The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 24, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on June 24, 2004 and again on October 21, 2004.

Issue

Whether or not the claimant's low back and psychological symptoms arising in November 2002 are related to the compensable injury of November 24, 1999.

Decision

That the claimant's low back and psychological symptoms arising in November 2002 are not related to the compensable injury of November 24, 1999.

Decision: Unanimous

Background

On November 24, 1999, the claimant reported emotional stress and injuries to his right ear, neck, left side of head, left knee, right shoulder, right hand knuckle and lower back when he was assaulted during the course of his employment activities. The diagnoses of the claimant's condition, as outlined by his treating physician on November 25, 1999, was "contusion left scalp, neck pain" and "severe emotional stress anxiety state." The claimant was also treated by a chiropractor on November 25, 1999 who diagnosed multiple sprain/contusion of the neck, shoulder, hand and low back.

The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were issued to the claimant from November 25, 1999 to January 15, 2000 when he returned to his regular duties. On February 12, 2000, the claimant discontinued his regular duties because of ongoing psychological issues related to the assault.

The claimant was assessed by a registered psychologist on February 18, 2000. In a report to the WCB dated February 19, 2000, the psychologist determined that the claimant suffered from Post-traumatic Stress Disorder (PTSD) and that he met the DSM IV diagnostic criteria.

In a follow-up report dated May 2, 2000, the treating psychologist commented that the claimant was willing to return to his occupation on May 8, 2000. The psychologist was of the opinion that the claimant was psychologically ready to return to work on that date and that he was capable of performing all of his regular duties.

In a further report dated September 1, 2000, the treating psychologist stated that the claimant "has successfully overcome the symptoms of post-traumatic stress disorder and that his return to work was successful." No further treatment sessions were scheduled. Wage loss benefits were issued to the claimant from February 18, 2000 to May 8, 2000 inclusive and final.

In December 2002, the claimant advised the WCB that he quit working on November 12, 2002 as he was having sleeping difficulties along with flashbacks of when he was assaulted. The claimant related these difficulties to a change that was made in the workplace which made working more stressful.

In a report to the WCB dated December 27, 2002, the treating psychologist reported that the claimant started to have "flashbacks" of the 1999 assault which began in mid November 2002 following a non-compensable back injury. The recurrences were usually precipitated by an event or experience that was similar to or a cue for the actual trauma. The psychologist commented that it was not unusual for symptoms of post-traumatic stress disorder to recur long after treatment and that treatment for such recurring episodes was typically brief or in some cases not required. As the claimant appeared to benefit from the explanation of his returning PTSD symptoms, the psychologist did not see any need for further psychological treatment.

In a decision dated January 17, 2003, the claimant was advised by the WCB that there was insufficient medical evidence to support his current difficulties and time loss from work as being directly related to the November 24, 1999 incident.

On April 29, 2003, an occupational health medical officer noted that the claimant had medical conditions and that he was presently unfit for work.

On June 18, 2003, the claimant's treating psychiatrist wrote to the family physician and he outlined several diagnoses with respect to the claimant's physical and psychological conditions. The report was then provided to the WCB's psychiatric consultant for review and comment. In a memo to file dated June 27, 2003, the consultant outlined her opinion that there was no causal link between the November 1999 incident and the claimant's present difficulties.

Based on the opinion expressed by the WCB's psychiatric consultant, primary adjudication confirmed its earlier decision that there was insufficient evidence to support that the dominant cause of the claimant's ongoing difficulties and time loss from work was due to the November 24, 1999 incident.

In a submission to the WCB dated August 27, 2003, a worker advisor, acting on behalf of the claimant, advanced the argument that the claimant had not recovered from the effects of his compensable injury and that his current problems were directly related to the 1999 trauma. Reference was made to the opinions put forth by the treating psychologist on December 27, 2002 and by the treating physician dated June 18, 2003 in support.

On September 11, 2003, primary adjudication informed the worker advisor that the new information did not warrant a change to its previous decision. On October 29, 2003, the worker advisor submitted a formal appeal to Review Office for consideration.

On December 5, 2003, Review Office confirmed that a relationship did not exist between the claimant's low back and psychological symptoms commencing in November 2002 and the claimant's November 24, 1999 work related injury. On a balance of probabilities, Review Office felt it was far more likely that the claimant was having a negative psychological reaction to all the new stressors being introduced into his life. It felt that the claimant became emotionally stressed in November and December of 2002 through the multitude of non-compensable scenarios that had suddenly developed. These events, however, bore no relationship to the November 24, 1999 assault. In March 2004, the worker advisor disagreed with Review Office and an oral hearing took place on June 24, 2004 before the Appeal Commission.

Prior to rendering a decision with respect to the issue under appeal, the Appeal Panel requested additional medical information be obtained from the claimant's treating physicians. On September 24, 2004, all interested parties were provided with copies of the medical information and were invited to submit comments. On October 21, 2004, the Panel met to further discuss the case and consider a final submission tendered by the worker advisor dated October 15, 2004.

Reasons

As the background notes indicate, the claimant sustained a compensable injury in November 1999. The claimant attempted a return to work on January 16, 2000 inasmuch as he had recovered from his physical injuries to his back, neck, head and knee. The return to work attempt turned out to be unsuccessful as the claimant developed symptomology, which was later diagnosed as post traumatic stress disorder. After receiving a brief course of treatment from a registered psychologist, the claimant successfully returned to his pre-accident work duties on or about May 8, 2000.

According to the evidence, the claimant had recovered from his post traumatic stress disorder by the time of his returning to work. In this regard, we note certain comments of the treating psychologist, which are contained in a letter to the WCB dated September 1, 2000:

“Mr. [the claimant] returned to work successfully on May 8, 2000 and reported to me that he felt ‘good to be back,’ and that ‘everything felt as it was before’. He reported that he experienced no anxiety or irritability in the workplace, despite having encountered a few situations which, in the past, he believes may have upset or angered him.

It is my opinion that Mr. [the claimant] has successfully overcome the symptoms of post-traumatic stress disorder and that his return to work was successful. He was reporting effective utilization of stress management skills and reported the absence of any symptoms related to the workplace incident. Therefore, no further sessions were scheduled.”

For approximately the next 2 ½ years the claimant was able to function problem free in the workplace without his having to seek consultation with or treatment from his psychologist. However, in November of 2002 the claimant experienced certain events that according to his evidence induced flashbacks of the 1999 assault, poor sleep, bad dreams with themes of prison riots, hyper-vigilance and irritability. The claimant maintained that he had suffered a recurrence of his post-traumatic stress disorder and that the effect of which he began to manifest all of the above difficulties.

In arriving at our decision, we attached considerable weight the WCB psychiatric consultant’s opinion that is contained in a memorandum to file dated June 27^th, 2003 and states:

“…There does not appear to be a causal link between the Nov/99 incident & his present difficulties. His presentation would appear to be multifactorial: back pain, sleep disturbance, marital conflict, financial stresses, conflict re: shift work. On a balance of probabilities, these multifactors appear to have a stronger relationship with clt’s present difficulties.”

We find based on the weight of evidence that the claimant’s current difficulties largely relate to his dissatisfaction with his change in shift work. In addition, the evidence does not, in our view, support the contention that the claimant’s low back problems are in any way related to the 1999 compensable incident. On the contrary, the evidence suggests that the claimant injured his low back on November 11, 2002 as a consequence of a non-compensable incident. We further find based on the preponderance of evidence that the claimant’s low back and psychological symptoms arising in November 2002 are not, on a balance of probabilities, related to the compensable injury of November 24, 1999. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2004