Decision #108/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his claim for compensation did not meet the requirements of subsection 1(1) of The Workers Compensation Act (the "Act"). A hearing was held on August 21, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a stress condition that he related to an accident occurring on August 22, 2011. The worker provided the WCB with the following accident description on his Worker Incident Report:

I was driving a day cab semi trailer to Virden to a jobsite. I was travelling on a highway but I don't know which highway it was. I was following a coworker to Virden.

I was travelling approx 80 kilometers per hour when the tire blew out. A chain snapped on the trailer which caused the boom to drop off the trailer and shred the driver's inside tire of the trailer. I was able to control the vehicle and pull over onto the shoulder.

The blow out caused me to have an exacerbation of my Post Traumatic Stress Disorder from a motor vehicle accident that I had in 2000. I am currently on partial benefits with MPI but they just said that I could return to work as there was nothing wrong with me. This was the first day of my employment after they told me to return to work.

My coworker stopped and told me to continue driving as we were almost at the site. I drove another 6 minutes before I had to stop and pull over to go to the hospital.

The worker's employer submitted information to the WCB consisting of a report from the onsite supervisor dated August 26, 2011. In brief, the supervisor stated:

  • The worker's co-worker told him that the worker needed to go to the hospital as he thought he was going into diabetic shock and that they blew a tire on the truck just before they got to their destination. En route to the hospital, the worker said he had blurred vision and had the "shakes".
  • The worker's blood sugar was checked at the hospital and it was normal. The worker told him that he had surgery a few months back and was on medication until his doctor took him off cold turkey about 2 weeks back.
  • When he went to visit the worker at the hospital on Tuesday, the worker told him that he had a very bad truck accident years ago and when the tire blew, it made him think of that accident and it caused him anxiety.
  • The worker told him that he believed he may be transferred to a rehabilitation clinic to receive treatment for addiction issues.

Other information from the employer's office manager dated August 26, 2011 stated:

  • The worker said the chain snapped and the boom dropped which caused the tire on the low bed to blow.
  • The worker said he had flashbacks from a previous accident and suffered an anxiety attack.
  • The worker's co-worker said that the worker was not feeling well when they were in Brandon. The worker stated that he was hungry.
  • The worker told the co-worker that he had medication that was in the truck that could not get hot. The medication was for diabetes.
  • When speaking with the worker's physician, the office manager was told that the worker was suffering from post traumatic stress disorder ("PTSD"), diabetes, low back problems and depression. The doctor said the worker could not drive anymore.

A hospital emergency report showed that the worker was admitted on August 22, 2011. The worker's chart noted anxiety and a history of recent prescription and non-prescription drug use. The admitting diagnosis was listed as anxiety/panic attack.

A doctor's first report showed that the worker was seen on August 22, 2011 with complaints of being anxious, not able to focus and not feeling safe. The worker's description of accident was as follows: "While at work driving on hwy close to Virden he had a flat tire that precipitated his PTSD". The diagnosis rendered was panic attack and anxiety.

In a report to the WCB dated August 30, 2011, a psychiatrist noted that he had been treating the worker since December 2007. He noted that the recent stay in the Virden Hospital resulted from a traffic mishap which triggered a panic attack based upon his 11-year history of PTSD. Each time the worker experiences a trigger reminiscent of the trauma in 2000, he is set back. The psychiatrist stated that the worker was currently unfit for work and that a six week period of recuperation would be required before the worker attempted to return to work.

The psychiatrist later submitted a report showing that the worker was seen on August 30, 2011. Under the heading "Describe any pre-existing condition that may affect recovery", the psychiatrist stated: "previous posttraumatic stress disorder, "reawakened" by the August 22, 2011 event."

On September 6, 2011, the adjudicator spoke with the worker's co-worker. The co-worker stated that he was driving a half ton truck just in front of the worker on August 22. In his rear view mirror, he saw rubber flying under the worker's truck so he pulled over immediately, turned around and went back to the worker's truck. The worker said he heard a bang and pulled over. One of the inside tires had blown. The chains were in place and no chains had been released. They were approximately 3 miles from their destination so they continued on. He said the worker mentioned to him in the morning that he was feeling unwell. It was a hot day and a lot of the people working were hot and sweating. He said the worker had fastened one chain before advising him he had to go sit in the vehicle where there was air conditioning. He then fastened the remainder of the chains.

On September 7, 2011, the adjudicator recorded that she discussed the worker's claim with a WCB medical advisor. The medical advisor indicated that the symptoms described were consistent with intoxication from alcohol or drug use. The symptoms were also consistent with anxiety from withdrawal from alcohol and medication.

In a decision letter dated September 9, 2011, the worker was advised that the WCB was not accepting responsibility for his claim. The adjudicator noted that although it was confirmed that a tire blew on the truck the worker was operating, it was the WCB's opinion that a psychological injury was not sustained as a result of the incident. Following the tire blowing, the worker was able to safely operate the vehicle and bring it to a stop without incident. Information obtained from the employer was that it was his first day of work and he was not feeling well that morning. The hospital information provided details about other factors present including a long history of PTSD. It was the WCB's position that non-employment risk factors were more likely the cause of his anxiety symptoms rather than the tire exploding.

On September 30, 2011, the worker appealed the decision to Review Office. He also submitted a psychological assessment report from a clinical psychologist dated November 4, 2010 in regards to his psychological status related to the 2000 motor vehicle accident. At the time of the report, the psychologist indicated that the worker was no longer exhibiting clinically significant symptoms of PTSD related to the 2000 motor vehicle accident.

Prior to considering the worker's appeal, the Review Officer contacted the worker for additional information and a memo outlining the phone conversation is on file dated November 16, 2011. The Review Officer also obtained laboratory test results from the medical centre where the worker attended for treatment on August 22, 2011 and sought a medical opinion from a WCB Pain Management Unit medical advisor dated November 19, 2011. The medical advisor outlined the opinion that the worker's presentation to the health centre on August 22, 2011 was consistent with someone experiencing withdrawal from alcohol and drugs.

On November 24, 2011, Review Office determined that the worker did not have an acceptable claim. Review Office stated that it was unable to characterize the event of experiencing a flat tire on August 22, 2011 as an accident as defined in the Act. It was noted that the worker did not lose control of the vehicle and was able to stop and continue to drive to his destination. Review Office also was unable to establish that a causal relationship existed between the diagnoses of a panic attack, anxiety and PTSD to the event as the worker was experiencing symptoms of alcohol/drug withdrawal prior to the August 22, 2011 event. It concluded that it was more likely than not that the worker's presentation following the event was consistent with symptoms of alcohol/drug withdrawal. Review Office also stated that it considered the Pre-Existing Policy and did not find an aggravation or enhancement of a pre-existing condition had occurred.

On February 22, 2012, a worker advisor, acting on the worker's behalf, requested Review Office to reconsider its decision of November 24, 2011. Attached to the submission was information from Environment Canada regarding the temperature on August 22, 2011 and a February 14, 2012 report from the worker's treating psychiatrist. Based on this new evidence and existing file information, the worker advisor contended that the worker's symptoms on August 22, 2011 were not related to alcohol/drug withdrawal but were instead the result of a psychological injury that occurred when the tire blew out.

On April 10, 2012, Review Office confirmed its original decision that the claim was not acceptable. Review Office agreed that a tire blow-out was a "chance event occasioned by a physical or natural cause" but to be an accident within the meaning of the Act, the worker must be injured by the chance event. Review Office stated that it was unable to make that finding.

Review Office indicated that the evidence established that the worker suffered from PTSD for many years and that the evidence did not establish that the worker's PTSD was in remission or under control prior to the tire blow-out. It stated that the evidence did establish that the worker regularly experienced symptoms of PTSD right up to the date of the tire blow-out. Therefore, it did not accept the treating physiatrist's opinion that the tire blow-out "reawakened" the worker's PTSD.

In coming to its decisions, Review Office noted that the worker's psychological condition as of and after August 22, 2011 was not clearly discrete from his prior condition (he had been suffering from anxiety and panic attacks, symptoms of PTSD, for some time). It did not feel that a "reawakening" (aggravation or enhancement) of the worker's PTSD had occurred, rather the worker's panic attack/anxiety were the ongoing symptoms of his PTSD. As a result, Review Office found that the development of these psychological conditions including PTSD was not causally related to the worker's employment or to the tire blow-out. On April 19, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsection 4(1) of the Act provides that compensation is payable to workers who suffer “personal injury by accident”. What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker;

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

WCB Policy 44.20.60 (the "Psychological Policy") deals with claims involving psychological conditions. The Psychological Policy provides as follows:

1. Where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.

WCB Policy 44.10.20.10 (the "Pre-Existing Policy") addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Pre-Existing Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

b. Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The definition portion of the Pre-Existing Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

Worker’s Position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence supported that the worker did suffer a personal injury as a result of the specific chance event which occurred on August 22, 2011 when the tire blew on the vehicle the worker was driving. Medical reports from the physician who first treated the worker at the hospital and the worker's attending psychiatrist both identified a diagnosis of PTSD related to the event of August 22, 2011. Although there may have been other conditions affecting the worker that morning, he was able to perform his driving duties until such time as the blow out occurred. The attending psychiatrist confirmed that this triggering event created a setback in the worker's pre-existing PTSD condition and rendered him unfit for work. PTSD is a psychological condition and is considered a personal injury, as identified under the WCB's Psychological Policy. As in any other WCB claim, where the medical evidence supports a relationship between the medical condition having arisen from a workplace accident or event, the claim should be accepted.

Employer’s Position:

A representative from the employer was present at the hearing. The employer noted that had they been aware that the worker was under the influence of alcohol or drugs, he would not have been permitted to operate any machinery. It was the employer's position that as the worker had a pre-existing condition which prevented him from doing his job, he should not have an acceptable claim. The worker applied for the position and told the employer that he could do the job, but after one flat tire, he landed up in the hospital with post traumatic stress. The employer submitted that because of drug use and the pre-existing condition, the worker could not do his job. The claim should therefore not be accepted.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that an accident occurred, and as a result of that accident, the worker suffered an injury. On a balance of probabilities, we are able to make that finding. In the panel's opinion, the blow-out of the tire on August 22, 2011 was a significant chance event which constituted an accident arising out of and in the course of the worker's employment. As a result of the accident, the worker suffered a temporary aggravation of his pre-existing PTSD.

The main issue in this case was whether or not the worker suffered an injury as a result of the tire blow out. The medical evidence indicated that the worker had an eleven year history of PTSD since he was involved in a serious motor vehicle accident in 2000 and had been under the care of the attending psychiatrist since December 2007.

The worker's evidence at the hearing was that prior to the accident, he had been seeing his psychiatrist for personal issues other than his PTSD. Although he did report feeling weak and shaky at that time, it was a different type of feeling. The worker characterized the flare-ups of his PTSD as being very distinct episodes where he would have flashbacks where he felt like he could taste and feel the mud and diesel fluid he experienced in his 2000 motor vehicle accident. He described the PTSD as: "It fluctuates because then you have another accident so you go back down, but then you, you know … you work, you work through it. You get to normal -- beep beep -- like a heart, like a heart beating and all of a sudden, flat-line." The panel notes that the worker's evidence given at the hearing was at times disjointed and the worker openly admitted that he had difficulty remembering past events and that he would sometimes get his past accidents mixed up.

After considering the evidence as a whole, the panel accepts that the worker was prone to a general pattern of episodic aggravations of his pre-existing PTSD. These aggravations would be triggered by external events. As indicated in the August 30, 2011 report from his psychiatrist, the worker had a lengthy history of PTSD and each time he experienced a trigger reminiscent of the trauma in 2000, he was set back. The medical reports from the hospital admission and from the psychiatrist both identified a diagnosis of panic attack resulting from the tire blow out. While it may be the case that there were also substance abuse issues which were contributing to the worker's presentation when he was admitted to hospital, the panel accepts that there was a distinct change in the worker's psychological status resulting from the blow out which we find amounted to a psychological injury, ie. a temporary aggravation of the pre-existing PTSD.

In the psychiatrist's August 30, 2011 report, he stated: "I suspect that a 6 week period of recuperation will be required before he attempts to return to work." Given that the worker was a poor historian and it is difficult to discern the length of the aggravation, the panel prefers to rely on the psychiatrist's estimated time for recovery. To be clear, we do not find that there was any enhancement of the pre-existing PTSD, but we do accept that the worker suffered a temporary aggravation of his PTSD, which resolved within a 6 week time period.

As a result, the panel finds that the worker did suffer injury as a result of an accident arising out of and in the course of his employment, and accordingly his claim is acceptable. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of October, 2012

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