The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for further treatment with a psychotherapist; the worker's restrictions have been correctly established; and the worker is not entitled to full wage loss benefits beyond July 14, 2020. A videoconference hearing was held on February 27, 2023 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for further treatment with a psychotherapist for EMDR treatment; 

2. Whether or not the worker's restrictions have been correctly established; and 

3. Whether or not the worker is entitled to full wage loss benefits after July 14, 2020.

Decision

1. This issue was withdrawn at the hearing. 

2. The worker's restrictions have not been correctly established; and 

3. The worker is entitled to full wage loss benefits after July 14, 2020.

Background

The worker filed a WCB claim for a psychological injury that occurred on September 2, 2015, while exposed to a traumatic event at work. On September 22, 2015, the WCB accepted the worker's claim and payment of benefits commenced.

The worker sought treatment with a family physician and was referred to a psychiatrist on September 11, 2015. The worker continued to seek treatment with a counsellor he had been seeing due to his previous 2014 WCB claim for post-traumatic stress disorder ("PTSD"). The WCB arranged for a referral to a psychologist on November 25, 2015. In an initial report from the treating psychologist dated December 16, 2015, the psychologist opined that the worker was "…struggling with PTSD; he is having daily intrusive thoughts, nightmares, increased startle response, hypervigilance and significant avoidance." The psychologist recommended psychotherapy treatment to help the worker develop ways to deal with his PTSD symptoms.

A WCB psychological advisor reviewed the worker's file and his previous WCB claim file on January 20, 2016, and opined that the worker's diagnosis was PTSD initiated by the initial compensable injury in December 2014, now aggravated by the September 2, 2015 workplace incident, and recurrent Major Depressive Disorder. The advisor recommended the worker required ongoing psychological treatment, and ongoing psychiatric consultation and treatment regarding medications.

On May 19, 2016, the worker attended a call-in examination with the WCB psychological advisor. After interviewing the worker, the advisor opined the worker had "…a Specified Trauma and Stressor Related Disorder with Posttraumatic symptoms…" specifically related to his occupational trauma and two salient events in the workplace and "…in the context of long-term history of stress in his…work." The advisor further opined that he saw the worker as employable in other employment, where he would not be involved in critical care. The advisor recommended a gradual return to other accommodated work as a rehabilitation step, to be reviewed after four to six months for progress. The recommended restrictions were confirmed as being: that the worker not work in an EMS (emergency medical service) capacity; that he should not be involved in critical medical events; and that he should not be involved in situations where there was a high risk of critical medical events.

Discussions took place between the worker, the employer and the WCB with a trial return to work in accommodated positions taking place in September and October/November 2016. The return to work trials failed, and the WCB arranged to have the worker's restrictions reviewed after a further call-in examination with the worker.

On January 4, 2017, the worker attended the call-in examination with the WCB psychological advisor. Following the examination, the advisor opined that the worker continued to experience symptoms of Specified Trauma and Stress Related Disorder with post-traumatic symptoms related to the workplace accident. The advisor recommended that the previous restrictions of no work in an EMS capacity; no involvement with critical medical events; and no involvement in situations where there is a high risk of exposure to critical medical events for the worker; as well as a restriction of no work in any situation which there is prolonged exposure to critical care locations; should be made permanent. The advisor also recommended, as a temporary restriction, that the worker only work day shifts due to his reported sleep disturbance. The WCB provided the restrictions to the employer on February 2, 2017.

On April 18, 2017, the worker returned to work in an accommodated .7 EFT (equivalent to full time) position working as a cook in a local hospital, with reduced hours, and was provided with partial wage loss benefits by the WCB. The worker continued to receive partial wage loss benefits as a top-up to his previous employment earnings.

On June 21, 2017, the worker attended a call-in examination with the WCB psychological advisor to determine his eligibility for a permanent partial impairment award, and was assessed a 7.5% permanent impairment rating for his psychological impairment.

On May 4, 2018, the WCB clarified the worker's restrictions with the employer and noted the permanent restrictions to be: the worker should not work in an EMS capacity; the worker should not be involved with critical medical events, and should not be involved in situations where there is a high risk of exposure to critical medical events; the restrictions would not preclude the worker from working in a health authority where he may need to use first aid and CPR in an incidental fashion; and the worker should not work in any situation where he has prolonged exposure to critical care locations.

On February 2019, the WCB assessed the worker's file to determine if vocational rehabilitation services were warranted to maximize the worker's post-accident earning capacity, and in April 2019, the WCB determined that the current .7 EFT position represented the most cost effective plan moving forward.

On June 3, 2019, the employer advised the WCB that the worker had provided them with a sick note from his physician to be off work until July 2, 2019. In a June 4, 2019 email to the WCB, the worker advised that due to increasing and ongoing symptoms, he sought treatment from his family physician and was placed off work. The worker further advised that he was awaiting an appointment with his treating psychiatrist and was also waiting to hear back from his treating psychologist. On August 2, 2019, the WCB received a July 3, 2019 report from the worker's treating psychiatrist, who noted the worker's past diagnoses of Major Depressive Disorder, recurrent, and Post Traumatic Stress Disorder, and recommended continued medication use and therapy.

On September 10, 2019, the worker attended a call-in examination with a WCB psychiatric consultant. Following that examination, the psychiatric consultant opined that the worker's current diagnosis was PTSD, which was medically accounted for in relation to the workplace accident. The consultant noted that the worker had researched and suggested EMDR (eye movement desensitization and reprocessing therapy) and opined that a trial of that treatment would be reasonable. On October 30, 2019, the WCB approved an initial 12 sessions for the worker.

In a Progress Report dated January 26, 2020, the treating psychotherapist noted the worker had improved capacity to tolerate and process his emotions, but continued to experience PTSD symptoms. The psychotherapist requested approval for an additional 12 sessions, and the WCB approved those sessions on February 3, 2020. A further 12 sessions were also approved on April 28, 2020.

On June 3, 2020, the worker's file was reviewed by a further WCB psychiatric consultant. The consultant noted the worker's accepted diagnoses were an aggravation of PTSD and Major Depressive Disorder, recurrent, and the worker's treating psychotherapist provided an additional issue of adverse childhood experiences, which was noted by the consultant to be a "…vague description that does not garner a diagnosis." The WCB psychiatric consultant further indicated that the treating psychotherapist was not focusing on return to work therapy, but on situations from a remote time which were not related to the worker's employment, and that there was no medical reason for this. The consultant opined that there was no further benefit to the worker continuing with the EMDR treatment, which appeared to destabilize the worker, and that his function appeared to have worsened. The consultant further commented that the worker's prescribed medications were appropriate.

On July 16, 2020, the employer contacted the WCB to advise the worker had brought in a note from his treating family physician on July 15, 2020, placing him on a medical leave of absence due to mental health issues and for the worker to explore vocational options more suited to him. In an email message on July 21, 2020, the worker advised the WCB his treating family physician and psychotherapist felt work was hindering his recovery and was detrimental to his mental health. On the same date, the WCB contacted the worker to discuss his claim. The worker advised he was struggling while at work in his accommodated position and was experiencing increased symptoms, and his psychotherapist recommended he be removed from work. The worker noted he had been working on a self-employment related venture, and he thought it would be better for him. On July 24, 2020, the WCB advised the worker that they would not pay for any time loss from work effective July 15, 2020 until further investigation was completed regarding medical support for his time away from work.

On July 29, 2020, the WCB received a report from the worker's treating psychotherapist. The report noted the worker's progress and the therapist's belief the accommodated position was not acceptable for the worker, and was causing an increase in his distress, which compromised the treatment of his PTSD. The psychotherapist went on to report the worker had been attempting a self-employment venture, and was requesting the WCB consider that employment as suitable alternate accommodation and provide the worker with rehabilitation services to assist him in this endeavour.

Additional reports were received from the worker's treating family physicians and psychotherapist, which were reviewed by a WCB psychiatric consultant on October 31, 2020. The consultant opined that the worker's absence from work since July 15, 2020 related to his dissatisfaction with his accommodated position, which led to his difficulty to cope, then to absences from that position. The consultant opined that this was related to workplace stress and not the compensable PTSD diagnosis. The WCB psychiatric consultant further indicated that no changes to the worker's restrictions were required, and recommended further treatment modalities and that an adjustment in the worker's medications might be appropriate.

On November 2, 2020, the WCB advised the worker that he was not entitled to wage loss benefits after July 14, 2020 as they had determined his absence from work was not related to his compensable WCB claim and diagnosis from September 2015. The WCB further advised that additional EMDR treatments would not be approved.

On November 12, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker submitted he was making good progress with the psychotherapist during the EMDR treatment and that changing therapies would not be beneficial.

On January 13, 2021, Review Office determined the worker was entitled to partial wage loss benefits beyond July 14, 2020, but that he was not entitled to further EMDR treatment with the psychotherapist. Review Office found that while the worker was not participating in his accommodated position, in accordance with the WCB's policies, he was entitled to partial wage loss benefits based on the gross earnings of that position, less any other employment income the worker may have earned. Review Office found that the alternate position was suitable as it was within the worker's restrictions, and that the medical evidence did not support a change in the worker's permanent restrictions or support that the worker was unable to continue working effective July 15, 2020. Review Office also found that responsibility would not be accepted for the EMDR therapy as it had not improved the worker's mood or functioning, specifically in the workplace.

On May 12, 2022, the worker's legal counsel appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.

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.

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "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 describes 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.

Worker's Position

The worker was represented by legal counsel, who filed a written submission in advance of the hearing and made an oral submission on the worker's behalf. The worker and his counsel also answered questions from the panel.

The worker's position was that the accommodated position of working as a cook in a local hospital was not appropriate, given the worker's permanent restrictions and the fact that the position involved prolonged exposure to a critical care environment which was a constant trigger for his symptoms.

The worker's further position was that his absence from work beginning in July 2020 was the result of an aggravation of his PTSD symptoms, which could be directly related to his compensable injury, and he was therefore entitled to wage loss benefits payable retroactive to that date, with an appropriate set-off for income earned in other endeavours initiated by the worker.

The worker testified with respect to his first two trial returns to accommodated work in September and October/November 2016. The worker stated that the first trial, in September, was in a hospital laundry facility and did not go well, lasting less than a day. The worker noted that there were "a lot of alarms, buzzers, going up to the floors…stuff was making me extremely anxious and on guard and startling me a lot. Bugged me quite a bit, started crying a lot…while working." The second trial, in October/November was in an administrative position, doing staffing, was located in an office next to the hospital, and went well initially, but it was ultimately agreed that the position was not a good fit for him.

With respect to the third attempt at a gradual return to work, which was initiated in April 2017, the work involved cooking in a hospital kitchen which was located in the basement of the hospital. The worker stated that he was doing "okay" at the beginning: "It wasn't bad at first, I (sic) was tolerable. It just got tougher and tougher every – as time went on to keep going." Asked whether he missed time at work, the worker said "Lots. It was probably once a week I would call in. I'd be driving to work and have a meltdown, start crying…shaking."

With respect to the situation inside the hospital, the worker referred to an incident a few months after he started, in the cafeteria which was right beside the kitchen, where "There was a code blue in the cafeteria. So, I thought about it for a second and yes, I did go to it because I know what to do and all the staff were standing around with their jaws open. So, I went and tried to help, and the person didn't need help. So I left very quickly." The worker further noted that there is an "Overhead paging system for the hospital. So, you hear everything that's coming in with the ambulances or any announcements in the hospital. Code blue, code white, anything like that. Stroke protocols coming in everything."

The worker described how his symptoms became progressively worse in mid June 2019, which resulted in his attending an emergency department and being hospitalized and taken off work for one month, with his absence being accepted by the WCB. The worker said that when he returned to work after that, he was "Surviving. Started to feel better for a little bit. Started back to work. Went downhill pretty quick. Started calling in a lot. Avoiding work, avoiding people…it was not a great time." The worker said that on his last day in the cook position, on July 14, 2020, he was hospitalized again, and just said "I can't do this anymore…" The worker described his symptoms at that time and confirmed that they were the same type of symptoms as in 2015 and 2019.

The worker stated that from 2020 through 2021, he experienced a gradual improvement in his symptoms, and in 2022, he sought some part-time work. He indicated that a little less than a month before the hearing, he had started a full-time job doing maintenance work at a sports facility.

When asked to explain why he could not go back to the cook position at the hospital, the worker stated that he "…was starting to realize it was –- the hospital was a trigger for me….I was trying to take things out of the equation, but that was the only thing that stayed the same and my symptoms were continuing to get worse." Asked whether he would be able to return there now, the worker said "No, I – I get worked up just going by the hospital because I go pick up my medication across the street from the hospital and it usually gets me in a bit of a mood just going there."

Counsel submitted that the medical evidence clearly establishes that the symptoms that resulted in the worker's absence from work beginning in July 2020 were the exact same as those that had resulted in previous periods of absence in 2014, 2015 and 2019, all of which were accepted as being related to the compensable injury. Counsel questioned why those same symptoms would not be accepted in 2020. Counsel noted that all the doctors, including the WCB doctors who actually saw the worker, agreed that the symptoms he was experiencing were always related to his PTSD, and the only exceptions were the WCB medical consultants who did file reviews but never actually spoke to the worker.

Reviewing the medical reports on file, counsel noted that the WCB psychological advisor reviewed the worker's restrictions following the first two failed returns to work, recommended the previous restrictions be made permanent, and added a fourth restriction that the worker should not work in any situation where he has prolonged exposure to critical care locations. Counsel stated that it is important to note that in neither of the two failed positions was the worker physically working in a critical care location, but just being on the hospital premises and being exposed to those stimuli on a daily basis was enough to trigger his symptoms, and submitted that this was why the psychological advisor added the fourth restriction.

Counsel submitted that the medical documentation is clear, that beginning as early as the spring of 2019, the worker was experiencing a resurgence or aggravation of his PTSD symptoms that ultimately resulted in his absence from work. He had been struggling in his accommodated position from its inception, to the point that by 2019, he had an absentee rate of 40%, where he just could not physically get to work because of his symptoms or would need to leave work because of his symptoms.

In conclusion, counsel stated that it was their position that the worker's absence from work beginning in July 2020 was a result of an exacerbation or recurrence of his diagnosed conditions of PTSD and major depressive disorder, and were related to his compensable injury. Counsel submitted the medical evidence is clear that the worker had not been capable of full-time work, at least until March 2022. It was further submitted that the accommodated position the worker had with his employer as a cook was not appropriate given his permanent restrictions, as he was required to attend in a hospital setting on a daily basis, something that had repeatedly been recorded as a trigger for the worker's PTSD symptoms. Counsel submitted that it is clear the worker struggled in this position from day one, with his attendance progressively getting worse, such that by 2019, he had a 40% absentee rate.

It was submitted that in the circumstances, the worker should be entitled to full wage loss benefits in relation to his absence from work beginning in July 2020.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not responsibility should be accepted for further treatment with a psychotherapist for EMDR treatment.

At the commencement of the hearing, legal counsel advised that they were really focusing on wage loss benefits and restrictions on this appeal. When asked for clarification as to whether the panel was to consider this issue, counsel advised that the answer was no. Counsel indicated that the worker did not seek EMDR for an extensive period of time after the WCB's decision, and they were not seeking compensation for costs the worker incurred for EMDR treatment in 2020 or beyond. Counsel noted that EMDR has been recommended again, but she did not believe the WCB has decided whether they will cover such treatment. Counsel stated that in the circumstances, she did not believe it would be appropriate to ask the panel to weigh in on whether such treatment is compensable at this point.

As this issue is considered to have been withdrawn, it has not been addressed by the panel.

Issue 2: Whether or not the worker's restrictions have been correctly established.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's restrictions were not appropriate in this situation. The panel is able to make this finding, for the reasons that follow.

The panel finds that the dispute on this case is not as to whether the worker's restrictions themselves were correctly established or appropriate. Rather, it relates the interpretation of those restrictions, or whether the restrictions were properly interpreted and applied. In response to questioning from the panel, counsel agreed that in their view, the wording of those restrictions, in particular the fourth restriction, namely that the worker should not work in any situation where there was prolonged exposure to critical care locations, has been interpreted very narrowly. Counsel submitted that the entire hospital in this case is a critical care location, and the fourth restriction resulted in the cook position being problematic.

The panel is satisfied that the evidence supports that the hospital where the worker was working would be considered a critical care location, where the worker would be exposed on a prolonged basis to stimuli or communications related to critical events. The evidence shows that the worker was exposed to announcements or messages over the PA system relating to various codes being called and emergency situations, with which the worker would be very familiar from his previous position where he was injured, and the significance of which he would understand. The panel is satisfied that the evidence supports that the worker's exposure to such stimuli on a daily basis which working in the hospital kitchen would be a trigger for his PTSD symptoms. The worker would also be moving through various other parts of the hospital workplace while at work or going to or from work.

While the WCB psychological advisor had noted that the restrictions would not preclude the worker from working in a health authority where he might need to use first aid and CPR in an incidental fashion, the panel does not accept that this means that working in a hospital or hospital environment was within the worker's permanent restrictions. It is unclear to the panel whether all employment opportunities with the health authority in this area were situated in actual critical care locations, or whether the WCB psychological advisor was aware of this. In any event, it appears from the information on file that no attempt was made to clarify with the WCB psychological advisor what exactly was meant by the fourth restriction.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's restrictions were not appropriate in this situation. The panel therefore finds that the worker's restrictions have not been correctly established.

The worker's appeal on this issue is allowed.

Issue 3: Whether or not the worker is entitled to full wage loss benefits after July 14, 2020.

This issue is directly related to the panel's decision on Issue 2 that the worker's restrictions have not been correctly established. For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after July 14, 2020 as a result of his September 2, 2015 workplace accident. The panel is able to make that finding for the reasons that follow.

Based on our review of all of the evidence and the submissions which are before us, the panel is satisfied that the evidence supports that the worker was taken off work on July 14, 2020 due to an aggravation or resurgence of his PTSD symptoms while working in the hospital kitchen. The evidence shows that the worker's absences had increased over the previous months to the point that he had a 40% absenteeism rate. The panel is further satisfied that the evidence shows the worker's symptoms were similar in type to the symptoms he had experienced in 2014 and 2015 and that his removal from the workplace was due to an aggravation or resurgence in those symptoms which was related to his compensable injury. The panel therefore finds, on a balance of probabilities, that the worker suffered a loss of earning capacity after July 14, 2020 as a result of his September 2, 2015 workplace accident, and the worker is entitled to full wage loss benefits after July 14, 2020.

The worker's appeal on this issue is allowed.

Panel Members

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 28th day of April, 2023