The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order 477/2005 dated June 30, 2005 holding that his two claims for psychological conditions were not acceptable.

On October 31, 2000, the worker had an accident at work when anhydrous ammonia spilled on him, burning his right ear, eye and face. He filed a claim with the WCB, which was accepted (the “October 2000 claim”). He returned to work in November 2000. Subsequent to this date, the worker experienced two other workplace incidents – one on January 24, 2001 and one on April 25, 2001.

In February 2002, the worker contacted the WCB advising that he had been experiencing chronic anxiety that might be related to the October 2000 claim. Both primary adjudication and Review Office determined that his chronic anxiety was not related to the accident of October 31, 2000. The Appeal Commission upheld this finding in Decision No. 15/04 dated January 19, 2004, finding that his chronic anxiety was not related to the October 31, 2000 accident.

Then, in February 2005, the worker filed two separate claims for psychological anxiety disorder and stress with respect to the January 24, 2001 and April 25, 2001 workplace incidents (the “January 2001 claim” and the “April 2001 claim” respectively). On March 30, 2005, the case manager advised the worker that it was her opinion that his claims did not meet the requirements of a stress claim under The Workers Compensation Act (the “Act”). Review Office upheld this decision on June 30, 2005. It coming to its decision, Review Office referred to the WCB Policy 44.20.60 – Psychological Conditions and the prior Appeal Commission Decision No. 15/04 dated January 19, 2004 and found that neither incident was a serious compensable life-threatening injury/event and that the worker had not had an acute reaction to either incident. On October 7, 2005, the worker asked Review Office to reconsider its decision of June 30, 2005; it did and upheld its initial decision.

On May 16, 2007, the worker appealed to the Appeal Commission. A hearing took place on July 24, 2007. The worker appeared and provided evidence. He was represented by a worker advisor. No one appeared on the employer’s behalf.

Issue

Whether or not the claims for psychological conditions are acceptable.

Decision

That the claims for psychological conditions are acceptable.

Decision: Unanimous

Background

Reasons

Introduction

This appeal deals with the relationship between the worker’s psychological conditions and two work-related incidents that occurred during the course of his employment as a truck driver.

Background

The worker began work as a trucker in the spring of 2000. These 6 months of employment went well and without incident.

Then on October 31, 2000, while unloading anhydrous ammonia from his semi-truck, the worker had an accident, sustaining chemical burns to his right ear, eye and face. As indicated in the preamble, this accident is part of a separate claim. It is included in this background simply to provide some context to the worker’s subsequent incidents which are before the panel.

The worker remained off work for 2 weeks and resumed regular duties on November 13, 2000. This time however, he was no longer hauling anhydrous ammonia; instead he was hauling dry fertilizer.

The worker testified at the hearing that after the October 2000 accident, he began to think about the potentially disastrous consequences of being exposed to anhydrous ammonia. He was quite shaky and worried that the pneumatic trailers he was pulling might blow up. There were also some instances driving on the highway where he did not feel safe. Over time however, he began to regain some confidence but then he was in an accident on January 24, 2001.

The worker explained that he was driving his truck with two empty trailers on the highway when he hit a bump in the road and gusting winds hurled him sideways across the highway, through opposing traffic and down into the ditch. As he was going across the highway and into the ditch, he wondered what would happen to him and how he would come out of it. When he stopped, he was jackknifed in the ditch on the other side. He was physically unharmed but shaken. He found a farmhouse and called dispatch to report the accident. He told dispatch that if he was scheduled for anything the next day, he was not going. At the hearing he clarified that he made this comment because he was scared. Another employee met the worker and eventually drove him home. During the drive, the worker kept thinking that he did not want to drive again anytime soon as he was too scared. The next day he looked for alternate employment which he did not find. He remained off work for approximately 10 days. During that time, he sat at home dreading the phone would ring telling him he had a trip. He finally mustered up enough courage to go back to work.

After this January 2001 incident, he began to feel a generalized fear and anxiety about things he had no control over and feel that everyday was impending doom. He did not know what was awaiting him next and felt like he was taking his life into his hands every time he got into his truck. Things or situations that had not bothered him previously now bothered him.

These symptoms were exacerbated on April 24, 2001 when he hit a deer on the highway, again in a work related trip.

The worker thought that he was “going crazy” until he saw an advertisement on television for an anti-anxiety medication. He sought medical treatment and was diagnosed with chronic anxiety. He continued to work as required by his employer and eventually ceased employment in early 2002 when he informed them about the medication he was taking for his condition.

Several medical reports and WCB memoranda to file deal with the worker’s psychological condition:

At the hearing, the worker explained that his discussion with the other doctor referred to in the note was the doctor he had seen three weeks prior to this visit and it was about anxiety not depression. He did not have prior alcohol problems; he simply stopped drinking alcohol. His prior difficulties with depression were situational and he was not clinically diagnosed with depression, nor was he prescribed medication.

• A February 28, 2002 chart note entry by the family physician notes that the worker complained about getting very anxious thinking about his work or while on the job. He was referred to a psychiatrist for assessment.

• A March 28, 2002 WCB memorandum notes that the worker advised the case manager that he felt “paranoid and fearful” about truck driving which he related in part to post-traumatic stress from the October 31 accident. It also notes that the worker added that his father was quite ill and that was contributing to his stress. The worker has disputed this last comment both on the file and at the hearing.

• In a letter dated April 4, 2002, the psychiatrist opined that the worker was suffering from a stress-induced condition that he later clarified as an adjustment disorder with mixed symptoms. He felt it was inadvisable for the worker to drive semi-trailers. An April 17, 2002 report from the psychiatrist expanded on his diagnosis. He thought the worker’s psychological condition (difficulty falling asleep and a near impossibility of driving large trucks) was at least in large part due to the injury he sustained on October 31, 2000 which was aggravated by the subsequent mishap on the road.

• A WCB psychiatric consultant reviewed the file information at the request of Review Office on November 22, 2002. Based on his review of the file evidence, he thought the worker’s psychological condition was caused in part by pre-existing problems. The worker disputed the pre-existing problems identified by the WCB psychiatric consultant as noted above. The consultant queried the relationship between the worker’s psychological condition and his October 2000 claim, as opposed to the driving incidents after October 2000. He commented:

“According to the history, and to [the worker’s] own report, it appears that his driving experiences from November 2000 through to April 2001, were very significant in causing his ongoing anxiety, especially as it related to driving. It appears, from [the worker’s] own comments, that these are more of a factor related to anxiety than is the burn he experienced in October 2000.”

He noted that while there was some support of a relationship between the worker’s anxiety and the October 2000 claim he thought that the bulk of the evidence pointed towards other factors as the cause of his ongoing anxiety.

• A March 17, 2003 report authored by a psychiatric nurse and clinical psychologist at the WCB’s request, notes their impression that:

• The worker’s mental status was stable with minimal symptoms of depression and anxiety which could be due to the positive effect of his current medication;
• there was no evidence of post-traumatic stress disorder or malingering;
• there was evidence of possible singular phobic response and behaviour as noted with his extreme avoidance of driving on the highway which may have a relationship to his accidents as a truck driver.

• A June 5, 2003 report by the clinical psychologist notes:

“[the worker] presented in a credible, reasonable, and cooperative fashion. He was not symptom-focused or symptom-exaggerated, but clearly presenting a report of post-accident related anxiety, fearfulness, arousal, vigilance and reliving. Retrospectively, he is presenting symptoms compatible with post-traumatic sequelae, and, at this time, markedly reducing post-traumatic sequelae, although residual symptoms with significant avoidance, and a phobic response as he demonstrated on the driving.”

The clinical psychologist explained his view that on October 31, 2000 the worker had a workplace accident that “sensitized him in regards to safety and potential risk”. He then had symptom exacerbation with additional events (the January 2001 and April 2001 claims) that troubled him.

• A July 7, 2003 file review by another WCB psychiatric consultant records her opinion that the worker’s psychiatric difficulties were not directly related to his compensable injury of October 31, 2000. Her opinion appears to be based on a pre-accident history of substance abuse (which as noted above the worker has denied), the April 4, 2002 report from the psychiatrist and the worker’s grades at school (that he started in 2003), which to her, indicated he was able to focus.

• A September 15, 2005 report from a medical practitioner notes that he could not find any evidence in the clinical notes that the worker ever suffered from anxiety prior to October 31, 2000.

• A September 26, 2005 report from the clinical psychologist reiterates his opinion that the worker suffered a post-traumatic anxiety based response to a workplace incident.

• A January 23, 2007 report from the clinical psychologist explains the cause of the worker’s symptoms:

“…after a triggering event, such as [the worker] has suffered, he can easily be markedly more sensitized and vulnerable to ensuing events. This can increase sense of anxiety and distress, and new events, such as has occurred for this individual, his truck jack-knifing and skidding as of January 2001, and striking a deer in Spring 2001, can very well have more deleterious effect on an individual who has been previously traumatized and is somewhat phobic, vigilant and has increased anxiety, in comparison to somebody who does not have these events. These can be robust post-traumatic anxiety sequelae and these are frequently seen in occupational injury situations.”

Worker’s Position

The worker says that his claims for psychological conditions are acceptable as they are a direct result of a serious compensable life-threatening injury under WCB Policy 44.20.60.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that the worker suffered an accident arising out of and in the course of his employment within the meaning of subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”). Based on the evidence before us we are able to make that finding.

Subsection 4(1) of the Act provides that a worker is entitled to compensation if he suffers personal injury by accident arising out of and in the course of employment. An accident is defined by subsection 1(1) as any event arising out of and in the course of employment. Subsection 1(1.1) clarifies however that this does not include changes in respect of employment of a worker such as a lay-off or termination; these changes in employment are generally considered to be more of an employment and labour related matter than an occupational injury related matter.

Interestingly, the Act does not define personal injury. While it is generally understood to largely include both physical and psychological injury, there does appear to be some question as to the elements required for acceptance of a psychological injury claim. WCB Policy 44.20.60, Psychological Conditions attempts to clarify the required elements by stating:

“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.”

The Policy includes a list of examples of psychological conditions that could be considered a personal injury by accident; a psychological reaction or condition which is a direct result of a serious compensable life-threatening injury/event; serious means an accident that threatens life or direct involvement in a life threatening incident or event is included in the list. To be clear, this list is non-exhaustive; there may be other psychological conditions, not listed in the Policy, that could be considered a personal injury by accident.

In the case before us, the worker asserts that he suffered psychological injury as a result of two workplace accidents in January and April 2001.

While it is not disputed that the worker did have two workplace incidents in January and April 2001, the issue before us is whether those two workplace incidents, that the worker says resulted in psychological injury, are accidents within the meaning of the Act. As indicated above, we find that they are.

The medical evidence before us is that the worker suffers from an adjustment disorder or post-traumatic anxiety. Though one of the WCB psychiatric consultants opined that the worker’s condition is more likely related to non-compensable factors, this opinion appears to be based on misinformation on the medical file that has been satisfactorily explained by the worker to the panel. The majority opinion of the mental health practitioners is that the worker’s driving incidents are related to his psychological condition.

The clinical psychologist’s reports are particularly helpful in understanding this causal relationship. He explains that the October 2000 incident, which has been previously determined by the Appeal Commission not to have caused his psychological condition, was most likely the triggering event which sensitized the worker psychologically. The worker’s evidence is consistent with this explanation; after the October 2000 accident he began to realize the dangers associated with the October 2000 incident and with some of the driving conditions he was exposed to during the course of his employment. He was however becoming more confident as time went on.

The clinical psychologist also explains that the January 2001 and April 2001 incidents were essentially the proverbial ‘straws that broke the camel’s back’. It was therefore as a result of traumatic events, as opposed to his occupation in general, that caused the worker’s psychological condition. Though the worker suffered a generalized fear and anxiety after the January and April 2001 incidents, this was a mere manifestation of the traumatic events rather than a reaction to his everyday work duties. The worker’s evidence of his level of functioning prior to October 2000, January 24, 2001 and April 25, 2001 is, once again, consistent with this explanation.

Given the foregoing, we find on a balance of probabilities that the worker did suffer an accident within the meaning of the Act and that his claims for psychological conditions are acceptable.

The worker’s appeal is therefore accepted.

Panel Members

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of September, 2007