Decision #50/24 - Type: Workers Compensation

Preamble

The worker was injured while at work on March 23, 2021. The Workers Compensation Board ("WCB") accepted the claim and paid benefits including wage loss and medical aid. The WCB later determined the worker was capable of participating in a gradual return to work with restrictions beginning on June 29, 2022 and concluding on August 19, 2022.

The worker is appealing this determination and a hearing was held on May 1, 2024 to consider the worker's appeal.

Issue

1. Whether or not it is appropriate to implement the graduated return to work program effective June 29, 2022; and 

2. Whether or not the worker is capable of working on a full time basis with restrictions effective August 19, 2022.

Decision

1. The panel did not determine this question having determined there is no jurisdiction to do so. 

2. The worker is not capable of working on a full time basis with restrictions effective August 19, 2022.

Background

On March 29, 2021, the worker submitted a Worker Incident Report to the WCB indicating they sustained injury to their forehead and right shin at work on March 23, 2021. The worker noted they self-treated their injuries with ice, heat, and over-the-counter pain relief medication. The worker described swelling and bruising to their leg, with pain to the touch, noted they were not sleeping well and had concerns with their safety at work. The WCB received an Employer's Accident Report on the same date which confirmed the incident as described by the worker.

On speaking with the worker on March 31, 2021 and confirming the mechanism of injury and noting the worker’s psychological symptoms, the WCB accepted the claim and referred the worker for treatment with a psychologist. On April 6, 2021, the employer advised the WCB that the worker returned to work on April 3, 2021, and on May 10, 2021, the employer advised that the worker was absent from work since April 24, 2021.

The WCB received a report from the treating psychologist on June 9, 2021, outlining the psychologist’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and moderate Post-Traumatic Stress Disorder (“PTSD”). A WCB medical advisor reviewed this report, and other medical information from the treating psychologist and the worker’s treating family physician on June 27, 2021, and concluded the worker’s diagnosis of PTSD arose from the worker’s cumulative exposure to traumatic incidents at work. The medical advisor found the worker was totally disabled from working and should continue to receive treatment for PTSD.

The worker followed up with their family physician on October 4, 2021 reporting ongoing anxiety attacks and sleep disturbance. The physician recommended the worker could return to work to an office position with less public dealing. In a report from the treating psychologist received on October 31, 2021, the psychologist noted they discussed a possible return to work on a gradual basis, not dealing with residents, with the worker and the worker responded by advising the psychologist of their current physical limitations and as well as their psychological difficulties. The worker indicated they recently attended the job site to provide documentation to the employer and noted that visit left them with a panic attack and anxiety.

A WCB psychological consultant reviewed the worker’s claim file on November 2, 2021 and provided their opinion that the worker would be capable of a gradual return to work program with no resident contact after further psychological treatment to assist with the return to work. Subsequently, discussions took place regarding a return to work plan for the worker; however, on November 22, 2021, the treating family physician advised the WCB the worker was not able to return to work due to an increase in their psychological symptoms. When the WCB spoke with the worker on the same date, the worker confirmed thinking about returning to work left them feeling anxious, with blurry vision and heart palpitations.

On February 13, 2022, a WCB psychological consultant reviewed the worker’s claim file, noting permanent physical restrictions that are not related to this claim. The consultant opined that while the worker had a number of non-compensable medical issues, in relation to the psychological injury, the worker was not totally disabled from working. The WCB consultant recommended the worker not work directly with residents and begin a graduated return to work on a part-time basis. Noting the worker would likely experience increased anxiety during their return to work, the consultant recommended ongoing assistance. The WCB advised the employer of the worker’s temporary restrictions on February 23, 2022.

On June 1, 2022, the employer offered the worker an accommodated position, with modified duties that included no direct work with residents, and a gradual return schedule as follows:

3 half days for 2 weeks; 

5 half days for 2 weeks; 

3 half days, 2 full days for 2 weeks; 

4 half days, 1 full day for 2 weeks; 

Full days and hours by 8 week mark.

The employer advised the WCB on June 7, 2022 that the worker refused the offer. The WCB advised the worker the same day that the employer’s offer was reasonable and recent medical information provided by the worker did not support total disability. On June 9, 2022, the WCB wrote to the worker advising their entitlement to full wage loss benefits would end as of June 8, 2022 and they would be paid partial wage loss benefits based on the graduated return to work schedule as proposed by the employer, with entitlement to partial wage loss benefits ending as of the end date of that schedule.

Further discussions took place between the worker, the employer and the WCB regarding the graduated return to work plan and on June 29, 2022, the employer advised the WCB the worker participated in the plan with return to full hours expected by August 19, 2022. On July 12, 2022, the employer advised the WCB that the worker attended work on June 29, 2022 but called in sick or used vacation time since that date.

The worker attended a call-in examination with a WCB psychological consultant on September 14, 2022. The psychological consultant noted they agreed with the restriction of no resident contact and found the worker was not totally disabled from working. The consultant concluded the graduated return to work schedule was appropriate and recommended ongoing psychological treatment, contingent upon the worker continuing with the return to work plan.

On September 21, 2022, the WCB advised the worker that it determined the worker could participate in a graduated return to work plan as of June 29, 2022, with a return to full duties by August 19, 2022 and no further restrictions required after that date. On December 2, 2022, the WCB provided a revised decision letter to the worker indicating the previous decision regarding their ability to participate in a graduated return to work plan as of June 29, 2022 remained unchanged; however, the restriction of no direct work with patients/no direct patient contact remained in effect.

On December 7, 2022, the worker requested Review Office reconsider the WCB’s decision, noting ongoing symptoms and feeling “overwhelmed”, worsening depression, and anxiety related to their return to work plan. The worker stated that because of worsening symptoms, they missed work and used up all their vacation time. On January 17, 2023, Review Office determined the worker was capable of working at full time hours with restrictions, effective August 19, 2022. In making this determination, Review Office found the employer’s offer of an accommodated position commencing June 29, 2022 was appropriate, that the restrictions and graduated schedule were appropriate and noted the worker received ongoing psychological support to help with the return to work process.

The worker’s representative filed an appeal with the Appeal Commission on December 21, 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 Act and WCB policies in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB established Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) to outline the WCB’s approach to return to work of injured workers through modified or alternate duties with the accident employer. This policy sets out that employers are expected to consider the following objectives in the following sequence:

1) Return to the same work with the accident employer. 

2) Return to modified work with the accident employer. 

3) Return to different (alternate) work with the accident employer.

The Return to Work Policy encourages employers to provide modified or alternate work to injured workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity and outlines that the WCB will only become involved when either the worker or the employer requires financial or technical support to help the worker return to work or when the worker and the employer disagree about whether the modified work placement is appropriate.

The Return to Work Policy goes on to define suitable work as work that:

…the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers. To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

The Return to Work Policy also set outs that if there is a dispute about whether the modified or alternate duties are suitable, or whether a worker is medically able to perform the essential duties of the pre-accident job or suitable work, the WCB will make the final determination and may arrange for a worksite analysis. The Policy provides that if the employer initiates modified or alternate work that does not meet the standards for suitable work as described in this policy, the WCB may offer additional rehabilitation services to the worker and that if a worker refuses to participate in suitable work, wage-loss benefits will be reduced or eliminated by the amount the worker would have earned in the suitable work.

Worker’s Position:

The worker appeared in the hearing represented by a worker advisor, who made a submission on behalf of the worker. The worker offered testimony through answers to questions posed to them by their representative and by members of the appeal panel.

The worker’s position is that the graduated return to work plan was not appropriately implemented, in that it was put in place before the WCB determined whether the accommodation proposed by the employer was suitable for the worker.

The worker advisor noted that the WCB arranged a call-in examination to determine this question which did not occur until September 14, 2022 with subsequent clarification as to the restrictions provided on September 29, 2022 and as such, the worker should not have been deemed capable of the return-to-work until after that date. Further, the worker advisor submitted that the worker’s symptoms were not adequately controlled when the return to work plan began in June 2022, noting delays in approval of medications on multiple occasions and an 8-day period when the worker was without medication in early July 2022. The worker advisor noted the worker reported to the WCB on July 12, 2022 that they had recently resumed their medication but still felt “bizarre and unwell.” The worker advisor directed the panel to consider the information provided in advance of the hearing as to the side effects of the various medications prescribed to the worker. The worker advisor submitted the panel should also consider and rely upon the 2023 and 2024 reports and opinions of the treating psychologist and the WCB psychiatric consultant with respect to the effectiveness of the worker’s medication regime as demonstrating the worker’s ongoing issues and impairment.

The worker advisor further noted that although the worker had a pre-existing condition of insomnia, this was further exacerbated by their compensable condition.

The worker advisor also submitted that the worker’s restrictions were not consistently described or applied and that a condition of no patient contact is broader than no direct patient contact. The worker advisor submitted that the worker was necessarily in contact with patients in accessing the workplace and this could not be avoided and submitted that not only does the work need to be safe and within a worker's restrictions, but the worker must also be able to safely get to the work site.

The worker advisor submitted that the accommodated work offered to the worker by the employer was not suitable work, in that it caused an increase of the worker’s symptoms arising from the compensable injury. The worker advisor noted the worker’s email to the WCB of June 8, 2022 in which they described their ongoing anxiety, heart palpitations, blurred vision, feeling overwhelmed and susceptible to startling, as well as a fear of being attacked. The worker advisor relied on the February 13, 2022 comments of the WCB psychological advisor that the worker’s prognosis for recovery is guarded given their ongoing anxiety, as well as the concerns raised in the June 10, 2022 report from the treating psychologist, in relation to the worker’s ability to return to work at that time, and need for further and ongoing treatment. The worker advisor also noted the October 4, 2022 comment from the treating physician indication the worker needed to “assess on a daily basis whether [they are] able to work that day”.

The worker advisor submitted that the worker reasonably cooperated with the WCB, taking prescribed medication, attending psychological treatment and in attempting to return to work and communicating with the employer. The worker advisor noted that the worker’s efforts towards recovery were hampered by the WCB’s delays in approving medication refills.

In summary, the worker’s position is that the return to work plan was inappropriate as confirmed by the fact it failed. Furthermore, the worker upon conclusion of the plan remained symptomatic and demonstrated that they were unable to work full-time within the restrictions. As such, the worker’s appeal should be granted.

Employer’s Position:

The employer was represented in the hearing by its workers compensation coordinator, who provided an oral submission on behalf of the employer.

The employer’s position is that it was appropriate to implement the graduated return to work program effective June 29, 2022, and that the worker was capable of working on a full-time basis with restrictions effective August 19, 2022.

The employer’s representative relied upon the medical reporting that indicates the worker was capable of working modified duties with a restriction as to patient contact as early as November, 2021, based on the opinion from the WCB psychological advisor and the November 19, 2021 note to file regarding the treating psychologist’s confirmation that the worker was ready to proceed with a graduated return to work.

The employer’s representative noted the employer offered modified duties on a graduated return schedule on June 1, 2022 but the worker refused that offer. The representative confirmed that the employer also took into consideration the worker’s previous, non-compensable restrictions in making that offer. The employer’s representative highlighted that the WCB contacted the worker and employer representatives on June 28, 2022 to discuss return to work issues and the worker agreed at that time to “attempt to try accommodations out on June 29th.” The worker signed an offer of accommodation on June 29, 2022 which outlines a graduated return to work plan beginning that day and ending August 19, 2022. The employer’s representative confirmed the worker attended work on June 29, 2022 and did not attend after that, although the work offered was within the worker’s established restrictions.

The employer’s representative further relied upon the conclusion of the WCB psychological advisor, of September 14, 2022 that "Strictly based on the claim initiating traumatic experience, [the worker’s] claim related symptoms, [their] physician's recommendations regarding return to work as indicated above, and notwithstanding [the worker’s] multiple co-morbidities, this plan had been appropriate." The representative noted that subsequent opinions of September 29, 2022 and October 4, 2022 also confirmed the plan was appropriate.

Analysis:

Two questions are posed to the panel in this appeal. First, is it appropriate to implement the graduated return to work program effective June 29, 2022, and second, is the worker capable of working on a full-time basis with restrictions effective August 19, 2022. As detailed in the reasons that follow, the panel determined that the worker was not capable of working on a full-time basis with restrictions effective August 19, 2022. The panel, however, did not determine the first question as we are not satisfied we have jurisdiction to decide the question, which was not explicitly noted as an issue for determination by Review Office, as outlined below.

The worker’s appeal arose from the WCB’s decision that they were capable of working in a gradual return to work schedule with restrictions beginning on June 29, 2022 and concluding on August 19, 2022. The WCB outlined this decision in its letter to the worker of September 21, 2022 and then confirmed it in a further letter of December 2, 2022. In their December 7, 2022 letter of appeal to Review Office, the worker outlined that they were not ready to return to work even with the restrictions in place, noting that in the months since the return to work program began, they used all their available sick and vacation days, and often left work early, because of their PTSD symptoms. The worker stated: “I’m appealing your decision regarding my gradual return to work program, my restrictions regarding having any contact/or be in any areas where patients may occupy, and the decision to discontinue two of the five medications I’ve been prescribed….” The panel noted that Review Office listed two issues for consideration - coverage for medications and whether the worker is capable of working full time hours with restrictions effective August 19, 2022. The Review Office confirmed the WCB's decision in respect of each question.

Review Office did not include as an issue for determination the question of whether it was appropriate to implement the graduated return to work program as of June 29, 2022 nor did they explicitly make a determination on this issue. For this reason, the panel is not satisfied as to our jurisdiction to address the first question posed in this appeal.

In reviewing the question as to the worker’s ability to resume full-time work as of August 19, 2022, the panel considered that as a result of the compensable accident, the worker sustained a significant psychological injury, namely PTSD. As noted by the WCB psychological advisor in their opinion of February 13, 2022, the “…prognosis for full recovery would be guarded given the ongoing anxiety that the worker reports and [their] medical comorbidities, with [their] recovery clearly outside of normative recovery.” Notwithstanding this view, the psychological advisor supported the worker’s participation in a graduated return to work on a part-time basis, with the caveat that “If the worker or psychologist does not think [the worker] is able to have a graduated return to work with the accommodation…a call in examination would be warranted.”

The panel noted the evidence that the treating family physician indicated on March 21, 2022 that the worker was capable of modified work that avoided “public dealing”. On June 22, 2022, the physician indicated that the worker reported they could not go to work due to anxiety, but the physician nonetheless advised the worker to participate in the graduated return to work program to begin on June 29, 2022 and the worker heeded that advice.

The treating psychologist expressed concerns with the planned return to work in their report of June 10, 2022, noting “The previous assessment diagnosis of adjustment disorder with mixed anxiety and depressed mood in addition to PTSD still stands. The currently existing symptoms are significant and they are causing impairments in social, occupational and other important aspects of the worker’s daily functions.” The psychologist also noted:

“Since the issue of the [return to work] had been raised, [the worker] feels more anxious and reported frequent and more intense mood alterations in addition to sleep disturbance. … In association with having a plan with the employer to accommodate [their] condition in offering…modified duties, [the worker’s] reaction has been negative and with an emotional overtones, [they] described more frequent bad dreams, catastrophic thoughts of possible violent accident at work and more injuries, [the worker] is not certain how [they are] going to react this time to the attacker….

Presently, the worker continues to struggle with [their] decision regarding a possible RTW plan in a graduated basis. [The worker] has reached a stalemate and is currently feeling stuck with [their] situation. This writer feels that [the worker] desires to RTW to [their] home occupation but [the worker] is stuck with [their] thoughts of the probability of a further physical assault and [their] probable overreaction to it.”

The treating psychologist proposed further treatment over 3-6 months to assist with symptom control, enhance the worker’s coping skills and deal with the worker’s “reported intermittent suicidality” as well as to “guide the worker through the rehabilitation process and reach a conclusion regarding the RTW issue”, concluding that “The prognosis regarding the probability of the worker reaching a good level of symptom control and being able to RTW is not clear at this point.”

Despite these significant concerns raised by the treating psychologist on June 10, 2022, and the prior comments from the WCB psychological advisor, the panel noted that the return-to-work process continued and the WCB did not follow-up until July 26, 2022 when a call-in examination was scheduled for September 14, 2022. At the same time, the WCB also sought an opinion as to the worker’s medications and their relationship to the continuing diagnosis of PTSD. The WCB psychiatric consultant’s opinion of August 17, 2022 outlined that two of the medications being used by the worker were not recommended, with side effects of stimulation that could interfere with sleep and exacerbate anxious symptoms, atypical movements, drowsiness and cognitive dulling. The worker submits that the subsequent denial of coverage for these medications caused an increase in their stress and anxiety related to the claim, and that earlier delays in medication approvals similarly caused additional stress. The worker testified:

“The problem with the medication interruption at the end of every month. I can't say for sure if it was because I hadn't had the medication in a few days, it was the anxiety and that feeling of why do I have to go through, like, this every 30 days?... So, I can't say that not taking the medication for three, four days could -- could make me feel that way. I think it was more the stress, that anxiety that they caused every month I had to go through this with them.”

While coverage for these medications is not at issue in this appeal, the panel considered that the listed side effects of the prescribed medications as set out in the psychiatric advisor’s opinion could have impacted both the worker’s work-readiness and their ability to succeed in the graduated return to work program. Further, we accept the worker’s evidence that repeated delays in medication approvals by the WCB prior to the denial of coverage caused them additional stress and anxiety.

The panel reviewed the WCB’s Return to Work Policy, which outlines the obligations upon both the worker and the WCB in relation to a return to work following a compensable injury, including the obligation upon the worker to take steps to cooperate with return-to-work plans and to mitigate the effects of their injury and loss of earnings. The Return to Work Policy defines suitable work as work that the worker is medically able to do that does not aggravate or enhance the injury, that provides benefit to both the worker and the employer and considers any safety concerns for the worker or co-workers. The Return to Work Policy requires that in determining whether a worker is medically able to perform suitable work, the WCB will compare the compensable medical restrictions and capabilities to the demands of the work, and if there is a dispute about whether the duties are suitable, or whether a worker is medically able to perform the suitable work, the WCB will make the final determination and may arrange for a worksite analysis. We are satisfied that the Return to Work Policy applies to the present circumstances.

In this case, the panel noted there is no evidence to indicate the WCB considered either the worker’s safety concerns nor the opinion of their treating psychologist that they were not psychologically ready for a return to work in June 2022 and that the issue of return to work was worsening or increasing the worker’s PTSD symptoms. The panel further noted there is no evidence to indicate the WCB sought any clarification or additional information from the employer as to the demands of the proposed accommodated work, nor did the WCB arrange for a worksite analysis to ascertain the suitability of the placement for the worker, despite the safety and medical readiness concerns raised by both the worker and their treating psychologist. As noted previously, the WCB psychological advisor highlighted the need for a call-in examination if there was an issue with the return-to-work plan, but the WCB did not request such an examination until well after the plan was implemented, and even then, it did not take place until some four weeks after the plan concluded. The panel further noted the WCB psychiatric advisor’s opinion in relation to the prescribed medications suggests that the worker may not have been medically able to return to work while those medications were being used, adjusted, or discontinued.

The panel also considered the worker’s testimony that access to the work site required them to travel onto the employer’s premises via a private roadway where patient contact was possible and at times, inevitable. The worker’s representative submits this conflicts with the restrictions in place for the worker, who testified there was not an alternative route to the employee parking area, and further, that while they did not have direct patient contact in the accommodated duties, they were regularly exposed to the various notifications in the workplace as to critical events and safety concerns which caused them to experience an increase in their PTSD symptoms.

Taking into consideration the concerns raised by the treating psychologist, the worker’s safety concerns, the WCB’s inaction in following up on those concerns before implementing the return to work plan, the concerns regarding medication effects and the worker’s potential exposure to patients in traveling to and from the work site, the panel finds that the proposed alternative work was not suitable work as defined in the Return to Work Policy.

The evidence further confirms the worker attempted to participate in the graduated return to work, attending on June 29, 2022, but then used their sick days and vacation days over the following weeks with the consent of the employer. Even in October 2022, the worker’s treating physician noted the worker should continue to assess on a daily basis whether they were able to work on that day and communicate this to their supervisor, as had been the case to that time. Based on the October 4, 2022 report, it is clear to the panel that while the physician supported the worker’s attempt to return to work, they did so with the understanding that the worker would be unlikely to do so on a regular, full-time basis. We agree with this conclusion.

Based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the worker is not capable of working on a full-time basis with restrictions effective August 19, 2022. 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 22nd day of May, 2024

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