The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after September 3, 2012. A hearing was held on March 13, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after September 3, 2012.

Decision

The worker is entitled to the wage loss benefits she has already received to February 28, 2014.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 93/17, dated June 23, 2017. The background will therefore not be repeated in its entirety.

The worker filed a claim with the WCB for sexual harassment with an accident date of February 10, 2011. Her claim was accepted by the WCB on February 12, 2012. In a decision dated May 5, 2015, the worker was advised that based on the opinion provided by a WCB psychological consultant, it was the WCB's decision that the worker no longer had a loss of earning capacity in relation to her workplace injury of February 10, 2011. The worker appealed the decision to Review Office on May 6, 2016. On June 9, 2016, Review Office determined that the worker was not entitled to wage loss benefits beyond September 3, 2012. The worker appealed the decision to the Appeal Commission, who, under Decision No. 93/17, determined that the worker was not entitled to wage loss benefits after September 3, 2012.

On September 13, 2017, the worker applied to the Chief Appeal Commissioner for a reconsideration of the June 23, 2017 decision. The worker provided a copy of an August 15, 2017 report from her treating psychiatrist. The worker submitted that the psychiatrist's report contained new information that met the criteria for reconsideration of the Appeal Commission's previous decision. The worker's treating psychiatrist provided in his report that the worker was presenting with diagnosis of Post-Traumatic Stress Disorder, a diagnosis that was not previously accepted by the appeal panel as it was not provided by a psychiatrist or a psychologist.

On August 30, 2018, the Chief Appeal Commissioner granted the request for reconsideration. The Chief Appeal Commissioner found that the August 15, 2017 report from the worker's treating psychiatrist contained a diagnosis that had not been considered or accepted by the appeal panel as her previous diagnosis of Post-Traumatic Stress Disorder had been reported by her family physician, not a psychiatrist or psychologist. The Chief Appeal Commissioner found that the findings and opinions of the psychiatrist were substantial and material to the issue of whether or not the worker was diagnosed with Post-Traumatic Stress Disorder and whether or not the condition was related to the workplace accident.

The request for reconsideration was granted and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies of the WCB'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.

Subsection 4(2) provides that 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 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. With respect to wage loss eligibility, the Policy states:

(a) 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. 

(b) When a worker has: 

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker's Position

The worker attended the hearing with her spouse and was represented by a worker advisor who provided a written and oral presentation on behalf of the worker. The worker answered questions from her representative and the panel.

The worker's representative submitted that:

… to briefly summarize what I have in the written submission, [worker] was sexually assaulted at the workplace. She had a pre-existing condition of panic disorder and agoraphobia that was in remission prior to the assault.

The treating psychologist reported as being exacerbated by the assault; it returned to a symptomatic state because of the accident. The original compensable diagnosis was adjustment disorder with mixed anxiety and depressed mood chronic, but the treating psychologist recommended a diagnosis changed PTSD in May of 2012.

The VR occupational code of retail sales was inappropriate, as the retail environment is a trigger for the worker. There was no support plan or objective market proof in the VR plan or the earning capacity assessment to assist the worker with the complicated medical restrictions on file.

The medical restriction was of a contentious nature, employers would find it difficult, if not impossible, to provide the worker with a job within the restriction that's on file. The VR plan did not commence until November 2012. The worker's job search efforts were not minimal, given the WCB supplied market information on the rural area where the worker resided.

The worker attempted to mitigate her claim by enrolling in a course of instruction that provided a reasonable alternative to the triggering retail environment of the VR plan being researched at the time.

The worker has a continued loss of earning capacity resulting from the symptoms of her compensable diagnosis and aggravated pre-existing conditions past September 3, 2012, and is therefore entitled to benefits.

In answer to questions from her representative, the worker advised:

• although she was diagnosed with anxiety before the workplace incident, she did not notice this condition until after the incident. 

• this condition did not affect her job, she was more motivated before the incident. 

• she did not have trouble attending social gatherings before the incident.

Regarding the employer's conduct the worker said that:

…at first, like with the comments and stuff like that, you know, I just kind of brushed it away. You know, I thought it was like just joking mannerly and stuff…

…then there's the physical stuff, which led me to eliminate some of my hours at work…Like even going to work and he wasn't there, like he would phone during the mornings or whatever, just to check in or let me know like if something was coming through, like an email that I had to check up on. You know, it was like I dreaded those phone calls because they were just, he would say stuff and it was just like, you know, like I didn't even want to go to work and deal with that. So that's when I just took the initiative and just went, I can't handle this anymore, and I just left.

The worker explained that after she stopped working she "was just very depressed because of finances at that time." She found it hard to parent. She didn't want to run into the employer. She just wanted to stay home. She felt lot of anger, felt tired all the time, sometimes would get shortness of breath, rapid heartbeat, and sweating.

The worker advised that after the incident, she did not want to return to retail sales so she took a course and became an EA (educational assistant). Regarding her attempt to work as an EA, she said that she became overwhelmed with going from one class to another and not knowing where she was going. She worked only one day in this capacity.

With respect to medical treatment, the worker said that she saw a psychologist arranged by the WCB. She said that:

I walked in there feeling the same way as I walked out, there was like nothing. Nothing was resolved, maybe a few techniques on how to relax.

She also saw a physician, who claimed a special interest in psychiatry. She said that:

Going to him was, in my opinion, a waste of time.

She saw a second psychiatrist who recommended that she attend a counselling service. She said that the counselling service did not help. She said that she also tried to get treated by a female psychologist but she was not taking new patients.

The worker acknowledged seeing a WCB psychological consultant who recommended that she not work with a male supervisor. She also stated that the WCB employment specialist and VR specialist provided no assistance with job search or resume preparation.

In reply to questions, the worker said that there have been other events related to the accident that she has had to deal with, including a Human Rights investigation, Human Rights adjudication panel, Human Rights settlement and police investigation and resulting charges against her employer.

The worker's spouse described an event that occurred later. He noted that:

A fellow by the name of Johnny wrote ads on I think it was the CBC website there, and contacted her through Facebook. And I tried audio chatting with him, he declined. He kept on chatting about the events, stalking [worker's] Facebook.

The worker advised that she believes "Johnny" was her employer and he was contacting her on her Facebook page.

In reply to a question from the panel the worker explained that she went into the education program, because she thought she would avoid contact with her employer in this field.

In closing, the worker's representative stated:

[Worker] suffered sexual harassment and sexual assault at her previous place of employment. She suffered a compensable psychological injury as a result. Although it was originally diagnosed as an adjustment disorder with mixed anxiety and depressed mood chronic, it was apparent to the treating psychologist early in the treatment that the worker was suffering potential PTSD. The WCB psychological (sic) also saw the post-traumatic symptoms in the beginning of the file. Lack of continuity of care resulted in a delay in this diagnosis.

Unfortunately, the treating psychologist felt she could no longer have the worker attend treatment in Winnipeg due to the severity of the symptoms the worker experienced while driving. The worker lost psychologist follow-up, this impacted her treatment, a follow-up on the potential PTSD diagnosis, and the psychological support that the WCB medical advisor thought necessary for any return to work program. A VR plan was created but lacked the necessary support for the worker's diagnosis, symptoms, and medical restrictions. Without significant support, the worker faced too many obstacles in the return to work plan for her to have any chance of success.

The VR plan was not sustainable as written due to this lack of support. The worker identified a program she thought would be more suitable and more sustainable, and support her compensable injury in a manner better than the idea of returning to retail work. The worker embarked on this course without complaint from WCB. Although she attended classes, the classes were not comparative of a retail work environment. She still struggled to meet the demands placed on her in the course and practicum due to the symptoms of her psychological injury. Her absences from the course and individual classes are a direct result of this compensable injury.

Ultimately, the worker was not successful in returning to any work because of her symptoms she suffered. These symptoms are indicative of PTSD; therefore, we are asking the panel to accept the diagnosis of PTSD.

The worker's treatment has been hindered or delayed by many ongoing events. The events are related to the original injury that continued to plague the worker for years after the actual event. They are the RCMP investigation, the related court case, the Human Rights investigation, subsequent media coverage about the Human Rights investigation, and the subsequent harassment of the worker on social media about the assault. The timeline of these events span from the incident in 2011, well into 2017. During this period the worker was subjected to having to retell and be reminded about the assault to numerous investigators and agencies. These events are a direct result of the accident because if not for the accident, none of these events would be necessary. The worker has continued to suffer a loss of earning capacity as she was unable to work due to the symptoms of the compensable injury she suffered.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker appealed the WCB decision that she was not entitled to wage loss benefits after September 3, 2012. The issue identified for the panel to address was whether the worker sustained a loss of earning capacity after September 3, 2012 as a result of the workplace accident.

The panel notes that the worker was initially paid wage loss benefits to February 26, 2013 and partial wage loss benefits to February 28, 2014. The Review Office later determined that the worker was not entitled to wage loss benefits beyond September 3, 2012, notwithstanding that the worker had received wage loss benefits after this date. The panel disagrees with this aspect of the Review Office decision. The panel finds that it was appropriate to pay the worker wage loss to February 26, 2013 and partial wage loss benefits to February 28, 2014.

For the purpose of this decision, the worker is seeking partial wage loss benefits after February 26, 2013 and full wage loss benefits February 28, 2014. For the reasons that follow, the panel finds that the worker is not entitled to further wage loss benefits.

In assessing this claim and the nature of the worker's injuries, the panel accepts the April 23, 2012 opinion of the treating psychologist who opined that the worker was suffering from an Adjustment Disorder with mixed Depressed Mood, chronic, which are likely related to the incidents in the workplace. The psychologist also found that the worker was suffering from a Panic Disorder with Agoraphobia which had been in remission, but which had been exacerbated by her difficulties in the workplace.

The panel notes that the worker saw a WCB Psychological Advisor, who opined on June 27, 2012 that:

Her diagnosis is of a resolving Adjustment Disorder and is complicated by the ongoing court issues, complicated by previous psychological dynamic issues, and by career change issues that sound very appropriate for her.

The WCB psychologist indicated that the worker "… is fit to return to modified or accommodated work within the bounds of the restriction that she should not work with a male supervisor." The worker's representative also noted an October 15, 2013 reference in the worker's file to this restriction being permanent.

In an opinion dated May 4, 2016, the WCB Psychological Advisor commented that:

The restriction she had previously that she not have a male supervisor was appropriate previously and while I cannot judge this currently, given her history and what was reported in the counseling notes, most likely should be longer-term given the issues with historical issues and boundaries that she has had.

The panel notes, that notwithstanding this restriction, the worker embarked on her own vocational rehabilitation plan, in which she enrolled in an educational assistant course where she was taught and evaluated, in part, by a male instructor. As well during her practicum, the worker was supervised by a male teacher. Given this evidence, the panel is unable to give weight to the WCB Psychological Advisor's comments regarding a restriction against ongoing male supervision.

At the hearing the worker spoke about the difficulty she had in dealing with the court case and related publicity which resulted from her injury. The worker's spouse noted, in particular, her activity on Facebook. He advised that a person was stalking the worker's Facebook account. The worker said that she believed the stalker was her former employer. She communicated with this person on more than one occasion.

The panel notes that the worker saw a psychiatrist on August 15, 2017. The psychiatrist noted that:

…I am concerned that her symptoms have been aggravated by alleged ongoing harassment online that she presumes is being carried out by the perpetrator of the sexual harassment.

The psychiatrist commented that her presentation is consistent with a diagnosis of Post-Traumatic Stress disorder. He recommended, in part, that:

1. Regardless of who is carrying out the harassment, the receipt of messages online relating to her harassment experiences is likely exacerbating and perpetuating her symptoms and is likely a barrier to her recovery…I suggested that she consider more radical measures such as closing her social media accounts or adopting an anonymous online presence.

The panel finds that there is a lack of evidence that the worker's employer engaged in Facebook contact with worker. In any case, the worker acknowledged that she interacted with the Facebook contact on several occasions. The panel finds this conduct is inconsistent with the actions of an individual who has highlighted the Facebook contact as being unwelcome and causing her stress to the point that it would be considered a factor in the development of PTSD. ‎The worker noted that she ultimately blocked the unwanted Facebook contact.

The panel also considered the worker's current daily activities and any impact that the compensable incident has on her daily activities. The worker answered questions about her daily activities and interactions with her family and others. In the panel's opinion, the evidence does not establish, on a balance of probabilities, that the compensable injury and the events continued to affect or cause her difficulties in her daily activities.

Conclusion

The panel has considered all the medical evidence on the claim file, including that of the treating psychologist, the WCB psychological advisor and the psychiatrist who interviewed the worker in 2017. The panel prefers the opinions of the treating psychologist and the WCB psychological advisor who dealt with the worker nearer to the incident that resulted in her claim and diagnosed the worker's condition to be an adjustment disorder. The panel gives less weight to the opinion of the psychiatrist who appears to have attached significant weight to the worker's interactions on-line.

The panel finds that the medical reports do not support a finding that the worker was unable to work after February 2014 as a result of the workplace injury. The panel finds, on a balance of probabilities, that the worker is not entitled to further benefits arising from her 2011 workplace injury.

The panel also finds that the worker's pre-existing agoraphobia and panic attack conditions were not enhanced as a result of her compensable injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of April, 2019