The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further psychological treatment after June 30, 2014 in relation to his compensation claim. A hearing was held on November 4, 2014 to consider the matter.

Issue

Whether or not further psychological treatment after June 30, 2014 should be authorized.

Decision

That further psychological treatment after June 30, 2014 should not be authorized.

Decision: Unanimous

Background

On April 10, 2008, the worker suffered a heart attack while moving boxes at work. His claim for compensation was accepted and benefits were paid to the worker while he underwent treatment for his heart condition. Subsequent file records also showed that the worker was treated by a psychologist for symptoms of mild adjustment disorder, anxiety and depression related to cardiac-related factors/fears.

On June 28, 2011, a hearing was held at the Appeal Commission to determine two issues, one of which was: "Whether or not psychological difficulties resulting from matters related to the administration of the claim are compensable." In a decision dated August 26, 2011, the panel found that the psychological difficulties resulting from matters related to the administration of the claim were not compensable and the worker's appeal was dismissed. Complete details of the worker's claim file leading up to the June 28, 2011 hearing and the panel's decision on the issue can be found under Appeal Commission Decision No. 118/11.

In a letter to the WCB dated April 24, 2014, the treating psychologist noted that he was assisting the worker with: "...psychological challenges associated with coping with a workplace related heart attack, several psychosocial stressors (financial, uncertainty regarding various appeal submissions, health) and depressed mood/anxiety." He reported the following observations regarding the worker's conditions:

Anxiety - the worker's level of ambient anxiety had continued to lessen in the area of pre-occupative worry, hyper-vigilance and social withdrawal.

Depressed mood: the worker's mood remained stable with respect to reduction in catastrophic thinking, negative thoughts, tearfulness and amotivational behavior.

Self-esteem/identity: the worker continued to address self-esteem/identity themes in order to develop a less demanding self-critical personal perspective.

Emotional reactivity: there was evidence of a reduced level of emotional reactivity when the worker discussed themes associated with his previous work-related heart attack, circumstances and incident.

Mental status: the worker's mental status had been stable and unremarkable during the past four months.

The psychologist requested that three additional supportive psychotherapy sessions be authorized to further consolidate and strengthen the worker's coping skills/adjustment to symptoms of depressed mood, stress and uncertainty. Treatment frequency would be on a once per month basis.

In a decision dated May 9, 2014, the worker was advised by a WCB senior case manager that no further responsibility would be accepted for psychological counseling beyond June 30, 2014. The case manager noted that the worker attended 42 sessions from May 20, 2011 to April 23, 2014 and that the worker had been provided with resource material and coping skills related to mood, depression and anxiety. It was noted that the information obtained from the treating psychologist was that the worker's condition had been stable and improved in relation to his anxiety, mental status and mood. The case manager also pointed out that any psychological problems related to matters such as the worker's perception of treatment by the WCB were not considered compensable.

On May 25, 2014, the worker appealed the senior case manager's decision to Review Office. The worker referred to a claim note on his file dated May 12, 2011 from a WCB supervisor who stated: "I also encouraged utilizing the services of a counselor/psychologist to manage the pressure/stress that can arise from ongoing conflicts and confrontational situations that he is finding himself in over these many issues." The worker contended that this statement was completely opposite to the senior case manager's comments that "Any psychological problems related to matters such as your perception of your treatment by the WCB regarding decisions made by the WCB are not compensable." As the supervisor's comments of May 12, 2011 were never rescinded, the worker felt that they were still in effect and therefore the WCB should continue to honor this decision and continue to pay for the treating psychologist.

The worker further stated:

It is also important to note that it is not my perception of my treatment by the WCB that is causing the psychological problems. To say it is, is insulting my intelligence and masking the real cause of the stress. Rather, it is the inattention and ignoring of the complaints that I have registered with the WCB. I have brought forth many violations of the WCA and WCB Policies by employees of the WCB in the handling of my claim and until they are addressed, I foresee needing the assistance of a counselor/psychologist to handle the stress.

On July 17, 2014, Review Office determined that based on the weight of evidence, the worker's need for psychological treatment at this time was not related to the compensable injury and therefore there was no entitlement to psychological treatment after June 30, 2014.

In making its determination, Review Office referred to its previous decision of September 14, 2010 and the Appeal Commission's August 26, 2011 decision that the worker's psychological difficulties resulting from matters related to the administration of his claim were not compensable. It also relied on the report from the treating psychologist that the worker's mental status/condition had been considered stable for the past three years with regards to his adjustment disorder, depressed mood and anxiety. It also relied on the comments made by the treating psychologist on April 24, 2014 that the worker's mental status remained stable and unremarkable during the four months prior.

On July 28, 2014, the worker appealed Review Office's decision of July 17, 2014 to the Appeal Commission and a hearing was held on November 4, 2014.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Section 37 of the Act outlines the types of compensation payable to workers as follows:

Compensation Payable

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

Worker's position:

The worker was self-represented in his appeal. The Appeal of Claims Decision form set out the following reason for appeal:

The Review Office based its decision on the compensable injury when in actuality the treatment was offered and authorized by [WCB supervisor] as a direct relationship to the stress I was suffering due to all the issues with my claim. Information presented by the Review Office in its decision is incorrect when it refers to the supportive psychological counseling in relation to the effects of my heart attack.

...

The decision was based on the compensable injury when it should have been based on the offer and authorization for treatment by [WCB supervisor]. These are 2 totally different issues and the Review Office made their decision based on the wrong issue.

Analysis:

The issue before the panel is whether or not further psychological treatment after June 30, 2014 should be authorized. In order for the worker's appeal to succeed, the panel must find that there is authority under the Act or WCB Policy for the granting of such coverage. We are unable to make that finding.

At the hearing, the worker relied on a claim note written on May 12, 2011 by a WCB supervisor. The claim note read, in part:

I discussed this and several issues with [the worker] and felt there was a clearer understanding of the claim and medical status at the conclusion of our discussion. He is intent on challenging decisions and I encouraged him to use the worker advisor's office which he acknowledged that he had.

I also encouraged utilizing the services of a counselor/psychologist to manage the pressure/stress that can arise from ongoing conflicts and confrontational situations that he is finding himself in over these many issues. He agreed to consider this. I confirmed that I would forward my formal decision to him by next week.

[The worker] presented as an articulate, well informed as well as determined person throughout the conversation.

The worker acknowledged the previous Appeal Commission ruling in Decision 118/11 but submitted that the basis for this appeal was the representation by the WCB supervisor that he be entitled to psychological counseling over and above the regular types of compensation paid to workers. The WCB had paid for the worker's psychological treatment from May 20, 2011 to June 26, 2014 by authorizing 8 visits at a time. There was never any discussion of the treatment being provided on a transitional basis. The worker submitted that the majority of WCB injuries were musculoskeletal. His was unique in that it was a cardiac injury and the WCB lacked anyone who specialized in this area. As time went on, the worker had more complaints with the WCB but felt that this was necessary as his "case has gone dismally wrong." The methods used by the WCB in making decisions were wrong and this caused him stress. The ongoing conflict had had an effect on him psychologically and since his heart attack, the worker had not been the same person. In his view, his psychological changes were all as a result of his heart attack and should be the responsibility of the WCB.

The panel does not consider the May 12, 2011 claim note as creating an entitlement to unlimited psychological treatment for the worker. Subsequent file material indicates that on May 13, 2011, the worker telephoned his case manager and indicated that he would like to see a psychologist. A referral to a psychologist was arranged and 8 visits were authorized. At the time, the WCB had recently determined on April 20, 2011 that the worker did not have a psychological diagnosis related to the compensable injury. The approval for psychological counseling was therefore in the nature of supportive/social counseling services. The panel understands that it is the practice of the WCB to provide limited coverage for these types of counseling services to assist workers in adjusting to their post-accident situation, particularly in the context of a negative decision concerning entitlement to benefits. The Act does not specifically provide for any long term entitlement in this regard, and the panel finds that the support provided does not create a basis for the ongoing coverage being requested by the worker in this appeal.

The panel has considered whether the worker may be entitled to psychological treatment as a vocational rehabilitation benefit. In view of the WCB's determination that the worker is unemployable and should be entitled to full wage loss benefits until age 65, there can be no entitlement to psychological counseling as an adjunct to a vocational rehabilitation plan.

The final possible basis for finding entitlement to further psychological treatment would be as a medical aid benefit. In order to make this finding, the panel would have to find a causal relationship between the need for the psychological treatment and the effects of the compensable injury. At the hearing, the worker acknowledged that the cause of his stress has been his interactions with the WCB. He stated that if the WCB had not violated his rights and had seen his claim through as it should have been managed, he would not need the services of his psychologist.

It is clear that the need for psychological treatment after June 30, 2014 continues to be the result of matters related to the administration of the worker's claim. As indicated in Appeal Commission Decision No. 118/11, this is not compensable.

The panel therefore finds that further psychological treatment after June 30, 2014 should not be authorized. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of December, 2014