The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that they are not entitled to full wage loss benefits from November 15, 2017 to November 30, 2019. A teleconference hearing took place on October 22, 2024 to consider the appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits from November 15, 2017 to November 30, 2019.

Decision

The worker is entitled to full wage loss benefits from November 15, 2017 to November 30, 2019.

Background

The WCB accepted the worker’s claim for injury to their right elbow that occurred at work on August 10, 2009 when a tool they were using slipped, causing the worker’s right elbow to overextend and come into contact with a solid surface.

In December 2009, a WCB medical advisor concluded the compensable diagnosis was right ulnar neuropraxia, and in June 2010, a WCB medical advisor concluded there was evidence of mild right-sided complex regional pain syndrome and referred the worker to a pain clinic for further treatment. In December 2010, a WCB case manager advised a WCB pain management physician that the worker was reporting hallucinations and nightmares, and the physician recommended the worker contact a crisis unit for assessment and follow-up with their family physician. In January 2011, the worker advised the WCB the incident may have resulted from medications taken to manage their pain, and that their physician had recently changed those medications. In discussion with the WCB in April 2011, the worker requested a referral for counselling in relation to psychological difficulties they were experiencing in dealing with pain. The WCB made a psychological referral in May 2011 and after a psychological call-in examination in November 2011, authorized further psychological sessions.

In May 2012, the treating healthcare providers concluded the worker would not be able to return to their pre-accident employment. As the employer advised the WCB they would not be able to accommodate the worker, the WCB referred the worker to vocational rehabilitation services and developed a vocational rehabilitation (“VR”) plan for the worker, to be completed in September 2016. In August 2015, the WCB amended the plan to another occupational category, but maintained the original end date. The VR plan review on November 13, 2015 reset the relocation period to end on November 15, 2017.

When a WCB psychological advisor reviewed the worker’s file in February 2016 to determine if further further psychological treatment would be authorized, they concluded the worker’s current diagnosis was mild and did not preclude the worker from participating in work or other activities. The psychological advisor also did not recommend further treatment, other than transitional services, as they concluded treatment would not lead to sustained improvement in the worker’s psychological function. The WCB advised the worker they were not entitled to further psychological counselling. In May 2016, the treating family physician submitted a report requesting the WCB reconsider this decision and the WCB did so and advised the worker there would be no change to the earlier decision.

The WCB provided wage loss benefits to the worker following the January 2018 right elbow surgery arising out of the workplace accident, and by March 14, 2018, deemed the worker recovered and entitled to partial wage loss benefits based on the deemed earning capacity established following completion of the VR program in November 2017.

In a November 21, 2019 report, the neuropsychologist treating the worker since May 2018 indicated they assessed the worker on July 4, 2018, and outlined their belief that the worker’s current psychological difficulties were associated with the VR plan and the worker’s struggle with their wage loss benefits. A further report received January 15, 2021 described the worker’s primary mental health diagnosis of persistent adjustment disorder with predominant depressed mood in the context of chronic pain. In that report, the neuropsychologist also noted that the worker could not return to their pre-accident employment due to the physical restrictions and could not return to any employment due to their current mental health disorder.

On February 19, 2021, the WCB advised the worker that following a review of their file by a WCB psychiatric advisor, it determined the worker was not entitled to benefits in relation to their psychological issues as those difficulties were found to be related to the worker’s pre-existing condition and not the workplace accident. On March 12, 2021, the worker’s representative requested Review Office reconsider various prior WCB decisions, and on May 11, 2021 Review Office found the worker’s psychological difficulties were not related to the workplace accident. The worker’s representative appealed to the Appeal Commission and in Decision No. 138/21, dated December 2, 2021, the Appeal Commission determined the worker’s psychological condition was a consequence of the August 10, 2009 workplace accident and returned the worker’s file to the WCB for further adjudication.

The WCB then referred the worker for further psychological treatment. On reviewing the worker’s file and gathering further information, the WCB advised the worker on February 8, 2022 that as the treating psychologist concluded on October 22, 2020 that the worker was not fit for any work duties, the WCB would provide full wage loss benefits as of that date, with ongoing entitlement to be reviewed on a regular basis.

On July 5, 2022, the worker’s representative submitted a request to the WCB to review the worker’s entitlement to full wage loss benefits beginning November 15, 2017, when the WCB implemented a deemed earning capacity for the worker based on the VR plan. The representative provided a May 31, 2022 report from the treating neuropsychologist, outlining that the compensable psychological injury started in at least 2011. On October 12, 2022, the WCB advised the worker and their representative that on review of the information provided and the worker’s file, the worker was entitled to full wage loss benefits from December 1, 2019, noting the treating healthcare provider reported the worker’s depressed mood and increased pain around November 25, 2019.

The worker’s representative requested Review Office reconsider the WCB’s decision that the worker was not entitled to full wage loss benefits before December 1, 2019. The representative noted disagreement with the benefit restart date selected by the WCB, pointing out that the WCB did not contact the treating neuropsychologist for an opinion as to when the psychological injury began but chose a date based on a report from the treating family physician that noted an issue with the worker’s mental health. On January 17, 2023, Review Office determined the worker was not entitled to full wage loss benefits from November 15, 2017 to November 30, 2019.

The worker’s representative filed an appeal with the Appeal Commission on April 3, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and provided to the interested parties for comment, the appeal panel met on March 11, 2025 to render a decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The applicable provisions of the Act and policies are those in effect as of the date of accident.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Accident is defined in s 1(1) of the Act as a chance event occasioned by a physical or natural cause, which includes any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of employment, and an occupational disease, as a result of which a worker is injured.

Under s 4(2) of the Act, a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity that results 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. If the WCB determines that a worker has 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.

Worker’s Position

The worker was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker and relied upon an additional submission provided in advance of the hearing. The worker offered testimony through answers to the questions posed by members of the appeal panel.

The worker’s position is the evidence supports a finding that as a result of the compensable workplace injuries, the worker was either disabled from working or was not sustainably employable during the period under consideration and therefore experienced a loss of earning capacity that entitles the worker to full wage loss benefits through most of that period. The worker advisor confirmed that the appeal relates only to the periods between November 15, 2017 and December 1, 2019 when the worker did not already receive wage loss benefits, noting that the WCB reinstated full wage loss benefits on January 9, 2018 through to March 14, 2018 related to a compensable surgical procedure, later extended through to March 21, 2018 to account for the required notice period for a discretionary change in wage loss benefits. Further, the worker had earnings beginning in July, 2018 from the casual employment obtained at that time and would not therefore have had entitlement to full wage loss benefits during that employment.

The worker advisor urged the panel to rely upon the opinions of the worker’s long-term treating family physician and the treating neuropsychologist who was involved with the worker since May 2018, submitting that the evidence from these treatment providers supports a conclusion that the worker is entitled to wage loss benefits during the period at issue. The combination of the worker’s compensable psychological injury, the ongoing effects of the physical injury, and the effect of the withdrawal from opioid medication during this period should be considered in determining that it was not appropriate to implement the deemed earning capacity as of November 15, 2017, and that the worker continued to sustain a loss of earning capacity beyond that date as a result of their compensable injuries.

Alternatively, the worker advisor submitted that if the worker’s re-entitlement to full wage loss benefits is founded in the November 2019 report from the treating family physician, then that re-entitlement ought to have been established as of the date of that assessment rather than the date of the report to the WCB. In other words, in that case, the worker’s benefits should have then been reinstated as of November 22, 2019 rather than as of December 1, 2019.

Employer’s Position

The employer was not a participant in the appeal.

Analysis

This appeal is about whether the worker is entitled to full wage loss benefits from November 15, 2017 through November 30, 2019. For the appeal to succeed, the panel would have to find that the worker experienced a loss of earning capacity during this period as a result of their compensable injuries. The panel was able to make such a finding and therefore the worker’s appeal is granted, as detailed in the reasons that follow.

The panel noted that the WCB determined the worker did not have a loss of earning capacity in relation to the compensable injuries from the conclusion of the VR program on November 15, 2017 until November 30, 2019, when the treating family physician noted in a report to the WCB that the worker had mental health symptoms of concern. The panel noted, however, that the medical reporting does not demonstrate that the worker’s treatment providers at any time during this period, or prior to it, reported that the worker recovered from the psychological injury arising out of the workplace accident. There is evidence that the WCB determined based on the treatment providers’ reporting that there was no benefit to providing further psychological treatment, although the WCB continued to authorize medication to address the worker’s psychological symptoms. Specifically, we note the treating family physician reported to the WCB, throughout the period in issue that the worker was prescribed medication to address various conditions, including medication for a mental health condition, and that the WCB medical advisor, on November 14, 2017, confirmed that all of the prescribed medications were “appropriate and related to the compensable injury”. The panel also noted the treating family physician reported on October 15, 2023 that a review of their chart notes for treatment of the worker from November 2017 to December 2019 indicates the worker was having issues with mental health related to the work injury, that the worker had difficulty in finding employment as a result and that the worker was unable to maintain the only work they found during that time “…for reasons that were mental health related.” The physician also noted their records support “…that [the] work injury was having a significant effect on [the worker’s] mental health during that time” and referenced the treating psychologist’s 2012 opinion indicating the worker had at that time “significant emotional difficulties related to their chronic pain with only a fair prognosis for complete resolution.” On this basis alone, the panel is satisfied that the evidence does not establish that the worker had recovered from the compensable psychological condition arising out of the workplace accident by November 15, 2017.

The panel noted that the previous appeal panel relied on the treating neuropsychologist’s January 11, 2021 opinion confirming that the worker “…has long-term adjustment problems associated with [their] right upper extremity injury, as well as significant disappointment with vocational rehabilitation and WCB claim decisions” and diagnosing “…persistent Adjustment Disorder with predominant depressed mood in the context of [their] chronic pain and the functional implications of [their] occupational injury…. The persistent Adjustment Disorder with predominant depressed mood would be related to the longer-term effects from [their] occupational injury from 2009.” The previous panel found that the worker’s persistent attachment disorder with predominant depressed mood arose out of and was causally related to the workplace injury of 2009, and we rely on these findings in considering the present appeal.

In a February 2025 opinion, requested by the panel, the treating neuropsychologist referenced the WCB psychiatric consultant’s 2012 diagnosis of “Pain Disorder Associated with Both Psychological Factors and a General Medical Condition”, which the previous appeal panel also considered, and noted the diagnosis aligned with the October 2023 diagnosis provided by of the treating psychiatrist and indicated “long-standing issues with [the worker’s] coping with [their] claim related pain.” The neuropsychologist also commented on their own previous opinions and assessments of the worker beginning in May 2018 and concluded that “it is unlikely that [the worker] would have been able to obtain and/or sustain gainful employment” during the period under review in this appeal, given the increase in the worker’s depressive mood since leaving the workforce. The treating neuropsychologist also noted that withdrawal of the Butrans patch in August 2019 would likely have adversely affected the worker’s psychological condition, based on the worker’s testimony in the previous Appeal Commission hearing and the medical reporting.

At the time that the worker was involved in the VR program, the WCB had not accepted that their psychological condition was compensable, and as such, it is not surprising that the question of the worker’s psychological capability to return to work in November 2017 was not considered in implementing the deemed earning capacity at that time. However, it would have been an appropriate consideration, following the decision of the Appeal Commission that this was a compensable condition. The panel finds that the WCB failed to consider the impact of the worker’s psychological diagnosis on their ability to obtain and sustain gainful employment in November 2017, in determining the worker was not eligible for wage loss benefits as of that date. This determination seems arbitrary in the circumstances and is not supported by the available medical reporting.

The panel also considered whether the fact that the worker was able to obtain and briefly maintain casual employment during the summer of 2018 supports a finding that the worker was capable of a sustained return to work at that time. The evidence in relation to that return to work attempt indicates that the worker’s employment was soon terminated by the employer, based at least in part upon the worker’s erratic and challenging workplace behaviour, which the treating neuropsychologist related to the worker’s ongoing mental health challenges. As such, we are not satisfied that this temporary employment indicates the worker’s psychological fitness to return to work at that time.

Based on the evidence before the panel and applying the standard of a balance of probabilities, we are satisfied that the worker continued to experience a loss of earning capacity after November 2017, and that this loss of earning capacity continued through the period at issue in this appeal, with the exception of the brief period of casual employment in and around July 2018. As such, the panel is satisfied that the worker is entitled to full wage loss benefits from November 15, 2017 to November 30, 2019 and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of March, 2025