The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker’s estate is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was not entitled to temporary total disability or wage loss benefits following their retirement in 1999. A hearing was held on March 19, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to temporary total disability or wage loss benefits following their retirement in 1999.

Decision

The worker is not entitled to temporary total disability or wage loss benefits following their retirement in 1999.

Background

Accident of March 29, 1984: 

The worker sustained a gunshot wound to the abdomen while at work on March 29, 1984. The worker was wearing an armored vest, and sustained an impact injury and three wounds where the skin below the vest was pierced. The worker attended the employer's Occupational Health Branch on April 4, 1984 and was cleared to return to their full regular duties. The WCB accepted the worker's claim.

Accident of March 15, 1993: 

The worker sustained injuries to their right foot and knee, left hip, arm, shin, shoulder, and head following a motor vehicle accident while at work. Following the accident, the worker was treated at a hospital emergency department and diagnosed with contusion of the left elbow, sprain of the right ankle and a Grade 1 acromioclavicular separation. The worker remained in hospital until March 17, 1993 and returned to their full regular duties on April 9, 1993. The WCB accepted the worker's claim.

Both Claims: 

The worker contacted the WCB on September 11, 2013, reporting they were experiencing hypervigilance, sleep disturbances, body jerks and were unable to relax and wanted to make a claim for post-traumatic stress. The worker advised the WCB they retired from their employment in 1999 due to stress. On October 11, 2013, the WCB advised the worker there was no medical evidence to support a causal relationship between their described symptoms and the workplace accidents. The worker provided new medical information relating to the 1984 claim on October 17, 2013 and on October 23, 2013, the WCB advised the worker that after review of the information, the decision was unchanged.

On November 25, 2013, the worker requested Review Office reconsider the decision and Review Office returned the worker's file to the WCB's Compensation Services on November 27, 2013 for further investigation. A WCB psychological consultant reviewed the worker’s file on January 28, 2014 and noted there were no current reports from either a psychologist or psychiatrist on the worker's file and as such, no diagnosis had been provided. The WCB advised the worker on February 10, 2014 that it did not accept responsibility for their current difficulties. The worker again requested Review Office reconsider the WCB's decision, noting they had an upcoming appointment with a neuropsychologist to be assessed for post-traumatic stress disorder (PTSD). On February 25, 2014, Review Office returned the worker's file to the WCB's Compensation Services to receive and review the report.

On September 8, 2014, the WCB received the neuropsychologist's report. The neuropsychologist provided an opinion that the workplace events of March 29, 1984 and March 15, 1993 "…were not psychologically neutral…" for the worker and appeared to have altered the worker's psychological status with PTSD symptomatology later developing. In a further report of April 24, 2015, the neuropsychologist confirmed the earlier report and concluded the worker had residual PTSD symptomologies related to the two workplace accidents. The WCB advised the worker on June 4, 2015 that it did not accept responsibility for a psychological injury arising from the March 19, 1984 accident claim as the worker had not sought medical treatment for psychological difficulties, no complaints or changes in function or job duties were noted, and no medical reports were received indicating a psychological injury.

On June 10, 2015, the worker requested Review Office reconsider the WCB's decision, and Review Office advised the same date that as a decision on a psychological condition regarding the 1993 claim had not yet been made, it was premature to request reconsideration. A WCB psychological consultant reviewed the worker’s file on August 20, 2015 and provided an opinion that the worker did not meet the full criteria for a diagnosis of PTSD. On September 23, 2015, the WCB advised the worker they were not entitled to benefits in relation to a psychological condition in relation to the March 15, 1993 workplace accident.

On August 2, 2016, the worker requested Review Office reconsider the WCB’s decisions in respect of the 1984 and 1993 claims and asked the WCB to consider arranging an independent psychological examination. On October 14, 2016, Review Office determined the worker was not entitled to benefits for a psychological condition in relation to the March 29, 1984 or the March 15, 1993 workplace accident.

The worker's representative filed an appeal with the Appeal Commission on January 4, 2019 and on December 20, 2019, the Appeal Commission determined, as detailed in Decision No. 152/19, that the worker was entitled to benefits for a psychological condition in relation to the March 29, 1984 and the March 15, 1993 workplace accidents. As a result, the worker's file was returned to the WCB for further adjudication.

At a January 24, 2020 meeting with the WCB, the worker requested the WCB consider providing temporary total disability and/or wage loss benefits beginning from their retirement in 1999. The worker advised the WCB that they chose to retire earlier than normal due to stress and PTSD. On July 14, 2020, the WCB notified the worker by letter that their retirement from the employer in 1999 was a voluntary action unrelated to the workplace accidents and therefore they were not entitled to temporary total disability or wage loss benefits following their retirement.

On August 10, 2021, the worker's representative provided the WCB with a psychiatric assessment dated July 22, 2021 from a forensic psychiatrist in support of the worker’s position that they were forced to leave their employment due to stress and PTSD. The representative noted that but for the stress and PTSD, the worker would have continued to work a further 15 years and as such, the worker should be entitled to temporary total disability and wage loss benefits. In the report, the forensic psychiatrist agreed with the diagnosis of PTSD in relation to the two workplace accidents and noted the worker maintained their early retirement was related to those symptoms of PTSD and to their belief they could no longer perform their job duties safely. The WCB advised the worker by letter on December 14, 2021 that they were not entitled to temporary total disability or wage loss benefits in relation to their retirement in 1999. The WCB noted the information provided by the worker's representative included an April 17, 1998 memorandum by the employer indicating the worker requested temporary assignment for personal family reasons and returned to their regular duties on May 10, 1998. In addition, the WCB noted there was no medical information from 1998 and 1999 to support the worker's position that their decision to retire related to the workplace accidents.

On February 11, 2022, the worker's representative requested Review Office reconsider the WCB's decision to Review Office, noting the forensic psychiatrist’s report indicated their finding that the worker's PTSD "…was the only factor identified for [the worker] to retire earlier than anticipated." The employer provided a submission supporting the WCB's decision on April 8, 2022. Review Office determined the worker was not entitled to temporary total disability or wage loss benefits following their retirement in 1999.

The worker passed away on June 30, 2022. The worker's representative filed an appeal on behalf of the worker's estate with the Appeal Commission on October 17, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the legislation and policy in force at the date of accident are applicable.

The question on appeal arising from the 1984 accident claim relates to their entitlement to temporary total disability benefits. The Act in effect on the date of the 1984 accident provides in s 4(1) that where in any industry within the scope of the Act, personal injury by accident arising out of and in the course of employment is caused to a worker, compensation shall be paid by the WCB as set out in the Act. The Act goes on to provide that where a temporary total disability results from the injury, compensation will be paid as a periodic payment during the continuance of that disability.

The question on appeal arising from the 1993 accident claim relates to their entitlement to wage loss benefits. The Act in effect on the date of the 1993 accident provides in s 4(1) that compensation is payable when a worker sustains a personal injury by accident arising out of and in the course of their employment. Section 4(2) and s 37 outline that such compensation includes wage loss benefits for a worker’s loss of earning capacity resulting from the accident.

The WCB established Policy 44.60.20.01, Date of Retirement (the “Retirement Policy”) to establish how the WCB will determine when a worker is retired from the labour force. The Retirement Policy outlines that the WCB will review a worker’s loss of earning capacity when the worker, who is capable of employment, voluntarily retires or withdraws from the labour force.

Worker’s Position

The worker’s spouse, on behalf of the worker’s estate, appeared in the hearing and was represented by a worker advisor. The worker advisor made an oral submission on behalf of the worker’s estate and relied upon additional information submitted in advance of the hearing. The worker’s spouse also provided a submission and testimony in support of the appeal, as well as addressing questions posed to them by the members of the appeal panel.

The worker’s position is that the worker left their employment with the employer in June 1999, taking an early retirement at the age of fifty, because of the psychological injuries resulting from the workplace accidents of March 29, 1984 and March 15, 1993. While the worker’s diagnosis of PTSD was not confirmed until years later, the worker was already experiencing stress and panic attacks leading up to June 1999 and left their job based on advice provided to them by a psychologist whom they saw in April 1999.

The worker’s representative noted that after the 1993 accident, the worker’s mental health declined and that although the employer’s psychologist assessed the worker following that event and recommended further treatment, the worker did not receive any additional counselling support. As the worker’s symptoms increased, they sought a transfer to a quieter position which the employer accommodated in early 1998. Following assessment by another psychologist in April 1999, the worker decided that stopping work was the only sound decision and took sick leave through to the end of May 1999 before asking for retirement as of June 5, 1999. The worker’s spouse confirmed that although they were in a relationship with the worker at that time, the worker did not speak to them when making the decision to retire; rather, the worker advised the spouse of the decision after the fact, which the spouse stated was unexpected.

The worker’s representative noted that the worker was not at that time aware that they could make a claim to the WCB for psychological injury and as such, they did not seek benefits from the WCB in relation to that injury until 2013. After retiring from their job with the employer, the worker took on other jobs, but these were mostly of short duration due to the worker’s untreated psychological symptoms which were a barrier to succeeding in those roles.

The worker’s position is that but for the compensable psychological injury and the debilitating symptoms of that injury, the worker would have continued in their employment through to the time that they were eligible for retirement with full benefits, and that as a result of the worker’s early retirement, they sustained a loss of earnings and continuing loss of earning capacity. This loss of earning capacity is the result of the compensable workplace injuries and therefore the worker should be entitled to total temporary disability benefits and wage loss benefits following their retirement in 1999.

Employer’s Position

The employer was represented in the hearing by its workers compensation coordinator, who made an oral submission on behalf of the employer, outlining the employer’s position, and provided additional information through answers to questions posed to them by members of the appeal panel.

The employer’s position is that the worker is not entitled to temporary total disability benefits nor to wage loss benefits following their retirement in 1999 as the evidence does not support a causal relationship between the change in employment status and the worker’s compensable workplace injury. Rather, the evidence supports a finding that the worker voluntarily chose to take an early retirement and that is the reason for the worker’s subsequent loss of earning capacity.

The employer’s representative noted that the employer was able to accommodate the worker previously with different job duties upon the worker’s request, for family and personal reasons, pointing to the evidence of such a transfer for approximately five months in 1998. The employer would similarly have been able to offer other duties to the worker in June 1999 had such a request been made by the worker based upon a medical need for reassignment; however, there is no evidence that the worker sought any accommodation or requested such a transfer at that time, and as such, the employer was not in a position to mitigate or reduce the effects of the worker’s disability or loss of earning capacity.

Analysis

The question on appeal requires the panel to determine whether the worker is entitled to total temporary disability benefits or wage loss benefits, in relation to a loss of earning capacity following their retirement in 1999, resulting from either or both the accident of March 29, 1984 and the accident of March 15, 1993. For the worker’s appeal to succeed, the panel would have to find that the worker’s loss of earning capacity following retirement in 1999 arose as a result of the injuries sustained in either or both workplace accidents. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal is denied.

In reviewing the evidence, the panel is satisfied that the worker left their employment with the accident employer as of June 5, 1999, having provided notice of their intention to do so on May 28, 1999. This is confirmed by a copy of a June 1, 1999 employer memo indicating that the worker submitted their notice of retirement on May 28, 1999 to be effective June 5, 1999. That memo provides no information as to the reason for the worker’s decision to retire. The worker’s position is that they left that employment because of the ongoing and worsening symptoms arising from the injuries sustained in the compensable workplace accidents. They relied on information provided to the WCB, in which the worker indicated that before giving notice of retirement to their employer, they called the employer’s staff psychologist in April 1999 for assistance and received advice to seek help from a hospital-based psychologist instead. The worker stated that when they did so, they were advised that the “…healthiest psychological choice was to retire.” The worker further stated they subsequently took time off work due to stress and used up their accumulated sick days until retiring. The worker stated they submitted their retirement “papers” together with a copy of a note from the psychologist seen in April 1999. The panel noted the file documents various attempts on behalf of the worker beginning in 2015 to obtain a copy of this note from the psychologist; however, those attempts were unsuccessful as the hospital and psychologist files were not retained, and the employer also had no record of the document. As such, the only available documentation in relation to the worker’s retirement is the June 1, 1999 employer memo.

The worker’s representative also submitted that the worker’s job-related transfer in 1998 supports their position that the worker was experiencing distress in continuing their job duties, arising from the injuries sustained in the compensable accidents. The evidence from that period indicates that the worker sought a transfer to office-based work duties on January 9, 1998, which the employer recorded as being “for personal family reasons relevant to a family court matter.” This was a temporary assignment which ended at the worker’s request, with the worker resuming their regular job duties as of May 10, 1998. The panel noted that the employer’s memorandum to the worker’s employee file does not align with the description of this transfer provided by the worker, as set out in a package of information provided to the WCB by the worker’s lawyer on August 31, 2021. In that package, the worker outlined that they requested this transfer because they experienced a panic attack in January 1998 after being assigned to work with a specific “problem” individual. The panel finds that the worker’s submission in respect of this transfer is not supported by the available documentation.

The employer’s representative submitted that even if the impetus for the worker’s decision to retire was related to their mental health, which the employer does not accept, the worker’s abrupt decision to retire did not provide any opportunity for the employer to accommodate or address the worker’s condition in any way. The panel noted the file evidence indicates not only that the employer provided a transfer to office-based duties in 1998 at the worker’s request, but that the worker previously requested and obtained another transfer, in November 1994, “…on the grounds of morale and stress reduction” after spending some 15 years in the employer’s busiest work location. The panel finds that this supports the employer’s submission that they were able to accommodate the worker’s job-related stress, although these events do not provide any specific insight into the worker’s later decision to retire.

The worker’s representative submitted that but for the workplace injuries, the worker would have continued working until they were eligible for a full retirement package and submitted that the fact the worker took an early retirement indicated the worker, who loved their job, was not medically capable of continuing to work until the usual retirement date. The panel finds that this is speculative and noted there is a lack of evidence to support this assertion.

The panel also noted the information contained in the psychological reports relied upon by the worker’s representative in relation to why the worker left their employment is largely based on the worker’s reports, which were provided some 15 or more years after the fact. For example, we noted the September 8, 2014 report from the assessing neuropsychologist, who commented that the worker’s two traumatic workplace events led to the development of the worker’s PTSD symptomology “…and in the absence of disconfirming information which I do not have, resulted in the changes in [their] career path as I have indicated, and [the worker’s] earlier than anticipated retirement.” The panel noted these opinions do not rely upon any medical or similar evidence from the time of the worker’s decision to retire, and as such, we find the conclusions drawn in terms of the worker’s reasoning for that decision are less persuasive than if those conclusions were grounded in evidence more contemporaneous to the worker’s decision.

Further, the standard upon which the panel must determine the question before us is not based on “absence of disconfirming information” as applied by the neuropsychologist, but the standard of a balance of probabilities. In applying this standard, the panel must find, based on the evidence that is before us, that it is more likely than not that the worker’s loss of earning capacity was the result of the injuries they sustained in one or both compensable workplace accidents. In this case, the available evidence does not support such a finding but rather supports a finding that the worker chose to leave their employment as of June 5, 1999. As such, any subsequent loss of earning capacity was the result of the worker’s voluntary choice to take an early retirement.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker is not entitled to total temporary disability benefits or wage loss benefits following their retirement in 1999.

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 19th day of April, 2024