Decision #52/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is not entitled to benefits after January 27, 2017. A hearing was held on January 30, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after January 27, 2017.
That the worker is not entitled to benefits after January 27, 2017.
The worker filed a claim with the WCB for an injury to her middle back that occurred on May 6, 2013. The worker reported:
I was walking with my student back into the alternate work space. I had taken a couple of steps ahead of him. He has a tendency to rage. He raged and went flailing at me at my back from behind. He landed several blows to my back.
Information submitted by the employer was that a 7-year old student hit and punched the worker a few times before she managed to get him under control.
On May 9, 2013, the worker attended a physiotherapist for complaints of mid to low back pain. The diagnosis outlined was a soft tissue strain. When seen by her family physician on May 10, 2013, the worker was diagnosed with major depressive order - relapse.
On May 13 and 14, 2013, a WCB adjudicator spoke with the worker regarding the May 6 incident. The worker said she had worked with the same child since February 11, 2013 and there were daily incidents. She would not do an incident report every day, but maybe once a week. The worker reported that she had a pre-existing condition and her family physician was handling it.
On May 17, 2013, the family physician reported that the worker was initially treated for generalized anxiety disorder in 2007, and that her mood and symptoms had been stable until January of 2011, when her anxiety worsened. The worker restarted taking medication in August of 2012, and despite this, there was a marked worsening of her mood as a result of being assaulted on May 6, 2013.
In May and June 2014, the worker attended a clinical psychologist and was diagnosed with post-traumatic stress disorder ("PTSD"). The psychologist recommended that the worker receive cognitive behaviour therapy to decrease anxiety and depressive symptoms and ultimately assist with a return to work.
On June 26 and 27, 2013, the worker was seen by a second psychologist who stated:
[Worker's] current diagnostic picture suggests that she is experiencing Posttraumatic (sic) Stress Disorder (PTSD) in relation to the events at…school. In addition, she is experiencing a recurrence of a pre-existing Major Depressive Disorder (MDD), and this appears to have been exacerbated by the events at…school.
With regard to PTSD, the May 6, 2013 incident at…school meets DSM-IV-TR Criterion A for PTSD, in that [worker] was physically attacked, with resulting bruises and scratches, and she reported fearing for her life if she had not been able to get and keep the boy in the calming room. Since the event, she has experienced the classic pattern of re-experiencing (i.e., intrusive memories and dreams, emotional and physiological reactivity to reminders), avoidance symptoms (i.e., places, activities), numbing symptoms (i.e., loss of interest, interpersonal detachment, restricted range of affect), and hyperarousal symptoms (i.e., sleep difficulties, irritability, concentration difficulties, hypervigilance, and exaggerated startle response)…
With regard to the recurrence of her Major Depressive Disorder (MDD), this pre-existing condition appears to have been exacerbated by events at…school…
Treatment may be complicated by the presence of traumatic childhood memories which have begun intruding into [worker's] thoughts recently. These childhood memories likely also will need to be addressed within the context of trauma-focused treatment in order for [worker] to return to her former level of functioning.
On August 22, 2013, a WCB psychological consultant noted that the worker "reportedly has struggled with mood disorder for a lengthy period of time; her difficulties in this respect may interact with the ability to cope with workplace stressors and challenging workplace events, and may increase her vulnerability to exacerbation of mood symptoms or development of trauma responses under certain conditions. After having been hit by a boy at work, she may experience some trepidation about returning to the workplace and exposure to working with youth who might act out…"
In a note on file dated November 6, 2013, the WCB case manager said he spoke with the treating psychologist who reported that the worker was not doing well psychologically and that she was worse than when she first saw her. The worker was undergoing a significant medication change as directed by the psychiatrist.
On March 14, 2014, the worker was interviewed by a WCB psychiatric consultant, who opined that the worker did not meet the diagnostic criteria for PTSD in relation to the workplace accident as she did not meet the necessary criterion of Section A, in which a person must be exposed to actual or threatened death, serious injury, or sexual violence. The consultant further stated:
[Worker] is not actively and meaningfully participating in psychotherapy. It is possible that she may have a pre-existing diagnosis of Post-traumatic Stress Disorder related to childhood history. She is being treated for Major Depressive Disorder. However, the evidence of cognitive impairment simply cannot be ignored, and at this time, prevents any secondary diagnosis from being made. Her global cognitive impairment prevents her from making sense of and processing her lifelong difficulties and being able to organize herself to carry out the necessary tasks in a behaviorally orientated program.
The worker underwent a neuropsychological assessment and the results are on file dated June 25, 2014. The worker also attended a psychiatrist for an assessment and the results are on file dated July 18, 2014.
On August 18, 2014, the WCB psychiatric consultant reviewed the reports and stated that the current psychiatric diagnoses were PTSD chronic, mood disorder, depression and the presence of borderline personality traits. The consultant stated, in part:
• The PTSD was related to the workplace incident insofar as it was reminiscent of traumatic incidents in the worker's childhood.
• Medical reports on file indicated that the PTSD and mood disorder (as well as Generalized Anxiety Disorder) were pre-existing before the WCB claim. The psychiatric difficulties were aggravated by the compensable injury and the aggravation had resolved.
• The therapy and medication recommendations made by the psychiatrist were related to the pre-existing psychiatric problems and were not the WCB's responsibility. The WCB should cover the cost of up to four transitional sessions with the treating psychologist.
In a report dated December 21, 2014, the treating psychologist stated that the treatment plan was to continue with cognitive behaviour therapy and the goal of treatment was to reduce the worker's anxiety and depressive symptoms and ultimately assist her in a graduated return to work ("GRTW"). It was hopeful that the worker could be ready for a return to work in the fall of 2015.
On June 26, 2015, the treating psychologist submitted a report to the WCB concerning the worker's treatment progress.
On August 17, 2015, the WCB's psychiatric consultant stated that:
• The current psychiatric diagnosis was PTSD in partial remission.
• The events of the compensable incident might have been a contributing factor in her current mental health issues. It could not be stated that her clinical presentation, on a balance of probabilities, was caused by the compensable incident.
• The worker successfully participated in exposure therapy at school. The treating psychologist told the writer on August 10, 2015 that there was no reason the worker could not return to work in September. There were no psychological restrictions as a result of the workplace incident.
• A graduated return to work was suggested, over a six to eight week period.
• The writer opined on August 18, 2014 that the workplace injury had aggravated the pre-existing diagnoses of PTSD and depression, and that the aggravation had resolved. There was no documentation over the past year to indicate that the aggravation had not ended by August 2014.
By letter dated September 18, 2015, a WCB case manager confirmed to the worker that after a review of all claim material, it was felt that she had recovered from the effects of the May 6, 2013 compensable psychological PTSD injury. The case manager noted that the worker was entitled to medical aid benefits and wage loss benefits up to December 11, 2015 inclusive and final. The case manager specified that on a balance of probabilities, any current residual psychological effects were considered to be related to pre-injury items and not the workplace event.
A return to work program was arranged for the worker for the period September 21, 2015 through to December 11, 2015.
In a memo dated September 28, 2015, the WCB psychiatric consultant noted that she spoke with the treating psychologist who stated "she does not believe that [worker] has recovered from the aggravation of previous PTSD that occurred at the time of her workplace incident. She said that [worker's] day to day function is 'not that great.' She still has anxiety, for example, she had 'dry heaves' outside her workplace last week." The treating psychologist also stated that "WCB is putting a lot of stress on [worker] by limiting the GRTW to 12 weeks."
By e-mail correspondence dated October 1, 2015, the treating psychologist reported that when the worker was in her car outside of the school, she put her ID tag around her neck and was immediately triggered. The worker reported that the child she used to work with used to try to choke her with her lanyard. This trigger caused great anxiety and the worker had a "melt-down." Despite the incident, the worker stayed at the school and carried on with her shift.
In a memo dated October 5, 2015, the WCB psychiatric consultant stated that the difficulties described by the worker and the treating psychologist regarding a return to work process appeared attributable to a pre-existing diagnosis of PTSD as well as some long-standing maladaptive coping strategies.
On October 28, 2015, the employer's representative appealed the acceptance and duration of the claim to Review Office. It was stated: "I have concerns over how the nature of this employee's injury does not appear to align with the reported incident. It is (sic) also appears that the duration of the claim is excessive based on the knowledge the worker has now been absent for approximately two and a half years for what appears to have been a relatively minor injury."
On November 16, 2015, the WCB case manager said he spoke with a worker advisor acting on the worker's behalf. The worker advisor indicated that the worker had experienced a number of other incidents with the same child but did not file claims with the WCB. The worker advisor suggested that the WCB consider whether or not there had been a cumulative psychological effect from all the incidents and this effect reached a more disabling level as a result of the May 6, 2013 accident. The WCB later obtained incident reports ranging from March 14 to April 26, 2013.
On December 7, 2015, the case manager referred the file to the WCB psychiatric consultant for a medical opinion as to whether the worker's current psychological presentation could be accounted for in relation to a cumulative workplace psychological effect. The response is on file dated December 7, 2015.
In a decision dated December 11, 2015, the case manager advised the worker that any residual psychological effects from these incidents (March 14 to April 26, 2013) would have been addressed in the course of the extensive treatment the worker received for her compensable injury. The case manager stated that "it is still opined that the diagnostic criteria for a workplace related PTSD diagnosis has not been met and that your current psychological presentation cannot be accounted for in relation to the compensable injury or a cumulative workplace effect."
On December 23, 2015, the worker advisor wrote Review Office and requested that the decisions made on September 18 and December 11, 2015 be reversed. The worker advisor's position was that the preponderance of medical evidence supported that the worker had not recovered from the effects of her workplace incidents and she was entitled to additional wage loss and medical aid benefits.
On March 17, 2016, the worker advisor requested additional medical information from the treating psychologist and the worker's family physician, and their responses are on file dated March 19 and April 6, 2016, respectively.
On May 4, 2016, the WCB case manager wrote Review Office to address the issue related to the worker claiming a recurrence of her condition during the return to work plan. The case manager stated that the worker stopped working around November 12, 2015 and missed numerous scheduled shifts leading up to this date and before the reported new "incidents" had occurred. He noted that the psychological symptoms reported by the worker and her caregivers during her GRTW were similar to what had been noted in the course of the claim. There had been no new or additional medical findings reported but rather a continuation of symptoms present at the time of the September 18, 2015 decision. Details of the difficulties and new "incidents" reported during the GRTW program constituted nothing out of the ordinary in relation to what would be expected of the worker in performing her duties. The case manager also stated: "…if you or [worker] is of the opinion that the new work 'incidents' have resulted in a further psychological injury, she has the option of filing a new claim specific to these events."
On May 13, 2016, the worker advisor wrote Review Office with an addendum to his prior submission of December 23, 2015 and also spoke to the decision made by the case manager on May 4, 2016.
On August 11, 2016, the employer's representative wrote Review Office and submitted that the weight of evidence showed that the worker did not experience a recurrence of her compensable injury around November 13 and 20, 2015. It was felt that any loss of earnings subsequent to her lay-off from work was more likely a result of her significant, long-standing, pre-existing mental disorders. On August 24, 2016, the worker advisor responded to the employer's submission.
On September 12, 2016, Review Office determined that there was entitlement to medical aid and wage loss benefits beyond December 11, 2015. Review Office noted that PTSD had been identified as being a pre-existing condition in some reports, while in others it was referenced as being caused at the time of the workplace accident. Review Office indicated that after review of the evidence, it preferred the opinions which stated the PTSD was a pre-existing condition. These opinions were provided by the WCB psychiatric consultant and an external psychiatrist who had seen the worker based on a referral from the WCB.
Review Office also determined that the mechanism of injury at the workplace would not fit the criteria provided in Board policy for the causation of the PTSD. Review Office determined that the worker had pre-existing psychological conditions and these were impacted by the workplace accident.
Review Office also disagreed with the WCB psychiatric consultant that there was resolution of the compensable injury by August 2014. Review Office determined that the aggravation of the worker's pre-existing psychological difficulties had not resolved nor was she able to function in her pre-accident capacity. When the worker ceased working at the advice of her physician and psychologist, these ongoing difficulties were related to the May 2013 accident, which had impacted her pre-existing psychological conditions.
On September 20, 2016, the WCB received a copy of a Gradual Return to Work Plan that was completed on August 12, 2016, indicating that the worker would be starting her GRTW on September 5, 2016 and according to the GRTW, would be resuming her normal full time hours on November 14, 2016. This date was later revised to the end of December, 2016 by mutual agreement of the employer and the worker.
The worker advised the WCB on November 28, 2016 that she had decided to permanently reduce her hours with her employer to part-time, three hours per day, five days per week, to start on the first working day of January 9, 2017. The WCB requested, on December 12, 2016, that a WCB psychiatric consultant review the file to advise if there was a psychological basis, related to the worker's compensable injury, that would limit the worker to a half-time schedule. The WCB's psychiatric consultant provided the following medical opinion on January 9, 2017:
[The worker] has successfully RTW half time. Her decision to sign a half time contract was made without discussion with her Senior Case Manager. Though [worker's psychologist] stated in October 2016 that [the worker] would be able to RTW full time, she soon subsequently changed her mind, though the reasons for that are not clear. [The worker] works half days. She is able to attend the gym and spend quality time with her children. There is no indication that there are specific psychological symptoms that are present in the workplace, or symptoms preventing her from participating in full time work or causing distress in her life.
The above factors indicate that the aggravation of pre-existing psychological factors has ended.
As indicated above, [the worker] is not experiencing specific psychological difficulties. As such, there is no medical reason related to the claim that would prevent her from working full time, either in her own or another occupation.
The WCB advised the worker on January 20, 2017 that her partial wage loss benefits (based on hours worked) would be extended to January 27, 2017 inclusive and final. The WCB also advised that coverage of psychological treatment as well as medical supports would be paid to January 27, 2017 inclusive and final.
On February 14, 2017, the worker's representative requested reconsideration of the WCB's decision based on new medical evidence provided. On March 29, 2017, the WCB advised the worker that the new information provided by her representative was not considered substantive in the context of her current psychological presentation as it related to her compensable injury and the previous decision of January 20, 2017 remained unchanged.
On April 11, 2017, the worker's representative requested reconsideration of the WCB's decision by Review Office. The worker's representative disagreed with the WCB's decision that the worker had recovered from the effects of her workplace accident. In its decision of June 29, 2017, Review Office upheld the earlier decision of the WCB. Review Office accepted the March 20, 2017 opinion of the WCB psychiatric advisor that:
The claim was reviewed. The writer's prior opinion was that aggravation of [the worker's] pre-workplace incident mental health difficulties has resolved.
It is now almost 4 years since the workplace incident. When considering the progress of the claim, it is necessary and important to keep the specifics of the workplace incident in mind. In the course of her employment, [the worker] was pushed and struck by a young child. Minor injury was sustained; the incident itself is not of severity that Criterion A of PTSD diagnostic criteria was met.
It is not reasonable to medically conclude that four years later, there is a causal relationship between this objectively minor incident and ongoing difficulties with mental health.
On July 7, 2017, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 19, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
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 provides 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.
WCB Policy 188.8.131.52, Pre-existing Conditions (the " Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
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.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker was accompanied by her spouse at the hearing, and responded to questions from the worker advisor and the panel.
The worker's position was that the available evidence supports, on a balance of probabilities, that the worker had not recovered from the effects of her compensable injury by January 27, 2017; that she continued to experience a loss of earning capacity and to require medical care such that further benefits ought to be provided.
It was submitted that although the worker had made gains in the more than four years since the workplace incident, she had not returned to her pre-accident status, which the evidence showed was full function and stable employment in a challenging career. They therefore concurred with the worker's treating psychologist, who had expressly stated that the workplace accident enhanced the worker's PTSD. The worker advisor noted that the worker's primary care provider and treating psychiatrist had also diagnosed her with a Major Depressive Disorder (MDD), and submitted that this also was a compensable condition which had not resolved by the benefit end date.
Referring to the definitions in the Policy, the worker advisor submitted that it is illogical to refer to the worker's compensable injury four years later as an aggravation of pre-existing conditions. It was submitted that the WCB's psychiatric consultant's justification for rejecting the characterization of the worker's condition as an enhancement of her PTSD was the consultant's perception of the severity of the workplace incident in isolation. The worker advisor submitted that this was an overly simplistic analysis, and referred the panel to specific concerns with respect to the consultant's comments which they had raised in their previous submission to Review Office.
It was noted that the worker's psychologist had subsequently identified specific psychological symptoms, and accompanying rationale as to why those symptoms prevented the worker from increasing her work hours. The WCB's psychiatric consultant's response was simply that too much time had passed for the symptoms to be related. In their view, this showed that the WCB psychiatric consultant was unable to substantiate her position in the face of a contrary medical opinion supporting non-recovery, and that little weight should be attached to her opinion on this matter.
Given the extent of the in-person contact which the worker had with her treating psychologist and primary care provider, including several years prior to the accident in the case of the primary physician, it was submitted that their opinions should command more weight. It was noted that unlike the WCB psychiatric consultant, these healthcare providers had also spoken to the worker's pre-accident status, and acknowledged all of the verified workplace incidents up to and including the May 6, 2013 incident when commenting that the worker had not recovered from her compensable psychological conditions.
The worker advisor also referred to a September 27, 2017 report from the psychiatrist who had also assessed the worker on August 28, 2013, which reaffirmed her earlier diagnoses of PTSD and MDD and noted that the worker continued to experience significant psychiatric symptoms requiring medications. It was submitted that with this report, the panel had three healthcare providers' opinions supporting non-recovery, a compensable loss of earning capacity, and ongoing need for medical aid beyond the benefit end date. The only contrary opinion was that of the WCB medical consultant which, as they had indicated, lacked substance.
In conclusion, it was submitted that the evidence established that the worker was not the same person she had been before the workplace incident. While the WCB's psychiatric consultant had characterized that incident as being minor in nature, it was not minor to the worker, and had had a lasting impact on her and her family. It was submitted that the opinions of the worker's healthcare providers, and in particular that of her psychologist, that the worker's pre-existing PTSD had been enhanced as a result of the workplace accident, be accepted.
The employer was represented by an advocate, a senior administrator and a safety, health and environment officer. The employer's position was they supported the Review Office decision that the worker was not entitled to benefits beyond January 27, 2017, and asked that the worker's appeal be dismissed.
It was submitted that the workplace incident was relatively minor in severity, and that it was difficult to envision that the circumstances as they were described would lead to a functional disability that extended beyond four years, unless it was impacted by some other underlying reason or condition.
The employer's representative submitted that the worker has a significant and relevant pre-existing psychological condition. It was well-established that the worker's chronic PTSD and MDD were considered temporarily aggravated by the minor incident on May 6, 2013, and the weight of medical evidence supported the Review Office's determination that the aggravation resolved as of January 27, 2017.
It was submitted that the worker made a personal choice to forego her full-time work and apply for a half-time position, and that any loss of earning capacity following her return to work was therefore not related to the effects of the compensable injury.
It was submitted that additional medical evidence submitted in support of the worker's appeal consisted mainly of self-reported symptoms and did not provide any new, objective evidence to support the worker's functional limitations as being related to the compensable injury. It was submitted that a large part of the worker's ongoing stress and anxiety appeared to be related to her dealings with the WCB, which would not be compensable.
The issue before the panel is whether or not the worker is entitled to benefits after January 27, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid after January 27, 2017 as a result of her May 6, 2013 compensable injury. For the reasons that follow, the panel is unable to make that finding.
Based on our review and careful consideration of all of the evidence before us, the panel finds, on a balance of probabilities, that the worker was no longer suffering from the effects of her compensable psychological injury as at January 27, 2017.
The worker was diagnosed as having a pre-existing Major Depressive Disorder as well as some form of Anxiety Disorder prior to the compensable injury in May 2013. This was confirmed by the worker's family physician in her report dated May 17, 2013, where she stated that the worker:
…was initially treated for a generalized anxiety disorder in 2007. Since then she has been treated with good response to [medications]. Her mood and symptoms had been stable until January of 2011 when her anxiety had worsened. She subsequently stopped her [medication]. This was restarted in August of 2012. Despite this, there was a marked worsening of her mood related to being assaulted by a student May 6, 2013.
In her June 15, 2013 report, the worker's treating psychologist's also noted that:
In terms of history, [the worker] reports that she has dealt with anxiety and depression on and off since her early 20s. However, she explained that she has been able to manage her symptoms with medication.
The same pre-existing diagnosis was confirmed in the worker's July 16, 2013 psychological assessment, where the psychologist diagnosed the worker's current medical conditions as being a pre-existing Major Depressive Disorder that was exacerbated by the events at her workplace which gave rise to her WCB claim being submitted.
At that time, the worker was also diagnosed with PTSD as a result of the May 6, 2013 workplace events. Based on information provided by the worker at a psychiatric examination on September 1, 2013, it was clarified that the worker's PTSD symptoms were in the context of the worker "reigniting" childhood memories of trauma as a result of the workplace incident.
Based on the foregoing, and on the totality of the information on file, the panel is satisfied that the worker's PTSD was not itself caused by the May 2013 workplace accident, but resulted from an exacerbation of the pre-existing PTSD.
The worker received treatment for her compensable injuries throughout the course of her claim, which eventually led to her participating in a graduated return to work program commencing in September 2016, and incrementally increasing her hours until such time as she would be able to work her regular pre-accident work schedule in January 2017. As of January 2017, the worker elected instead to work in a permanent part-time position.
Based on the evidence before us, the panel is unable to find, on a balance of probabilities, that the worker's inability to return to her regular pre-accident work duties was due to her compensable injuries.
In arriving at that conclusion, the panel places weight on the following:
• As of September 2016, the worker had returned to work on a graduated return to work program. She continued to participate in that program until her WCB benefits were discontinued in January 2017.
• On balance, the evidence on file does not support that the worker continued to suffer from the effects of the aggravation of her PTSD during the time of her graduated return to work program.
• While chart notes from the worker's family physician during the period of time that the worker was participating in the graduated return to work program repeatedly refer, in part, to the worker's diagnosis as "slowly resolving PTSD symptoms," there is a lack of evidence provided to support such a diagnosis. By contrast, chart notes provided by the worker's treating psychologist for the same period of time provide no such diagnosis.
• The chart notes provided by the worker's treating psychologist ranging from September 2016 to December 2016 contain many entries pertaining to the worker's positive experiences while attending work during the graduated return to work program. Included in the notes were such comments as:
o Loves work…Eager to learn.
o Really likes school and job.
o Doing well at school…Loves walking into school…Fulfilled at job.
o Doing well at job but still learning.
o Feels like rock star when at work.
o Thoroughly enjoys her job.
• During the same period of time, the worker's treating psychologist also identified other ongoing issues, such as:
o Hasn't been working out, eating or sleeping. Having nightmares. Can't raise out of them.
o Has headache. Will go home & lay down. Doesn't have it in her. Can't grocery shop. House is a mess. Still trapped in nightmares.
o Stimulation very difficult. Nightmares around control.
o Sort of feeling like a failure b/c not bringing in the money.
o Feels guilt over not feeling better. Difficult time balancing home/work balance.
While the worker's family physician provided a medical certificate on October 20, 2016, indicating that the worker had "had successes in her return to work program," but recommending reassessing her return to work schedule and proceeding with three half days a week in conjunction with a structure rehabilitation program," the panel notes that no supporting information or justification was provided for reducing the worker's schedule from five half days a week to three half days per week as outlined in that certificate.
By contrast, the worker was seen by her treating psychologist on October 19, 2016, whose notes indicate:
Not feeling good today. Yesterday also. Felt heavy and overwhelmed. Loves job. Not balancing things well. Putting too much pressure on self. Doing well at school. Today felt cement toombe (sic) Couldn't stop crying. WCB back involved is a nightmare throwing a ton of info at her. Wants more one on one time w/[name]. Loves walking into school. Stimulation very difficult. Nightmares around control. Fulfilled at job.
The panel notes that there is no suggestion from the treating psychologist's notes at that time that the worker should be reducing her hours of work based on her psychological presentation.
In the panel's view, the primary issues causing the increase in the worker's symptoms at the time were her ongoing interactions with the WCB which she perceived as being difficult and stressful and "a nightmare."
Although the worker's psychologist subsequently provided the WCB with a report on December 3, 2016 which supported the worker continuing to work in a part-time capacity, as opposed to increasing her hours to full-time, or six hours a day, the panel notes that the chart notes from that date do not make any reference to the workplace or her job duties aggravating her medical condition. The notes do, however, make reference to a number of other problems the worker is experiencing in her personal life.
The panel notes that in arriving at our conclusion, we place no weight on the circumstances leading up to the worker's election to work part-time in January 2017 as being determinative with respect to the continuation of benefits under this claim. In the panel's view, the worker legitimately believed that the employer's actions had resulted in her being faced with the dilemma of either agreeing to work full-time in January 2017, which she felt unable to do because of her medical condition at that time, or having her employment terminated. The panel accepts that the worker believed, given the circumstances, that she had no choice but to accept the option of a part-time work assignment.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid after January 27, 2017 as a result of her May 6, 2013 compensable injury. The panel recognizes that the worker continues to experience significant psychological difficulties, but is unable to relate those difficulties to the workplace incident or incidents in May 2013. The panel therefore finds that the worker is not entitled to benefits after January 27, 2017.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of April, 2018