Decision #85/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after February 7, 2017. A hearing was held on April 18, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after February 7, 2017.
The worker is not entitled to benefits after February 7, 2017.
The worker, a labourer, initially filed a claim with the WCB on September 15, 2016 reporting an incident that occurred on June 30, 2016 as:
I feel I have been subjected to an act of Bullying + Harrassment in the workplace by my superintendent and a few coworkers. I have also been threatened by persons I work with. I have anxiety Depression, and sleepless nights.
The employer filed an Employer's Accident Report with the WCB on September 21, 2016 noting:
[The worker] was evicted from [location] by [Contractor] on Sept 6/16, for breaching [Contractor] site/[location] rules, resulting in his termination fr the project (sic) at that time he came to my office and advised he had been harassed by coworkers when asked for details of what happened and when he advised he would send them to me once he got as he kept a log of it. I did not hear further from [the worker] until he called today (Sept 21/16) and advised he had filed a wcb claim and he would not be providing any info or details to [Employer].
In his initial discussion with the WCB on September 22, 2016, the worker advised the WCB that he had started his employment with the employer on June 30, 2016. The worker described several incidents of the difficulties he felt he had been experiencing and advised that he had spoken to his employer's HR department and his union about his experiences. The worker advised the WCB that he felt increased harassment around September 6, 2016 and felt that his stress and anxiety levels were too high. He advised that he spoke to an on-site counsellor on September 6, 2016 and she recommended that the worker take time off work and seek further psychological/psychiatric counselling. In a follow-up email to the WCB on September 27, 2016, the worker provided the WCB with the description of an incident he witnessed at his workplace on September 5, 2016 where he felt threatened. On September 28, 2016, the worker provided the WCB with a witness statement regarding the September 5, 2016 incident. The worker also provided a copy of the on-site counsellor's September 6, 2016 note to the WCB on October 3, 2016.
The worker's psychologist provided a report dated October 11, 2016 from his appointments with the worker. The worker's psychologist noted that the worker's "…presentation at this time is consistent with an adjustment disorder with mixed anxiety and depressed mood."
On December 13, 2016, the WCB advised the worker that his claim was not acceptable as it could not be established that an accident, as defined by the Act, had occurred. The worker provided further information, including additional coworkers' statements regarding his claim and the WCB spoke to further witnesses; however, the worker was advised by the WCB on January 24, 2017 that there was no change to their earlier decision.
The worker's representative requested reconsideration of the WCB's December 13, 2016 and January 24, 2017 decisions on March 30, 2017. On April 13, 2017, Review Office rescinded the WCB decisions and accepted the worker's claim for the workplace incident that occurred on September 5, 2016 only. All other incidents noted by the worker were not accepted. Review Office found that the actions of the worker's coworker during that incident "…were willful and intentional, causing the worker to feel threatened."
On May 16, 2017, the worker was advised by the WCB that upon review of his file and information provided by his psychiatrist, wage loss and medical aid benefits were accepted from September 6, 2016 to February 7, 2017.
The worker's representative disagreed with the WCB's decision that benefits were only accepted to February 7, 2017 and requested reconsideration by Review Office on September 8, 2017.
Review Office upheld the WCB's decision on October 11, 2017. Review Office placed weight on the May 15, 2017 WCB medical advisor's report. The WCB medical advisor reviewed a May 2, 2017 report from the worker's psychiatrist who opined that following his meeting with the worker on February 7, 2017, "…his symptoms had progressed to a major depressive disorder." It was the opinion of the WCB medical advisor that by February 7, 2017, the worker's diagnosis of adjustment disorder had resolved and there was now a new diagnosis of major depressive disorder that could not be medically related to the workplace incident. Review Office found that there was no further need for work restrictions or medical treatment related to the workplace incident on September 5, 2016.
The worker's representative filed an application with the Appeal Commission on October 27, 2017. An oral hearing was held on April 18, 2018.
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.
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.
The worker is seeking further benefits beyond February 7, 2017.
The worker was self-represented. He advised that while working as a labourer on a construction project in an isolated area he sustained a psychological injury. He advised that he has never had a psychological injury before.
He described the accident as:
The injury that arose started in September, after multiple months of things happening on the jobsite. I asked the superintendent multiple times to help me out in certain situations as to transfer the jobsites or whatever the situation may be due to harassment and then bullying in the workplace.
I was refused on multiple occasions to transfer into a different position at work or a different location until a day that we had a day off and there was some things that happened at camp between other employees and then other members. There was a fight, an altercation that happened in one of the smoke pits that I became a witness to.
The worker explained that after the incident, one of the participants in the fight threatened him and put him in a type of headlock because he was providing information to security regarding the fight.
He stated that he subsequently he went off work. He was diagnosed by his physician with an adjustment disorder. His physician advised that his overall progress depends on the resolution of the conflict at work. The physician also noted that the worker would be happy to return to work but that it was necessary to resolve his WCB claim, and the resolution of the conflict at work.
The worker said that his condition had progressed to a major mood disorder. He noted that his physician used the word "progressed" and not "changed." He said this was related to job uncertainty, financial stability, and that all these things pertained to the conflict at work.
The worker submitted that:
If this injury had never happened, these things would not be there. The money situation would not be there, the uncertainty at work would not be there, if this incident did not happen.
With respect to other health matters, the worker said that he has had a condition since he was a child and that he uses marijuana as a treatment. He said that he has a prescription, medical card and license for the use of marijuana.
The worker advised that he has been cleared to go back to work. He stated that in November 2017 he did return to work. He was provided a letter from his doctor stating that he should return on modified duties for the first month back to work.
He said that he was uncomfortable going back because it was hard, as he was off for almost a year. He said he was put in the start-up camp, which was totally separate from the main camp. As to his ability to return to work, he said that his physical capabilities were 100 percent, but the psychological aspect wasn't, and that the employer failed to accept those conditions.
He stated that on the second return, he went back to the main camp and worked until February 2017. He advised that he recently stopped work to deal with a personal matter and receive treatment for a medical condition.
He advised that:
my doctor has made me well aware that my condition is passed, I don't have any major mood disorder, I don't have an adjustment disorder. I was cleared back to 100 percent full duties as of December, where I went back and I was working.
The worker advised that the loss of work he suffered due to his psychological condition also caused him to lose his apartment and vehicle. He noted that the person who assaulted him continued to work.
The worker alleged that the employer suppressed his claim and provided completely irrelevant information to the WCB.
Regarding his current status the worker advised that:
I'm doing a lot better now. I've been back to work, I haven't had any problems personally, and my doctor has cleared me back to work, even though there was some issues that [employer] had concerns about. My doctor had cleared me to go back to work in January again when [employer] requested that I go see him.
And the reason, like I said, I believe I'm entitled to these benefits is there was no change. From what I was going through to what it progressed to, the symptoms were all the same, and then there was more symptoms added. And that's why my doctor said that it progressed to another disorder. The adjustment disorder, it doesn't just go away.
The worker told the panel about an incident in December 2016. One evening he left a restaurant and was assaulted on the parking lot. He asserted that it was done by individuals who were associated with the original assault and were angry about being disciplined. He complained to the police and an investigation done. When asked about the incident, the worker said:
there was an investigation that happened, the individuals were found, I didn't press charges because I was scared.
Prior to this incident, he had received threatening phone calls. He said this was also related to the September 2016 incident at the worksite.
The worker advised that he provided details of the December incident at the restaurant to the WCB but the WCB did not follow up. The worker advised that he knows the individual who assaulted him. He said it was the person who he reported on at the workplace.
In response to a question about the period for which he is seeking benefits, the worker advised that it is just to the time that the injury actually stopped and his doctor said that he was capable to go back to work. In answer to a question, the worker acknowledged that his psychiatrist provided a letter authorizing him to return to work on July 27th.
The employer was represented by a manager. She provided written and oral submissions.
The employer representative noted that the worker was hired by the employer on June 22, 2016 to work at a construction site as a labourer, doing various labour tasks.
She noted that the worker's psychiatrist reported that the worker witnessed an altercation between two workers under the influence of alcohol. Security personnel approached him regarding the incident for a witness statement. The worker then reported that a co-worker started calling him names, and wrapped his arm around the worker's neck and squeezed it tight.
The employer representative submitted that this incident happened at camp and is not work-related, but is an interpersonal conflict. However, the panel noted that the claim was accepted and the employer has not appealed.
The employer representative noted that on September 6th the worker reported pains in his stomach/gallbladder, was seen at EMS and transported to hospital. He left the camp on September 8th, was sent to a hospital in Winnipeg and had surgery at the hospital.
The employer representative noted that on November 14th, the worker's psychiatrist provided a note stating the worker is not fit to return to work due to psychological reasons.
The employer representative noted the review office decision which found that the current diagnosis are mood disorder, attention deficit disorder and cannabis use disorder which is not yet in remission and that the current diagnosis, specifically major mood disorder, are not medically related to the CI.
When asked if the employer had any positon on the December assault that occurred in the city, the employer representative advised that the employer has no knowledge of this event.
In answer to questions, the employer representative explained the relationship between the contractor and the owner of the worksite and the camps.
The worker's claim was accepted by the WCB Review Office in a decision made April 13, 2017. The Review Office considered several incidents which the worker considered to be causally related to this injury. The Review Office after considering the incidents, concluded that the incident of September 5, 2016 was acceptable as an accident. This incident involved an assault by a co-worker at the camp where the worker was staying.
The worker is appealing the WCB Review Office decision that he was not entitled to benefits after February 7, 2017. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity and require medical aid benefits after this date as a result of the September 5, 2016 workplace injury. For the reasons that follow, the panel was not able to make this finding.
The worker relies upon the opinion of the treating psychiatrist in support of his positon that he is entitled to benefits beyond February 7, 2017. The treating psychiatrist provided 3 reports to the WCB.
The panel has reviewed all the medical information on file including the reports from the treating psychiatrist which identified many issues which the worker faced, including:
• difficulties with his superintendent
• difficulties with co-workers
• feeling bullied
• rumours that made him feel unsafe
• use of cannabis
• memories of some difficult times from the past
The panel finds that the worker's loss of earning capacity and his inability to return to work in February 2017 was due largely to other workplace and personal issues and was not the result of the accepted accident, the September 5, 2016 altercation at the camp.
The panel places significant weight on the May 15, 2017 opinion of the WCB psychiatric consultant who opined that:
1. The diagnosis related to the September 5/16 workplace incident is Adjustment Disorder with anxious and depressed mode.
2. The current diagnoses are Major Mood Disorder, Attention Deficit Disorder and Cannabis Use Disorder. Cannabis use Disorder is not yet in remission.
3. The current diagnoses, specifically Major Mood Disorder, are not medically related to the C.I. The development of the Mood Disorder is multifactorial: stressors include his WCB claim which initially was denied, the assault of December /16, financial stress, workplace uncertainty, workplace conflict, suspiciousness/paranoia and comorbid psychiatric diagnoses of Substance use disorder and ADHD. On balance of probabilities, regarding the development of Depression, the non CI stressors were more salient than the September 5/16 workplace incident.
4. The treating psychiatrist has stated that the Adjustment Disorder has progressed to Major Depressive Disorder. The previous diagnosis of Adjustment Disorder is no longer present. Therefore it would not preclude him from performing his pre-accident duties.
5. [treating psychiatrist's] report indicated that the visit of February 7/17, the diagnosis had changed to Major Mood Disorder. During the time between the assault in December /16 until February /17, [treating psychiatrist] noted increased paranoia which increased when [medication] was prescribed. The use of cannabis was also noted. [worker's] clinical presentation was changing during the period December/16 until February /17, but it was clear that by February 7/17, the diagnosis of Adjustment Disorder had resolved, and there was a new psychiatric diagnosis.
6. There are no workplace restrictions that are medically related to the CI.
7. There is no psychiatric diagnosis that is medically related to the CI. Therefore there is no recommended treatment plan.
The panel finds, on a balance of probabilities that the worker had recovered from the impact of the September 5, 2016 accident by February 7, 2017.
At the hearing the worker provided information that on December 6, 2016, he was assaulted on a restaurant parking lot. The worker advised that this assault was related to his work at the northern worksite and camp. He advised that he knew who assaulted him and did not want to proceed with criminal charges. The panel notes that this incident has not been adjudicated and that it remains open to him to file a claim arising from the assault.
The worker's appeal is dismissed.
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 12th day of June, 2018