The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his restrictions should be made permanent. A hearing was held on February 4, 2020 to consider the worker's appeal.

Issue

Whether or not the worker's restrictions should be made permanent.

Decision

The worker's restrictions should not be made permanent.

Background

The employer filed an Employer's Incident Report with the WCB on June 26, 2015 reporting a psychological injury for the worker as a result of a June 22, 2015 incident involving a resident with whom the worker had multiple difficult incidents with. The worker discussed his claim with the WCB on June 30, 2015. He confirmed the incident and reported that two years previously, he had another "…really bad incident at work…" but had not filed a WCB claim. He advised that he would be seeing his family physician on July 3, 2015 and would be requesting a referral to a psychologist.

On July 3, 2015, the worker was seen by his family physician. The physician diagnosed the worker with anxiety and noted the worker's report of worsening anxiety related to his workplace, inability to leave work stressors "at work", insomnia and poor coping skills. A referral was made to a psychologist. The worker's claim was accepted by the WCB and the worker began treatment with a psychologist in July 2015.

A WCB psychological advisor assessed the worker during a call-in examination on December 9, 2015. The WCB psychological advisor opined that the worker had "…active and reducing symptoms of PTSD (post-traumatic stress disorder)". It was noted that the worker was not fit to return to work at his specific workplace. Temporary restrictions of not to return to his specific workplace, not to work with out of control suicidal, violent, discordant and high reactive people in an institutional environment or otherwise and not to have decisive and direct responsibility for self mutilating, suicidal aggressive, or homicidal people were provided to the worker and the employer on December 15, 2015.

The worker returned to an accommodated position, within his restrictions, on February 3, 2016. The worker began a different accommodated position on April 12, 2016. A July 6, 2016 report from the worker's treating psychologist recommended that the restriction with respect to the worker not returning to his specific workplace be reconsidered and a desensitization program started with a goal of having the restriction lifted by August 2016. On July 26, 2016, the worker contacted the WCB to advise that he had to leave work due to a panic attack after a desensitization session with the psychologist. The worker had two desensitization sessions at his specific workplace with his treating psychologist on August 17, 2016 and September 16, 2016. A report from the psychologist dated October 27, 2016 indicated that the worker "…engaged in a brief series of desensitization exercises. Despite his best efforts it was clear that he was not ready and able to return to [specific workplace] at the current time" and noted that the worker had an increase in symptoms after the two desensitization sessions.

On November 21, 2016, the worker's file was reviewed by a WCB psychiatric advisor. The advisor opined that despite the worker wanting to return to his specific workplace and receiving therapy to help him, "he continues to experience overwhelming anxiety when he is near [specific workplace]." The WCB psychiatric advisor recommended permanent restrictions for the worker of not to work at [specific workplace] and not to work in a situation where there is a reasonable risk of him having to restrain people. The worker and the employer were advised of the permanent restrictions on December 1, 2016.

On January 6, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker expressed disagreement with his restrictions being made permanent by the WCB. The worker felt that he was making progress in his treatment for his psychological injury and believed that he should have the opportunity to return to his pre-accident job duties. The employer provided a submission in support of the WCB's decision on February 13, 2017.

Review Office determined on March 16, 2017 that the worker's permanent restrictions were appropriate. Review Office acknowledged that the worker's treating psychologist recommended that the worker's restrictions not be made permanent, however, it was also noted that the worker had "…undergone extensive therapy…" and in consideration of the length of time of the claim and how severe the worker's symptoms were, Review Office accepted that the worker's permanent restrictions were appropriate. Review Office further stated that the WCB's Compensation Services could revisit the issue of the worker's permanent restrictions should new medical information be received.

The worker began a new accommodated temporary position with the employer on March 20, 2017. The job duties for the position included the worker briefly attending at his specific workplace but not to work at his specific workplace. On May 11, 2017, the worker's treating psychologist recommended that the worker continue to attend at his specific workplace in the accommodated position as it was helping with his treatment. The psychologist noted the opinion that the permanent restriction of not working at the worker's specific workplace should be lifted. The worker's restrictions were reviewed by a WCB psychological advisor on June 18, 2017. The WCB psychological advisor opined that the worker's permanent restriction to not work at his specific workplace should remain however, with the worker's psychologist's treatment, the worker may be able to attend at his specific workplace without having meaningful contact with any of the residents except briefly and incidentally. A further report from the worker's treating psychologist was received on July 14, 2017 with the same recommendation as previously stated. The report was again reviewed by a WCB psychological advisor on August 13, 2017 who remained of the same opinion as previously stated on June 18, 2017. On November 15, 2017, the WCB was provided with a copy of a letter to the worker from the employer advising that the worker was restricted from attending at the specific workplace.

On March 6, 2018, the worker's representative requested reconsideration of Review Office's March 16, 2017 decision. The worker's representative provided in his submission that the worker's treating healthcare providers recommended that the worker continue attending at his specific workplace as his exposure was "…crucial to his progress and recovery" and that the worker showed improvement in his symptoms since he began attending at his specific workplace in his accommodated position. On March 7, 2018, Review Office returned the worker's file to the WCB's Compensation Services for clarification regarding the worker's restrictions. On March 9, 2018, the worker was advised that the new medical information received from his treating family physician and psychologist were reviewed but as he was restricted from attending at his specific workplace, the exposure therapy suggested by the physician and psychologist were not available and his permanent restrictions remained unchanged.

The worker's representative submitted a request for reconsideration to Review Office on March 26, 2018. The worker's representative noted the worker's treating healthcare provider's opinions that the worker's symptoms were improving and that changing the permanence of the restriction of his specific workplace would "…allow him to progress in his recovery."

Review Office determined on May 29, 2018 that the worker's permanent restrictions were appropriate. Review Office noted that part of the worker's desensitization therapy involved him being able to attend briefly at his specific workplace however, it was noted that there was no evidence to support that this desensitization therapy led to a change in the permanent restrictions. Further, Review Office noted that an incident occurred while the worker was attending at the specific workplace that led the employer to not support the worker attending that location and to look for an alternate work accommodation for the worker. Review Office found that given the amount of time since the start of the claim, the worker's symptoms and the extensive therapy he received, there was no change to the previous decision and the worker's permanent restrictions were appropriate.

The worker's representative filed an appeal with the Appeal Commission on September 23, 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 policies of the WCB’s Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 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) 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.

Pursuant to Policy 43.20.25, Return to Work with the Accident Employer, the goal of the WCB is to reduce the impact of injury by returning the worker to work, preferably with the worker's accident employer. Only where a return to work with the pre-accident employer is not possible, should the different or alternate work be considered.

Worker's Position:

The worker was assisted by a union representative at the hearing. It was the worker's position that it was premature to conclude that his restrictions were permanent.

After suffering a psychological breakdown while at work, the worker sought psychiatric treatment with the goal of eventually returning to his pre-accident position. In 2016, he made an attempt to return to work and participated in a desensitization program. Unfortunately, the efforts to return to his pre-accident employment caused an exacerbation of symptoms.

Although the worker has continued to work in various accommodated positions, he maintains that his goal is to return to his pre-accident position. The worker is actively working with his doctors on a return to work plan and feels he is continuing to make progress. He says he has made great strides and continues to show improvement. In his view, therefore, it is too early to conclude that his restrictions are permanent. Further, were his restrictions to be permanent, the result would be that he would forever be precluded from returning to his chosen career.

The worker submits that the imposition of permanent restrictions does not reflect the on-going progress he has made, has delayed his treatment plan, and will impede his recovery. He therefore requests that the restrictions be amended and classified as temporary rather than permanent.

Employer's Position:

The employer was represented by a workers compensation specialist. The employer took the position that the restrictions were appropriate and should be considered permanent.

The employer noted that the worker had undergone extensive therapy. He has also attempted a gradual return to work at his pre-accident position and participated in a desensitization program. The attempts, however, were not successful. Despite the extensive therapy, the worker was continuing to experience overwhelming anxiety when he attempted to return to work. Given the length of time since the onset of the claim, as well as the severity of the difficulties experienced by the worker, the employer submitted that the decision to conclude that the worker’s restrictions were permanent was appropriate. The restrictions should therefore remain.

Analysis:

For the worker's claim to be successful, the panel must find, based on a review of all of the evidence, that the restrictions that have been put in place should not be made permanent. The panel is able to make that finding.

When a worker is injured, the WCB will assess the injury and determine whether restrictions need to be put in place to limit the worker's activity. The restrictions may be temporary or permanent. They can also be revised in response to new information or changes in the worker's presentation.

In this case, the worker underwent extensive therapy following his compensable injury. He also participated in a gradual return to work program and a desensitization program in 2016 which involved visiting his former place of employment. In response, the worker suffered a significant increase in symptoms and was unable to continue his attempt to return to work. At the time, both the worker's general practitioner and his psychologist concluded that a return to work at the worker's pre-accident employment would not be appropriate given that recent re-exposure had resulted in an exacerbation of his compensable injury and an increase in psychological symptoms.

Although the worker's general practitioner initially recommended against the worker returning to his pre-accident employment, he subsequently changed his position. He noted marked improvement in all of the worker's symptoms and commented that on-going exposure to the institution was crucial to the worker's continued progress and recovery. He therefore recommended revisiting the restrictions.

Since the initial attempt to return to work, the worker has also continued to participate in psychological treatment with the support of the WCB. The worker's psychologist has opined that the worker is continuing to make progress in his recovery and showing on-going improvement. In his view, the worker had not yet reached maximum medical improvement (MMI). The WCB's psychological advisor concurred with the assessment that the worker had not yet reached MMI.

Having reviewed the available medical evidence and, in particular, the medical evidence subsequent to the decision to make the worker's restrictions permanent, the panel finds that the medical evidence does not support the conclusion that the worker has reached MMI. On the contrary, the medical evidence suggests that he is continuing to improve.

Given that the worker is continuing to engage in therapy and treatment, is continuing to show progress, and he has not yet achieved MMI, the panel agrees with the worker that the decision to impose permanent restrictions is premature.

Based on all of the foregoing, we find that the appeal should be allowed and the worker's restrictions should not be made permanent.

The worker's appeal is therefore allowed.

Panel Members

K. Wittman, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of April, 2020