Decision #126/11 - Type: Workers Compensation
Preamble
The worker and the employer are appealing the decisions made by Review Office of the Workers Compensation Board ("WCB") dated January 18, 2011 which deal with the worker's entitlement to benefits and services beyond October 8, 2010 and the worker's entitlement to wage loss benefits for one week in August 2010. A file review was held on July 27, 2011 to consider the matter.Issue
Worker Appeal: Whether or not the worker is entitled to additional medical aid benefits or services beyond October 8, 2010; and
Employer's Appeal: Whether or not the worker is entitled to wage loss benefits for the period August 2 to August 6, 2010.
Decision
Worker Appeal: That the worker is not entitled to additional medical aid benefits or services beyond October 8, 2010; and
Employer's Appeal: That the worker is not entitled to wage loss benefits for the period August 2 to August 6, 2010.
Decision: Unanimous
Background
The worker filed a claim with the WCB for injuries to her head, neck, shoulders, back and arms that she related to a motor vehicle accident on January 7, 2009. In her accident report to the WCB, the worker advised: "…my neck wrenched to the right and back to the left and I hit the window." The claim for compensation was accepted by the WCB and benefits were paid to the worker. The accepted compensable diagnosis was cervical whiplash.
Subsequent file records showed that the worker attended physiotherapy treatment and was referred for psychological counselling related to the effects of the motor vehicle accident. Based on a neuropsychological evaluation carried out in August 2009, it was concluded that the worker's condition met the criteria for a diagnosis of major depressive episode and generalized anxiety disorder.
On September 21, 2009, a WCB case manager documented to the file that he met with the worker's clinical psychologist and neuropsychologist. He noted that in the opinion of the neuropsychologist, the worker's psychological symptoms were 25% related to post concussion syndrome and 75% were emotional in nature, which would likely be treated with time, therapy and medications. It was estimated that the worker's recovery would take 1 to 2 years from the date of accident.
On March 3, 2010, the worker was interviewed by the WCB's psychological consultant. It was the consultant's opinion that the primary ongoing psychological sequelae from the accident was related to an anxiety disorder and not to post-concussive disorder.
At a follow up assessment on June 23, 2010, the WCB psychological consultant determined that the worker continued to have ongoing post-traumatic stress disorder symptomatology but was fit to return to an office-based work environment with specific work restrictions. The consultant recommended a 12 week graduated return to work program after which the worker would be at full time hours.
During a meeting held on July 29, 2010 to discuss the worker's progress in her graduated return to work plan, the worker indicated to her case manager that she intended to take the first week of August off as vacation time. The case manager advised the worker that the WCB would suspend her benefits, as her return to work was considered therapy and missing therapy was considered to delay recovery. A decision was later sent to the worker dated July 26, 2010 which confirmed that wage loss benefits would be suspended for the period August 2 to August 6, 2010 as any loss of earnings in that period was not due to the workplace accident but was due to the worker's non-participation in the graduated return to work program.
On September 17, 2010, a decision was sent to the worker which stated that in the opinion of the WCB, she had recovered from the effects of her compensable injury and any remaining symptoms were unrelated to her claim. The decision was based on the duration of time since the traffic accident, the description of the traffic accident, the duration and type of treatment provided to date, the worker's ability to drive to work and perform modified duties and the noted prior history of an anxiety condition. The worker was advised that the WCB would not pay wage loss or medical benefits beyond October 8, 2010.
The worker was seen again by the WCB's psychological consultant on September 29, 2010. Based on the findings at this assessment, the worker was advised in a decision dated September 30, 2010, that there were no symptoms related to her compensable injury that would prevent her from returning to her regular duties on a full time basis.
On December 7, 2010, the worker's union representative asked Review Office to reconsider the decisions dated July 26, September 17 and September 30, 2010.
On January 18, 2011, Review Office determined that the worker was entitled to partial wage loss benefits for the week of August 2-6, 2010. Review Office indicated that the circumstances of the situation did not require the implementation of subsection 22(1) of The Workers Compensation Act (the "Act") regarding mitigation as it was felt that the one week of vacation would not have a negative significant impact on the worker's overall rehabilitation nineteen months post accident.
Review Office further determined that responsibility should not be accepted for wage loss benefits and medical services beyond October 8, 2010, with the exception of the transitional counselling which would have been authorized by the WCB. Review Office took into consideration the September 29, 2010 WCB psychological consultant's findings and noted that the primary reason for the worker to still be incurring anxiety symptoms was workplace stress and high expectations for performance and achievement. It was felt that the actual trauma from the motor vehicle accident was no longer playing a significant role in the worker's psychological presentation. It was also of the opinion that the medications involved to treat the worker's anxiety issues beyond October 8, 2010 were not related to the motor vehicle accident.
In March 2011, the worker's union representative appealed Review Office's decision dealing with the worker's entitlement to wage loss and medical services beyond October 8, 2010, and the employer's representative appealed Review Office's decision regarding the payment of wage loss benefits for the week August 2 to 6, 2010. A file review was arranged.
Reasons
Applicable Legislation
In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act ("the Act"), regulations and policies of the Board of Directors.
There are two issues before the panel. The worker's appeal deals with ongoing medical aid benefits and the employer's appeal deals with wage loss benefits during a vacation period.
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.
Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
Worker's Appeal: Whether the worker is entitled to additional medical aid benefits or services beyond October 8, 2010.
Worker's Position
The worker's union representative filed an appeal with the Appeal Commission on March 2, 2011 on the worker's behalf. In the appeal form the worker's representative indicated that the decision is not consistent with the Act or policies.
In a letter to Review Office dated December 7, 2010, the worker's representative submitted that the worker is required to take prescription medications that have been prescribed to her as a result of her compensable injury. She commented, "We are at a loss to understand the WCB's rationale for terminating their responsibility to pay for these medications. Even though [the worker] has returned to work she is still following requirements for therapy (which WCB has supported) and medications (which WCB has not supported)."
Employer's Position
The employer's advocate provided a written submission to the Appeal Commission.
He advised that the employer agrees with the Review Officer's decision to end medical aid coverage on this claim effective October 8, 2010. He submitted that the evidence on file indicates that the worker was fully recovered from the acute effects of the workplace injury as of at least that date. He noted the opinion of a WCB psychological consultant who conducted an assessment on September 29, 2010 and indicated that the main reason for the worker's anxiety at that point was general stressors unrelated to the acute effects of the accident and that the accident is no longer playing a significant role in the worker's psychological presentation.
Analysis
The first issue before the panel is whether the worker is entitled to medical aid benefits or services beyond October 8, 2010. For the worker's appeal to be successful, the panel must find that the worker continues to require medical aid benefits as a result of the compensable accident. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker has recovered from the workplace injury and she is not entitled to medical aid benefits or services beyond October 8, 2010.
The panel notes that the worker's physical injury has resolved and that there was no evidence that the worker had a clinically significant concussive brain disorder. The worker's claim for continued medical aid benefits are related to her psychological health.
In reaching our decision, we rely upon the report of the WCB psychological consultant dated September 29, 2010. In this report the WCB psychological consultant notes that:
- The worker continues to have anxiety but there is markedly less post traumatic anxiety, in fact the majority of the worker's anxiety relates to the return to work process.
- The symptoms that the worker is reporting are associated with workplace stress, anxiety, and high expectations for performance and achievement.
- The worker appears to have done well with her Post Traumatic Stress Disorder with minimal symptoms, and the majority of her symptoms relate to her returning to the workplace.
The WCB psychological advisor recommended that the worker continue to see the psychologist for an additional six to eight sessions to solidify skills in terms of anxiety management, symptoms management and overall stress management. The panel notes that the WCB provided these additional services and on a balance of probabilities, finds no basis for continued medical aid benefits.
The worker's appeal is dismissed.
Employer's Appeal: Whether the worker is entitled to wage loss benefits for the period August 2 to August 6, 2010.
Employer's Position
The employer's advocate submitted that the worker's absence from work during the noted period was unrelated to her workplace injury; rather, she took a vacation week and was not participating in the available modified/graduated return to work plan. He said there was no loss of earning capacity because the work duties were made available.
Worker's Position
Regarding the employer's appeal, the worker's union representative made the following submission in her letter of December 7, 2010 to Review Office:
"…[the worker] fully participated in her return to work program and in no way was her return to work delayed or compromised. [the worker] returned to full time duties as expected and planned and her vacation in no way adversely impacted this. Further, [the worker] continued to have a loss of earning capacity while she was on vacation leave."
Analysis
The employer appealed the decision to pay the worker wage loss benefits for the period August 2 to August 6, 2010. For the employer's appeal to be successful the panel must find that the worker's loss of earning capacity for the week of August 2 to 6, 2010 was not due to the workplace injury. The panel did make this finding.
The panel notes that the worker was participating in a graduated return to work plan when she removed herself from the plan to take a vacation. The panel finds that the graduated return to work plan was reasonable given the worker's medical condition. The panel also finds that the worker's loss of earning capacity during the vacation period was due to her actions in taking a vacation and was not related to the workplace injury. Accordingly the worker is not entitled to wage loss for the period August 2 to August 6, 2010.
The employer's appeal is allowed
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 6th day of September, 2011