. After relocating, the worker became self-employed as a property manager and he relied on income derived from residential rental properties which he owned. The number of properties varied throughout the years, but as at the time of the medical reports of August 1, 2007, the worker owned and managed 17 houses.
WCB Board Policy 44.80.30.20 provides that where a worker refuses to complete a program of vocational rehabilitation, a deemed earning capacity will be used to determine the worker’s wage loss benefits. The deemed earning capacity will be the earning capacity expected upon completion of the vocational rehabilitation plan.
The worker’s IWRP provided for completion of the first year electrician training by January 13, 2000, to be followed by a four year apprenticeship. Had the worker continued with the IWRP, he would be fully qualified as a journeyman electrician by January 1, 2004. Therefore, according to WCB Board Policy 44.80.30.20, as of January 1, 2004, the worker was deemed to have the earning capacity of an electrician.
The panel carefully reviewed the evidence to determine whether the worker’s compensable medical condition prevented him from being fully employed as an electrician.
In his September 11, 2003 report, the treating psychiatrist indicated that the worker: “is quite employable, at this time, in that he is self-employed. He chooses not to work as an electrician because it is not necessary for him to work in that manner.” The WCB psychological consultant’s opinion at that time was that the worker remained partially disabled with relatively circumscribed psychological symptomatology, and that there was no evidence that the worker was unable to, by virtue of the compensable injury, to become employed as an electrician.
The most recent medical evidence on file are the medical reports from the treating psychiatrist and the WCB psychological consultant, both dated August 1, 2007. While both doctors report a decline in the worker’s level of functioning, there is a difference of opinion as to the degree of disability. In the treating psychiatrist’s opinion, the worker is completely disabled. The psychiatrist reports that the worker’s fearfulness has continued to increase, he avoids going out of the house, he spends a great deal of time worrying or sleeping, his quality of life has deteriorated and the scope of his life has narrowed. Notably, however, there is no report that the worker is unable to carry out his duties as a property manager. Rather, the psychiatrist reports that the worker has a “great deal of difficulty” doing repairs, collecting rent, and fulfilling volunteer commitments. While the worker continues to have income generated from rental properties, the psychiatrist reports that: “his ability to continue with this appears to have gradually declined and it may decline further with the passage of time.”
The WCB psychological consultant notes that there has been significant variability in the worker’s symptomatologies over the course of time, but that he has been continuously working as a property manager. He indicates that the worker continues to run his business consisting of 17 houses that are rented out. The worker makes visits, and does repairs. When he has times of increased anxiety, he removes himself from the situation then returns when he is more able. The worker is involved in taking care of his house by cooking and cleaning, he shops, co-manages the money with his wife, runs his business and is involved with family activities. He is able to drive. The WCB psychologist specifically disagrees with the psychiatrist’s opinion that the worker is totally disabled and notes that the worker does not report himself to be totally disabled. The psychologist assesses a Class II permanent partial impairment rating, indicating that the worker is not incapable of adaptive behavior.
The panel finds that the worker’s level of functioning, as outlined in the medical reports, is not consistent with a finding that he is completely disabled. Rather, the evidence would suggest that the worker remains capable of full time employment, albeit with decreased efficiency. In making this finding, the panel prefers the report of the WCB psychologist consultant to that of the treating psychiatrist. The psychologist’s report provides greater context and detail as to the worker’s level of functioning and describes considerably more activity outside the home than that reported to the worker’s treating psychiatrist. We therefore place greater reliance upon, and adopt the position of the WCB psychological consultant as to the worker’s level of disability. On a balance of probabilities, the panel finds that the worker’s current level of functioning is consistent with being able to carry out the duties of occupation NOC 7241 – electrician.
The panel wishes to add that our decision is limited to the evidence on file to date. There is nothing to say that the worker’s level of functioning cannot change over time. To the contrary, there is specific reference in the medical reports to the fact that the worker’s condition waxes and wanes considerably in severity over the course of time. Although on the medical evidence before us, we find that there is currently no loss of earning capacity, this does not preclude the WCB from considering the worker’s ability at a later point in time on a “go forward” basis, in the context of new medical evidence as to the worker’s then current medical condition and level of functioning.
The worker’s appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 21st day of February, 2008