The Appeal CommissionThe Workers Compensation Act of Manitoba

The WCB Board of Directors has adopted Policy 44.120.10, Medical Aid (the "Medical Aid Policy"). The stated purpose of the Medical Aid Policy is to provide a "comprehensive and coordinated approach to delivery of medical-aid services to injured workers" so as to "minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible."

Subsection A.2. of the Medical Aid Policy provides that to "minimize the impact of workers' injuries and to encourage recovery and return to work", the WCB approves the use of many prescribed and recommended treatments.

Subparagraph A.2.a.i) of the Medical Aid Policy goes on to state that:

The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) … when required by reason of a compensable injury, and the treatment … is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.

Worker's Position

The panel received a written submission on behalf of the worker. It was noted that the WCB discontinued support for the worker's psychotherapy on the basis that her prior treatment has not resulted in sustained improvement of her psychological condition. There was no dispute that ongoing psychotherapy has not caused the worker to recover from her compensable injuries. It was submitted, however, that the worker is entitled to further treatment because such treatment is required as a direct result of compensable injuries, prevents deterioration or aggravation of her condition, and enables her to cope with, and function in spite of, her chronic and disabling symptoms. It was submitted that the worker's entitlement to ongoing psychological treatment is supported by the evidence on file and consistent with the provisions of the WCA and related WCB policy.

It was noted that the WCB suggested that the criteria for ongoing treatment sessions is based on sustained improvement, and that the medical evidence on file does not support that further sessions would be of any benefit to improve the worker's psychological concerns. It was submitted, however, that the WCA and WCB policy provide different criteria; that the WCB will support such treatment where, among other things, it provides relief, minimizes the impact of an injury, or minimizes the chance of aggravation or further injury. It is the worker's submission that the evidence on file, including that of the WCB's psychological consultant and the worker's treating psychologist, establishes that these criteria are satisfied.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to additional psychological treatment. In order for the worker's appeal to succeed, the panel must find that there is authority under the WCA or WCB policy for, and the evidence supports, the granting of coverage for such treatment. The panel is able to make that determination.

The worker has compensable injuries which include chronic Major Depressive Disorder and chronic PTSD. Prior to December 31, 2014, the worker had been receiving treatment from the treating psychologist with respect to those conditions, as authorized by the WCB, over a period of more than 15 years.

The worker has not disputed that ongoing psychotherapy has not resulted in sustained improvement of the worker's condition. The worker's position is that further treatment is necessary to prevent her condition from deteriorating and enable her to cope with, and function in spite of, her chronic and disabling symptoms, and is consistent with the provisions of the WCA and WCB policies.

Reference is made in the written submission to various provisions of the WCA and WCB policies as setting out the relevant criteria on this appeal, including subsection 27(1) of the WCA, which reads as follows:

The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident. (worker's emphasis)

Reference is also made to the wording of the Medical Aid Policy, and the stated intent of that policy to "minimize the impact of worker's injuries and to encourage recovery and return to work…" (worker's emphasis)

The panel notes that evidence on file indicates that it had been recognized for several years that the worker's compensable injuries were not curable, and that sustained improvement was not to be expected. The evidence further indicates that psychological treatment was authorized and provided over the years on the basis that it was necessary and appropriate to prevent a further deterioration in the worker's psychological functioning and provide ongoing monitoring of her mental state and safety.

The need for and importance of the preventative and monitoring function of the treatment by the treating psychologist was repeatedly recognized by the WCB psychological consultant in recommending that such treatment continue. In the notes of a call-in examination of the worker on May 19, 2010, the WCB psychological consultant thus commented that "this treatment is not curative, but mental status stability-based and safety focused given the level of distress this woman has, and I see her to be very somatically focused, dependent, and, needy in this regard. Continuing with her treatment is appropriate given the longer term treatment relationship that has developed and, her psychological distress…."

On November 4, 2010, responding to questions from the case manager regarding continuing treatment sessions, the WCB psychological consultant similarly stated that "[b]ased on the psychologist reports, the claimant's symptomatologies, and my discussion with the psychologist on November 3, 2010, ongoing psychological treatment is needed and this is supportive and preventative of further decline in this woman's psychological functioning, and will provide ongoing monitoring of her mental state and safety." In recommending further treatment, the consultant referred to the nature and severity of the worker's symptoms, including her "mental status fragility" and "sense of vulnerability", and commented that the severity of her symptoms could "wax and wane over time dependent on situational factors and episodes of retraumatization." The consultant reiterated that the ongoing psychological treatment was "supportive and preventative but will not be curative".

The worker was again seen by the WCB psychological consultant on January 9, 2013, to determine whether she was entitled to a psychological impairment rating. The consultant concluded that the worker was most likely at MMI, and recommended that she be considered for a permanent partial impairment award ("PPI") in the psychological domain and Neurosis classification, at a Class II rating of 25%. The recommended PPI psychological rating was reviewed by the WCB Senior Medical Advisor, who agreed with the rating of 25%.

The panel notes that a Class II rating signifies a high level of impairment. The WCB psychological consultant determined that the worker's ongoing symptoms of PTSD and Major Depressive Disorder were "moderately severe", and that "the symptomatic severity of her condition, although variable, requires her to constantly rely on alleviating therapeutic measures to modify her daily activities."

The panel also notes the fact that the worker has been found to have reached MMI and to be entitled to a PPI rating, does not affect her entitlement to other benefits and services.

As part of his recommendations arising out of the PPI examination, the WCB psychological consultant also concluded that the worker needed to continue seeing the treating psychologist, adding that:

This has been a supportive, maintaining, and mental status evaluating functioning approach, and … my recommendation is that there be consideration for this treatment to continue. I am going to recommend that this continue at a level of up to 15 sessions over the next year, with this to be determined by the claimant in collaboration with the psychologist, with a focus on lifestyle enhancement, behavioral activation, having this claimant become somewhat more active out of her home, and more normalizing as much as is feasible.

The need for and importance of psychological treatments was also recognized and illustrated in reports which were provided periodically to the WCB by the worker's treating psychologist. In a November 24, 2014 report, the worker's treating psychologist thus described her observations about the worker's current psychological condition and her most recent progress in therapy, and requested an extension of the sessions for another year, concluding as follows:

Based upon [the worker's] own assertion that she receives psychological benefit from the therapy, and based upon my own observations that this is indeed the case, I am requesting that you consider authorizing the extension of her monthly individual psychotherapy sessions for another year. I am making this request based on the observation that, in view of the severity of her pain and the complexities of her medical treatment, the goal of sustained improvement in her psychological condition which you referenced in your letter, is, at this stage, unrealistic. In my opinion, the therapy sessions have played an important role in allowing me to monitor for, and prevent, further psychological deterioration, in accordance with the Board's medical aid policy from which you quoted in your most recent letter; this states that the Workers Compensation Board will pay for medically prescribed treatments if the treatment is likely to improve function "or

minimize the chance of aggravating the existing injury or of causing a further injury". In this regard, I would like to refer again to [the WCB psychological consultant's] January 7, 2013 memorandum, which recommended a "supportive, maintaining, and mental status evaluating functional approach" be taken in the psychotherapy, rather than a more directive approach aimed at a complete amelioration of symptoms. (Emphasis in original)

The panel accepts the opinions of the WCB psychological consultant and the treating psychologist regarding the important role that the ongoing psychological treatments play in terms of preventing a decline in the worker's psychological functioning and monitoring her mental state and safety on an ongoing basis. The panel is satisfied that the evidence on file establishes, on a balance of probabilities, that further psychological treatment by the treating psychologist is necessary and appropriate in this instance, to provide relief from compensable injuries, to improve function and to minimize the chance of aggravating the existing injuries or causing further injuries. The panel is further satisfied and finds that such treatment is contemplated by subsection 27(1) of the WCA and consistent with subparagraph A.2.a.i) of the Medical Aid Policy.

The panel finds, therefore, that the worker is entitled to additional psychological treatment.

The worker's appeal is allowed.