The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker was employed driving a long-haul truck on June 10, 2006 when he accidentally swerved off the road causing the tractor and trailer to flip over. The impact of the accident destroyed the truck. The worker managed to climb out through the windshield with minor bruising and scratches to his right shoulder, arm and ribs.

On June 15, 2006, the worker sought treatment from a physician for anxiety, panic attacks, palpitations and fear of driving. The physician’s report recommended that the worker remain off work for one month on stress leave. On June 22, 2006, the worker’s claim for compensation was accepted for multiple contusions and anxiety. The case manager advised that a referral would be made to a psychiatrist.

On July 13, 2006, the worker was seen by a family physician for continued anxiety, sweating, and palpitations preventing him from driving a truck. He was diagnosed with Post Traumatic Stress Disorder (PTSD), and anti-depressants and anti-anxiety medications were prescribed.

On August 28, 2006 a WCB psychiatric consultant reviewed the file and provided the opinion that the worker’s symptoms were related to the compensable accident. The WCB psychiatric consultant noted that the diagnosis may be a form of PTSD and the worker was on a wait list to see a psychiatrist. The consultant recommended that the worker be restricted from driving a semi-trailer or other large truck for two months, to be followed by a review. A referral to a social worker for counseling services was also arranged.

The worker was seen by a social worker for five counseling sessions. In a report dated September 1, 2006, the social worker noted that the worker experienced multiple symptoms following the accident which included difficulty sleeping, appetite changes, little or no energy, a flat affect and an inability to complete even the most basic tasks at home. He described the worker’s anxiety as follows:

“He is anxious all of the time and more so whenever he is in a motor vehicle. To this point he has only tried to drive a few times, having his wife do the driving instead. He finds himself grabbing for a handhold if there is the slightest indication of vehicle instability. He is hyper-vigilant all of the time, and again more so whenever he is in a vehicle. He describes some flashback type experiences when he is in a motor vehicle particularly when he attempts to drive.”

The social worker concurred with the physician’s diagnosis of PTSD and recommended additional counseling sessions to provide cognitive behaviour strategies for management of anxiety pending an assessment by a psychiatrist.

The worker was seen by a psychiatrist on October 3, 2006. The psychiatrist diagnosed the worker as suffering from Post-Traumatic Stress Disorder, associated with depression and anxiety with anxiety attacks; stress related to loss of control of his life; and inability to become functional again. The physician noted that there was no previous history of depression or anxiety. In his report, the physician states:

“His chief problem, at this time, is the sense of loss of control of his life, of his ability to drive, and do the things that he normally likes to do. Prior to his accident, he was an active young man involved in many extracurricular activities and he enjoyed his driving and, in fact, driving was a stress reliever for him.”

Medication and cognitive behavior therapy were recommended with a return for a follow-up appointment in six weeks to assess the effect of the medication.

The worker was called in for an examination by the WCB psychiatric consultant on September 25, 2006. The WCB consultant was of the view that there was insufficient objective information on file for a diagnosis of PTSD and that the worker showed insufficient signs and symptoms when examined to warrant the diagnosis. The consultant indicated that the psychiatric diagnosis was not clear but that the worker may be experiencing some anticipatory anxiety relating to driving a motor vehicle. The consultant recommended that the worker undergo two or three sessions of desensitization therapy “with a focus on overcoming his anxiety by approaching his fears rather than avoiding potentially anxiety-producing situations. The goal of this treatment would be to have the claimant return to long-distance trucking as soon as possible, likely within the next month.”

The WCB authorized three further treatment sessions with the social worker to be completed by November 17, 2006. The WCB case manager advised the worker by letter dated November 3, 2006 that after November 17, 2006 the worker would be considered to have recovered from the effects of his workplace injury and no further benefits would be paid.

On November 16, 2006 the worker sent a letter to the WCB indicated that he had not recovered and was still unable to return to driving. The worker asked the WCB to convene a Medical Review Panel (MRP) given the conflicting medical opinion of his physician and psychiatrist with that of the WCB’s psychiatric consultant.

On November 20, 2006 the worker’s psychiatrist left a voicemail message for the WCB case manager expressing concerns regarding the WCB’s decision to terminate benefits. The psychiatrist advised that the worker’s treatment so far had not been effective to get him well enough to return to work and that the worker was still severely depressed and had a tremendous amount of anxiety.

The WCB also received a report from the social worker dated November 17, 2006 advising that the worker’s behavioural therapy sessions were interrupted due to weather and vehicle problems beyond the worker’s control. As a result of those difficulties, the worker’s driving anxiety increased and interfered with his progress. The social worker advised that the worker was only beginning to reach the point where he would begin traveling any distance when the WCB terminated the treatment sessions and the worker did not have the financial resources to complete the treatment strategy.

On December 4, 2006, the WCB psychiatric consultant spoke to the worker’s psychiatrist. The WCB psychiatrist advised that when he examined the worker, the worker related details of the accident without observable signs of anxiety including autonomic arousal. The worker’s psychiatrist advised that he could not comment on this, but that when he examined the worker, the worker subjectively reported a number of the symptoms of PTSD. The file notes indicate that the worker’s psychiatrist was recommending that the worker participate in a highly structured desensitization program where the worker would be monitored.

The worker’s psychiatrist forwarded a report to the WCB dated January 25, 2007. The psychiatrist provided his opinion that the worker continues to suffer from PTSD and that it is unsafe for the worker to drive. The basis for this opinion is described as follows:

“My rationale for supporting the diagnoses of Post Traumatic Stress Disorder is that [the worker] was involved in a motor vehicle accident at which time he felt that his life was threatened and he was not sure that he would survive. He had feelings of intense fear, helplessness and horror about the damages to his vehicle and the risk to himself. He has recurrent intrusive flashbacks of the events leading up to the accident and the experience of the accident itself. He has had frightening dreams of the event. He has woken up from sleep with terrors, he is afraid to drive in a vehicle experiencing and anticipating a severe accident leading to injury to him and his family. He presents as in intense psychological distress and anxiety when discussing the accident and the experience of driving at this time.

He has avoided driving and he also has been ordered not to drive by this writer. He is unable to participate satisfactory in social activities. The thought of getting into a vehicle and driving again, such as a semi truck that he drove before, provokes severe anxiety with anxiety attacks. He has neurovegetative symptoms of depression.

As indicated earlier, he has exaggerated startle response especially when he is in a vehicle, and he is hyper vigilant about accidents when riding as a passenger. He has poor concentration difficulties and disturbed sleep.”

On February 1, 2007, the WCB denied the worker’s request for an MRP on the grounds that there were insufficient signs and symptoms exhibited at the WCB examination to warrant a diagnosis of PTSD and that the worker’s physician and psychiatrist did not provide a full statement of fact and reasons to support the diagnosis of PTSD.

On March 6, 2007, a worker advisor requested that the Review Office reconsider the decision terminating benefits on the ground that the medical evidence indicated that the worker continues to suffer from the effects of the compensable accident.

In a decision dated April 26, 2007, the Review Office denied the worker’s claim for benefits stating that there was a lack of findings to support a diagnosis of PTSD and therefore it could not establish a cause and effect relationship between the worker’s current report of symptoms and the compensable injury.

The worker’s physician referred the worker to another psychiatrist for assessment. A report from a second psychiatrist dated May 24, 2007 was sent to the Review Office with a request for a reconsideration of its decision. The second psychiatrist diagnosed the worker as suffering from major depression and “consider PTSD NOS [not otherwise specified]”. The medical report notes that the worker stopped taking his medication due to financial constraints. The report states:

“[The worker] does not appear to be (sic) criteria for full post-traumatic stress disorder, but he certainly has intrusive flashbacks when driving, and also has significant physiologic reactivity…

“I do not think there is much question that [the worker’s] current difficulties stem, in large part, as a result of his accident and as well, to some of the management issues around compensation which have stemmed from the accident. I would suggest, however, that if there are ways that he can be helped financially around the issues of medication, that there is a reasonable chance to offer him some relief …

Obviously, he needs to develop alternative coping strategies to help deal with the life stressors, and I think it would be well worth continuing a CBT program for him.

I think it is worth adding that I do not get any sense of malingering with [the worker], and I would hope that Workmen’s compensation would be able to help with retraining at the very least, if he is not able to return to driving.”

The WCB psychiatric consultant was asked to review the above medical report and provide an opinion. The WCB consultant spoke to the psychiatrist. The WCB consultant noted that the psychiatrist, in reaching his opinion, was relying on the worker’s statements that he was overcome with anxiety when he thought about driving and that he was unable to work after the accident. The WCB consultant concluded that there was no objective evidence supporting a diagnosis of depression or anxiety disorder including PTSD or any other psychiatric disorder and there is no evidence that the worker is unable to return to truck driving.

The Review Office reconsidered the matter and upheld its decision denying further benefits. In its August 15, 2007 decision, the Review Office relied on the WCB psychiatric consultant’s opinion when determining that the evidence does not support a finding that the worker is incapable of working as a truck driver. The Review Office was also of the opinion that the worker failed to mitigate the effects of his injury by failing to complete the desensitization training authorized by the WCB.

An appeal of the Review Office’s decision was filed with the Appeal Commission on August 21, 2007.

Evidence at Hearing

At the hearing before the appeal panel, the worker, who was represented by a worker advisor, provided evidence.

The worker testified that before the accident he had been a long distance truck driver for over 2 years; that he always enjoyed driving and found it relaxing; that he was never late delivering a load and had never turned down a driving request from his employers.

The worker described the life-threatening motor vehicle accident that occurred on June 10, 2006 and from which he was lucky to have escaped without serious physical injury. He also described the fear of driving he experienced immediately following the accident that resulted in his taking 3 days to drive what would normally be a 10 hour trip home and his inability to continue driving until his wife met him and drove back with him for the last half of the drive home.

The worker explained that when counseling started in August 2006 he was unable to get into a motor vehicle without feelings of overwhelming stress. The treatment involved breathing and relaxation techniques to lower his stress level and prepare him for desensitization therapy. In October 2006 the psychiatrist, social worker and physician were working together to determine the most effective medication and treatment.

In November 2006, the social worker proposed a plan for desensitization treatment that would involve driving short distances and gradually increasing the frequency and distance at each session. The worker explained that after only a few sessions using the family vehicle, one of the tires blew. The worker explained that he had to wait until mid November for an affordable set of tires to be delivered, which prevented him from continuing his sessions. By the time the tires were replaced, the WCB had already terminated his coverage and the worker could not afford to continue any further treatment.

The worker also explained that in January 2007 he contacted his former employer to see if he had a semi-trailer truck he could drive to address his fears. The worker was unable to drive more than a few kilometers without stopping for long breaks due to overwhelming exhaustion and stress. He was unable to maneuver the trailer as would be expected of an experienced driver, twice requiring a tow to get out of a ditch or snow bank. A 320 km drive took him more than 9 hours and he had to be accompanied by his wife throughout.

The worker testified that whenever he is in a vehicle he is unable to relax, that he startles and braces himself with any jolt, that he often feels dizzy and extremely fatigued, irritable and exhausted after only short drives. He also has difficulties coping with any activities at home. The worker testified that prior to his accident he used to enjoy driving in congested traffic in major cities and he never experienced any of the symptoms that he currently faces.

The worker testified that he continues to see his psychiatrist approximately every six weeks. The worker advised the panel that the psychiatrist continues to recommend that he return to the counseling sessions, but the worker cannot afford to do so.

Analysis

Subsection 4(1) of The Workers Compensation Act (the “Act”) provides that compensation is payable where “personal injury by accident arising out of and in the course of employment is caused to a worker”. Subsection 39(2) of the Act also provides that where an injury results in loss of earning capacity, wage loss benefits are payable until the loss of earning capacity ends, as determined by the board.

Psychological conditions resulting from an employment related accident are eligible for coverage in accordance with WCB Policy 44.20.60, the relevant portion of which provides:

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.

This includes, but is not limited to psychological conditions incurred as a result of the following:

…

b. A psychological reaction or condition which is a direct result of a serious compensable life-threatening, injury/event (serious in this context means an accident that threatens life or direct involvement in a life threatening incident or event).

…

In this case the WCB determined that the worker’s anxiety was caused by the life-threatening truck accident that occurred on June 10, 2006, but that as of November 17, 2006 the worker had recovered and was capable of returning to his pre-accident employment.

The panel, after considering all of the evidence, does not agree with this conclusion. Rather, the panel is of the opinion that on a balance of probabilities, the evidence indicates that the worker’s psychological condition is a direct result of the serious compensable life-threatening accident that occurred on June 10, 2006 and that this condition continues to prevent the worker from returning to his employment as a truck driver.

In reaching this conclusion, the panel relies on the medical evidence of the psychiatrist to whom the worker was referred by the WCB. This psychiatrist, who examined the worker on October 3, 2006 and November 20, 2006, concluded that the worker was not able to drive and continues to suffer from Post Traumatic Stress Disorder with depression and anxiety as a result of the life-threatening accident and that the worker “presents as in intense psychological distress and anxiety when discussing the accident and the experience of driving”.

The panel notes that the opinion of this psychiatrist is consistent with the second opinion obtained from the psychiatrist who examined the worker in May 2007. Although the second psychiatrist noted that the worker does not present with all of the criteria for PTSD, this psychiatrist was of the view that the worker’s current psychological difficulties, whether characterized as depression or PTSD (NOS), stem from the accident.

The panel also notes that on August 28, 2006 the WCB psychiatric consultant agreed that the worker’s psychological condition was related to the accident and although the consultant was of the opinion on September 29, 2006 that the worker did not present sufficient signs of PTSD, the consultant continued to recommend desensitization treatment for anxiety in order to return the worker to his pre-accident employment. One would expect that in the absence of such treatment, the worker would not be able to return to his pre-accident employment within the time period predicted by the WCB consultant.

In fact, the desensitization treatment recommended by the WCB psychiatric consultant was not completed prior to November 17, 2006 and at that time, the social worker indicated that the worker was only beginning to drive any distance. The social worker also explained that the bad weather and the worker’s vehicle problems were the reasons for the slow progress in the desensitization therapy. In the panel’s opinion, the worker was unable to complete his treatments by November 17, 2006 as a result of circumstances beyond his control. The evidence does not support a conclusion that the worker unreasonably missed his sessions or failed to co-operate or in any way failed to mitigate the consequences of the accident.

The panel also notes that at the time benefits were terminated, the worker’s psychiatrist was of the opinion that treatment had not been effective and the worker was not well enough to return to work. In December 2006, the psychiatrist again expressed his recommendation that the worker complete a structured desensitization program. Unfortunately, throughout this time period, the worker did not receive desensitization treatments that may have improved his condition as a result of the WCB’s decision to end benefits before the therapy could be completed.