The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to full wage loss benefits after July 10, 2018 and that he does not have a loss of earning capacity after November 16, 2018. A hearing was held on December 11, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits after July 10, 2018; and

Whether or not the worker has a loss of earning capacity after November 16, 2018.

Decision

The worker is entitled to full wage loss benefits after July 10, 2018; and

The worker has a loss of earning capacity after November 16, 2018.

Background

On April 27, 2018, the employer reported to the WCB that the worker suffered injury to his head at work on April 25, 2018. The Employer Report outlines that "Employee was using a strapper to tighten strapping he let go of the handle and it sprung back and hit him in the head. The employee was cut and experience (sic) dizziness."

The worker was taken by ambulance to a local emergency department where he was diagnosed with a 2 cm scalp laceration and a minor head injury. A CT scan conducted the same day indicated no evidence of intracranial hemorrhage or skull fracture. The worker was advised to rest and remain off work for two days.

On April 30, 2018, the WCB contacted the worker to discuss his claim. At that time, the worker confirmed the mechanism of injury and reported that he had ongoing symptoms of headaches and dizziness. The claim was accepted on May 1, 2018.

The worker saw his family physician on April 30, 2018, who noted the worker's complaints of headaches and loss of vision in his left eye since the workplace accident. The physician diagnosed a head injury/concussion and noted that the worker might require referral to the concussion program.

On May 8, 2018, the worker saw a physiotherapist for initial assessment. The worker reported the mechanism of injury, and that he fell down and lost consciousness as a result. He noted a number of complaints including frequent headaches, light and noise sensitivity, feeling more fatigued throughout the day, lightheadedness when driving and on quick position changes, numbness and tingling in his forehead/cheek area, numbness to his upper left lip and occasional blurriness in his left eye. The physiotherapist diagnosed head trauma with concussion, cervical strain and laceration and contusion to the head and face.

The worker attended a call-in examination with a WCB medical advisor on May 17, 2018. Based upon that assessment, the WCB medical advisor determined that the worker had sustained a concussion from the workplace accident and made a referral to the concussion clinic. The medical advisor noted the worker reported ongoing symptoms from the workplace accident and described these as post-concussion as three to four weeks had elapsed since the accident.

The worker consulted a neurosurgeon through the concussion clinic on May 30, 2018. The neurosurgeon confirmed that the worker met the clinical criteria for a work-related concussion as well as a whiplash-type injury, and recommended the worker engage in physical activity and continue physiotherapy to improve his post-concussion symptoms, following which, a graduated return to work program could be initiated. At a follow-up appointment on June 14, 2018, the neurosurgeon noted progress with the worker's recovery and recommended that a graduated return to work program could begin.

On June 18, 2018, the worker's treating physiotherapist contacted the WCB to advise that the worker was showing signs of increased anxiety that she believed were affecting his treatment. WCB recommended she advise the worker to contact his family physician to discuss his symptoms.

The worker's file was reviewed by a WCB medical advisor on June 27, 2018. The WCB medical advisor opined that in addition to a concussion, a diagnosis of cervical strain was accounted for in relation to the workplace accident. The WCB medical advisor noted the neurosurgeon recommended a graduated return to work and that the treating physiotherapist recommended the following restrictions: 

• Start at 3 hours/day, 3 days/week 

• No standing/walking > 15 minutes at a time 

• No repetitive lifting > 5-10 lbs. 

• No repetitive pushing/pulling > 20-30 lbs. 

• No work in bright light 

• Review to progress in 2 weeks.

The WCB medical advisor further noted that recovery from a head injury should be measured by the worker's function and capacity to perform his regular duties and the worker would be considered recovered from the workplace accident once he was able to perform all of his regular duties.

On June 28, 2018, the worker's treating physician reported the worker's recovery was not satisfactory, as the worker was experiencing anxiety regarding his outlook and recovery. He recommended a psychiatric evaluation and prescribed a trial of anti-depressant medication.

The WCB notified the employer of the restrictions on July 3, 2018 and the employer confirmed their ability to accommodate the worker with a graduated return to work beginning July 9, 2018.

The worker attended a follow-up appointment with the neurosurgeon on July 9, 2018. The neurosurgeon noted that the worker reported "fluctuating post-concussion symptoms" including persistent headaches and some associated neck pain. The neurosurgeon also noted the worker reported he started medication for increased symptoms of anxiety. The worker was counselled to continue with physiotherapy and referred to a neurologist specializing in headaches. The neurosurgeon also recommended the worker follow-up with his family physician regarding his increased anxiety levels.

On July 16, 2018, the worker advised WCB that he had returned to work on July 10, 2018, it was only for an hour until he "…felt dizzy and his heart began to speed up and he felt tired." An ambulance had been called and he was taken to a local urgent care centre. The worker advised that he had not returned to work since then.

The ambulance report of July 10, 2018 indicated that on arrival, the worker was sitting outside and reported feeling faint and falling after experiencing a stressful situation with a coworker. He was noted to have a chronic headache and slight dizziness prior to the ambulance arriving. No weakness, slurred speech, tremors or confusion was noted. He was transported to a local urgent care centre. The report from the urgent care centre noted "Patient with post concussive syndrome just returned to work and stressful interaction with coworker followed by recurrent episode of dizziness now resolved…Now asymptomatic."

The worker saw his family physician again on July 12, 2018 and reported a chronic headache. The worker also reported that at work on July 10, 2018, he had gone into his supervisor's office and "…was harassed then had a panic attack and fainted". The physician noted the worker was "agitated upset anxious sadness excessive worry fatigue tired (sic)" and again suggested psychiatric services and counselling for the worker. The physician recommended that the worker not return to work.

On July 23, 2018, the worker attended a further follow-up appointment with the neurosurgeon. The neurosurgeon noted a mild improvement in the worker's post-concussive symptoms and that the worker reported suffering "…acute worsening of his symptoms…" that required him to be taken to an urgent care centre after an attempt to return to work. The neurosurgeon again recommended a graduated return to work program be initiated. Based upon the worker's comment that his position involved working in a confined space next to loud machinery, the neurosurgeon recommended that consideration be given to the worker performing his job duties outside.

The family physician, at a follow-up appointment with the worker on July 26, 2018, noted "work stress exacerbating preexisting mental health issues", prescribed further medication to address these issues, and once again recommended a psychiatric evaluation.

On July 26, 2018, the WCB case manager noted on the file that the worker would be paid partial wage loss benefits based on the restrictions in effect since July 3, 2018, until the employer provided a response on the question of accommodation and a decision could be made regarding the worker's psychological condition.

At an August 9, 2018 appointment, the worker's treating physician referred him for psychiatric evaluation and noted the worker would also benefit from seeing a psychologist.

The worker was assessed by a WCB psychological consultant during a call-in examination on September 5, 2018. The WCB psychological consultant noted the worker was not reporting "direct psychological/neuropsychological domain sequelae from the facial/head injury he had in the workplace accident dated April 25, 2018" and concluded that from a psychological perspective, there would be no restrictions directly related to the workplace injury. The psychological consultant also noted the worker's complex and pre-existing mental health history, and noted that symptoms would manifest under stressful circumstances such as a physical workplace injury.

The WCB psychological consultant went on to note that given the worker's major pre-existing mental health issue and the previous issues he had within his workplace, the worker 

"…would be susceptible to stress, anxiety, and feeling overwhelmed in situations that would overwhelm his coping capability. He may clearly over-interpret or misinterpret what he may hear, may have idiosyncratic beliefs and understandings, and will need to be carefully managed in these regards in assisting him in returning to the workplace in a safe and planned fashion." 

The WCB psychological consultant recommended ongoing follow-up for the worker's mental health issues and any stress-based exacerbation related to his injury and claim; and that psychological treatment be provided for the worker during a graduated return to work program.

On October 1, 2018, the worker consulted with a neurologist specializing in headaches. The neurologist diagnosed the worker with "posttraumatic chronic migraine" related to the workplace accident and recommended adjustments to his medications to help with the headache symptoms.

On October 2, 2018, the worker attended a further follow-up with the concussion clinic neurosurgeon who noted the worker reported "…continued stability in his postconcussion symptoms." The neurosurgeon reviewed the call-in examination report from the WCB psychological consultant and noted that the worker's pre-existing mental health status was not previously known to him. Given this new information, the neurosurgeon suggested that the issue of the worker's return to work not be addressed until after review of the recommendations of the consulting psychiatrist.

The WCB received the October 6, 2018 report from the consulting psychiatrist on October 29, 2018. In that report, the psychiatrist opined that the worker was "…prone to becoming anxious and withdrawn, with some "soft" psychotic symptoms." The psychiatrist noted that the worker was responding to the medications prescribed by his treating family physician.

The worker's treating psychologist provided a brief report to the WCB on October 29, 2018 indicating the worker "…did not report or appear to be in significant distress or at imminent risk."

The WCB psychological consultant who reviewed the worker's file on October 31, 2018 stated his view that the worker was "most likely" at his baseline psychological state and that there was no reason to believe the worker had "any enduring psychological effect" from the compensable accident.

On November 2, 2018, the treating neurosurgeon noted the worker reported significant worsening of his concussions symptoms at a follow-up appointment on November 1, 2018. The neurosurgeon reported his concern with the worker's mental health and recommended the worker seek urgent follow-up with both his family physician and his psychiatrist and that he not return to work until cleared to do so.

On November 2, 2018, the WCB advised the worker that his return to work program would begin on November 5, 2018 and included the temporary restrictions of lifting up to 20 pounds and pushing/pulling 45 to 50 pounds and the following schedule: 

Week 1: November 5th - 9th - 4 hours per day, 5 days per week. 

Week 2: November 12th - 16th - 6 hours per day, 5 days per week. 

Week 3: November 19th - 23rd - 8 hours per day, 5 days per week.

The employer contacted the WCB on November 6, 2018 to advise that the worker had not returned to work and had advised that as his healthcare providers told him he was not capable of returning to work, he would not do so.

On November 13, 2018, the worker requested reconsideration of the WCB's decision to Review Office. He noted in his submission that he continued to suffer symptoms from his concussion and did not feel it was safe for him to return to work.

The WCB advised the worker on November 15, 2018 that it had determined the incident that occurred on July 10, 2018 leading to the worker remaining off work was not related to his workplace accident, and therefore the worker was not entitled to full wage loss benefits after July 10, 2018. On November 28, 2018, the worker requested reconsideration of the WCB's November 15, 2018 decision to Review Office.

Review Office determined on January 10, 2019 that the worker did not have a loss of earning capacity after November 16, 2018 as the graduated return to work program put in place for the worker was appropriate, the worker was paid partial wage loss based on the schedule, and he no longer had a loss of earning capacity after November 16, 2018, being the final day of the graduated return to work schedule.

On April 15, 2019, the worker's representative requested Review Office reconsider the January 10, 2019 decision. The worker's representative submitted a copy of the worker's daily journal from June 1 to August 11, 2018 with monthly entries after that date to support the position that the worker's mental health issues deteriorated after the workplace accident of April 25, 2018, which resulted in the failed return to work on July 10, 2018 and the worker being unable to return to work until he began a graduated return to work schedule in December 2018. The worker's representative requested that consideration be given to providing the worker with wage loss benefits beyond November 16, 2018 until he resumed his full regular duties in March 2019.

Review Office, on June 11, 2019, determined that the worker was not entitled to full wage loss benefits after July 10, 2018 and that he did not have a loss of earning capacity after November 16, 2018. Review Office referenced its January 10, 2019 decision and noted that the worker's representative had not submitted additional or new information to support a change to that decision.

The worker's representative filed an appeal with the Appeal Commission on June 19, 2019. 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 the policies established by the Workers Compensation 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. Entitlement to wage loss benefits is addressed in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the 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 WCB established Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") to clarify the impacts of non-compensable pre-existing conditions on compensable injuries. The Policy sets out that 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 WCB will accept responsibility for the full injurious result of the compensable injury.

Worker's Position

The worker appeared before the panel accompanied by a worker advisor. The worker advisor provided the panel with a written submission and also made an oral submission and answered questions from the panel. The worker answered questions put to him by the worker advisor, as well as by panel members.

The worker's position, as outlined by the worker advisor, is that the post-concussive symptoms caused the worker's previously stable psychological condition to progressively deteriorate beginning within weeks following the compensable workplace accident. The WCB is responsible for the worker's resulting loss of earning capacity arising out of the combined effect of the worker's compensable injury and the aggravation or enhancement of his pre-existing condition.

The worker was noted to have been employed long-term with the employer and functioning in his job duties at full capacity in the period leading up to the workplace injury. The worker advisor pointed out that the medical reports indicate that the worker's psychological condition was stable immediately preceding the accident and that the worker had not received any medications or treatment for his psychological condition in the previous 10 years.

The worker advisor noted that the evidence indicates a progressive deterioration of the worker's mental health well before the WCB told him he was to return to work on July 10, 2018, pointing to the worker's journal notes for the period as supporting this position. Further, the medical evidence indicates that, post-accident, the worker began to exhibit symptoms of stress, anxiety and anger as early as mid-June 2018 when the treating physiotherapist first alerted the WCB to these concerns and requested the worker be provided with resources to assist him in addressing these concerns. Around the same time, the worker also made comments to the WCB case manager about his anxiety. By the end of June 2018, the worker's treating family physician had prescribed anti-depressant medications and suggested a referral for psychiatric evaluation.

The worker described to the panel his recollection of the events of July 10, 2018. He stated that he had a physiotherapy appointment to begin the day and then drove to work. When he arrived at work around 11:30 a.m., the worker had a headache, pain in his neck and was shaking and trembling. He went to the work area where he had been told in advance to go and waited there for instructions. When the lunch break arrived, he went out to speak with his colleagues. Afterwards, he went inside to speak with the safety coordinator to request a hard hat with a full visor. When the safety coordinator refused his request, the worker became angry, further words were exchanged and the worker left the safety coordinator's office. The worker says that on the way back to his station, he collapsed and lay down on the floor awhile. While there, he spoke with a co-worker who came to check on him and eventually went outside to cool down, because he was hot indoors. The worker described collapsing again by a picnic table outside. Ultimately, an ambulance was called and the worker was taken to a local emergency department for further observation.

With respect to this incident, the worker advisor suggested that the worker was "highly symptomatic" when he attended work on July 10, 2018 and as a result, was susceptible to the physiological response he experienced. The worker advisor noted that the WCB psychological advisor, in the September 5, 2018 report from the worker's call-in examination, commented on the worker's inclination to "…over-interpret or misinterpret what he may hear" and potential to develop idiosyncratic beliefs and understandings, as well as his need to be carefully managed in this regard.

The worker advisor argued that the medical reports prior to July 10, 2018 note that anxiety and stress were a trigger for the worker's headaches and dizziness, and that but for the worker's physical and psychological conditions acting upon one another, resulting in aggravation of both, the worker's response to the events of that day would likely not have occurred.

Further, the worker advisor submitted that the comments of both the treating neurosurgeon and the WCB psychological consultant support the position that the worker's pre-existing psychological status would have impacted his recovery from the workplace injury. The treating neurosurgeon, on becoming aware of the worker's mental health status in early October 2018, proposed that a return to work would not be appropriate until after the psychiatric report was reviewed. The WCB psychological consultant specifically noted that the worker's pre-existing psychological status was such that the worker could be expected to "decompensate under stressful circumstances, such as having an occupational injury".

With respect to the WCB-initiated return to work plan for November 2018, the worker advisor noted that there was no medical support for this plan and that the WCB did not even seek an opinion from its own medical consultants as to the appropriateness of the proposed return to work plan. The worker advisor submitted that the worker continued to experience a loss of earning capacity beyond November 16, 2018 and until November 27, 2018, did not receive medical clearance to resume working on a graduated return to work basis, although the psychiatrist noted at that time that the worker was still dealing with residual headaches from the compensable injury. The WCB medical consultant provided an opinion on February 7, 2019 stating there was no longer medical support for continuing restrictions, and the worker did resume full hours as of March 2019.

In summary, the worker's position is that he is entitled to full wage loss benefits after July 10, 2018 as he remained unable to return to work as a result of his compensable injuries, in combination with the effect of those injuries upon his pre-existing psychological condition, and further, that his loss of earning capacity continued until at least February 7, 2019, if not until his resumption of full hours at the beginning of March 2019.

Employer's Position

The employer did not participate in the appeal.

Analysis

There are two issues for determination by the panel. First, the panel must determine whether or not the worker is entitled to full wage loss benefits after July 10, 2018. In order to find in favour of the worker, the panel must find, on a balance of probabilities, that as a result of the injury incurred in the compensable accident of April 25, 2018, the worker was fully disabled from returning to work after July 10, 2018. The panel was able to make that finding on the basis of the evidence before it.

Second, the panel must determine whether or not the worker has a loss of earning capacity after November 16, 2018. In order to find in favour of the worker, the panel must find, on a balance of probabilities, that as a result of the injury incurred in the compensable accident of April 25, 2018, the worker was not able to fully return to his work after November 16, 2018. The panel was able to make that finding on the basis of the evidence before it.

Was the worker entitled to full wage loss benefits after July 10, 2018? 

The panel noted that concussive injuries can be complex, in that symptoms and effects are not always immediately evident. The medical reporting suggests that to have been the case here. 

Initially, when taken for emergency treatment following the accident, the worker was treated for a scalp laceration and assessed as having a minor head injury. The CT scan of the worker's brain taken the date of the accident revealed no evidence of intracranial hemorrhage or skull fracture. By the time the worker saw his primary care physician on April 30, 2018, he was complaining of headaches and visual loss in in his left eye since the injury. At the initial physiotherapy assessment on May 8, 2018, the worker noted headache, light and noise sensitivity, occasional tension in his neck and interim dizziness. He continued to report persistent headache and visual changes when he saw his physician on May 15, 2018, such that the physician suggested referral to both a concussion specialist and optometrist.

When the worker was examined by the WCB medical consultant on May 17, 2018, the WCB confirmed that the worker met the criteria for concussion and was eligible for referral to the concussion specialist. The ongoing symptoms the worker was reporting were diagnosed as post-concussive symptoms and a return to work with part-time sedentary duties was suggested once the concussion consult report was received and reviewed.

The worker's first consult with the concussion clinic neurosurgeon took place on May 30, 2018. The neurosurgeon confirmed that the worker met the clinical criteria for a work-related concussion as well as a whiplash-type injury. Recommendations included continuing physiotherapy and engaging in low intensity physical activity. With gradual improvement, it was hoped that the worker could engage in a graduated return to work program in a few weeks thereafter. At the next consult on June 14, 2018, the neurosurgeon confirmed the worker reported slow improvement in his post-concussion symptoms and some improvement in neck discomfort with physiotherapy.

There is evidence before the panel to suggest the worker's recovery from his compensable head injury was impacted by his pre-existing psychological condition, but there is no evidence before the panel to suggest that the worker's mental health was at risk or impacting his ability to work immediately prior to the workplace accident of April 25, 2018. Indeed, as the worker advisor noted, the medical reporting suggests the worker was psychologically stable immediately preceding the accident and that the worker had not received any medications or treatment for his psychological condition in the previous 10 years.

Beginning approximately six weeks following the compensable head injury, the worker first began to exhibit symptoms that suggest a destabilization of his psychological health. The treating physiotherapist noted concerns about the worker's increasing anxiety levels and quick temper as early as June 15, 2018 and was sufficiently concerned to initiate contact with the WCB adjudicator to request that psychological supports be provided to the worker. The WCB adjudicator recommended the worker follow up with his treating physician about any anxiety issues. 

On June 21, 2018, the treating physiotherapist reports to WCB that the worker has indicated increased headache with stress, heat, bright light and prolonged activity. The worker described to her feeling shaky inside and experiencing dizziness with increased activity.

The worker's treating physician also noted concerns on June 28, 2018, outlining the possibility that the worker's anxiety was one of the triggers of his headaches. The physician noted the worker was exhibiting anxiety, expressing pessimism about his outlook and recovery and perseverating on his symptoms. He prescribed a trial course of anti-depressant medication and suggested the worker be referred for psychiatric evaluation.

On July 5, 2018 the treating physiotherapist again reported that stress and anxiety continued to irritate the worker's headache and dizziness.

The worker advisor suggested that the worker's already increasing anxiety response was further heightened by the discussions beginning around the same time about his return to work. The panel noted that, consistent with this position, the medical reports first note anxiety symptoms around the same time that the treating professionals began to consider the return to work.

At the July 9, 2018 appointment with the neurosurgeon, the worker reported his anxiety was increasing over the last while, and that he had recently started taking medication to address it.

There is no evidence of any action by WCB in response to the psychological health concerns raised by the worker's treating physician, physiotherapist and neurosurgeon through June and July 2018, until August 15, 2018 when a course of psychological counselling was offered to the worker. By that point, the worker's treating physician had noted the need for a psychiatric assessment on three successive progress reports, beginning in June 2018.

The panel finds that the medical evidence supports the worker's position that he was not fit to return to work on July 10, 2018 as a result of an aggravation of his pre-existing psychological condition which arose out of the compensable injury of April 25, 2018. Based upon the medical reporting, the panel concludes that but for the accident, the worker's psychological condition would likely have remained asymptomatic, such that he would have been sufficiently recovered from the compensable injury to participate in the return to work plan that was to commence on July 10, 2018.

The panel notes that when the worker was ultimately assessed by the WCB psychological advisor in early September 2018, a causal link is made connecting the aggravation of the worker's vulnerable mental health to the physical injury and the return to work. The WCB psychological advisor stated in his report that: 

"…this man has pre-existing major mental health issues, he has had a previous experience of trauma, and he has adjustment issues associated with the claim. He needs ongoing medical and mental health follow-up on his non-related and pre-existing and significant mental health issues, as well as stress based exacerbation associated with his injury and claim….Given his adjustment issues, I am going to suggest that he not only see the psychologist for the four transitional sessions, but that this may need to be through his graduated return to work process to problem solve, reduce anxiety, help him interpret things accurately, monitor his safety and stability, and provide appropriate expectations for him, in collaboration with case management and his medical team."

While the treating neurosurgeon was supportive of the worker's return to work in July 2018, the panel noted that these recommendations were made without full knowledge of the extent of the worker's pre-existing mental health vulnerabilities. When the treating neurosurgeon ultimately became aware, in September 2018, of the worker's mental health history and of his deterioration in psychological health, he effectively threw the brakes on the return to work discussion, confirming the need to wait for recommendations from the treating psychiatrist as to whether and when it was safe for the worker to return to work.

In this context and with the benefit of retrospect, the panel agrees that the WCB's plan for the worker's return to work on July 10, 2018 was ill-advised and premature.

The panel finds, on a balance of probabilities that evidence supports that the worker was fully disabled from returning to work after July 10, 2018 and therefore, is entitled to full wage loss benefits after July 10, 2018.

Did the worker have a loss of earning capacity after November 16, 2018? 

With respect to the WCB-initiated plan for a graduated return to work in November 2018, that would have the worker working full-time hours after November 16, 2018, the panel is unable to find medical evidence to support this decision. The panel noted that the additional psychological counseling recommended by the WCB psychological advisor based upon the call-in examination of September 5, 2018, was not included in the return to work plan proposed by the case manager on November 2, 2018.

It was not until October 1, 2018, that the worker was first seen by a headache specialist who noted the worker presented with posttraumatic chronic migraine following his work-related concussion. While the worker's headaches had improved in severity, they continued daily. The specialist recommended a change in medication to assist in addressing any rebound component of those headaches and follow-up in three months.

When the treating neurosurgeon saw the worker on October 2, 2018, he recommended waiting for further guidance from the worker's treating psychiatrist as to whether or not a return to work was safe for the worker, with follow up to occur in one month.

The psychiatric report of October 6, 2018 noted that the worker "…is prone to becoming anxious and withdrawn with some "soft" psychotic symptoms" and notes that the worker is presenting as a medicated version of himself. The psychiatrist opines that "I think it is likely that he could once again, settle out fairly soon and likely not need his medications (especially if his stresses remit) over the long-term."

The discharge assessment of the worker by his treating physiotherapist, dated October 16, 2018 outlines physical restrictions still in place and notes that the worker's recovery from the associated cervical spine issues was resolving satisfactorily, but that further medical management was ongoing regarding the headache and psychological factors, which were complicating factors in the worker's recovery.

An October 29, 2018 report from the consulting psychologist indicates that the worker did not appear to be or report to be at imminent risk or in significant distress.

When the WCB psychological consultant reviewed the various reports on October 31, 2018, he stated his view that the worker was "most likely at his baseline psychological state".

On November 2, 2018, the treating neurosurgeon reported a significant worsening of the worker's concussion symptoms based upon the worker's November 1, 2018 report of some improvement in his headaches since the medication was adjusted in early October, but with a deterioration in his mental health, and report of depression and sleep disturbance. The neurosurgeon indicates: 

"Overall, I am very concerned about [the worker's] condition. I recommend he seek urgent follow-up with his primary care provider to reassess his mental health as well as see his psychiatrist on an urgent basis. At this point in time, I am very concerned with [the worker] being ordered to return to work…"

The worker did see the psychiatrist in follow up. On November 27, 2018, the psychiatrist completed a functional abilities form for the employer, indicated that the worker would be fit to return to a graduated work program of 4 hours daily for 28 days with a return to full duties anticipated by late January 2019.

The treating neurosurgeon, on December 13, 2018, referenced the psychiatrist's recommendations and noted his agreement that it would be reasonable for the worker to attempt a graduated return to work program, with the qualifier that it is "unlikely that an exact date at which [the worker] would be able to go back to full-time work would be difficult to specify at this time."

When the worker saw the headache specialist again on January 4, 2019 for follow-up, his medications for headache were again adjusted. By January 9, 2019, when the worker saw the treating neurosurgeon, it was noted there was already improvement in the worker's headaches and sleep since the adjustment of medication. The neurosurgeon recommended that the worker be re-evaluated in terms of his musculoskeletal injury in terms of returning to modified duties on a graduated return to work.

The WCB medical advisor reviewed the file on February 7, 2019 and confirmed there was "no risk to further neck or brain injury by participating in full activity" and recommended there be no further workplace restrictions in place.

Having reviewed the medical reports on file, the panel finds that the evidence does not support the implementation of a graduated return-to-work plan on November 2, 2018 with the worker returned to full-time work after November 16, 2018.

The panel is satisfied that, on a balance of probabilities, as a result of the injuries incurred in the compensable accident of April 25, 2018 and the resulting aggravation of the worker's pre-existing psychological condition, the worker was not able to return to full-time work after November 16, 2018. Therefore, the worker continued to have a loss of earning capacity after November 16, 2018.

The appeal is allowed on both questions.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of January, 2020