The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which upheld the decision made by primary adjudication that the worker's time loss from work between August 2009 and January 2010 was not related to the July 25, 2009 workplace injury but was due to non-compensable factors. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on December 8, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from August 24, 2009 to January 4, 2010 resulting from time loss from her concurrent employment.

Decision

That the worker is entitled to wage loss benefits from August 24, 2009 to January 4, 2010 resulting from time loss from her concurrent employment.

Decision: Unanimous

Background

While in the course of her employment on July 25, 2008, the worker reported that she injured her head, right thumb and right index finger when she was assaulted by an aggressive resident. At the time of the incident, the worker was employed part-time with the accident employer and full time with a concurrent employer.

When seen by her family physician on August 11, 2008, it was stated that the worker had contusions to the occiput, was very anxious about the work incident and had pain and stiffness of the right thumb and right index finger. In a further report dated September 3, 2008, the physician diagnosed the worker with post traumatic stress disorder ("PTSD").

In a December 1, 2008 report, a clinical psychologist outlined the opinion that the worker met the diagnostic criteria of post traumatic stress disorder:

Her moderately severe depressive reaction was consistent with an acute Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV: 309.28) appearing as a function of the enduring consequences of the psychosocial stressors associated with her traumatic experience, including the exacerbation of her previous pain disorder, continued ongoing pain and limitations in functioning, anxiety, flashbacks, concern about her ability to again manage her pain, her inability to return to work at [the accident employer] to date, fear of returning to work, work stress and her [concurrent] workplace, and uncertainty with respect to her future. Clearly, her present symptomatology was most consistent with a posttraumatic stress disorder and adjustment disorder in response to the workplace assault of July 25, 2008.

On December 7, 2008, a WCB psychological consultant reviewed the worker's file and confirmed that the current diagnosis in relation to the July 25, 2008 injury was "PTSD and depression (possibly recurrent) in the context of an earlier occupational injury that she has remained symptomatic from, exposure to an earlier trauma, and she has a history of earlier depression."

In a report dated February 23, 2009, a psychiatrist-psychoanalyst reported that he had seen the worker for appointments since October 3, 2008. The worker's diagnosis was that of PTSD with secondary major depression and adjustment disorder related to the trauma she received in the workplace. He noted that the worker still harbored some concerns about her ability to return to her place of work as a support worker because of her anxiety around the incident that occurred there which led to her disability. He stated: "The nature of the trauma the patient received at her workplace does hamper her return there more than her other employer. It is of note that she was off both jobs because of the sequelae of the PTSD." He noted that the worker was a motivated worker. He said the worker decided to do a graduated return to work by first returning to her concurrent employment.

In a note to file dated April 2, 2009, the case manager documented that she spoke with the worker. The worker indicated that she had been doing pretty well returning to work with the concurrent employer until yesterday when she went into a rage while at work. She said her boss asked her to stay home today.

On April 6, 2009, the worker advised her case manager that she was suffering tremendous anxiety after the incident at work. The worker said her doctor had taken her off work until Saturday. She was facing disciplinary action at work and was very stressed.

On April 8, 2009, the worker told the case manager that when a co-worker yelled at her, she saw the face of her attacker and "flipped out." She did not physically assault the co-worker but yelled at her. She could not recall exactly what was said as she blacked out. She noted that she was taking sedatives every day since this happened. The doctor gave her a lower dose of the medication so that she could take it during the day. She was returning to work on Saturday, April 11, 2009 and had a disciplinary meeting on April 17.

In a report by a registered psychologist dated May 1, 2009, the worker's current diagnoses were identified as follows:

AXIS I: PTSD

AXIS II: No Diagnosis

AXIS III: Myofascial pain (previously diagnosed)

AXIS IV: Financial Stress, few social supports

AXIS V: Global Assessment Functioning = 50(current)

On May 8, 2009, a WCB psychological consultant was asked by the case manager to review the May 1, 2009 report and to comment on whether there was an ongoing relationship between the diagnoses and requested treatment. On May 20, 2009, the consultant acknowledged the diagnoses and felt there were other factors that were relevant such as previous trauma, possible recurrent depression and history of anxiety. When asked if there was any way to determine the effect the pre-existing psychological status was having on the current symptoms, he replied, "This would require a call in exam at the WCB. Given the file information and reported history of reported trauma and incident at the concurrent employer (as reported by the psychologist), my estimation is that pre-CI factors figure significantly in her presentation. It would be useful to get the official version of what happened at the concurrent employer particularly given that there is some official response in her workplace."

On May 28, 2009, the concurrent employer provided the WCB with additional information concerning the incident that took place on April 1, 2009.

In a report dated July 13, 2009, the registered psychologist reported that in May, when sessions were first initiated, the worker reported increased stress due to a family tragedy. In spite of her current set back with her family tragedy, related grief and apparent re-prompting of additional reactions of her own traumas, she was making some progress. Treatment recommendations were additional sessions of cognitive behaviour therapy.

In a note to file dated July 17, 2009, it was noted that the worker had returned to her position with the concurrent employer.

On July 21, 2009, a representative with the concurrent employer advised a WCB case management representative that she had concerns about the WCB providing wage loss for the worker. The employer noted that the worker was a full time employee and she gave her hours to work and then the worker "disappears and I don't see her again." She stated that scheduling the worker was a "nightmare".

In a note to file dated July 23, 2009, the case manager spoke with the registered psychologist who stated that the worker was close to returning to work with the accident employer in some form.

On August 17, 2009, the psychiatrist-psychoanalyst reported that the worker did not appear for an August 12 appointment or for a previous appointment on May 8, 2009. The last time he saw the worker was March 13, 2009.

File records show that the WCB was arranging for the worker to visit the location of the worksite where she was assaulted for therapeutic reasons.

In a memorandum to file dated August 18, 2009, the case manager spoke with the worker. The worker stated that she had not been at work this week. The worker indicated that she drove past the place the injury occurred a few times and was pretty upset. Due to her emotional condition, she did not want to return to her employment with the concurrent employer and risk getting upset at her co-workers.

In a note to file dated August 27, 2009, the case manager documented a conversation she had with the registered psychologist. The psychologist said she saw the worker last week and has been encouraging her to return to work with the concurrent employer. The worker had been dealing with the previous incident at her work place and had an increase in anxiety. Due to the work place injury, the worker had difficulty dealing with other incidents. The injury made her vulnerable to being unable to manage other things that were occurring in her life. The time loss was related as it was a complication of the original injury. The case manager noted that the worker indicated that she would return to work this week but had developed laryngitis. The worker continued to feel the anxiety was there.

In another memorandum dated August 27, 2009, the case manager stated that she advised the worker that the WCB would cover time loss from August 7 to 21 but not from August 24 and onward. The worker indicated that she would contact the concurrent employer to obtain her schedule so she could get back to work. The worker stated that she has never managed to work 75 hours in a two week period due to issues with her anxiety and panic attacks.

In a report dated September 9, 2009, the clinical psychologist outlined the worker's progress in therapy from December 1, 2008 to May 26, 2009.

In a medical certificate dated September 21, 2009, the family physician indicated that the worker was unable to work between September 14, 2009 to October 21, 2009 due to PTSD.

On October 1, 2009, the registered psychologist reported that the worker had difficulty maintaining consistent attendance at her position with the concurrent employer which she reported was due to anxiety, being scheduled in areas that exacerbated her previous injury and fear that she would feel anxiety and react angrily in the situation. The worker reported that she understood the importance of going back to the position as part of the overall healing process and reported that she attempted to do so but contracted laryngitis. Since that time in August she reported that she had managed the difficulties at work and was ready to return but declared with a recent increase in anxiety she was unable to return at this time. The psychologist said the worker continued to work on decreasing anxiety and depression.

On October 8, 2009, the case manager asked the WCB psychological consultant to review the file. The case manager noted that the worker had been trying to work full hours at her concurrent employer since February 2009, but was unable to work a full week since her return. The worker's general practitioner had taken her off work between September 21 and October 14 and the worker was unable to provide a triggering event for this recent time loss. The case manager asked the consultant for his opinion as to whether there was medical evidence that the current time loss was related to the workplace injury. The consultant replied on October 21, 2009 that he had difficulty linking the time loss with the concurrent employer to the compensable injury given the vastly different work, safety, and expectations and in the context of a relational issue at work, a disciplinary meeting and the family tragedy in May. "These may be more the issue for the Claimant, than the assault." The consultant indicated that he would arrange a call in exam and that in the meantime the worker needed to be back at the concurrent employer.

In a memo dated October 29, 2009, the case manager recorded a conversation she had with the registered psychologist. The psychologist indicated that she was concerned regarding the worker as she had been receiving an increase in phone calls and the worker's distress had increased. She was not aware that the worker was not at work. She could not pinpoint a specific triggering event that prevented the worker from going to her job with the concurrent employer. She stated the worker was scattered in her thinking processes and she seemed to have some difficulty when handling novel situations.

The worker was assessed by the WCB psychological consultant on November 18, 2009. The consultant stated in part that in his view, the compensable injury event did not meet the threshold of severity for a diagnosis of PTSD. He said the worker most likely developed an adjustment disorder with anxiety in the context of significant pre-existing psychological factors and this most likely aggravated her pre-existing coping issues. She most likely had post traumatic symptomatology associated with the pre-injury experiences. It was very possible that the event destabilized her and this was the context of some issues with her coping in the long term.

The consultant was of the view that the worker was fit to move ahead more assertively in her graduated return to work in her primary employment with the concurrent employer in the modified position given her earlier compensable injury.

On December 2, 2009, the treating registered psychologist stated the treatment focus was to increase the hours worked with the concurrent employer and increase exposure sessions with the accident employer.

On December 4, 2009, the registered psychologist advised the WCB case manager that she agreed with the recommendations made by the WCB psychological consultant with the return to work, i.e. 3 days a week next week; 4 days a week for the 2 following weeks and 5 days a week after that.

In a decision dated December 10, 2009, the WCB case manager advised the worker that based on a review of medical reports from August 27, 2009 to the call in exam of November 18, 2009, it was determined that the workplace incident of July 25, 2008 aggravated a pre-existing condition. The case manager stated that she was unable to determine that a direct relationship existed between the time loss incurred and the work place injury. The WCB therefore was unable to cover time loss from the concurrent employer beginning August 24, 2009.

On January 6, 2010, the worker advised the case manager that this was her first week performing full hours with the concurrent employer and so far things were going well.

In a report dated January 13, 2010, the family physician outlined his treatment history of the worker from 2003 onwards.

On January 18, 2010, a case manager asked the WCB's psychological consultant to review his call in exam of November 18, 2009 along with the family physician's recent correspondence and to comment on whether the worker had recovered from the effects of the compensable injury. The consultant stated:

The [attending physician] clearly outlines the claimant's pre-July 2008 history of anxiety and depression that had been treated by antidepressant and anxiolytic medication, as well as consultation by a psychiatrist. These issues predate the current claim. Most likely the anxiety that was noted on the November psychological call in exam was mostly related to non-compensable issues. However, given the previous post CI diagnosis of PTSD, and my diagnosis of an adjustment disorder, aggravating her pre-CI state, we have no data to conclude that she has completely recovered from the CI at this time…

On January 30, 2010, the worker wrote to Review Office appealing the decision made on December 10, 2009 that she was not entitled to wage loss benefits due to the time loss from her concurrent employer starting August 24, 2009. A further submission to Review Office was made dated February 21, 2010 by the worker.

On February 5, 2010, the worker faxed to the WCB her pay stubs related to her concurrent employer.

A report was received from the registered psychologist dated January 30, 2010. It stated that the worker had made a successful return to full hours with the concurrent employer but began missing time from work on January 21, 2010 which she related to an increase in anxiety related to a meeting with the accident employer.

On February 16, 2010, the WCB psychological consultant was asked to comment on whether there was a relationship between the current time loss and the compensable diagnosis. The consultant stated, in part, "…there most likely is a partial relationship between her time loss and the compensable injury, although the pre-existing factors would be significant here. Given her physician's report to us regarding her pre-injury treatment for anxiety and depression, more likely than not, she had vulnerability and this may make dealing with uncertainty and changes difficult."

Review Office determined on March 18, 2010 that the worker was not entitled to wage loss benefits from August 24, 2009 to January 4, 2010 for time loss from the concurrent employer. Review Office noted that the worker was expected to return to work with the concurrent employer in February 2009 but was unable to reach her full time hours. The worker continued to work until August 2009 when there was some confusion over her vacation schedule. She did not return to work August 24, 2009 due to laryngitis. The worker later said she was unable to return to work with the concurrent employer due to anxiety stemming from the July 25, 2008 workplace accident.

Review Office placed weight on the WCB psychological consultant's opinion that he had difficulty linking the time loss with the concurrent employer to the compensable injury given the vastly different work, safety and expectations and in the context of a relational issue at work, a disciplinary meeting and the family tragedy in May 2009. Review Office noted the consultant's comments that these may be more the issue than the assault at work.

Review Office was of the opinion that the primary factor as to why the worker did not return to work after August 24, 2009 was due to laryngitis and non-compensable factors as noted by the WCB psychological consultant.

Review Office concluded that it was unable to establish, on a balance of probabilities, a direct cause between the worker's time loss from the concurrent employer from August 24, 2009 to January 4, 2010 and the July 25, 2008 workplace accident. It felt that the worker did not incur a loss of earning capacity as a result of the July 25, 2008 compensable injury and therefore was not entitled to wage loss benefits related to her time loss at her concurrent place of employment for the specified period noted.

On April 16, 2010, the Appeal Commission received the worker's Appeal of Claims Decision form in regard to Review Office's decision. A hearing was held on December 8, 2010.

Following the hearing, the appeal panel met to discuss the case and decided to write to the WCB's psychological consultant to ask for clarification as to the comments he made on October 29, 2009. A response was later received from the consultant and it was forwarded to the parties for comment. On January 18, 2011 the panel met to render its final decision on the issue under appeal.

Reasons

The Pre-Existing Conditions Policy provides that 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 WCB will accept responsibility for the full injurious result. In view of the further comments from the WCB psychological consultant, the panel finds that the compensable accident still contributed to a material degree to the time loss incurred by the worker from August 24, 2009 to January 4, 2010, in that her pre-existing condition was aggravated by the workplace incident. We therefore find that the worker is entitled to wage loss benefits for this period of time loss from her concurrent employment. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 23rd day of February, 2011