The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after August 29, 2023. A hearing was held on April 17, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after August 29, 2023.

Decision

The worker is entitled to wage loss and medical aid benefits after August 29, 2023.

Background

A Worker Incident Report was submitted to the WCB on April 24, 2022, reporting the worker sustained a psychological injury because of an incident at work on March 30, 2022, reported to the employer on April 23, 2022. The worker reported witnessing traumatic incidents on March 30, 2022, April 8, 2022, April 9, 2022, and April 10, 2022. On a Workplace Incident Report Form provided to the WCB on April 27, 2022, the worker noted their delay in reporting the incident was due to their time off between the incidents and they attempted to self-treat their symptoms of insomnia, nightmares and anxiety until their last shift on April 22, 2022 when they advised they needed to seek medical treatment for their symptoms. The Employer’s Incident Report also submitted on April 27, 2022, confirmed the worker’s reporting of the incidents but noted an incident on April 9, 2022 was not recorded in their system.

On April 28, 2022, the employer contacted the WCB to note some concerns with the worker’s claim. The employer confirmed there was not a reported incident on April 9, 2022, there were two incidents that occurred on April 10, 2022, with the worker only being on shift for one of the two incidents and the worker was not at work for the incident that occurred on April 11, 2022. It was further noted the worker was not required to monitor camera footage in the area where the incident occurred, with the worker’s job description only including monitoring footage that directly relates to that position. A further email from the employer on that date indicated they had spoken with the worker who confirmed they had only witnessed the one event on April 10, 2022 and added an incident on March 30, 2022. The employer noted the worker had called in sick that date and was not at work on March 30, 2022.

The WCB contacted the worker on May 2, 2022 to discuss their claim. The worker confirmed they were monitoring cameras on March 30, 2022, April 8, 2022 and April 9, 2022 when they witnessed traumatic incidents with residents and again on April 10, 2022. The worker noted they did not respond to or provide a report for any of the incidents as they were not directly involved, only monitoring cameras as part of their job duties. The worker described their current symptoms as not sleeping well, replaying the incidents, and anxiety and noted they would be attending for medical treatment on May 30, 2022. After speaking with the worker, the WCB requested further information from the employer who responded on May 3, 2022. The WCB advised the employer that the worker was relating their psychological difficulties to incidents that occurred on March 30, 2022, and April 10, 2022. The employer advised the WCB despite the worker’s reporting, the worker was recorded as having called in sick on March 30, 2022, with a duty officer completing a shift cancellation report for the worker on that date. The employer confirmed an incident took place on April 10, 2022, but noted the worker did not complete a report as they were not directly involved in the incident.

A copy of the initial physician’s report was received by the WCB on May 31, 2022 for the worker’s appointment on May 30, 2022. The worker reported witnessing traumatic events on March 30, 2022 and April 10, 2022 after which they experienced anxiety, fatigue due to not sleeping, nightmares and irritability. The physician did not provide a diagnosis but recommended the worker remain off work pending an assessment by a psychologist. On June 24, 2022, the WCB advised the worker their claim was accepted, and the payment of various benefits commenced. On June 24, 2022, a report was received from the worker’s treating psychologist. The psychologist detailed the worker’s reporting of various traumatic incidents the worker had witnessed while at work, including the two incidents that led to the worker’s current psychological difficulties. The worker was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood and the psychologist recommended the worker not return to work until further treatment has taken place.

During an August 16, 2022 status update discussion with the WCB, the worker advised they were attending weekly sessions with their treating psychologist but had not experienced any improvement in their symptoms. On September 18, 2022, the WCB received an update report from the worker’s treating psychologist. The psychologist advised the worker had attended eight sessions, with two additional sessions upcoming. The treating psychologist advised the worker’s previous diagnosis of adjustment disorder with mixed anxiety and depressed mood in addition to other specified trauma and stressor-related disorder was still in place and noted the worker continued to require further psychological treatment prior to returning to work.

The worker’s file was reviewed by a WCB psychiatric consultant on October 25, 2022. The consultant opined the worker’s diagnosis in relation to the March 30, 2022 workplace accident was adjustment disorder with mixed anxiety and depressed mood. Further, the consultant opined the worker could return to work on a gradual basis in an accommodated position with direct inmate contact and not being exposed to traumatic material. On the same date, the WCB contacted the worker to advise them they would be contacting the employer to discuss an accommodated position. On November 7, 2022, the WCB met with the employer to discuss the worker’s restrictions and a possible accommodated position. The WCB advised the worker on November 16, 2022, the employer had a suitable accommodated position for the worker and would be contacting them to discuss the position. The worker noted some concerns related to the accommodated position. A discharge report was received from the worker’s psychologist noting the worker had opted to seek treatment from another psychologist. The report noted the worker’s belief they were not ready to attempt a return to work yet and that the employer and the WCB had been working on finding the worker a suitable accommodated position.

On January 23, 2023, the WCB received a report from the worker’s new treating psychologist. The psychologist indicated the worker had been working on “…concepts related to Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder” since starting therapy and reported symptoms of feeling depressed or down, difficulties with sleep, low mood, guilt, tearfulness, low motivation and heightened irritability and frustration. The worker also reported intrusive and avoidance symptoms and the psychologist opined the worker also met the diagnostic criteria for Cognitive and Mood Symptoms, along with Arousal and Reactivity Symptoms. The new psychologist recommended further sessions with the worker to gain a better understanding of the worker and their ability to participate in a return to work program.

Further discussions took place between the worker, the WCB and the employer to find an accommodated position. The employer requested and the WCB assisted the worker in preparing and providing an updated resume, which was provided to the employer on May 16, 2023. On May 25, 2023, the WCB received a follow-up report from the worker’s treating psychologist. The psychologist noted improvement in the worker’s symptoms but indicated the worker continued to “…experience the lingering effects of having endured a traumatic workplace incident.” The psychologist further provided the worker could return to work on alternate duties. At the request of the WCB, the psychologist sent a further report on June 5, 2023, clarifying the worker’s diagnosis. The psychologist noted at their initial assessment, the worker reported symptoms related to depression and trauma, with the psychologist finding those symptoms were mild to moderate but requested additional sessions to better understand the worker’s condition and their ability to return to work. It was opined on their latest report dated May 25, 2023, the worker did not meet the criteria for any mental health diagnosis, including the compensable diagnosis related to the workplace accident but noted the worker was experiencing lingering mental health issues associated with other individuals who worked in that occupation.

On June 8, 2023, the WCB advised the worker the medical evidence supported they had recovered from their compensable mental health condition, and they were not entitled to wage loss benefits after June 13, 2023, and medical aid benefits after August 4, 2023. On July 7, 2023, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. On July 17, 2023, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. After gathering additional information from the worker’s treating psychologist and the employer, the WCB provided the worker with a revised decision letter on August 30, 2023, upholding the previous decision it had been determined they had recovered from the compensable diagnosis of adjustment disorder with mixed anxiety and depressed mood, and they were not entitled to wage loss benefits after June 13, 2023.

The worker’s representative again requested reconsideration of the WCB’s decision to Review Office on September 26, 2023. The representative submitted the worker’s treating healthcare providers, in particular, the treating psychologist, indicated the worker had ongoing symptoms of a mental health condition requiring further treatment and as such, the worker should be entitled to further wage loss and medical aid benefits. On November 17, 2023, the employer provided a submission to Review Office in support of the WCB’s decision, a copy of which was provided to the worker and their representative on the same date.

Review Office found on November 22, 2023, the worker was entitled to wage loss and medical aid benefits to August 29, 2023. Review Office determined the worker’s treating psychologist confirmed the worker did not require restrictions related to their compensable April 10, 2022 psychological injury and noted the worker continued to have physical restrictions due to a previous WCB injury, for which the employer had been providing an accommodated position. As the WCB had received clarification from the worker’s treating psychologist on August 29, 2023, Review Office determined the worker was entitled to wage loss and medical aid benefits to that date.

The worker filed an appeal with the Appeal Commission on December 11, 2023, and a hearing was arranged.

Reasons

Application Legislation

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

Section 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. 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.”

Section 22(1) creates an obligation upon workers in relation to injuries sustained as a result of an accident, to:

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Worker's Position

The worker represented themselves at the hearing. The worker provided documents in support of their position prior to the hearing and made an oral presentation to the panel at the hearing. The worker also provided testimony in the hearing through answers to questions posed by members of the appeal panel.

The worker’s position is that the WCB prematurely ended their entitlement to wage loss benefits and medical aid benefits without fully understanding the medical opinion of the treating psychologist or obtaining the psychologist’s most current report.

Evidence was provided that the worker asked WCB to contact their treating psychologist to get further clarification, and to obtain a current report, but that the WCB did not do so. The worker states that they sought assistance from WCB with their return to work in light of their restrictions, but that they were dismissed by WCB.

The worker is seeking further wage loss and medical aid benefits.

Employer’s Position

The employer was represented by its agent. The employer’s agent relied on their oral submission and past submissions made regarding this claim. The employer answered questions posed by the panel members during the hearing.

The employer’s position is that the worker is not entitled to wage loss or medical aid benefits beyond August 29, 2023 and states that the medical information does not support a causal connection between the need for further time off work or further medical treatment, and the worker's compensable workplace injury. The employer relies on the medical opinion of the WCB psychiatric consultant who states in the Healthcare Services Request dated October 25, 2022 that there is “no psychiatric contradiction to return to work as long as [the worker] is accommodated in a position with no direct inmate contact and not -- is not exposed to traumatic material."

The employer states that the worker is no longer working in a high conflict environment or with inmates and the worker’s perimeter control post is quite a distance from the jail. Therefore, the employer argues that the information before the panel does not support a causal connection between the need for further time off work or further medical treatment and the compensable work injury.

The employer asks that the Appeal Commission deny the appeal and uphold the Review Office's decision.

Analysis

The panel must determine whether the worker is entitled to wage loss and medical aid benefits after August 29, 2023. For the worker’s appeal to succeed, the panel would have to determine that the worker was not recovered from the effects of the workplace accident by August 29, 2023, and that the worker’s continuing loss of earning capacity and need for medical aid beyond that date are the result of the compensable injury sustained. The panel was able to make such findings and therefore the worker’s appeal is granted.

The worker’s position is that they had not recovered from the compensable injury. The available evidence supports this position.

The worker's treating psychologist details, in their report of May 25, 2023, numerous mental health symptoms that the worker was experiencing and states that these are the lingering effects of having endured a traumatic workplace incident (compensable injury). In that report, the treating psychologist requested 12 therapy sessions to assist the worker in addressing their mental health difficulties. The worker did not have the opportunity to complete the recommended 12 sessions as their coverage was discontinued by WCB.

The worker’s evidence is that they advised the WCB that an additional report was available from their treating psychologist yet there is no evidence that the WCB obtained or attempted to obtain this additional report.

In an email dated August 29, 2023, the treating psychologist advised that the following restrictions "remain pertinent":

1) [the worker] not working in a prison environment/correctional facility 

2) [the worker] not working with inmates

The panel places significant weight on the fact that the work restrictions remain in place. It is not reasonable for the WCB to conclude that the worker had recovered when they still had restrictions in place. The WCB appears to have assumed that by indicating the restrictions would remain "in light of his prior physical restrictions" that the psychologist was saying that the physical restrictions were the only reason those two restrictions were staying in place. The panel disagrees and points to the prior reports from the psychologist respecting the worker's ongoing mental health symptoms. The panel further notes the psychologist's clarification when stating that for issues related to the worker's non-compensable physical restriction the WCB should contact the worker's primary care physician.

The panel also relies on the evidence from the worker that the perimeter control officer post still involves contact with inmates. The worker told the panel that the perimeter control building is a satellite building that checks vehicle traffic, foot traffic and has cameras trained on the south side units (which house approximately 180-200 inmates). The worker indicated that diabetic inmates are brought through the back door of the control building to receive their medical treatments. The panel is not of the view that the worker could perform the duties of his pre-accident accommodation given his ongoing symptoms and with the restrictions still in place on August 29, 2023.

A Health Care Services Review was completed on July 7, 2022, however, from the panel’s review of the file, it is noted that the WCB did not request further reviews by a healthcare professional or specialist after updated reports were received from the worker’s treating psychologist in January 2023 and May 2023. This failure to have healthcare services review the new information and subsequent missed opportunity to request an updated comprehensive report from the worker's psychologist, causes concern for the panel that when further information was available the WCB failed to include this information within its decision making process.

Based on the above, the panel finds that the worker was not recovered from his compensable psychological injury by August 29, 2023, but continued to experience related symptoms beyond that date. Further, the evidence supports a finding that the worker had a continuing need for medical aid arising from the compensable injury and continued to experience a loss of earning capacity beyond August 29, 2023, as a result of the compensable injury.

The panel therefore determines, on a balance of probabilities, that the worker is entitled to medical aid and wage loss benefits after August 29, 2023. We refer the claim back to the WCB for further determination as to the worker’s benefit entitlement and the duration of same.

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 12th day of June, 2024