The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the implementation of a post-accident deemed earning capacity effective April 25, 2022 is appropriate. A teleconference hearing was held on April 17, 2024 to consider the worker's appeal.

Issue

Whether or not the implementation of a post-accident deemed earning capacity effective April 25, 2022 is appropriate.

Decision

The implementation of a post-accident deemed earning capacity effective April 25, 2022 is not appropriate.

Background

The WCB accepted the worker’s claim for a psychological injury that occurred at work. In the Worker Incident Report, the worker noted they were exposed to traumatic incidents at work that affected their mental health, including, an incident on September 21, 2020. The WCB accepted the worker’s claim and provided compensation benefits to the worker including wage loss benefits and psychological treatment.

The treating psychologist, in a report dated November 15, 2020 provided a diagnosis of post-traumatic stress disorder (“PTSD”) and recommended ongoing treatment. The WCB monitored the treatment through progress reports provided by the treating psychologist and regular reviews by a WCB psychological consultant. In a July 6, 2021 progress report to the WCB, the treating psychologist noted the worker’s continued active participation in treatment and that while the worker’s scores decreased on a diagnostic checklist for PTSD, their score remained above the threshold for PTSD. Given the ongoing severity of the worker’s PTSD symptoms, the psychologist recommended a permanent restriction for the worker to not work at the worksite where the traumatic incidents occurred and for the worker to not respond to calls, have direct resident contact or exposure to medical emergencies. On July 22, 2021, a WCB psychological consultant reviewed the worker’s file, concluding that permanent restrictions should be established as follows: no employment at the worksite where the incident occurred and no direct work with residents where the worker would be responding to calls or exposed to information regarding resident medical emergencies. These restrictions were provided to the employer on August 10, 2021 who advised they could not accommodate the worker within those restrictions.

The WCB referred the worker for vocational rehabilitation (“VR”) services. A plan for National Occupational Classification (“NOC”) 1411, General Office Clerk, was developed with a start date of October 18, 2021, to end on April 1, 2022. The plan included a 22-week job search period and interview skills assistance. On April 6, 2022, the VR plan was revised to end as of April 22, 2022.

The WCB received a March 28, 2022 progress report from the worker’s treating psychologist, requesting additional treatment to support the worker during the completion of their vocational rehabilitation plan and eventual return to work. The psychologist recommended a gradual return to work to help the worker adjust and increase their confidence, noting the worker continued to experience high levels of anxiety. The psychologist further recommended that the treating family physician review the worker’s medication. The worker advised the WCB VR specialist on April 20, 2022 that the treating healthcare providers did not support their return to work at that time.

The WCB confirmed to the worker on April 21, 2022 that the VR plan would end as of April 25, 2022, that the WCB deemed them to be capable of returning to work and their wage loss benefits would be reduced to the amount they were deemed capable of earning. The WCB also advised the worker that the information from the treating psychologist was under review. On May 19, 2022, the WCB VR specialist indicated in file memo that the worker was deemed capable of working within NOC 1411 and wage loss benefits would reduce by the starting wage for that NOC effective April 22, 2022. The WCB provided a decision letter to the worker on May 25, 2022.

On June 22, 2022, a WCB psychiatric consultant reviewed the worker’s file and provided their opinion that “…it is very unlikely that further psychotherapy will be of benefit to return [the worker] to a level where [they] will be able to effectively participate in vocational rehabilitation” and further, that the WCB did not support the request for further psychological treatment.

On request of the worker’s representative, the WCB provided a further decision letter to the worker on February 13, 2023 confirming it determined the deeming decision was appropriate. On March 21, 2023, the worker’s representative requested the WCB revisit their previous decisions, including the decision to deem the worker capable of working within NOC 1411. The representative noted the April 19, 2022 WCB deem committee recommendation was made before the June 22, 2022 review of the worker’s file by a WCB psychiatric consultant, which outlined that further treatment would not return the worker to a level where they could effectively participate in vocational rehabilitation and as such, the representative questioned the WCB’s decision. On April 6, 2023, the WCB provided a further decision letter indicating no change to the decision the worker was deemed capable of working within NOC 1411.

On April 19, 2023, the worker’s representative requested Review Office reconsider the WCB’s decision to implement a deemed earning capacity for the worker. In their submission, the representative noted it was premature for the WCB to consider the worker capable of returning to work as the treating psychologist recommended further treatment and a gradual return to work, which recommendation was not yet reviewed by a WCB psychiatric consultant when the deeming occurred. Further, the psychiatric consultant review supported a finding that the worker was not “…sustainably employable at that time.” Review Office determined on May 29, 2023 that implementation of a deemed earning capacity effective April 25, 2022 was appropriate.

The worker’s representative filed an appeal with the Appeal Commission on July 31, 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.

The Act provides in s 27(20) that the WCB may provide academic or vocational training, or rehabilitative or other assistance to a worker when the worker could experience a long-term loss of earning capacity or require assistance to reduce or remove the effect of a handicap resulting from the injury as a result of a workplace accident.

The WCB established Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”) which describes when the WCB will determine a worker is capable of earning more than they are actually earning. In those circumstances, the WCB will deem an amount that the worker could earn and will include it in the calculation of post-accident earning capacity as if it were earned. The Deeming Policy outlines requirements that the WCB must demonstrate for income to be deemed, which include, in paragraph 3 of the Policy, the following:

a) The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based. 

b) The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market. 

c) The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based. 

d) The WCB will use the Individualized Written Rehabilitation Plan (or similar format) as described in WCB policy 43.00, Vocational Rehabilitation, as the basis for collecting and weighing information about the worker's earning capacity.

The Deeming Policy also outlines expectations of a worker and sets out, in paragraph 8 of the Policy, that:

a) Deemed earning capacity will be used under the WCB's broader policy on mitigation (WCB policy 44.10.30.60, Co-operation and Mitigation in Recovery) when: 

i. The worker voluntarily leaves the workforce by expressing that he or she is not interested in looking for any work. In this case, the deemed earning capacity will be the worker's earning capacity at the time of leaving, unless it is demonstrated that the worker is capable of, through rehabilitation, a higher earning capacity. The WCB must be prepared to undertake this rehabilitation (i.e., must offer it to the worker). 

ii. The worker refuses to cooperate in or complete a program of vocational rehabilitation. In this case, the deemed earning capacity will be the earning capacity expected on completion of the vocational rehabilitation plan. 

iii. The worker refuses to participate or cooperate to a degree that it is impossible to undertake adequate vocational assessment/plan development and reasonably/accurately determine an anticipated earning capacity. In this case, it will be presumed that the worker has no loss of earning capacity until the worker demonstrates a willingness to cooperate in the development of a plan.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission on behalf of the worker and relied upon the written submission of April 19, 2023 provided to Review Office. The worker offered testimony through answers to questions posed to them by the worker advisor and by members of the appeal panel.

The worker’s position is that the implementation of a post-accident deemed earning capacity effective April 25, 2022 was not appropriate in that it was premature, as the WCB had not adequately considered the most recent medical reporting and recommendations and did not obtain any opinion from its own consultants as to the worker’s employability at that time.

The worker advisor submitted that the WCB did not consider the recommendations contained in the March 28, 2022 report from the treating psychologist with respect to the worker’s need for further treatment and medication review, nor in relation to the recommendation for a gradual return to work. The worker advisor submitted that the WCB case manager should have sought an opinion from the WCB psychological advisor as to whether the worker was capable of a return to work at that time given the recent increase in symptoms of PTSD and the planned medication review. Further, the worker advisor submitted the WCB failed to consider the comments from the WCB psychiatric advisor that further treatment would likely not provide benefit to the worker to the point where they would be able to “effectively participate in vocational rehabilitation” which the worker advisor argued is suggestive that the worker was not capable of such participation at that time.

The worker advisor further relied upon the comments from the WCB psychological advisor in October 2021 that the worker “should be able to participate fully in the VR program unless there is further information to contraindicate this”, noting that by April 25, 2022 there was such information, as provided by the worker’s treating psychologist and the treating family physician and thereafter, by the assessing psychiatrist.

In the hearing the worker provided testimony outlining the efforts they made to seek employment and the impact of their continuing PTSD symptoms on those efforts. The worker described in their testimony a return to work in a 6-week term position with another employer in the summer of 2023, and the obstacles encountered, and efforts required to succeed in that work despite their continuing symptoms.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The question on appeal is whether the WCB appropriately implemented a post-accident deemed earning capacity effective April 25, 2022. For the worker’s appeal to succeed, the panel would have to determine that the WCB failed to comply with the requirements of the Act and applicable policies in deeming the worker capable of earning an income at the level established for the occupational group selected. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The panel noted the evidence that the worker sustained a significant psychological injury as a result of their workplace exposures, such that the WCB established permanent restrictions and as noted by the WCB psychological advisor in their October 2021 review of the worker’s claim, “…it is unlikely that the worker will reach a state where [they] no longer [meet] criteria for PTSD. …The goal is not for remission of the worker’s PTSD but, for [the worker] to remain functional and actively involved in [their] VR process.” While the psychological advisor agreed at that time that the worker could proceed with the established VR program, the panel noted their caveat that “…the worker should be able to participate fully in the VR program unless there is further information to contraindicate this.”

The worker’s position in this appeal is that there was information to contraindicate their full participation in the VR program after October 2021 and before April 25, 2022. The panel therefore considered the evidence as to the worker’s employability, including the March 28, 2022 report from the treating psychologist who noted that the cognitive behavioural approach taken to assist the worker in managing their anxiety had been “modestly helpful” to that point, but that the worker “continues to experience anxiety sensitivity, limited flexibility in [their] thinking, and difficulties tolerating and managing [their] anxiety.” The psychologist confirmed that the worker’s “anxiety-related avoidance” was not indicative of a lack of motivation. They also reported the worker’s continuing symptoms of PTSD, which were recently triggered and increased after the worker encountered a medical emergency, resulting in “an increase in intrusive images and memories as well as increased anxiety.” The psychologist went on to recommend the worker receive additional treatment to assist in managing their anxiety through the balance of the VR program and to support the worker in their return to work, as well as recommending a gradual return to work to allow the worker “time to adjust and gradually increase [their] confidence…. This would likely increase the likelihood of a successful return to work.” Finally, the psychologist recommended a medication review given the worker’s continuing elevated levels of anxiety and difficulty in managing that anxiety with behavioral interventions. The panel finds that this evidence indicates that as of late March 2022, the worker’s PTSD symptoms were heightened and required additional treatment to be provided.

The panel also reviewed and considered the April 22, 2022 referral of the worker by the treating family physician for psychiatric assessment to address the worker’s panic attacks and depression, noting the worker’s “Panic attacks are overwhelming [them] as well as nightmares.” We noted that an assessment occurred on June 7, 2022. The assessing psychiatrist indicated the worker reported anxiety when trying to look for jobs online and that when they feel panic in looking at the computer, they close it and do relaxation exercises. The worker also reported experiencing negative thoughts throughout the day, decreased concentration, difficulty focusing, flashbacks and occasional suicidal ideation. In the assessment, the worker’s affect was noted as dysthymic and tearful. The psychiatrist provided a diagnosis of PTSD and recommended adjustments to the worker’s medication, which changes the file evidence indicates the treating family physician subsequently implemented. The panel finds that this evidence further indicates that the worker’s PTSD symptoms were ongoing and not well controlled from April through June 2022.

The panel further considered the June 22, 2022 opinion of the WCB psychiatric advisor. We noted the opinion was requested on April 20, 2022 in relation to whether further treatment was appropriate and authorized, and the psychiatric advisor concluded that further psychotherapy was unlikely to be of benefit to return the worker to “a level where [they] will be able to effectively participate in vocational rehabilitation.” While not directly asked about the worker’s employability at that time, the panel infers from the psychiatric advisor’s statement that if the worker were not capable of effective participation in the VR program, they would similarly not be capable of seeking, obtaining and sustaining employment at that time.

The panel finds it concerning that the WCB case manager specifically advised both the worker and the WCB deem committee that they requested an opinion from the WCB psychiatric advisor as to the worker’s employability based on the March 2022 report from the treating psychologist. We noted this question was indicated as a query in the healthcare service request to the WCB psychiatric advisor, but the case manager did not specifically raise this as a question to be addressed in that opinion. We find the WCB failed to seek out further information as to the worker’s employability or degree of disability before proceeding with the deeming process upon conclusion of the worker’s VR plan. We specifically note the absence of thorough follow-up with the WCB psychiatric advisor as well as the lack of follow-up with any of the treatment providers.

The Deeming Policy requires in provisions 3(a) and 3(b) that for income to be deemed, the WCB be able to demonstrate that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based and that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market. The panel interprets and understands physical capacity as including psychological capacity. We are not satisfied that the WCB has demonstrated here that the worker was capable of competitively finding, competing for, obtaining, and keeping employment in any job, nor that the worker had the physical capacity to obtain and keep employment as of April 25, 2022. As such, we find that the WCB did not meet its own requirements before implementing a deemed earning capacity. The panel also noted when the WCB denied the worker further psychological treatment to support and facilitate a potential return to work, the worker was left with diminished resources and employability due to the combined effect of both reduced wage loss benefits from the deeming of income and lack of ongoing treatment of their continuing PTSD symptoms.

The panel’s finding is further supported by the worker’s testimony outlining their efforts to return to employment in the summer of 2023 as detailed in the hearing. The worker described the significant challenges they faced in taking on a short-term contract with a previous employer that was within their permanent restrictions, and the various steps they had to take to complete that work, including having their spouse attend work with them almost every day during that period. 

The panel found the worker’s testimony in relation to their brief return to work in summer 2023 to be persuasive in terms of indicating their capabilities and capacity without formal support in place. The worker managed that work with the support from their spouse, and the process of obtaining the work was facilitated by their history with the employer and prior familiarity with the job duties, but even then, the worker found it extremely difficult to undertake and complete the work.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the implementation of a post-accident deemed earning capacity effective April 25, 2022 was not appropriate. The worker’s appeal is therefore 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 3rd day of May, 2024