Decision #58/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They are not entitled to further wage loss benefits during the gradual return to work plan; and
2. They are not entitled to benefits beyond September 19, 2021.
A videoconference hearing was held on April 12, 2022 to consider the worker's appeal.
1. Whether or not the worker is entitled to further wage loss benefits during the gradual return to work plan; and
2. Whether or not the worker is entitled to benefits beyond September 19, 2021.
1. The worker is entitled to further wage loss benefits during the gradual return to work plan; and
2. The worker is entitled to benefits beyond September 19, 2021.
The worker filed a Worker Incident Report with the WCB on November 17, 2020, reporting a respiratory injury that occurred at work on November 4, 2020. The worker reported being exposed to COVID-19 at work between November 4 and 5, 2020 and November 9 and 12, 2020 and started to experience symptoms of COVID-19 on November 16, 2020, after which they received a positive test result.
On December 2, 2020, the WCB contacted the worker to discuss their claim. The worker confirmed they had been advised by their manager on November 9, 2020, they had possibly been exposed to COVID-19 while at work in early November 2020, as they were asymptomatic, they continued to work until November 16, 2020 when they began to experience symptoms, which progressed to flu-like symptoms. At that point, they were tested for COVID-19 and the test results were positive. The worker advised the WCB, they were provided with personal protective equipment (PPE) while at work. Further, the worker advised their current symptoms included heaviness in their lungs, coughing mucus, shortness of breath, fatigue, nausea and a sore throat. The worker also advised they were getting winded and having shortness of breath walking to the washroom. The worker further advised their mandatory isolation period ended on December 1, 2020 but as they continued to have symptoms, they were advised to remain isolated and return for further testing once they were symptom-free for 24 hours. The WCB advised the worker their claim had been accepted and the payment of various benefits started.
The worker contacted the WCB on December 7, 2020 to advise they attended at a local emergency department on December 4, 2020 due to increasing symptoms. They advised they continued to feel “…unwell with shortness of breath, fatigue, chest heaviness, coughing, nausea at times.” The Emergency Visit Summary for that attendance was received by the WCB and noted the worker’s reporting of persistent shortness of breath, after a positive COVID-19 test. An x-ray taken during that visit indicated “There are subtle streaky opacities within the mid-to-lower lungs bilaterally, worse on the left than the right, which could reflect a developing multi focal infectious process. Findings can be seen in the setting of early COVID-19 pneumonia.”
The worker had a follow-up tele-health appointment with their family physician on December 30, 2020. The physician reported the worker’s complaints of mild productive cough, chest heaviness, shortness of breath, runny nose, nausea and fatigue. The worker reported feeling “about 50% better” but still had a cough and shortness of breath. The treating physician referred the worker for a CT scan of their chest. The CT scan was conducted on January 15, 2021 and indicated “There are are (sic) patchy ground-glass opacities seen in the lower lobes bilaterally which may be infectious or post infectious in nature. There is no other evidence of fibrosis.” At a further follow-up appointment on February 9, 2021, the worker’s treating family physician referred the worker for a ventilations perfusion (VQ) scan and prescribed a corticosteroid medication due to the worker’s continuing difficulties with shortness of breath.
On April 14, 2021, the worker attended for a further follow-up appointment with their treating family physician reported continued shortness of breath, especially when wearing a mask, brain fog, fatigue and frequent need to clear their throat. The worker was referred to a cardiologist and it was noted the worker was starting COVID-19 rehabilitation on April 15, 2021. Funding for six sessions of physiotherapy was authorized by the WCB. The worker underwent a stress test at an appointment with the cardiologist on May 26, 2021. The treating cardiologist reported “Normal cardiovascular exam and stress test.”
A WCB medical advisor provided an opinion regarding the worker’s diagnosis by way of a memo to file on June 1, 2021. The advisor summarized the medical evidence on the worker’s file and opined a specific medical diagnosis for the worker’s current reported symptoms could not be established. On June 24, 2021, the worker was advised by the WCB, they were not entitled to full wage loss benefits after June 27, 2021; however, as the worker had been off work for a period of time, a graduated return to work ("GRTW") plan was developed and they would be entitled to partial wage loss benefits, if they participated in the plan, which was scheduled to begin on June 28, 2021 and end on August 16, 2021. A return to work meeting was arranged with all the parties to the claim and as a result of further discussions, the GRTW plan was adjusted on July 15, 2021, to commence on July 12, 2021 and end on August 30, 2021.
The worker’s representative contacted the WCB on August 12, 2021 to advise the worker had reported difficulties with the increased hours of their GRTW plan, currently at five, six hour shifts. On August 13, 2021, the WCB agreed to modify the plan to allow the worker additional time to adjust to returning to work, with the modified plan now ending on September 20, 2021.
On August 24, 2021, the worker’s representative requested reconsideration of the WCB’s decision to place the worker on a GRTW plan and to end their entitlement to benefits after September 20, 2021. The representative noted the worker’s treating healthcare providers had not cleared the worker to return to work and noted the worker’s reported difficulty with the GRTW plan, including ongoing symptoms of shortness of breath and fatigue. Additional medical information was received on September 3, 2021 from the worker’s treating family physician and physiotherapist which indicated the worker had increased symptoms when working 10 hour shifts and recommended the worker remain at 8 hour shifts for a few more weeks, then increase to 10 hours. The worker’s file was reviewed by a WCB medical advisor on November 9, 2021. The worker’s WCB case manager advised the worker’s treating physiotherapist, June 22, 2021, had provided a diagnosis of Post-Viral Fatigue syndrome and asked the WCB medical advisor to clarify the worker’s diagnosis. The advisor provided that Post-Viral Fatigue syndrome was “…a term used to describe some individuals that self-report a constellation of symptoms. The symptoms typically included in this terminology are wide-ranging and not specific for any particular diagnosis. There is also no diagnostic test with adequate sensitivity or specificity to help confirm a suspected diagnosis of Post-Viral Fatigue syndrome.” As such, the WCB medical advisor noted that diagnosis could not be medically accounted for in relation to the worker’s November 4, 2020 workplace accident. On November 10, 2021, the worker was provided with a further decision letter by the WCB indicating there would be no change from the earlier decisions. On December 7, 2021, the worker’s representative requested Review Office proceed with their August 24, 2021 request for reconsideration.
Review Office found, on December 13, 2021, the worker was not entitled to further wage loss benefits during the gradual return to work plan and the worker was not entitled to benefits after September 19, 2021. With respect to further wage loss benefits during the GRTW plan, Review Office acknowledged the worker’s reported difficulties during the plan but noted the worker had been provided with a plan that had an extensive duration to allow making allowance for the worker’s extended absence from the workplace and their symptoms. As well, Review Office noted the plan allowed the worker to increase their level of functioning with lighter tasks assigned initially, then increasing hours. Regarding the worker’s entitlement to benefits after September 19, 2021, Review Office accepted and agreed with the opinion of the WCB medical advisor that a relationship between the worker’s current difficulties and the November 4, 2020 workplace accident could not be established and as such, the worker was not entitled to further benefits.
The worker’s representative filed an appeal with the Appeal Commission on December 24, 2021. A videoconference hearing was arranged for April 12, 2022.
Applicable Legislation and Policy
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. The Act in effect on the date of the worker's claim of accident applies to this claim.
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. Under s 4(2), a worker 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 because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Subsection 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states: 22(1) Every worker must
(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
(b) co-operate 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.
Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.
WCB Policy 43.20.25, Return to Work with the Accident Employer, (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy discusses suitable modified or alternate work as follows:
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. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.
To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.
WCB Policy 184.108.40.206, Co-operation and Mitigation in Recovery (the "Co-operation Policy"), addresses the obligation to co-operate and mitigate and states that:
The Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury. This is also known as a duty to mitigate the negative effects of a workplace injury. A worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work.
Part B of the Co-operation Policy, which addresses Return to Work and Other Programs, further states, in part, that:
An injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs The worker's responsibilities include the following:
a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker's recovery;
e) Reasonably participating in all programs that the WCB believes will encourage a timely and sustainable return to health and work.
The worker attended the videoconference hearing and was accompanied by their union representative. The worker and their representative made oral presentations and answered questions posed by the representative to the worker as well as from the panel.
The worker's position, as outlined by the union representative, was that the worker did not fully recover from their compensable injury and is entitled to further benefits with respect to both issues under appeal.
The worker described their exposure to COVID-19 in early November 2020 and their subsequent symptoms following confirmation of a positive test on November 16, 2020. The worker noted a partial recovery from symptoms but described ongoing post COVID-19 rehabilitation continuing beyond the date their WCB benefits were terminated.
The worker took issue with full wage loss benefits ending after June 27, 2021 when a GRTW plan was instituted. The worker's representative stated the worker was unable to participate fully in the GRTW plan due to ongoing effects of COVID-19.
The worker’s representative provided commentary on the GRTW:
“In the context of much unknown with Covid 19 and the impact of those with long haul symptoms, a monitored, comprehensive rehabilitation program should have been arranged by the WCB as the contraction of Covid 19 occurred from their workplace. This should have been arranged before a non-medically guided return to work plan was put in place by the WCB….
“The medical practitioners that have assessed and tested the worker in person have not recommended they return to work…”
“…the WCB put an aggressive return to work plan in place that was not based on any medical recommendations.”
The worker's representative noted that on June 22, 2021 a new diagnosis of “post viral fatigue syndrome” was provided by the worker's physiotherapist.
The worker’s representative presented documents that reference the potential long term impact of COVID-19 in order to support the worker’s position. This included a report from the World Health Organization on post COVID-19 condition.
The worker's representative noted that the worker's symptoms fall within the WHO's definition of post COVID-19 condition. The worker's representative referred to the worker's cardiologist, who did diagnose the worker with post COVID-19 syndrome, noting symptoms of chest pain, shortness of breath, palpitations and exertion. They also referenced the worker's treating physiotherapist, who diagnosed the worker with post-viral fatigue syndrome on June 22, 2021 and noted symptoms of orthostatic intolerance, dizzy when standing, loses balance, out of breath walking two to three minutes, and fatigue with activities of daily living.
The worker's representative also pointed to additional research and development undertaken by a health centre in Alberta in their report titled “COVID 19 and return to work”. It purports that a worker may have some residual symptoms following recovery from the viral infection. These symptoms can impact the return-to-work process, particularly the speed that the employee can gradually return to full hours and duties. Residual symptoms may include coughing, ongoing fatigue, shortness of breath, heart palpitations, joint pain, anxiety, loss of taste or smell, brain fog. It defines brain fog as a term that is used to describe a cluster of symptoms that affect the individual’s ability to think clearly. They may have struggles with memory, decision-making, planning, and problem solving. They may feel confused or disorganized or find it hard to focus or put thoughts into words. If the symptoms persist and the employee has been off for an extended period of time, they can return to work with their doctor's clearance, and when cleared by a treating physiotherapist or occupational therapist or other treatment provider. It acknowledges a post COVID-19 condition, and the research provides information to employers, and, in turn, injured workers to understand.
The worker and their representative are of the opinion that the worker meets the definition of post COVID-19 condition, their ongoing symptoms are a consequence of contracting COVID-19 and that the worker should be entitled to further benefits as a result.
The employer did not participate in the hearing.
The issues before the panel involve an assessment of whether the worker was capable of full participation in the GRTW plan and whether the worker had recovered from the effects of the compensable injury when benefits were terminated on September 19, 2021.
For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was not capable of full participation in the GRTW plan and had not recovered from the effects of the compensable injury by September 19, 2021. The panel was able to make these findings.
The panel observed that after implementation of the GRTW starting June 22, 2021, it underwent multiple changes and extensions over the course of time leading up to Sept 20, 2021. In the panel's view, this is a clear indication that the worker's recovery and therefore their ability to participate in the GRTW was not proceeding as expected. At the time benefits ended on September 19, 2021, the worker was then expected to work full time despite the absence of medical clearance from the worker's treating healthcare providers and the state of the worker’s recovery (or lack of recovery).
The WCB medical advisor described post-viral fatigue syndrome as a constellation of symptoms and further indicated:
“There is no diagnostic test with adequate sensitivity or specificity to help confirm a suspected diagnosis of Post-Viral Fatigue Syndrome. There is also no clear understanding of the pathophysiology that might be involved in those categorized with this term.”
“In the absence of a current objectively determined anatomic or physiologic abnormality, the diagnosis of Post-Viral Fatigue syndrome is not medically accounted for in relation to an acute Covid 19 infection of November 16, 2020.”
“In the absence of a probable established pathophysiologic process to account for the worker’s symptom complex, this review is not able to recommend specific treatments or objectively substantiate workplace restrictions…”
The appeal panel is unable to place much weight on the Medical Advisor's comments that a diagnosis of Post-Viral Fatigue syndrome is not medically accounted for in relation to the worker's acute COVID-19 infection. The comments appear to be limited by the lack of diagnostic criteria, rather than a full assessment of whether the worker's ongoing symptoms were related the original compensable injury. The WCB Medical Advisor's comments do appear to highlight a need for the development of a consistent description and definition of a post COVID-19 condition, and what policies should be developed to establish compensability.
The panel notes that WCB decision making appears to emphasize the absence of medical evidence to support ongoing compensability of the worker's symptoms. The decision making appears to consider only objective evidence, instead of the totality of the evidence in the file. This is concerning when dealing with areas of emerging medical data, as is the case here.
The panel finds that the worker continued to experience COVID-19 related symptoms after the claim was terminated. The panel prefers the opinions of the worker's cardiologist and physiotherapist when assessing the worker's symptoms, their relationship to the compensable injury and their impact on the worker's ability to participate fully in the GRTW.
The panel is satisfied that the worker continues to experience residual symptoms from their compensable COVID-19 diagnosis. There has been much discussion on the file whether the worker has a diagnosis of Post-Viral Syndrome, post COVID-19 condition, or something else. The panel finds it unnecessary to make this determination as it is satisfied that the worker had not recovered from the effects of the compensable injury when benefits were terminated in September 2021. As such, the panel finds that the worker is entitled to further entitlements beyond Sept 19, 2021, and as such is returning the claim for further adjudication. The worker's appeal is accepted.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of May, 2022