Decision #107/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to full wage loss benefits for the periods of March 24, 2020 to March 27, 2020 and April 5, 2020 to April 27, 2020. A videoconference hearing was held on June 29, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to full wage loss benefits for the periods of March 24, 2020 to March 27, 2020 and April 5, 2020 to April 27, 2020.
That the worker is not entitled to full wage loss benefits for the periods of March 24, 2020 to March 27, 2020 or April 5, 2020 to April 27, 2020.
On October 19, 2017, the employer provided the WCB with an Employer's Report, indicating the worker's right arm and head were injured at work on October 16, 2017 when the worker was assaulted. A further description was subsequently provided indicating the customer grabbed the worker, contacting her on the right side of the head two times and knocking off her sunglasses.
The worker sought medical treatment from her family physician on October 16, 2017, reporting she was assaulted by a customer and struck on her right temple. The physician noted mild bruising to the worker's right temple, tenderness to the right bridge of her nose and that the worker was in a great deal of mental anguish. The worker was diagnosed with a soft tissue injury to her face and adjustment disorder, and it was recommended she remain off work to October 22, 2017. The worker's claim was accepted by the WCB on October 25, 2017.
The worker's WCB case manager met with the worker on November 6, 2017 to discuss her claim, and the worker confirmed the October 16, 2017 incident. The WCB case manager advised that she would refer the worker to a psychologist and requested the worker discuss a possible return to work with her treating physician.
On December 5, 2017, the WCB received a report from the worker's treating psychologist of his initial assessment of the worker. The treating psychologist indicated he had sessions with the worker on November 13 and 21, 2017, and opined that the worker was "…most likely coping with an Adjustment Disorder With Anxious Mood." The worker continued treatment with the psychologist, and on January 16, 2018, the worker's WCB case manager met with the worker and the psychologist to discuss the worker's return to work and appropriate restrictions.
On January 23, 2018, the worker's file was reviewed by a WCB psychological advisor, and on February 1, 2018, the WCB's Compensation Services advised the employer that the worker had a temporary restriction. The employer indicated that they were able to accommodate the worker, and the worker returned to alternate duties and reduced hours on February 28, 2018.
The worker's restrictions were further updated, and the return to workplace restructured, with the worker continuing to work on accommodated duties and reduced hours. The worker continued to receive treatment from both her family physician and her psychologist while participating in the graduated return to work process.
On November 21, 2018, the worker attended a call-in examination with a WCB psychological consultant who opined that the worker's current diagnosis was a Specified Trauma and Stressor-Related Disorder with post-traumatic symptoms. Concerns were also raised with respect to the medications the worker was taking and a psychiatric consultation was arranged with a consultant psychiatrist to review the worker's medication regime. The worker was subsequently off work for a period of time. On May 14, 2019, following a further review by the WCB psychological consultant, in consultation with the worker's treating psychologist and family physician, the worker's restrictions were updated and the worker returned to work on June 3, 2019 in an accommodated position.
Between the worker's return to work in June 2019 and March 2020, the worker continued to work in her accommodated position, missing occasional time from work for compensable and non-compensable reasons. Further concerns were raised with respect to the worker's medication use, and on December 16, 2019, a WCB medical advisor reviewed the worker's file. Noting significant concerns with respect to the worker's medication use, the medical advisor recommended a call-in examination with a WCB psychiatric consultant.
The worker attended the call-in examination with the WCB psychiatric consultant on March 11, 2020. In her notes from that examination, the psychiatric consultant opined that a number of the worker's current medications should be tapered and discontinued, and recommended that "… a taper and discontinuation program be done one medication at a time and completed within three to four months." The consultant further opined that the worker was unable to work in safety sensitive work because of the medications she was currently taking, but there was no medical contraindication to the worker increasing her work hours to full time hours.
On March 27, 2020, the employer advised the WCB that the worker had missed time from work on March 24 to 27, 2020 related to her claim. On April 1, 2020, the WCB spoke to the worker, who confirmed she was "…feeling anxious, having overwhelming thoughts…" and having difficulties sleeping, causing her to feel "…jumpy at work and cannot focus during the day." The worker advised that she had contacted her family physician on Monday, March 30, 2020 for a phone consultation and would contact him again at the end of that week. The worker also advised that she was on vacation until April 4, 2020.
On April 2, 2020, the WCB spoke with the worker's supervisor, who advised that he had not noticed any change in the worker's demeanour or mood recently and that there had not been any issues at work.
In a Doctor Progress Report of a telephone appointment on April 6, 2020, the worker's family physician indicated the worker had reported increased anxiety and poor sleep, and had been off work since March 24, 2020. The family physician recommended the worker remain off work and be reassessed in two to three weeks.
On April 17, 2020, the worker spoke with the WCB and confirmed she had been off work since March 24, 2020 due to anxiety, with March 28 to April 4, 2020 being pre-booked vacation time. On April 20, 2020, Compensation Services advised the worker that they had determined her increase in symptoms was not related to the workplace accident and her time loss for the period of March 24 to March 27, 2020 and April 5 to April 18, 2020 would not be covered.
On April 29, 2020, the employer advised the WCB that they no longer had an accommodation available for the worker. That same day, the WCB case manager advised that the worker was being paid partial wage loss for April 19 to April 27, 2020 because she was capable of working the accommodated duties but full days were not available at that time, and that effective April 28, 2020, the worker would be entitled to full wage loss.
On June 22, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that she missed time from work due to a combination of increased anxiety and the medications she had been taking. On July 31, 2020, the employer provided a submission in support of Compensation Services' decision, and on August 18, 2020, the worker responded to that submission.
On August 26, 2020, Review Office determined that the worker was not entitled to full wage loss benefits from March 24 to March 27, 2020 and from April 5 to April 27, 2020. Review Office acknowledged the stressors that caused the worker's anxiety to increase during those time periods, such as the change in WCB case managers and an inability to see her psychologist in a timely manner, but noted that these did not preclude the worker from working. Review Office further noted that the worker had been provided with appropriate workplace restrictions and psychological treatment to enable her to be in the workplace.
On January 12, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies established by the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 39(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.
The worker was represented by a worker advisor, who made an oral presentation at the hearing. The worker responded to questions from her representative and from the panel.
The worker's position was that the lack of required medical aid after mid-December 2019, in the form of psychological treatment and support for her return to work program, caused an increase or relapse in her symptoms and rendered her disabled, and she is therefore entitled to full wage loss benefits for the period under appeal.
The worker's representative began her presentation by reviewing and highlighting certain evidence in support of the worker's position. The representative submitted that at the heart of their argument was the fact that the WCB, and specifically the WCB's psychological consultant, determined that the worker required psychological treatment at weekly sessions, or no less than biweekly sessions. The representative submitted that this was to treat the compensable trauma symptoms and to support the gradual return to work program on modified duties. It was submitted that this recommendation was made in the spring of 2019 and the treatment plan was confirmed as still valid in the fall of 2019. The representative noted that the treatment plan continued on at least a biweekly basis until mid-December 2019.
The worker's representative submitted that the WCB's general medical advisor was asked to review the medication only on the worker's file in December 2019, but expanded her review and determined that monthly psychological treatment would suffice. The representative took issue with the general medical advisor, "seemingly without a psychological or psychiatric specialty," making a determination on therapy which was in contrast to the psychologist's opinion, and noted that the worker was subsequently without psychological support from December 2019 to May 2020, when the therapy was reinstated by the WCB.
The worker's representative further noted that the medical advisor's opinion was that the combination of medications the worker was taking was not effective in reducing her symptoms, and submitted that if so, the supportive therapy should not have been reduced or eliminated, as that support was integral to the worker being able to continue to manage her symptoms in her gradual return to work program. The representative submitted that it was therefore not surprising that the worker's symptoms increased with the lack of support and the decreased medical aid.
The worker's representative also noted that in 2021, the new WCB case manager continued the weekly therapy sessions in support of a medication tapering program and an exposure therapy program, and submitted that if the worker needed weekly to biweekly sessions before her absence and continued to need the same level of therapy after, it was reasonable that she would have needed the same therapy during the five-month period starting in December 2019.
While admitting that Covid-19 increased anxiety, the worker's representative submitted that if the worker had been receiving the required supportive psychological therapy, she would have had the necessary support to cope with the increased symptoms relating to Covid-19 or multiple changes in the WCB case managers during the period in question. The representative noted that the employer was unable to accommodate the worker between April 27 and June 3, 2020, and submitted that she was able to return to her graduated return to work modified duties program in June as the psychological support was back in place allowing her the support she needed to cope with the program.
In conclusion, the worker's representative submitted that the evidence was clear that the worker suffered increased traumatic symptoms which disabled her from working between the end of March and the end of April 2020. It was submitted that the increase in symptoms was not uncommon for the worker, as she was working through different combinations of medications, different gradual return-to-work accommodations and psychological therapies. In their view, had the worker been provided with the required medical aid and psychological support for the gradual return-to-work program, she would have been able to manage the increase in symptoms and remain at work.
The employer was represented by its Workers Compensation Coordinator, who made an oral submission at the hearing and responded to questions from the panel.
The employer's position was that they agreed with the Compensation Services and Review Office decisions that the worker was not entitled to full wage loss for the period March 24 to 27 and April 5 to 27, 2020, and asked that the panel maintain those decisions.
The employer's representative submitted that the time loss for the period in question was not directly related to any work-related event causing an increase in the worker's symptoms. In the employer's view, the increase in the worker's symptoms resulted from other factors, including the worker's anxiety with respect to changing case managers, receiving benefits, Covid-19 issues and the WCB suggesting she needed to wean off certain medications.
The employer's representative noted that medical restrictions were established in May 2019, and arrangements were made for the worker to commence modified duties effective June 3, 2019 based on those restrictions. In December 2019, the WCB medical advisor reviewed the file and suggested that a call-in examination be arranged with a WCB psychiatric consultant to review the worker's status and the level of medication she was using.
The employer's representative submitted that all appeared to be going relatively well up until the March 11, 2020 call-in examination with the WCB psychiatric consultant, but the situation took a fairly significant turn following that examination. In her report, the consultant advised that the continued use of the medications the worker was taking was problematic and provided recommendations regarding the tapering and discontinuance of these medications.
The employer's representative further submitted that there did not appear to be any medical reason why the worker could not continue with her return to work plan, and the psychiatric consultant suggested in fact that she could increase her work hours to full-time hours. The representative submitted that if there was a concern about a significant increase in anxiety symptoms at the time of the call-in examination, the psychiatric consultant would have commented on it and would not have indicated the worker could do even more and increase her hours to full-time.
The employer's representative submitted that the worker's anxiety levels increased after receiving this information as she had been relying on these medications to attempt to function, when the medications were in fact acting to her detriment. It was submitted that the recommendation to titrate the worker off these medications played a major part in the worker's increased anxiety. The representative also submitted that medical information from the worker's family physician indicated that a number of other factors combined to increase the worker's anxiety, including her reaction to Covid-related issues, stopping one of her medications cold turkey, the stress of changing case managers, WCB rules and appeals, and being unsure whether the WCB would pay her, all of which were not work-related.
The employer's representative agreed with Review Office's comment that they were unable to identify any intervening work-related incident that precipitated the worker to stop working. The representative submitted that there was nothing about the modified duties the worker was performing prior to March 24, 2020 that had changed. The worker had been working up until that point, albeit with sporadic absences, and while she may have been dissatisfied with not being able to see her psychologist in the way she wanted to due to Covid-19, such issues did not preclude her from working during the period of time under appeal.
The issue before the panel is whether or not the worker is entitled to full wage loss benefits for the periods of March 24, 2020 to March 27, 2020 and April 5, 2020 to April 27, 2020. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity between those dates as a result of the October 16, 2017 workplace incident.
Based on our review and consideration of all of the evidence before us and the submissions of the parties, the panel is unable to relate the worker's loss of earning capacity between March 24 and April 27, 2020 to the workplace incident.
The panel notes that it is not suggested that there was a specific or intervening event in the days leading up to March 24, 2020 which would have led to the worker having to be off work. When asked about this at the hearing, the worker stated that:
I didn't put anything down on that date specifically…I did put that it was a crazy day, and I didn't have any sleep and my anxiety was through the roof…
I couldn't recall exactly or pinpoint what was happening because sometimes the anxiety just goes in and then it's there, and I don't know why. But I know the office and my surroundings were in chaos at that time…And I knew that I was feeling the pressure of it all.
The evidence shows that the worker was being prescribed and was using an extensive variety and amount of medications and there were significant ongoing concerns with respect to her use of these medications and their effects. The panel is of the view, nevertheless, that there is a lack of medical evidence to support that the medications or level of medications resulted in her being unable to work between March 24 and April 27, 2020. The panel notes that our conclusion in this regard is supported by the recommendations of the WCB psychiatric consultant who noted, following her March 11, 2020 call-in examination of the worker, that: "There is no medical contraindication to [the worker] increasing her work hours to full time hours."
At the hearing, the worker described her accommodated duties and workplace environment in or around March 2020, her anxiety symptoms and steps she would take at work to deal with those symptoms. The panel acknowledges the worker's symptoms and difficulties, but is unable to relate an increase in those symptoms or difficulties to the workplace incident or compensable injury.
Rather, the panel finds, on a balance of probabilities, that the increase in the worker's anxiety and her difficulties were related to other non-compensable factors, including stress with respect to recommendations to reduce or wean her off certain medications, and stress and frustration with changes in WCB case managers, with the WCB's management of her claim, with whether she would be paid by the WCB, and with Covid-19 related issues.
In this regard, the panel relies on the Doctor Progress Report from the worker's family physician for a telephone appointment on April 6, 2020, where the physician noted "Indication [worker] uncomfortable coming in due to COVID-19 +++Anxiety. Ran out of [medication] since Friday. Pharmacy didn't fill. Up to 5 tabs day. Has remained off work since March 24. Poor Sleep."
The panel also relies on a memorandum to file of a telephone conversation between the case manager and the worker's family physician on May 19, 2020, where it was noted that the physician advised that a letter from the case manager was causing anxiety for the worker, that medications could not just be stopped, and that the worker had stopped one of her medications completely on April 20, 2020 without informing him, which caused her to be ill. It was further noted that the physician:
…also stated that the stress of changing case managers and all the rules with WCB are causing her additional stress anxiety. He explained that she can't focus on getting better when she is not sure if WCB will pay her wages or not. Now she is appealing previous decisions and she is anxious about that. [The worker] also had a very bad reaction to COVID. He said she probably had the worst reaction to it.
While the family physician mentioned he was "…also concerned because the treatment with [the psychologist] stopped for a period of time" and that "…he had to increase her meds during that period of time (Dec 2019 to April 2020) because she didn't have psychologist treatment," the panel is not satisfied on the evidence that the lack of treatment from the treating psychologist over this period of time resulted in the worker experiencing increased symptoms related to her compensable injury.
The panel also places weight on the December 16, 2019 report of the WCB medical advisor who recommended, following her review of the worker's medications, that a WCB psychiatrist consultant be tasked to set up a call-in examination to review the worker's status, and that "Pending the call-in examination, it is suggested that the psychologic treatment for [the worker's] 'Other Specified Trauma and Stressor Related Disorder' (as detailed in the psychiatrist's February 22, 2019 assessment) cannot be provided in the current medication milieu." The panel notes that while the worker's representative took issue with the WCB medical advisor making such a determination with respect to a reduction in, or the effectiveness of, therapy which was in contrast to the psychologist's opinion, the medical advisor expressly stated in her report that "This recommendation has been made in consultation with a WCB Psychiatrist Consultant and a WBC Psychologist Consultant."
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity between March 24 and 27, 2020 and April 5 and 27, 2020 as a result of the October 16, 2017 workplace incident. The panel therefore finds that the worker is not entitled to full wage loss benefits for the periods of March 24, 2020 to March 27, 2020 or April 5, 2020 to April 27, 2020.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of August, 2021