WCAT Decision Number:  
A2001487 (August 8, 2022)  
DECISION OF THE WORKERSCOMPENSATION APPEAL TRIBUNAL  
WCAT Decision Number:  
A2001487  
WCAT Decision Date:  
August 8, 2022  
Introduction  
[1]  
[2]  
On October 28, 2019 the worker, a lane closure supervisor, was injured when her work vehicle  
was rear-ended by a drunk driver. At the time of this incident the worker was five months  
pregnant. The WorkersCompensation Board (Board), operating as WorkSafeBC, accepted the  
workers claim for soft tissue injuries to her neck, and her upper and lower back.  
In a decision letter dated November 25, 2019, the Board determined that the worker was  
temporarily disabled by these injuries and entitled to temporary total disability (wage-loss)  
benefits from October 28 to November 7, 2019. The Board acknowledged that the employer had  
registered an objection to the worker being paid wage-loss benefits from November 4 to 7, 2019  
and indicated that it would issue a separate decision letter which addressed this issue.  
[3]  
In a decision letter dated December 3, 2019, the Board confirmed that the worker was entitled to  
wage-loss benefits from November 4 to 7, 2019. The Board explained that it considered it  
reasonable for the worker to have refused the light duties which the employer had offered to her  
for the period November 4 to 7, 2019 because they were token and unproductive and therefore  
unsuitable as defined in Board policy.  
[4]  
[5]  
In a decision letter dated February 13, 2020, the Board determined that the worker was not  
entitled to wage-loss benefits beyond November 7, 2019 because the light duties which the  
employer had offered to her for that period were suitable and her refusal of those duties was  
unreasonable.  
The employer filled a request for review of the Boards November 25, 2019 decision letter but  
did not request a review of the Boards December 3, 2019 decision letter.  
[6]  
[7]  
The worker filed a request for review of the Boards February 13, 2020 decision letter.  
In a Review Division decision dated May 19, 2020 (Review Reference #R0259988), a review  
officer determined that the issue that the employer was seeking to have addressed by filing a  
request for review of the Boards November 25, 2019 decision letter was actually contained in  
the Boards decision letter dated December 3, 2019. After giving notice to the parties, the review  
1
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
officer proceeded with her review on the basis that the employer had requested a review of  
the Boards it was the December 3, 2019 decision letter1. The review officer went on to conclude  
that the employer had offered the worker suitable light duties for the period November 4 to 7,  
2019 which the worker had unreasonably refused to perform after being medically cleared to do  
so starting November 4, 2019. Given these circumstances, the review officer concluded that the  
worker was not entitled to wage-loss benefits for the period November 4 to 7, 2019 and varied  
the Board decision dated December 3, 2019.  
[8]  
[9]  
In a Review Division decision dated September 17, 2020 (Review Reference #R0264747), a  
review officer confirmed that the worker was not entitled to wage-loss benefits beyond  
November 7, 2020 for the same reasons cited by the Boards decision letter dated February 13,  
2020.  
The worker appealed Review Reference #R0259988 and Review Reference #R0264747 to the  
WorkersCompensation Appeal Tribunal (WCAT). The employer filed notices to participate with  
respect to both of these appeals. I will refer to these appeals as Appeal A (A2001487) and  
Appeal B (A2002489), respectively. Appeals A and B were subsequently suspended pending  
the outcome of the workers request for review of a May 13, 2020 Board decision which denied  
the worker compensation for a psychological injury.  
[10]  
[11]  
In a Review Division decision dated December 2, 2020 (Review Reference #R0267947), a  
review officer determined that further investigation was necessary in order to determine whether  
the worker had developed or aggravated a compensable psychological condition. After  
conducting further investigations, the Board issued an implementation decision letter dated  
July 2, 2021 accepting an Adjustment Disorder (with Mixed Anxiety and Depressed Mood) and  
an Aggravation of a pre-existing Major Depressive Disorder (Recurrent, Moderate) as having  
arisen out of and in the course of the workers employment on October 28, 2019.  
In the same July 2, 2021 implementation decision, the Board considered whether the worker  
was entitled to wage-loss benefits as a result of her accepted psychological conditions. The  
Board noted that the worker had been denied wage-loss benefits for her physical injuries as of  
November 4, 2019 because the employer had offered her suitable light duties which she had  
unreasonably refused to perform. The Board determined that the worker was capable of  
performing those light duties as of November 4, 2019 despite her accepted psychological  
conditions because the duties offered were in keeping with the temporary limitations identified  
by the psychologist who assessed the worker in May 2021. The Board concluded that the  
workers refusal to participate in those light duties because she was stressed about driving”  
was unreasonable because the worker had indicated that she was capable of doing essential  
drivingwhich the Board felt had a greater potential for injury due to inattention or poor judgment  
1
and not the Board’s November 25, 2019 decision letter  
2
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
than the light duties the employer had offered. As a result, the Board confirmed that the worker  
had no entitlement to wage-loss benefits as of November 4, 2019.  
[12]  
[13]  
The worker protested the Boards determination that she was not entitled to additional  
wage-loss benefits as a result of her accepted psychological conditions by filing a request for  
review of the July 2, 2021 Board decision letter.  
In a Review Division decision dated November 25, 2021 (Review Reference #R0281537) a  
review officer concluded that the worker was capable of performing the light duties that the  
employer had offered to her for the period November 4 to 7, 2019 despite her accepted  
psychological conditions and had unreasonably refused to participate in same during the period  
November 5 to 7, 2019. As a result the review officer concluded that the worker was not entitled  
to wage-loss benefits for the period November 5 to 7, 2019.  
[14]  
In the same November 25, 2021 Review Division decision, the review officer determined that by  
November 8, 2019 the worker was no longer psychologically capable of performing the light  
duties which the employer had available and was therefore entitled to the payment of temporary  
total wage-loss benefits for her accepted Adjustment Disorder and Major Depressive Disorder  
commencing November 8, 2019. The review officer left it to the Board to determine the nature  
and extent of the workers entitlement to wage-loss benefits after November 8, 2019.  
[15]  
[16]  
The employer appealed Review Reference #R0281537 to WCAT. I will refer to this as Appeal C  
(A2102494). The worker has filed a notice to participate with respect to Appeal C.  
WCAT has joined Appeals A, B and C so that they can be addressed together. With respect to  
all three appeals, the worker is represented by a union business agent and the employer is  
represented by an advocate from the EmployersAdvisers Office.  
Appeal Method  
[17]  
The worker requested that Appeals A and B be conducted by way of an oral hearing. The  
employer requested that Appeal C proceed by way of written submissions. The WCAT  
assessment officer made a preliminary determination that all three matters should proceed  
together by way of an oral hearing. In view of the employers challenges to the workers  
credibility, I agreed with this assessment and so an oral hearing was held on April 5, 2022 in  
order to address all three appeals.  
Issue(s)  
[18]  
Item 3.3.1 (Issues in Decision(s) Appealed) of the WCAT Manual of Rules of Practice and  
Procedure (MRPP) provides that where a decision of the Review Division is appealed to WCAT,  
WCAT has jurisdiction to address any issue determined in either the Review Division decision or  
3
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
the Board decision(s) which was under review, subject to the statutory limits on WCATs  
jurisdiction. However, WCAT will generally restrict its decisions to the issues raised by the  
appellant in the notice of appeal and the appellants submissions to WCAT.  
[19]  
At the outset of the oral hearing on April 5, 2022, I advised the parties that I had reviewed the  
workers claim file in its entirety including the Board and Review Division decisions, the notices  
of appeal filed by the parties, and the submissions which they had filed on review and appeal  
and had identified the following issues:  
Appeal A  
Whether the worker was temporarily disabled by her accepted injuries/conditions and  
entitled to wage-loss benefits for the period November 4 to 7, 2019.  
Appeal B  
Whether the worker was temporarily disabled by her accepted injuries/conditions and  
entitled to wage-loss benefits beyond November 7, 2019.  
Appeal C  
Whether the worker was temporarily disabled by her accepted injuries/conditions and  
entitled to wage-loss benefits effective November 8, 201982.  
[20]  
I indicated that all three appeals required me to consider whether the worker was physically or  
psychologically incapable of undertaking any form of employment during the period in question  
and if so whether her refusal of the selective/light employment offered to her for that period was  
reasonable. The parties concurred and so I have proceeded on this basis.  
Jurisdiction and Procedure  
These are appeals of Review Division decisions pursuant to section 288(1) of the Workers  
Compensation Act (Act).  
[21]  
Section 308 of the Act gives WCAT exclusive jurisdiction to inquire into, hear, and determine all  
those matters and questions of fact, law, and discretion arising or required to be determined in  
an appeal before it. These are appeals by way of rehearing, in which WCAT considers the  
2
The employer limited its appeal of the Review Division’s November 25, 2021 decision to the review  
officer’s decision that the worker was entitled to wage-loss benefits for the period effective November 8,  
2018. The worker did not file a cross-appeal of the Review Division’s November 25, 2021 decision to  
deny her wage-loss benefits for the period November 5 to 7, 2019.  
4
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
record and also has jurisdiction to consider new evidence and to substitute its own decision for  
the decisions under appeal. WCAT has inquiry power, including the discretion to seek further  
evidence, but is not obliged to do so. WCAT may confirm, vary, or cancel the appealed  
decisions or orders.  
[22]  
[23]  
The standard of proof in compensation matters is the balance of probabilities, subject to the  
provisions of section 303(5) of the Act. Section 303(5) provides that when the evidence on an  
issue respecting the compensation of a worker is evenly weighted, WCAT will resolve the matter  
in a manner that favours the worker.  
Section 303(2) of the Act requires me to apply the published policies of the board of directors of  
the Board, subject to the provisions of section 304 of the Act. All references to policy in this  
decision, unless otherwise specified, are references to the policy contained in the Boards  
Rehabilitation Services and Claims Manual, Volume II.  
Background and Evidence  
[24]  
On October 29, 2019 the worker called a superintendent for the employer to advise that she  
would not be going into work that night because she was a bit sore. The superintendent  
advised the employers Health Safety and Environment (HSE) administrator who telephoned the  
worker later the same day. The HSE administrator explained to the worker about the employers  
Stay at Work/Return to Work program, verbally offered the worker light duties working at the  
employers head office and sent the worker a written offer of modified duties which was set out  
in a Return to Work (RTW) Suitable Employment Agreement form and accompanied by a RTW  
Functional Abilities Form (to be completed by the workers physician).  
[25]  
This RTW Suitable Employment Agreement form indicated that the employer was offering the  
worker full time (eight hours per day, Monday to Friday) sedentary duties commencing October  
30, 2019 which involved completing online safety courses. The form indicated that the worker  
would be allowed to take rest breaks and sit, stand or lie down as necessary while performing  
this work. A supplementary page enclosed with this form indicated that the worker was also  
being offered the following sedentary duties: review and revise company safety manual; develop  
safe job procedures and safe work practices; develop a training manual/course/program;  
computer work/data entry; source new suppliers via Internet/telephone; call suppliers and obtain  
quotes for common construction materials; and conducting Internet research regarding  
competitors, suppliers or new products. The HSE administrator documented that when she  
offered these duties to the worker on October 29, 2019 the worker responded that she was fine  
and would be back to work the next night and wasnt going to go to a doctor.  
[26]  
On October 30, 2019 the worker sought treatment from a clinic physician, Dr. Gill. He  
documented that the worker had been involved in a motor vehicle accident (MVA) on  
October 28, 2019 when the truck she was in was rear-ended by a car. Dr. Gill noted that the  
5
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
worker complained of a headache and pain in her neck and lower back but said she had not  
taken any analgesics because she was pregnant. On examination Dr. Gill observed that the  
worker had palpable cervical, thoracic and lumbar para-spinal muscles. He opined that the  
worker was medically incapable of working full duties full time due to pain and provided the  
worker with a note that said that she was to remain off work for medical reasons until  
November 4, 2019, at which time she could return to modified duties. Dr. Gill indicated that once  
the worker had worked at modified duties for two weeks she should be reassessed.  
[27]  
[28]  
[29]  
On October 30, 2019 the worker advised the HSE administrator that Dr. Gill had provided her  
with a note which said that she could not do any work, including modified duties, until  
November 4, 2019. The HSE administrator responded by offering the worker the option of  
working from home doing online safety courses. The worker agreed to this stating she was fine,  
the baby was fine and she was feeling much better and would likely be back at work the next  
night.  
On November 1, 2019 the worker called the HSE administrator and advised that she was  
working on the courseand that she would be going back to see the doctor that day so she  
could be cleared for work because she felt fine and wanted the overtime. The HSE administrator  
advised the worker that she should not return to her full duties if she did not feel ready to do so  
to which the worker responded that she felt fine and was feeling good and it wouldnt be a  
problem.  
On November 2, 2019 the worker sought medical treatment from a different clinic physician,  
Dr. Somani. He documented that the worker had been rear-ended at work on October 28, 2019  
by an intoxicated driver following which she had been experiencing a headache, neck pain and  
stiff lower back which was not improving. He noted that the worker had been seen at another  
medical clinic the day following this MVA and had been off work ever since. Dr. Somani also  
noted that the worker was currently five months pregnant. On examination, he observed that the  
worker appeared well, was mobilizing relatively normally, had normal range of motion in her  
neck and lumbar spine and no spinal tenderness, but did have paraspinal neck and trapezius  
area tension. Dr. Somani noted that the worker had anxiety and concerns regarding the safety  
of returning back to work, noting there is apparently no buffer. Dr. Somani opined that the  
worker was not medically capable of working full duties full time as of November 2, 2019 but  
indicated that the worker would be able to return to computer work the following week. He  
indicated on the RTW Functional Abilities form provided by the employer, that the worker was  
capable of performing RTW Stage 1 Light Duty Tasks (safety manual review, safety program  
development, and computer work)provided that she could take rest breaks as necessary and  
sit or stand as necessary. He also indicated that the worker was able to travel to work by driving  
a vehicle, taking transit, or being picked up/taking a taxi. He recommended that the worker  
perform sedentary work duties for one week and then return for a follow-up appointment.  
6
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[30]  
On November 3, 2019, the employers HSE administrator texted the worker to advise that she  
had received the RTW Functional Abilities form completed by Dr. Somani and since the worker  
had been cleared for sedentary office duties the employer expected her to come into the head  
office and finish her course the following morning. The worker responded that she would not be  
able to do this because she did not have anyone who would be able to care for her two children  
during the day until Friday November 8, 2019. The worker explained that her existing childcare  
arrangements had been made on the basis that she was supposed to be working nights that  
week. The worker told the HSE administrator that if the employer had something that she could  
do from home during the day or had a job that she could go do at night, either on the road or in  
the office that this would work.  
[31]  
On November 4, 2019 the employers HSE manager spoke to the worker and they agreed that  
because the worker did not have daycare for her children that she would complete an online  
Road Safety Training System (RSTS) course from home by noon that day. The worker started  
working on this online course that afternoon but experienced some issues with the course  
providers website. The HSE administrator advised the worker to contact the course providers  
IT department for assistance then sent her a text advising that she had registered the worker for  
other online safety courses (i.e. Construction Safety Training System and Occupational Safety  
and Health Administration) that she could work on from home until the issue with the RSTS  
course was resolved.  
[32]  
The evening of November 4, 2019 the employers HSE manager phoned the worker to discuss  
a return-to-work plan which involved working from home and meeting to review the work  
incident and discuss potential preventative measures. Following this conversation the HSE  
manager sent the worker a text confirming that she could work from home in the evenings that  
week provided she sent the HSE manager or HSE administrator a completed time sheet and  
documentation of the work she had completed each day via email or text. The HSE manager  
also advised the worker that she would need to make daycare arrangements for her children for  
the following week because the employer was expecting her to come into the office to perform  
the light duties which had been approved by her physician even if she was not fit for full duties  
by that time.  
[33]  
[34]  
Early on November 5, 2019 the HSE manager texted the worker and asked her to send the  
employer an update regarding everything she had accomplished on November 4, 2019  
(including the percentage of each course she had completed) as well as a completed time  
sheet/card. The HSE manager requested that the worker do this at the end of every shift. The  
worker responded to this text message by advising that she would not be returning to work until  
Friday, November 8, 2019 because her son was sick. The worker advised that when she did  
return to work she would be coming into the office to do modified duties.  
On November 7, 2019 the HSE manager texted the worker and advised her to come into the  
employers head office at 8 a.m. on Friday, November 8, 2019 to perform light duties. Later that  
7
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
day the worker sent the HSE manager a text advising that she had attended a maternity  
appointment on November 6, 2019 to make sure that her baby was okay and had been advised  
to make an appointment to see her family doctor. The worker said that she had since made an  
appointment to see her family doctor the morning of November 8, 2019. The worker advised  
that when she attended this appointment she planned to get a note for further time offwhich  
she would forward to the employer.  
[35]  
On November 7, 2019 the HSE administrator tried to contact the worker via telephone in order  
to get clarification regarding the information she had provided to the HSE manager. When she  
did not get a response the HSE administrator sent the worker a text. The worker texted back  
that she was in a childrens behaviour lecture and would contact the HSE administrator when  
she was done. Later that day the worker advised the HSE administrator that she needed more  
time off in order to address some family issues but said that she planned to return to full duties  
on November 14, 2019. The HSE administrator requested that the worker forward a note from  
her doctor once she obtained it. During this conversation the worker advised the HSE  
administrator that if she was to return to work on a light duty basis that she did not want to come  
into the employers head office to work because she did not want to sit in traffic for two hours.  
Later the same day the worker contacted the employers project manager and advised that she  
would be back at work flaggingon Thursday November 14, 2019.  
[36]  
On November 8, 2019, the worker saw her primary care physician, Dr. Bradford, for the first  
time following the October 28, 2019 work incident. Dr. Bradford documented in a chart note for  
that date the workers description of being rear-ended by another vehicle after accelerating to  
avoid the collision and how the driver of the other vehicle had tried to flee the scene.  
Dr. Bradford noted that the worker believed that she would have died if she had not accelerated  
before being rear-ended and was worried about what would have happened to her children if  
she had died. Dr. Bradford indicated that that the worker had been able to do light duties for  
one week following the accident but was unable to continue with those duties due to  
pregnancy-related stress and issues with respect to legal proceedings. Dr. Bradford noted that  
the worker had a history of post-partum depression and as well as a number of other ongoing  
personal stressors in her life. She also documented that the worker reported experiencing  
suicidal thoughts prior to the work accident. Dr. Bradford noted that the worker was on  
anti-depressant medication and that her dosage of this medication had been decreased three  
months before the October 2019 MVA. She said the worker was not coping well. Dr. Bradford  
opined that the worker could be suffering from depression or an acute stress reaction and  
referred her to a psychiatrist through a reproductive mental health program. In terms of her  
physical injuries, Dr. Bradford indicated that the workers headaches had resolved but that she  
still had tightness around her neck. Dr. Bradford provided the worker with a note which stated  
that she was medically unable to work for at least the next 4 weeks.  
[37]  
On November 12, 2019 the HSE administrator contacted the worker regarding Dr. Bradfords  
November 8, 2019 note excusing her from work for four weeks. The HSE administrator  
8
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
documented that the worker said that she needed time off from work due to stress which was  
related to personal issues and confirmed that her need for further time off was not work related.  
The HSE administrator noted that the worker made it clear during this discussion that she did  
not want to travel to the employer’s head office to complete light duties due to the distance  
between that office and her home. The HSE administrator wrote:  
She sent a text later that evening to myself and the HSE manager contradicting  
everything we discussed on the phone and now stating that she is not capable of  
commuting two hours [a] day to [employers head office] and the thought of being  
in traffic makes her uneasy and anxious. Also she is burnt out due to her being  
on nights for three months and balancing being a parent to her two small sons.  
She says she is still sore from the accident and is tensing up and she still has a  
headache (which is the first I have heard as she always told me she felt fine).  
She says she is afraid to return to work and needs some help due to near misses  
on the project she was working on and due to near misses and stress from being  
a traffic control person over the last ten years.  
[38]  
[39]  
On November 13, 2019 the HSE administrator offered the worker sedentary office duties in one  
of the employers offices closer to the workers home. The employer also offered to pay for a  
taxicab to take the worker to and from that office in order to alleviate the stress of driving.  
In a telephone memorandum dated November 18, 2019, a Board officer documented that the  
worker said that she was unable to do the online courses/computer work that the employer had  
offered to her due to ongoing and persistent headaches and the fact that working in front of a  
computer screen made her headaches worse. The worker also advised the Board that she was  
having anxiety and panic attacks as a result of the work incident and was feeling harassed by  
her employer who called, texted and emailed her almost every day. The worker advised that she  
had been referred to a psychiatrist.  
[40]  
In a telephone memorandum dated November 22, 2019 a Board officer documented that the  
worker said that she continued to have neck and mid to lower back symptoms as well as  
headaches and that she was feeling stressed, uneasy, afraid and anxious to return to work due  
to road safety and many near-miss accidents. The worker advised that she had anxiety and  
panic attacks and was on a cancellation list to see a psychiatrist. The worker also said that she  
was dealing with a number of personal stressors. The worker said she felt harassed by the daily  
phone calls/texts/emails that she was receiving from her employer which started as early as  
6:30 a.m. and ended as late as 9:00 p.m. but advised that she was afraid of losing her job if she  
did not return to work soon. The worker said that this was causing her additional stress as she  
needed to be employed in order to support her children. The worker advised that it was her goal  
to return to work in the next two weeks. The Board officer advised the worker that she had  
determined that the worker was entitled to wage-loss benefits from October 28 to November 7,  
2019 but needed to review Dr. Bradfords November 8, 2019 medical report before she could  
9
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
determine whether the worker was entitled to additional wage-loss benefits. The worker  
responded to this by advising the Board officer that she did not want to claim compensation for  
ongoing wage-loss benefits, or for her stress, anxiety and panic attacks, because she was afraid  
of angering her employer and losing her job.  
[41]  
[42]  
In a chart note dated December 5, 2019, Dr. Bradford indicated that the worker was still  
medically incapable of working full duties, full time due neck and upper back pain and  
depression? acute stress reaction.”  
During a December 12, 2019 appointment with Dr. Bradford, the worker reported that her  
personal stressors continued and that her employer was trying to fire her because she had filed  
a claim with the Board. Dr. Bradford noted that the worker had increased her anti-depressant  
medication and said that her mood was a bit better. In terms of her physical injuries,  
Dr. Bradford documented that the worker had ongoing neck and back pain post-MVA, with her  
lower back being slightly improved. She also noted that the worker said that she had been using  
her arms more and was now experiencing shoulder soreness. On examination, Dr. Bradford  
documented that the workers back was tender from C1 to L5, that she had para-spinal  
tenderness and pain with shoulder abduction, extension, and rotation but full shoulder range of  
motion. The worker was noted to be waiting for a psychiatric assessment with reproductive  
mental health and was attending physiotherapy every two weeks. Dr. Bradford diagnosed the  
worker with a soft tissue injury and an anxiety/depression flare. She opined that the worker  
was still medically incapable of working full duties full time due to neck and upper back pain and  
depression vs. acute stress reaction.  
[43]  
[44]  
On December 18, 2019, the worker advised a Board officer that she had ongoing stress related  
to the work incident and requested additional wage-loss benefits.  
On December 19, 2019 the worker contacted the Board and requested that she be provided  
with wage-loss benefits for the period December 2 to 16, 2019, specifically. The worker advised  
that she had injured both of her shoulders pulling herself up from the couch due to  
compensating for her ongoing neck and back injuries. The worker said that she could probably  
do light duties but this would depend upon her shoulder symptoms.  
[45]  
[46]  
In December 2019 the Board referred the worker for resiliency counselling.  
On January 6, 2020, the worker was assessed by a Dr. Laban, a psychiatrist at a reproductive  
mental health program. Dr. Laban noted that the worker reported being very anxious all the time  
and worrying constantly that something was going to happen to her baby. She also noted that  
the worker reported experiencing intrusive thoughts at night and panic attacks. Dr. Laban said  
that the worker indicated that her anxiety had begun four years ago following the birth of her first  
child then worsened after the birth of her second child two and a half years ago. Dr. Laban  
reported that the worker was anxious about her future noting that she was currently involved in  
10  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
a custody dispute with her childs father and had been told following a recent ultrasound that  
she needed a biopsy to rule out breast cancer. She also advised that the worker reported  
feeling overwhelmed by all of the stressors in her life. Dr. Laban diagnosed the worker with a  
Generalized Anxiety Disorder and noted that she was at risk for recurrent post-partum  
depression. She devised a treatment plan for the worker and continued to follow her clinically.  
[47]  
[48]  
In a physicians report dated January 22, 2020, Dr. Bradford noted that the worker was  
financially stressed and had ongoing anxiety related to the work accident. She also reported that  
the worker had ongoing physical symptoms which were affecting her ability to function and  
perform her daily activities. Dr. Bradford noted that the worker had started seeing a counselor  
about her anxiety the previous week.  
During a January 23, 2020 telephone conversation a Board officer told the worker that she had  
reviewed the workers conversations with another Board officer and that it was her  
understanding that the worker was claiming for time lost from work which was related to  
personal issues and stressors. The worker told the Board officer that this was incorrect, that she  
was stressed and had anxiety and panic attacks because she had almost died (in the work  
incident). The worker said that she had been stressed about workplace safety for the past three  
months, had several near misses and had watched other co-workers deal with the same safety  
issues. When the Board officer spoke to the worker again later that day the worker admitted that  
she had stress prior to the work incident, but advised that she now had anxiety and panic  
attacks. The worker said that the other things in her life were stressful, but did not give her the  
symptoms the work incident did. The worker said that as a result of the work incident she  
almost didnt make it home, and her kids would have had no one to take care of them.The  
worker further advised that before the work incident she was also stressed and anxious at work  
because of work and concerns which she said none of her managers or supervisors would take  
seriously. The worker advised that following the work incident her employer harassed her every  
day for three weeks trying to get her back to work.  
[49]  
In a February 16, 2020 mental health resiliency support service summary report, registered  
clinical counsellor Ms. Weibelzahl documented that the worker presented as highly anxious and  
distraught at having been struck in her work vehicle while working as a lane closure supervisor  
on the night shift on a major highway. She said that the worker indicated that she and her staff  
had several close callsin the days preceding the work incident and that the worker had  
requested additional support from her employer which was not always forthcoming.  
Ms. Weibelzahl indicated that the worker believed that her advocacy for safety supports resulted  
in her being categorized as a difficult employee.  
[50]  
Ms. Weibelzahl reported that the worker said that on the night of the work incident she was  
looking in her rear view mirror when she saw a vehicle being driven in the direction of six of her  
employees. She advised that the worker described how she repositioned her work truck so that  
this vehicle hit her truck rather than her staff. She noted that the worker referred to this as  
11  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
taking one for the team. However she also noted that as time passed the worker came to  
realize that she could have lost her own life as a result of this incident. Ms. Weibelzahl indicated  
that the worker described feeling terrified, panicky (especially while driving), having intrusive  
thoughts and images of the accident, feeling jumpy, on guard (hypervigilant), avoidant of her  
workplace, having a rapid heart rate, an inability to catch her breath, sleep difficulties and poor  
concentration.  
[51]  
Ms. Weibelzahl documented that the worker reported receiving phone calls from the employer  
demanding that she come into the office and do office work even though she was in pain  
following the work incident. She noted that the worker said that these phone calls began at  
6 a.m. and continued until late in the evening. Ms. Weibelzahl documented that the employer  
had sent the worker videosto watch which showed scenes from other MVAs. She documented  
that the worker felt forcedby her employer to watch these videos and reported experiencing  
additional anxiety because she felt traumatizedby the content. She noted that the worker said  
that this activity worsened her condition rather than helping her recovery. Ms. Weibelzahl  
administered a standardized inventory test and noted that the workers score was consistent  
with Post-Traumatic Stress Disorder. She advised that the worker would benefit from additional  
psychological support.  
[52]  
[53]  
On March 19, 2020, the workers representative requested that the Board adjudicate anxiety as  
a compensable consequence of the workers October 28, 2019 work injury.  
In a decision dated May 13, 2020 the Board determined that the worker did not have a  
compensable psychological condition which had been caused or aggravated by the October 28,  
2019 work incident and that the worker had not developed a compensable psychological  
condition as a consequence of her accepted work injuries. The basis for the denial was  
evidence of a pre-existing mental health condition, significant additional stressors contributing to  
emotional distress, and a reported lack of direct evidence connecting the workers mental health  
issues to her October 2019 MVA. Particular weight was given to the fact that the psychological  
assessment conducted by Dr. Laban in January 2020 did not directly identify the October 2019  
MVA or injury as a causal factor.  
[54]  
The worker requested a review of the Boards May 13, 2020 decision letter. In a Review Division  
decision dated December 2, 2020, a review officer said that the purpose of Dr. Laban’s  
January 6, 2020 psychological assessment was to identify and treat the workers psychological  
symptoms in order to mitigate their impact on her pregnancy and post-partum period; that it was  
not the purpose of Dr. Labans assessment to determine whether the worker had developed or  
aggravated a psychological condition as a result of her October 2019 MVA or accepted injuries.  
As a result, the review officer concluded that there was insufficient information before her by  
which to determine if the worker had a compensable psychological condition and referred this  
issue back to the Board for further investigation and decision.  
12  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[55]  
In a chart noted dated September 9, 2020 Dr. Bradford noted that the since her MVA the worker  
had been having panic attacks and was now having a hard time driving. She said that the  
worker reported that she was angry when she did drive and people were carelessbut had to  
drive her son to a lot of appointments. She noted that the worker said that she could feel the  
impact of other cars when driving and found it exhausting as she had to drive her son to  
appointments four days per week and the drive was 45 minutes each way. The worker said that  
she dealt with this by holding her breath but this could make her feel lightheaded. She said that  
she had to pull over about once every time she did this drive due to anxiety or feeling  
lightheaded. She indicated that she feels helpless when in the vehicle with her kids, felt like all  
could be taken away from her quickly if she was in an accident. Dr. Bradford also noted that the  
worker said that she also could not be a passenger in a vehicle because it made her too  
anxious. Dr. Bradford documented that when the worker was transitioning back to work shortly  
after the October 2019 MVA, she had watched a safety video in which someone got hit and that  
this terrified her. Dr. Bradford indicated that the worker had asked Dr. Laban, her psychiatrist at  
reproductive mental health, for a note regarding the worsening of her mental health due to the  
October 2019 MVA but Dr. Laban did not have this information in her notes. According to  
Dr. Bradford the worker said that she thought that her fears associated with driving/being  
around cars would get better with time off work but had not. Dr. Bradford noted that the worker  
was currently on maternity leave which was scheduled to end in February 2020. Dr. Bradford  
reported that the worker said that she was not able to sleep because she could not shut her  
brain offbut was not taking sleeping pills because she was concerned that they were addictive.  
Dr. Bradford indicated that she reassured the worker that trazadone was not an addictive  
medication and encourage her to try it. Dr. Bradford diagnosed the worker with anxiety flare  
after MVA at work and queried whether the worker was suffering from post-partum depression.  
She noted that the worker had a history of Generalized Anxiety Disorder with ongoing insomnia  
and panic attacks. Dr. Bradford said that it was probably too early to look at a return to work as  
the workers anxiety disorder was not under good control.  
[56]  
In October 2020, the worker underwent a psychiatric consultation with reproductive mental  
health psychiatrist Dr. Singh who noted that the worker reported having had a motor vehicle  
accident when she was pregnant; she was rear-ended by a drunk driver while at work. She has  
been struggling with PTSD symptoms from that.Dr. Singhs opinion was that the worker had  
been struggling with what appears to be symptoms of anxiety, depression, and PTSD.The  
following month, November 2020, Dr. Singh wrote that she felt quite overwhelmed in her  
day-to-day life as a single parent with three young children including an eight-month-old baby  
and an older child with autism and ADHD. The following month, Dr. Singh wrote that the worker  
was still struggling with irritability and anger on a day-to-day basis, usually triggered when her  
children did not listen to her.  
[57]  
In a chart note dated December 23, 2020 Dr. Bradford noted that the worker was due to return  
to work soon. She noted that reproductive mental health would not talk to the worker about her  
MVA but indicated that the worker had received five counselling sessions through the Board  
13  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
(with Ms. Weibelzahl). Dr. Bradford also noted that the worker had seen a trauma counsellor  
following a prior MVA. Dr. Bradford said that the worker would like to talk to someone regarding  
her anxiety about returning to work due to her job because she felt unsafe at work. Dr. Bradford  
recommended that the worker take further time off due to acute stress reaction symptoms which  
were partly triggered by the stress from her October 2019 MVA.  
[58]  
On May 11, 2021 the worker underwent a formal psychological assessment conducted by  
registered psychologist Dr. Saruk and was diagnosed with a Major Depressive Disorder,  
Recurrent, Moderate (Aggravation of pre-existing condition), and an Adjustment Disorder with  
mixed anxiety and depressed mood. Dr. Saruk noted that the worker described a longstanding  
history of depression dating back to her early 20s, as well as post-partum depression, and had  
periodically been treated with psychotropic medication. He said that the workers most recent  
depressive episode appear to have occurred around 2018, coinciding with the birth of her son  
and the decision to end an abusive relationship.  
[59]  
Dr. Saruk noted that thereafter the workers depressive symptoms had moderated somewhat  
then significantly worsened following the October 28, 2019 MVA with the worker developing  
significant anxiety symptoms not typically associated with her depressive episodes. This  
included fear and anxiety associated with driving or working around motor vehicles. Dr. Saruk  
indicated that the worker expressed a desire to return to work, though she stated that she does  
not believe she will be able to return to her career as a flagger due to ongoing fear and anxiety.  
He noted that the worker expressed significant sadness with this realization, but stated that she  
felt as though she got lucky after so many close calls. Dr. Saruk said that the worker stated  
that she felt psychologically ready to begin the vocational rehabilitation process, and felt as  
though a return to work would be good for her mental health. He noted that the worker  
expressed concern regarding her capacity to commute to a job due to ongoing driving-related  
anxiety but also noted that the worker described being able to do essential driving, particularly  
during non-busy times.  
[60]  
Dr. Saruk indicated that the worker reported a moderate degree of functional impairment  
associated with her depression and anxiety. He opined that the workers depressive symptoms  
appeared longstanding in nature, and variable dependent on a number of stressors. Dr. Saruk  
said that other factors likely contributing to the nature and severity of the workers depression  
included the physical discomfort and functional limitations which the worker reported  
experiencing as a result of her work injury, the stress associated with being a single mother, a  
history of domestic abuse and sexual trauma, and financial concerns. On the basis of the  
foregoing, Dr. Saruk opined that the October 2019 MVA had likely played only a moderate role  
in the etiology of the workers current depressive episode.  
[61]  
Dr. Saruk noted that the worker appeared to have developed more novel anxious symptoms  
following her 2019 MVA, including anticipatory and situational fear, anxiety and panic  
associated with driving. He noted that these symptoms were not present to the degree of  
14  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
adversely impacting the worker personally or vocationally prior to the 2019 MVA. As such,  
Dr. Saruk said that it was his opinion that the workplace incident occurring in October 2019  
played a major role in the development of the workers Adjustment Disorder.  
[62]  
Dr. Saruk opined that the combination of an aggravation of the workers depressive symptoms  
and the onset of new anxious symptoms resulted in significant impairment in the workers  
personal, social and vocational functioning. In terms of functional limitations, Dr. Saruk noted  
that the workers depressive disorder would likely result in temporarily reduced capacity to  
perform specific tasks or activities as well as the potential for injury due to inattention and/or  
poor judgment. As a result, Dr. Saruk opined that the worker had temporary limitations with  
respect to work that involved a high degree of time pressures and high expectations for  
productivity, sustained mental effort and concentration, and outside distractions.  
[63]  
[64]  
[65]  
With respect to medical restrictions, Dr. Saruk noted that the worker remained vulnerable to  
temporary deterioration when exposed to perceived traumatic incidents or incidents that  
resemble past traumatic work incidents (i.e., incidents involving motor vehicles or traffic). As a  
result, he recommended that the worker be temporarily restricted her from returning to work as  
a flag lane closure supervisor. He also recommended that the worker be temporarily restricted  
from returning to any work until she had participated in a number of sessions of individual  
therapy with an observed reduction in symptoms.  
Dr. Saruk noted that the worker had participated in limited treatment to date to address her  
psychological conditions. He said that a minimum of one block of individual therapy specifically  
targeted at decreasing/alleviating current depressive and anxiety symptomatology appeared to  
be warranted. He said that a graduated return to work could be implemented after there had  
been an observed reduction in the workers psychological symptoms noting that the workers  
psychological treatment provider could assist in determining return-to-work readiness in the  
future.  
In a telephone memorandum dated June 7, 2021, a Board officer noted that Dr. Saruk had  
called and confirmed that the psychological conditions with which he had diagnosed the worker  
were causally related to the October 2019 work incident/MVA, not a compensable consequence  
of the physical injuries that the worker had sustained as a result of that incident. The Board  
officer and Dr. Saruk reviewed the psychological restrictions and limitations identified by  
Dr. Saruk in light of the light duties which the employer had offered to the worker before.  
Dr. Saruk explained that the worker would have temporary reduced mental capacity and  
cognitive difficulties (such as decreased processing speed and mental productivity). Dr. Saruk  
said that the worker would not be precluded from participating in the light duties offered by the  
employer in November 2019 noting that they were administrative in nature (except for safety  
videos) but he recommended that the worker be introduced to these gradually and with ongoing  
support.  
15  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[66]  
[67]  
On June 23, 2021 a Board officer spoke to the worker about what precluded her  
(psychologically) from participating in the light duties offered by her employer in November 2019  
and documented his account of that conversation in a telephone memorandum of the same  
date. The Board officer acknowledged that the worker reported difficulties driving due to anxiety,  
but also noted that the employer had offered the worker taxi transportation.  
The worker told the Board officer that one of the safety videos the employer gave her to watch  
had a person losing his head as it was struck by a mirror. She felt that after the MVA, her  
employer was constantly harassing her with emails, text messages and phone calls (average  
three per day) asking her to return to work. She was hoping for just a week off work so she  
could take care her of herself before returning to work but the employer declined even when  
she provided it with a doctors note. The worker said that her employer made it more difficult  
when she chose to file a Board claim. The worker said that during one of her conversations, her  
four-year-old child asked if she was going to die.  
[68]  
[69]  
The worker told the Board officer that the employers workplace was a toxic environmentand  
described labour relations issues related to occupational health and safety. The worker made it  
clear that it was her belief that the October 2019 MVA would not have happened if the employer  
had followed proper safety protocols and that the employer was responsible for ruining her  
career and causing much hardship in her life.  
According to correspondence which the employer submitted to the Board on April 1, 2022 the  
worker resigned from her employment with the accident employer on June 30, 2021.  
WCAT Oral Hearing  
[70]  
[71]  
At the outset of the oral hearing of this matter, the employers representative advised that he  
had no questions for the worker. I advised him that it remained open to him to ask the worker  
questions after she provided her testimony on direct examination.  
The worker testified that on October 28, 2019 she was working as a lane closure supervisor with  
a night crew on a local highway. The worker said that she was sitting in her work vehicle at the  
beginning of a lane closure acting as a buffer between oncoming traffic and the road crew in  
order to keep them safe as they were taking apart traffic delineators cones, barrels etc. The  
worker advised that she had a radio and the crew members had radios and that it was her job to  
let them know if she had any concerns. The worker advised that she watched traffic via her side  
and rear view mirrors for traffic coming at usto make sure that they were going slow, not  
speeding or driving erratically. The worker said that she also used a mixture of brake lights and  
acceleration to get out of the way of someone who was not paying attention. The worker said  
that she would tap her horn to let her co-workers know if there was a problem.  
16  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[72]  
[73]  
[74]  
The worker testified that at approximately 4 a.m. on October 28, 2019 she saw in her side mirror  
that there was a car coming towards us pretty fast and not moving out of our lane. The worker  
noted that it was dark so she tapped her brakes, put on her four-way flashers and her arrow  
board in order to guide the other car out of the lane while simultaneously trying to keep an eye  
on the approaching vehicle and where the other members of her crew were. The worker testified  
that this other car continued to approach without moving out of the lane that she and her crew  
were in and she clicked her radio to let the crew know and as soon as she heard screeching  
tires approaching her she accelerated, thereby managing to avoid a very serious accident.  
The worker testified that she got out of her truck after being hit by the other vehicle. She advised  
that the driver of the other car was backing up and preparing to flee the scene. The testified that  
she radioed her crew to help and one of the crew members jumped on the other drivers vehicle  
to stop her from leaving the scene of the accident. The worker testified that her crew managed  
to move the other vehicle over to the shoulder and took the other drivers keys. The worker  
testified that the other driver was intoxicated, belligerent, and angry and screamed at the worker  
that she should have gotten out of her way that I was just a stupid flagger and I didnt matter,  
that my life didnt matter. The worker said that the police showed up right away.  
The worker testified that immediately following this accident she felt really scared and sick to her  
stomach. She said that she experienced an overwhelming headache and couldnt stop crying.  
She said: I was just completely in shock.  
[75]  
[76]  
The worker testified that at the time of this workplace incident she was four and one-half months  
pregnant.  
The worker testified that she met with her superintendent the following day and provided him  
with a statement regarding the MVA. She said that he advised her to go see a doctor and she  
told him that she would try to make an appointment at a walk-in clinic as her regular family  
physician, Dr. Bradford, booked appointments weeks in advance, and was almost retired.  
[77]  
The worker testified that she was unable to see a doctor on October 29, 2019 because the  
walk in clinic was full.  
.
[78]  
The worker testified that she was worried about money so on October 30, 2019 she told her  
employer that she would go into work. She advised that the employer offered her light duties  
supervising in her truck. The worker testified that she really wanted to get back to work because  
people were counting on her but she said:  
I just couldnt, I just couldnt get out the door. I couldnt get up and get my shoes  
on and go to work. The work truck was in my yard, the work truck I was assigned  
was in my yard and we ended up having to get someone to pick it up because I  
just couldnt go.  
17  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[79]  
The worker testified that she managed to get an appointment at a clinic on October 30, 2019.  
She advised that the clinic doctor that she saw on October 30, 2019 told her that there was not  
really much she could give the worker for pain so she recommended that the worker use Epsom  
salts, take warm baths and take care of herself for a few days. The worker also said that this  
physician advised her to take a few days off work than try light duties. The worker said that this  
was not what she wanted to hear because she was worried about money and wanted to get  
back to work.  
[80]  
[81]  
The worker testified that she told her superintendent multiple times that she would come in and  
then within a couple hours she would just cancel and say that she could not make it and give an  
excuse. I was just too embarrassed. I didnt know what was going on with me.The worker  
testified that she had daycare for both her children, an arrangement where they stayed with her  
mother at night so that she could got to work but she just couldnt leave.  
In response to being asked how she was feeling at that time the worker stated:  
I was super anxious and I felt like I was unravelling I didnt want to leave my  
home, I felt like I had just been given a grace on a long career in traffic control  
that almost didnt end well for me and I couldnt understand. Id always gone to  
work through everything, through kids. Id never called in sick or took time off for  
my kids while I was employed there. I couldnt understand what was wrong with  
me and why I was fizzling and not able to function, even to take care of myself.  
[82]  
In response to being asked if she told the employer how she was feeling that week the worker  
became tearful and said:  
I didnt know what was going on. I didnt want to seem weak, at work for them not  
to have faith in me. Um I had a really good reputation in the traffic control  
industry; Id worked really hard to get where I was and I didnt want people not to  
trust me or be like the crazy lady that couldnt cope anymore. My job is to keep  
people safe and as soon as they dont trust me to do that then we have a  
problem and I just didnt know what was wrong with me and so [pause] I just  
used my kids as an excuse because I just didnt know why I couldnt do it. Ive  
always been able to do it and I couldnt do it anymore. And I just dont know why.  
[83]  
The worker said that she talked to the employer after she saw clinic physician Dr. Gill on  
October 30, 2019. She said that the employer had sent her a RTW form for a physician to  
complete which outlined modified light duties that it had available which involved coming into the  
office. The worker said that she and the employer talked on the phone about her doing some  
filing and other light duty tasks.  
18  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[84]  
In response to being asked why she went to see a doctor on November 2, 2019 the worker said:  
I was trying to avoid in office light duties. I didnt want to drive; I didnt feel  
comfortable driving all the way to the employers [head office] I didnt feel  
comfortable being submersed in with all of the managementand I just wanted  
to get out there. I figured in my head that as long as I was in a truck on the  
highway with no one around me and I had to have barely any in-person  
communication that maybe I could do it and you know I had no money coming in  
for my family, I have two kids to support and I didnt know how to exist without  
working. Ive always worked and sitting at home financially wasnt an option and  
in my head I figured it was better just to get back to work and get out there and  
then I was disappointed when they gave me another week of modified duties.  
[85]  
The worker testified that on November 2, 2019 she asked the doctor to clear her to return to full  
duties. When her representative asked the worker if she felt that she was ready to return to full  
duties at that point the worker replied:  
No. I just have little people that need me to work and I figured that maybe I would  
just snap out of it and they [pause] putting food on the table is more important to  
me than anything and I needed to provide for them and thats why I just really  
needed to go back to work.  
[86]  
[87]  
The worker testified that the she started light duties, doing online safety courses from her home  
on November 4, 2019. The worker said that she started one of these safety courses from home  
on November 4, 2019 but experienced some technical difficulties.  
In response to being asked by her representative how she felt while she was doing the online  
safety courses on November 4, 2019 the worker said:  
To be honest I was a little irritated that I have to be that I was in a situation where  
it had come to this I would rather have been working and some of the courses  
went in detail over pinch points and safety videos and little reenactment videos  
regarding how to stay safe and I could just feel myself holding my breath and  
getting anxious and I just, just and it was like all the alarm bells going off  
internally and then mixed with a couple of hours of computer online issues with  
the computer program that I was taking I just absolutely lost it.  
[88]  
In response to being asked why she did not complete the courses during the period November 4  
to 7, 2019 the worker stated:  
I was increasingly unwell. Things were getting worse in my headspace and I just  
um I didnt have an answer. I think I used my kids as an excuse one or two times  
19  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
and at that point by November 5 I just needed to make it to a doctors  
appointment and just talk to her and see what she thought why I wasnt  
functioning I dont think I showered for a few days I wouldnt leave the house I  
was just super anxious and really depressed and I just needed to be, I just  
wanted to be left alone. I just needed a few days to just decompress and breathe  
and I was just becoming an increasing mess as time continued.  
[89]  
[90]  
In response to being asked why she did not go into work in the employers office the worker  
stated that she did not feel comfortable driving because the employers head office was located  
in [a different municipality] and that is where they wanted her to do the in-office modified duties.  
The worker testified that she had not even been able to leave the house at that point. The  
worker testified that the first time she drove following the work incident was on November 8,  
2019 when she drove to Dr. Bradfords office. The worker said that driving there stressed [her]  
out beyond belief.”  
The worker testified that when she saw her primary care physician, Dr. Bradford on  
November 8, 2019 Dr. Bradford told the worker that she was worried about her. The worker said  
that Dr. Bradford suggested that she was a bit traumatizedand asked the worker if she could  
get any counselling. The worker said that this wasnt an option for her financially. The worker  
said that Dr. Bradford wanted to increase the low dose of anxiety medication that the worker  
was on but was worried about doing this because she was pregnant so she referred the worker  
to the only therapy that the worker could qualify for which was reproductive mental health. The  
worker testified that Dr. Bradford recommended that she take four weeks off from work because  
her mental health was deteriorating and she was feeling suicidal.  
[91]  
In response to being asked why she told the employer when they contacted her about light  
duties that she could not do them for other personal reasons the worker said:  
I didnt want to lose my job. I didnt want to ever have doubt because of my  
capabilities or my abilities because of a mental health issue. Ive never taken  
time off in nine years. Ive just always gone to work and I didnt want to discredit.  
Id rather use my kids as an excuse because thats what parents do or something  
instead of admitting that I was completely not okay and I didnt want to be the  
crazy lady at work when I was able to go back. I just figured it was just temporary  
and it would buy me a couple of days until I got myself back together again and  
then I could go back to work  
[92]  
After the worker completed providing her testimony the employers representative reiterated that  
he had no questions which he wished to ask the worker on cross-examination. He also advised  
that the employer did not intend to call any witnesses to testify on the employers behalf or  
submit any evidence on the employers behalf. Instead, he advised that the employer chose to  
rely on the claim file information as documented.  
20  
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Oral Hearing Submissions  
Workers Submission  
[93]  
The workers representative submitted that the worker was temporarily disabled by her neck,  
back and psychological injuries/conditions beyond November 4, 2019. He noted that wage-loss  
benefits had been denied in relation to the workers physical injuries since November 4, 2019  
and that the Review Division had determined that wage-loss benefits should be allowed in  
relation to the workers compensable psychological conditions commencing November 8, 2019.  
The representative submitted that the worker agreed with the Review Divisions decision to  
allow wage-loss benefits commencing November 8, 2019 and requested that that decision be  
confirmed. The representative also submitted that the worker was seeking a finding that she  
was entitled to wage-loss benefits for her accepted physical injuries.  
[94]  
The workers representative noted that Dr. Saruk commented in his May 31, 2021 psychological  
assessment report that the workers Personality Assessment Inventory clinical profile suggested  
that she was a person with significant thinking and concentration problems and that her thought  
processes were likely to be marked by confusion, distractibility and difficulty concentrating. The  
representative also noted that Dr. Saruk commented on the workers psychological restrictions  
and limitations stating that the worker reported ongoing cognitive difficulties, including poor  
attention and concentration, poor memory and distractibility, as well as low energy, low  
motivation and decreased self-confidence which would likely result in a temporary reduced  
capacity to perform specific tasks or activities and that she would likely have temporary  
limitations in parts of a job that involved sustained mental effort and concentration and outside  
distractions. The representative further noted that Dr. Saruk opined that the worker should be  
temporarily restricted from returning to work until she had participated in a number of sessions  
of an individual therapy program and there had been an observed reduction in her symptoms.  
[95]  
The workers representative argued that Dr. Saruks opinion was supported by Dr. Bradfords  
chart notes and reports. He noted that in her December 23, 2020 chart note, Dr. Bradford  
indicated that when she assessed the worker on November 8, 2019 she had diagnosed her with  
an acute stress reaction and advised her to take four weeks off of work. The representative  
noted that Dr. Bradford indicated that the worker required time off work, in part, because the  
workplace incident had increased the workers anxiety by triggering in her a fear of what would  
have happened if she had been severely injured or worse as a result of that MVA and was not  
around for her children.  
[96]  
The workers representative noted that the light duties which the employer had offered to the  
worker in November 2019 involved sitting at a computer screen for eight hours per day,  
reviewing and remembering information, taking tests and watching safety videos of workplace  
incidents. The representative submitted that these light duties were harmful to the worker and  
not within her functional limitations and medication restrictions.  
21  
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
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[97]  
[98]  
[99]  
The workers representative submitted that the workers attempt to participate in these duties  
aggravated her physical and psychological symptoms, noting that the screen time increased her  
headaches and she could not sit for that long due to the pain in her back and neck.  
The workers representative submitted that given the symptoms that the worker was  
experiencing and the recommendation of her doctor that she remain off work following the  
workplace incident that it was reasonable for her to refuse the employers light duty offers.  
The workers representative encouraged me to assess the workers credibility. He submitted  
that the worker had been honest, candid and forthright and that her evidence was generally  
consistent with the medical evidence and evidence on file and where inconsistent the worker  
had provided a reasonable explanation. Given these factors, the representative submitted that  
I should accord significant weight to the workers testimony.  
[100] The workers representative submitted that Dr. Saruks psychological assessment, Dr. Bradfords  
reports and the workers credible testimony supported the conclusion that the light duties offered  
to the worker on November 3, 2019 were not suitable, that she was temporarily disabled due to  
her accepted neck and back injuries and psychological conditions as of that date3 and that as a  
result she was entitled to wage-loss benefits from November 4, 2019.  
Employers Submissions  
[101] The employers representative submitted that the light duties that the employer offered to the  
worker in November 2019 were suitable, that there were no medical or psychological reasons  
for the workers refusal(s) to participate in those light duties; that the worker chose not to  
participate in those light duties because she was overwhelmed by personal matters which were  
not work related; and therefore her refusal(s) to do so were unreasonable. The representative  
submitted that the worker and her representative had not demonstrated that the Board made an  
error in law and policy merely that they disagreed with the Boards findings.  
[102] The employers representative advised that the employer disagreed with the workers oral  
hearing testimony. The representative submitted that the workers testimony appeared to have  
evolved in response to appellate system findings and urged me to rely on the evidence more  
temporally related to the issues under appeal.  
[103] The employers representative submitted that the light duties which the employer offered to the  
worker in November 2019 were suitable and that the worker chose not to do those modified  
duties for preventative reasons and/or because she was overwhelmed with personal matters  
unrelated to her work. He submitted that providing the worker compensation for missing time for  
work for preventative reasons would not be consistent with compensation law and policy.  
3
see footnote 6  
22  
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Tel: (604) 664-7800 | 1-800-663-2782  
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[104] The employers representative argued that there were no medical or psychological reasons  
provided for the workers refusal(s) of the employers light duty offers in November 2019 until  
Dr. Saruk indicated in his May 2021 psychological assessment report that she was suffering  
from a psychological disability in November 2019.  
[105] The employers representative took issue with the fact that the review officer relied upon  
Dr. Saruks May 2021 report in order to come to the conclusion that the October 2019 work  
incident was of causative significance with respect to two compensable psychological conditions  
and then rejected Dr. Saruks opinion regarding the workerfitness to engage in the light duties  
which the employer offered to the worker.  
[106] The employers representative suggested that this demonstrated that the review officer was  
committed to finding the worker was psychologically disabled regardless of what the evidence  
said, thereby giving rise to a reasonable apprehension of basis. The representative stated:  
You cannot logically pick and choose to serve an agenda as this does not meet  
Board law and policy and the standard of evidence. Dr. Saruk did both the  
analysis of the mental disorder and the modified duties based on personal  
contact with the worker. Its not a theoretical file review alone but a detailed  
psychological report and after this detailed report contains a psychological  
analysis of the duties. Both of these the employer agrees with and feels is sound.  
The employer says that yes, based on Dr. Saruks report there is a psychological  
disorder, the employer does not challenge that, but the employer also says  
based on Dr. Saruks report that there was no time loss because the modified  
duties were appropriate.  
[107] The employers representative submitted that there is no contrary opinion from any other doctor  
with a specialty in psychology to refute Dr. Saruks opinion regarding the workers psychological  
fitness to engage in light duties in November 2019. He stated:  
If the Vice Chair accepts Dr. Saruks report that the worker had a mental disorder  
arising out of and in the course of the employment then the Vice Chair should  
also accept the opinion from the same doctor that the duties were in fact  
reasonable. Any other conclusion is not supported by the evidence and is  
self-contradictory from a logical perspective.  
[108] The employers representative advised that the employer rejected the review officers  
conclusion that the light duties that the employer had available as of November 8, 2019 were  
not suitable for the worker because they did not include the graduated return to work  
recommended by Dr. Saruk. The representative advised that the employer has great experience  
in adapting and modifying return-to-work plans in order to accommodate anything that comes  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
up. He suggested that the employers ability to do so in this case was frustrated by the workers  
lack of communication and unwillingness to be honest about why she did not want to come back  
to work.  
[109] The employers representative advised that the employer was relying upon its February 26,  
2020 submissions to the Review Division under Review Reference #R0259988; its July 31,  
2020 submissions to the Review Division under Review Reference #R0264747; its October 19,  
2020 submission to the Review Division under Review Reference #R0267947, and its  
October 26, 2021 and November 4, 2021 submissions to the Review Division under Review  
Reference #R0281537.  
[110] In its February 26, 2020 submissions to the Review Division under Review Reference  
#R0259988, the employers representative argued that the Boards decision to pay the worker  
wage loss benefits for the period November 4 to 7, 2019 should be overturned because the  
employer had offered the worker medically suitable light duties for the period November 4 to 7,  
2019 which the worker refused due to a plethora of personal excuseswhich were not work  
related and were therefore unreasonable within the meaning of policy item 34.11.  
[111] In its July 31, 2020 submission to the Review Division under Review Reference #R0264747, the  
employers representative noted that in its decision letter dated February 13, 2020 the Board  
determined that the worker was not entitled to wage-loss benefits beyond November 7, 2019  
because the light duties which the employer had offered to her for that period were suitable and  
her refusal of those duties was unreasonable. The representative advised that the employer  
accepted and adopted the rationale outlined by the Board in its February 13, 2020 Board  
decision for denying the worker wage-loss benefits beyond November 7, 2019. The  
representative submitted that the employer offered the worker appropriate work that was  
medically suitable and she refused it due to a plethora of personal excuses.  
[112] The employers representative noted that the worker was dissatisfied with the Review Divisions  
decision to deny her wage-loss benefits beyond November 7, 2020 but had not provided any  
explanation to overturn the decision. The representative stated:  
For a decision to be overturned there must exist an error in the fact pattern used,  
the application of Board law to that fact pattern or the application of Board policy  
to the established fact pattern. The worker and the worker representative has not  
demonstrated an error in fact, law or policy.  
[113] In its October 19, 2020 submission to the Review Division under Review Reference #R0267947,  
the employers representative submitted that the MVA that the worker as involved in on  
October 28, 2019 was minor in nature resulting in no damage to the buffer truck that she was  
driving. The employers representatives submitted that paramedics were not called to the scene  
of this MVA because no serious injuries were sustained in this MVA. The employers  
24  
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
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representative submitted that the worker never told the employer that she was paralyzed with  
fear and dreadby the idea of driving. He submitted that the worker had no trouble driving to  
medical appointments or driving her son to behaviouralclasses following the work incident.  
[114] The employers representative submitted that that the worker falsely claimed that the employer  
forwarded her videos to watch which depicted scenes from other MVAs which traumatized her.  
He submitted that the online safety courses that the employer assigned the worker to complete  
from home were approved by the BC Construction Safety Alliance. The employers  
representative submitted that if the one was to research these courses they would see that they  
do not contain any videos of crashes or MVAs or any other traumatic videos or images.  
[115] In support of its position with respect to Review Reference #R0267947, the employer provided a  
letter from its HSE administrator dated October 26, 2021 in which she indicated that the worker  
had never mentioned to her that she was experiencing any of the psychological symptoms  
(including panic attacks, severe headaches and sleep deprivation) that the worker indicated in  
her October 4, 2021 review submission were the reasons that she could not continue with light  
duties after November 4, 2019. The HSE administrator said that the worker always cited other  
personal reasons as to why she could not complete the courses that were offered to her as light  
duties, such as her son being sick or needing to attend behavioural lectures for her son, etc.  
[116] The HSE administrator said that the worker only worked on one course regarding construction  
safety for half an hour on November 4, 2019, but did not complete it due to technical issues.  
The HSE administrator said that the worker was instructed to reach out to IT to get help with  
these issues but the worker did not. The HSE administrator queries how the worker could  
experience these psychological symptoms if she did not work on any online safety courses.  
[117] The HSE administrator stated that the employer tried to work with and accommodate the  
workers needs by letting her work from home for personal reasons, such as the fact that she  
said that she did not have daycare for her kids. The HSE administrator submitted that the  
worker applied for medical employment insurance for personal medical reasons and went on  
maternity leave around February/March 2020. The HSE administrator advised that after the  
workers maternity leave ended in the spring of 2021 the employer did not hear from her. The  
HSE administrator advised that if the worker had returned to work with the employer and still  
requires modified duties that the employer would have accommodated her as per its injury  
management program.  
[118] In its November 4, 2021 submission to the Review Division under Review Reference  
#R0281537, the employers representative argued that when the employer offered the worker  
light duties in November 4, 2019 which were medically suitable, the worker refused due to a  
plethora of personal excuses. The representative submitted that the worker was now arguing  
that she refused the employers offer of light duties because she was suffering from a mental  
disorder and not for personal reasons. He noted that the worker submitted that she had been  
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
advised by Drs. Bradford and Saruk not to return to work, and said that psychological  
restrictions and the presence of her children at home prevented her from doing computer  
coursework from home.  
[119] The employers representative noted that Drs. Bradford and Saruk had not commented that the  
light duties which the employer offered to the worker during November 2019 had exceeded her  
psychological restrictions or limitations; they had only stated that the worker could not work. The  
representative submitted that such blanket assertions were tantamount to advocacy and should  
be given little weight.  
Workers Rebuttal  
[120] In rebuttal the workers representative submitted that the worker interpreted Dr. Saruks May  
2021 opinion differently than the employer. The representative submitted that Dr. Saruks May  
2021 opinion supports the workers position that the light duties that the employer offered to her  
in November 2019 were not suitable given her psychological condition and does not support the  
employers position that the light duties offered were suitable.  
Post Oral Hearing Evidence and Submissions  
[121] Subsequent to the oral hearing of this matter, I became aware of relevant medical evidence  
which had been submitted to the workers claim file since the last time that WCAT had arranged  
for the parties to be provided with claim file disclosure (on February 28, 2022); specifically a  
Psychology Clinical Review and Opinion Report dated March 15, 2022 from registered  
psychologist Dr. Feehan in which he noted that Dr. Saruks description of the workers  
Adjustment Disorder with mixed anxiety and depressed mood made clear that much of the  
workers anxiety had a posttraumatic flavorwhich included fear and anxiety associated with  
driving or working around motor vehicles.  
[122] As a result, I asked the WCAT Registry to arrange for the parties to be provided with updated  
claim file disclosure. I also asked the WCAT Registry to advise the parties that I intended to rely  
upon Dr. Feehans March 15, 2022 report and invited the parties to provide me with further  
submissions regarding the issue to be decided on Appeal C in light of this new evidence.  
[123] In response to this invitation the employers representative provided a submission dated July 6,  
2022. He noted that in response to being asked by the Board to identify at what point the worker  
would have been psychologically capable of participating in the modified duties offered to her by  
the employer, Dr. Feehan had written:  
In February 2021, Dr. Singh noted that she accepted a job offer but then declined  
it as her sons behaviour started becoming more disruptive. This appears to  
suggest that but for the stressors of her special-needs son that she considered  
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WCAT Decision Number:  
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herself capable of work that did not involve work as a flag lane closure  
supervisor. I think this is our best available guide to her capacity for non-flag  
related duties.  
[124] The employers representative submitted that Dr. Feehans opinion supported the conclusion  
that the worker was impaired by her private life and not by the psychological conditions  
accepted under claim when the employer made and she refused its offers of selective/light  
duties.  
[125] In a written submission dated July 20, 2022 the workers representative submitted that  
Dr. Feehans report should not be accorded any weight on this appeal because it was based on  
flawed facts: specifically, Dr. Feehans misapprehension regarding the date when Dr. Saruk  
conducted his psychological assessment of the worker and whether that occurred before or  
after the worker was assessed by Dr. Singh. The workers representative further submitted that  
since Dr. Feehan did not provide an opinion regarding the workers ability to perform light duties  
in November 2019 that I should continue to rely on the opinions provided by Drs. Bradford and  
Saruk when deciding the issue under appeal.  
[126] The workers representative advised that it remained the workers position that her testimony  
coupled with Dr. Saruks psychological assessment and Dr. Bradfords reports supported the  
conclusion that the light duties offered to her by the employer in November 2019 were not  
suitable, that she was temporarily disabled beyond November 3, 2019, and would therefore be  
entitled to wage loss benefits beyond November 3, 2019.  
Preliminary Matters  
WCATs Substitutional Authority  
[127] The employers representative submits that the worker and her representative have not  
identified an error in fact, in law or in policy in the Board or Review Division decisions that they  
are seeking to have varied, only that they disagree with those decisions. He states that:  
For a decision to be overturned there must exist an error in the fact pattern used,  
the application of Board law to that fact pattern or the application of Board policy  
to the established fact pattern.  
[128] The employers representative is mistaken. Under section 308 of the Act WCAT has full  
substitutional authority. This means that WCAT has the jurisdiction to consider new evidence  
and/or reweigh the existing evidence and substitute its decision for the appealed decision or  
order in the absence of an identified error in law or policy.  
27  
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WCAT Decision Number:  
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Leading Questions  
[129] During the oral hearing of these matters, the employers representative objected twice to  
questions posed by the workers representative.  
[130] He registered his first objection to the following comments and question posed by the workers  
representative immediately after the worker testified that she was completely in shock”  
following the work incident:  
It sounds like an awful situation. You said a little bit about being in shock  
afterwards which I think anyone would be after an accident but could you  
describe a little bit more about how you were feeling after the incident?  
[131] The worker responded:  
I just felt first of all really scared that had I not reacted that way and avoided that  
collision that who knows what could have happened. I was scared and angry that  
if she hadnt come at me that she would probably killed all of the people standing  
on the highway that I was protecting going as fast as she was. And I was  
frustrated, that I felt like a profit was more important than our safety. I had  
expressed numerous concerns about that continued job, job site.  
[132] The employers representative explained that he was objecting to the nature of the workers  
representatives question including the fact that the workers representative talked about how  
horrible the work event was and the emotional elements of the incident. The employers  
representative said that he felt that the workers representative was leading the worker because  
now she was going outside of expressing her feelings into expressing an opinion about  
profitability versus safety and that is a characterization of the employer that is not accurate.”  
[133] I acknowledge that it was inappropriate for the workers representative to say it sounds like an  
awful situationand to suggest that anyone would bein shock after such an incident. However,  
I do not find that asking the worker to describe a bit more about how she as feeling after the  
work incident was a leading question as defined in item 11.5.1.1 of the MRPP. The workers  
representatives question was not a closed-ended question which invited only a yes or a no  
answer or a question which prompted or encouraged a particular answer.  
[134] I understand that the employers representative believes that the workers representatives  
question was intended to elicit the workers opinion that the employer prioritized profits over  
safety but I consider this to be unlikely. The purpose of the oral hearing was to determine  
whether the worker was entitled to wage-loss benefits as a result of the physical and  
psychological injuries which she sustained during the workplace MVA so questions regarding  
the workers state of mind following the subject MVA were well within scope. The fact that the  
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WCAT Decision Number:  
A2001487 (August 8, 2022)  
worker provided an answer to her representatives question which included her opinion  
regarding labour relations matters unrelated to these appeals does not persuade me that the  
workers representatives question was leading. As a result, I do not consider it necessary to  
disregard the workers answer to this question or accord it less weight.  
[135] The employers representative registered his second objection when the workers representative  
asked the worker: How was your concentration while doing these [online] courses?The  
employers representative stated that instead of asking the worker a general question about her  
experience when doing online safety courses from home the workers representative specifically  
identified what he wanted to hear.  
[136] I agree with the employers representative that the question asked by the workers  
representative in this instance was leading in that it alerted the worker to the fact that she had  
not yet mentioned she had difficulty concentrating when she attempted to do the online safety  
courses which the employer had arranged for her to do from home. As a result, I have  
disregarded the workers response to this particular question.  
Reasons and Findings  
[137] The law applicable in these appeals is set out in the Act. A revised version of the Act came into  
effect on April 6, 2020. Although the Boards decision letters dated December 3, 2019 and  
February 13, 2020 were issued before April 6, 2020 and refer to the provisions of the Act in  
effect at the time, the revised Act applies to the Boards decision letter dated January 2, 2021, to  
the Review Division decisions dated May 19, 2020, September 17, 2020 and November 15,  
2021, and to these appeals. The April 6, 2020 revisions to the Act do not change the law and do  
not impact the issues under appeal.  
[138] Section 134(4) of the Act outlines that wage-loss benefits are payable following a work injury  
where the worker is disabled from earning full wages at work.  
[139] Section 191 of the Act determines wage-loss payments when a worker is totally disabled from  
working and section 192 of the Act pertains to wage-loss payments when a worker is partially  
disabled from working. There are Board policies that assist in adjudicating the entitlement of  
wage-loss benefits in specific situations, one of which is policy item #34.11 entitled  
Selective/Light Employment, which pertains to these appeals.  
[140] Policy item #34.11 (Selective/Light Employment) describes selective light employment as a  
temporary work alternative offered by an employer, that is intended to promote a workers  
gradual restoration to the pre-injury level of employment. The arrangement may involve duties  
different from the pre-injury employment, or some modification of the pre-injury duties and/or  
hours of work. Selective/light employment arrangements may involve consultation with the  
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WCAT Decision Number:  
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worker, the employer, the workers attending physician or other medical practitioners, and the  
union. Selective/light employment is typically offered at or soon after the date of injury, generally  
prior to the Boards involvement on the claim.  
[141] Policy item #34.11 advises that suitable selective/light employment must meet four criteria. First,  
the worker must be capable of undertaking some form of suitable employment. Second, the  
work must be safe and within the workers medical restrictions, physical limitations, and abilities.  
Third, the work must be productive. Fourth, within reasonable limits, the worker must agree to  
the arrangement.  
[142] Where a worker refuses to accept an employers selective/light employment offer, the Board will  
consider the reasons for the refusal to determine if they are reasonable. In making this  
determination, the Board will give regard to the requirements of the work, medical opinion(s)  
and other evidence regarding the workers medical restrictions, physical limitations, and abilities.  
The Board also has the discretion to consider additional factors or evidence relevant to the  
case, such as transportation and childcare. Should the Board determine that the workers  
refusal is unreasonable, benefit entitlement is determined under section 192 of the Act. This  
means that the Board may deem the worker capable of earning what the worker would have  
earned if the employers offer had been accepted, and reduce the workers temporary wage-loss  
benefits accordingly.  
[143] Policy item #97.31 (Matter requiring Medical Expertise) of the RSCM II applies. The policy  
states that where the matter is one requiring medical expertise, the decision must be preceded  
by a consideration of medical evidence. The policy notes that it is for the Board to determine  
when medical evidence is needed, what kind of medical evidence is needed, and on what  
questions.  
[144] I have decided to allow the workers appeal of the Review Division decision dated May 19, 2020  
(Appeal A); I have decided to deny the workers appeal of the Review Division decision dated  
September 17, 2020( Appeal B); and I have decided to deny the employers appeal of the  
Review Division decision dated November 25, 2021 (Appeal C). My reasons are set out below.  
Whether There Was an Offer of Selective/Light Employment  
[145] In this case there is no dispute that the employer made several offers of selective/light  
employment to the worker in November 2019. The offers which are of particular relevance to  
these appeals are the offers which the employer made to the worker on November 4 and  
November 7, 2019. On November 4, 2019, the employer offered the worker light duties which  
consisted of doing computer work (an online safety course) from her home. On November 7,  
2019, the employer offered the worker light duties working from its head office commencing  
November 8, 2019. Although the specific nature of the light duties that the worker would be  
performing from the employers head office were not specified on that date, I am satisfied that  
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WCAT Decision Number:  
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the duties offered were in keeping with those outlined in the RTW Suitable Employment  
Agreement form and the supplementary page enclosed with this form which the employer sent  
to the worker on October 29 2021.  
Re: Appeals A and B  
Whether the Worker was Physically Capable of Undertaking Any Type of Selective/Light  
Employment as of November 4, 2019 or beyond November 7, 2019?  
[146] Policy item #34.11 requires the worker must be capable of undertaking some form of suitable  
employment and although there are other criteria, the test of suitability fails if just one of the  
identified criteria is not met.  
[147] I have reviewed in detail the workers testimony and her representatives oral submissions  
regarding the impact of the October 28, 2019 work incident had on her physical wellbeing.  
I have also reviewed the oral and written submissions which the employers representative has  
made to WCAT and the Review Division regarding the non-compensable personal issues  
which the employer believes overwhelmed the worker and resulted in her inability or lack of  
desire to participate in the light duties which the employer offered to her on November 4, 2019  
for the period November 4 to 7, 2019 and the light duties which it offered to her on November 7,  
2019 for the period commencing November 8, 2019.  
[148] It is clear that the worker and the employer have differing views about the workers physical  
fitness to participate in selective/light employment during the periods November 4-7, 2019 and  
beyond November 7, 2019. Since I consider a workers physical fitness to undertake some form  
of suitable employment to be a question which requires medical expertise to resolve I have  
based my finding on this point on the available medical evidence.  
[149] On the basis of the reports filed by clinic physicians Drs. Gill and Somani on October 30 and  
November 2, 2019 respectively, I find as fact that the worker was physically capable of  
undertaking some form of suitable light employment despite the headaches, and neck and lower  
back pain she was experiencing as a result of her accepted physical injuries during the period  
November 4 to 7, 2019 and beyond November 7, 2019.  
Was the Selective/Light Employment Offered on November 4, 2019 and November 7, 2019  
Suitable?  
[150] There is no dispute that on November 4, 2019 the employer offered the worker light duties  
working from home that day which consisting of taking an online safety course. There is also no  
dispute that the worker accepted this offer and attempted this course on November 4, 2019 but  
ran into technical difficulties with the course providers website which resulted in the employer  
arranging for the worker to do other online safety courses from home during the period  
31  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
November 4 to 7, 2019 until these issues were resolved. What is in dispute is whether the online  
safety courses which the employer arranged for the worker to do from home during the period  
November 4 to 7, 2019 were physically suitable for the worker (i.e. were safe, and in keeping  
with the workers medical restrictions, physical limitations, and abilities as required by policy  
item #34.11).  
[151] Based on Dr. Somanis November 2, 2019 report and the RTW Functional Abilities Form that he  
completed for the employer that day, I am satisfied that the selective/light duties that the  
employer offered to the worker on November 4, 2019 for the period November 4 to 7, 2019 were  
physically suitable for the worker as defined in policy item #34.11.  
[152] Although the worker did not attempt these duties, I am also satisfied, on the basis of  
Dr. Somanis November 2, 2019 report and the RTW Functional Abilities Form that he  
completed that day, that the light duties which the employer offered to the worker on November  
7, 2019 which involved working from the employers head office commencing November 8, 2019  
were physically suitable for the worker within the meaning of policy item #34.11.  
Were the Workers Refusals of the Selective/Light Employment Offers Reasonable?  
[153] However, based on the workers testimony, which echoes the information which she is reported  
to have provided to a Board officer on November 18 and November 22, 2019, I consider it at  
least as likely as not that working in front of a computer screen and trying to complete online  
safety courses from home on November 4, 2019 made the ongoing and persistent headaches  
which the worker experienced as a result of her October 28, 2019 work injuries, worse, thereby  
rendering her continued participation in home- based online safety courses subsequent to  
November 4, 2019 untenable.  
[154] As a result I find as fact that it was reasonable for the worker to refuse to continue to participate  
in these light duties during the period November 5-7, 2019. In reaching this conclusion, I put  
significant weight on the fact that the worker was managing the physical injuries which had been  
accepted under her claim without the benefit of pain medication because she was pregnant.  
[155] I acknowledge that the employers HSE administrator stated in the October 26, 2021 letter  
which she submitted in support of the employers position on Review Reference #R0267947  
that the worker only worked on one course regarding construction safety for half an hour  
on November 4, 2019. To the extent that this evidence conflicts with the workers oral testimony  
regarding her efforts to do online coursework on November 4, 2019, I prefer the evidence of the  
worker. I say this because the HSE administrator did not explain in her letter how she  
ascertained the length of time that the worker spent doing online coursework on November 4,  
2019; because the employer chose not to call the HSE administrator or any other witness to  
testify at the oral hearing regarding this matter; and because the employer chose not to  
challenge the workers testimony regarding this issue by way of cross-examination.  
32  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[156] I acknowledge the employer representatives suggestion that the worker should not be entitled  
to wage loss benefits because she refused the employers offer of selective/light duties for  
preventative reasons. Although he did not explicitly reference it, I consider it reasonable to infer  
from the language he employed that the employer representatives argument was predicated  
upon policy item #34.51 (Other Factors Prevent Return to Employment) which states that if a  
workers physical impairment has disappeared or stabilized, wage loss must be terminated even  
though the worker, to prevent further occurrences of his or her condition, remains off work. That  
said, I am not persuaded that policy item #34.51 applies in this case. This was not a situation  
where the workers compensable injuries/conditions had disappeared or stabilized and she was  
concerned about a further occurrence. The worker was still actively suffering from her  
compensable injuries when she refused the employers offers of selective light duties and she  
was concerned about her symptoms being aggravated by her participation in the duties offered.  
Her concern was based, at least in part, in the increased symptoms which she experienced as a  
result of attempting the light duties offered to her on November 4, 2019. Given that a  
requirement of a suitable selective/light employment arrangement is that it does not harm or  
slow recovery, I find her concerns were reasonable.  
[157] In short, I allow the workers appeal of the Review Division decision dated May 19, 2020  
(Appeal A). The worker is entitled to wage loss benefits for her accepted physical injuries as of  
November 4, 2019 because she made a good faith effort to participate in the light duties that the  
employer made available to her that day. The worker is entitled to wage loss benefits for her  
accepted physical injuries for the period November 5-7, 2019 because her refusal to continue  
doing online safety courses from home after November 4, 2019 was reasonable given the  
increased headache symptoms that she experienced as a result of participating in those duties  
for which she was unable to take pain medication.  
[158] Insofar as the selective/light employment offer which the employer made to the worker on  
November 7, 2019 (which involved doing light duty work from the employers head office  
commencing November 8, 2019) is concerned, I find that the weight of the available evidence  
supports the conclusion that the worker declined to participate in those duties for reasons  
unrelated to her compensable physical injuries. As a result I consider the workers refusal of the  
employers November 7, 2019 offer to be unreasonable.  
[159] I therefore deny the workers appeal of the Review Division decision dated September 17, 2020  
(Appeal B). The worker is not entitled to wage loss benefits for her accepted physical injuries  
beyond November 7, 2019 because her refusal of the offer of selective/light employment which  
the employer made to her on November 7, 2019 was unreasonable.  
33  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
Re: Appeal C  
Was the Worker Psychologically Capable of Undertaking Any Type of Selective/Light  
Employment as of November 8, 2019?  
[160] The Board determined in its decision dated July 2, 2021 that the worker had sustained  
psychological injuries which arose out of and in the course of her employment on October 28,  
2019, namely an Adjustment Disorder (with Mixed Anxiety and Depressed Mood) and an  
Aggravation of a pre-existing Major Depressive Disorder (Recurrent, Moderate). This means  
that the worker was already suffering from these psychological conditions when the employer  
made its offer of selective/light employment to her on November 7, 2019.  
[161] In his May 2021 psychological assessment report, Dr. Saruk noted that the worker remained  
vulnerable to temporary deterioration when exposed to perceived traumatic incidents or  
incidents that resemble past traumatic work incidents (i.e., incidents involving motor vehicles or  
traffic). As a result, he recommended that the worker be temporarily restricted her from returning  
to work as a flag lane closure supervisor. He also recommended that the worker be temporarily  
restricted from returning to any workuntil she had participated in a number of sessions of  
individual therapy with an observed reduction in symptoms.  
[162] Dr. Saruk also noted that the worker had participated in limited treatment to date to address her  
psychological conditions. He said that a minimum of one block of individual therapy specifically  
targeted at decreasing/alleviating current depressive and anxiety symptomatology appeared to  
be warranted. He said that a graduated return to work could be implemented after there had  
been an observed reduction in the workers psychological symptoms noting that the workers  
psychological treatment provider could assist in determining return-to-work readiness in the  
future.  
[163] Read in context, I interpret Dr. Saruks report to mean that he did not consider the worker  
psychologically capable of undertaking any form of suitable employment in November 2019  
because she had yet to receive psychological treatment directed at decreasing/alleviating the  
depressive and anxiety symptomatology resulting from her accepted psychological conditions.  
[164] I acknowledge that a Board officer documented that Dr. Saruk told him during a June 7, 2021  
telephone conversation4 that the worker would not have been precluded from participating in the  
light duties offered to her by the employer in November 2019, as long as they did not include  
viewing safety videos and as long as she was introduced to them gradually and with ongoing  
support. However given that there is no evidence that Dr. Saruk discussed the employers light  
4
The opinion documented in this memorandum was never endorsed or verified by Dr. Saruk.  
34  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
duty offers with the worker during her May 2021 assessment; and given that Dr. Saruk has  
never verified or endorsed the opinion which the Board officer has attributed to him, I am  
reluctant to put much weight on it.  
[165] Based on expert opinion outlined in Dr. Saruks May 2021 psychological assessment report,  
I conclude that the worker was not psychologically capable of undertaking any form of  
selective/light employment as of November 8, 2019. As a result I find that the selective  
light/employment offer which the employer made to the worker on November 7, 2019 (which  
was set to commence on November 8, 2019) fails the test of suitability outlined in policy  
item #34.11.  
In the Alternative: Were the Light Duties Offered Suitable?  
[166] Even if I were satisfied that Dr. Saruks views regarding the workers psychological fitness to  
engage in in the light duties offered to her by the employer on November 7, 2019 had been  
accurately documented by the Board officer in the telephone memorandum dated June 7,  
20215, I would not conclude that this opinion supported the conclusion that those duties were  
psychologically suitable for the worker.  
[167] In order to be considered suitable the light duties offered must be safe, and in keeping with the  
workers medical restrictions, psychological limitations, and abilities. According to the Boards  
June 7, 2021 memorandum, Dr. Saruk qualified his opinionthat the worker was not prohibited  
from engaging in the light duties offered to her by the employer by indicating that those duties  
were suitable provided that they did not involve watching safety videos, and were introduced  
gradually and with ongoing support.  
[168] There is no indication that the employer intended to introduce the light duties that were offered  
to the worker on November 7, 2019 on a gradual basis and the available evidence makes clear  
that no psychological support was offered or available to the worker during the month of  
November 2019. It is also clear the employer was expecting the worker to continue with the  
online courses that she started on November 4, 2019 which involved watching safety videos. As  
a result I conclude that Dr. Saruks opinionas outlined in the Boards June 7, 2021 telephone  
memorandum does not support the conclusion that the light duties which the employer offered  
to the worker on November 7, 2019 were psychologically suitable.  
[169] I consider the workers testimony regarding her reluctance to get behind the wheel of a car, and  
Dr. Bradfords account of what the worker experienced when she had to drive following the work  
incident (as documented in her chart note dated September 9, 2020) to be consistent with  
Dr. Saruks opinion that the novel anxious symptoms which the worker developed as a result of  
5
such that this memorandum should form part of Dr. Saruk’s expert psychological assessment of the  
worker  
35  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
her compensable Adjustment Disorder with mixed anxiety and depressed mood would result in  
anticipatory and situational fear, anxiety and panic associated with driving. I also consider the  
distress which the worker reported experiencing when driving or contemplating driving  
subsequent to her involvement in the October 28, 2019 work incident to be evidence which  
supports the conclusion that it would not have been safe for the worker to have accepted the  
offer of selective light employment which the employer made to her on November 7, 2019  
because this would have required her to commute to the employers office.  
[170] I acknowledge the employer representatives suggestion that that there is no contemporaneous  
evidence which supports the conclusion that the worker was disabled by her compensable  
psychological injuries in November 2019 and his allegation that the workers testimony has  
evolved in response to appellate decisions. However, I am not persuaded by these assertions.  
[171] Like the review officer who authored the September 17, 2020 Review Division decision, I note  
that Dr. Bradford recommended that the worker take four weeks off work when she assessed  
her on November 8, 2019; a recommendation which appears to have been made in direct  
response to the workers reports of increasing anxiety and stress. Although Dr. Bradford opined  
at that time that these symptoms were attributable to the workers (pre-existing) depression or to  
an acute stress reaction6, we now know (as a result of Dr. Saruks May 2021 psychological  
assessment ) that the symptoms of increasing anxiety and stress which the worker reported to  
Dr. Bradford on November 8, 2019 were attributable, at least in part, to a compensable  
aggravation of the workers pre-existing Major Depressive Disorder and a compensable  
Adjustment Disorder which arose out of and in the course of the October 28, 2019 MVA.  
Consequently I am not persuaded by the employers representatives suggestion that  
Dr. Bradfords opinion should be given no weight because she did not explicitly link the workers  
need to be off work to her compensable work injuries.  
[172] I also consider the following to be contemporaneous evidence that the worker was  
psychologically disabled by her now recognized psychological work injuries when she refused  
the employers offers of selective/light duties in November 2019:  
The fact that clinic physician Dr. Somani reported on November 2, 2019 that the worker had  
anxiety and concerns regarding the safety of returning back to work.  
The fact that the worker told the employers HSE administrator on November 12, 2019 that  
the thought of being in traffic made her uneasy and anxious and that she was afraid to  
return to work and needed some help due to near-misses on the project she was working on  
and due to near-misses and stress from being a traffic control person over the last ten  
years.  
6
the latter presumably as a result of her October 2019 MVA  
36  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
The fact that the worker informed the Board on November 18, 2019, that she was having  
anxiety and panic attacks as a result of the work incident.  
The fact that the worker advised the Board on November 22, 2019 that she was feeling  
stressed, uneasy, afraid and anxious to return to work due to road safety and many  
near-miss accidents, was having anxiety and panic attacks and was on a cancellation list to  
see a psychiatrist.  
[173] In my view, this evidence rebuts the suggestion that the worker has changed her evidence over  
time in order to rehabilitate her claim.  
[174] I acknowledge the employer representatives submissions regarding the content of the online  
safety courses which the worker attempted on November 4, 2019, but as my decision on this  
appeal is concerned with the selective light employment offer which the employer made to the  
worker on November 7, 2019 and not with the selective light employment duties which the  
worker attempted on November 4, 2019 I do not consider it necessary to make any findings of  
fact regarding the partiesconflicting accounts of what the worker saw on November 4, 2019.  
[175] I acknowledge the partiesconflicting submissions regarding the significance which should be  
assigned to Dr. Feehans May 15, 2022 report. While I find Dr. Feehans report to be of value  
when it comes to interpreting Dr. Saruks opinion regarding the post-traumatic nature of the  
workers symptoms of anxiety, I do not consider his report to have any particular value when it  
comes to determining whether the worker was psychologically fit to engage in selective light  
employment as of November 8, 2019. I say this because Dr. Feehan appears to have based his  
opinion regarding the workers psychological fitness to engage in selective light employment in  
November 2019 on reports provided by Dr. Singh, a psychiatrist who was part of the workers  
reproductive mental health team. According to Dr. Bradfords December 23, 2020 chart note,  
the workers reproductive mental health team was unwilling to talk to the worker about her  
workplace MVA, so it is not surprising that Dr. Singhs reports contain little information regarding  
the workers compensable injuries and any impact that they might have been having on the  
workers return to work plans. As a result I do not consider the inferences that Dr. Feehan  
appears to have drawn from Dr. Singhs reports to be reliable.  
[176] I acknowledge the employer representatives submission that the employers ability to craft a  
suitable offer of selective light employment was frustrated by the workers lack of transparency  
regarding her true reasons for not wanting to return to work and participate in the light duties  
offered to her by the employer in November 2019.  
[177] While I am not immune to this argument and consider it regrettable that the worker was not  
more honest with her employer about her reasons for refusing its offers of selective light  
employment in November 2019, I am obliged by virtue of policy item #34.11 to adjudicate the  
workers entitlement to wage-loss benefits on the basis of the offers of the selective light  
employment that were actually made by the employer in November 2019 and not on the basis of  
37  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
offers that the employer might have made, or could have crafted if it had a more fulsome  
understanding of the workers situation and/or the benefit of Dr. Saruks opinion.  
[178] With the benefit of hindsight, it is clear that there was no offer of selective light employment that  
the employer could have made to the worker on November 7, 2019 that would have been  
suitable because the worker was psychologically incapable of working at that time.  
[179] It is not lost on me that there were labour relations issues at play in this case. I am nevertheless  
satisfied that the workers refusal of the employers offer of selective/light employment on  
November 7, 2019 can be explained on the basis of the genuine psychological distress that she  
was experiencing as a result of her now-accepted psychological conditions.  
[180] On the basis of the workers affirmed testimony, which I consider to be credible and reliable, and  
the expert opinions of Drs. Bradford, Saruk7 and Feehan8, which I consider to be persuasive,  
I find that the worker was psychologically unfit to engage in any suitable work/light employment  
as of November 8, 2019. I therefore deny the employers appeal of the Review Division decision  
dated November 25, 2021 (Appeal C).  
[181] Like the review officer I leave it to the Board to determine the duration and extent of the workers  
entitlement to temporary disability benefits for her accepted psychological conditions beyond  
November 8, 2019.  
[182] The worker did not file a cross- appeal of the review officers November 25, 2021 decision so  
the review officers decision to deny the worker wage-loss benefits for her psychological injuries  
for the period November 4 to 7, 2019 stands.9  
Conclusion  
[183] I allow the workers appeal (Appeal A) and vary the May 19, 2020 Review Division decision. The  
worker is entitled to the payment of temporary total disability benefits for her accepted physical  
injuries during the period November 4 to 7, 2019.  
[184] I deny the workers appeal (Appeal B) and confirm the September 17, 2020 Review Division  
decision. The worker is not entitled to the payment of temporary total disability benefits for her  
accepted physical injuries beyond November 7, 2019.  
7
which I consider to be confined to the four corners of his May 2021 psychology assessment report  
which I confine to his interpretation of Dr. Saruk’s report  
however the worker remains entitled to the payment of wage loss benefits for the period November 4  
8
9
to 7, 2019 by virtue of my decision on Appeal A.  
38  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2001487 (August 8, 2022)  
[185] I deny the employers appeal (Appeal C) and confirm the November 25, 2021 Review Division  
decision with respect to the workers entitlement to wage loss benefits beyond November 7,  
2019. The worker remains entitled to the payment of temporary total wage-loss benefits for her  
accepted psychological injuries effective November 8, 2019. The Board will determine the  
duration and extent of the workers entitlement to temporary disability benefits for her accepted  
psychological injuries beyond this date.  
Expenses  
[186] There has been no request made for reimbursement of expenses associated with these  
appeals. Therefore, I make no orders in this regard.  
Dawn Shaw-Biswas  
Vice Chair  
39  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  


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