Decision #141/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. Their permanent restrictions are appropriate; and
2. They are not entitled to full wage loss benefits after November 1, 2020.
A videoconference hearing was held on September 8, 2021 to consider the worker's appeal.
1. Whether or not the worker’s permanent restrictions are appropriate; and
2. Whether or not the worker is entitled to full wage loss benefits after November 1, 2020.
1. The worker’s permanent restrictions are appropriate; and
2. The worker is entitled to full wage loss benefits after November 1, 2020.
This claim has been the subject of a previous appeal in Appeal Commission Decision No. 91/20, dated September 4, 2020 and therefore, the background will not be repeated in its entirety.
The WCB accepted the worker’s claim for a psychological injury, with a diagnosis of Post-Traumatic Stress Disorder (PTSD) related to incidents that occurred at work in 2015. The WCB has provided the worker various benefits arising out of the compensable injury, including wage loss and medical aid benefits for treatment with a psychologist. Throughout the course of the worker’s claim, various workplace restrictions have been outlined to facilitate a return to work. Most recently, on March 18, 2020, a WCB psychiatric consultant provided an opinion that the worker’s current diagnosis related to the workplace accident was Unspecified Trauma and Stressor Disorder as the worker no longer met the criteria for PTSD and recommended restrictions of no work as a paramedic and no work in situations where there is a high likelihood of exposure to traumatic material or hearing about traumatic material.
On April 17, 2020, the employer notified the WCB of a possible accommodated position within the worker’s restrictions, and the WCB confirmed it was reasonable. A graduated return to work plan was developed, with the start date of April 27, 2020. On April 27, 2020, the worker contacted the WCB and advised they attempted to attend work as planned, but on arrival they experienced an increase in their symptoms, including a panic attack and increased anxiety and therefore had to return home. The worker advised the WCB that the accommodated position was in close proximity to where they had experienced the incident that led to their PTSD diagnosis, and they felt they could not work at that location.
In a memorandum to file dated April 27, 2020, the WCB noted there was no restrictions placed regarding location of the worker’s job site. A WCB medical advisor reviewed the worker’s file on May 6, 2020 and set out that the accommodated position was located on the opposite side of the street from the accident injury site, and that there was no medical reason why the worker could not work in the proposed location.
In a letter dated May 15, 2020, the WCB outlined the worker’s permanent restrictions as follows: no work as a paramedic, no work at the accident injury employment and no work in situations where there is a high likelihood of exposure to traumatic material or hearing about traumatic material. In a letter of the same date, the WCB confirmed the permanent restrictions to the worker and confirmed the suitability of the accommodated position with the employer.
The WCB received additional medical information from the worker’s treating psychiatrist on May 20, 2020 and on June 11, 2020, the WCB advised the worker there would be no change to the decision that the accommodated position offered was suitable and therefore the worker was not entitled to full wage loss benefits after April 27, 2020 but was entitled to partial wage loss benefits based on the graduated return to work plan.
The worker’s representative requested reconsideration of the WCB’s decision to Review Office on June 24, 2020 noting the worker’s treating psychiatrist recommended a restriction that the worker not work in the downtown area and the accommodated position was within that area; therefore, the worker should be entitled to full wage loss benefits as of April 27, 2020. On July 2, 2020, the employer advised the accommodated position was no longer available. Review Office determined on August 19, 2020 that the worker was entitled to full wage loss benefits as of April 27, 2020.
On August 20, 2020, the employer advised the WCB a new accommodated position was available beginning August 30, 2020. Due to a pre-arranged vacation, the worker was not available to begin on that date.
On October 1, 2020, a teleconference meeting was arranged with representatives of the employer, the worker, a representative from the worker’s union, the WCB and the worker’s treating psychiatrist. The employer provided details of a proposed accommodated position and graduated return to work schedule. The worker’s union representative and treating psychiatrist noted disagreement with the location of the accommodated position as the worker had previously been unsuccessful in an attempt to return to an accommodated position at the same location. The worker requested a November 2, 2020 start date for the accommodated position to allow for further treatment, which all parties agreed to. The graduated return to work schedule was established for a period of six weeks, beginning with three 4-hour shifts in week 1 and increasing up to fulltime hours in week 6.
In discussion with the WCB on October 28, 2020 regarding the graduated return to work plan and accommodated position, the worker advised that the position was no longer available. On October 29, 2020, the employer confirmed to the WCB they were working with the worker on another accommodated position due to additional restrictions provided by the worker’s treating psychiatrist and confirmed that the accommodated position set to start November 2, 2020 was no longer available.
On November 4, 2020, the WCB advised the worker it had determined the proposed accommodated position was suitable and as the worker did not participate in the graduated return to work plan, they were not entitled to full wage loss benefits as of November 1, 2020 and would receive partial wage loss benefits based on the graduated schedule set out previously.
On December 11, 2020, the worker’s representative requested Review Office reconsider the WCB’s decision that the worker’s permanent restrictions were appropriate and that the worker was not entitled to full wage loss benefits. In their submission, the worker’s representative noted the evidence that the worker was unable to work in the downtown area due to the ongoing effects of their compensable injury. Further, the representative noted the additional restrictions provided by the treating psychologist would prevent further aggravations of the worker’s compensable injury and would support the worker in their return to work. On February 1, 2021, the employer provided a submission in support of the WCB’s decision.
Review Office determined on February 16, 2021 that the worker’s permanent restrictions were appropriate, and that the worker was not entitled to full wage loss benefits after November 1, 2020. Review Office relied upon on the May 6, 2020 opinion of the WCB psychiatric consultant that there was no medical contraindication to the proposed work at the location of the accommodated position and found that the worker would have no direct contact with clientele of the accident employment site. Review Office concluded that the workplace restrictions were appropriate and therefore the accommodated position was suitable and within the worker’s restrictions. As such, the graduated return to work plan was also appropriate and the worker was not entitled to full wage loss benefits as of November 1, 2020.
The worker’s representative filed an appeal with the Appeal Commission on March 10, 2021. A videoconference hearing was arranged for September 8, 2021.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. On receipt, the requested information was provided to the interested parties for comment. On October 27, 2021, the appeal panel met again to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy:
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, the WCB shall pay compensation to the worker including wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act.
Section 4(2) of the Act addresses entitlement to wage loss benefits, setting out that wage loss benefits are payable for loss of earning capacity resulting from an accident and s 39(2) of the Act provides that these benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Section 22 of the Act requires that the worker mitigate the effects of the compensable injury by taking reasonable steps to reduce or eliminate any loss of earnings resulting from an injury, by seeking out, cooperating in and receiving medical aid that promotes their recovery, and by co-operating with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery. If a worker fails to comply with these obligations, s 22(2) allows the WCB to reduce or suspend the compensation payable to the worker. Section 27(20) of the Act authorizes the WCB to offer academic, vocational, and rehabilitative assistance to injured workers who could experience a long-term loss of earning capacity.
The WCB established Board Policy 43.00, Vocational Rehabilitation (the "VR Policy”). This policy details the goals, terms, and conditions of vocational rehabilitation assistance available to a worker under s 27(20) of the Act and sets outs, in part, that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests.” Other goals of the VR Policy are to help the worker as much as possible to be as employable after injury as before the injury and to provide reasonable assistance to support a return to work, although services may not always continue until the worker is returned to work.
The WCB has also established Board Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) which provides that suitable work is “…that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer.” In determining a worker’s ability to perform suitable work, the policy requires that the WCB “…compare the worker’s compensable medical restrictions and capabilities to the demands of the work.”
The worker appeared in the hearing represented by a union representative who made an oral submission to the panel on behalf of the worker during the hearing and relied upon a written submission provided in advance of the hearing. The worker offered testimony through answers to questions posed by their representative and by members of the appeal panel.
The worker’s position, as outlined by their representative, is that they are entitled to full wage loss benefits based on evidence that an additional restriction against working in the downtown/core area was required and as such, the proposed accommodation was not suitable. The worker’s permanent restrictions, as established by the WCB were insufficient to support the worker in a safe and sustainable return-to-work process and did not consider the cumulative trauma sustained by the worker, nor the evidence that the worker’s symptoms are triggered by exposure to violence and by exposure to the clientele of the organization where the injury occurred, and not only to the specific site where the injury was sustained.
The worker’s representative stated that the evidence confirms the worker experienced a heightened response when going to certain geographic areas, especially the downtown/core area as exemplified by the medical reporting, the worker’s reports to the WCB and the failed April 2020 attempt to return to work. The worker advisor noted that although the WCB did not acknowledge this, the employer did and therefore rescinded the offer of accommodation in late October 2020 based on the treating psychologist’s recommended restrictions, including that the worker should not work in the downtown/core area.
In a further submission provided on October 8, 2021 in response to the information the WCB provided to the appeal panel’s post-hearing request, the worker’s representative indicated the WCB’s response didn’t clarify the restrictions in place after March 2020 but further confused the issue, noting that although permanent restrictions have been in place since 2017, the precise wording of those restrictions has varied considerably both in the medical opinions outlining the restrictions and, in the interpretation, and conveying of those restrictions by the WCB. The worker’s representative noted the evidence demonstrates subtle changes in the wording of the worker’s restrictions over time, some made without any clear reason, some caused by changes in the worker’s condition and others made to facilitate the accommodation process. For example, the worker’s restriction relating to exposure to traumatic material was added as a consequence of the recurrence of the worker’s symptoms after an attempt to return to alternate work in 2018.
The worker’s representative stated that by its past decisions, the WCB demonstrated that workplace restrictions need not be based exclusively on objective medical evidence but can and should reflect all evidence of a worker’s capabilities and limitations, and further that the restrictions may change as the worker’s circumstances change. The worker’s position is that the WCB medical advisor failed to acknowledge the treating physician’s opinion that being in the downtown/core area exposes the worker to factors that exacerbate their compensable injury and that the WCB’s refusal to amend the worker’s restrictions to include a restriction against working in this area created a circumstance where the worker did not have a reasonable chance of sustainably returning to work.
The worker’s position is that they should be entitled to further wage loss benefits because the proposed return to work on November 2, 2020 was not suitable as the evidence demonstrates they were not capable of returning to work in the core area, and the WCB failed to provide them with the recommended specific exposure therapy provided by an alternate treatment provider with significant experience with PTSD, as recommended by the consulting psychiatrist’s June 11, 2020 report. The evidence supports that the worker never completed the hierarchy of exposures developed with the treating psychologist in 2019 and never had specific exposure therapy to the core/downtown area. To be effective, this recommendation should have been acted upon before a return-to-work plan was developed and further accommodation pursued.
The worker’s representative submitted that the WCB’s decision to terminate the worker’s access to psychological treatment as well as making its offers of psychological assistance contingent upon compliance with a specific accommodation plan is not consistent with the provisions of s 27(1) of the Act. The worker should be entitled to further wage loss benefits because the evidence supports that the WCB did not provide the necessary assistance to the worker to overcome the effects of the compensable injury so that the worker could safely and sustainably return to work.
The worker described the alternate duties they undertook in 2017 noting they attended at sites throughout the city including in and near the core/downtown area to provide training to other employees. The worker testified that they experienced some “angst” in going to the locations in the downtown area but could overcome it.
The worker provided a description of their own efforts to overcome their anxiety about attending locations listed as on the Subjective Units of Distress (“SUDS”) list created with their treating psychologist. The worker indicated that these were locations where there were large numbers of people and lots of noise, as well as locations where the worker felt unsafe. The worker described attending these locations with their spouse and/or service dog with a view to building up their exposure. The worker indicated that their treating psychologist did not attend any of the locations with them but provided homework and strategies in how to manage and then would talk with the worker about their concerns afterwards. The worker described their symptoms on attending these locations as feeling overwhelmed, with flashbacks and panic attacks, but noted as well that such symptoms may also be triggered in other places and at other times such as when the worker’s mind wanders during tedious task.
With respect to the geographic area where the April and November 2020 accommodated positions were located, the worker noted that the clientele from their employment at the time of injury also spend time in this area and that they feel unsafe having contact with or exposure to people who may have attended at that prior employment site. The worker also indicated they actively avoid the area since their injury, including not driving down the main thoroughfare through the area.
The worker described to the panel their symptoms experienced on attempting to return to work in April 2020, indicating that their initial reaction to the plan was feeling “absolutely terrified” but that they were determined to try. On parking their car, the worker described being unable to get out of their car and having an overwhelming panic attack, feeling fear, anxiety, and disassociation. The worker advised they remained in the car awhile, gathering themselves until able to drive again and then left the area. The worker confirmed that although they had prior conversations with their treatment providers about how to go there, they had not been to that site prior to the planned first day of work.
The worker testified that they have recently been working on a casual basis with another employer in areas in and around the downtown/core area, as well as other urban and rural areas but that they are accompanied by their service dog in doing so.
In sum, the worker’s position is that the permanent restrictions established by the WCB are not sufficiently comprehensive to address the worker’s psychological safety concerns and should be amended to also include a prohibition against working in the core/downtown area. Further, the worker should be entitled to wage loss benefits after November 1, 2020 as the offered accommodation did not take this requirement into account and further, as the WCB failed to provide the needed psychological support in advance of the return-to-work date to facilitate the worker’s exposure to that location and the psychological triggers in that area.
The employer was represented in the hearing by their workers compensation specialist, who made an oral submission on behalf of the employer and provided answers to questions posed by members of the appeal panel.
The employer’s position, as outlined by their representative, is that the worker’s permanent restrictions as established by the WCB are appropriate and that there is no basis to amend the restrictions to include a limitation that the worker cannot be employed in an entire neighbourhood. The employer noted the worker declined to participate in accommodated duties that the employer offered beginning November 2, 2020 despite the fact these duties were appropriate to the restrictions the WCB had established.
The employer’s representative outlined to the panel the efforts made by the employer to accommodate the worker’s restrictions in their return-to-work, beginning in late 2017. The employer’s representative also pointed to the April 23, 2020 WCB memorandum to file indicating there was no restriction with respect to the worker’s employment in the downtown/core area and never had been. The employer’s representative noted as well the May 6, 2020 opinion of the WCB medical advisor indicating that the worker’s restrictions remained valid and that there was not any medical contraindication to the worker’s return to work in the core area.
The employer’s representative explained that the offer of accommodated employment to begin as of November 2, 2020 was ultimately withdrawn by the employer in late October based on additional medical reporting by the worker’s treating physician that outlined the new geographic limitation and a requirement that the worker’s service dog also attend with the worker. The employer was not able to accommodate these additional, non-compensable restrictions in that position, and therefore withdrew the employment offer.
The employer’s representative stated that they agree with the opinion expressed by the consulting psychiatrist on June 11, 2020 that workplace restrictions do not typically limit employment in whole neighbourhoods and noted that the WCB had reviewed the request to change the worker’s conditions on multiple occasions, and yet did not determine there was any need to impose a geographical limitation.
The employer’s representative stated that the employer met its obligation to offer appropriate accommodation of the worker’s compensable restrictions and noted that the worker has acknowledged that the offered positions were appropriate and within the WCB-accepted restrictions.
The employer’s representative provided a further submission on October 15, 2021 responding to the information provided by the WCB to the appeal panel’s post-hearing request, indicating agreement that the permanent restrictions outlined in the September 21, 2021 memorandum are the compensable restrictions in place. Further, the employer’s representative indicated that the information confirms the WCB did, on August 26, 2020 offer the worker further psychological treatment with the treating psychologist to assist with their return to work if they agreed to accept the accommodation offered, but that the worker did not accept the accommodation and therefore the further supports were not provided.
In sum, the employer’s position is that the permanent restrictions in place are appropriate and further that the worker failed to fulfill their responsibility to mitigate the effects of their compensable injury by taking reasonable steps to reduce their loss of earnings resulting from an injury and by co-operating with the board in implementing a return-to-work program that fits with the worker’s compensable restrictions and capabilities. As such, the worker should not be entitled to full wage loss benefits after November 1, 2020.
There are two issues for the panel to determine in this appeal. First, the panel must determine whether the worker’s permanent restrictions are appropriate. To grant the worker’s appeal on this question, the panel would have to determine that the worker’s permanent restrictions do not sufficiently address the continuing impacts of the worker’s compensable psychological condition arising out of the workplace injury. Second, we must determine whether the worker is entitled to full wage loss benefits after November 1, 2020. To grant the worker’s appeal on this question, the panel would have to determine that the return-to-work plan implemented with a start date of November 2, 2020 was not suitable and appropriate for the worker and that as a result, the worker could not achieve a return to sustainable employment in that role. The panel’s determinations on each of these questions are outlined in the reasons that follow.
Are the worker’s permanent restrictions appropriate?
The panel is satisfied that the worker’s permanent restrictions are appropriate considering the medical evidence and the worker’s testimony offered in the hearing.
The panel sought clarification from the WCB following the hearing as to the permanent restrictions in place after March 2020. In its response of September 21, 2021, the WCB confirmed that the restrictions outlined in the WCB psychiatric consultant’s report completed March 18, 2020, as communicated to the parties on April 3, 2020 were no work as a paramedic and no work in situations where there is a high likelihood of exposure to traumatic material or hearing about traumatic material. The WCB further confirmed that as of May 15, 2020, the worker’s permanent restrictions were revised to the following: no work as a paramedic, no work at the accident employment site and no work in situations where there is a high likelihood of exposure to traumatic material or hearing about traumatic material. The panel accepts that these are the restrictions in place for the worker, and therefore considered the question for determination on this basis.
The worker’s position is that a further restriction is required that they not work in the geographic area (downtown/core) where the injury first occurred and that it is not sufficient to say the worker should not work in the exact work site but also should not work in the surrounding area where there might be exposure to situations that could increase or exacerbate the worker’s symptoms of psychological distress while attending at work, whether in arriving or departing or taking a break. The worker’s position is that the very possibility of encountering violence or encountering clientele from the prior employment site is heightened throughout the entire geographic area around the location where the injury occurred. This increases the worker’s anxiety in attending to that area for work or other reasons, and therefore the worker should be restricted from working in that entire area.
In a report dated April 20, 2019 the treating psychologist noted that the area around the location of the accommodated position later offered to the worker in April 2020, was rated at 10/10 by the worker in terms of Subjective Units of Distress and requested that the WCB support the worker’s continuing psychotherapy sessions with a view to reducing the worker’s anxiety and panic experienced in the situations on the SUDS list with the hope that once the worker learned to be less reactive in those situations, they would be more stable and ready to begin a gradual return to work. Subsequent medical reporting and the worker’s reports to the WCB confirm that the worker and their psychologist continued to work through this list, beginning from the locations least distressing to the worker.
In a medical chart note from April 27, 2020, after the worker’s failed return to work attempt, the treating physician noted that the proposed location for the worker’s accommodated employment was within two blocks of the accident employment site and that the worker would “…have to walk a block in the core area which will expose [them] to the main triggers of [their] PTSD symptoms. This is stressing [the worker] out.” The physician then stated that the worker’s PTSD was being aggravated by having to work at the location that triggered their PTSD symptoms.
The WCB psychiatric advisor noted the treating physician’s concerns in a Healthcare Opinion dated May 6, 2020, confirming the worker’s permanent restrictions at that time remained valid and further, that it would not be anticipated that the worker would encounter any of the restrictions at the proposed site which was some 550 metres from the accident employment site. The WCB psychiatric advisor concluded they did not “find a medical contraindication” to the worker’s employment at the proposed location.
In a letter to the WCB dated May 20, 2020, the treating psychologist outlined their concerns with the April 2020 return to work in the downtown area, noting that based upon the team meetings, it was understood that the worker would initially work in another department and then transition back to their department, so as “…to allow [the worker] to build endurance to working again and reduce the stress of working in [their] department.” The psychologist indicated that they were not surprised by the worker’s anxiety response to attending at the work location due to the nature of this area of the city for the worker and suggested that an accommodation at that location would not allow the worker to be successful in their return to work. In a follow-up conversation with the WCB case manager on May 29, 2020, the psychologist noted that the worker was eager to return to work but had concerns about the location and “freezes” when they go there. The case manager confirmed that there are no restrictions related to working at that location and the proposed accommodation was within the worker’s restrictions.
A June 11, 2020 report from a consulting psychiatrist sets out that the worker advised that they avoid triggers of past traumatic experiences, for example, by avoiding crowds or driving by the accident employment site. The worker also reported that they feel “extremely anxious” entering the neighbourhood of the proposed accommodated position with the employer. In this regard, the psychiatrist commented that “Such cases with posttraumatic stress disorder can be complicated, especially when trying to determine occupational limitations and restrictions. In general, occupational restrictions tend to be specific and do not usually incorporate entire neighbourhoods.”
In a chart note dated June 22, 2020, the treating physician noted that the worker:
“…does not see how forcing [them] to get out of [their] car in a neighbourhood where there are multiple locations that reminds [the worker] of stressful situations and triggers [their] PTSD is going to be helpful for [their] long term well being. (Note: this is why the whole neighbourhood it (sic) the problem, the building where [the worker] is employed just happens to be in this neighbourhood)”.
The WCB psychiatric advisor on July 15, 2020 reviewed the June 11, 2020 report from the consulting psychiatrist, noting the statement that occupational restrictions are generally “…about a workplace location and do not encompass a neighbourhood, in this case a substantial area.” The psychiatric advisor also noted the worker’s previously demonstrated ability to visit various locations around the city during a previous accommodation and commented that the distance between the accident employment site and the proposed accommodation site would not require the worker to go near the former job site. The psychiatric advisor concluded that there was no medical reason for the worker to not work at the proposed location.
The treating psychologist set out in a letter to the employer dated October 22, 2020 that the worker should not be employed in the “core downtown area” as the worker experiences “significant exacerbation of [their] disability when in this area.”
The worker’s testimony to the panel was that the basis for their concern about the proposed work locations is that the clientele from their accident employment spend time in this area and that it makes them feel unsafe to have contact with or exposure to people who may have attended at the accident employment site. The worker referred to the possibility of encountering “these people” while walking from their car to the work location and back again.
The panel noted that although situated in the same general neighbourhood as where the primary incidents occurred resulting in the worker’s psychological injury, the employer’s proposed accommodated position was not in the same environment nor working with the same clientele as was the case at the time of injury. Further, the panel noted there is a distance between these sites that would prevent the worker from having to go into the immediate area around the accident employment site.
The panel also considered the treating psychologist’s report outlining a wide range of geographic sites around the city that the worker indicated were triggering to the worker in terms of reported high SUDS levels on attending there. While this list included areas around where the injury first occurred, many of these locations are neither in the immediate area around the proposed work location nor are they near the accident employment site. The medical reporting indicates that the worker’s psychological treatment beginning in 2019 focused on developing strategies and techniques to reduce the worker’s symptoms of distress on visiting such locations, although there is some suggestion that the effectiveness of the treatment may have stalled or that another therapeutic approach might be required. The worker also testified that since leaving their employment with the employer, they have taken on work that brings them into other locations in and near the core/downtown, with the support of their service dog.
The panel noted that since the worker’s permanent restrictions were established following the WCB’s psychiatric call-in examination on March 18, 2019, there were no restrictions preventing the worker from attending at any specific location other than at the accident injury site. This was not noted to be of concern until after the failed attempt to return to work in an accommodated position on April 27, 2020 after which point the treating professionals suggested the worker required a geographic or neighbourhood-based restriction so as to avoid triggering PTSD symptoms.
The panel also considered that the worker’s specific expressed concerns about the proposed employment in the core/downtown area relate more to potential encounters with particular people or groups than to exposure to any particular locations.
The panel agrees with the consulting psychiatrist’s view that while occupational restrictions may focus on a specific work location, they do not generally encompass entire neighbourhoods and notes that this also aligns with the view of the WCB psychiatric advisor. We find, based on the evidence before us, that there is no medical reason for the worker not to work in the downtown/core area and therefore we do not find that the additional restriction proposed by the worker is medically necessary.
The panel is satisfied on the basis of the evidence heard and reviewed, and on the standard of a balance of probabilities that the worker’s permanent restrictions in place as of May 15, 2020 are appropriate. The worker’s appeal on this question is denied.
Is the worker entitled to full wage loss benefits after November 1, 2020?
The panel is satisfied that the return-to-work plan developed on October 1, 2020 did not provide reasonable and appropriate assistance to support the worker in preparation for their planned return to accommodated work on November 2, 2020 and therefore, the worker should be entitled to full wage loss benefits after November 1, 2020.
We note that the Review Office in its August 19, 2020 decision determined that the WCB should have provided the worker with greater support in the implementation of the return-to-work plan and as such, the worker was entitled to wage loss benefits as of April 27, 2020. That decision flowed out of the failed return to work attempt that the worker described to the panel in their testimony. The worker testified to having attempted that return to work without having attended at that site prior to the first day of work, although they had prior discussions with their treating psychologist about advance exposure and strategies to prepare for the first day. The worker also described experiencing what they perceived as a significant panic attack on parking their car and being unable to even exit the car to walk to the worksite due to their symptoms.
That attempt was not successful, at least in part, due to the lack of supports provided to the worker in preparation for it as noted by the treating psychologist in their report of May 20, 2020. The psychologist reported that the worker subsequently “…experienced a setback including elevated anxiety, low mood, and an increase in flashbacks/nightmares” and noted that a previous successful return to work had involved working more remotely from the core/downtown area at first and then moving gradually into worksites nearer the core. The psychologist agreed that returning to work would be part of the worker’s recovery plan but only if they were able to manage their anxiety and distress.
In a follow-up conversation with the WCB case manager on May 29, 2020, the treating psychologist advised that it might help the worker if the psychologist was able to attend the work location with the worker. The WCB case manager indicated that this would not be related to the worker’s claim but that if it was a barrier to the worker’s return to work, the WCB would authorize 5 further sessions so long as the worker agreed to the work plan.
The panel noted that in preparation for the planned return to work on November 2, 2020, there were no advance supports provided such as the Review Office concluded would have been required for the April 2020 return-to-work attempt. The panel considered that the June 11, 2020 report from the consulting psychiatrist, received by the WCB on July 6, 2020, made a specific recommendation that the WCB provide the worker with exposure therapy by a psychologist with specific expertise. The psychiatrist stated:
“I wonder whether [the worker] can obtain specific exposure therapy in order to enter the workplace at [proposed work location]. [The worker] told me that exposure therapy was not possible due to the recent pandemic, which is understandable. Perhaps, exposure therapy can be considered soon. Not all psychologists perform exposure therapy and therefore an alternate psychologist may have to be considered.”
The psychiatrist then went on to provide names of psychologists trained in providing exposure therapy to those with PTSD. This recommendation, when considered in light of the WCB psychiatric advisor’s March 18, 2020 statement that the worker’s extensive course of psychotherapy to date had not assisted the worker in moving forward into recovery, suggests to the panel that the consulting psychiatrist was recommending a referral to another provider with different, more relevant expertise. Further, as noted by the worker’s representative in their submission of October 8, 2021, the exposure therapy the treating psychologist provided beginning in 2019 “was essentially the assignment of homework, which [the worker] was to perform on [their] own and then discuss with [the treating psychologist].” The worker’s representative pointed to the treating psychologist’s statement to the WCB on May 29, 2020 that for exposure to be helpful, the psychologist would have to attend the location with the worker.
The panel noted that the WCB psychiatric advisor in their July 15, 2020 follow up to the consulting psychiatrist’s report addressed the diagnosis offered and the question of workplace restrictions. The psychiatric advisor also stated that the worker “…would be able to work on desensitization” on their own. In follow-up to the hearing, the panel requested the WCB advise as to what consideration had been given to the consulting psychiatrist’s recommendation for provision of exposure therapy by a qualified provider. The September 21, 2021 WCB response referred to opinions provided before the psychiatrist’s report was even received, as well as subsequent conversations and emails with the worker and the treating psychologist as to the WCB’s offer of 5 additional weekly therapy sessions to assist with the return to work. The WCB also noted that the offer of additional sessions with the current psychologist was contingent upon the worker accepting the accommodation offered and would not precede the return to work. The worker’s representative argued that the consulting psychiatrist’s recommendation for exposure therapy should have been acted upon before a return-to-work plan was developed and before the second accommodation was pursued, rather than, as the WCB proposed, in concert with and conditional upon a return-to-work schedule.
The panel finds that the WCB did not give reasonable consideration to the consulting psychiatrist’s recommendation but instead offered the worker continuation of the psychological treatment that the WCB already acknowledged had not been successful, with a treatment provider not recommended by the consulting psychiatrist, and conditional upon the worker commencing the accommodation without having been prepared by appropriate exposure therapy in advance of the placement. The panel further finds that although the worker’s anxiety symptoms might be exacerbated by attending the proposed work location, this does not prevent them from working in that area; indeed, the very purpose of the recommendation for appropriate exposure therapy was to provide the worker with the skills they needed to attend any location where they could experience an increase in anxiety symptoms. This aligns with the recommendations of both the treating psychologist and the consulting psychiatrist.
The WCB’s Return to Work Policy provides that suitable work is work that a worker is medically able to do that does not aggravate or enhance the injury and outlines that in determining whether a worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and their capabilities to the demands of the work. This means that it is not sufficient that the demands of the work align with a worker’s compensable medical restrictions; the demands must also align with the worker’s capabilities and further, the work must not aggravate or enhance the compensable injury.
The panel finds that the return-to-work plan developed on October 1, 2020 that would see the worker begin working on November 2, 2020 at a location near the site of the failed attempt to return to work in April 2020 that resulted in an exacerbation of the worker’s compensable symptoms did not meet the requirements of the Return to Work Policy. The demands of the proposed accommodation included attending at a location known to be likely to provoke further aggravation of the worker’s injury unless the worker was provided with the appropriate treatment to ensure that the jobs demands would align with their psychological capabilities at that time.
The panel further finds that provision of the medical aid required, as identified by both the treating psychologist and the consulting psychiatrist, should not have been contingent upon the worker’s participation in this return-to-work plan when the medical advice provided to the worker conflicted with that plan. The mitigation provisions contained in s 22(1) of the Act require not only cooperation with the WCB in implementing return to work programs but also taking all reasonable steps to reduce any impairment and cooperating in the receipt of medical aid that promotes the worker’s recovery.
In these circumstances and based on the evidence before us, the panel is satisfied, on the standard of a balance of probabilities, that the return-to-work plan developed on October 1, 2020 with the start date of November 2, 2020 did not provide reasonable and appropriate assistance to support the worker in preparation for their planned return to work. Therefore, the worker’s refusal to participate in the return-to-work plan commencing November 2, 2020 was appropriate and the worker should therefore be entitled to further wage loss benefits after November 1, 2020. The worker’s appeal on this question is granted.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of December, 2021