The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. Their compensable working restrictions have been correctly established; and 

2. It is appropriate for the worker to participate in the graduated return to work program effective April 24, 2023.

A videoconference hearing was held on March 10, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker’s compensable working restrictions have been correctly established; and 

2. Whether or not it is appropriate for the worker to participate in the graduated return to work program effective April 24, 2023.

Decision

1. The worker’s compensable working restrictions have not been correctly established; and 

2. It is not appropriate for the worker to participate in the graduated return to work program effective April 24, 2023.

Background

An Employer’s Incident Report was provided to the WCB on June 5, 2020, reporting the worker sustained injuries to their face, head, collarbone and shoulder in an incident at work on June 1, 2020 when they were assaulted by an inmate. The worker attended for medical treatment on June 3, 2020 reporting to the treating physician they were struck on the left side of their face, after which they felt dizzy and slightly disoriented but did not have nausea or vomiting and has had a headache since the incident. The physician found limited range of motion in the worker’s neck and tight paravertebral muscles and noted the worker was neurovascularly intact. The physician recommended the worker remain off work until June 16, 2020, providing a diagnosis of head trauma and stress. At a follow-up appointment on June 15, 2020, the physician updated the worker’s diagnosis to post-traumatic stress disorder (PTSD), noting the workplace incident triggered bad memories for the worker and left the worker “…stressed not ready emotional (sic) to go back to work”. The physician provided a sick note for the worker to remain off work until July 8, 2020 and recommended the worker be seen by a counsellor.

The worker submitted their Worker Incident Report to the WCB on July 6, 2020 confirming the mechanism of injury reported by the employer and advising they did not seek medical treatment immediately after the incident as they had a very bad headache and didn’t want to drive. On August 13, 2020, the worker was advised their claim was acceptable and wage loss benefits were paid to July 8, 2020 based on the medical information provided. Additional medical evidence was requested by the WCB. The employer advised the WCB on August 24, 2020, they were able to accommodate the worker but had not been provided with restrictions or alternate duties for the worker. On August 31, 2020, the worker’s treating physician referred the worker to a psychologist, indicating the worker developed PTSD and was “…getting more avoidance, flashback, hypervigilance…” after workplace incidents. The physician placed the worker off work for a further month. The worker’s file was reviewed by a WCB medical advisor on September 13, 2020, who noted the worker’s diagnosis with respect to the June 1, 2020 workplace accident was a face contusion with a whiplash-type injury to their neck. The advisor opined the contusion would heal in a few days to two weeks with the neck condition healing in a few weeks. As the July 11, 2020 report from the worker’s physician did not note any physician symptoms, the advisor provided the worker’s physical conditions had resolved. The WCB advised the worker on September 24, 2020, the medical information on file did not support the worker was totally disabled from working after July 11, 2020 as the worker’s physical injuries had resolved. Additional medical information had been requested.

On November 6, 2020, the WCB received a report from the worker’s treating psychologist who had seen the worker on October 7, 2020 and October 23, 2020. The psychologist noted the worker’s pre-existing psychological condition and opined the worker was experiencing “…significant fear and anxiety related to the workplace assaults such as hypervigilance, avoidance of public places and social interactions, intrusive thoughts, poor sleep with distressing dreams, and emotional numbness” and provided a diagnosis of PTSD. The psychologist indicated the worker could continue to work but with a restriction of not responding to “codes” while at work.

The worker requested the WCB review their time loss for certain days in relation to the June 1, 2020 workplace accident. On January 26, 2021, a WCB psychological consultant reviewed the worker’s file and spoke with the worker’s treating psychologist. The consultant opined that much of the worker’s current difficulties were not related to the workplace accident, however, some of the worker’s symptoms were noted to be related. Additional psychological treatment sessions were approved on February 2, 2021. On February 5, 2021, the WCB advised the worker wage loss benefits for the dates they requested was not accepted and it remained the determination of the WCB, the worker was not entitled to wage loss benefits after July 10, 2020. The worker’s representative requested reconsideration of the WCB’s decision to Review Office on March 11, 2021, noting the WCB’s psychological consultant’s opinion that some of the worker’s symptoms were related to the workplace accident, in concert with the worker’s pre-existing symptoms and as such, the worker should be entitled to benefits after July 10, 2020. On May 6, 2021, Review Office agreed with the worker’s representative and found the worker was entitled to benefits after July 10, 2020. The worker’s file was returned to the WCB’s Compensation Services for further adjudication.

The WCB contacted the worker and their treating healthcare providers for information to support the need for time off related to the June 1, 2020 incident. On June 8, 2021, the WCB requested information from the employer related to sick notes for dates the worker advised they required time off and on the same date, the employer advised they had not received sick notes for any of the dates requested. On June 21, 2021, the WCB requested a WCB psychiatric consultant review the worker’s file and on July 14, 2021, the consultant recommended an examination by a third party non-treating psychiatrist. The examination was arranged for September 1, 2021. On July 27, 2021, the worker advised the employer that due to a decline in their mental health due to increased stress in the workplace, they would be taking a stress leave, recommended by their physician, from July 28, 2021 to September 1, 2021. On August 10, 2021, the worker advised the WCB their treating family physician and psychologist both recommended they go on stress leave and on the same date, the WCB advised the current medical evidence on file did not support the worker’s inability to perform job duties of any kind and as such, their time loss from July 28, 2021 to September 1, 2021 was not accepted in relation to their WCB claim.

On September 23, 2021, the detailed report from the third party psychiatrist was placed to the worker's file. It was opined the worker met the criteria for a diagnosis of PTSD in relation to the June 1, 2020 workplace accident and noted the worker did not have symptoms of PTSD prior to that incident, after which they experienced intensifying symptoms that significantly impacted the worker's ability to function at work. The psychiatrist recommended the worker continue with the psychological treatment they had been receiving and recommended the worker participate in a graduated return to work with half-time shifts during the day time only and that the worker not participate in "codes" while at work. On September 29, 2021, the worker's file was reviewed by a WCB psychiatrist consultant who agreed with the third party psychiatrist's diagnosis for the worker of PTSD and the continued psychological treatment. In addition, the consultant opined the worker's current difficulties were medically accounted for in relation to the June 1, 2020 workplace accident and the worker was likely unable to work the dates that were in question. The WCB psychiatric consultant provided the suggested restrictions of no working night shift and not responding to "codes" were appropriate and should be in place for a period of 6 months. As well, it was noted that the psychiatrist had also recommended the worker begin the graduated return to work schedule in one months' time. Also on September 29, 2021, the employer was provided with the temporary restrictions for the worker and on October 1, 2021, confirmed they were able to accommodate the worker within those restrictions. On September 29, 2021, the WCB reversed the decision on the worker's time loss for July 27, 2021 to September 30, 2021 and advised the employer, with a copy to the worker, wage loss benefits for that time would be accepted.

After discussions between the worker, the employer and the WCB, the worker returned to work on a graduated basis in an accommodated position on October 7, 2021. The worker continued their graduated program but was unable to increase in hours or duties and on May 18, 2022, a report was received by the WCB from the worker's treating psychologist indicating their belief the worker was unable to return to their pre-accident duties due to their ongoing PTSD symptoms. The psychologist recommended restrictions for the worker that included no direct or remote monitoring of inmates and limited contact with inmates. On the same date, the employer was advised of the worker's updated restrictions which also included not working in the area of the accommodated position and day and evening shifts only. On July 5, 2022, the worker's file was reviewed by a WCB psychiatric consultant who indicated support for the treating psychologist's recommendation for restrictions and provided permanent restrictions of no working with inmates (directly or indirectly) and not being required to monitor inmates. A temporary restriction of only working day/evening shifts was recommended for a 6 month period. The employer was provided with the restrictions on July 6, 2022 and advised they would be attempting to find another accommodated position for the worker.

After discussions took place between the worker, the employer and the WCB, a further accommodated position was arranged for the worker to begin on February 6, 2023, for a period of at least six months and with the worker starting off at three days per week, four hours per day and progressing to full time hours by March 6, 2023. The graduated return to work plan was provided to the worker on February 1, 2023 by the WCB. The worker attended for two hours on February 6, 2023, then discontinued working the accommodated position as they felt it was not suitable. The employer advised the WCB on the same date the accommodated position was no longer available. The worker attended a virtual call-in examination with a WCB psychiatric consultant on January 23, 2023, with the report placed to their file on February 27, 2023. The worker's diagnosis of PTSD was confirmed and recommendations were made regarding the worker's current medications. In addition, the worker's permanent restrictions were updated to be not working with inmates, not working in a correctional facility and not working within the provincial justice department. A temporary restriction of not working night shifts was also included, to be reviewed every six months. The updated restrictions were provided to the employer on March 6, 2023 and a further review was undertaken for a suitable accommodated position for the worker.

On March 23, 2023, the employer advised of an accommodated position for the worker and provided the WCB with a job description. On the same date, the WCB advised the employer the position was within the worker's restrictions. A second accommodated position was provided by the employer on April 6, 2023 and on April 17, 2023, it was confirmed by way of letter to the worker by the WCB they would be starting the second accommodated position on April 24, 2023 on a graduated basis. The worker contacted the WCB on April 25, 2023 and advised their treating family physician had placed them off work until July 31, 2023 based on their declining mental and physical health. The WCB conducted further investigation regarding the worker's reporting the accommodated position was not suitable including speaking to the worker's treating psychologist, receiving chart notes from the worker's treating healthcare providers, speaking with the worker's supervisor at the accommodated position and conducting a site visit and taking photographs of the accommodated position's worksite. On June 9, 2023, the WCB advised the worker the accommodated position was reviewed and had been determined to be suitable and as such, no further wage loss benefits would be paid. A revised decision letter was sent on June 14, 2023 noting an error to the location of the accommodated position.

A report from the worker's treating psychologist was received by the WCB on July 17, 2023 requesting an amendment to the worker's permanent restrictions to not work in the same building as a corrections or justice department office, noting the worker's concern about consistently encountering former inmates in those locations. On July 24, 2023, the psychologist confirmed the worker's reluctance to work in a position located in the same building as a corrections or justice department office and noted the worker felt the "…daily presence within the same building was overwhelming…" On September 8, 2023, the WCB spoke with the director of the corrections office located in the building with the accommodated position for the worker who noted most of the clients in their office are visited offsite by their staff and typically, their clients do not frequent or spend time at their office if they didn't have to. Additionally, the director noted in the 10 to 12 years they had been director of that office, there had not been a violent incident at the office or to one of their employees or the general public. The worker's file was again reviewed by a WCB psychiatric consultant who opined the worker was not medically disabled from participating in the accommodated position. It was noted that avoidance was a symptom of PTSD and not of its treatment, with exposure to what is being avoided in a safe and gradual fashion being a recommended treatment. On October 10, 2023, the worker was advised the previous decision was upheld; it was determined the accommodated position was suitable and they were not entitled to wage loss benefits after June 2, 2023.

The worker's representative requested reconsideration of the WCB's decision on the worker's restrictions and entitlement to wage loss benefits to Review Office on October 25, 2023. The representative noted the worker's treating healthcare providers supported the worker's need for "…reduced exposure to former inmates to have a sustainable return to work." Further, the representative noted the WCB psychiatric consultant's opinion exposure to former inmates was part of the treatment for PTSD, however, indicated that therapy should have occurred before the worker began a return to work program. The employer provided a submission in support of the WCB's decision on December 13, 2023, a copy of which was provided to the worker and their representative on the same date, with a response to same received on December 14, 2023.

Review Office determined on December 19, 2023, the worker's restrictions had been correctly established and it was appropriate for the worker to participate in a graduated return to work program effective April 24, 2023. Review Office found the evidence on the worker's file, including a separate entrance for employees of the accommodated position and that the accommodated position did not require the worker to encounter former inmates or work within the justice department, indicated the accommodated position was appropriate and within the worker's restrictions, which had been correctly established. As such, Review Office agreed and accepted the evidence the worker was deemed capable of returning to work in the accommodated position on a graduated basis as of April 24, 2023.

The worker's representative filed an appeal with the Appeal Commission on December 27, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies made by the WCB's Board of Directors. The Act and regulations in effect on the date of the June 1, 2020 incident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured by accident arising out of and in the course of employment. Under Section 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 Section 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. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

WCB Policy 43.20.25, Return to Work with the Accident Employer, outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer (the “RTW Policy”).

The RTW Policy provides that the objectives of the employer to returning an injured worker to work are as follows:

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 modified or alternate work needs to be suitable work and the RTW Policy sets out that suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available.

Section 22 of the Act requires workers to take reasonable steps to:

• reduce or eliminate impairment or loss of earnings resulting from an injury; 

• seek out, co-operate in and receive medical aid that the board considers will promote the worker's recovery; and 

• co-operate with the board in developing programs for return to work, rehabilitation, disability management or other program the board considers will promote the worker's recovery.

Workers are obligated under the Act to participate cooperatively in their recovery and safe return to work. WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery, sets out the responsibilities of both workers and the WCB in ensuring compliance with section 22 of the Act.

Worker's Position

The worker was represented by their union representative, who made an oral submission on behalf of the worker and relied upon a written submission provided in advance of the hearing, as well as the written submissions in support of the worker’s appeals to Review Office in respect of these claims. The worker provided testimony through answers to questions posed by their representative and by members of the appeal panel. The worker’s position with respect to each of the claims and questions on appeal is outlined below.

Issue 1: Whether or not the worker’s compensable working restrictions have been correctly established

The worker's position is that the working restrictions were not correctly established. The worker states that an expansion of the work restrictions is required so that exposure to former inmates, who serve as reminders of their past trauma, is limited.

The worker states that their compensable injury warrants enhanced restrictions.

The worker is seeking that exposure to inmates be limited and that restrictions include not being required to work in the specific building where they were participating in the graduated return to work program.

Issue 2: Whether or not it is appropriate for the worker to participate in the graduated return to work program effective April 24, 2023

The worker’s position is that the accommodation that the WCB arranged was inappropriate.

The worker argues that the evidence supports their attempted return to work in April 2023 failed because the unexpected exposure to former inmates in and around the building the worker was intended to work in caused an exacerbation of the compensable injury.

The position of the worker is that they ought to feel safe going to work and not only did they not feel safe in the accommodation that was in place, but they had an exacerbation of symptoms. The worker states that the work accommodation could not be deemed to be suitable work under the RTW Policy as it aggravated and enhanced their injury.

The worker states that the accommodations were not appropriate as they did not respect their symptoms. The worker is requesting that the WCB reassess the graduated return to work (“GRTW”) program.

Employer's Position

The employer was represented in the hearing by its agent who made oral submissions on behalf of the employer and provided information in response to questions posed by the members of the appeal panel. The employer’s position with respect to each of the questions on appeal is outlined below.

Issue 1: Whether or not the worker’s compensable working restrictions have been correctly established

The employer’s position is that the working restrictions were correctly established.

The employer states that the restrictions cannot address every potential circumstance and that there is a chance of encountering past offenders while out in the general population. The employer also points to the modifications that were offered to the worker, such as a separate entrance to the building to limit encounters with past offenders.

Issue 2: Whether or not it is appropriate for the worker to participate in the GRTW program effective April 24, 2023

The employer’s position is that the modified work and GRTW schedule offered to the worker by the employer was appropriate, and that it was appropriate for the worker to participate in the graduated return to work program effective April 24, 2023.

The employer points to the restrictions that were in place, which included not working with inmates, not working in a correctional facility, and not working within the Justice Department, and states that these restrictions were all being followed by the employer.

The employer further notes that when the worker expressed concerns, namely about past offenders attending the probation office which was in the same building where the worker would be working, the employer suggested and offered solutions or modifications to address the worker’s concerns. The worker did not return to the accommodation to try the suggested modifications. 

The employer references section 22 of the Act and states that workers are required to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from the workplace injury. The employer states that its suggestion of alternate ways of entering and leaving the building was a reasonable suggestion to allow the worker to continue with the GRTW program. The employer’s position is that the worker did not take all reasonable steps available to them to participate in a safe return to work.

Analysis

Issue 1: Whether or not the worker’s compensable working restrictions have been correctly established

The panel finds, on a balance of probabilities, that the worker’s compensable working restrictions have not been correctly established.

The panel notes that the worker has experienced an increase or aggravation of symptoms when attempting GRTW programs within the current restrictions. The panel is of the view, however, that an increase in symptoms does not always require an increase or expansion in workplace restrictions. The implementation of the restrictions needs to be thoroughly considered by the WCB and the employer when determining appropriate and suitable modified or alternate work for this worker.

The panel accepts that there may be times when the worker’s symptoms fluctuate based on the day-to-day circumstances (both work-related and non-work related). It is the panel’s view that the request of the worker, and their representative, to expand the restrictions is not the answer. The worker and their representative are seeking to have unreasonably broad and far-reaching restrictions put in place in the attempt to eliminate any possible scenario of stressful exposures. In essence, making it highly unlikely that an employer accommodation would be possible.

Given the medical evidence before the panel, and the understanding that the worker is not totally disabled, the panel is of the view the workplace restrictions in relation to the following permanent restrictions: (1) not working with inmates, and (2) not working in a correctional facility appear appropriate. That being said, a more practical approach must be considered. For example, while the intent of the current restriction of not working within the Justice Department is to limit exposure to inmates, this may unnecessarily eliminate jobs that do not involve encounters with inmates. Therefore, the panel is of the view that a more holistic review of the restrictions and GRTW program is required in this instance. More clarity and scope must be provided to maximize a successful GRTW program for this worker. For instance, an action plan ought to be developed in conjunction with the worker’s treating psychologist to deal with exposures that may present at a work accommodation.

The panel grants the appeal and directs the WCB to reassess the restrictions with the above-mentioned approach in mind.

Issue 2: Whether or not it is appropriate for the worker to participate in the graduated return to work program effective April 24, 2023

In consideration of the aforementioned determination that the worker’s compensable working restrictions were not correctly established, the panel finds that it was therefore not appropriate for the worker to participate in the GRTW program effective April 24, 2023.

The medical evidence before the panel is that the worker experienced an aggravation of symptoms after seeing inmates when working at another GRTW accommodation in February 2023. This was overwhelming for the worker, and they were unable to cope. These symptoms were accepted by the WCB, and the accommodation was deemed to be outside of the worker’s restrictions. Therefore, the employer explored other potential GRTW accommodations.

The worker’s evidence is that she experienced similar symptoms when encountering past offenders at the GRTW accommodation in April 2023. The panel finds the medical evidence and increase of symptoms related to the April accommodation to be similar to the prior GRTW accommodation that failed. The panel therefore finds the April accommodation to be inappropriate.

The panel is satisfied on a balance of probabilities that the GRTW program is not appropriate or suitable work as it aggravates the worker’s injury.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of June, 2024