Decision #93/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits after September 3, 2012 in relation to her compensable injury. A hearing was held on May 9, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after September 3, 2012.

Decision

That the worker is not entitled to wage loss benefits after September 3, 2012.

Background

On December 1, 2011, the worker filed a claim with the WCB for sexual harassment with the accident date of February 10, 2011. The worker stated:

The sexual harassment came from the owner of the…store that I work at. The sexual harassment was physical and verbal.

Following an investigation into the worker's allegations, the claim for compensation was accepted by the WCB on February 15, 2012 and the worker was paid benefits commencing October 27, 2011.

The claim file contains medical reports from the worker's treating physicians. In a report to the WCB dated April 23, 2012, the treating psychologist outlined the opinion that the worker suffered from an Adjustment Disorder with mixed Anxiety and Depressed Mood, chronic, which was likely related to the described incidents in the workplace. Based on the worker's description of her symptoms and history, the psychologist also noted that the worker was suffering from a Panic Disorder with Agoraphobia which had been in remission, but had been exacerbated by her difficulties in the workplace. The medical information also noted that the worker had a prior history of psychological issues and other stressors that impacted her recovery from the compensable psychological condition.

In Claim Notes dated May 4, 2012, it was documented that due to the circumstances of the claim, the worker would be unable to return to work with the accident employer and her file was referred to the WCB's vocational rehabilitation branch for an initial assessment.

On June 27, 2012, the worker was interviewed by a WCB psychological consultant. His impression was that the worker was not unemployable, although she continued to be symptomatic from the alleged sexual abuse victimization she had experienced. It was recommended that the worker return to modified or accommodated work, with the restriction that she should not work with a male supervisor. The consultant stated: "Her stress tolerance is most likely somewhat reduced at this time, although I am very pleased that she is normalizing a lifestyle as she is reporting to me today."

In early September 2012, the worker returned to school with the goal of completing an Educational Assistant program on her own initiative.

The WCB's vocational rehabilitation branch developed a Vocational Rehabilitation Plan for the worker under the occupational goal of 6421 Retail Sales. In a memorandum to file dated October 25, 2012, it was documented that the worker had advised that she preferred not to work in retail but agreed to job search for retail sales positions while she continued to attend school.

On February 4, 2013, it was recommended that the worker's wage loss benefits be reduced based on the worker's earning capacity within NOC 6421.

On February 14, 2014, Compensation Services advised the worker that:

…your WCB benefits are indexed and reviewed. You are calculating your partial long term wage loss benefits based on deemed earning capacity for NOC 6421, Retail Sales. Effective March 1st this deemed earning capacity was indexed to $440 gross per week. As this is higher than your pre-accident earnings, there is no further entitlement to partial benefits.

On January 4, 2016, the worker called the WCB as she was hoping to get back onto WCB benefits. The worker reported that she was still suffering flashbacks and was having a hard time finding work. On January 13, 2016, the worker advised that she continued to have depression and anxiety which she related to her claim.

The WCB obtained further medical information which was reviewed by the WCB psychological consultant on May 4, 2016. The consultant stated:

When the claimant was assessed for a call in examination June 27, 2012, she appeared to have a claim-related Adjustment Disorder and she was seen to be employable although I indicated that she would be restricted to not working with a male supervisor and that she have a graduated return to work. This was complicated by a previous history of anxiety, depression, and childhood trauma. She has had a more recent pregnancy and the birth that was anticipated of her next child. There is no convincing evidence that the claimant was totally disabled or currently is totally disabled even though she has anxiety that may 'hinder' her. Having remote (sic) from instigating trauma anxiety and depression for many reasons would not be a barrier that would prevent employability by itself. She was not unemployable when I saw her for the call in examination…The VR plan with being in retail sales appeared appropriate although the claimant chose training as an educational assistant.

In a decision dated May 5, 2016, the worker was advised that based on the opinion provided by the WCB psychological consultant, it was the case manager's opinion that the worker no longer had a loss of earning capacity in relation to her workplace injury of February 10, 2011, and the vocational plan for NOC 6421, Retail Sales remained appropriate. On May 6, 2016, the worker appealed the decision to Review Office.

On June 9, 2016, Review Office determined that the worker was not entitled to wage loss benefits beyond September 3, 2012.

Review Office noted that the worker experienced psychological difficulties, including anxiety, depression and childhood trauma and had experienced previous difficulties with males in her life. Review Office accepted that the workplace accident caused the worker's symptoms to temporarily become worse. However, the worker demonstrated a functional psychological ability to return to work when she was seen by the WCB psychological consultant in 2012. Attending and passing her schooling and completing the practicum work showed that the worker had returned to her baseline functioning as of September 4, 2012. Review Office did not accept the worker's recent comments that her psychological difficulties were still predominantly related to the claim.

Review Office noted that the worker was cleared to return to her pre-accident work in the retail sector. This along with her non-participation in the VR plan should have ended her entitlement to wage loss benefits. The worker's loss of earning capacity beyond September 3, 2012 was not related to the claim but rather to her decision to pursue an education not in keeping with the VR plan. The worker was therefore not entitled to wage loss benefits beyond that time.

On November 17, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. With respect to wage loss eligibility, the Policy states:

(a) When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker's Position

The worker was self-represented, and was accompanied by her husband at the hearing. The worker provided a written submission in advance of the hearing, and made a presentation to the panel. The worker and her husband responded to questions from the panel.

The worker's position was that she still suffers from psychological problems as a result of her workplace accident and injury.

The worker submitted that she never had a chance to get better. She still gets anxious and depressed. She said that she suffers from PTSD and depression. Since her wage loss benefits ended, she continues to have problems and is still dealing with counsellors, psychologists and psychiatrists, and seeing her family doctor.

The worker said that she was pressured to go through the vocational rehabilitation plan. She said that she completed her course, and tried working one day as an educational assistant, but found it overwhelming and has not worked since then. The thought of working anywhere scares her, as she does not want to end up in the same type of situation as she was in on February 10, 2011.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after September 3, 2012. For the worker's appeal to be successful, the panel must find that the worker continued to suffer a loss of earning capacity after September 3, 2012 as a result of her compensable injury. For the reasons that follow, the panel is unable to make that finding.

Based on our review of all of the evidence, on file and at the hearing, the panel finds that the worker's ongoing difficulties and inability to work after September 3, 2012 were due to her own choices and/or non-work-related or non-compensable conditions, as opposed to her compensable injury.

The worker has a compensable diagnosis of Adjustment Disorder with anxiety and depressed mood. The panel accepts that diagnosis. The worker also has a significant number of pre-existing, non-compensable conditions as identified in the file.

The panel places weight on the report of the WCB psychological consultant who conducted a call-in examination of the worker on June 27, 2012, and found that the worker had a resolving Adjustment Disorder and was fit to begin a graduated return to work, with a restriction that she not work with a male supervisor.

A vocational rehabilitation assessment was done and a plan for NOC 6421, Retail Sales was identified for the worker. The evidence shows, however, that the worker did not want to work retail and wished to pursue a different career. Information on file indicates that as of May 17, 2012, the worker had told Case Management that the pressure of having to go back to work was bothering her, that she had made up her mind to go back to school, and she had no motivation to do otherwise.

The worker registered for classes and started school full-time at the beginning of September 2012. In a note dated September 6, 2012, the WCB psychological consultant stated that: "As the [worker] has demonstrated her stamina for full-time learning, I do not see a need for graduated return to the workplace as had been anticipated in the earlier Call In Examination conclusion."

In a further note dated September 26, 2012, the WCB psychological consultant stated that the worker was "clearly fit for employment. She is fit for WCB based vocational rehabilitation although she herself has chosen her own direction and that was to return to school."

The worker was able to attend and successfully complete the course for an educational assistant, as well as a one-month practicum after that. Asked at the hearing how she had done, she said that she "actually did very well." She said that some days were hard, and she did get anxious, but she had set her mind to do it, and finished the course and the practicum. The panel is of the view that the worker's successful completion of the course further demonstrates that she was able to be gainfully employed.

The panel places weight on and agrees with the opinion of the WCB psychological consultant on May 4, 2016, that "The VR plan with being in retail sales appeared appropriate although the claimant chose training as an educational assistant. The call in examination findings that I reported on from the examination June 27, 2012 would clearly be permissive of the direction that had been planned for and, the direction she chose to have training in, as an Educational Assistant."

The panel also places weight on a letter from a counsellor dated April 8, 2016, in which the counsellor wrote that she had met with the worker on five occasions between February 20 and May 22, 2014, and the worker:

…presented with symptoms of depressed mood and anxiety, and though the workplace incident was identified as a stressor, this was only one of a number of psychosocial stressors that informed working at strengthening anxiety management strategies and improving coping skills as our focus.

The panel notes that while file information indicates that the worker had agreed to do job search for retail sales positions while she attended school, her efforts in this regard appear to have been minimal, at best. At the hearing, she said that she did not go for any job interviews and did not think she even did any resumes, and added that she did not want to work retail.

The panel further notes there were several indications by the worker, in information on file and at the hearing, that she would rather be at home, that she does not want to leave her young children or to leave the house and that "I like just kind of tending to my own thing…I like to be by myself."

The panel notes that the worker had said that she suffers from PTSD. In that regard, the worker had provided an encounter note from her family physician dated April 26, 2017 which refers to a diagnosis of PTSD. The note contains no clinical findings to support that diagnosis, and is not substantiated by other information on file. The diagnosis was not provided by a psychiatrist or psychologist, and the panel is unable to accept that diagnosis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had essentially returned to her baseline or pre-accident status and her compensable injury was not contributing to a material degree to a loss of earning capacity.

The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity after September 3, 2012 as a result of her workplace injury, and the worker is not entitled to wage loss benefits after September 3, 2012.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of June, 2017

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