The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her psychological difficulties were not related to her compensable accident and she was not entitled to further wage loss or medical aid benefits. A hearing was held on September 25, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss or medical aid benefits.

Decision

That the worker is not entitled to further wage loss or medical aid benefits.

Background

In May 2015, the worker filed a claim with the WCB for stress which she related to a sexual assault that occurred on May 7, 2015, when she attended the home of a client. The worker advised that she also had a separate WCB claim for a sexual assault that occurred on April 23, 2015. The worker further stated:

These incidents have caused a great deal of stress. I don't sleep. I sleep on the couch. I am mad. This should have not have happened. I wonder how they screen their clients. Now that this has happened three times, I do not feel my employer has proper supports in place. It is not fair.

On May 12, 2015, the Employer's Accident Report confirmed the May 7, 2015 incident as described by the worker.

On May 19, 2015, the worker advised a WCB adjudicator that when she saw the client on May 7, 2015, this was her first visit with him. Following the incident, she went to the police station and filed a report. She missed the next day from work and returned to work on May 11, 2015. The worker indicated that her employer arranged for her to work with female clients or husband and wife clients only. The worker noted that she would be following up with her doctor that week and was continuing with EAP that was set up on her previous claim from April 23, 2015.

On May 26, 2015, the worker's claim was accepted for an acute stress reaction in relation to the May 7, 2015 traumatic event and wage loss benefits were paid for May 8 to 10, 2015 inclusive.

On June 2, 2015, the worker contacted the WCB to advise that she was not doing well and was frustrated with her employer. She said that EAP was not helping and she wanted to be referred to a psychologist. She said she missed part of her shift on May 20. The worker indicated that she was called into a meeting. She was upset afterwards because her employer had called her into the meeting, then expected her to make it back to her client across the city, knowing she takes a bus. The adjudicator explained to the worker that the WCB would not cover wage loss for this day as it was not related to the workplace incident.

On June 11, 2015, the worker advised the WCB that she had been off work that week due to her symptoms of stress related to the assaults. She explained that she had been pushing herself to go to work but just wasn't feeling herself. She noted that she was throwing up when getting off the bus to attend clients and had been very tearful. The worker confirmed there had been no further incidents since May 7 and she had been working solely with female or husband and wife clients. Despite this, she felt very uneasy and experienced anxiety when entering elevators, etc.

By letter dated June 11, 2015, the WCB pre-authorized up to four counselling sessions with a psychologist. In a report to the WCB dated July 16, 2015, the treating psychologist noted that the worker's main reason to seek psychological assessment was that she was looking for support around her workplace accommodation. The worker was hoping her employer would find her an alternative placement so she did not have to work directly with clients. The psychologist opined that the worker's current psychological condition was best described as Adjustment Disorder with Anxious and Depressed Features, secondary to workplace stress, including two alleged sexual assaults.

File information showed that the worker provided the WCB with updates concerning her psychological status in July and August 2015. File records also showed that the WCB requested medical information from the worker's family physician whom she saw in June 2015, but as of October 5, 2015, the WCB had not received a report.

In a decision dated October 5, 2015, the worker was advised that based on the lack of medical information, the WCB was not able to issue wage loss benefits for the time loss from work during the month of June 2015. The decision also stated: "We understand that you would prefer to continue treatment with the psychologist [name], however you have not attended any further sessions with him or advised of any referrals to a female psychologist. Please contact us to advise if any further treatment is sought."

In January 2016, the WCB received a narrative report from the worker's family physician, and on March 18, 2016, a report was received from a second clinical psychologist.

In a decision dated May 27, 2016, the worker was advised that no responsibility would be accepted for wage loss beyond May 10, 2015. The decision stated, in part:

…Compensation Services is of the opinion that you sustained an acute stress reaction to the traumatic event you were involved in on May 7, 2015. The WCB accepts that the incident occurred as stated, and wage loss was authorized from May 8 to 10, 2015 inclusive. No responsibility for wage loss will be accepted beyond May 10, 2015 as you continued to work until going off due to a knee injury, for which you were covered by WCB. Based on the medical information received, Compensation Services is of the opinion that, on a balance of probabilities, your current psychological symptoms are unrelated to the May 7, 2015 workplace incident.

On September 1, 2016, the worker's union representative appealed the May 27, 2016 decision to Review Office. The representative submitted that the worker was entitled to further benefits because she continued to suffer ongoing effects of her compensable psychological injury, which necessitated both time off work and treatment. In support of this position, reference was made to the medical information on file as well as file correspondence dated June 2, June 11, July 23 and August 13, 2015 and February 19, 2016, in which the worker provided details of ongoing psychological symptomatology in relation to her compensable assaults. The representative submitted that the evidence supported that the assaults the worker experienced in the course of her employment resulted in a persistent condition which the WCB had failed to recognize.

On November 2, 2016, the employer's representative wrote Review Office stating they agreed with the WCB decision that the worker was not entitled to wage loss benefits beyond May 10, 2015. The representative stated, in part, that there was no evidence indicating that the worker could not work as a home support worker due to this claim. The evidence showed the worker had long wanted to transfer to an office position but failed to meet the minimum requirements. Her psychological difficulties were due to long-standing personality features which were pre-existing and unrelated to the events of May 7, 2015.

On November 15, 2016, the union representative commented on the employer's September 1, 2016 appeal submission.

On November 29, 2016, Review Office determined that the worker was not entitled to further wage loss or medical aid benefits. Review Office noted that the worker had an acceptable claim for an incident that occurred on April 23, 2015, and missed two hours of work. She then reported the second incident on May 7, 2015. Both claims involved inappropriate behaviour by male clients. The worker returned to work on May 11, 2015.

Review Office found the medical evidence on file did not support a causal relationship between the worker's current psychological difficulties and the May 7, 2015 workplace injury. It said the file evidence showed the worker had workplace issues prior to May 7, 2015, including wanting an alternate position which did not involve working with clients. It found that the lack of medical attention sought between July 2015 and December 2015 was significant, in that there was an absence of evidence to support that she continued to have psychological difficulties related to the May 7, 2015 accident.

Review Office found that the psychologist's recommendations for alternate employment were not due to the May 7, 2015 workplace injury. The psychologist in July 2015 did not impose a restriction on the worker, but rather suggested the worker's stress levels would be reduced by not working directly with clients. He was also of the opinion her stress levels were related to having to work with clients and feeling inadequately supported by her employer.

The psychologist in December 2015 was of the opinion the worker was stressed by her employment circumstances on many levels. He saw her as needing alternate duties for many reasons, not all of which were due to employment related matters. Review Office determined the worker did not have a loss of earning capacity from June 8 to June 12, 2015, or beyond October 2, 2015 (after recovery from her knee injury), related to the May 7, 2015 workplace injury.

On March 14, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on September 25, 2017.

Following the hearing, the appeal panel requested additional information. The requested information was received and was forwarded to the interested parties for comment. On November 29, 2017, the panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

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.

Under subsection 4(2), 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 27(1) of the Act states that the WCB "…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."

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.

Worker's Position

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

The worker's position was that she continues to suffer psychologically from being sexually assaulted in the performance of her job duties, and is entitled to further benefits.

The worker spoke of three separate incidents where she was sexually assaulted at work. She said that the first incident, in 2009, was handled well. She reported it to her then coordinator, the couple she had worked with was removed from her schedule, and she went to EAP at the coordinator's insistence.

The worker said that the second and third incidents were more traumatic. She was very angry after the second incident, which occurred on April 23, 2015. She called her coordinator after she went home and was told it was a workplace safety and health issue and not to tell anyone.

With respect to the third incident, on May 7, 2015, the worker said that she knew something was going to happen; she dreaded going into the building that day, and did not want to be there. As soon as she walked into the client's apartment, he was all over her. She ran out the door and went straight to the police station. She spent 14 to 15 hours at the police station, and called her coordinator from there. Her coordinator did a complete reversal, and said she should call on her supports. The worker said she was in utter disbelief after she was interviewed, when the detective said the two men would never see the inside of a courtroom, and that she was "beyond furious" when she later learned that the police had not referred either of the 2015 incidents to the Crown for prosecution. The worker said that no one has the right to touch her in that manner and get away with it.

The worker said she went back to work for fear of retribution. She acknowledged that she was assigned women and couples only following the May 7, 2015 incident. She said that she asked what she was supposed to do if the woman was not there, and the response she received was "run."

The worker stated that the treating psychologist had said that he would not meet with her for a fourth session, and that she should see a female practitioner, but he did not recommend one, and she was left to her own devices. Her doctors could not find anyone for her to see. She went to EAP and a health care centre, but they are limited in what they can do and she was essentially left without resources. She could not afford to see a psychologist or psychiatrist on her own, and such assistance should have been made available to her.

The worker submitted that she did everything the employer and the WCB told her to do, yet in the end her employment was terminated. She has no income coming in, and no support. She said she is clinically depressed, and that four doctors have confirmed that she suffers from PTSD because of the sexual assaults. She is not the person she used to be, and is scarred for life because she was assaulted while performing her job duties.

The worker submitted that the employer and the WCB had a duty to compensate, accommodate and re-educate her, and that her appeal should be granted.

Employer's Position

The employer was represented by an advocate and by the employer's WCB Coordinator.

The employer's position was that the worker's psychological difficulties were not related to the May 7, 2015 claim, and she is therefore not entitled to further benefits.

The advocate noted that the date of injury was May 7, 2015, wage loss benefits were paid from May 8 to 10, and the employer immediately accommodated the worker by assigning her female clients or husband and wife clients only. The worker returned to work and continued to work in that capacity until June 11, 2015, when she advised the WCB that she was experiencing difficulties. The WCB authorized four counselling sessions. The worker attended three of those sessions, but did not go back for a fourth. She continued working without complaint to August 25, 2015, when she filed a further claim for a knee injury. She was then off work from August 25 to October 2, 2015 due to her knee injury.

The advocate noted that the worker did not go back to work in any capacity once the knee claim ended, even though the accommodation of seeing only female clients or couples remained available to her. The worker told the WCB she was off work at that time because of psychological issues, but did not seek any further medical treatment. It was submitted that there is no medical evidence of disability related to the 2015 claim. There is, however, information indicating that the worker could not work because of a number of other concerns unrelated to this claim.

It was submitted that in an attempt to understand the worker's situation and accommodate her, the employer referred her to a psychologist, who reported that she showed evidence of a number of psychological conditions, "irrespective of whether or not she was assaulted in the workplace." The advocate noted that the worker had been seeking an alternate position with the employer for a long time, starting in 2011, when she requested a clerical position. The employer was not averse to moving her to a desk job, but testing showed that she did not meet the requirements for a clerical position. The advocate submitted that there was no evidence of a need for an alternate placement, but that even if there was such a need, it was due to life circumstances and long-term psychological and health issues and not to the May 7, 2015 incident or injury.

It was submitted that the employer tried diligently to accommodate the worker, but given the number of restrictions she had due to non-compensable factors, no position could be found and she was released from her employment in December 2016. The advocate emphasized that it was only after all attempts to find another accommodation had been exhausted that the worker's employment was ended.

In conclusion, it was submitted that based on the medical information on file, the decision that the worker was not entitled to further wage loss or medical aid benefits was appropriate, and the appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further wage loss or medical aid benefits. For the worker's appeal to be successful, the panel must find that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of her May 7, 2015 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The panel acknowledges that the workplace incident occurred, and confirms that the claim has been accepted for an acute stress reaction in relation to the May 7, 2015 traumatic event. The panel accepts that the worker required a few days off work following the incident, and wage loss benefits were accordingly paid from May 8 to 10, 2015. Based on the evidence before us, the panel is unable to find, however, that the worker suffered a further loss of earning capacity due to her compensable injury.

The evidence shows that the worker returned to work on May 11, 2015 with no restrictions relating to her May 7, 2015 claim. There is no dispute that the employer adjusted the worker's schedule at that point so that she was assigned only female clients or husband and wife clients. The panel notes that with the exception of the week of June 8, 2015, the worker continued to work with this arrangement up until August 25, 2015 when she suffered a knee injury. While the worker has said that she was off work the week of June 8 due to stress related to the sexual assaults, the panel notes that there is no medical evidence to support the worker's position.

The worker was then off work due to her knee injury from August 25 to October 2, 2015, and was paid wage loss benefits on that claim. The worker did not return to work after that claim ended. The worker's evidence at the hearing was that the knee injury was done at that point and the reason she did not return to work in October was because she was suffering from the effects of the assault. The worker went on to state, however, that she was walking with walking sticks for almost a month, into November, noting that she "had two walking sticks and a backpack, and they expect me to go to work to, to do my job as a direct service staff." When asked why she did not go back once she no longer needed the walking sticks, she said that "I tried…I can't tell you, all I can tell you is that I've done everything that the employer has asked me."

The panel finds that there is a lack of evidence to support that the worker was unable to return to work or had ongoing symptomology in October 2015 due to the sexual assaults.

Information on file indicates that the employer attempted to accommodate the worker in a distribution centre in early 2016. The worker's evidence at the hearing was that she looked at it and said she could not do that work because of her fibromyalgia and her eyesight. The worker described this as a "maladjusted, misconstrued accommodation that should never have happened." She had to travel by bus to get there, but there was no bus at the end of her shift and she had to walk home. The worker said she worked there for about a month, in February or March 2016, but physically could not do it.

Based on our review of all of the evidence, the panel is of the view that the worker presented a number of barriers to returning to work, none of which were related to her compensable injury. The employer initially accommodated the worker by not assigning her to lone male clients. The worker worked with that accommodation for a period of time, then later indicated she would not work with clients. The worker was subsequently accommodated in the distribution center, where there was no client contact, but found this to be unsuitable. The panel notes that there is no indication on file that the worker could not work, and no medical indicating that the worker had any restrictions with respect to her May 7, 2015 compensable injury.

The evidence indicates that the worker had an increasing hatred for her job, and was seeking an accommodation in terms of what she wanted and felt she was entitled to. In response to questions at the hearing, the worker stated that "I can go back to my job if I had the opportunity to, but not in the same capacity that I had." When asked in what capacity she could go back, she stated "I can't tell you, I don't know, I can tell you personally what I would like." The worker further stated that "I would love to be a member of the [employer] in a different capacity, but I will not do, I cannot do direct service stuff and working with the clients because I'm totally spooked, spooked. After 30 years, I'm totally spooked."

The panel places weight on the July 16, 2015 report from the treating psychologist, who noted that the worker's "main reason to seek psychological assessment at this point is that she is looking for support around her workplace accommodation" and that specifically, she "is hoping that [the employer] will find her an alternative placement so that she does not have to work directly with clients." The psychologist noted that the worker was "very direct in terms of her request that I help her obtain the accommodation she strongly believes she needs and deserves." The psychologist concluded:

In terms of my recommendations, from a psychological point of view, [worker] would clearly benefit from not working directly with clients. She is feeling very strongly about that request, and if such an accommodation were possible, she would likely benefit from it. I have some reservations about her ability to be effective in an office job at this point because of her memory and concentration difficulties that were evident in the session, but this might improve if her stress level deceases (sic) (and her stress level is likely significantly related to both having to work with clients and feeling inadequately supported by her employer).

The panel further notes that the worker was able to engage in different activities with other people. The worker's evidence at the hearing, for example, was that she had been taking several university courses over the past year, including a one week full immersion course at a location away from the city, which she described as amazing. The worker indicated that there were approximately 30 participants in the immersion course, and they travelled to the location by bus and stayed there for the week.

The panel also notes that while the medical evidence indicates that the worker likely has some mental health issues, we are satisfied that those issues are not related to the assaults or her compensable injury. Although the worker submitted that four doctors had confirmed that she had PTSD, this is not supported by the medical information on file. In particular, there is no diagnosis of PTSD on file. Further, in response to a question as to who these doctors were, the worker indicated that two of them were new; that she was waiting to see them, and had only met one of them so far.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further medical aid as a result of her May 2015 workplace accident. The worker is therefore not entitled to further wage loss or medical aid benefits.  

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of January, 2018