The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a number of decisions made by the Workers Compensation Board ("WCB"). A hearing was held on March 14, 2019 and reconvened on May 14, 2019 to consider the worker's appeals.

Issue

1. Whether or not the worker's psychological diagnosis should be accepted as being a consequence of the February 10, 2011 accident; 

2. Whether or not the worker is entitled to further psychotherapy treatment; 

3. Whether or not the worker's wage loss benefits were correctly suspended after March 27, 2015; 

4. Whether or not the worker is entitled to further opioid medication after September 2, 2015; 

5. Whether or not the worker is entitled to coverage for any medication other than Lyrica as of September 14, 2015; 

6. Whether or not the worker is entitled to reimbursement of taxi cab expenses after November 28, 2014.

Decision

1. That the worker's psychological diagnosis should be accepted as being a consequence of the February 10, 2011 accident; 

2. That the worker is entitled to further psychotherapy treatment; 

3. That the worker's wage loss benefits were not correctly suspended after March 27, 2015; 

4. This issue was withdrawn at the hearing; 

5. This issue was withdrawn at the hearing; 

6. This issue was withdrawn at the hearing.

Background

The worker, a truck driver, reported to the WCB on February 14, 2011 that he injured his lower back in an incident at work on February 10, 2011. He described the incident as:

I hurt myself by taking a lug wrench from the tractor trailer to the trailer wheels and check the lug nuts. I was lifting upwards on the wrench to turn it counter clock wise to see if the nut would come loose. I was bent over approx 90 degrees and I was pulling upwards with both hands and I pulled up fast in a jerk motion and I felt a back spasm from my lower back that wrapped around to my belly button.

On February 13, 2011, the worker attended at a local emergency room, where he reported a "pop" in his back at the time of the workplace incident and noted pain to his lower back that radiated to both of his hips. An x-ray was taken of the worker's lumbosacral spine, which showed:

There is loss of the normal lumbar lordosis. Alignment is otherwise within normal limits. There is mild to moderate narrowing of both the L4-5 and L5-S1 disc spaces. The remaining intervertebral disc spaces and all vertebral body heights are well maintained. No other bone, joint, disc space or soft tissue abnormality is observed.

The worker was diagnosed with mechanical back pain. On February 17, 2011, the worker was seen by a sports medicine physician, who noted that the worker "…continues to have lower back pain with burning pain to his hips and it radiates down his L (left) leg. Numbness to his buttock/upper legs if sitting too long." With respect to the worker's past medical history, it was reported that he had "Intermittent Back pain - 2 bulged discs." The February 13, 2011 x-ray from was reviewed and the worker was diagnosed with a central lumbar disc herniation. Medication was prescribed, an MRI was ordered and physiotherapy was recommended.

The worker's claim was accepted, and payment of wage loss and other benefits commenced. At an initial physiotherapy assessment, the worker was diagnosed with radicular pain/dural irritation at L5-S1.

On March 14, 2011, the worker underwent an MRI of his lumbar spine, which indicated:

IMPRESSION: 

1. Left-sided nerve encroaching disc at L4-L5. 

2. Annular tear of the L5-S1 disc. These tears are common findings, usually considered incidental although in any individual case, they potentially may be symptom generating.

In May 2011, the worker reported increased symptoms in his lower back and was referred to a pain clinic for further treatment. On July 9, 2011, the worker was seen by a pain clinic physician, who noted that the worker's lower back pain was being managed fairly well by the medications prescribed and selective nerve root injections were not recommended at that time.

The WCB's Healthcare Department requested that an external neuroradiologist review the diagnostic imaging on the worker's file, as well as a 2005 CT scan and a 2008 MRI. On June 14, 2011, the external neuroradiologist provided an opinion, in which he stated:

In conclusion, on the 2005 CT scan from [hospital], the patient demonstrates a moderate sized central and left posterolateral disc herniation at the L4-5 level with posterior displacement and compression of the left L5 nerve root by the disc material. On the 2008 MRI scan from [clinic], the disc herniation appears to have essentially resolved. However, on the MRI scan from [clinic] from 2011, at the L4-5 level, the disc herniation has recurred with posterior displacement and compression of the left L5 nerve root.

On the CT scan from [hospital] from 2005, at the L5-S1 level, there is a small central right paracentral disc herniation which appears to have decreased in size by the time of the 2008 MRI scan from [clinic] and remains stable and unchanged on the 2011 MRI scan from [clinic]. There has been no other interval change between the examinations.

On August 9, 2011, the worker's file was reviewed by a WCB sports medicine advisor. The WCB sports medicine advisor noted that the worker's initial and current diagnosis was a left L5 radiculopathy which was related to the workplace incident and appeared to be improving. The sports medicine advisor further opined that the worker's restrictions should include:

• the opportunity to change positions from sitting to standing on an as needed basis, 

• avoidance of more than occasional forward flexion of the lumbar spine and any loaded twisting of the spine, 

• a lifting restriction from floor to waist, utilizing proper lifting techniques, of no greater than 10 lbs, and 

• a carrying restriction at waist level of no greater than 15 lbs.

It was noted that these restrictions were to be reviewed in three months. The WCB sports medicine advisor also opined that in consideration of the time spent away from workplace activities, it would be reasonable to commence a gradual return to work. The above restrictions were provided to the employer on August 11, 2011.

On September 15, 2011, the worker attended a call-in examination with a WCB physiotherapy consultant. In his notes from that examination, the WCB physiotherapy consultant opined:

Based on the September 15, 2011, call-in examination findings there is no contraindication to [the worker] participating in an active based physiotherapy program with a pool component…

Based on the examination findings, [the worker] is able to work with the following restrictions:

• No lifting greater than 5 lbs. 

• Limit work in the forward flexed posture to an occasional basis. 

• Allow frequent position changes. 

• Limit bending, kneeling or squatting activities to an occasional basis. 

• Limit walking to 10 minute intervals.

The employer was advised of these restrictions on September 20, 2011. The worker began an active based physiotherapy program on September 26, 2011, followed by a reconditioning program, which was completed on December 28, 2011. On January 3, 2012, the worker was seen by his treating sports medicine physician. The sports medicine physician noted on a Functional Abilities Form (FAF) that the worker could return to work but only on "short shifts". On January 9, 2012, the employer requested that the WCB review the FAF as they had concerns regarding the worker's abilities and restrictions.

On January 11, 2012, a WCB orthopedic consultant reviewed the worker's file and opined that the worker's compensable injury was chronic low back pain and intermittent radiating pain in the lower limb, which was expected to continue, with exacerbations related to twisting, straining and bending of the spine. The orthopedic consultant stated that recovery from the workplace injury had not been achieved and the worker would probably not achieve full recovery. Recommended permanent restrictions, based on the assessment at discharge from the reconditioning program, were noted to be:

• No lifting more than 25 lbs occasionally, 10 lbs frequently 

• No pushing or pulling with more than 40 lbs force 

• No squatting, kneeling or crawling 

• No repetitive bending and twisting of the spine.

On January 11, 2012, the employer was advised of these permanent restrictions along with a temporary restriction of "Driving short shifts - in Canada - only for 2 weeks then progressing to 10 hr. shifts." On January 16, 2012, the employer advised that they had met with the worker and told him they could not accommodate his permanent restrictions. On January 17, 2012, the worker was referred to vocational rehabilitation (VR).

On March 1, 2012, on the recommendation of the treating sports medicine physician, a further permanent restriction was added of: "No prolonged sitting or standing postures without opportunity to change position."

On April 16, 2012, the worker began an introductory computer course as part of his vocational rehabilitation program. On May 17, 2012, due to increased pain symptoms and on the recommendation of his physician, the worker stopped the computer course. On June 11, 2012, Compensation Services advised the worker that due to recent updated medical, the continuing symptoms he was having with his back, and his current inability to attend classes, they were suspending VR services on his file. On July 19, 2012, the worker advised the case manager that the treating sports medicine physician had also referred him to a psychologist for counselling with respect to pain and depression, and the case manager advised that she would authorize this.

On October 25, 2012, the treating psychologist provided a report and a proposed treatment plan. On November 1, 2012, the worker's file was reviewed by a WCB psychological consultant, who opined that the worker's current psychological diagnosis was major depressive disorder. The WCB psychological consultant further opined that based on the information on file, the diagnosis was related to the worker's compensable injury. On November 2, 2012, Compensation Services advised the treating psychologist that they supported the proposed treatment plan and authorized treatments as proposed.

On August 12, 2014, the WCB psychological consultant reviewed recent reports from the worker's treating psychologist and opined, in part:

2. With respect to functional improvement and reduction in symptoms, the treatment has not been of benefit, although it originally was deemed to be related to the psychological sequelae of his injury. The reason for the lack of sustained improvement is unclear. Even with chronic pain and change in occupation, with bi-weekly psychological treatment over two years, some sustained improvement would be expected.

3. Given his lack of response to psychological treatment to date, despite good engagement with treatment, it is unlikely that there would be any future sustained improvement in function as a result of ongoing psychological treatment with [treating psychologist]. The claimant may be at MMI [maximum medical improvement] for psychological status...

On October 20, 2014, Compensation Services advised the worker that he was not entitled to further psychological treatment as it was considered unlikely there would be any future sustained improvement as a result of ongoing psychological treatment.

On November 19, 2014, a WCB physical medicine consultant reviewed the worker's claim. The consultant opined that based on the medical findings on the worker's file, the worker's current difficulties were not medically accounted for in relation to the workplace injury. The consultant recommended that the worker be re-evaluated by his treating neurosurgeon to determine the worker's current level of disability, as it was noted that the worker was reporting symptoms which were worse than when he was previously seen by the neurosurgeon.

The WCB physical medicine consultant further opined that "Based on the available medical information and on a physical basis I would expect that the claimant would still be capable of driving, if previously capable, and also to be capable of participation in a vocational rehabilitation program…" However, I would advise canvassing the psychology/psychiatry consultants in order to address as to whether there is any nonphysical issue that is producing impairment in these spheres. The consultant further opined that a call-in examination could clarify the worker's functional status, if there was the necessary motivation and commitment to co-operate with the process, but recent correspondence suggested the necessary motivation and commitment to co-operate was absent.

On November 28, 2014, Compensation Services advised the worker that he was not entitled to coverage for further transportation costs to appointments. On February 10, 2015, the worker submitted additional medical information to the WCB's Manager of Compensation Services requesting further responses to various inquiries. On February 13, 2015, Compensation Services advised that the October 20, 2014 and November 28, 2014 decisions remained unchanged.

On March 4, 2015, the worker's file was referred for a vocational rehabilitation assessment. In a discussion with the WCB's vocational rehabilitation specialist on March 9, 2015, the worker advised that he "…has no idea how he could possibly participate in VR. He states that he has been seeing [treating psychologist] for Psychological counseling for the past 2 years and is in need for additional sessions based on his current mental state."

On March 12, 2015, Compensation Services advised the worker of his responsibility to mitigate the consequences of his compensable injury pursuant to section 22 of The Workers Compensation Act (the "Act") and requested that he contact the WCB to arrange a meeting to discuss his vocational rehabilitation plan. Compensation Services further advised the worker that if he did not contact the WCB by March 27, 2015, his wage loss benefits would be suspended. By letter dated March 17, 2015, the worker advised the WCB that he was "…not prepared to participate in resuming a VR plan that has proved deleterious to the effects of my compensable injury and well being…" On March 27, 2015, the worker was advised that his wage loss benefits were suspended after that date.

On April 2, 2015, the worker advised the WCB by fax that he was willing to resume the VR plan. However, attempts by the worker's WCB case manager and WCB vocational rehabilitation specialist to arrange a meeting with the worker were unsuccessful, and on May 20, 2015, the worker advised that without clearance from his physician, he was not prepared to meet to discuss rehabilitation.

On May 11, 2015, the worker requested that Review Office reconsider Compensation Services' October 20, 2014 decision that he was not entitled to further psychological treatment. The worker submitted that the psychological treatment he was receiving was beneficial and his other treating healthcare providers were supportive of him continuing with the treatment. On June 9, 2015, the worker requested that Review Office reconsider Compensation Services' November 28, 2014 decision that he was not entitled to reimbursement for transportation costs. The worker noted that his compensable injury made it difficult for him to sit in one position for more than a few minutes, which made driving difficult.

A call-in examination was arranged with a WCB medical advisor for June 25, 2015, to address issues relating to the worker's current diagnosis as it related to the worker's back difficulties and whether the worker's current presentation was medically accounted for in relation to his workplace injury, as well as the appropriateness of the worker's current prescription medications and dosages in relation to the compensable injury. On June 19, 2015, the worker advised that he would "not attend any appointments at the Broadway offices of WCB under any circumstances." On July 14, 2015, the worker contacted Review Office and withdrew his May 11, 2015 appeal for entitlement to further psychological treatment and his June 9, 2015 appeal for entitlement to reimbursement for transportation costs.

On September 14, 2015, Compensation Services advised the worker that after a review of his file by a WCB medical advisor, only the medication Lyrica would be covered by the WCB. On October 2, 2015, the worker responded to Compensation Services' September 14, 2015 letter, noting that a diagnosis of depression had previously been accepted by the WCB and he had been provided with psychological treatment for that diagnosis, and included a report from an occupational physician. Compensation Services responded to the worker's letter on October 8, 2015, and noted that psychological treatment was covered by the WCB "…for a period of time to support planned upgrading of your education; however, a psychological diagnosis was not accepted in relation to your compensable injury."

On July 6, 2018, legal counsel for the worker requested reconsideration of the decisions regarding the worker's entitlement to further psychotherapy treatments, the acceptability of a psychological diagnosis, the suspension of wage loss benefits and the reimbursement of taxi cab receipts and entitlement to opioids and other medications.

On August 3, 2018, Review Office found that the worker had not participated fully in most aspects of the claim. Review Office agreed that as the worker's complaints had been somewhat constant since his accident, it could be accepted that his low back condition was not going to improve further and his low back and left leg symptoms could be considered permanent. Review Office agreed with the decision to make the worker's restrictions permanent and to offer VR services, given the worker's ongoing problems and claim history. Review Office did not accept as compensable any further low back problems other than symptoms of an L5 left leg radiculopathy or any additional deterioration of the worker's low back/further radicular symptoms into his right leg.

Review Office found that the worker was not entitled to further psychotherapy treatment, as the treatment he was receiving was not helping him, and that any current psychological diagnosis was not accepted in relation to the claim. Review Office determined that the worker's wage loss benefits were suspended correctly, as the ongoing psychological condition was not accepted in relation to the compensable accident and the worker had continued for three years to refuse to participate in any meaningful way to reduce the effects of the consequences of the accident.

Review Office found that the suspension of wage loss benefits was appropriate and in keeping with subsections 21(1) and 22(1) of the Act. Review Office noted, however, that an actual VR plan was never created, and that while this was due in large part to the worker's resistance, it did not change the fact the worker had an accepted claim with permanent restrictions which precluded him from returning to his pre-accident job. Review Office stated that whether or not the worker participated, the WCB must develop a viable VR plan in keeping with the compensable restrictions, and returned the file to Compensation Services for the development and implementation of a VR plan and a deemed post-accident earning rate.

Review Office further found that there was no entitlement to reimbursement for taxi cab receipts beyond November 28, 2014 or further funding for opioids or any medication other than Lyrica.

On September 6, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by 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.

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 21(1) of the Act provides that if required by the WCB, a worker "who applies for, or is receiving compensation shall submit to medical examination at a place reasonably convenient for the worker and fixed by the board."

Subsection 21(2) provides that "where a worker fails to submit to the examination, or obstructs the examination, the right to compensation is suspended until the examination has taken place; and no compensation is payable during the period of the suspension unless the board otherwise determines."

Subsection 22(1) of the Act addresses a worker's obligation to co-operation and mitigate and reads as follows:

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Subsection 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.

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."

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational, or rehabilitative assistance to injured workers.

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 Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides, in part, that:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was represented by legal counsel, who provided a written submission in advance of the hearing and made an oral submission to the panel. The worker was accompanied for part of the hearing by his spouse and a friend.

The worker's legal counsel noted at the outset that he would be concentrating on the first three issues on the appeal. Counsel noted that these were factual issues, not legal ones, which were based on the specific facts of the case. He reviewed the history of the case in some detail, and emphasized the importance of context to the issues under appeal.

With respect to the first issue, regarding the acceptability of the worker's psychological diagnosis, the worker's position was that the psychological condition he is suffering from is clearly linked to his compensable physical injury, and should be accepted as being a consequence of his February 10, 2011 accident. The worker's treating psychologist diagnosed him with a moderately severe Major Depressive Disorder ("MDD") as a result of his compensable physical injury, chronic pain and inability to work. She linked his psychological state to what she referred to as his compensable physical injury in a number of reports from October 15, 2012 to June 22, 2014, and maintained that position in a further report dated February 8, 2017, which was provided in advance of the appeal.

The treating psychologist also noted that there was no personal or family history of psychological disorders. Reports from the worker's treating physiatrist and his family physician also suggested that his psychological injuries are linked to his injury. Most importantly, on November 1, 2012, and again on September 12, 2013, the WCB psychological consultant agreed that the worker's psychological condition was linked to his compensable injury.

With respect to the second issue, regarding further psychotherapy treatment, the worker's position was that he was making gains and deriving benefit from attending those sessions. Counsel submitted that the treating psychologist and the worker disagreed with the comment that there did not appear to be much improvement with such treatment. The treating psychologist reported gains, including that certain strategies were assisting him in attending other aspects of his rehabilitation, including physiotherapy. Counsel questioned how, if the psychological issues were a reason the worker could not participate in vocational rehabilitation, they could not be a consideration for any second vocational rehabilitation that was to take place. Counsel submitted that benefits should be reinstated to give the worker a chance to make progress on any second or third vocational rehabilitation or whatever he was attending.

With respect to the third issue, concerning the suspension of the worker's wage loss benefits after March 27, 2015, the worker's legal counsel submitted that the real issue was not whether the worker met with a particular person, but whether it was reasonable for the WCB to recommend and require that he participate in a vocational rehabilitation program in February or March 2015. In their view, it was not.

Counsel submitted that vocational rehabilitation had been put on hold on May 17, 2012, because the worker could not tolerate the sitting, which the WCB seemed to accept and had supported. The exact same plan was put forward for the worker in 2015 as in 2012, yet his back and mental health had become much worse by then. Counsel submitted that the worker had suffered an acute injury in the February 2011 accident which had since developed into a degenerative condition. In October 2013 he had started to experience some new pain in his right leg/bilaterally, and there was medical evidence in November 2013 which supported radiculopathy at least down the left side. The evidence showed that there had been no real sustained improvement in four years, and it was in this context that the WCB recommended a second vocational rehabilitation.

Counsel submitted that the evidence showed the worker was not ready for vocational rehabilitation. It was noted that the worker spoke with the VR counsellor, who noted that the worker was battling depression, and appeared to require timely psychological assistance. The counsellor was concerned with respect to his psychological health, and noted that the worker was "questioning his ability to participate in VR at this time due to pain and depression" and was "currently unready for VR services." Counsel noted that this is not the same as saying that he was not prepared to participate.

Counsel also submitted that there was no VR plan in 2015. He noted that depression was a strong factor in the failure of the original vocational rehabilitation, which was acknowledged by the WCB in a July 29, 2014 Healthcare Service Request where it was stated that "Psychological issues have not allowed him to participate in VR." It was submitted there was no doubt his condition, both physically and mentally, was worse in 2015.

Counsel submitted that the opinion of the WCB physical medicine consultant that the worker was capable of participating in a VR program was contrary to every other medical opinion, and was not reasonable given the evidence that the worker's physical and mental health had both become worse. Counsel noted that the treating physicians were definitively saying that the worker was not able to participate in vocational rehabilitation at that time. In the circumstances, the WCB was setting the worker up to fail.

Counsel went on to submit that if the panel were to find that it was reasonable to recommend vocational rehabilitation, the goal here was not reasonable or realistic. It was submitted that nothing had changed in terms of what was being proposed. There was no plan or goal, but it did involve continued computer skills upgrading. The worker was in worse shape both subjectively and objectively than before, yet was being asked to do the same thing he was unable to do the first time, with the expectation that somehow the results would be different. His treating physicians continued to state, however, in very strong language that he was not able to participate in vocational rehabilitation or to work in any occupation.

Counsel further submitted that if the panel were to find that the goal was reasonable or realistic, the next question would be whether the worker participated in the plan. Counsel acknowledged that the worker did not attend a call-in on June 25, 2015, but noted that participating in vocational rehabilitation was not supported by his treating medical practitioners. Counsel noted that the worker made contact with the VR counsellor, and the counsellor told the WCB that the worker was not ready for vocational rehabilitation.

Counsel further submitted that if the panel were to find that the worker did not participate, the next question would be whether it was reasonable not to do so. It was submitted that the answer to that questions would be yes, especially in light of the information from the worker's treating practitioners.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker's psychological diagnosis should be accepted as being a consequence of the February 10, 2011 accident.

For the worker's appeal on this issue to be successful, the panel must find that the worker's psychological diagnosis was causally related to the February 10, 2011 workplace accident or predominantly attributable to the compensable injury. The panel is able to make that finding.

The panel is satisfied that medical evidence on file indicates that the worker's psychological diagnosis is causally related and predominantly attributable to the February 10, 2011 workplace accident.

In arriving at this conclusion, the panel places weight on the reports of the treating psychologist. The panel notes that in her assessment report dated October 15, 2012, the treating psychologist diagnosed the worker with a "moderately severe Major Depressive Disorder…as a result of his compensable physical injury, chronic pain and inability to work." In her letter of February 8, 2017, the treating psychologist noted that she saw the worker for regular, generally bi-weekly, one-hour individual psychotherapy sessions over a period of time from August 2012 to November 2014, and that subsequent to her seeing the worker, he was referred to a psychiatrist.

The panel notes that in her October 15, 2012 report, the treating psychologist also indicated that there "did not appear to be any personal or family history of diagnosis or treatment of psychological disorders."

In her report dated June 22, 2014, the treating psychologist stated:

In my view, he is receiving benefit from the therapy, particularly from its supportive aspects and the opportunity which it affords him to express and process the difficult emotions of fear, frustration and grief which he is presently experiencing.

…

Based on my observations and interactions with him over this latest period of time, in spite of the small improvement observed in his psychological condition over my last two appointments with him, in my opinion, [the worker] current diagnosis would be: Major Depressive Disorder…His symptoms include: insomnia, diminished concentration, depressed mood, ruminative worry about the future, exaggerated guilt, loss of self-esteem, social withdrawal, and loss of interest in activities previously enjoyed. In my view, [the worker's] psychological condition is directly associated with the chronic pain he experiences as a result of his compensable back injury, his inability to work, and the impoverishment in his lifestyle which has arisen from his many personal and functional losses.

The panel also places weight on the November 1, 2012 opinion of the WCB psychological consultant who opined that the current diagnosis related to the status of the worker was "Major Depressive Disorder." In response to a question as to whether this diagnosis would be related to the compensable injury, the WCB psychological consultant further opined:

Based on information on file, yes. If there were evidence that the claimant had previously suffered from and/or been treated for depression, then this opinion might be modified.

The panel accepts the above opinions of the treating psychologist and the WCB psychological consultant.

The panel is satisfied, on a balance of probabilities, that the worker's psychological conditions, and specifically his diagnosis of MDD, is causally related and predominantly attributable to the worker's ongoing pain and compensable injury.

The panel therefore finds that the worker's psychological diagnosis should be accepted as being a consequence of the February 10, 2011 accident.

The worker's appeal of this issue is allowed.

Issue 2. Whether or not the worker is entitled to further psychotherapy treatment.

In light of our conclusion on Issue #1, that the worker's psychological diagnosis should be accepted as being a consequence of the February 10, 2011 accident, the panel finds that the worker is entitled to further psychotherapy treatment.

The panel therefore returns the file to the WCB for further adjudication with respect to the nature and extent of treatment and/or medications which the worker may be entitled to as a result of that diagnosis.

In this regard, the panel notes that in her opinion dated January 27, 2015, the WCB psychological consultant noted that the treating psychologist indicated she was attempting through the sessions to prepare the worker "for when he will be psychologically and physically capable of participating in vocational rehabilitation but, based on her reports, his symptoms remain too severe for him to participate effectively in any form of retraining." The consultant went on to suggest that:

You may wish to specifically ask [the treating psychologist] if, in her opinion, the worker could participate in vocational rehabilitation.

As well, given the worker's reported increase in pain and request for funding for opioid pain medication, as well as ongoing psychological difficulties, you may wish to consider a Pain Management Unit call-in examination to assist with diagnostic and treatment recommendations that might assist the claimant in managing his pain and improving his functioning.

The worker's appeal of this issue is allowed.

Issue 3. Whether or not the worker's wage loss benefits were correctly suspended after March 27, 2015.

For the worker's appeal on this issue to be successful, the panel must find that the worker's wage loss benefits were not correctly suspended after March 27, 2015. The panel is able to make that finding.

In light of our conclusion on Issue #1, that the worker's psychological diagnosis should be accepted as being a consequence of the February 10, 2011 accident, the panel is satisfied that the worker's wage loss benefits were not correctly suspended after March 27, 2015.

The panel finds that it is very clear from the reports from the worker's treating psychologist that he was not ready for vocational rehabilitation at the time.

The panel therefore finds that decisions made by the WCB with respect to vocational rehabilitation were based on an incorrect or incomplete view of the worker's situation.

The worker's wage loss benefits were suspended after March 27, 2015 based on a failure to mitigate or co-operate with the WCB pursuant to sections 21 and 22 of the Act.

With reference to suspension of the wage loss benefits pursuant to subsection 21(1) of the Act as referenced in the Review Office decision, the panel is unable to determine whether the barriers arising out of the worker's psychological condition were a factor in him not attending the call-in examination in June 2015. Given a lack of evidence in this regard and the panel's finding that the decision to suspend the worker's wage loss benefits was based on an incorrect or incomplete assessment of the worker's situation, the panel in unable to support a suspension on this basis in this instance.

With reference to subsection 22(1) of the Act, the panel finds that the worker's compensable psychological condition precluded his participation in vocational rehabilitation, such that the worker's benefits were not correctly suspended after March 27, 2015.

In this regard, the panel finds that the worker's MDD had not resolved and was ongoing by the spring of 2015. The panel further finds that this would have created a barrier and inability for the worker to interact with the WCB and to develop a viable vocational rehabilitation plan.

The panel notes and accepts that the worker has an accepted claim for a left L5 radiculopathy in the environment of non-compensable degenerative conditions. The panel further accepts that the worker has permanent restrictions arising out of his compensable physical injuries as identified on January 11, 2012, together with an additional restriction of "No prolonged sitting or standing postures without opportunity to change position."

The panel notes that legal counsel referred at the hearing to a number of further conditions which he submitted were causally related to the February 10, 2011 workplace accident, including further degenerative conditions, an annular tear, and right leg radiculopathy. As these matters have not been adjudicated by the WCB, the panel does not have the jurisdiction to address them at this time.

The file will be returned to the WCB to determine the worker's entitlements given our findings on this issue.

The worker's appeal of this issue is allowed.

Issue 4. Whether or not the worker is entitled to further opioid medication after September 2, 2015.

Issue 5. Whether or not the worker is entitled to coverage for any medication other than Lyrica as of September 14, 2015.

Issue 6. Whether or not the worker is entitled to reimbursement of taxi cab expenses after November 28, 2014.

At the commencement of the hearing, legal counsel advised that he would not be spending a lot of time on Issues 4 to 6, but they remained live and were not being withdrawn. In the course of the reconvened hearing on May 14, 2019, counsel advised that he had discussed this matter with his client, and had received instructions to formally withdraw these three issues.

As Issues 4 to 6 have been formally withdrawn, they have not been addressed by the panel.

Panel Members

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 12th day of July, 2019