The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss benefits after April 26, 2017. A hearing was held on December 11, 2017 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 26, 2017.

Decision

The worker is entitled to wage loss benefits after April 26, 2017.

Background

The worker was involved in a motor vehicle accident on October 5, 2013. He filed a claim for a psychological injury with the WCB and it was accepted.

At an examination on October 29, 2013, the worker's physician reported:

When assessed on October 29, 2013 he seemed much improved in terms of his mood. His sleep pattern had improved significantly and he actually volunteered that he felt willing to return to work. This has been arranged to commence as of November 6, 2013.

The worker attempted to return to work on November 6, 2013 but was unable to continue. The WCB referred the worker to a psychologist for treatment. The psychologist examined the worker on December 7, 2013 and diagnosed the worker with "Post Traumatic Stress Disorder (PTSD) in relation to the motor vehicle accident in which he was involved on October 5, 2013. In addition, he is experiencing a Major Depressive Disorder (MDD), anxiety attacks, and a number of additional somatic symptoms."

On June 2, 2014, the psychologist, in response to questions asked by the WCB, reported the worker's current diagnosis as:

• PTSD, Mild (309.81) 

• Major Depressive Disorder, Single Episode, Mild (296.21)

When asked for her opinion regarding the worker's ability to participate in work related activities, the psychologist noted:

3) Opinion regarding worker's ability to participate in work-related activities at this time. 

a. In my opinion, [the worker] is ready to return to work on a graduated return schedule. During his last session with me on May 28, 2014, we reviewed his job description together and could find no work-related activities on this list that he would be unable to perform. He would likely need to begin with part-time hours and gradually work up to full-time hours, but his current energy level is improved to the extent that I can foresee him being able to return to full-time hours within approximately 4 - 5 weeks of beginning the return-to-work process. There is the possibility that his concentration may be slightly decreased compared to his pre-accident level, and this might mean that he takes a little bit longer to complete paperwork, for example, although I suspect this would also be temporary as he re-adjusts to being back in the workplace.

4) Outline whether there are workplace restrictions, the nature of same, and the associated timeframe to review. 

a. The only restriction I would place upon [the worker] with regard to returning to the workplace would be that the hours should not be full-time initially. I would recommend a schedule such as the following for the first 4 weeks: 

i. Week 1: M, W, F: 4 hour shifts 

ii. Week 2: M, T, Th, F: 4 hour shifts 

iii. Week 3: M, T, W, Th, F: 4 hour shifts 

iv. Week 4: M, W, F: 8 hour shifts and T, Th: 4 hour shifts 

v. Week 5: Return to full-time hours

b. This schedule should be reviewed on a weekly basis during the return-to-work period.

The worker's employer was advised of the graduated return-to-work schedule by the WCB on June 3, 2014. The WCB was advised by the worker's employer that the worker's employment was terminated effective June 16, 2014. On June 25, 2014, the WCB advised the worker that his wage loss benefits were ending on July 7, 2014 as it was determined that since the worker's psychologist had deemed him fit to return to work on a graduated basis, he no longer had a loss of earning capacity.

On July 25, 2014, the worker was advised by his employer that he would no longer be allowed to participate in volunteer activities, including search and rescue, canine search and rescue and instruction or training at their college. The worker's psychologist advised on August 11, 2014 that the discontinuation of the worker's volunteer participation by his employer "…has had a very detrimental effect on [the worker] and has contributed to a reoccurrence of the Major Depressive Disorder as well as to an exacerbation of the PTSD which originally arose in response to the accident at work on October 5, 2013." She went on to further note "I am concerned that [the worker] is not currently able to function adequately or safely in his workplace and should be off work until he recovers from his recent significant setback."

A WCB psychology consultant reviewed the worker's file on August 14, 2014 and gave the following opinion:

[The treating psychologist] opined that the loss of his job and his other volunteer activities disrupted this process and, as well, resulted in an exacerbation of symptoms, such that his Major Depressive Disorder likely was severe at the time of her most recent report of August 11, 2014. This opinion that there is a relationship between the original CI [compensable injury] and the current diagnosis does appear to be reasonable, given that the claimant had not fully recovered from his compensable diagnoses at the time of his return to work. Based on the verbal and written information provided by [the treating psychologist], the current diagnosis is Major Depressive Disorder, Single Episode, possibly Severe. As well, Post-Traumatic Stress Disorder is present - level of severity unclear but greater than mild.

On September 17, 2015, a WCB psychologist examined the worker and reported:

It does appear that [the worker's] primary source of distress at this time is related to his having been dismissed from his employment. He indicated that the union to which he belongs is claiming wrongful dismissal and that he very much wants to work…A review of file documentation reveals that he regressed only after he was told that he would not be able to return to his job with the [accident employer] in any capacity.

The worker was seen by a further WCB psychologist on January 9, 2017 who noted:

[The worker] has not recovered from his workplace accident. It is recommended that a further 12 sessions with [the worker's psychologist] be funded by WCB.

[The worker] would like to return to work. From a psychiatric perspective, the writer supports [the worker] returning to work. Restrictions are: no work situation in which trauma can be reasonably expected to occur.

The WCB advised the worker on January 31, 2017 that he was entitled to wage loss benefits to April 26, 2017. The WCB determined that his employer would have accommodated the restrictions on his return-to-work had he not been terminated from his employment and provided the worker with 12 weeks of wage loss benefits.

On April 3, 2017, the WCB's psychologist clarified the worker's restrictions:

6. In January 2017, the writer commented that a restriction would be to not work in a situation where trauma could reasonably be expected to occur. For further clarification, it is recognized that a traumatic situation could theoretically occur in many situations, whether at work or outside work. There is, however, an expectation and understanding that within reason, there are some occupations where there is a low likelihood that in the normal course of employment, there is a low risk of a traumatic event occurring. This would be the nature of [the worker's] restriction.

7. This is a temporary restriction, and should be reviewed in 6 months.

On April 10, 2017, the WCB further advised the worker that his current status and restrictions would not preclude him from working and that there was no change in their decision that he was entitled to wage loss benefits to April 26, 2017.

The worker's representative requested reconsideration of the WCB decision with the Review Office on April 10, 2017 stating, in part, "…he continues to have a loss of earning capacity as a direct result of his compensable injury."

In its decision of June 21, 2017, Review Office determined that the worker was entitled to wage loss benefits beyond April 26, 2017 as they found that the worker was not capable of a formal return to work at 40 hours per week at the time of the decision.

On June 21, 2017, the employer's representative filed an appeal of the decision with the Appeal Commission. A hearing was held on December 11, 2017.

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 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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" 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, or the worker attains the age of 65 years.

Section 22 of the Act provides that the worker must take reasonable steps to reduce or eliminate any impairment or loss of earnings. It provides that the WCB may reduce or suspend compensation payable to the worker.

Subsections 49.3(1) to 49.3(16) deal with the employer's obligation to re-employ a worker injured in an accident.

WCB Board of Directors' Policy 43.20.25, Return to Work with the Accident Employer, outlines the WCB's approach to the return to work of injured workers.

The employer is appealing the WCB Review Office decision that the worker is entitled to benefits beyond April 26, 2017.

Employer's Position

The employer was represented by its Workers Compensation Coordinator and the Chief Commissioner of the agency.

The employer representative stated that it is the employer's position that the worker is not entitled to wage loss benefits beyond April 26, 2017. He added that based on their review and analysis of the file, it is the employer's position that the worker likely should not have been entitled to any wage loss benefits as of June 16, 2014, following the termination of employment with the employer.

The employer representative acknowledged the severity of the incident and the initial level of impairments sustained by the worker. However, he submitted that the evidence provided by the worker’s clinical psychologist to the WCB, dating back to April 3, 2014, suggests the worker’s situation had greatly improved. He noted that the worker was capable of beginning a return to work process, and his psychologist had indicated that a gradual return to work would be in the worker's best interest. He submitted that by June 2, 2014, there was information from the worker’s clinical psychologist reporting that the post-traumatic stress disorder diagnosis was mild, and the depressive disorder was mild.

The employer's representative noted that in September 2015 the WCB's clinical psychologist conducted a call-in exam and provided the opinion that the worker's primary source of distress at that time was related to his having been dismissed from his employment and that his symptoms appeared to be primarily related to his having been dismissed from his work.

The employer's representative noted that an analysis conducted by the clinical psychologist could find no work-related activities on the list of proposed job duties that the worker would be unable to perform.

The employer representative acknowledged that although the worker was considered fit to return to some level of duties, the employer had terminated his employment effective on June 16, 2014. He noted that an arbitrator upheld the employer's decision to dismiss the worker for misconduct. He stated that:

The employer at that time relied on 49.3(9) of the Act, specific to layoff and termination, in determining that it would not consider re-employing the worker.

With respect to the worker's ongoing entitlement, the employer representative argued that the worker's psychologist attributed the worker's condition, in part, to the loss of employment as one of the reasons the worker has had continuing issues. The worker's psychologist indicated that the worker's primary source of distress is related to having been dismissed from his employment. He noted that the evidence suggests that the worker took a significant turn for the worse following his dismissal. He said this is not compensable.

The employer representative noted that the worker's submission indicated that the worker has resumed gainful employment. He said the information suggests that the worker is capable of earning at least or even greater than his pre-accident earnings. The employer representative advised that the employer was not aware that the worker was working and noted that this establishes that he can earn an income.

Worker's Position

The worker was represented by a union representative. The worker's wife attended to support the worker and answered questions from the panel.

  The worker's representative submitted that:

…it’s our opinion the employer’s appeal should be dismissed. It’s our position [worker] is entitled to wage loss benefits beyond April 26, 2017. He has continued to have a loss of earning capacity which was, on a balance of probabilities, a consequence of his psychological injury.

The worker's representative identified the steps that the worker has taken to return to the workforce. The worker's representative noted that the worker's psychologist confirmed that he was not yet ready to engage in full-time employment as of April 2017. He submitted that the worker's psychologist opinion supports their view that the worker was totally disabled as of April 2017 and ongoing.

He also noted that the WCB's Psychiatric Advisor advised that further treatment was required before contemplating a return to work.

Regarding section 49.3, the worker's representative commented that:

the evidence on file confirms the employer never intended to accommodate [worker] after his accident.

He stated that:

We suggest that this decision to terminate [worker] effectively removed his ability to mitigate the loss that was stemming from his compensable injury, and we’ve argued consistently that this is contrary to the employer’s obligation to re-employ.

He commented further:

So regardless of the obligation of re-employ or not re-employ, I would argue the loss of earning capacity persists because there is no accommodation possible.

The worker provided information on his employment with the employer including information on a part-time positon he had with the employer prior to his fulltime position. He also answered questions regarding his activities and his condition after the accident. The worker confirmed that he had returned to truck driving but had difficulty with this and ceased driving in December 2017.

Regarding section 49.3 of the Act, the worker's representative submitted that:

…it’s relevant in the context that the initial adjudication decision was, had [worker] not been terminated, he would have been medically cleared for some work, and some work, meaning the employer, the accident employer, would have accommodated. So I believe that the relevance, the termination, the section 49.3 list, it begs the question, okay, if he hadn’t been terminated, would there actually have been an accommodation possible?

In response to a question about the worker's entitlement to benefits, the worker's representative stated:

It would be our position that he would be entitled to wage loss for any periods of total disability, but also, because the termination occurred in relation to the injury, to the accident, then that would mean that any loss of earnings would still be attributed to the accident.

The worker's representative submitted that:

He’s had an injury, and as we suggested, there’s ongoing evidence of that compensable injury, regardless of the termination. As long as he cannot return to work he should be entitled to benefits, irrespective of what the employer’s decision was.

The worker's representative responded to a comment about whether the worker having removed himself from his employment due to his conduct, also removed himself from his employment rights. He disagreed and stated that the worker had not done anything that had caused his termination. He said it was the employer who made the decision to terminate the worker.

Regarding the application of section 22, the worker's representative submitted that the worker has done everything that he could do to work towards recovery and gainful employment.

Analysis

The worker has an accepted claim for a workplace injury.

The employer is appealing the WCB decision that the worker is entitled to wage loss benefits after April 26, 2017. The employer submits that the worker is not entitled to wage loss benefits after April 26, 2017 because he was fit to perform his employment duties and would be employed had he not removed himself from his employment through his conduct. The employer submitted that the worker was dismissed for cause and is not entitled to further wage loss benefits. In other words, the worker has failed to mitigate his loss.

For the employer's appeal to be approved, the panel must find, on a balance of probabilities, that the worker was fit to return to his work or modified work on April 27, 2017. The panel is not able to make this finding. The panel finds, based upon the information in the claim file and the information provided at the hearing, that the worker was not fit to return to work, of any kind, as of April 26, 2017. The panel finds that the worker sustained a loss of earning capacity on April 26, 2017 as a result of the workplace accident.

In making this decision the panel accepts that the worker was terminated from his employment, for cause, as determined by an independent arbitrator in accordance with the provisions of a collective agreement. However, the panel finds that the worker's loss of earning capacity, as of April 26, 2017, was due to his compensable medical condition and resulting inability to perform work of any kind. In reaching this decision, the panel relies upon the evidence of the WCB psychiatric consultant and the worker's psychologist.

On January 9, 2017, the worker was examined by a WCB psychiatric consultant who opined that:

The worker has not recovered from his workplace accident. It is recommended that a further 12 sessions with [psychologist] be funded by the WCB.

On March 29, 2017, the worker's treating psychologist provided a Psychological Treatment Update. The psychologist diagnosed the worker with:

- Posttraumatic Stress Disorder, Acute (309.81) 

- Major Depressive Disorder, Single Episode, Severe (296.23)

On October 2, 2017 the worker attended his treating psychologist who reported that the worker had deteriorated, in that he was struggling with long-distance driving more.

The panel notes the worker had no history of depression or post-traumatic stress disorder prior to the October 2013 workplace accident.

The panel finds that the worker's diagnosis of PTSD is related to the compensable injury. The panel finds that the evidence on file is consistent with the panel's understanding of PTSD as being a condition that can be variable. The panel notes that the worker may be entitled to further benefits when his condition causes a complete loss of earning capacity (i.e. is totally disabling), as determined by the WCB.

In conclusion, the panel finds that the worker is entitled to wage loss benefits after April 26, 2017.

With respect to the discussion at the hearing regarding the employer's obligation to re-employ workers under Section 49.3 of the Act and whether this confers any rights or benefits on the worker, the panel finds that the application of this Section is not before it. The panel notes that WCB Policy 43.20.25, Return to Work with the Accident Employer, provides a process for adjudication of this section and that the parties have not commenced the process set out in the policy.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of February, 2018