The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his inability to return to work was due to non-compensable factors and therefore he had no loss of earning capacity beyond April 9, 2012. A hearing was held on January 9, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 9, 2012.

Decision

That the worker is not entitled to wage loss benefits beyond April 9, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB on November 19, 2010 for a stress-related condition that he related to harassment in the workplace. The diagnosis reported by the treating psychologist on November 18, 2010 was adjustment disorder with mixed anxiety and depressed mood. He noted that the worker did not feel safe in his work environment and that he wished to be relocated to another work area. The psychologist also noted that the worker had the following pre-existing condition that may effect his recovery "Previous hx (history) (school-age) of harassment, bullied, victimization."

In a report to the WCB dated February 7, 2010, the worker's family physician reported that the worker presented to his office on October 27, 2010 with a history of workplace harassment based on racism. It apparently had been ongoing for the past three years and had been heightened as a result of further harassment at home with racist phone messages being left at his house. The family physician indicated that it was difficult to determine the exact diagnosis but said "It is likely that he is experiencing ongoing problem with post traumatic stress disorder or acute stress disorder. However, since the symptoms have persisted for longer than a month, it is likely that his problem is more likely post-traumatic in nature. In addition, he is also suffering from an ongoing major affective disorder or depression." The family physician also indicated that it was too early to determine a prognosis for a return to work. He stated: "…considering the conditions of his workplace, returning to previous workplace would be not only undesirable but highly detrimental. It is also unlikely that [the worker] would accept returning to his former workplace considering the abuse he feels he may be subjected to."

On May 25, 2011, the treating psychologist provided the WCB with an updated report on the worker's current symptoms and treatment progress.

On May 27, 2011, a WCB psychiatric consultant reviewed the file at the request of primary adjudication and it was decided to have the worker seen at the WCB to determine whether there was a relationship between his current symptoms and his compensable injury. A request was also made to obtain clinical notes for the period January 1, 2006 onwards which was later received and placed on file.

On June 8, 2011, the worker was interviewed by the WCB psychiatric consultant. It was concluded from the assessment that the current diagnosis was major depressive episode, single episode, moderate severity, currently in partial remission, panic attacks - not meeting criteria for panic disorder; some narcissistic and possibly obsessive compulsive personality traits, severe psychosocial stressors, Current GAF: 50-51; Moderate to severe impairment in psychosocial and occupational functioning. It was felt that the worker's diagnoses of major depression was a direct consequence of his workplace incident/injury/situation. The consultant indicated that he concurred with the treating psychologist that the worker had restrictions and limitations preventing a return to work both in his own occupation and any other occupation at the current time.

A report was received from the worker's treating psychologist dated February 8, 2012. He outlined the dates that he treated the worker between February 3, 2011 and January 10, 2012. He noted that the worker's treatment progress had been slow which he felt may have been influenced in part by the worker's dealings with his union and employer with matters related to his work environment. The psychologist reported that the worker continued to be significantly distressed, although his primary presentation tended to be one of anger. The worker had significant issues with trust and perceived various "systems" in his environment conspiring against him. The psychologist also indicated that the worker should continue with psychological consultations.

On February 16, 2012, the worker was interviewed by a second WCB psychiatric consultant. The consultant noted that the worker gave a history of volatile behavior that was related to his coping strategies that were sometimes maladapative, but they were not related to the compensable injury. The consultant commented that in terms of the psychiatric difficulties that were related to the compensable injury, the worker's signs and symptoms of depression had responded to treatment such that he had mild residual symptoms that would not interfere with his ability to perform his work duties. There were no psychiatric restrictions.

On April 2, 2012, a WCB case manager informed the worker that his compensable depression would not prevent a return to work and that the medical information indicated that non-compensable issues would be a barrier to a return to work. By letter dated April 2, 2012, the worker was advised that wage loss benefits would be paid up to April 9, 2012 inclusive. On May 2, 2012, the worker appealed the decision to Review Office and submitted a report dated April 30, 2012 from his treating psychologist. On May 8, 2012, Review Office returned the file to primary adjudication to consider the new medical report and to reconsider its previous decision.

Primary adjudication asked the WCB psychiatrist consultant who last saw the worker on February 16, 2012, to review the new report to determine whether it would change her previous opinions noted to the file. On June 29, 2012, the consultant stated, in part, that the recent information from the treating psychologist and the family physician did not give information of a nature that would change the findings in her report of March 26, 2012. She noted that the worker's periodic and, at times, extreme reactivity to external situations had been manifested by anger and rage. This particular and specific behavior was not temporally related to signs and symptoms of depression. The consultant indicated that the psychiatric diagnosis of depression had resolved to the extent that psychotherapy was not necessary. The most significant impairment at this time was the worker's extreme anger management difficulty that was not related to his workplace injury.

On July 5, 2012, the WCB case manager advised the worker that no change would be made to the prior opinion with respect to wage loss or medical benefits based on the opinion expressed by the WCB psychiatric consultant dated June 29, 2012. The case was then referred back to Review Office at the worker's request.

On September 6, 2012, Review Office agreed that there was no entitlement to wage loss benefits beyond April 9, 2012. Review Office found that the compensable diagnosis was major depressive disorder, single episode, mild severity, now in partial remission. It accepted the psychiatrist consultant's opinion that the worker's symptoms were mild and he was capable of a return to work. Review Office felt that the worker had interfering coping mechanisms including anger management difficulties. It found no evidence on file to support that the worker's coping mechanisms and anger were related to the compensable diagnosis and that the worker's inability to return to work was due to non-compensable factors. On September 25, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The worker is employed by a federal government agency or department and his claim is therefore adjudicated under The Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”). The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

The worker has an accepted claim and is seeking benefits beyond April 9, 2012. 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 was represented by his union representative who made an oral presentation on behalf of the worker and provided a written copy. Both the representative and the worker answered questions posed by the panel.

The representative stated that the worker's injury is the direct result of traumatic workplace experiences related to racial and discriminatory incidents in the workforce. The representative referenced the original incident report.

The representative noted the second WCB psychiatric consultant reviewed the notes from the worker's family physician and commented that prior to October 2010, there were no indications of pre-existing psychiatric problems. The representative said that the absence of a pre-existing condition is important to the case.

The representative also noted that the second WCB psychiatric consultant expressed concerns about the worker's ability to return to work due to his coping strategies; however, the worker's coping strategies did not prevent the worker from working productively prior to the compensable injury.

The representative noted that the first WCB psychiatric consultant concluded that the worker needed more time and treatment prior to returning to work.

The representative expressed disagreement with the use of the second psychiatric consultant to comment on the treating psychologist's report. He suggested that from a natural justice viewpoint it would appear reasonable to refer the information to a third party for an independent review or to the first WCB psychiatric consultant. He also suggested a Medical Review Panel ("MRP") would be appropriate, but acknowledged that the worker was not requesting a MRP.

In answer to questions, the worker advised that he is no longer seeing the psychologist as WCB funding was terminated. He continues to see his family physician. He said that he feels his family physician has "…taken the role of counselor…" and is a "…supporting figure in my life…" He confirmed that he has not been referred to a psychiatrist.

Regarding his current condition, the worker said that he feels horrible. He has difficulty getting up but cannot sleep. He has memory problems and eating problems. He said that he panics when he sees the message light blinking on his phone, worrying what type of message has been left.

In reply to a question, the worker's representative acknowledged that the worker's psychologist did not disagree with the second WCB psychiatric consultant's comment regarding depression but disagreed with her conclusion on the worker's ability to return to work.

The worker confirmed that his employer has not made progress in the investigation or resolution of his complaints. They continue to be under investigation. He said that he has made a proposal for alternate employment to his union and the employer, but this has not advanced.

Regarding his coping strategies, the worker noted how medical reports have isolated it but that he feels it is all part of the overall symptom and diagnosis of depression. In answer to a question about whether his coping strategy is a barrier to his return to work, the worker said that the barrier to his return to work is his overall depression. He stated that coping strategy is part of it.

The worker was asked whether he would be able to return to work now. He responded he cannot return to work with his current department but believes he can with a different department and position.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond April 9, 2012. For the worker's appeal to be successful, the panel must find that the worker's loss of earning capacity (inability to work) beyond April 9, 2012 was due to his workplace injury. The panel was not able to make this finding.

In arriving at our decision, the panel has considered all evidence on the file and the evidence presented at the hearing. The panel attaches significant weight to the report of the second WCB psychiatric consultant. The psychiatric consultant reviewed the worker's file including reports from the family physician and treating psychologist. She also met with and interviewed the worker.

The second WCB psychiatric consultant diagnosed the worker with Major Depressive Disorder, single episode, mild severity, in partial remission. She concluded that:

· the Major Depressive Disorder is related to both the consequence of the original accident and to the coping strategies that interfere with the worker's complete recovery of function.

· the worker's symptoms wax and wane in response to external stimuli.

· in terms of psychiatric difficulties that are related to the compensable injury, the worker's signs and symptoms of depression have responded to treatment and that his mild residual symptoms would not interfere with his ability to perform his work duties.

· no psychiatric restrictions are required.

· the worker gave a history of volatile behavior that is related to his coping strategies that are sometimes maladaptive and are not related to the compensable injury or an Axis 1 psychiatric diagnosis. These could interfere with the worker's return to work.

In a second opinion dated June 29, 2012 the second WCB psychiatrist added that the worker's most significant impairment at this time is his extreme anger management difficulty which is not related to his workplace injury.

The panel notes that the treating psychologist agreed, in part, with the second WCB psychiatric consultant's opinion. The treating psychologist stated that:

The worker's representative was critical of the WCB in having the second WCB psychiatric consultant comment on the treating psychologist's April 30, 2012 letter, which was in reply to the WCB consultant's February 16, 2012 call-in examination report. The representative considered this action to be inconsistent with natural justice and felt the letter should have been sent to a third party for an independent review or to the first WCB psychiatric consultant who had interviewed the worker. While the decision to have the psychiatric consultant review the report was that of the WCB, the panel does not see that this action was contrary to natural justice, but rather, a practice consistent with WCB's general responsibilities under the Act to determine various entitlements.

The panel relies upon the second WCB psychiatric consultant's opinions and finds that the compensable diagnosis is Major Depressive Disorder, single episode, mild severity, in partial remission. Given that the condition is mild and that no psychiatric restrictions were recommended, the panel finds that the worker is not entitled to wage loss benefits beyond April 9, 2012.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of February, 2013