Decision #93/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits. A hearing was held on April 24, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits.
That the worker is entitled to wage loss benefits from February 2015 to June 2016.
On February 16, 2016, the employer filed an Employer's Accident Report for a psychological/emotional injury sustained by the worker with an accident date of September 29, 2015. The report indicated that the worker, a paramedic, attended a cardiac call where the patient passed away, and the worker was having difficulty dealing with things.
In a discussion with a WCB adjudicator on February 22, 2016, the worker stated that the last call he was on was a cardiac arrest. He said that "it got him thinking about himself as he is around the same age and thought this could happen to him." He said he thought he was depressed but when he saw a counsellor, he was told he had Posttraumatic Stress Disorder ("PTSD"). The adjudicator advised the worker that she would set up a referral with a psychologist to obtain a proper diagnosis.
On March 29, 2016, the worker was seen by a psychologist who diagnosed him with a mild level of PTSD. The psychologist opined that based on the reported symptoms, the worker did not currently appear able to tolerate his work as a casual paramedic.
In a further discussion with the WCB adjudicator on April 1, 2016, the worker advised that the last time he was at work for the accident employer was in January 2015. The incident in question occurred in August 2014. He said there was no trigger that caused him to go off work. He just felt he could not do it anymore and did not want to see another cardiac arrest with someone that was around his age. He was afraid he would not be able to deal with it. He also advised that he did not want to do modified duties as he was not hired to work at a desk. He just wanted to get help so he could "get back to working on the truck." He advised he was still able to work his regular job but felt he could not work as a paramedic because of his symptoms.
On May 4, 2016, the employer provided the WCB with a list of alternate duties available for the worker which were outside his role as a paramedic. The modified duties included photocopying, filing, data entry, answering phones, stocking forms, form audits (updating of forms, etc.), reading to clients, 1:1 with clients, oral, am care, meal escorts to dining rooms, serving residents, recreation tasks, update bulletin boards, sanitize contact surfaces, dusting, wall/window washing, laundry assist (folding, etc.) and special projects if available.
On May 5, 2016, the WCB adjudicator spoke with the worker's treating psychologist. The adjudicator provided the treating psychologist with the list of modified duties from the employer and the psychologist advised he had no restrictions regarding the duties as listed. The treating psychologist advised that he felt the worker should get back into the environment to help with his recovery. Later that day, the adjudicator advised the employer that the worker's medical provider had advised that any of the modified duties would be acceptable.
On June 1, 2016, the treating psychologist provided an addendum to his March 29, 2016 report. In the addendum, the psychologist clarified and provided details with respect to his diagnosis of the worker's PTSD. The psychologist advised that as the worker's symptoms were mild and appeared to be related specifically to any situation similar to the August 2014 call, he felt it would be beneficial for the worker to be exposed to other activities within the context of his job duties, with a gradual introduction to calls as the worker's symptoms reduced.
In a progress report dated June 24, 2016, the treating psychologist advised the WCB that the worker's diagnosis of PTSD currently appeared to be in remission, and there were no obvious contraindications to his involvement with work duties, including direct involvement in paramedic calls. The psychologist felt, however, that the worker's role should initially be as a third crew member with trusted colleagues, with a gradual increase in responsibilities as his confidence built.
A Claim Note on file dated July 5, 2016 indicates that the case manager attended a return to work meeting with the employer and the worker on June 21, 2016, where they discussed when the worker's return to work would start and the worker would follow up and provide some dates. The note indicated that the employer would accommodate the worker with one shift per week, and the worker had advised that he had been cleared to begin riding third.
On July 4, 2016, the worker contacted the WCB and advised that he would be off work for six months due to a non-claim related reason.
On October 31, 2016, the worker was advised by Compensation Services that his claim for PTSD and the treatment associated with that diagnosis were accepted, but no responsibility would be accepted for wage loss in relation to that condition. Compensation Services noted that the medical evidence supported that the worker was capable of performing modified duties and his employer was able to accommodate him with appropriate duties. It was further noted that the worker continued to perform his regular duties with his concurrent employers, and a medical report dated June 24, 2016 supported that he had now recovered from the effects of his PTSD.
On January 27, 2017, a union representative acting on behalf of the worker requested reconsideration of Compensation Services' decision.
On April 5, 2017, Review Office returned the file to Compensation Services to gather more information. On August 2, 2017, Compensation Services advised the worker that upon review of the further information obtained, there would be no change to the October 31, 2016 decision.
On August 30, 2017, the worker's representative requested reconsideration of the WCB's October 31, 2016 and August 2, 2017 decisions. The employer's representative provided a submission in response to that request, and the union representative responded to the employer's submission.
On October 25, 2017, Review Office determined that the worker was not entitled to wage loss benefits. Review Office found that the evidence on file supported that the employer was able to accommodate the worker whose restrictions prevented him from being able to work on active calls. The evidence also supported that the worker did not want to participate in modified duties and was not willing or able to make himself available at times when the employer could accommodate him.
Review Office acknowledged that an offer from the employer to perform modified duties was not presented prior to February 16, 2016, but added that the employer could not accommodate a worker who did not wish to be accommodated. Review Office found no evidence to support that the worker would have made himself available to work, or participated in modified duties, if they had been offered earlier. Review Office noted that the worker was a casual employee and did not keep in regular contact with the employer, and that he had removed himself from the call-in list for personal reasons. Review Office found that the onus was on the worker to keep in regular contact with the employer.
On October 26, 2017, the worker's union representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
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.
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 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 43.20.25, Return to Work with the Accident Employer (the "Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy provides, in part, as follows:
When a worker is injured or becomes ill at work, the goal of the [WCB] is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.
The Policy describes suitable modified or alternate work, in part, as follows:
Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.
The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral submission to the panel. The worker responded to questions from his union representative and the panel.
The worker's position was that he was entitled to wage loss benefits between February 2015 and June 2016, as the evidence supports that his loss of earning capacity during that period of time was, on a balance of probabilities, a direct result of his compensable psychological injury.
The union representative noted that in August 2014, the worker attended a call where an individual died as a result of a heart attack. The worker was affected by the death of the individual, who was about the same age as he, because he had recently experienced his own cardiac issues which had resulted in him being off work for several months. The worker continued to work, but over the next few months, he began to experience psychological distress which caused him to stop taking shifts as a paramedic in February 2015.
The worker initially thought he had depression, and was eventually able to see an EAP counsellor in October 2015, who told him he was likely suffering from PTSD. In January 2015, the worker advised his supervisor that he was still unable to work and it was likely because he had been developing PTSD. One month later, the employer filed a report with the WCB, which prompted a psychological assessment by a psychologist, who similarly concluded that he was suffering from PTSD, as well as anxiety and depression, which he attributed to the death of the patient in the fall of 2014. The psychologist reported that the worker's symptoms impaired his ability to function. He stated that while the worker was not totally disabled from any work, he needed treatment before a gradual return to work as a paramedic could be considered.
The union representative submitted that the worker could not be faulted for not knowing why he felt unwell in the months preceding his diagnosis. The worker believed his mental distress might interfere with the very psychologically demanding work as a paramedic, and reasonably chose to take time off work to figure out why.
The union representative stated that the evidence on file shows that the worker was in regular contact with his supervisor as he sought to understand the nature of his illness and attempted to get medical assistance. The evidence further shows that at no point between February 2015, when the worker went off work, and January 2016, when the PTSD diagnosis was first reported, did the employer make an offer of modified or alternate work.
It was submitted that the evidence, in retrospect, confirms that the worker's inability to work after February 2015 was a direct result of the symptoms associated with his subsequently diagnosed compensable injury. In their view, it was unjust to deny wage loss benefits to the worker on the basis that the employer would have accommodated him. While the accident employer did offer alternate work duties, it did not do so until February 2016, or a full year after the worker had stopped working.
The union representative also noted that when alternate duties were eventually offered, they were duties which were to be done during the day, when the worker was already occupied with his primary job. He would therefore have had to forego earnings at his primary job in order to perform those alternate duties which, it was submitted, would have been entirely unreasonable. As a casual worker, the worker had worked shifts when his other two jobs permitted him to do so. When the modified duties were offered, there was no indication that the accident employer was willing to accommodate the worker's pre-accident schedule.
It was further submitted that the fact the worker continued to carry out his responsibilities in his two other jobs, shows that he was willing to mitigate the effect of his injury by doing work which he was able to do.
It was submitted that it was not possible to identify or define suitable work with the accident employer until the worker's symptoms were understood and properly diagnosed, and it would have been premature to consider a return to work until appropriate medical restrictions were established. Moreover, the worker was not permitted by the employer to return to work until the employer had medical documentation supporting his return. It was not until May 5, 2016 that the WCB confirmed with the treating psychologist that the worker was able to return to alternate work duties, and a solid offer for modified duties was not medically cleared until late June or July 2016.
The employer was represented by an advocate who provided a written submission for the panel's consideration and did not attend the hearing. The employer's position was that they agreed with the WCB's decision to deny wage loss benefits for the worker's psychological injury.
The employer's representative noted that the worker began experiencing difficulties following a cardiac call in August 2014 and ceased working as a paramedic in February 2015. His injury was not reported to the employer until February 2016. The worker then filed his claim, which was accepted for medical treatment only.
It was noted that the worker was a casual paramedic, who did not have a set schedule and would place himself on a call sheet when he was available to pick up shifts. He asked the employer to remove him from the call sheet in February 2015 due to family issues. He subsequently attended an education day on May 3, 2015, and was not scheduled for another shift until September 2015, which he did not attend.
It was submitted that once the worker's claim was filed and the employer was made aware of the issues in February 2016, the worker was offered alternate duties outside his paramedic work on multiple occasions, but he declined the offer and did not return to his paramedic job.
The employer's representative noted that the worker was able to continue working for his other two employers throughout. This included working his primary job, where he performed administrative duties and basic maintenance. It was submitted that these administrative duties were similar in nature to the modified work which was offered by the accident employer.
In conclusion, it was submitted that there was ample evidence that the worker was able to perform modified duties which were offered by his employer, but that he chose not to do so, and was therefore not entitled to wage loss benefits on this claim.
The issue before the panel is whether or not the worker is entitled to wage loss benefits. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity due to his workplace accident. The panel is able to make that finding, for the reasons that follow.
Information on file indicates that the worker's last shift worked for the accident employer was at the end of January 2015, at which time he felt that he could not do the work anymore; that he was afraid he would not be able to deal with another cardiac arrest. The evidence indicates that the worker struggled over the next several months with feeling depressed and trying to understand what was wrong with him. He was eventually able to see a counsellor for three visits, starting October 2015, and was diagnosed with PTSD. The panel is satisfied, based on the evidence before us, that the worker made reasonable efforts to remain in contact with the employer, and in particular with his supervisor, subsequent to January 2015, and to keep him apprised of his ongoing status.
The panel acknowledges that the worker was able to continue working for his two concurrent employers throughout, including working at his primary employment as a building manager/caretaker. The panel notes that when asked at the hearing why he was able to do that and not work as a paramedic, the worker stated that:
It didn't make me uneasy to be there…So it's not the same situation, it's not…people my age, I'm not taking care of them medically. That's what I figured out now, but at the time it didn't bother me to be there to do the work…But I was able to do that work because it was not high pressure, I guess…I didn't have someone's…life in my hands, like it was if I was on a call.
The worker indicated that there were nevertheless some issues even with that work. He said he was not doing the same quality of work as before, and that some of the tenants had noticed there was something going on with him and he wasn't as friendly. He also had help from his spouse and others at the time.
The panel finds that modified duties were not offered to the worker until after the claim was filed on February 16, 2016, which was more than one year after the worker's last shift as a paramedic.
The panel notes that in his letter of March 29, 2016, the treating psychologist stated that he did "not feel that the symptoms [the worker] reports would necessarily preclude his involvement with employment overall, but he does not currently appear to be able to tolerate his work as a casual paramedic due to the symptoms…" While the psychologist indicated that a return to alternate or modified duties was possible, nothing much appears to have been done to follow up on that suggestion.
Information on file shows that the employer prepared a list of alternate duties available for the worker, which they provided to the WCB on May 4, 2016. That list was provided to the treating psychologist who indicated that he had no restrictions regarding these alternate duties. At the hearing, the worker indicated that he had never seen that list.
The worker was contacted and offered modified duties taking vital signs in the hospital. The worker indicated at the hearing that this was work he was able to do, but it involved working a 12-hour shift in the daytime, which conflicted with his primary job. There was also evidence that the worker was asked to organize a storage room, which would have been a day or two's work, but again this had to be done on a weekday when he was not available due to his primary job.
At the hearing, the worker described the nature of his job duties in his two concurrent jobs. With respect to the worker's primary job in particular, the worker stated that he generally worked from at least 9:00 a.m. to 1:00 p.m. five days a week on site, with additional time for grass cutting and snow clearing and time spent at home on paperwork.
The panel notes that the worker's evidence with respect to his position as a casual paramedic was that he had basically told the employer that he could only work evenings and weekends, and would only take a limited number of shifts. In the two years prior to the accident, he had worked mostly nights, and the odd day on a weekend. It was rare that he would work a weekday, where he would be replacing someone on their shift if he was available.
Given the nature and time commitment in the worker's concurrent employment and his established pattern of working evenings and weekends in his position as a casual paramedic, the panel is satisfied that neither of the suggested alternate hospital and storage room duties were suitable or appropriate.
The panel notes that the employer, case manager and worker did not meet to discuss the worker's return to work until June 2016. At that meeting, it was determined that the employer would accommodate the worker with one shift per week, as a third crew member, and the worker would follow up and provide some dates. However, the worker subsequently advised, on July 4, 2016, that he would be off work for six months due to a non-claim related reason. In his evidence at the hearing the worker confirmed that it was three to four days after they "hammered out" the accommodation at the meeting that he let the employer and the WCB know that he would not be coming back and it was permanent.
Based on the foregoing, the panel is satisfied, on a balance of probabilities, that the worker's inability to work from February 2015 to June 2016 was a direct result of his compensable injury.
The panel therefore finds that the worker sustained a loss of earning capacity from February 2015 to June 2016 due to his workplace accident, and is entitled to wage loss benefits during that period of time.
The worker's appeal is allowed.
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 22nd day of June, 2018