Decision #145/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits in relation to his psychological condition. A hearing was held on August 7, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits in relation to his psychological condition.
The worker is not entitled to wage loss benefits in relation to his psychological condition.
The worker reported to the WCB on July 14, 2015 that he injured himself on July 12, 2015 when he stepped out of a vehicle and slipped on wet concrete, hurting his left knee. The worker attended at a local emergency department on the same day where an x-ray was taken, indicating left knee joint effusion. The treating physician noted decreased range of motion in the worker's left knee and that the worker was unable to fully extend or flex his knee. The physician diagnosed the worker with a left knee injury and questioned whether the worker had a lateral collateral ligament tear.
On July 22, 2015, the worker was seen by an orthopedic specialist who diagnosed the worker with a "left locked knee" and referred the worker for an MRI. The worker's claim for a left knee injury was accepted by the WCB on July 31, 2015 and payment of wage loss and other benefits began.
An MRI study in August 2015 indicated a complete tear of the worker's proximal anterior cruciate ligament, a bucket-handle tear of his medial meniscus, a posterolateral corner injury and bone contusions consistent with an ACL (anterior cruciate ligament) mechanism of injury. At that time, the worker was referred to an orthopedic surgeon for further treatment.
On August 28, 2015, the worker underwent a surgical repair of his left knee meniscal injury, and on December 3, 2015, he underwent further surgery for ACL reconstruction. Subsequently, the worker was treated with physiotherapy, and on April 5, 2016, the treating orthopedic surgeon determined the worker could return to work on full duties as of May 2, 2016.
On April 25, 2016, the worker advised the WCB that he would be returning to work but with another employer.
The worker was examined by the WCB physiotherapy consultant on June 13, 2017 for the purpose of establishing a Permanent Partial Impairment rating.
In a conversation with the WCB on July 18, 2017, the worker's representative raised concerns that the worker had a psychological condition related to the workplace injury and requested that condition be adjudicated as part of his claim.
On August 3, 2017, the worker's representative provided the WCB with an August 2, 2017 report from a therapy centre confirming the worker's attendance for 10 therapy sessions between January 2017 and April 2017. The report set out that the worker was referred to the centre by his treating family physician "…to find better coping skills in dealing with the psychological impact of his condition and the functional limitations imposed by the pain and discomfort he was experiencing after the knee surgery and subsequent physical rehabilitation treatment." The report also set out that the worker stopped attending the sessions when he returned to work in April 2017.
At the request of the WCB, the worker attended for a call-in examination with a WCB psychological consultant on September 6, 2017. The WCB psychological consultant determined that the worker had "…a mild Major Depressive Disorder with Anxious Distress that was associated with observable dysphoria and tearfulness, depressive mood, relative anhedonia, anxiety, and low energy." The WCB psychological consultant was of the view that the worker's Major Depressive Disorder was predominantly related to his compensable injury of July 12, 2015, but noted that the worker's condition was significantly complicated by personal, non-compensable issues.
On September 27, 2017, WCB advised the worker it would not accept responsibility for his psychological difficulties and treatment.
On January 4, 2018, the WCB received a report from the worker's treating psychologist. The psychologist noted that he had seen the worker for six sessions and provided a diagnosis of chronic pain syndrome, major depressive disorder in partial remission, and adjustment disorder with mixed depressed mood and anxiety.
A WCB psychological consultant reviewed the worker's file and engaged in discussion with the worker's treating psychologist, and then provided an opinion that there was no change to the diagnosis provided at the September 6, 2017 call-in examination. WCB advised the worker on February 21, 2018 that there was no change to the prior decision not to accept responsibility for the worker's psychological difficulties.
On June 3, 2018, the worker requested reconsideration of the February 21, 2018 decision to Review Office. The worker noted in his request that he had been taking antidepressant medication since January 2017 and that his difficulties had worsened. On June 15, 2018, Review Office overturned the WCB's decision and advised the worker that his psychological difficulties were compensable.
On June 26, 2018, the WCB advised the worker that after a review of his file, he was not entitled to wage loss benefits as he demonstrated his ability to perform his job duties at his pre-accident duties while dealing with his psychological difficulties.
The worker requested reconsideration by Review Office on July 19, 2018, noting that his accepted psychological injury was a result of the injury to his right knee, which occurred on September 5, 2017 (a new WCB claim was filed for this injury) and resulted in him being unable to work.
Review Office requested and received opinions from a WCB psychological advisor on August 13, 2018 and August 19, 2018 which were shared with the worker, who provided a response to those opinions on August 20, 2018.
On August 29, 2018, Review Office determined that the worker was not entitled to wage loss benefits as he did not have a loss of earning capacity in relation to his compensable psychological condition. Review Office noted that the worker indicated on his Request for Review form that his psychological difficulties were due to an injury to his right knee and that he had been unable to work since September 5, 2017, but found that the worker's right knee difficulties would not have been considered on this claim. Further, Review Office noted that the worker told his employer he was not working after September 5, 2017 for personal reasons of travelling and visiting his family. Review Office also noted no restrictions were placed on the worker with respect to psychological difficulties when he attended for a call-in examination on September 6, 2017. Furthermore, the worker advised his WCB case manager in a meeting on September 20, 2017 that he had not worked in the last couple of weeks by choice as he was "…giving himself a rest" and the chart note from his family physician on September 25, 2017 notes that the worker was "off work for now" and "cannot work…b/c (because) of knee pain." Review Office also considered the August 19, 2018 opinion of the WCB psychological consultant that the primary reason the worker had not continued working was due to his physical condition and personal choices.
The worker appealed the Review Office decision to the Appeal Commission on November 29, 2018. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 5, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's Board of Directors.
Section 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. That compensation includes wage loss benefits.
Payment of wage loss benefits is addressed in section 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from an accident. Section 39(2) of the Act sets out that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
The worker was represented in the teleconference hearing by an advocate who made an oral submission on the worker's behalf, and the worker, with the assistance of an interpreter, also made submissions and answered questions from members of the panel. By letter dated September 8, 2019 and received October 8, 2019, the worker also provided a written response to the information requested and received by the panel subsequent to the hearing.
The worker's position is that he is entitled to wage loss benefits arising out of his psychological condition that arose as a result of the accident of July 12, 2015. The worker, through his advocate outlined that he is seeking wage loss benefits for the period beginning in September 2017 through to January 2019 when he was able to return to work.
The worker's advocate advised that the worker was not compensated for the 17 months when he was unable to work as a result of his depression and knee injury, noting that the worker could not return to work because of the medication the worker was on, as well as due to pain and how he was feeling. On further questioning by the panel, the worker advised that he could not drive a truck due to medical restrictions and because of the medications prescribed to "calm him down."
The worker advised the panel that he worked until September 5, 2017 despite issues with his sleep and that he injured his right knee on that date, getting out of a truck.
The worker confirmed that his plan was to visit his family in November 2017 but he was injured in September. He stated that he disputes his subsequent employer's assertion that he left the country in September 2017 and further that he quit his job. The worker confirmed that he did email his employer in August 2017 saying he would be taking a few months off.
The worker advised he did not tell the WCB on September 20, 2017 that he was taking a rest. He questioned the opinions of the WCB doctors who examined him.
With respect to his work history, the worker advised the panel that he did not work from September 2017 through to January 2019. The worker advised he received Employment Insurance benefits for 16 weeks during this period. He also confirmed that he had a surgery in August 2018 and was in recovery from that surgery until January 2019.
In sum, the worker's position is that he was unable to work after September 5, 2017 as a result of the psychological injury arising out of the injury to his left knee that resulted from the accident of July 12, 2015.
The accident employer was represented in the teleconference hearing by its operations manager who did not make any submissions to the panel.
The question for determination by the panel is whether the worker is entitled to wage loss benefits arising out of his psychological condition. In order to find that the worker is entitled to such benefits, the panel must find that the worker experienced a loss of earning capacity as a result of his compensable psychological condition that arose out of the accident of July 12, 2015. The panel was not able make that finding for the reasons that follow.
Wage loss benefits are payable to a worker for loss of earning capacity that is the result of a compensable accident in which the worker suffered personal injury. Here, the worker hurt his left knee as a result of a fall that occurred arising out of and in the course of his employment on July 12, 2015. His claim was accepted by the WCB on July 31, 2015 and payment of wage loss and other benefits began at that time.
A review of the file history reveals that on June 15, 2018, after the WCB had initially refused to accept that the worker's psychological condition was related to the injury incurred in the accident of July 12, 2015, Review Office overturned the WCB's decision and determined that the worker's psychological difficulties were compensable.
The worker confirmed to the panel that he is seeking wage loss benefits for the period beginning in September 2017 through to January 2019. Initially, after the injury in July 2015, the worker was unable to return to work until May 1, 2016 when WCB terminated his wage loss benefits. At that time, the worker returned to work in his pre-accident occupation with a new employer. There were no restrictions placed on the worker at that time.
In the new employment, the worker again injured his left knee and leg in October 2016 and filed a new claim with the WCB arising out of that injury. In respect of that claim, which has been adjudicated, the worker experienced a loss of earning capacity from October 8, 2016 through to April 20, 2017 when he returned to his regular duties with that employer. The worker continued to work at his regular duties through to September 5, 2017. He states this was the last date he was able to work, until January 2019, as a result of the psychological injury arising out of the accident of July 12, 2015.
The panel gave careful consideration to the evidence relating to the worker's loss of earning capacity after September 5, 2017. A letter on file dated August 2, 2017 from a therapy centre indicates that the worker was engaged in therapy to address his psychological condition during the period of January through April 2017, but did not participate in further therapy after his return to work in April 2017.
The worker was able to work his regular duties from April 2017 through to September 5, 2017. On August 22, 2017, the worker informed his current employer by email that he would be away on vacation beginning the 1st week of September 2017 for up to two months.
The worker told members of the panel that he was not capable of working after September 5 as a result of the medications prescribed to address his anxiety and as a result of restrictions his treating physician placed on his driving.
The worker also advised the panel that he injured his right knee on September 5, 2017 getting out of his truck at work. The panel notes that a claim was made in respect of that event and has been adjudicated.
The worker attended at the WCB on September 6, 2017 for a psychological assessment. In the course of that assessment which took place with the assistance of an interpreter, the worker reported concerns with respect to significant reduction in his sleep duration and how his pain and sleep issues might impact his driving. The WCB psychological advisor concluded that the worker's major depressive disorder was related to the compensable injury and noted that the worker has not been on any related medications since December 2016. The WCB psychological advisor recommended that the worker follow up with his treating physician as to medical management of his depressive symptoms and sleep problems. With respect to the worker's concerns about his sleep, the WCB psychological consultant also recommended that the worker continue to pull over and rest when he becomes fatigued and did not suggest any restrictions on his ongoing work duties.
On September 20, 2017, while at the WCB waiting for his permanent partial impairment examination to take place, the worker spoke with the WCB case manager (without the benefit of an interpreter present). As outlined in the claim notes of the same date, the worker advised that by choice he had not worked over the previous two weeks in order to give himself a rest.
The case manager followed up with the worker's employer on the same date, who advised that the worker had not worked since September 6, 2017 and indicated he would be off for a couple of months as he was travelling. The employer later issued a Record of Employment on March 15, 2018 indicating that the last day for which the worker was paid was September 10, 2017, which was also the end date of the final pay period. The reason indicated for issuance of the Record of Employment is that the worker quit.
The case manager tried to contact the worker's advisor on September 20, 2017. The worker's advisor left a voicemail message later that day indicating that the worker did not understand the conversation with the case manager of earlier that day as it had occurred without an interpreter present, and, further, that the worker was moving to Vancouver. The worker's advisor stated his position that the worker is unable to drive his truck as it is unsafe for him to do so due to his lack of sleep.
In the course of the September 20, 2017 WCB examination relating to determination of the worker's permanent partial impairment, the worker reported, with the assistance of an interpreter, that "…his symptoms and function have progressively worsened since his return to work this year. He reported taking the last two weeks off to see if there would be any improvement. He reported that there has been no improvement with being off work."
The medical chart notes from the worker's physician in British Columbia (B.C.) indicate the worker was first seen on September 25, 2017. The worker's report to the physician was that he was off work to April 2017 and then returned to work until 3 weeks prior to the appointment. He stopped working because his left knee pain was progressively getting worse. He also reported sleep problems and stress over the previous year and that he moved to B.C. on September 6 for personal reasons. The physician assessed the worker and recommended treatment for his left knee pain and prescribed a trial of medication to address his insomnia. The notes indicate that the worker is "…off work for now, cannot work as a truck driver b/c (because) of knee pain."
In a follow-up appointment with his treating physician on October 5, 2017, the worker reported ongoing issues with left knee pain and followed up on the medication trialed to address his sleep issues. He noted feeling stressed out lately, worried about his current situation, feeling a bit irritable and occasionally depressed.
On October 19, 2017, the worker's B.C. physician wrote a doctor's note stating that the worker is unable to work as a truck driver. No further information was provided.
The next chart notes from the worker's treating physician, dated November 9, 2017, relate to worsening left knee pain, new right knee pain and improvements in sleep with the medication prescribed.
The worker's position that he was unable to work as of September 6, 2017 as a result of his psychological condition arising out of the accident of July 12, 2015 is not supported by the evidence here. The evidence rather points to other possible explanations for the worker's loss of income as of that date, including the worker's choice to leave his employment and move to another province.
The evidence before the panel does confirm that the worker was able to undertake his regular employment duties while managing his psychological condition up until he left that employment on September 6, 2017. The Record of Employment provided by his employer indicates that the worker quit his job effective the end of that pay period.
The medical findings in particular do not support that the worker was unable to carry out his job duties as a result of his psychological condition at the time that he ceased that employment. There were no medical restrictions in place and the worker was not, despite his assertions, taking any medications at that time that might have impacted his ability to continue working.
On a balance of probabilities, the panel is satisfied that the worker's loss of earning capacity was not a result of his compensable psychological condition that arose out of the accident of July 12, 2015. The worker is therefore not entitled to wage loss benefits in relation to his psychological condition. The appeal is dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of December, 2019