The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Responsibility should not be accepted for the medication Lorazepam after July 30, 2022; 

2. They were not entitled to wage loss benefits with the accident employer after October 18, 2022; 

3. They have been overpaid wage loss benefits in the amount of $124,628.40; 

4. They are required to repay the full amount of the overpayment; 

5. An administrative penalty was assessed against the worker for contravention of section 19(4) of the Act.

A hearing was held on January 17, 2024 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the medication Lorazepam after July 30, 2022; 

2. Whether or not the worker is entitled to wage loss benefits with the accident employer after October 18, 2022; 

3. Whether or not the worker has been overpaid wage loss benefits in the amount of $124,628.40; 

4. Whether or not the worker is required to repay the full amount of the overpayment; and 

5. Whether or not an administrative penalty should be assessed against the worker for contravention of section 19(4) of the Act.

Decision

1. Responsibility should be accepted for the medication Lorazepam after July 30, 2022; 

2. The worker is entitled to wage loss benefits with the accident employer after October 18, 2022; 

3. The worker has not been overpaid wage loss benefits in the amount of $124,628.40; 

4. The worker is not required to repay the full amount of the overpayment; and 

5. An administrative penalty should not be assessed against the worker for contravention of section 19(4) of the Act.

Background

The worker filed a Worker Incident Report with the WCB on April 22, 2020, reporting an injury to their neck, back and shoulder as the result of an incident at work on April 19, 2020. The worker described assisting with moving a person from the second story of a building down narrow, steep stairs, and feeling discomfort in their lower back afterward. The worker noted they had to lift and turn in a tight area while wearing full personal protection equipment due to the COVID-19 pandemic.

On April 20, 2020, the worker attended a virtual appointment with their family physician reporting twisting and feeling pain down their lower back after assisting with removing a person from a building on April 19, 2020. The worker noted no stiffness from their hips to their neck, no shooting pain down their legs, and pain in their lower back, right shoulder, and neck. The worker advised the physician they could still move around, were not experiencing any numbness and reported a negative straight leg raise test at home. The physician diagnosed a back sprain and recommended the worker remain off work for two weeks.

In conversation with the WCB on April 23, 2020, the worker confirmed the treating physician placed them off work from April 20, 2020 to May 4, 2020 and that they had contacted a physiotherapy clinic, but the clinic was closed due to the COVID-19 pandemic. The worker advised the WCB they were missing time from the employer and from their concurrent employment. The WCB advised the worker that the claim was accepted.

On April 27, 2020, the employer provided the Employer's Accident Report to the WCB, which confirmed the mechanism of injury as described by the worker and noted the availability of modified duties for the worker.

On April 29, 2020, the worker had a follow-up virtual appointment with the treating physician. The worker reported their shoulder was still sore, they felt like they had a bulge in their lower back on the left side, and that they were having difficulty sleeping and were experiencing stress. The worker advised the physician they learned the person they assisted at the time of the injury had passed away, which left the worker feeling frustrated and helpless regarding the restrictions due to the COVID-19 pandemic. The worker advised the physician they were taking the medication Lorazepam twice a day as they were experiencing shortness of breath and tightness in their chest due to panic. The worker further described not sleeping well and having decreased appetite. The treating physician recommended physiotherapy for a suspected right rotator cuff injury and that the worker only use Lorazepam, as necessary. The physician diagnosed post-traumatic stress disorder (PTSD).

On April 29, 2020, the worker discussed the claim with the WCB, confirming the mechanism of injury. The worker noted they were aware the person passed away, and they were having difficulty dealing with that situation and had requested a referral from their physician for counselling. The worker advised that their right shoulder symptoms included being unable to lift their right arm up to shoulder height, pain from their shoulder to their neck, and that they also experienced headaches, sore low back area, painful bending, and tightness in their low back/hips. The worker described symptoms related to PTSD as “…reliving the incident, flashback memories, loss of appetite, trouble sleeping, anxiety.” The worker confirmed they had concurrent employment and had not returned to work for either employer.

The worker attended an initial physiotherapy assessment on May 6, 2020, reporting difficulty lifting their shoulder/arm with limited mobility, a dull constant ache in their back and sharp pain in their shoulder. The physiotherapist noted reduced range of motion in the worker’s shoulder and tenderness in the worker’s lumbar spine and provided diagnoses of right cervical strain, right rotator cuff strain and a lumbar sprain/strain, with recommendation that the worker remain off work.

At a physiotherapy appointment on May 21, 2020, the worker reported their shoulder was starting to loosen up but they still had pain with lifting, continued neck tension with intermittent back pain. The physiotherapist recommended the worker to avoid lifting greater than 10 pounds to shoulder, avoid lifting overhead and carry up to 15 pounds at waist level for short distances.

On June 1, 2020, the worker attended an initial assessment with a psychologist. In a progress report provided to the WCB on June 22, 2020 for the worker’s appointments on June 1, 2020, June 9, 2020 and June 15, 2020, the psychologist outlined the worker’s report that shortly after the incident on April 19, 2020, they started to think about the incident and felt anxious and a tightness in their chest after which they attended their treating physician who prescribed Lorazepam. The worker reported experiencing sleepless nights, ruminating on the incident, and having flashbacks of the incident and episodes of feeling overwhelmed or stressed that left them breathless at times. The worker reported experiencing ongoing sleep difficulties, daily anxiety, and continued feelings of panic. The treating psychologist outlined how the worker met the criteria for a diagnosis of PTSD given their reported symptoms including “…intrusion, avoidance, cognition and mood, and arousal and reactivity…” and provided their diagnosis of PTSD with panic attacks. On July 3, 2020, the WCB accepted the worker’s diagnosis of PTSD.

In discussion with the WCB on July 16, 2020, the worker again confirmed the mechanism of injury and advised they were attending physiotherapy for their cervical, right rotator cuff and lumbar sprain/strains and cognitive behaviour therapy for PTSD. The worker advised their back and shoulder were improving however, their sleep was still poor, and they were still experiencing shortness of breath and nightmares. The worker confirmed they had not returned to work with the employer or their concurrent employer and further, noted they also owned a business that their spouse was running due to their injuries.

The worker continued with regular treatment from their family physician and psychologist in respect of ongoing reported PTSD symptoms. A WCB psychological consultant reviewed the worker’s file on December 6, 2020, January 4, 2021, April 14, 2021, and June 14, 2021. The consultant noted concerns with the worker’s use of Lorazepam in a note to file of January 4, 2021. The April 14, 2021 and June 14, 2021 reports by the WCB psychological consultant indicate note the treating psychologist’s reference to the worker’s “…avoidance of engaging in all aspects of treatment…”, and that some improvement was noted on June 14, 2021.

Following the worker’s discussion with the WCB on June 8, 2021 in which the worker expressed frustration with the progress of their treatment program and requested approval for a different modality of treatment, the WCB psychological consultant approved further treatment and recommended the WCB discuss alternate treatment methods. On June 16, 2021, the WCB advised the worker of the extension to treatment, and that the employer had accommodated duties available. At that time, the worker confirmed they had not returned to any employment, including their self-owned business.

On September 1, 2021, the worker contacted the WCB to request a different treatment modality. On review of the worker’s file the same date, a WCB psychological consultant agreed with the request and referred the case manager to psychologists who conduct that treatment. The worker began the new treatment on November 18, 2021 and December 8, 2021 and the treating psychologist provided a report to the WCB on January 9, 2022. In that report, the psychologist noted the worker’s treatment history and confirmed the worker met the criteria for a diagnosis of PTSD, along with Major Depressive Disorder, moderate severity, single episode secondary to PTSD. The psychologist recommended further treatment, with the possibility of returning to work to be assessed after 12 sessions.

A WCB psychological consultant reviewed the worker’s file on April 3, 2022, and noted the worker’s recovery was not progressing satisfactorily due, in part, to the worker’s history of avoidance, multiple traumatic incidents and the worker’s use of Lorazepam, which the consultant had previously flagged as problematic on January 4, 2021. Further, the consultant noted that the treating physician’s chart notes indicated the worker was referred for assessment due to concerns about their usage and escalation of benzodiazepine. The consultant recommended a review of the worker’s file by a psychiatric or general medicine consultant for an opinion on the use of Lorazepam, noting the worker’s new treatment regimen would be complicated by their use of that medication.

In discussion with the worker on April 29, 2022, the WCB advised that funding for Lorazepam would continue until July 30, 2022, to allow for a gradual reduction in use, and that after that time, the WCB would no longer fund the medication. On September 21, 2022, the WCB provided a decision letter to the worker confirming that funding for Lorazepam ended as of July 30, 2022.

On June 21, 2022, the WCB’s Compliance Services provided to the worker a Notice of Allegation that they contravened s 19(4) of the Act by resuming their self-employment activities on or about August 20, 2020 and by not reporting their return to work to the WCB. Compliance Services placed their Final Investigation Report on the worker’s file on October 17, 2022. Based on their investigation, Compliance Services determined the worker contravened s 19(4) of the Act when they returned to their self-employment work on August 20, 2020. The Report indicated the investigation found the worker resumed teaching courses through their business on that date and on other dates up to and including March 29, 2022 and did not advise the WCB of their return to work. The Report noted the worker denied teaching the courses, and that their spouse took over the business when the worker was injured. The worker indicated that it was a clerical error that listed them as the instructor on the third party website; however, the WCB found the worker provided no evidence to support that explanation. The Notice indicated the WCB would apply an administrative sanction of the greater of $225.00 or 10% of the overpayment as a result of the worker’s contravention of s 19(4) of the Act. On October 18, 2022, the WCB advised the worker that, pending further investigation into their entitlement to further benefits, their wage loss benefits were suspended, and confirmed this by letter to the worker of the same date.

On December 6, 2022, the WCB sent a further letter to the worker indicating that as the self-employment work was beyond their restrictions and self-reported abilities, and as the employer confirmed the availability of alternative work since the workplace accident, the WCB was reviewing the claim to determine if the worker’s current psychological symptoms were related to the workplace accident. As such, wage loss benefits were suspended to avoid ongoing overpayment.

A further letter from the WCB to the worker sent on December 13, 2022 confirmed the decision to end entitlement to funding for Lorazepam as of July 30, 2022.

A WCB psychiatric consultant who reviewed the worker’s file on December 16, 2022, concluded that it was not clear if the worker had even been exposed to a traumatic event as required to meet criterion A for a diagnosis of PTSD. The consultant concluded the worker appeared to be more distressed about how the COVID-19 pandemic changed the way they performed their job duties than about the death of the individual they were assisting on the date of the incident. The psychiatric consultant also noted that most individuals with PTSD experience improvement in their symptoms within a year of the traumatic incident, but the worker reported continued and ongoing symptoms 32 months later. The consultant also noted most individuals report waxing and waning of their PTSD symptoms, but the worker reported their symptoms to be of the same intensity and severity. The consultant further noted the worker was provided with extensive trials of different modalities of treatment with no reported benefits or improvement in their symptoms. The WCB psychiatric consultant concluded the worker’s ability to teach courses as part of their self-owned business was inconsistent with their reporting to their treating healthcare providers of “…severe intrusion, avoidance symptoms, and psychological and psychological distress in exposure to reminders of the index workplace incident” and that no workplace restrictions were indicated. Further, as the worker had received extensive psychotherapy with no benefit, it was unlikely further treatment would result in a sustained, material improvement.

An Addendum to the Compliance Services’ Investigation Report of January 16, 2023, provided further details from a third party related to the courses taught on the dates provided and included a review of the worker’s income tax information and reported business income.

On January 18, 2023, the WCB provided a decision letter to the worker indicating it determined their current symptoms were not accounted for in relation to the April 18, 2020 workplace accident and that they were fit to return to work with the employer as of August 20, 2020. The WCB noted no further wage loss benefits would be paid since the WCB suspended the worker’s benefits on October 18, 2022. On January 20, 2023, the WCB advised the worker they were overpaid wage loss benefits in the amount of $124,628.42, which they were required to repay. On March 6, 2023, Compliance Services advised the worker that an administrative penalty of $12,462.00, being 10% of the overpayment, was imposed in respect of their contravention of s 19(4) of the Act.

On March 21, 2023, the worker requested Review Office reconsider the WCB’s decisions to deny coverage of the medication Lorazepam, that they were not entitled to wage loss benefits after October 18, 2022, that they were overpaid $124,628.40, that they were required to repay the overpayment and the administrative penalty imposed. In their submission, the worker noted their treating healthcare providers supported their ongoing need for treatment and time off work as they were still experiencing the effects of the workplace accident. Further, the worker noted they informed the WCB case managers of the self-owned business and were advised that it was not “…a concern for income compensation….” The worker also noted their spouse was teaching the courses through the business as the worker was not able to do so due to their injury; however, because of a clerical error, the worker remained listed as the instructor for those courses with a third party. The worker also submitted letters in support of their reconsideration request from their treating family physician dated March 6, 2023 and their treating psychologist dated March 9, 2023.

On May 26, 2023, Review Office requested further information from the worker, which the worker provided on May 30, 2023. On July 13, 2023, the employer’s representative provided a submission in support of the WCB’s decisions, a copy of which was provided to the worker on July 20, 2023.

Review Office determined on September 6, 2023 that the worker was not entitled to the medication Lorazepam after July 30, 2022, the worker was not entitled to wage loss benefits after October 18, 2022, the worker was overpaid $124,628.40, the worker was required to repay the overpayment and was required to pay the administrative penalty. Review Office relied on the opinions of the WCB medical advisors who reviewed the worker’s file and found the worker’s use of the medication Lorazepam was not supported as the use of Lorazepam was counter-indicated for the treatment of the worker’s diagnosed PTSD. Review Office further accepted the findings of the Compliance Services investigation that the worker returned to their self-employment on August 20, 2020 and found that, as the employer had modified duties available for the worker since the workplace accident, the worker was not entitled to wage loss benefits after October 18, 2022 when their wage loss benefits were suspended. As well, Review Office determined as the worker demonstrated the ability to return to work, they did not have a loss of earning capacity and as such, the worker was overpaid wage loss benefits in the amount of $124,628.40 and was required to repay that overpayment.

The worker’s representative filed an appeal with the Appeal Commission on September 20, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In determining the worker’s appeal, the panel is bound to apply the provisions of The Workers Compensation Act (the “Act”) and regulations under that Act as well as the policies established by the Workers Compensation Board. The provisions of the Act in force at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker sustains personal injury by accident arising out of and in the course of employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 37 provides that when a worker is injured as a result of an accident and sustains a loss of earning capacity, an impairment or requires medical aid, compensation is payable to them as medical aid, an impairment award and wage loss benefits.

Section 4(2) sets out that wage loss benefits are payable for an injured worker’s loss of earning capacity resulting from a workplace accident on any working day after the day of 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. Section 39 of the Act states that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB or the worker reaches 65 years of age.

Section 19 (4) provides that a worker who has been unable to work as a result of an accident must immediately notify the WCB upon returning to work, and s 19(5) states that a failure to do so is an offence subject to an administrative penalty under s 109.7(1). Section 109.7 of the Act provides that the WCB can impose an administrative penalty in relation to the offence of failing to report a return to work under s 19(4) of the Act, and that the amount of such a penalty is established by the applicable Regulations. Section 109.7(1.3) allows a person required to pay an administrative penalty to appeal the matter to the Appeal Commission by sending a notice of appeal and reasons for the appeal within 30 days of being served with notice of the penalty to the Appeal Commission with a copy to the WCB. The requirement to pay the penalty is stayed until the appeal commission decides the matter.

Manitoba Regulation 71/2021, Administrative Penalty Regulation, sets out the amount of the administrative penalty in relation to an offence under s 109.7(1)(a) in the Schedule to the Regulation, and establishes that the administrative penalty for contravention of s 19(4) of the Act is the greater of $225 and 10% of the claim overpayment amount.

Section 22 of the Act outlines the responsibility of a worker to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, to seek out, cooperate in and receive medical aid that promotes their recovery and to cooperate with the WCB in developing and implementing programs for returning to work. When a worker fails to comply with those responsibilities, the WCB may reduce or suspend the compensation payable to the worker.

Section 27 of the Act permits the WCB to provide medical aid to an injured worker to cure and provide relief from a workplace injury as the WCB considers necessary. The WCB has established Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) which outlines the general principles that the WCB will consider and apply in determining a worker’s entitlement to medical aid, which includes medications. The Medical Aid Policy provides that the general principles governing the WCB’s funding of medical aid include the following:

o The Board is responsible for the supervision and control of medical aid funded under the Act or this policy. 

o The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. 

o In determining the appropriateness and necessity of medical aid, the Board considers: 

 Recommendations from recognized healthcare providers; 

 Current scientific evidence about the effectiveness and safety of prescribed / recommended healthcare goods and services; 

 Standards developed by the WCB Healthcare Department. 

o The Board promotes timely and cost-effective access to medical aid. 

o The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. 

o The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

Schedule A to the Medical Aid Policy outlines that in respect of funding of prescription and non-prescription medication, the WCB may refuse or limit the authorization of payment for such medications that are considered by the WCB to be inappropriate, ineffective, excessive, or harmful, including those that may lead to dependency or addiction.

The Act further provides in s 109.2 that an overpayment of compensation, which is an amount that the WCB determines is more than the amount a person is entitled to, may be recovered from the recipient as a debt due to the WCB. The WCB established Policy 35.40.50, Overpayment of Benefits (the “Overpayment Policy”) to outline when the WCB will recover overpayments from an injured worker or their dependant. The Policy sets out that while the WCB strives to prevent overpayments of benefits, payment of benefits in as timely a manner as possible means that some overpayments will inevitably occur. The Policy goes on to provide, in part, that “All overpayments will be pursued for recovery when …. there is evidence of fraud, deliberate misrepresentation, delays in providing or withholding of key information by the injured worker or worker's dependant affecting benefit entitlement…” but the WCB will not pursue an overpayment when the amount is less than $50 or the overpayment resulted from an adjudicative or entitlement decision reversal at the primary level, Review Office or Appeal Commission.

Worker’s Position

The worker appeared in the hearing, represented by a union representative. The worker was accompanied by their spouse, who was noted as a co-presenter prior to the hearing. At the hearing the union representative clarified the worker's spouse was appearing as a witness. Both the worker and their spouse provided evidence in response to questions posed by the union representative and by members of the appeal panel.

In respect of the employer’s request for an adjournment to allow for further disclosure of information not provided to the employer in preparation for the hearing, as detailed below, the worker’s representative advanced the position that the additional information sought by the employer’s representative in relation to the worker’s concurrent employment was not relevant to the issues on appeal. In response to the concerns raised by the employer’s representative as to the participation of the worker’s spouse in the appeal as a witness, the representative noted that they believed they had communicated their intention to have the spouse participate in the hearing to the Appeal Commission in advance of the hearing, and noted that they were prepared to have the spouse give evidence at the outset of the hearing and that they would not sit at the hearing table thereafter if that was a concern for the employer.

In respect of the issues under appeal, the worker’s representative outlined the worker’s position that they have not recovered from the compensable diagnosis of PTSD and as such, require ongoing treatment in relation to that diagnosis, including the medication Lorazepam, as prescribed by their treating physician. The representative confirmed that the worker is not at this time seeking further benefits in relation to any aspect of the injuries sustained in the workplace accident other than the psychological injury. The representative further submitted that the evidence does not support the WCB’s determination that the worker returned to work and failed to report a return to work in August 2020, noting that the evidence of the worker’s spouse is that they alone provided the services which the WCB alleged the worker provided and that the spouse is qualified to do so. Furthermore, the worker disclosed the ongoing nature of this business to the WCB at the outset of their claim and provided further information about the business to the WCB on request. The representative noted that the medical reporting from the worker’s treating providers supports a finding that the worker has continuing symptoms of PTSD and remains disabled from their employment. Further, the representative noted that the evidence confirms the worker was an active and motivated participant in their treatment. As such, the evidence does not support a finding that there is any overpayment of wage loss benefits, and the worker should not be required to pay any administrative penalty.

The worker’s spouse testified that since the worker was injured, they have been running the business, including all administration, and all training delivery. The spouse confirmed that they have the necessary qualifications to deliver the training, contrary to the findings in the WCB investigative report. The spouse noted that the worker was very involved in that work prior to their injury but that changed after and because of the worker’s injury. The spouse confirmed that the worker did not deliver any training from August 2020 onward, neither solo nor as a partner. The spouse described the administrative processes involved in documenting the completion of the training by participants and noted that it is easy to make errors in the information provided using the drop-down menus. The spouse testified to the significant impact of the worker’s PTSD on their family, noting the accident occurred just one week after they had a baby.

The worker testified to their job history with the employer and noted that in the course of their employment they were exposed to traumatic events on numerous occasions and came to a breaking point with the workplace events of April 19, 2020. The worker testified that after that event, they began to experience panic attacks while traveling to work, with flashbacks that continue even today. The worker gave numerous examples to the panel of the kind of traumatic exposures they had in the course of their work over the 12 years in that job.

The worker described the nature and extent of the therapeutic treatment they received since the accident and noted that they continued to work with the psychologist who provided Eye Movement Desensitization and Reprocessing Therapy (“EMDR”) therapy event after the WCB discontinued providing support for the worker’s treatment. The worker stated that their treatment providers have concluded that the worker will be permanently restricted from returning to their pre-accident work or that kind of work and noted that their license for their occupation has now lapsed.

The worker addressed the allegations contained in the WCB Compliance Services Final Investigation Report and confirmed that they fully cooperated in that process. The worker noted that they were up-front with the WCB about the business from the beginning of the claim. The worker clarified that they were prevented from disclosing certain information that the WCB investigator requested by virtue of the provisions of their contract with the third party organization offering the training that the worker’s company delivered. The worker noted that this business provided a “side income” for their family until the accident and subsequently became a more significant source of income as the worker’s spouse began taking on more work to support their family when the worker could no longer work due to their injury. The worker confirmed that they have not led any of the training programs delivered by the company since the accident and that they have not worked in any capacity since leaving their employment after the accident.

The worker noted that they are not able to repay the amount of the overpayment determined by the WCB in a lump sum and that having to repay that amount would be a significant financial burden upon their family. The worker indicated that they did not have any discussions with the WCB as to making payment arrangements over time and were not aware of that option. The worker noted that they have not had any source of income since the WCB suspended their wage loss benefits.

In response to questions posed by the appeal panel, the worker confirmed that they travelled after the injury for family reasons and did so with the approval of their treating therapist. The worker confirmed that they were prescribed the medication Lorazepam prior to the accident for occasional use, but their physician prescribed it after the accident to address the worker’s symptoms of panic and anxiety, with usage on as needed basis. The worker confirmed that they discontinued their use of Lorazepam in the past year.

In respect of the business operations, the worker confirmed their view that the income from the business is family income and noted that they file their taxes together with their spouse. The worker stated that their spouse was an employee of the business as confirmed by the tax records. The worker stated that the business began in 2016 as a sideline activity and did not provide a significant source of income until after the worker was injured and the spouse began to focus on that work.

In response to questions posed by the appeal panel, the worker’s spouse confirmed they have the appropriate credentials and qualifications to conduct the training which they have provided through the business since the worker’s accident. The spouse confirmed that they were not contacted by the WCB as part of the Compliance Services investigation of the worker.

Employer’s Position

The employer was represented in the hearing by an advocate who made oral submissions to the appeal panel on behalf of the employer.

At the outset of the hearing, the employer’s advocate requested an adjournment to permit further disclosure of information not provided to them in advance of the hearing. The advocate outlined their concern that information from the WCB claim file, including a recent Health Care Service Request and documents relating to the worker’s concurrent employment were not provided to the employer for review in advance of the hearing. The advocate submitted the worker's concurrent employment was addressed by Review Office in their decision and as such the follow up by the WCB and information provided by the concurrent employer is relevant to the questions before the appeal panel in this appeal.

The employer’s advocate also raised a concern about the participation of the worker’s spouse in the hearing as a witness, as this was not disclosed to the Appeal Commission or the employer in advance of the hearing as is required.

In addressing the questions on appeal, the employer’s advocate stated that the employer’s position is that the evidence supports the findings of Review Office in relation to all the questions before the panel and that the decision of Review Office should be upheld.

The advocate noted the opinion of the WCB medical advisor that the worker’s use of the medication, Lorazepam, is contraindicated in relation to the diagnosis of PTSD and that the WCB provided notice to the worker and their physician of the need to wean the worker from that medication.

The advocate stated that the employer’s position is that the worker is not entitled to wage loss benefits with the accident employer after October 18, 2022 as the medical evidence does not support the worker’s position that they continued to sustain a loss of earning capacity after that date because of the workplace injury. Rather, the employer’s advocate submitted that the evidence supports a finding that the worker was capable of some work, as determined by the WCB psychiatric advisor, noting that the employer can accommodate a wide range of restrictions and indicated the availability of modified duties for the worker throughout the claim.

The advocate outlined the employer’s position that the evidence confirms the worker could resume employment, as demonstrated by the Compliance Services investigation which found the worker resumed their participation in the business from August 2020 onwards. The advocate further relied upon file information indicating that the worker was going for walks, getting groceries, and traveling as indicating the worker was not completely disabled by their injuries.

The employer’s advocate noted the worker’s statutory responsibility to mitigate the effects of their injury by participating fully in their treatment and return to work opportunities and that the WCB is entitled to refuse or suspend benefits when it finds a worker has failed to meet those responsibilities.

The advocate stated the employer supports the WCB’s decision that the worker was overpaid wage loss benefits as there is evidence that the worker returned to work without informing the WCB that they did so. The advocate also noted that there is evidence that the worker’s concurrent employment ended after the injury and that the worker also failed to advise the WCB of this change in their circumstances. The advocate indicated the employer supports a finding that the worker knowingly and deliberately failed to notify the WCB of a change in their entitlement to benefits. The advocate submitted the panel should rely upon and accept the findings from the investigation conducted by the WCB’s Compliance Services, noting that the worker’s explanations in relation to the allegations are self-serving, implausible, lack corroboration and do not support a finding that the worker was not working in their business beginning in August 2020. The advocate further urged the panel to find that the worker’s evidence is not credible.

Based on the employer’s position that the worker failed to report their return to work to the WCB, the advocate submitted that the worker should be required to repay the overpayment of wage loss benefits under the provisions of the Overpayment Policy in that the worker withheld key information relating to their benefit entitlement from the WCB. The advocate further submitted that there are no grounds upon which the panel could determine that the administrative penalty should not be assessed against the worker, who withheld information from the WCB about their return to their role in their business and refused to return to modified duties with the employer.

For these reasons, the employer’s position is that the worker’s appeal should be denied in respect of each question before the panel and the decision of Review Office should be confirmed.

Analysis

This appeal considers a number of questions arising from the worker’s claim for medical aid and wage loss benefits in relation to injuries sustained in the compensable workplace accident of April 19, 2020. The panel’s findings and reasons in relation to each question are set out below.

Preliminary procedural issues 

The panel considered the preliminary issues raised by the employer’s advocate before proceeding with the hearing. The panel noted the employer’s concerns as to the content of documents not disclosed to the employer in advance of the hearing but found that these documents were those already reviewed by the hearing panel in advance of the hearing with the result that the panel determined the information contained in those documents related to the worker’s concurrent employment are not within the scope of this appeal and as such, are not relevant to the employer. Further, the panel noted that there was no medical information or even a record of the details of the Health Care Service Request contained in the WCB claim file and as such none of the parties have any information as to the nature and content of that request. The panel therefore determined that the employer’s request for an adjournment is not granted.

With respect to the question of the participation of the worker’s spouse as a witness in the hearing rather than solely as a supporter, the panel determined that it wished to hear the evidence of the spouse. The panel noted that as the employer was aware in advance of the hearing that the spouse would be present in the hearing and the panel would therefore be able to ask questions of the spouse in any case, there is no prejudice to the employer arising from the failure of the worker’s representative to follow the Appeal Commission procedures in relation to providing notice of a witness. The panel further determined that the spouse’s evidence would be provided at the outset of the hearing and that other than when giving evidence, the spouse would not be seated at the hearing table.

Should the WCB accept responsibility for the medication Lorazepam after July 30, 2022? 

For the worker’s appeal on this question to succeed, the panel would have to determine that the worker required the medication Lorazepam after July 30, 2022 to cure and provide relief from the effects of their compensable workplace injury. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal of this question is granted.

The worker’s appeal arises out of the WCB decision to terminate its responsibility for this medication as of July 30, 2022, as the case manager communicated to the worker verbally on April 29, 2022 and in writing on September 21, 2022.

The panel reviewed the evidence in relation to the prescription of this medication to the worker. We noted that it was the treating family physician who first prescribed this medication, as detailed in their comprehensive narrative report of March 6, 2023. While prior to the accident, the worker used Lorazepam intermittently prior to the accident for sleep difficulties and symptoms of mood and anxiety, which the physician reported as being used “…in small limited quantities”, following the accident, on April 20, 2020, the physician provided a further prescription for Lorazepam and described the worker’s usage after that time as “more regular”. The physician noted that after November 23, 2020, they discussed reducing the worker’s medication use, including Lorazepam, in the context of developing other coping mechanisms for the worker’s panic attacks and other symptoms. The physician confirmed that by October 3, 2022, the worker had reduced their use of Lorazepam through their own initiative; however, they increased their usage of the medication upon an increase in symptoms after learning the WCB suspended their wage loss benefits as of October 18, 2022.

The panel noted that on the recommendation of the family physician, the worker was assessed for medication dependency in April 2022. The family physician provided the assessment report to the WCB on May 16, 2022 and indicated that the worker had reduced their dosage to 1 pill per day at that time and was continuing to wean; however, on July 6, 2022, the treating physician reported that the worker had increased their dosage after being advised the WCB was investigating their claim. The panel noted that the physician continued to support reduction in the worker’s use of the medication but provided a prescription refill. On October 3, 2022, the physician recorded that the worker was trying to reduce their medication use and that the physician would advocate for continuing coverage during the weaning process, which they estimated to be over 3-4 months. At that time the worker had reduced their use to 1 tablet daily, but on October 19, 2022, the physician recorded that the worker had stopped their weaning from Lorazepam due to a flareup of anxiety and depressive symptoms following the WCB suspension of benefits. On November 30, 2022, the physician wrote to the WCB noting the worker’s daily dosage of Lorazepam had been “regular at 1mg – 2mg per day since early 2021” and that the worker used the medication “at night before bed and prn [as required] for panic attacks, occurring couple times weekly at present.” The physician went on to state that:

The usage pattern and symptomatology have been relatively stable and [the worker’s] use has not been escalating since initial prescription. Chronic benzodiazepine usage is often used in the treatment of panic disorder. [The worker’s] PTSD has been treated utilizing therapist and psychological treatment as well.

The benzodiazepine usage has been monitored regularly in office and attempts to wean by small amounts have been successful in the past. There has been no evidence of cognitive impairment or BZD interfering with [the worker’s] therapy otherwise.

Thus given the indication for panic disorder and lack of evidence of abuse or habituation, I support the ongoing usage of benzodiazepines in this patient at its current level.

The panel noted that the treating physician considered and explored the possibility that the worker was becoming dependent upon the medication, but that upon assessment, there were no findings of dependence, only of “Possible Benzodiazepine Use Disorder” and PTSD. That assessment did however result in a recommendation that “Lorazepam should be tapered and discontinued as benzodiazepines will perpetuate PTSD symptoms.” This opinion is consistent with the views expressed by the WCB psychological advisor, who, in several opinions, outlined their view that the worker should reduce their use of Lorazepam. For example, on July 23, 2022, the psychological advisor stated that the worker “…would be seen to have a non-claim related Benzodiazepine Use Disorder that ideally should be reducing again. This likely is due to problematic coping in general and the worker’s reluctance to consider evidence-based other medication.” The panel also noted that, despite the concerns raised by the WCB psychological advisor as to the potential for habituation and interference with psychological treatment, which were first noted on January 4, 2021, the WCB continued to fund the worker’s prescription costs and did not at any time seek a further opinion from a psychiatric or medical advisor as to the advisability of the worker’s continued use of Lorazepam.

The panel gives significant weight to the opinion of the treating family physician, given their ongoing management and care of the worker, their knowledge of the worker’s history and the lack of evidence of any adverse impact of the worker’s continuing use of Lorazepam. While the panel accepts that there may or could be adverse impacts, including dependency, arising from the use of the medication by the worker, the evidence before us does not indicate that any such adverse impacts manifested in the worker’s case.

The panel also noted that the WCB case manager, in April 2022, imposed a 3-month deadline upon the worker to reduce and eliminate their use of the medication, but that deadline was not determined or informed by any medical opinion in evidence at the time the decision was made. In fact, the claim file indicates that the WCB case manager did not seek an opinion on this question until October 4, 2022, which opinion was provided by the WCB psychiatric advisor a week later. The WCB psychiatric advisor stated that “The use of Lorazepam can be tapered and discontinued in three months safely” but did not make any recommendations specific to this worker or their circumstances and treatment. The panel further noted that this opinion was not requested until more than 5 months after the case manager’s decision, and some two weeks after the WCB’s written decision of September 21, 2022 was provided to the worker. Given the timing and brevity of the opinion and the fact that it is not specific to the worker, the panel gives this opinion less weight.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the WCB should accept responsibility for the medication Lorazepam after July 30, 2022. This decision is subject to and based upon the treating physician’s continuing support and monitoring of this medication usage by the worker and is reviewable by the WCB in accordance with the provisions of the Medical Aid Policy.

Is the worker entitled to wage loss benefits with the accident employer after October 18, 2022? 

For the worker’s appeal on this question to succeed, the panel would have to determine that the worker sustained a loss of earning capacity resulting from the compensable workplace injury after October 18, 2022. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal of this question is granted.

The panel noted that the WCB determined on October 18, 2022 to suspend the worker’s continuing wage loss benefits pending further investigations based on its finding that the worker had contravened s 19(4) of the Act by failing to report a return to work. In the decision of January 18, 2023, the WCB confirmed that the worker was not entitled to further wage loss benefits after October 18, 2022, finding that there was no longer a relationship between the workplace injury and the worker’s ongoing reported psychological symptoms.

The panel therefore considered whether the evidence supports a continuing relationship between the workplace injury, the worker’s ongoing psychological symptoms, and any loss of earning capacity after October 18, 2022. The panel reviewed the treatment providers’ reports relating to their treatment of the worker’s psychological injury, noting that the WCB accepted and continued to support the diagnosis of PTSD as arising from the workplace accident of April 19, 2020 until such time as it determined the worker’s reports were not credible, based on the Compliance Services investigation report findings. We noted that despite the WCB’s findings, none of the worker’s treatment providers at any time prior to or after that investigation, expressed any doubt as to their continuing diagnosis of the worker’s psychological condition or the reliability of the worker’s symptom reports. Only the WCB investigators, the WCB case manager and the WCB psychiatric advisor doubted the truth of the information the worker provided to their care providers and to the WCB in their management of the claim.

During this claim, the worker sought treatment from two different psychologists. The first psychologist initially assessed the worker in June 2020 and concluded that the worker met the criteria for a diagnosis of PTSD with panic attacks and began treating the worker with the support and approval of the WCB on that basis. The initial psychologist treated the worker with cognitive behavioural therapy (“CBT”). The worker continued with this treatment modality until January 2022 when they began treatment with another psychologist who agreed to treat the worker with EMDR. The panel noted that the worker persisted with CBT, despite a lack of progress, until such time as the WCB was able to facilitate a referral to the new psychologist for EMDR therapy. On initial assessment in January 2022, the second psychologist concluded based on the worker’s presentation, their symptoms and responses on the psychological measures completed, that the worker met the criteria for a diagnosis of PTSD and Major Depressive Disorder (“MDD”) of moderate severity secondary to PTSD. The psychologist further concluded that the worker’s diagnosis was “directly related to the incident in April 2020 as well as the consistent exposure to traumatic situations [the worker] has encountered over [their] history of work…. There does NOT appear to be contribution from any prior condition(s).” Of note, the psychological testing measures used indicated responses consistent with the worker’s reporting, in terms of severe anxiety and depression as well as PTSD.

The panel also considered the numerous opinions provided by the WCB psychological advisor through the course of this claim which support a diagnosis of PTSD based upon the information reported by the treating care providers, and the continuing treatment of the worker based upon those reports. In their most recent opinion, dated July 23, 2022, the WCB psychological advisor stated that the worker remained totally disabled, that continued treatment with EMDR and cognitive processing therapy was appropriate, and that “The worker continues to experience intrusion, avoidance, negative cognitions and mood, and arousal and reactivity symptoms associated with the PSTD and, [the worker] also has ongoing symptoms of Major Depressive Disorder.”

The panel also noted that the chart notes from the treating family physician confirm the worker continued to require medication in relation to their psychological symptoms as of October 3, 2022. The physician at that time recorded that the “overall picture of anxiety hasnt (sic) changed much” and that the worker would consider replacing their current medication with another in the future.

The panel’s review of the evidence from the treatment providers indicates a continuity in diagnosis of PTSD and a consistent course of treatment for that diagnosis from shortly after the accident through October 2022; however, that evidence does not support a finding that the worker was recovered from their psychological injury to the point where they were cleared for a return to any work as of October 18, 2022. The panel noted the treating psychologist advised the WCB case manager on September 16, 2022 that there had been small improvements in the worker’s treatment progression but that the worker remained unable to return to work and continued to struggle with severe PTSD. In the same conversation, the psychologist stated their belief that the worker was unlikely to be able to return to their pre-accident employment. In a progress report dated October 7, 2022, the treating psychologist noted the worker continued to report persistent severe and functionally impairing PTSD symptoms but was engaged in exposure activities and some behavioural activation exercises including daily exercise at home and outdoors. The psychologist noted that despite the worker’s interest in returning to their pre-accident work, it was clear that it would not be in the worker’s best interest to do so and recommended a permanent restriction from returning to that work. The psychologist confirmed that the worker remained “unable to return to work in any capacity at this time” and that the worker’s capacity to work would be reassessed after a further 12 treatment sessions.

The panel acknowledges that the WCB psychiatric consultant came to a different conclusion as detailed in their opinion of December 16, 2022. That opinion included a review of the medical reporting to October 2022, in the context of the findings contained in the WCB’s Compliance Services Investigation Report. The panel noted that the WCB psychiatric consultant’s conclusions do not accord with the recommendations and findings of the worker’s treatment providers although the panel noted the psychiatric consultant did not address those differences with the treatment providers. The panel also noted that the psychiatric consultant’s opinion does not acknowledge or address the prior opinions of the WCB’s psychological advisor, which do align with the views of the treatment providers in respect of the worker’s continuing PTSD diagnosis and need for treatment as related to the compensable accident. The psychiatric consultant questions even the initial diagnosis of PTSD on the basis that it is not clear whether the worker was exposed to a Criterion A event as required for that diagnosis, although this was not a concern raised by the WCB at any time prior to this opinion. The panel further noted that the WCB psychiatric consultant did not assess the worker at any time and relied only upon their review of the claim file contents, including the medical reporting and the Investigation Report in support of their conclusions. Nonetheless, the psychiatric consultant concluded that the worker’s distress was in relation to their workplace conditions arising from the pandemic restrictions rather than to the circumstances of the accepted workplace accident, while noting that “most individuals with PTSD (more than 80%) experience an improvement in symptoms within a year of the traumatic incident” but the worker continued to report symptoms at more than 32 months later, which remained intense and severe. While the recovery norms of “most individuals with PTSD” are relevant, such norms are not determinative of anything in relation to this worker’s specific claim. The panel accepts that this worker’s experience is outside the norms of recovery for most individuals with PTSD but does not conclude or infer from that finding that the worker is necessarily malingering or overreporting in the absence of any evidence to support such a conclusion.

The panel accepts the findings contained in the medical reporting and gives this evidence greater weight than the inferences and conclusions reached by Compliance Services that support the opinion of the WCB psychiatric advisor. We further give greater consideration and weight to the opinions of the treatment providers than to the WCB psychiatric consultant given the above-noted concerns arising from that opinion.

The panel further noted that the WCB, upon reaching the conclusion that the worker was not totally disabled from all employment and required no restrictions in relation to a return to their pre-accident employment, did not communicate with any of the treating care providers in respect of their concerns as to the worker’s actual degree of disability or ability. Furthermore, while the evidence confirms the employer indicated throughout the claim that modified duties were available, the WCB did not attempt to coordinate, arrange, or facilitate any return to work by the worker, whether to modified duties or otherwise, neither before nor after October 18, 2022.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker continued to sustain a loss of earning capacity after October 18, 2022 as a result of the injury sustained in the compensable workplace accident of April 18, 2020. Therefore, the worker is entitled to wage loss benefits after October 18, 2022. The worker’s appeal on this question is granted.

Has the worker been overpaid wage loss benefits in the amount of $124,628.40? 

For the worker’s appeal on this question to succeed, the panel would have to determine that the worker was entitled to wage loss benefits from August 20, 2020 to October 18, 2022 as they sustained a loss of earning capacity in that period as a result of the compensable workplace injury of April 19, 2020. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal of this question is granted.

The panel noted that the WCB determined the worker was overpaid wage loss benefits based on the findings in the Compliance Services investigation report which found that the worker failed to disclose a return to work in their business as of August 2020, and that the worker was therefore capable of a return to work with the accident employer from that date onward. As such, the panel carefully reviewed and considered the evidence leading to the findings in the Compliance Services report.

The panel is not satisfied that this investigation was thorough and fair, noting that Compliance Services did not provide opportunity for the worker to respond to all the allegations and information obtained before concluding the investigation. Specifically, we noted that the worker did not have opportunity to address the additional information obtained after October 2022 from the organization with which the worker’s business was contracted. Further, there is no evidence of any effort to seek out any information from the worker’s spouse in relation to the worker’s information that the spouse took over the business after the accident, and to respond to the allegations concerning the spouse, such as that they were not qualified to conduct those trainings. Although these trainings purportedly continued even after the WCB initially advised the worker of the investigation, there is also no indication that the investigator made any attempt to seek out other evidence to support or refute their suspicions about the worker’s participation in those activities. Instead of seeking verifiable evidence of the worker’s return to work, the investigator relied upon searching the internet, including the business’ website and Facebook. The panel does not give significant weight to such evidence, particularly in light of the medical reporting that consistently indicated that the worker was not capable of a return to any work through to October 2022 and beyond. As such, the panel finds that the conclusions and inferences drawn in the investigation report are poorly supported.

The panel finds that the explanations offered by the worker in their interview by Compliance Services are consistent with the evidence offered by the worker in the hearing. The worker testified that they did not participate in the business after the accident but that their spouse took over all the business operations and training. The worker’s spouse confirmed that the name of the trainer is entered in the third party organization’s database after the training is completed, using a dropdown menu which includes the worker’s name as well as the spouse’s name, and acknowledged that they mistakenly selected the worker’s name for some of the trainings, although noting that these third party trainings represent only a portion of the trainings offered by the business. Further, the worker explained that they were reluctant to provide certain information requested in the Compliance Services interview, such as the names of individuals who participated in the training, and the panel is satisfied by the explanation offered by the worker for withholding that information. The worker explained that the terms of their contract with the third party organization involved in offering the training delivered by the worker’s company restricted their ability to divulge such information without consent. The worker further explained that they were reluctant to seek such consent from the individuals as they believed it would be damaging to the reputation of the business. We accept and rely upon the worker’s evidence in this regard as we found the worker to be a credible witness on their own behalf.

The Compliance Services investigation determined that the evidence did not support the worker’s assertion that they were not involved in the business since the accident, but as noted above, that conclusion was largely based on internet searches and evidence from the third party organization that listed the worker as a trainer in 13 events between August 20, 2020 and March 29, 2022. Compliance Services further concluded that the worker “provided no documentary evidence to demonstrate that [their spouse] was the instructor for these courses” but did not at any time seek to speak with the worker’s spouse to verify that information, relying instead upon information gleaned from the internet. The worker’s direct evidence is wholly dismissed by the investigator, presumably because it does not align with the investigator’s theory of the case, as supported by the information they gleaned from the internet.

The panel does not accept the conclusions drawn in the Investigation Report given the deficiencies in that investigation as noted above. We find that the evidence does not support, on a balance of probabilities, that the worker returned to any employment activities beginning in August 2020, nor that the worker was capable of such a return to employment activities given their documented severe and intense PTSD and MDD symptoms arising from the workplace accident.

As noted above, the panel also gives little weight to the conclusions drawn by the WCB psychiatric advisor who fully and uncritically relied on the investigative findings, while failing to discuss the previous opinion of the WCB psychological advisor and failing to follow up directly with the worker for assessment or with the treating providers for their perspective. Further, the panel does not accept the equivalency drawn by the psychiatric advisor, between the nature of the training offered by the worker’s business and the worker’s job duties with the accident employer.

We further note that at the time of the report by the WCB psychiatric advisor resulting in the termination of the worker’s ongoing benefits and the finding of an overpayment of benefits prior to October 18, 2022, there was a lack of evidence to indicate that the worker was then, or at any earlier date since the accident, functionally capable of a return to their pre-accident job duties, neither with nor without restrictions. This conclusion is entirely unsubstantiated and based on untested and inconclusive evidence drawn from the investigation report.

Based on the evidence before us, and on the standard of a balance of probabilities, we are satisfied that the worker was entitled to wage loss benefits from August 20, 2020 through to October 18, 2022 as they continued to sustain a loss of earning capacity arising from the injury sustained in the compensable workplace accident of April 18, 2020. The panel is further satisfied that the evidence does not support a finding that the worker returned to any work during that period and as such, was not required to report a return to work to the WCB. Therefore, we find that the worker has not been overpaid wage loss benefits in the amount of $124,628.40. The worker’s appeal on this question is granted.

Is the worker required to repay the full amount of the overpayment? 

Having determined that the worker has not been overpaid wage loss benefits, the panel finds that there is no overpayment which the worker could be required to repay. As such, this question is moot.

Should an administrative penalty be assessed against the worker for contravention of s 19(4) of the Act? 

For the worker’s appeal of this question to succeed, the panel would have to determine either that the worker did not contravene s 19(4) of the Act or that if there was such a contravention, there are mitigating factors such that it was not appropriate for the WCB to impose an administrative penalty in this case. As outlined below, the panel finds that the worker did not contravene s 19(4) of the Act and as such, no administrative penalty should be assessed against the worker.

The panel is satisfied that there is no evidence that the worker failed to report a return to work to the WCB as required by s 19(4) of the Act. Rather, the evidence as detailed in these reasons supports a finding that the worker was not cleared for a return to work prior to October 18, 2022 and did not return to work before that date. As such, the worker cannot be required to report an event that did not occur, and the worker is not in breach of the provisions of s 19(4) of the Act.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker did not contravene s 19(4) of the Act and therefore an administrative penalty should not be assessed against the worker for such a contravention. The worker’s appeal of this question is granted.

Panel Members

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 8th day of March, 2024