The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

At the hearing, counsel for the worker advised the panel that the worker was not appealing Review Office Order No. 678/2005 dated September 14, 2005 as it related to ongoing benefits for his left fifth metacarpal joint injury. Her submissions and the worker’s evidence was therefore limited to his PTSD injury.

Within this context, the issue before the panel is essentially one of credibility. Indeed, the worker’s benefits for his PTSD injury were terminated in July 23, 2003 based on what the WCB considered to be a discrepancy in the worker’s reported functional limitations and his displayed activity on video surveillance. The WCB found that given this disparity, no weight could be placed on the worker’s self-reported symptomotology. To determine this issue it is necessary to examine the medical, surveillance and oral evidence presented at the hearing.

Background

The Accident

On December 6, 2002 the worker was driving a truck on a highway when he was involved in a motor vehicle collision. The cab of his semi-truck was ejected from its frame. The worker does not recall many details about the accident and it is questioned whether he suffered a concussion; the medical reports at that time suggest that he did not lose consciousness. As a result of the accident, the worker broke his ribs and the fifth metacarpal of his left hand. He was also diagnosed with PTSD.

The Medical Evidence

The worker’s psychological condition has been evaluated and commented on by several mental health practitioners. Several of these mental health practitioners (as well as doctors involved in the care of his physical injuries) comment on the worker’s pain behaviours, his tendency to overstate his symptoms and his non-compliance with medication (sometimes taking too much or too little). The true assessment of the worker’s psychological difficulties is complicated by the fact that the worker’s mother tongue is not English and that he continues to have difficulty expressing himself in English. Although the worker did not have an interpreter assist him at the hearing, the panel did note that the worker was not completely fluent in English and did have some difficulty expressing himself in English.

The WCB became involved in the psychological assessment of the worker’s symptoms due to a prior history of multiple long-term WCB claims and notations of pain behaviour.

The worker was first assessed by a WCB psychological advisor on January 29, 2003. At this call-in examination, the worker told the psychological advisor that he had some “difficulty in his head” and “some noise in his head”. He said that he had dreams of the accident and startled easily. He did not however spontaneously report any intrusive ideation, flashbacks, or generalized increase in anxiety, though the psychological advisor was not entirely sure given that the worker’s first language was not English and there appeared to be some language barrier. There was no facial flushing, shortness of breath or obvious distress though he did become tearful and experience a psychological reaction when viewing the pictures of his motor vehicle accident. He was also irritable, anxious, sad and withdrawn. The psychological advisor noted that the worker’s mood was decreased and commented that this appeared genuine. Based on this examination he was not certain whether the worker met the criteria for a full diagnosis of PTSD though he conceded that there were some post-traumatic symptoms. At a minimum he thought the worker had an Adjustment Disorder, with anxiety symptoms and possibly PTSD.

The worker was seen again by the WCB psychological advisor on April 9, 2003. The worker reported having nightmares that caused him to jump out of bed and then feel a “pressure” in his head. He also reported periods of sadness, crying, decreased libido and joy in life. He also reported fear when in a car. He reported that he had only driven twice since the accident though his wife usually drove him around. He also reported going for coffee or grocery shopping but feeling scared in moving vehicles. There was however no report of physiological symptoms associated with this fear. The psychological advisor found that the worker continued to report symptoms of post-traumatic anxiety and moderate-level depression. He recommended a change in his medications as well as a desensitization program to get him back driving and become more active in his daily life. The psychological advisor also thought that the worker should be referred to a psychiatrist for a further opinion on the worker’s diagnosis and preferred treatment plan.

This was done on April 24, 2003. After assessing the worker, the psychiatrist thought that the worker suffered from a DSM-IV diagnosis of a major depressive episode and PTSD. His treatment plan echoed that of the WCB psychological advisor.

To this end, the worker was referred to a clinical psychologist to assist the worker in normalizing his lifestyle, getting him more active, desensitizing him and assisting him in getting back to his regular occupation. The clinical psychologist saw the worker on May 29, 2003. His findings are included in a June 9, 2003 report. Testing was administered which revealed a moderate level of anxiety, a severe level of depression and several PTSD symptoms. The clinical psychologist thought that the worker may have over-reported on the tests. He also noted that the worker was not compliant with his medication: he either took too much or too little. His overall impression however was that the worker did have some symptoms of PTSD, anxiety, depression and sleep difficulties, secondary to pain resulting from his work related accident and possibly from other past injuries. He thought the prognosis of a full resolution of the worker’s symptoms was poor, and of a return to work, poor to fair.

In the meantime, the worker’s family physician had referred him to a psychiatrist for assessment on May 26, 2003. The psychiatrist noted that the worker’s wife was concerned that her husband’s mental health was not returning to normal after his accident. She indicated that he was afraid to drive and in fact had not yet driven a car since his accident. She found him nervous and anxious when in a car with her. She also found him jumpy and bothered by nightmares. He was withdrawn, sad and tearful on occasion and complained of being very tired with diminished appetite. The psychiatrist diagnosed the worker with PTSD.

On July 4, 2003, the clinical psychologist noted that the worker was having difficulties with the desensitization process to assist with his anxiety and phobias. He felt the worker should continue with the process regardless of his presenting difficulties.

The clinical psychologist’s reports were reviewed by the WCB psychological advisor. He thought that the worker had made some false statements to the clinical psychologist. He was concerned about the worker’s medication mismanagement and questioned the worker’s motivation.

Shortly thereafter the WCB psychological advisor was told that the WCB had done surveillance on the worker on July 14 and 15, 2003. The video surveillance and reports referenced the worker driving himself in a car to several places in the city throughout the day. The WCB psychological advisor was requested to view it and provide his comments. He did so and commented:

“Today I have had an opportunity to review video surveillance material from July 14, and July 15, 2003. This indicates that [the worker] has ease of community access and transit, he is driving a car in high traffic areas. He does not appear distressed, autonomically aroused, fearful, or in any psychic pain at any time in the material that I have reviewed. He was driving to multiple places, and based on what I have reviewed on the surveillance report on high traffic streets.

The major issue here for me being that his clear evidence of community transit, driving and, the absence of obvious evidence of significant psychological difficulty. Clearly, his level of function was markedly higher than he presented with me, the psychiatrist and, more recently, more closer in time to the surveillance, the psychologist who I had asked to see him.

Hence, there is no visible evidence of functional disturbance from PTSD. In contrast to his verbal statements, he is markedly more functional. He has misrepresented his lifestyle, and the subsequent issues will be in regards to objective physical evidence regarding his left upper extremity.

…There is general consensus here that this man is much more functional than he has reported. There is no evidence of functional implication of his reported post-traumatic stress symptomatology, in regards to community access and driving, and given what I have seen on the video tape, one would have to question the use of the narcotic as well as psychoactive medications as he did not present in obvious pain at any time and in fact, was fairly animated, mobile, and active.”

Shortly thereafter, the WCB case manager advised the worker that the WCB would no longer be paying for his medication related to his PTSD symptoms and depression.

It was against this backdrop, that the WCB psychological advisor once again examined the worker on July 30, 2003. The psychological advisor found the worker to be angry. He did not note any obvious evidence of anxiety or anatomical arousal. He was not tremulous or hyperventilating. He did however find that he presented in a somewhat dysphoric fashion but commented that earlier photographs taken of the worker before the accident also displayed a “somewhat dysphoric presentation”. He commented:

“This is a difficult situation as this man did have genuine injuries in the tractor trailer/truck accident that occurred on December 6, 2002. There is no evidence he had any formal clinically and meaningful brain injury despite his earlier report and we have been tracking over time…the psychological sequelae that he reported quite significantly earlier. There have been issues regarding illness focus, disability prolongation, given his earlier previous claim that was terminated following video surveillance of activity not compatible with his report, and he was seen initially to have obvious post-traumatic adjustment issues as well as mood disturbance based on self-report and presentation, and this was in the context in very chaotic ad lib and potentially dangerous narcotic analgesia as well as anti-depressants/anxiolytic medication use.

…He has made strong statements regarding the level of his disability but this was not matched with video surveillance, hence, it was very difficult to have a fair reading of what his current symptom complement is as this is obviously very much dependent on veracity of report, openness, truthfulness in general, and credibility.

At the time I saw him, as of July 30, 2003, based on cross sectional clinical review, my sense is that he does have Adjustment related difficulty. There may [be] some adjustment related mood lowering…I cannot, at this point, validate a Major Depression based on the information I have at the WCB at this time, or Post Traumatic Stress Disorder.

Hence, at this time, this is a man who is suffering from Adjustment related changes given the continuation of his physical disability. We need a focus on objective medical findings and function. His self-report is difficult to evaluate un-ambiguously. There are multiple inputs to this including symptom overstatement, fact misrepresentation, there is a language barrier, he has mistrust of the WCB given his previous claim history, and there clearly is mistrust at this point given the fact that he has been under surveillance.”

The medical reports subsequent to this date are from the worker’s family physician and treating psychiatrists. These reports note continuing PTSD symptoms including anxiety and fear of driving. As an example:

• An October 1, 2003 report from the treating psychiatrist notes that the worker continued to be easily startled and jumpy with the littlest of sounds. He also had difficulty riding in a car and was always screaming at his wife to watch out because he is afraid another accident would happen. He had tried to drive a little on his own but had had a great deal of difficulty with that and hadn’t become any less anxious. The psychiatrist thought that the worker continued to exhibit signs of PTSD and depression.

• A report dated October 31, 2003 from the family physician indicates that the worker was being prescribed medication for his depression and PTSD to help with his objective anxiety, insomnia, depressed mood and ease an increased startle reflex.

• A February 9, 2004 report from the treating psychiatrist notes that the worker continued to have problems with feeling anxious on a daily and frequent basis but that he was sad less of the time. He continued to have problems with nightmares, which included agitation, screaming and awakening. He also found it difficult to be around cars and avoided driving whenever possible. The treating psychiatrist found him to be anxious and to suffer from PTSD.

• In a May 27, 2004 report the treating psychiatrist opined that the worker was not able to resume truck driving as he continued to have symptoms of anxiety, nervousness, irritability, low energy, problems with concentration and problems with memory. At that time, he thought a reasonable prognosis for a part or full return to work would be at least six months.

• A July 21, 2004 report from the treating psychiatrist commented on some of the findings noted by the WCB’s psychological advisor on July 23, 2003. In particular, he questioned the advisor’s ability to discern psychological symptoms from a video. He also questioned how the advisor could make comments on vocabulary used by the worker when English was his second language. He also stated his opinion that the worker was suffering from PTSD and that as of the date of his report, he had not yet recovered. He added that there were a number of symptoms that had not yet responded to treatment.

• A January 7, 2005 chart note by the family physician noted that the worker was complaining of anxiety upon driving. He had been driving a truck and drove into the wrong direction of a one-way highway. He had no memory of how he had done this. He was also fined for not keeping log books. As a result the worker went off work for a period of time after an attempted return to work in August 2004.

• A January 28, 2005 chart note by the family physician notes a diagnosis of depression. It also states that the worker had not been taking anti-depressant medication because of financial hardship.

• A July 21, 2005 report notes that the worker attended complaining of anxiety again.

• A November 9, 2005 chart note from the worker’s second treating psychiatrist notes that the worker was not depressed but could get anxious.

Worker’s Position

The worker says that he is entitled to medical and wage loss benefits related to his PTSD as he has still not recovered from this psychological injury.

At the hearing, the worker described how he attempted a return to his regular employment in August 2004 until December 2005. He explained how he had difficulty doing highway driving. He felt extremely anxious and as a result drove slowly and took breaks often. There were also a few occasions where he did things without knowing why or remembering how he did it. He explained situations where he ended up driving the wrong way on a one-way highway and forgetting to keep his log books. He also told the panel that he took his son with him on trips as support. On occasion he turned trips down when he was not feeling psychologically strong enough to do them. Because of his PTSD symptoms, he was unable to work to the same capacity he did before his accident and suffered a loss of earning capacity.

The worker did not deny that he began driving five to seven months after his December 2002 accident. He said however that his medical practitioners and the WCB psychological advisor were aware of this before the video surveillance and had in fact encouraged him to do so in an attempt to assist in his desensitization process. He says that he can handle city driving but still gets nervous in traffic or when someone honks their horn. When this happens he pulls the car over and collects himself.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that the worker continued to suffer from PTSD or a psychological injury after July 23, 2003 and as a result, suffered a loss of earning capacity after January 21, 2004. After reviewing and weighing the evidence, we find the worker did not suffer from a formal PTSD but did suffer from PTSD symptoms after July 23, 2003 and a loss of earning capacity as a result of the PTSD symptoms after January 21, 2004.

The evidence before us is that the worker was involved in a very serious work-related motor vehicle accident on December 6, 2002. The evidence is also that four mental health practitioners diagnosed the worker with at least some PTSD symptoms, anxiety and depression.

The reports of several medical doctors do reference concerns about the quality of the worker’s self-reported symptoms. Put simply, several medical doctors questioned the degree of credence they could grant the worker. The panel also shares some of these concerns. At the hearing the worker was asked specifically to detail the amount of driving that he did. His answer was a mere 20 kilometres over an entire year. With respect to the video surveillance he responded he had only travelled 400 metres. A review of the video surveillance evidence disputes this. We therefore also find that the worker does appear to have a tendency to under-report his level of functioning.

That said, the worker did advise the WCB psychological advisor in April 2003 that he had tried to drive on two occasions. From that time forward, he was reporting fear and feelings of anxiety while in a car. While the video surveillance shows him driving more than what he reported, it is not enough to find that he was not suffering at all from any PTSD symptoms.

We find in fact that the medical evidence overwhelmingly indicates that the worker has consistently reported fear and anxiety with driving as well as nightmares and decreased mood and continued to do so after July 23, 2003. Though the WCB psychological advisor was leery to place much weight on the worker’s self-report he nonetheless still found that the worker was suffering from something; he ventured to say that it was at least an adjustment disorder. This diagnosis appears to have been made out of an abundance of caution rather than on the worker’s presentation to him. Indeed, the worker’s continuing PTSD symptoms were recorded by his family physician and treating psychiatrists after July 2003.