Decision #64/08 - Type: Workers Compensation
Preamble
The worker suffered a compensable injury to his right shoulder on March 1, 2007 in a work related accident. The claim was accepted by the Workers Compensation Board (“WCB”) and the worker eventually returned to modified duties. In October 2007, the WCB was advised by the employer that the worker was off work due to stress leave because of a conflict he had with a co-worker. On October 22, 2007, primary adjudication concluded that worker’s situation did not meet the requirements of a stress claim as outlined under The Workers Compensation Act (the “Act”) and that he was capable of working modified/alternate duties as related to his compensable injury. On December 6, 2007, Review Office determined that the worker was not entitled to wage loss benefits from October 16, 2007 to November 7, 2007 as the available evidence did not support his time loss during this period was related to his compensable injury. The worker disagreed and filed an appeal with the Appeal Commission and an oral hearing took place on April 22, 2008.Issue
Whether or not the worker is entitled to wage loss benefits from October 16, 2007 to November 7, 2007.Decision
That the worker is entitled to wage loss benefits from October 16, 2007 to November 7, 2007.Decision: Unanimous
Background
As noted in the preamble, the worker injured his right shoulder on March 1, 2007. Following a course of medical treatment, the worker returned to modified duties for a period of time in April 2007 and again in July 2007. The modified duties he performed in July 2007 consisted of staff training.
In a memorandum to file dated October 22, 2007, a WCB adjudicator documented that the worker was involved in a non-compensable incident with another employee on October 11, 2007. He stated that the employer interviewed the worker on October 16 and that the worker advised her that he had seen his doctor on October 15, 2007 and that he was claiming stress leave from October 16 to October 30, 2007 for the incident and he was applying for company disability benefits.
A medical report received from the treating physician dated October 16, 2007 indicated that the worker was clinically depressed with insomnia and that analgesics may cause depression as well as job related stress. Stress leave was recommended for the period October 16 to November 30.
On October 22, 2007, the worker was advised of the WCB’s position that there was no indication that a traumatic event occurred and that his claim did not meet the requirements of a stress claim as outlined under the Act. He was further advised that the WCB was unable to accept the diagnosis of depression or stress and was of the view that he was capable of working modified/alternate duties as related to his compensable injury.
On November 7, 2007, the worker appealed the adjudicator’s decision to Review Office. He stated, in part, “I returned to work doing modified restriction (training new employees). I’m not suppose to lift anything or do repetitive work. I have tried to train verbally but had no success. So I started helping out by doing hands on training with the new employee then found out that was unacceptable by my caseworker [name]. But yet I was to keep training verbally. Not getting proper sleep and with all the medication I am on, I started getting very frustrated with myself and the new employee. Its been 8 months now with only a couple of hours of sleep every night. I do not know which way is up or down, have no appetite and when I force myself to eat, it doesn’t want to stay down. I feel very weak, can’t think right, or talk right at times.”
In a decision dated December 6, 2007, Review Office determined that the available evidence did not support the worker’s time loss from October 16, 2007 to November 7, 2007 was due to his compensable injury. As a rationale for its decision, Review Office noted that the worker indicated that his time loss was due to the side effects of his medications prescribed to treat his compensable injury. Review Office stated that after contacting the worker’s physician, a supervisor and the Human Resources Coordinator, it was not able to obtain evidence to corroborate that the worker’s time loss was due to the side effects of the medications and thus related to the compensable shoulder injury. Review Office stated that the worker was not obligated to share specific details regarding any medical condition(s) with his employer but would have expected the worker to report symptoms of vomiting and problems thinking to his physician and there was no evidence of this. The evidence indicated that the worker was experiencing stress both in the workplace and outside of the workplace and that this stress was not covered under the Act.
On January 3, 2008, a worker advisor asked Review Office to reconsider its decision of December 6, 2007. The worker advisor argued that the worker’s time loss from work was due to insomnia related to his March 2007 right shoulder injury and a reaction to the medication he was prescribed for his compensable injury. In support of this position, the worker advisor referred to medical examination findings of October 16, 2007 and December 10, 2007 and a memorandum dated November 28, 2007 from Review Office which documented a phone conversation between the Review Office and the treating physician.
On January 10, 2008, Review Office confirmed its decision of December 6, 2007. It stated that the worker advisor’s submission contained no new evidence that would alter its decision of December 6, 2007. On January 21, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and this panel are bound by the Act and by policies made by the WCB’s Board of Directors. This appeal deals with provision of ongoing benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that 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.
There is a suggestion that the worker’s inability to continue working was due to stress. Subsection 1(1) of the Act defines occupational disease to exclude stress, other than an acute reaction to a traumatic event. As well, the Board of Directors enacted WCB Policy 44.20.60 which deals with psychological conditions.
Worker’s Position
The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel. The employer did not participate in the appeal.
The worker’s representative submitted that the worker’s time loss between October 16, 2007 and November 7, 2007 is related to his compensable right shoulder injury. She submitted that the time loss from work was due to his ongoing right shoulder pain, insomnia and reaction to medications.
The worker advised that the prescription medications did not agree with his stomach and that he was constantly vomiting because of the drugs. He indicated that this was the reason his physician was trying various medications.
The worker advised that he was working in a modified duties position training new staff. He said that his insomnia and prescription medications caused him to be tired and unable to think straight. He was confused and could not explain aspects of the job to the new staff. He said he was having a “hard time demonstrating without showing them” and had been cautioned not to do activities that exceeded his restrictions. He said that he found this very frustrating. He said the staff were also frustrated by his inability to explain the jobs to them. He described his situation as “everything was kind of going downhill…Things were getting worse and worse without having any sleep and the medication.”
Regarding an incident with a staff member who he was training, he advised that the incident arose because he couldn’t train him properly due to his inability to lift and demonstrate activities, and because he was “just stuck for words.” The worker advised that the incident occurred in the morning and that he remained at work for the full day. The worker confirmed that there have been no incidents since and that no disciplinary action was taken.
The worker confirmed that on October 16, 2007 his physician began tapering him off a prescription medication which was causing him problems. He advised that while the physician had authorized him to remain off work until November 30, 2007, he was able to return to work by November 9, 2007. He attributed this to a change in his medication use and improved sleep due to better pain control.
Regarding his current condition, he advised that his shoulder is now about 80%. He still has pain in the shoulder but his movement has improved. He also advised that he is no longer taking prescription medications.
The worker’s representative reviewed the medical reports provided by the treating physician. She noted that the physician in August 2007, stated that the worker continues to experience constant pain in the shoulder at night time causing insomnia. She also noted that the physician was changing medications to find a more effective treatment. In support of the appeal, she referred to the physician’s comments of October 16, 2007 that “Appears depressed objectively, continues having similar symptoms, (of ) pain and (tenderness in the right) shoulder. I think is clinically depress r/t chronic pain. Analgesics may cause depression, also job related stress.”
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits from October 16, 2007 to November 7, 2007. For the appeal to be successful, the panel must find that the worker suffered a loss of earning capacity because of his workplace injury. In other words, the panel must find that the worker was unable to work due to his workplace injury. The panel did make this finding.
The panel finds, on a balance of probabilities, that the worker was unable to work from October 16 to November 9, 2007, because of his workplace injury. This was due to his pain, resulting insomnia, and reaction to prescription medications including vomiting and cognitive difficulties with problem solving.
The panel finds that the worker’s oral evidence and explanation of the events, correlates very closely to the evidence and the facts in the file, and finds the worker to be a credible witness. The panel attaches significant weight to the opinion of the treating physician that the worker was clinically depressed and that the medications prescribed for the injury can cause depression. The panel notes that once the worker’s medication use was adjusted, he was able to return to work, almost three weeks earlier than recommended by his physician.
The panel finds that the incident with the new staff person was not of such significance that it caused the worker’s inability to work after the October 16, 2007 period. The panel notes that the incident has been classed as workplace stress but finds that the stress felt by the worker from this incident was not the reason that the worker was unable to work from October 16 to November 9, 2007.
To conclude, the panel finds that the worker’s lost time from work was causally related to his compensable shoulder condition and treatment. The panel finds that it was appropriate for the physician to take the worker off work to allow his condition to stabilize. The worker is entitled to wage loss benefits during the noted period. The worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of May, 2008