Decision #135/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to full wage loss benefits after November 2, 2018. A hearing was held on September 9, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to full wage loss benefits after November 2, 2017.
That the worker is entitled to full wage loss benefits after November 2, 2017.
On January 13, 2017, the worker reported to the WCB that he injured his head/neck/upper/mid/lower back in an incident at work on January 9, 2017. The worker described slipping on ice and landing "…on my back and then my head hit the ground." The worker noted that he finished his shift. On January 10, 2017, the worker attended at a local emergency department, advised the attending physician that he "…felt foggy today so didn't go to work" and was diagnosed with a closed head injury. The worker was advised to remain off work for one week.
The worker saw his family physician on January 17, 2017. He reported having a headache, nausea and a loss of short term memory. The family physician noted occipital tenderness and decreased range of motion in the worker's cervical spine and diagnosed the worker with a concussion. The physician recommended rest and that the worker remain off work until February 3, 2017. The physician also requested a CT scan of the worker's brain, which was performed on January 19, 2017 and showed no abnormalities. The worker's claim was accepted by the WCB, and payment of various benefits including wage loss and physiotherapy began.
On February 16, 2017, the worker attended a call-in examination with a WCB medical advisor. Following the examination, the WCB medical advisor opined that the worker's initial diagnosis was "concussion with associated neck and thoracolumbar strains." The medical advisor noted that the typical natural history for sprain/strain injuries and concussion was for a gradual recovery over several days to weeks with recovery being prolonged in some cases with post-concussion syndrome. The medical advisor noted that the worker reported gradual improvement in his symptoms, which was typical with recovery from these conditions. The medical advisor recommended that as the worker's symptoms improved, a graduated return to work at light duties could be considered. Suggested restrictions were to avoid heavy lifting or push/pull greater than five pounds, avoid repetitive or sustained bent, flexed, or stooped postures, allow opportunity to change positions and stretch and avoid prolonged/sustained computer screen time greater than ten minutes at a time. On February 24, 2017, the medical advisor further recommended that the graduated hours for the worker to start would be 2 hours per day, to be reviewed after 2 weeks. The restrictions were provided to the employer on February 24, 2017.
At a follow-up appointment with his family physician on February 23, 2017, the worker was referred to a neurologist. The worker was seen by the neurologist on March 3, 2017. The neurologist opined that the worker had "post concussion syndrome" and that his "…neurologic examination is actually quite normal." The neurologist recommended that the worker participate in a graduated return to work program with light duties, then increasing as tolerated.
The worker began his graduated return to work on March 6, 2017. On June 5, 2017, the worker's file was reviewed by the WCB medical advisor, who opined that a proposal by the worker's treating neurologist in a May 25, 2017 report, that the worker remain on a graduated schedule of 4 hours per day, to be reviewed in 4 to 8 weeks, would be reasonable. On August 4, 2017, a further report from the worker's neurologist recommended that the worker could increase his hours to six hours per day as tolerated.
On August 4, 2017, the worker was also seen by his family physician, who noted that the worker had a "flat affect" and was "sad" and queried a possible diagnosis of depression. The physician recommended a trial of medication for the worker. At the request of the worker's physician, a call-in examination with a WCB psychological consultant was arranged.
The worker attended the call-in examination with the WCB psychological consultant on September 27, 2017. The WCB psychological consultant opined that the worker sustained a "concussive brain injury" from the workplace accident. The psychological consultant further opined that the worker's recovery had been slow and had been complicated by the development of "…what appears to be a mild Major Depressive Disorder with Anxious Distress" that "…appears to be related to the effects of the concussive injury on many levels." Several recommendations were made by the WCB psychological consultant, including referral to a clinical neuropsychologist and that the worker's hours at work not be increased until he had attended a number of sessions with the neuropsychologist.
On November 10, 2017, the worker contacted the WCB to advise that he was unable to continue working due to an increase in his symptoms and issues he was having regarding his return to work program. On the same date, the employer contacted the WCB to note their concerns regarding the worker's slow progression in his return to work program and to report that the worker was having difficulties at work.
On November 10 and November 17, 2017, the worker was seen at his family physician's office and was provided with notes to remain off work until December 4, 2017. During both examinations, the attending physician noted the worker had increasing symptoms that required him to remain off work. On November 28, 2017, the worker's treating neuropsychologist provided a report to the WCB indicating that the worker had attended sessions on November 16, 22 and 28, 2017. The neuropsychologist expressed concerns that the worker's post-concussive symptoms were being "…exacerbated by workplace issues and that the conflict at work has developed as a result of his post-concussive symptoms and associated depressive disorder."
On December 5, 2017, the WCB psychological consultant reviewed the worker's file and the report from his treating neuropsychologist who recommended the worker remain off work to allow for additional treatment for his increased symptoms. The psychological consultant agreed that the worker "…would not be able to return to work at this time on a temporary basis." He recommended that the worker continue ongoing treatment with the neuropsychologist and that alternative medication be considered. The psychological consultant also recommended that a return to work process occur immediately in the new year, pending updates from the neuropsychologist and attending physician, as the worker being out of the workplace for any lengthy period of time would be "counterproductive and not therapeutic." On December 6, 2017, the employer was advised that the WCB would be paying full wage loss benefits to the worker as of November 3, 2017.
A referral was made by the WCB for vestibular therapy for the worker, and the worker attended an initial assessment on January 9, 2018. The physiotherapist who assessed the worker diagnosed "Post-concussion syndrome with mild-moderate Vestibular/ocular dysfunction" with "signs of anxiety pain focus during assessment," and recommended a possible gradual return to work plan after four weeks' treatment. The worker continued to be treated by the neuropsychologist and the vestibular therapist, and on March 8, 2018, temporary restrictions were provided to the employer.
An MRI of the worker's brain was conducted on April 19, 2018 and reported a normal study. The worker returned to work on May 16, 2018, with restrictions. On May 30, 2018, the worker's family physician referred the worker to a neurologist.
On July 11, 2018, the worker attended call-in examinations with the WCB psychological consultant and a WCB medical advisor. The WCB psychological consultant opined that the worker's current diagnosis of "post-concussive syndrome, exacerbated Depressive Disorder" was accounted for in relation to the workplace injury. He recommended that the worker be referred to a psychiatrist to review the worker's medication to help his functioning, which referral was recommended to occur prior to any increase in the worker's hours.
The WCB medical advisor noted that recovery from concussion typically occurs over several days to a few weeks, and that at 18 months post-injury, it was increasingly difficult to account for or attribute symptoms to effects of a post-concussion syndrome. The WCB medical advisor provided that the worker's current presentation was most striking for depression, and to the extent a degree of depression related to effects of the workplace injury, it would be accounted for. The medical advisor agreed with the WCB psychological consultant's recommendation that the worker be referred to a psychiatrist for further treatment. As well, it was noted that the worker's re-engagement in a return to work program might be the most important next step in the worker's rehabilitation.
Following the call-in examinations, the employer was advised on July 31, 2018 that the worker's restrictions were updated to be: increase the return to work plan to 3 days/week at 3 hours per shift performing similar administrative office type duties; avoid busy environments, may require frequent rests; lifting up to 15 pounds; push/pull up to 30 pounds; start with less demanding cognitive tasks: filing, inventory; avoid tasks most likely to exacerbate symptoms: avoid strong fumes/odors, loud noises, excessive head movement.
On August 3, 2018, the worker was seen by the neurologist. The neurologist opined, after examination, that the worker's history was consistent with "a post concussion syndrome with the clinical evaluation suggesting the cervical dystonia to be a major contributory factor which at a minimum was exacerbated by the injury (whiplash-type impact)." The neurologist went on to state that the worker's headaches were "…clearly cervicogenic…" and the neck pain the worker reported was related to features of cervical dystonia. The neurologist recommended botulinum toxin injection therapy to help the worker's symptoms, which injections were authorized by the WCB on August 29, 2018. On September 24, 2018, the WCB forwarded a referral to a psychiatrist for the worker. On October 5, 2018, the employer was advised that the worker's hours could be increased to four hours per shift.
On October 11, 2018, the employer's representative requested that Review Office reconsider the WCB's December 6, 2017 decision to pay the worker full wage loss benefits as of November 3, 2017. The worker's representative submitted that information provided by the employer on November 9, 2017 indicated that it was not the worker's compensable injury that rendered him unable to work, but the worker's choice to remove himself from the workplace on November 6, 2017, and it was therefore a disciplinary matter that kept him off work.
On November 22, 2018, Review Office determined that the worker was not entitled to full wage loss benefits as of November 3, 2017. Review Office determined that the medical evidence did not support that the worker needed to be fully off work as of November 3, 2017. Review Office found that the medical evidence supported the worker was recovered from the effects of the concussion, and his diagnosis of depression which was accepted in relation to the first diagnosis of concussion should have been of limited duration after recovery from the concussion. Review Office determined the worker was capable of working the 4-hour shifts as set out in his graduated return to work plan on November 6, 2017. Review Office found that the events in early November 2017 leading to the worker's abstention from work and his absence from work after November 8, 2017 were related to employment-related issues and not to his compensable injury or a consequence of it.
On February 5, 2019, the worker's 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.
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(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) 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.
Section 22 of the Act provides that the worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, and that the WCB may reduce or suspend compensation payable to the worker if the worker fails to comply.
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 represented by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation at the hearing, a written copy of which was also made available to the panel. The worker responded to questions from his representative and from the panel.
The worker's position was that the evidence does not support that the worker had totally recovered from his compensable injury as of November 2, 2017, and he is therefore entitled to full wage loss benefits after that date.
The worker's representative submitted that the medical information on file does not support that the worker had recovered from the effects of his concussion or the psychological injury which was accepted as compensable. She noted that reports from several medical professionals, including three WCB medical advisors, indicated that further investigation into and treatment for the symptoms of post-concussion syndrome was required and supported that the worker had not recovered from his concussion symptoms in November 2017. She noted that new restrictions were added or amended several times between December 2017 and September 2018, which further supported that the worker had not recovered from his post-concussion syndrome.
The worker's representative submitted that the worker had not recovered from the accepted diagnosis of Major Depressive Disorder with Anxious Distress on November 3, 2017. She submitted that Major Depressive Disorder was a subsequent and separate injury caused by the accident and the effects of the accident, with its own recovery timeline. Treatment for that injury had only commenced the week of Review Office's recovery date. The representative referred to several medical reports between November 3, 2017 and October 2018 supporting that the worker had not recovered from that disorder, and noted that the file is full of additional medical evidence which supported the worker's total disability due to his psychological injury from November 2017 until his return to work commencing in April 2018.
The representative submitted that the medical evidence supports the worker's need for time off from work after November 2, 2017 in varying degrees and based on the advice of his medical treatment providers. The representative suggested that each time a change was made to the worker's capability for work, it was supported and determined necessary by the WCB medical professionals, and as such, the graduated return to work program was supported and based on approvals from the WCB medical staff. The representative referred to numerous medical reports on file which she submitted highlighted the need for the worker's total or partial absence from work due to the compensable diagnoses. The representative submitted that the evidence did not support that the worker refused to participate in the gradual return to work program. Rather, the worker had multiple treatment providers who indicated that he should not be at work and should focus on his treatment, and it was reasonable that he followed their advice.
The worker's representative submitted that the events at the beginning of November 2017 were related to the gradual return to work program and the symptoms the worker was still suffering as a result of the accident. The representative disagreed with Review Office's indication that the series of events in early November were unrelated to the accident and were a labour relations issue. The representative noted that the meeting was in regard to the worker's duties and productivity, and submitted that lack of production related to the symptoms of the compensable injury.
The worker's representative submitted that with the number of psychological restrictions on file, it is impossible to determine whether the worker's symptoms were what led to him being called to the meeting with the employer on November 8, 2017, and submitted that what is important is the effect the meeting had on the worker's compensable injuries and his symptoms. The representative submitted that the meeting and series of events preceding the meeting had the effect of considerably increasing the symptoms of the compensable diagnosis of Major Depressive Disorder, as well as the headaches from the post-concussion syndrome, which increase in symptoms was the reason the worker was determined to be temporarily totally disabled.
The worker's representative submitted that all of the treating medical providers and the WCB medical professionals were of the opinion that the worker was temporarily totally disabled due to the symptoms of the compensable diagnoses after the incidents in November 2017.
The employer was represented by an advocate, who filed a written submission dated August 30, 2019, but did not otherwise participate in the appeal.
The employer's position was that they supported the Review Office decision and that benefits beyond November 2017 were correctly denied.
The employer's advocate submitted that the employer had been very reasonable and flexible in recognizing the worker's injury and accommodating his return to work. It was submitted that the employer went above and beyond in their attempts to have the worker back to work. In their view, it was through the behaviour of the worker that the plan failed in November 2017. The advocate submitted that the employer had the right and responsibility to move its business forward.
The employer's advocate noted that the worker began missing time from work as of November 3, 2017. The advocate noted that the worker did not complete any of his modified duty on November 6, 2017. He was upset with another worker, but did not speak to anyone about his reasons for not performing his work duties. The worker was asked to attend a meeting relating to his actions of November 6, 2017. The advocate referred to notes of the meeting which, she said demonstrate serious concerns they had with respect to the worker. The advocate noted that the worker failed to act to correct his actions, and submitted that his lack of action was not due to the effects of the work accident or the actions of the employer.
The advocate noted that beyond November 2017 the worker reverted to less than what he could do mere weeks post-accident. The advocate submitted that it is difficult to link the accepted compensable injury to the worker's actions or symptoms a full 10 months after the date of injury, which would make it more difficult to causally link his complaints and behaviour to the accepted injury.
The employer's advocate submitted that the worker's non-performance of his work duties on and after November 3, 2017 was not a medical issue, but a labour relations issue. The advocate submitted that the worker's behaviour and attitude were not only inappropriate, but also hostile and possibly insubordinate. This was a disciplinary matter and not one of disability.
The issue before the panel is whether or not the worker is entitled to full wage loss benefits after November 2, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity after November 2, 2017 as a result of his compensable injury. The panel is able to make that finding, for the reasons that follow.
The worker has an accepted claim for a January 9, 2017 workplace accident, with the compensable diagnoses being Concussion, Neck & Thoracolumbar strain, and mild Major Depressive Disorder with Anxious Distress.
The panel notes that the worker was diagnosed with mild Major Depressive Disorder with Anxious Distress by the WCB psychological consultant on September 27, 2017, based on his call-in examination of the worker. The diagnosis was accepted by the WCB as compensable on September 28, 2017. The panel accepts this diagnosis as being causally related to the workplace injury.
The panel is satisfied that the worker continued to suffer from the effects of his psychological symptoms and injury beyond November 2, 2017.
The panel notes that the worker was referred to the neuropsychologist for treatment, and he first saw the neuropsychologist for treatment for his psychological injury on October 25, 2017, less than 10 days prior to the date he was subsequently considered to have recovered from his injury.
Medical information from the different healthcare providers supports that the worker continued to suffer from the effects of his psychological injury. The panel notes that, among others:
• The treating neuropsychologist stated on November 28, 2017 that she had concerns the worker's symptoms were being exacerbated by workplace issues and that the conflict at work had developed as a result of his post-concussive symptoms and associated depressive disorder. The neuropsychologist stated that the worker would benefit from time off work;
• The WCB psychological consultant concluded, on December 5, 2017, that given the reports from the physician and particularly the neuropsychologist's report, the worker would not be able to work at that time on a temporary basis;
• The WCB psychological consultant reviewed the claim updates and again opined on January 22, 2018, that on psychological grounds the worker would not be ready to begin a graduated return to work at that time.
The panel is unable to identify any medical information on file to support that the worker had recovered from his compensable diagnosis of Major Depressive Disorder with Anxious Distress as of November 3, 2017.
The panel carefully reviewed the evidence with respect to the series of events in early November 2017, including the evidence relating to the meeting with the employer on November 8, 2017. The panel is of the view that the worker's behaviour and actions at that time were related to his compensable psychological injury and symptoms and the events had a significant impact on his condition. The panel is satisfied that the medical evidence supports that the worker was unable to return to work following those incidents. The panel notes that the evidence indicates that the worker had been compliant and reasonably participating in a graduated return to work program, without any apparent incident, up to that time.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity after November 2, 2017 as a result of his compensable injury. The panel finds that the worker is therefore entitled to full wage loss benefits after that date.
The panel notes that in arriving at our decision, we make no comment with respect to the duration of the worker's entitlement to such benefits.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of November, 2019