Decision #127/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her return to work program is appropriate and that she is not entitled to further benefits. A hearing was held on June 26, 2018 to consider the worker's appeal.
Whether or not the return to work program is appropriate;
Whether or not the worker is entitled to further benefits.
That the return to work program is not appropriate;
That the worker is entitled to further benefits.
On October 19, 2015, the worker reported to the WCB that she sustained injuries to her right wrist, neck, left cheek and right eye when dealing with a combative client at work on October 16, 2015. On October 26, 2015, the worker was placed off work by her family physician due to stress. A psychologist saw the worker for an initial assessment on October 28, 2015, and provided a diagnosis of Acute Stress Disorder. The worker's claim was accepted for a psychological injury (acute stress reaction to a traumatic event) and wage loss and other benefits were issued.
On January 6, 2016, the worker's psychologist indicated that the worker no longer met the diagnostic criteria for Acute Stress Disorder, and that her current presentation fit more appropriately with a diagnosis of Adjustment Disorder.
On June 3, 2016, Compensation Services advised the employer that based on current medical information, the worker was fit for work with the following temporary restrictions:
• Not to work with potentially violent clients or in volatile situations.
• Can return to the [facility] if it does not involve client contact of any sort (for example she could work on the administrative side).
The worker returned to work, with alternate duties, on August 15, 2016.
On October 18, 2016, the worker attended a call-in examination with a WCB psychological advisor who opined that based on the worker's presentation and report, there was no psychological condition that would preclude her returning to work in her previous position, and the worker had removed her previous proviso that she not return to working with potentially violent or at-risk clients at the facility. The psychological advisor concluded that the worker did not wish to have a restriction and there did not appear to be a medical/psychological rationale for such a restriction, and stated that if the worker had concerns about workplace safety, she should discuss these with her employer.
On November 2, 2016, the worker's psychologist recommended that the worker's restrictions remain in place. On November 24, 2016, Compensation Services advised the worker that they would leave her temporary restrictions in place for one year, to November 2017.
On February 22, 2017, the worker advised Compensation Services that she had been moved to a different position at her worksite on a temporary basis and was feeling overwhelmed and anxious with where she was working. She was not working with clients, but they would come into the area where she was working. The WCB approved the worker seeing her psychologist for an initial visit to review if her current difficulties were related to her October 16, 2015 workplace incident.
On April 7, 2017, Compensation Services advised the worker that following their review of her claim, they had determined that further treatment with the treating psychologist would be approved with the expectation that she would gradually return to her regular duties throughout the treatment sessions. Compensation Services advised that a graduated return to work program had been put in place, to start April 17, 2017, as follows:
Week 1 1 hour regular duties, 7 hours modified duties (current restrictions)
Week 2 2 hours regular duties, 6 hours modified duties
Week 3 3 hours regular duties, 5 hours modified duties
Week 4 4 hours regular duties, 4 hours modified duties
Week 5 5 hours regular duties, 3 hours modified duties
Week 6 6 hours regular duties, 2 hours modified duties
Week 7 7 hours regular duties, 1 hour modified duties
Week 8 regular duties regular hours.
The graduated return to work program would include weekly treatment sessions with the worker's psychologist and two transitional sessions after Week 8 when the worker was back at her regular duties and hours, for a total of ten treatment sessions.
Further reports were provided by the worker's psychologist, and it was noted by the psychologist on June 22, 2017, that the worker only completed three days of the graduated return to work program before discontinuing the program due to her reported high symptom level. The worker returned to her previous modified duties only.
On July 7, 2017, Compensation Services advised the worker that their April 7, 2017 decision remained unchanged. Compensation Services noted that the treating psychologist's June 22, 2017 report indicated that the worker could work with potentially violent clients but in smaller doses and might not require a restriction with respect to working with violent clients. Compensation Services was of the view that if the worker had continued with the graduated return to work program, there would have been a successful return to her regular duties.
On July 25, 2017, the worker's union representative requested Review Office reconsider Compensation Services' April 7 and July 7, 2017 decisions. The worker's representative submitted that the worker's psychologist had requested approval for sessions to undertake a course of exposure treatment to the worker's pre-injury placement in order to determine the likelihood of a return to her pre-injury position or the need for permanent accommodation. It was submitted that based on the evidence, the worker was medically unable to successfully participate in the graduated return to work program to her pre-injury position, and the WCB should reinstate her entitlement to benefits and accept the restrictions outlined by her treatment providers. The employer provided a submission in response to the request for reconsideration. At Review Office's request, the WCB psychological advisor provided a further opinion dated September 21, 2017, which was also forwarded to the parties for their comments.
On October 17, 2017, Review Office determined that the worker's return to work program was appropriate and she was not entitled to further benefits. In their decision, Review Office considered the reports from the treating psychologist, but placed more weight on the WCB psychological advisor's opinions. Review Office found that there was no indication that restrictions were required in October 2016. Compensation Services nevertheless arranged for a graduated return to work program from modified to regular duties in April 2017. Review Office agreed with that recommendation and found that a short period of time to gradually reintegrate the worker into her regular duties was reasonable.
Review Office acknowledged that the worker continued to experience psychological difficulties, but was unable to relate such complaints or the proposed diagnosis of post-traumatic stress disorder to the October 16, 2015 psychological injury of an acute stress reaction/Adjustment Disorder. Review Office therefore concluded that the return to work program was suitable and there was no entitlement to further benefits.
On December 6, 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.
Section 37 of the Act outlines the types of compensation payable to workers as follows:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.
The Return to Work Policy describes suitable modified or alternate work 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.
To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.
The worker was assisted by a union representative, who made a submission on the worker's behalf. The worker was accompanied by her spouse at the hearing, and responded to questions from her union representative and the panel.
The worker's position was that the return to work program was not appropriate, and she should be entitled to further benefits.
It was submitted that the worker had always been very strong and high functioning, but that changed in 2015 when she was the victim of two assaults at work. The worker was diagnosed with acute stress disorder in October 2015 which is the equivalent to post-traumatic stress disorder ("PTSD"). Her symptoms improved with counselling, and in January 2016 she was diagnosed with adjustment disorder, which the WCB accepted as compensable. Throughout her treatment, the worker showed good recovery, although some symptoms of anxiety, depression and trauma persisted.
The worker participated in a successful return to work with the pre-accident employer in an office position, with no contact with potentially violent clients. In January 2017, however, she was exposed to some clients in her office position, which triggered a return of her symptoms. When her symptoms persisted, she requested and was granted further sessions with her treating psychologist, but these were to be in combination with a graduated return to work plan to her pre-injury position.
It was submitted that while the worker and her psychologist had discussed the possibility of in vivo exposure treatment and the worker had already started taking steps in that direction, the return to work plan was implemented by the WCB without consultation with the worker or her psychologist with respect to pace and timing. The worker attempted three of the return to work sessions, but this resulted in such an elevation of her symptoms that it led to a final diagnosis of PTSD. Following the recommendation of her psychologist, the worker withdrew from the graduated return to work program and returned to her office position.
The worker's union representative submitted that the graduated return to work plan was not "suitable" within the meaning of the Policy as the worker was medically unable to proceed with the program in the manner it was laid out. It was further noted that the Administrative Guidelines in the Policy provide that the WCB will monitor the return to work plan to ensure it is safely implemented in accordance with the established goals, and the plan should be amended as required. The WCB, however, was not amenable to any changes, even though the plan clearly aggravated and potentially enhanced the worker’s compensable injury to the point of a definitive diagnosis of PTSD in relation to the workplace injuries.
The worker's representative submitted that it is not that the worker does not want to return to her duties. It is that she cannot do so, or cannot do so in the way that the graduated return to work program was laid out. It was submitted that the worker would like to continue working with the treating psychologist to establish an appropriate return to work pattern and to ascertain whether a return to her pre-accident position is possible or if she is in need of permanent accommodation.
The employer was represented by its Workers Compensation Specialist. The employer's position was that they agreed with the Review Office decision that the return to work program which was set up for the worker was appropriate, and as a result, the worker would not be entitled to further benefits.
It was submitted that there was nothing inappropriate about the graduated return to work program. Medical information and multiple opinions from the WCB psychological advisor supported that the compensable diagnosis of adjustment disorder was no longer present and had not really been present since October 2016. In their view, there was no real medical reason why the worker could not attempt to return to her regular duties.
The employer's representative submitted that the return to work was not done haphazardly. The WCB evaluated the program. There was some consultation with the worker's treating psychologist, and it was determined that this was an acceptable means of moving forward.
It was noted that the treating psychologist's suggestion that the worker sustained a re-emergence of PTSD when she was re-exposed to her regular duties was not supported by the WCB. The WCB psychological advisor's opinion in September 2017 outlined that there was no previous diagnosis of PTSD on the file, and that as of her examination of October 2016 and the treating psychologist's opinion of November 2016, the worker had recovered from her adjustment-related anxiety. PTSD would have been a new diagnosis, and given its occurrence acutely following a return to work, would be considered an acute type of reaction and not PTSD. It was also noted that no new trauma had occurred during the worker's time in the workplace which would have precipitated a new occurrence of a significant trauma response.
The employer's representative submitted that it may be that the worker develops levels of anxiety about resuming her pre-accident position, but in their view, this was more the result of a "sort of fear factor" and her perception of some possible harm which she might encounter in the future due to perceived changes in the workplace and the daily pressures and circumstances that arise from this. While these may be legitimate concerns, there is no direct relationship between a fear of going back to work because she might get hurt and either one of the worker's 2015 workplace injuries.
The employer's representative noted that workers are expected to participate in return to work plans developed to return them to their pre-accident vocation, and when they are not prepared to participate in such plans, the WCB has the discretion to limit benefits, as they did in this instance.
Issue 1. Whether or not the return to work program is appropriate.
For the worker's appeal on this issue to be successful, the panel must find that the worker's return to work program in April 2017 was not appropriate. The panel is able to make that finding, for the reasons that follow.
The worker's claim was accepted for an acute stress reaction. The evidence supports that the worker's symptoms and condition improved with treatment, and the worker was subsequently diagnosed with adjustment disorder/anxiety. The worker returned to work performing alternate duties in an office in August 2016, with restrictions of not working in volatile situations and not having client contact.
While the evidence supports that the worker had improved and was doing better when she attended the call-in examination with the WCB psychological advisor in October 2016, the panel is not satisfied that she had fully recovered from her workplace injury at that time or was well enough to return to her pre-injury position without restrictions. It is the panel's understanding that the nature of these types of psychological injuries is that they can wax and wane over time dependent on situational factors or episodes of traumatization. The panel notes that up until that time, the worker had been working in an alternate office position, within her stated restrictions. In that position, she had little or no client contact and was not subject to traumatic exposures to clients.
While the notes of the October 18, 2016 call-in examination state that the worker had indicated she did not wish to have any permanent restrictions, the panel is satisfied that this did not apply with respect to her temporary restrictions. Information on file and at the hearing shows that the worker was concerned with the impact that permanent restrictions would have on her career path, her opportunities for advancement and for doing the work she felt she did well and wanted to pursue.
Subsequent to the call-in examination, the worker contacted the WCB with concerns relating to the report of that examination and her restrictions, and on November 24, 2016 she was advised that her restrictions were to remain in place for one year, until November 2017.
The worker contacted the WCB in February 2017 to advise that she had been feeling overwhelmed the previous week at work, and felt that her symptoms were being triggered by clients coming into the area where she was working. The WCB authorized one session with her treating psychologist to review if her current difficulties were related to her October 16, 2015 workplace accident.
On March 8, 2017, the treating psychologist provided the WCB with his report, in which he indicated that the worker "did not believe that she will be able to return to her pre-injury position, because contact with the [clients] triggers her symptoms." The psychologist stated that the worker was open to undertaking a course of in-vivo exposure treatment to her pre-injury placement, and asked for approval for ten sessions to address these issues. The psychologist stated that the "rationale is that if after a full course of exposure, her anxiety levels remain very high, she might require a permanent accommodation in the future regarding not working with potentially violent [clients]. If the exposure treatment is successful, on the other hand, she might be able to return to her pre-injury position." As indicated in that report, the psychologist's idea was to see if the worker could return to her regular duties, by working with her with psychological oversight.
Instead, however, the WCB proceeded to implement a graduated return to work program effective April 17, 2017, to return the worker to her regular duties on a graduated basis. The worker attempted to return to work starting April 17, without the restrictions of June 3, 2016 in place, but was only able to continue with the program for three days.
In the panel's view, it is clear, given the immediate recurrence and increase of the worker's symptoms on returning to her pre-accident duties, and the subsequent reports from the treating psychologist, that the worker's restrictions should not have been removed in April 2017. With the benefit of hindsight, the panel is therefore satisfied that the worker's restrictions should have continued beyond that day as being necessary and related to the worker's compensable psychological condition. As a result, the panel finds, on a balance of probabilities, that the return to work program was not appropriate.
The worker's appeal on this issue is allowed.
Issue 2: Whether or not the worker is entitled to further benefits.
For the worker's appeal on this issue to be successful, the panel must find that the worker required further benefits as a result of her October 16, 2015 workplace injury.
Given that the worker's psychological condition had not resolved and her symptoms had increased in April 2017, leading to her withdrawal from the graduated return to work program, the panel finds that the worker is entitled to further benefits, the nature and timing of which are to be determined by the WCB.
The worker's appeal on this issue is allowed.
M. L. Harrison, Presiding Officer
A. Finkel, 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 August, 2018