- Health care (maintenance treatment)
The worker suffered a compensable psychological injury in the context of his November 27, 2017 workplace accident. Treatments were approved by the Board, and by December 2019, it was concluded that the worker had reached maximum psychological recovery. He went on to receive a 5% NEL award for permanent psychotraumatic impairment. The issue under appeal was whether the worker had entitlement to ongoing psychological treatment.
The Vice-Chair allowed the appeal.Treatments after MMR are allowed in certain circumstances even if there is no evidence of a significant worsening. This is called "maintenance treatment" and is provided in order to assist a worker to maintain the level of recovery and quality of life by preventing deterioration of the work-related impairment, rather than to rehabilitate. To assist in making an entitlement determination, the Board has issued an Administrative Practice Document on Maintenance Treatment. This document outlines a number of factors that are taken into account in determining entitlement for maintenance treatment.Ultimately the Vice-Chair's finding was based on whether the worker's request met the requirements of section 33 of the Act and OPM Document No. 17-01-02, and not the Practice Document. The most recent version of the Administrative Practice Document on Maintenance Treatment, issued in December 2020, specifically states: "The practice and approach is applicable to musculoskeletal injuries not psychological or mental stress injuries." This 2020 version specifically excludes psychological injuries and does not provide any basis for understanding why the exclusion was introduced. The previous version of this document from April 2015 did not include this exclusionary statement and Tribunal case law had understood it to encompass psychological injuries by inference (see Decision No. 1228/19). The Vice-Chair was unable to identify any policy rationale for this change.The Vice-Chair noted that Dr. Milner's clinical approach had been successful in stabilizing the worker's compensable psychological condition, allowing him to maintain employment, and to develop the skills that will allow him to become more independent in managing challenges in his professional and personal life. Accordingly, the worker's appeal was allowed.