WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100050
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING: N/A
ISSUE
The worker requests entitlement to loss of earnings (LOE) benefits from December 21, 2008 to January 21, 2009.
HOW THE ISSUE ARISES
On November 21, 2008, this then 54 year old bus driver was assaulted by two intoxicated males. The claim was accepted with the diagnosis of soft tissue contusions and anxiety\stress. The worker earned $ 24.23 per hour for a 40 hour work week.
Full LOE benefits were paid from November 23, 2008 to December 8, 2008 and partial LOE benefits were paid from December 8, 2008 to December 20, 2008.
The worker returned to regular duties on a part-time-4 hour basis from December 8, 2008. The worker worked for two days and stopped work due to a labor strike which began on December 10, 2008. The worker took vacation from January 21, 2009 to February 16, 2009. The worker returned to regular duties full-time duties on February 16, 2009.
The case manager letter of October 30, 2009 indicated the worker was assaulted on November 21, 2008. The Board accepted full absences until December 8, 2008 when the worker returned to part-time regular duties. The labour strike began on December 10, 2008 and partial LOE benefits were provided until December 20, 2008. There was no Employer Assistance Plan (EAP) activity during the claim for LOE. There is no evidence of work-related disability that would prevent the worker from working the second part of his shift and full LOE benefits were not paid.
The case manager letter of October 30, 2009 indicated there was no EAP contact in December 2008 and the counseling on January 15, 2009 referred to the incident at work but mostly to the start of the strike which triggered some anxiety and stress as well as other non-occupational factors. There was no EAP activity during the claim for LOE. There was no evidence of a work-related psychological disability that would prevent the worker from working the second part of his shift. Partial LOE were paid from
December 8, 2008 to December 20, 2008 inclusive. LOE benefits from
December 20, 2008 would not be considered unless a copy of the psychological assessment was provided.
AUTHORITY
11-01-01 Adjudicative Process
18-03-02 Loss of Earnings Benefits
RESOLUTION AND PROCESS
The worker representative requested a decision based on the evidence on file. The employer agreed to decision based on the evidence on file.
ASSESSMENT OF EVIDENCE
I have reviewed the record and considered the evidence and submissions.
The worker representative submitted the worker was assaulted on a bus on November 21, 2008 by two intoxicated males. The worker sought medical attention on November 24, 2008 with a diagnosis of soft tissue injuries and stress. The medical report on November 25, 2008 confirmed the diagnosis of anxiety and stress. The worker was recommended to seek assistance through the employer assistance plan (EAP) provider. The worker was unable to work from December 21, 2008 to January 21, 2008 due to anxiety and stress that was triggered by the work accident.
The employer submitted there were no psychological reports or medical evidence to support time off after December 10, 2008 and the worker’s unemployment was due to labor relation issues and not the injury.
It was accepted by the Board the incident was stressful. The worker's letter of July 10, 2009 indicated the worker was pushed to the floor by the two assailants, punched, kicked and beaten with improvised weapons. He was hit on his eye, upper lip and temple area of his head. He suffered a black eye, a cut lip and a swollen temple area for two weeks. He stated he thought the EAP counselors and psychologists were the same. On the medical visit to the family doctor in December, 2008 it was suggested he take a vacation and change the environment. He stated he went back to China and spent time with his family to recover both physically and mentally.
The case manager suggested the EAP program consultants were not licensed psychologists.
The evidence supported the employer had hired the EAP provider to provide assistance / counseling to their employees. I accept this contract/advice credible and the employer authorized the need for a further psychological report unnecessary for treatment.
The EAP report of November 25, 2008 was by telephone and described the incident/attack. The worker indicated he had been a bus driver for 17 years and this had never happened before. The discussion was about why young men would perform such an act.
The EAP report of November 26, 2008 was by telephone and indicated the doctor suggested it was good for the worker to discuss his anger and frustration that he was feeling regarding the assault on November 21, 2008. The doctor suggested the worker should be off work initially for two weeks. The next EAP appointment was for November 27, 2008.
The EAP report of November 27, 2008 indicated the appointment was in-person and the discussion was about the worker's feelings and stress about resulting from the accident. The worker had difficulty sleeping and the family doctor prescribed sleeping pills. The worker was very anxious about the incident and positive coping strategies were explored. No further sessions were scheduled.
The EAP report of January 15, 2009 indicated the family doctor recommended further EAP sessions for going back to work. The worker indicated he gets tense when he sees bus riders who resemble the attackers. He has been feeling anxious and worried about going back to work and ruminates about this mostly when he is home by himself during the day. He was particularly worried about riders becoming abusive towards him. Coping strategies were discussed including socializing with colleagues and exercising as well as ways to get a sleep cycle back on track which has been disrupted since labor strike began.
Based on the evidence, the medical report of November 21, 2008 indicated the worker was assaulted by two teenagers resulting in this contusion to the right temple, right shoulder and right knee in addition to stress.
The doctor’s chart notes of November 24, 2008 indicated the police were informed and caught the assailants. The worker’s symptoms included pain to the right temple, difficulty opening his mouth, difficulty sleeping and pain in the right shoulder. There was a contusion to the left eye.
The doctor’s chart note of December 23, 2006 indicated continuing trauma but the worker was feeling better and had four sessions with EAP. His panic and anxiety was reduced.
The doctor chart note of January 6, 2008 indicated feelings of flashbacks and the treatment suggested, was continued EAP counseling and to be on sick leave.
The doctor’s chart note of January 13, 2008 indicated a diagnosis of post-traumatic stress syndrome (PTSS) and a prescribed further medication.
I note the EAP report’s of November 25/26, 2008 summarized the assault and the worker’s anxiety in response to the incident. There was no suggestion for a need for a referral to a psychologist/ psychiatrist. I conclude the counselor believed the current services were appropriate. The EAP report of November 27, 2008 and January 15, 2009 documented the worker had improved in his coping strategies and there is no follow-up appointment but no referral to other professionals to address the anxiety and flashbacks.
The family doctor chart note of January 13, 2008 indicated a diagnosis of PTSS with the worker should take a vacation as part of the treatment with no referral to a psychologist\psychiatrist.
The medical report of January 13, 2008 indicated the symptoms of anxiety and insomnia and the worker presently should not return to work.
I find the EAP counselors credible and provided service for the stressful attack at work. I find the family doctor’s diagnosis of insomnia and anxiety on January 13, 2009 supported he was incapable of returning to work. The EAP counselors had not provided anything other than cognitive therapy for the anxiety and stress. I find the suggestion the worker could not work after December 21, 2008 correct.
I find the new evidence included in family doctor’s support total disability from December 21, 2008. The chart note of January 13, 2008 provided a diagnosis of PTSS. The evidence supported the symptoms of anxiety and stress related to customers is accepted and the rest and being away from the exposed environment was positive and therapeutic. I find the time away from the worker’s home environment provided not only needed rest but detachment from the triggers of bus passengers.
I find the worker’s rest time from January 21, 2008 to February 16, 2009, part of the recommended medical rehabilitation program.
The worker will be provided with full LOE benefits from December 21, 2008 to February 16, 2009 when he returned to his regular duties at full hours.
CONCLUSION
The worker is provided with full LOE benefits from December 21, 2008 to February 16, 2009. The worker was not medically fit to return to any type of work and participating in the medically authorized program involving EAP counseling and rest.
The worker objection is allowed.
DATED April 27, 2010
S. McGillen
Appeals Resolution Officer
Appeals Branch