The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after April 22, 2019. A hearing was held on July 15, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 22, 2019.

Decision

The worker is entitled to wage loss benefits after April 22, 2019.

Background

The worker filed a Worker Incident Report with the WCB on December 12, 2014. She reported she had been off work since April 17, 2014 due to symptoms of depression, that she was recently diagnosed with post-traumatic stress disorder (“PTSD”) and that it was not known which trauma incident caused her PTSD.

On December 17, 2014, the WCB contacted the worker to discuss her claim. The worker advised that as the result of a previous workplace injury, she was working in an accommodated position with the employer until she stopped working in April 2014. She confirmed that she could not recall a specific incident on the last day worked that caused her to go off work, but that she had been experiencing symptoms of PTSD for many years, though only recently diagnosed and treated. The worker indicated her belief that her PTSD symptoms resulted from an accumulation of exposures to traumatic events in the course of her previous position with the employer.

On February 9, 2015, the WCB spoke with the worker’s supervisor in the accommodated position. The supervisor confirmed he supervised the worker from approximately January 2012 and that she frequently spoke of being stressed by issues in her home life. The supervisor also noted that when he addressed performance issues with the worker, she reported feeling stressed that she could not perform her duties quickly enough or that she required further training.

The WCB advised the worker on February 9, 2015 that her claim was not accepted as it could not establish there as an accident arising out of or in the course of her employment. The worker requested reconsideration of this decision to Review Office on July 25, 2016. After receiving submissions from both parties, Review Office returned the file to the WCB’s Compensation Services for further investigation on September 21, 2016.

The WCB gathered further information from the employer, including speaking with coworkers regarding specific traumatic events the worker reported. On February 23, 2017, a WCB psychological advisor reviewed the worker’s file and concluded the reports from the worker’s treating psychologist and psychiatrist supported “…the presence of symptoms that meet criteria for PTSD, and its association to the workplace exposure to traumatic events.”

The WCB advised the worker on March 3, 2017 that her claim for a psychological injury was accepted; however, she was only entitled to medical aid benefits with no entitlement to wage loss benefits.

On June 19, 2017, the worker’s representative requested the Review Office reconsider the WCB’s decision that the worker was not entitled to wage loss benefits noting the worker suffered a loss of earning capacity due to her continuing symptoms of psychological distress. Review Office determined on August 28, 2017 the worker was entitled to wage loss benefits as of November 7, 2014, the date of first diagnosis of PTSD. The Review Office returned the worker’s file to the WCB’s Compensation Services to determine the duration of her entitlement to wage loss benefits.

The WCB obtained information from the employer and worker, including a copy of the worker’s resignation letter dated May 8, 2015 and advised the worker on December 18, 2017 that her entitlement to wage loss benefits ended as of May 8, 2015. On January 5, 2018, the worker’s representative requested Review Office reconsider the WCB’s decision noting that the worker terminated her employment with the employer with the support of her treating healthcare providers, knowing she was unable to return to work in any capacity and that a return to work in her current occupation would not be favourable.

Review Office determined on February 12, 2018 the worker was entitled to wage loss benefits beyond May 7, 2015 and noted that if there was evidence provided that the worker was able to return to work in some capacity, the WCB’s Compensation Services could then determine if suitable positions were available with the employer had the worker not resigned, or could explore other return to work options.

At the request of the WCB, the worker attended a call-in examination with the WCB’s psychiatric consultant on March 25, 2019. The consultant determined that the worker’s “…current presentation is not medically related to the workplace incidents and cannot be explained by the WCB accept diagnoses of PTSD.”

On April 9, 2019, the WCB advised the worker that it could no longer establish an ongoing relationship between her current difficulties and the compensable workplace accident of April 17, 2014 and for that reason, she was not entitled to wage loss benefits after April 22, 2019.

The worker’s treating psychologist provided a further report to the WCB on July 17, 2019 providing the worker’s diagnosis of PTSD and noting her active participation in her treatment. On August 7, 2019, the WCB’s psychiatric consultant reviewed the report and provided a list of issues the report did not address.

On August 15, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. In a discussion with the worker on August 20, 2019, the WCB case manager advised that the medical information received from her treating psychiatrist was being reviewed, pending a discussion between her healthcare provider and the WCB. After clarifying the information being sought from the worker’s treating psychiatrist, the WCB advised the worker on August 22, 2019 that there would be no change to the earlier decision and her request for reconsideration would be forwarded to Review Office.

On October 11, 2019, Review Office determined the worker was not entitled to wage loss benefits after April 22, 2019, accepting the WCB psychiatric consultant’s opinion that the worker’s current presentation did not support a diagnosis of PTSD. Review Office found that the worker was not completely disabled from working and would be capable of returning to the accommodated position that she was performing before she stopped working in April 2014.

On December 17, 2019 the worker again requested Review Office to reconsider the WCB’s decision regarding her entitlement to wage loss benefits after April 22, 2019. A further report from her treating psychiatrist was provided to Review Office on January 3, 2020. On February 18, 2020, Review Office determined the worker was not entitled to wage loss benefits after April 22, 2019. Review Office accepted the opinion of the worker’s treating psychiatrist that the worker was not totally disabled and found that the worker was capable of performing the administrative duties of the accommodated position provided by the employer at the time she stopped working in April 2014; however, as she resigned that position in 2015, she was not able to return. As such, Review Office determined the worker’s current loss of earning capacity was not related to her psychological injury and she was not entitled to wage loss benefits after April 22, 2019.

The worker filed an appeal with the Appeal Commission on March 12, 2020. A teleconference hearing took place on July 15, 2020.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB 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 to the worker.

Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker’s Position

The worker appeared in the hearing on her own behalf. She made an oral submission to the panel and answered questions put to her by members of the appeal panel.

The worker’s position is that she should be entitled to wage loss benefits beyond April 22, 2019 as she continues to experience PTSD symptoms arising out of the compensable injury of April 17, 2014 and as a result her earning capacity continues to be negatively impacted.

In her submission to the panel, the worker described the exposure to a number of traumatic events in the course of her work. These exposures ultimately resulted in the November 2014 diagnosis of PTSD. She explained that until her diagnosis, she did not understand the impact those incidents had upon her.

The worker referenced the assessment by the WCB psychiatric consultant in March 2019 and noted that the appointment lasted for no longer than one hour and that the resulting report did not address the Diagnostic and Statistical Manual (“DSM”) criteria for PTSD diagnosis. Further, and in response to the findings of the WCB psychiatric consultant, set out in the report of March 25, 2019, the worker directed the panel to consider the response provided by her treating psychiatrist, dated January 3, 2020. On questioning by panel members, the worker advised that she found the call-in examination very stressful and did not have any trust in the psychiatric consultant. As a result, she held back in providing information about the traumatic events she had experienced and tried to focus on the positive improvements she had been making.

The worker indicated to the panel that she remains susceptible to triggering of her PTSD symptoms. She told the panel that although there is no cure for PTSD, she is trying to learn to live with it. While she wants to work and be useful, her inability to drive remains a challenge. In response to questioning by panel members, the worker indicated a willingness to explore other work options that would draw upon her background knowledge and skills but noted she has not taken any steps toward a return to work or retraining, to date.

In terms of treatment, the worker noted that she finds the use of cannabis products to be effective and is supported in this usage by her prescribing physician. She also continues to rely upon traditional psychological medications that are reviewed by the prescribing psychiatrist every three months.

The worker agreed with the conclusion of her treating practitioners that she is not fully disabled but indicated that she requires some assistance and time, suggesting that WCB’s vocational rehabilitation services would be helpful in making the transition back to employment. In the interim, she continues to experience a loss of earning capacity that is directly related to the compensable psychological diagnosis.

The worker’s position, in sum, is that she is entitled to further wage loss benefits beyond April 22, 2019 as she continues to experience a loss of earning capacity that arises out of her compensable workplace injury.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and answered questions from members of the appeal panel.

The employer’s position, as outlined by the advocate, is that the worker has been properly compensated for her psychological injury and is not entitled to additional compensation for wage loss.

The employer’s advocate pointed to the conclusion of the WCB psychiatric consultant that the worker’s current condition is not medically related to the workplace incidents, and noted the worker’s past opioid use, ongoing use of cannabis, and family-related stressors as other potential causes for the ongoing symptomology. The advocate noted that the reports from the worker’s treating psychologist also point to non-compensable stressors and over-reliance upon cannabis. The advocate stated the employer accepted the expert opinion of the WCB psychiatric consultant and suggested that the panel should do so as well.

The employer’s advocate noted that prior to the worker’s leave from her work in April 2014 the employer already had expressed concerns around the worker’s poor concentration and falling asleep in the workplace. In spring 2015, when the worker left her employment, the employer was not aware of the diagnosis of PTSD but if it had been, could have looked at different options for permanent accommodation of the worker’s condition.

In sum, the employer’s position is that the evidence supports a finding that the worker’s continuing symptoms are not related to the workplace injury but are attributable to other causes, including non-compensable stressors and cannabis usage. For this reason, the employer’s position is that the panel should find the worker does not have a loss of earning capacity beyond April 22, 2019 as a result of the compensable psychological injury, and the appeal should be denied.

Analysis

The worker appealed the decision that she is not entitled to wage loss benefits beyond April 22, 2019. In order to find in favour of the worker, the panel would have to determine that the worker continued to sustain a loss of earning capacity beyond April 22, 2019 as a result of the compensable psychological injury. The panel was able to make such a finding for the reasons that follow.

In reviewing the evidence before us, the panel considered, in particular, the medical reports during the period leading up to and subsequent to the WCB’s April 2019 decision that the worker is not entitled to further wage loss benefits.

The treating psychiatrist’s narrative report of October 25, 2018 outlines the treatment provided to the worker and her active participation in that treatment. He noted that:

“Despite the benefit that she has accrued, she continues to experience a number of residual symptoms of Post Traumatic Stress Disorder characterized by the recurrence of involuntary and intrusive memories of traumatic events that she has witnessed in the course of her work. She, as well, experiences dissociative reactions i.e. flashbacks to traumatic events that she witnessed during the course of her employment....She experiences psychological distress and exposure to external and internal cues that resemble aspects of traumatic events that she has witnessed and as well, experiences marked physiological reaction to cues that resemble aspects of traumatic events that she has witnessed. She continues to experience feelings of fear as well as detachment and estrangement from others along side diminished interest and participation in activities as well as persistent inability to experience positive emotions. She experiences an exaggerated startle response as well as problems with concentration, insomnia, and hyper-vigilance.”

The treating psychiatrist concluded that he did not believe the worker was ready to return to work, highlighting her concentration difficulties, hypervigilance and social anxiety as barriers.

A WCB psychological advisor reviewed the worker’s file on November 29, 2018 and determined that given the length of the claim, gaps in information, and the medications prescribed to the worker, a psychiatric call-in examination was warranted to determine her diagnosis and whether proposed treatment was appropriate.

The call-in examination took place on March 11, 2019. The WCB psychiatric consultant’s assessment notes summarize the worker’s diagnosis and treatment history, her presentation and current circumstances and current medications. The psychiatric consultant outlines the worker’s responses to various questions posed in the assessment and comments that the worker has a history of Opioid Use Disorder and possible Benzodiazepine Use Disorder. The WCB psychiatric consultant concluded that the worker’s current presentation was not “medically related to the workplace incidents and cannot be explained by the WCB accepted diagnosis of PTSD.”

The panel noted the WCB psychiatric consultant’s report does not review the DSM diagnostic criteria for PTSD or their application to the worker, yet concludes that the PTSD diagnosis is invalid. The panel also noted that although there is little in the report to provide a basis to determine whether the worker’s continuing loss of earning capacity was a result of the compensable workplace injury, both the WCB and the Review Office relied on the psychiatric consultant’s conclusions to determine the worker was no longer eligible for wage loss benefits.

The panel further noted the worker’s description of this assessment as brief, having taken place over a period of approximately one hour, which she described as very stressful in the circumstances. The panel acknowledges the worker’s stated mistrust of the WCB psychiatric consultant and her perception that a negative judgment was made toward her by the psychiatrist.

The July 17, 2019 narrative report from the worker’s treating psychologist outlined improvements in the worker’s symptomology. Of note, is the psychologist’s conclusion that although the worker had made noteworthy improvements: 

“...she remains symptomatic and not able to work. Problems with concentration, agitation, and her ease of being triggered by reminders of traumatic events remain barriers... When anxious, [the worker] is not the most clear communicator.... However, this tendency to become distractable [sic] in conversation should not be confused with an absence of true symptoms. There is no doubt in my mind that [the worker] has PTSD and is recovering.”

The panel noted that the treating psychologist’s report directly addressed some of the worker’s concerns arising out of the March 11, 2019 WCB psychiatric advisor’s report. As well, it confirmed the ongoing diagnosis of PTSD and that the worker remained unable to return to work. The conclusions of this report do not support the WCB determination of two months prior that the worker’s condition was no longer related to the compensable workplace diagnosis.

The January 3, 2020 report from the worker’s treating psychiatrist provided a detailed response to the WCB psychiatric consultant’s March 11, 2019 report. He reviewed the DSM diagnostic criteria for PTSD and set out how the worker evidenced this symptomology. He addressed the WCB psychiatric consultant’s comments regarding the worker’s use of opioids, sedatives and cannabis, noting in each case that the worker does not meet the DSM diagnostic criteria for disorders in the usage of those substances. Finally, the treating psychiatrist provided an opinion on the worker’s possible return to work, stating that he would not recommend that she return to her previous occupation or any occupation where she would be exposed to the kind of traumatic experiences that led to development of her PTSD. He noted the worker experienced:

“...ongoing negative alterations in cognition and mood as well as persistent distorted cognitions stemming from the trauma that she was exposed to. She, as well, maintains a persistent negative emotional state characterized by anhedonia, detachment, isolation, difficulties with irritability, exaggerated startle response and problems with concentration that stem from her exposure to the traumatic events....”

On this basis, the treating psychiatrist stated that the worker has limitations in her capacity to tolerate stressful workplace environments and but he supports a return to work that would be suitable in the context of these limitations.

The panel also noted the more recent March 18, 2020 opinion of the WCB psychiatric advisor in which she approved the worker’s medications for treatment of PTSD for a period of two more years as well as the Doctor Progress Report dated March 27, 2020 from the treating psychiatrist confirming that the worker’s recovery was progressing but with slow improvement.

In considering whether the worker’s loss of earning capacity is related to her compensable diagnosis, the panel also considered the worker’s testimony as to her abilities and current status. She testified that she remains susceptible to triggering of PTSD symptoms and feels vulnerable as a result, but recognizes that she needs to learn to live with PTSD. She stated that she wants to be useful and help others again using her knowledge and past experience. The worker was not able to define what kind of work she might do and noted she had raised the possibility of vocational rehabilitation with the WCB case manager, although it was not offered to her. She noted as well that because of where she lives, she faces an additional hurdle in terms of transportation for work, as she is unable to drive but is contemplating a move to an urban area.

The evidence here leads the panel to find on a balance of probabilities that as of April 22, 2019, the worker continued to experience debilitating symptoms arising out of the compensable diagnosis of PTSD such that she was not capable of a return to work at that time. Where there is a difference of opinion between the WCB psychiatric consultant and the worker’s treating professionals, the panel preferred and accepted the conclusions reached by the professionals who treated the worker since her diagnosis in late 2014. In particular, the panel accepts and relies upon the January 3, 2020 report from the worker’s treating psychiatrist as to the worker’s ongoing symptomology and PTSD diagnosis well as the treating psychologist’s report of July 17, 2019 that outlines the worker’s ongoing PTSD symptomology and concludes she is unable to return to work at that time due to that condition.

With respect to the worker’s loss of earning capacity, the panel also accepts the conclusions of the treating psychiatrist that the worker is no longer fully disabled from all work but could return to work with restrictions. The worker agreed with this assessment and indicated her desire that the WCB support her in terms of retraining or vocational rehabilitation so as to facilitate the process. The panel noted there is no evidence on the worker’s WCB file of any attempt by the WCB to provide vocational rehabilitation services to the worker, despite the worker’s stated request and the direction provided by Review Office on February 12, 2018.

The panel finds that evidence supports that the worker is now capable of working within restrictions, to be determined by the treating medical professionals in consultation with the WCB, and urges the WCB to provide such services and supports as may be required to facilitate the worker’s successful return to work, including any necessary vocational rehabilitation.

The panel therefore determines, on a balance of probabilities, that the worker is entitled to wage loss benefits beyond April 22, 2019. The appeal is allowed.

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 25th day of August, 2020