Decision #113/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for injuries he sustained in the workplace on May 13, 2003. The WCB accepted the claim for compensation and the worker was provided with various benefits and services. In late 2005, it was determined by primary adjudication that the worker failed to mitigate the consequences of his compensable injury and his benefits were suspended. This position was upheld by Review Office. A solicitor, acting on the worker’s behalf, filed an application to appeal. A hearing took place on July 23, 2008 to consider the matter.Issue
Whether or not the worker failed to mitigate the consequences of his compensable injury.Decision
That the worker failed to mitigate the consequences of his compensable injury.Decision: Unanimous
Background
While employed as a warehouse clerk on May 13, 2003, the worker reported that he was found by several co-workers wedged between a truck and a building with a dock plate on top of him. He said he had no recollection of what happened to him and that he was taken by ambulance to the hospital.
Initial medical reports showed that the worker suffered injuries to his left knee, low back, a concussion and lacerations to his forehead. In July 2003, a neurologist diagnosed the worker with a significant closed head injury, post traumatic vascular headaches, mild imbalance and amnesia.
The worker underwent several diagnostic evaluations between June and September 2003. These included a CT scan and MRI of the brain and an EEG. All test results were reported as being normal.
At the request of his family physician, arrangements were made for the worker to be assessed by a clinical psychologist. In his initial report dated November 27, 2003, the consultant outlined details of his test results, his interview with the worker and with several individuals who knew the worker prior to and following his work related accident. It was reported that the worker had several symptoms associated with the diagnosis of post-concussive syndrome. The worker stated he was fatigued all the time, he had significant disordered sleep and nearly constant headaches. He denied vertigo and was less coordinated when playing sports and his motor skills were slowed. He was somewhat more irritable than prior to the accident. A review of the test results indicated that the worker did not pass a series of validity tests. Based on a review of all the available information, the consultant opined that “cognitive issues appeared to be the most significant psychological issues facing [the worker] at present. However, personality changes have been observed by collaterals, with many of these consistent with DSM-IV research criteria for post-concussive syndrome.” The consultant determined that the worker was unemployable at that time given the extent of his memory issues.
The worker was assessed by an occupational therapist on January 28, 2004. The worker’s subjective complaints included significant memory impairment, forgetfulness, difficulty with keeping track of day and time, doing things without thinking, etc. Based on the Rivermead Behavioural Memory test, the worker demonstrated severe deficits in all areas of memory testing such as auditory, visual, and motor memory and both immediate and delayed recall. His overall score on the test was 5/24 which was interpreted as “severely impaired” memory.
On March 1, 2004, the worker was interviewed by a WCB psychiatric consultant. She stated, “From history, it does appear that the claimant suffered a head injury; however, it cannot be said with any degree of certainty that the claimant is, in fact, impaired at the present time. There is no evidence of significant psychiatric disorder such as psychosis, anxiety or depression. It is difficult to explain his degree of impairment.”
In his March 30, 2004 report, the treating neurologist noted that his examination findings suggested organic memory impairment and that the findings were consistent with a closed head injury.
Between April and August 2004, updated reports were submitted by the occupational therapist and by the clinical psychologist concerning the worker’s treatment progress. In particular, the clinical psychologist reported on June 30, 2004, that the worker continued to report ongoing incidences of losing and misplacing items and this was associated with ongoing frustration. He stated that he consulted with the treating occupational therapist and “The report I received is that [the worker] has been compliant, his physical functioning is good, and he is able to get tasks completed. [The occupational therapist] provided similar report (sic) to my observations that [the worker] continues to perceive himself as quite disabled. There has been no change in the frequency of his complaints. [The worker] had indicated that the most distress he feels involves “blanks” in his memory. Given his physical and functional status however, [the worker] was moving towards return to work or job shadowing…he is competent and ready to move forward with the next steps in vocational rehabilitation. [The worker] has indicated that he is agreeable to this.”
In e-mail correspondence dated August 26, 2004, the occupational therapist indicated that she and the clinical psychologist discussed with the worker a possible return to work earlier in the summer. At this time, the worker indicated that he did not feel able to work in any capacity which was in contrast to his previous optimism about starting back at work. She stated, “…I have not seen much improvement with structured rehabilitation activities, but continue to note no significant function deficits in terms of his ability to complete daily activities.”
In September 2004, the worker returned to work in a position which entailed unpacking tickets and preparing them into bundles of 10. In a report dated November 29, 2004, the occupational therapist reported that the worker found this work to be repetitive in nature and boring and that the constant mental focus caused him to experience headaches and disorientation for up to two days following a shift.
The worker’s cognitive status was assessed by a second clinical psychologist and his findings are contained in a report to the WCB psychiatric consultant dated December 3, 2004. He said his assessment indicated invalid, inconsistent and unusual results. He said the worker was relatively functional in his language, spatial skills, attention/concentration, problem solving and selected intellectual skills. In contrast, his memory results were not interpretable. He said the validity tests indicated suboptimal effort to the point where the worker was below a chance level on two measures. He said the worker’s history, presentation and current results did not completely conform to a known neuropsychological syndrome. He noted the worker may have some type of psychogenic amnesia and that there may be medical conditions that could be contributing to the worker’s reports of forgetfulness.
On January 25, 2005, the treating neurologist indicated that the worker had a SPECT brain scan on January 11, 2005 which was considered to be normal. He noted that the worker was working four hours per day doing repetitive work. The worker had very little recall of day to day events while at work or at home.
On January 31, 2005, the clinical psychologist reported that the worker continued to present as irritable and anxious with ongoing report of depressogenic mood. He reported that his work performance continued to be characterized by significant difficulties, but he was unable to recall specifics of the areas or examples of deficit.
The worker was assessed by the WCB psychiatric consultant on January 31, 2005. It was summarized that the worker did not fulfill diagnostic criteria for a neurological illness and he did not show objective evidence of brain injury.
On April 27, 2005, the accident employer provided the worker with different job duties which entailed outdoor maintenance/clean-up and landscaping work. A job coach was provided to help the worker adapt to the changes in his job duties.
In a follow-up report dated May 26, 2005, the occupational therapist indicated that the worker was working four hour shifts, three days per week, and that he had been assigned duties such as cleaning debris from the parking lot, painting, lawn care and carpentry projects. It was noted that the worker’s job coach was discontinued and she received positive feedback from the worker’s supervisor indicating that he was a hard worker and had been performing the job well. When she met with the worker to recommend that he increase his work hours, the worker expressed his inability to do so due to a number of factors such as extreme fatigue at the end of a four hour shift, being emotionally drained on a daily basis, mood changes, feelings of isolation, etc. The occupational therapist was concerned that the worker’s success with his return to work could be negatively impacted by his emotional symptoms.
On May 30, 2005, the clinical psychologist reported that the worker commenced alternate duties in early May 2005. The worker indicated that he liked his new job much better than his previous position counting tickets and viewed his work as neutral, rather than disliked at the present time. He indicated that he did not dislike getting up for work. The psychologist noted that the worker expressed his reluctance to increase his hours due to primarily psychological issues such as mental and emotional fatigue, headaches, anxiety associated with memory, and not feeling believed at his worksite. It was suggested that the worker receive consideration of some potential medication based treatment for mood and anxiety related symptomatology prior to increasing his hours at work.
On July 14, 2005, the WCB case manager advised the worker that his working hours would be slowly increased to the point where he would eventually be at full time employment. By November 2005, the worker was working seven hours per day, three days per week and refused to increase his hours to eight hours per day.
At a team meeting held on December 2005, the employer offered the worker full time employment in another position. The worker indicated that this was unacceptable as he was not able to remember aspects of the new building and it would be very stressful for him. He said that at times of stress, his memory tended to leave him. The worker was advised by the WCB case manager that he had no restrictions or objective findings to support that his continued problems were related to the original compensable event.
On December 16, 2005, a graduated return to work program was outlined for the worker which progressed from 3 days a week, 7 hours per day to a full time schedule over a period of approximately five months. As the worker refused to increase his hours according to the return to work plan, his benefits were suspended in accordance with section 22 of The Workers Compensation Act (the Act).
Subsequent to the decision, the treating physician wrote the WCB on January 20, 2006. He maintained the position that the worker should only work three days a week, seven hours a day, and that his hours of work should not be increased due to difficulties with functioning and memory.
On March 8, 2006, a worker advisor appealed the WCB’s decision to suspend the worker’s benefits. He stated there was file evidence to show that the worker did not refuse to participate in his return to work program or that he failed to mitigate the consequences of his compensable injury. In support of his position, the worker advisor referred to the comments made in the occupational therapist’s memo to file dated December 19, 2005 wherein she stated,
“…[the worker] reported that he was assessed by [his treating physician] on November 29, and was advised to make no changes to his work hours; therefore, he was not willing to go against his doctor’s advice…”.
The worker advisor also referred to the following comments made by the treating physician in his reports to the WCB dated January 19, 2006 and January 20, 2006 that:
“…He also suffers from extreme fatigue and tiredness and has a great amount of difficulty even performing his seven hours a day on the Monday, Wednesday and Friday. He requires these extra two days on the Tuesday and Thursday in order to recuperate, as he is not able to function in any appropriate manner to sustain work…I have told him to continue with only three days a week seven hours a day of work and for this not to be extended and had written a note for him to have this done until at least the end of March…(emphasis mine)”.
On April 20, 2006 Review Office determined that the worker failed to mitigate the consequences of his compensable injury when he failed to increase his hours of work. In making its decision, Review Office considered all the file information which included the opinions expressed by the family physician, other opinions and test results, the return to work activities, surveillance findings (taken in August 2004) and the worker’s reported symptoms. In the opinion of Review Office,
· The treating physician ignored all the evidence and only provided the worker’s subjective reports in formulating the evidence for his position that the worker was incapable of increasing his hours. There was objective medical evidence to override the family physician’s opinion.
· There were inconsistencies concerning the worker’s recollection of the accident, his ability with new learning opposed to old learning, being able to perform a non-routine job compared to repetitive job tasks, etc.
· The worker was advised of all the information used to determine his fitness to participate in the graduated return to work process and he was advised of the consequences if he failed to participate.
· It concurred with the case manager’s decision that the case met the criteria outlined in policy 44.10.30.60 .
On April 8, 2008, a solicitor appealed Review Office’s decision to the Appeal Commission and provided medical reports from a neurologist dated August 22, 2006 and May 12, 2006. On May 27, 2008, the solicitor provided the Appeal Commission with statements from three individuals who know the worker
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. This case deals with whether the worker mitigated the consequences of his compensable injury. Section 22 of the Act provides that a worker is to take reasonable steps to mitigate the consequences of the accident and permits the reduction in compensation benefits where the worker has not mitigated. In accordance with this section, the Board made WCB Policy 44.10.30.60, Practices Delaying Worker’s Recovery. While this policy primarily deals with medical treatments and injurious practices, it also deals with the consequences of a failure to mitigate. It provides that if a worker is engaged in a plan designed to mitigate the effects of physical, vocational, or psychological factors, and the worker demonstrates a lack of cooperation, the WCB may suspend benefits and may cease rehabilitative interventions and will pay benefits only to the extent that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.
Worker’s Position at Hearing
The worker was represented by legal counsel at the hearing. Legal counsel examined the worker and the worker answered questions posed by the panel and the employer’s representative.
The worker advised that he lives by himself in a triplex. He receives a disability pension and works part-time at a video rental store. He advised that he makes mistakes at this work due to his injury and provided an example of the type of mistakes he made.
He described his job duties prior to the accident. He worked in a warehouse for the employer. He also worked part-time at a parking lot.
Regarding his return to work after the injury he advised that he “just went back too early.” He said he got tired but that it was a “mental tiredness” as opposed to being tired after running a race. He said that he would go to sleep as soon as he got home from his shift and rested on his days off.
The worker said that he could not work five days per week and that his doctor agreed with this. He advised that memory and fatigue have been the main problem since the accident. He said that his day to day memory is very limited. He does not know what determines what he remembers and what he forgets.
He advised that he left his job with the employer because he was too stressed out from them. He said that his employer was pushing him to work more and more but that he couldn’t.
Legal counsel called three witnesses on behalf of the worker. The first witness, the father of the worker’s friend, employed the worker on an occasional basis to assist with construction projects, such as fence construction and remodeling. He described the worker’s memory as fairly good throughout the day unless he took a long break, in which case he may not remember. He commented that repetition was good for the worker.
The worker’s brother was called as a witness. He explained that he moved-in with the worker after the injury because the worker couldn’t handle the day to day functions, such as paying bills. He advised that he resided with the worker for over two years. He advised that he no longer resides with the worker but still looks after paying many of the household bills for the worker. He also advised that when the worker worked three days per week he would sleep on his days-off. He stated that the worker was “completely drained”.
Regarding the worker’s memory, the brother advised that his memory was very good before the injury and provided examples of his poor memory after the injury. He noted that the worker’s memory improved after he stopped work.
The brother advised that the worker was athletic and was involved in sports before the injury but is not involved now. He also noted that the worker’s social life has decreased since the injury.
A friend and former co-worker related his observations of the worker before and after the injury, including the change in his memory and energy levels after the injury. He advised that the worker has progressed since the injury. He stated that the worker has improved immensely compared to a year to two years after the injury.
He offered the opinion that the worker could not have worked eight hours per day for five days in a row. He described an incident where he had to break into the worker’s house because he was not responding to calls. He also described an incident where the worker wandered from home. He advised that he sees the worker almost every day and plays touch football with the worker.
Legal counsel noted that the worker was working seven hours per day, three days per week when he was asked to start working five days per week. She noted that the worker’s family doctor supported the position that the worker could not work increased hours and that the WCB did not ask this physician for an opinion prior to ending the worker’s benefits. Legal counsel submitted there was no medical evidence to support the WCB’s position that the worker could work every day.
Legal counsel noted that the treating psychologist found the worker was suffering from fatigue, frustration and headaches. She said the evidence establishes that the worker suffers from a significant closed head injury that has resulted in post traumatic syndrome. She submitted that the worker is disabled from working full-time due to the significant fatigue that he suffers following any work activity.
Employer’s Position at Hearing
The employer was represented by an advocate and assisted by a staff person who worked as a team leader with the employer.
The employer representative submitted that the worker failed to mitigate the consequences of his injury as required by Section 22 of the Act, specifically that the worker failed to mitigate the consequences of the injury when he refused to increase his work hours during the graduated return to work. She referred to WCB Policy 44.10.30.60 and noted that the worker failed to participate in an employer sponsored disability management program.
The representative reviewed the history of the return to work program. She noted that in September 2004 the worker was placed in a position which involved counting tickets into bundles. On or about April 27, 2005, the worker began performing landscaping, outdoor maintenance and clean-up duties. By November 2005, the worker was working seven hours a day, three days per week but was not willing to increase his hours. The representative noted that in an attempt to find a more permanent accommodation, the worker was offered a full-time position as a maintenance technician. The worker refused to move to full time and the WCB subsequently discontinued his wage loss benefits. The representative noted that the worker continued to work after the WCB benefits were terminated, until September 2006, when he resigned his position. The representative advised that at the time of the resignation the worker was offered the choice of full time or part time employment.
The representative argued that it would be inappropriate to reinstate benefits two years after the employment relationship has ended. She advised that the employer is not in a position to be a participant in any further rehabilitation.
Analysis
The issue before the panel is whether the worker failed to mitigate the consequences of his compensable injury. For the appeal to be successful, the panel must find that the worker’s refusal to increase his hours of work to full-time, five days per week was reasonable. The panel is not able to reach this conclusion.
The panel accepts the worker’s evidence that he was fatigued upon completing a full shift and notes the worker’s evidence that he did not feel that he could increase his hours of work and his reliance upon the advice of his family physician who agreed that he should not increase the hours of work. The panel also notes that at the hearing, legal counsel confirmed that the primary deficit associated with head injuries that was precluding the worker from increasing his hours of work was fatigue. Weighed against this evidence is the worker’s general resistance to a return to work as recorded in various reports from WCB staff and medical professionals, evidence that the return to work was proceeding in a reasonable manner, and the lack of medical evidence to support restricted hours.
The panel has considered all the information on the file and the evidence provided at the hearing by the worker, the worker’s witnesses and the employer representative, and concludes, on a balance of probabilities, that the worker failed to mitigate the consequences of his compensable injury when he refused to increase his hours of work.
The panel finds there is no reasonable medical evidence to support a refusal to increase work activity. While the worker relied on the opinion of the family physician, the panel is unable to attach any weight to this opinion. The panel finds that the physician has not provided a satisfactory medical explanation for this opinion.
The panel finds, after considering all the evidence, that the return to work at seven hours per day, three days per week, was proceeding well and concludes that it was reasonable to consider increasing the hours and days of work. The panel notes that the worker no longer required the assistance of a job coach and was no longer having difficulty using bus service to attend at work. The panel also notes that the employer was generally satisfied with the worker’s performance and wished to increase the hours of work. As well, the panel notes that the worker continued to work the three day shift, after the termination of his WCB benefits, until September 2006 when he resigned from his employment which suggests that the problems associated with this level of activity were not significant.
The panel finds that the worker failed to mitigate and that his wage loss benefits have been appropriately reduced as provided in the Act and Policy. The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 8th day of September, 2008