The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for stress that he attributed to an incident at work on April 12, 2003. The claim for compensation was accepted and benefits were paid to the worker to October 2003 when he returned to his previous employment. In August 2004, the worker advised the WCB that he suffered a recurrence of symptoms which led to his termination from employment and therefore he was entitled to further wage loss benefits. It was subsequently determined by primary adjudication and Review Office that the worker’s loss of earning capacity was due to his termination from employment and was not directly related to his compensable condition. The worker disagreed and filed an appeal with the Appeal Commission and a hearing was held on June 17, 2008.

Issue

Whether or not the worker is entitled to wage loss benefits after October 25, 2003.

Decision

That the worker is entitled to wage loss benefits commencing May 13, 2004.

Background

The worker filed a stress claim with the WCB which he attributed to an incident that occurred in the workplace on April 12, 2003, when he was witness to an attempted suicide by a person who was under his care. His claim for compensation was accepted and the worker received full wage loss benefits commencing April 25, 2003.

On June 30, 2003, a psychiatrist reported that he saw the worker on May 30 and June 24, 2003 for complaints of recent severe stress at the workplace which had been gradually increasing over the past five years. This included difficulty with sleeping, depressed mood, lack of energy and decreased appetite. The specialist noted that the worker reported improvement in his symptoms after having been away from the workplace for approximately one month. The specialist was of the view that when the worker originally went off work, he may have been suffering from symptoms of a major depressive disorder. By the time he met with the worker, he believed that the worker would have satisfied the diagnostic criteria for dysthymic disorder. When seen again on June 24, 2003, the worker described further improvement although not feeling himself. The specialist expressed concern about the worker returning to the workplace and suggested that some form of dialogue between the worker and his supervisor might be helpful in preventing a recurrence of problems.

In July and August, 2003, the treating psychiatrist opined that the worker was medically able to return to work at reduced hours with no restrictions. Within four to six weeks time, the worker would be capable of full time work.

On October 7, 2003, a WCB case manager met with the worker and the employer to discuss a graduated return to work plan. The worker requested that he be placed in a position where he could work with younger children however the employer did not agree to this.

In a letter to the worker dated October 7, 2003, a graduated return to work schedule was outlined. It was expected that by October 27, 2003, the worker would be back at full time hours.

On October 10, 2003, the worker left a voice message with the WCB case manager indicating that he would be unable to attend the graduated return to work program until October 15, 2003 as he was trying to get a doctor’s appointment. In a letter dated October 10, 2003, the case manager advised the worker that his wage loss benefits would end on October 26, 2003 unless sufficient medical evidence to support a cause and effect relationship existed between his ongoing difficulties and the incident of April 12, 2003 was submitted.

The worker provided the WCB with a doctor’s note indicating that he was unable to work for the period October 9 to October 26, 2003. As the doctor’s note did not contain any objective findings to support the worker’s inability to participate in the graduated return to work plan, the WCB maintained its position that the worker was not entitled to wage loss benefits beyond October 26, 2003.

File information indicated that the worker returned to work full time duties on October 27, 2003. On November 4, 2003, the worker contacted his WCB case manager and stated that he had thought he was ready for the graduated return to work but as the return to work date got closer, his symptoms increased and he felt anxious and had problems sleeping. He indicated that he still had problems sleeping but he was feeling better and was managing at work but still did not feel 100%.

The next time the worker contacted the WCB was in July 2004. At that time, he indicated that he had a recurrence of symptoms and was off work.

On August 11, 2004, the worker spoke with a WCB supervisor to provide additional information about his recurrence of symptoms. The worker said he returned to work last October to his pre-accident placement even though he had a preference to return to work with younger children and in a different location. At that time he felt pretty good but wasn’t 100% as he still had some symptoms. Over the ensuing weeks and months, his symptoms began to worsen. On April 30, 2004, while waiting for an appointment to see a doctor, things got worse at work between him and his employer and he was terminated from employment on April 30, 2004.

In a May 13, 2004 report, the family physician indicated that the worker was showing signs and symptoms of Post Traumatic Stress Disorder (“PTSD”) that he felt was most likely related to the incident of April 26, 2003 and because of the atmosphere he found at his workplace when he returned to work after a medical leave. The family physician commented that the worker was not in a condition to return to work and needed time off for further counselling.

In a 2004 report to the worker’s union representative (the exact date is illegible), the family physician noted that the worker was having recurrent recollection of the workplace event such as distressing dreams and flashback episodes. The worker tried to avoid thoughts related to the event, had feelings of detachment and experienced a restricted range of affect. The worker also experienced “outburst of anger” and difficulty concentrating. The family physician noted that this condition had lasted more than one month and the disturbance has caused impairment in the worker’s job and social life. Based on the family physician’s opinion and discussion with a WCB psychological advisor, a WCB case manager referred the worker to an independent clinical psychologist for an assessment.

The worker was interviewed by a psychiatric mental health clinician on September 3, 2004. In a report to the WCB case manager dated September 20, 2004, it was indicated that the worker reported that he was feeling very overwhelmed because he was not supported by his employer at the time of the workplace incident. The mental health clinician indicated “A factor which seems to be exacerbating this situation is that [the worker] was not reportedly offered any opportunity to debrief, nor was he supported in any matter. [The worker] commented that approximately one week after the incident a supervisor approached him and left him feeling attacked and blamed. He notes that he was never asked how he was and was not offered help. He stated that he did return to work however he began to phone in sick. [The worker] feels very betrayed by his employer and is very angry.” The mental health clinician further stated, “At this time, [the worker] does appear to be describing symptoms compatible with Post-Traumatic Stress Syndrome. He presents as being anxious and depressed. It appears that his symptomatology has been exacerbating (sic) in the last few weeks.”

The worker was then seen by a clinical psychologist on October 1, 2004. In his report to the WCB psychological advisor dated October 4, 2004, he stated, “From what [the worker] informs me, he does have evidence of Post-Traumatic symptomatology. He has reported intermittent and sporadic flashbacks, he has intrusive ideation, he has intermittent dreams of this event, he is more stressed and tense, he has difficulty concentrating, he feels very distrustful, and has a strong sense of being let down and abandoned by his employer as, by his description, there was no debriefing and no supports provided. He only saw his supervisor, he states, one week post-event and feels that he has been “lost” in terms of ongoing treatment…He had symptoms compatible with Post Traumatic Stress Disorder, but from what I saw myself as of October 1, 2001, he has fairly dense moderate severity Depressive Disorder without psychotic features.” The psychologist further indicated, “My sense is that this is a man, unless we have additional and disconfirming information, is (sic) suffering from a Post Traumatic Stress Disorder and moderate severity Depressive Disorder.”

The worker was seen by a second psychiatrist on December 2, 2004. In his report to the family physician dated December 14, 2004, the psychiatrist noted that the worker claimed that his employer “degraded” him during the time he returned to work with the employer for eight months between September 2003 to April 2004. The worker said he was inappropriately questioned for decisions that he was making and inappropriately reprimanded for problems such as a plumbing problem that occurred at work. The worker claimed that he would increasingly call in sick until finally he was unable to return to work because of the way he was treated. The worker stated that he was treated this way because in the past he was a “whistle blower.” The psychiatrist commented that the worker had seen a psychiatrist in the summer of 2003 and that these reports would be helpful to him as that was the time that the worker’s difficulties would have been consistent with the results of his traumatic event, whereas at this time it appears that the disturbance which precipitated his current symptoms, are the result of his perception of being degraded by [employer], that is, being mistreated and not believed. The psychiatrist stated, “I think it is likely that [the worker] has had Post-Traumatic Stress Disorder. However, this picture is now complicated by the ensuing difficulties resulting from the conflict with his employer [name], his ensuing alcohol abuse and the ongoing battle for compensation.”

On January 7, 2005, the employer provided the WCB with correspondence pertaining to incidents that occurred in the workplace subsequent to April 12, 2003.

In a report dated January 14, 2005, the clinical psychologist noted the worker continued to have PTSD symptomatology, although the symptoms at this point were less as he had no immediate workplace exposure.

On January 28, 2005, a case management representative informed the worker that the WCB would cover his medication costs but would not cover his wage loss benefits.

On March 8, 2005, the worker was interviewed by a WCB psychiatric consultant. The psychiatric consultant commented, in part, that it was difficult to determine whether the worker’s PTSD symptoms may have developed following the April 2003 event or whether they are symptoms that are residual of his problematic workplace relationship. He stated, “…another factor that contributes to this difficulty and clarification is the circumstances under which the worker left work at the end of April 2004. He was apparently completing his tasks at work up to and including that date until he received a termination letter from his employer. However, [the worker] states that he was functioning poorly and having difficulties to the extent that he was planning on, or had already consulted his family physician to deal with these problems.”

On April 29, 2005, the clinical psychologist indicated that he last saw the worker on April 28, 2005. Although the worker was on a number of medications, he continued to have sleep disturbance and some degree of agitation. His thought process was not clear and he quickly became disjointed and somewhat tangential. He said the worker looked like he had a depressive disorder with PTSD symptoms and was significantly unsettled.

In a decision dated May 12, 2005, a WCB case manager outlined his view that the worker’s dismissal from employment was not in any way related to his original claim. The case manager noted that there were issues of work performance prior to and during the time frame that surrounded the worker’s compensable injury. This established that the worker’s work performance issues could have resulted in his termination rather than the effects of the compensable injury as being a direct cause.

On May 16, 2005, the worker filed an appeal with Review Office. The worker argued that there were three opinions from health care providers to support that he was suffering from PTSD. He requested a Medical Review Panel (“MRP”) because of the difference of medical opinion between the WCB psychiatric consultant and the three health care professionals.

On June 14, 2005, Review Office determined from the weight of evidence that the worker’s loss of earning capacity which began April 30, 2004, was attributable to the stressors in his work environment and his relationship with his employer rather than to the work incident of April 12, 2003. As the worker’s loss of earning capacity after October 25, 2003 was not related to the effects of his compensable injury, he was not entitled to wage loss benefits after that date.

The worker’s request to convene an MRP was denied by a WCB sector services manager on July 21, 2005 on the basis that there was no difference of opinion on a medical matter affecting the worker’s entitlement. On August 8, 2005, Review Office confirmed the sector service manager’s decision that there was no differing opinion with respect to a medical matter affecting entitlement and that the issue/diagnosis of PTSD was not in question.

On April 13, 2006, the treating clinical psychologist recommended that the worker see another psychiatrist for diagnosis and treatment.

On April 28, 2006, the WCB psychiatric consultant reviewed the file at the request of primary adjudication. He noted that the worker had significant psychosocial deterioration. He said the cause of this and the diagnosis was unknown and suggests that an objective assessment of the worker’s functioning would help to clarify his psychological symptoms.

The WCB arranged for the worker to see a third psychiatrist for diagnosis and treatment of his psychiatric condition. In a report dated May 26, 2006, the psychiatrist outlined his opinion that the worker had a DSM IV diagnosis of PTSD and major depression and that his symptoms were severe. There were also significant financial problems, isolation and past drinking problems in 2003.

In a June 4, 2006 report, the family physician reported that the worker suffered from PTSD as a direct result from the 2003 workplace event.

On June 13, 2006, the WCB psychiatric consultant reviewed the file and opined that the worker’s psychological symptoms were non-specific to any particular psychiatric disorder and that it could not be stated with any degree of certainty that his symptoms were related to the compensable injury.

In a June 16, 2006, report, the clinical psychologist recommended that the worker needed to be referred to a hospital on an urgent basis with respect to his psychological status.

On June 26, 2006, the treating psychiatrist noted that the worker was doing poorly. The worker indicated feelings of depression, hopeless and “stuck”. He reported high levels of anxiety, panic attacks and restlessness and felt victimized by WCB and his employer.

The claim was the subject of a Service Quality review on June 28, 2006. One of the recommendations was to convene an MRP under subsection 67(3) of The Workers Compensation Act (the “Act”) to determine the diagnosis and their relationships to the compensable incident of April 12, 2003.

On June 28, 2006, a WCB supervisor outlined his view that an additional opinion was warranted rather than a full MRP. Arrangements were then made for the worker to attend an independent psychiatrist for an evaluation. The psychiatrist was asked to provide her opinion on the worker’s current psychiatric diagnosis, whether the need for ongoing psychiatric treatment was required as a result of the compensable claim of April 12, 2003, whether the medication taken by the worker was related to the April 12, 2003 incident and whether there was objective medical evidence to support that the worker’s psychiatric status precluded him from returning to employment.

On October 3, 2006, the independent psychiatrist reported that the worker had diagnoses of post-traumatic stress disorder, major depressive order, alcohol abuse in early remission, narcissistic traits, lack of employment and social isolation. She further stated, “In my opinion this man is suffering from psychological sequelae as a result of the incident on April 12, 2003. He is also suffering from the financial, psychological and career implications of termination and prolonged unemployment. The two issues and the consequences are intertwined and made more complex by the grievance and WCB processes. The medication is currently treating symptoms related to both PTSD and the situational stress. The psychotherapy is directed at PTSD and situational stress in a man with some pre-existing narcissistic traits…He needs both medication and psychotherapy and will require these for an extended period of time… [the worker] is not able to work in any capacity at this time”.

On November 2, 2006, the WCB psychiatric consultant outlined his thoughts pertaining to the October 3, 2006 findings by the independent psychiatrist. He stated that the psychiatrist did not document any of the DSM-IV criteria for the diagnosis of PTSD. The psychiatrist’s opinion seemed to be based on the worker’s mental status examination consisting of significant anxiety and agitation, as well as the worker’s physiological response to questions regarding the incident of April 2003. He said neither the diagnosis of PTSD or of major depressive episode was supported by the information the specialist included in her report. He summarized his report by stating there was a clinical situation of what appeared to be a very decompensated individual with a difference of opinion as to what the causes are for that deterioration.

On November 22, 2006 a worker advisor asked Review Office to reconsider its decision of June 14, 2005. Briefly, the worker advisor presented argument that the 2003 opinion provided by the treating psychiatrist that the worker was capable of a return to work was premature and that the incidents occurring after the compensable accident of April 12, 2003 were contributory to the worker’s termination from employment.

On December 18, 2006, Review Office indicated there would be no change to its decision of June 14, 2005. Review Office found that the worker’s loss of earning capacity in April 2004 began with the employer’s decision to terminate him from his employment and was exacerbated by the fall-out and that the worker’s reaction to the termination and fall-out was not compensable.

Review Office noted that the prior disciplinary incidents at work were used in the employer’s decision to terminate the worker from employment. The worker’s stressors/emotions surrounding his work environment and his perceived treatment by and conflicts with the employer prior to the compensable injury were a large part in his overall psychological presentation to his treatment providers after the compensable event and immediately after his termination.

Review Office said it placed more weight on the reports submitted from the psychiatrists who saw the worker closer to the time of the accident and the worker’s termination from employment, than that of the third party psychiatrist (August 2006) who saw the worker some three years post injury.

On January 10, 2007, primary adjudication asked the independent psychiatrist for clarification of the worker’s working diagnosis and what diagnostic criteria supported it. The psychiatrist’s response is dated January 30, 2007. On February 9, 2007, a WCB psychiatric consultant indicated there was no information in the independent psychiatrist’s report that spoke to the issue of causality.

On April 24, 2007, a worker advisor requested the convening of an MRP based on a difference of opinion that was affecting the worker’s entitlement to benefits. The worker advisor’s request for an MRP was granted and an MRP took place on October 9, 2007.

The MRP concluded that the worker did develop a psychiatric condition as a result of the workplace accident. The condition was PTSD. At the time of the MRP, the worker continued to suffer from PTSD and in addition, may have had a major depressive disorder resulting from it. The ongoing effects limit his employability and ability to function in the workplace. The prognosis for the worker was guarded.

On November 30, 2007, a worker advisor submitted to Review Office that “…the preponderance of evidence to date has clearly established that [the worker] was not capable of sustaining a return to his pre-accident work following the compensable incident and, in fact, that his attempted return to work caused his condition to worsen. The Medical Review Panel has now confirmed the ongoing effects of the incident and its continuing impact on [the worker’s] earning capacity…”.

In a December 20, 2007 decision, Review Office confirmed that there would be no change to its previous decisions that there was no entitlement to wage loss benefits after October 25, 2003. Review Office indicated there was no requirement for the WCB to accept the findings of the MRP. It noted that the MRP panelists did not include or refer to many of the reports or opinions by the WCB psychiatric consultant thus it was not known whether the panelists considered these opinions or gave weight to these opinions when providing their responses to the questions posed.

Review Office determined that the worker’s loss of earning capacity that began on April 30, 2004 was not due to the effects of his compensable injury but was the result of the worker’s job loss due to reasons unrelated to his compensable injury. Review Office indicated that the worker lost his job due to performance issues that were present before and after the workplace incident of April 2003 and not because of a psychological injury. Review Office relied on the employer’s evidence in making this finding.

Review Office found no corroborative evidence to support that the worker’s mental status and emotional functioning became progressively worse during the period the worker returned to work from October 25, 2003 to April 2004. It was not until after he lost his job that the worker’s mental health began to deteriorate and the sequence of events that ensued after the job loss was responsible for the deterioration.

Review Office concluded that the start of the worker’s loss of earning capacity began with the worker’s job loss in April 2004 and that any deterioration or decline in his emotional and psychological well being came about from the worker’s negative experiences that followed the loss of his job. “This was not to say that the worker does not have a psychological injury, only that the April 12, 2003 psychological injury is not directly responsible for his loss of earning capacity.” On January 30, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Chairperson Choy and Commissioner Day:

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. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Worker’s Position

The worker was represented by a worker advisor at the hearing. It was submitted on behalf of the worker that he had a loss of earning capacity related to the compensable psychological injury he sustained on April 12, 2003. The worker advisor argued that the worker’s return to work in October, 2003 was not viable and did not reflect the true impact on his post-accident earning capacity. Following his return to work, the worker’s psychological state began to deteriorate further. Although the various non-compensable factors which occurred later may have further exacerbated the worker’s psychological status, the evidence suggests that the deterioration was already occurring prior to the termination from employment and was directly related to the effects of the compensable injury. The re-exposure to the location of the trauma and lack of appropriate stabilization and therapy likely exacerbated the worker’s symptoms and his post accident earning capacity was negatively affected.

The evidence given by the worker at the hearing was that during the initial period he was disabled from working, he found that he was scared and nervous and experienced anxiety and panic attacks. He began to isolate himself and he did not leave the house. Alcohol was used to try to manage his symptoms. He saw a psychiatrist on a few occasions and while the psychiatrist supported a return to work, the worker testified that the return to work was only in the context of working with younger clients in a different workplace. Unfortunately, this did not get communicated to the WCB or the employer. After a few months, he began to be pressured by his employer and the WCB to return to work in his original position. He did not feel emotionally able to handle a return to work to the same environment. He tried to communicate his reluctance to return to the same workplace, but this did not get through. A gradual return to work was scheduled, but the worker was stricken with panic and felt he was unable to do so. He obtained a doctor’s note which delayed his return to work. Eventually, after delaying the process as much as possible, the worker went back to work.

Upon his return to the workplace, the worker made internal arrangements with his co-workers so that he did not have to engage with the clients. He would restrict himself to performing menial tasks, such as cleaning up around the workplace. As the return to work progressed, his condition got worse. He walked around in a fog and he tried to avoid the clients. He abused alcohol to assist him in falling asleep. During this time, he did not seek medical assistance as he feared he would be cut off WCB benefits and terminated by his employer if he did not return to work. He felt embarrassed and ashamed and guilty so he never notified anyone about the problems he was having with his return to work.

The worker was ultimately terminated from his employment on April 30, 2004. The worker disputes the termination and this is still in the process of arbitration.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after October 25, 2003. In order for the worker’s appeal to be successful, the panel must find that during the relevant time period, there was medical or similar evidence of a continuing disability arising from the compensable incident. In other words, we must decide whether the worker suffered from any ongoing effects of the incident after October 25, 2003 and whether they prevented him from working. On a balance of probabilities, we are able to so find.

At the hearing, the worker’s treating clinical psychologist appeared as a witness. The psychologist’s evidence was that his diagnosis of the worker’s condition over time has been PTSD and a major depression. The clinical psychologist provided the panel with information regarding a PTSD diagnosis and proper treatment of the condition. To be diagnosed with PTSD, a person must have experienced a threshold event; an event which is outside the bounds of usual experience and usually leads to a sense of horror, shock, feeling overwhelmed, stunned, immobilized. In some cases, there is delayed onset, where after a period of time, a seemingly less severe event triggers the post traumatic symptoms. After the threshold event, there are three clusters of symptoms: reliving, anxiety, and avoidance. Ideal treatment would involve symptom management, then a process of desensitization which would involve a graduated, planned and careful way of exposing the person to the situation that led to the development of the post traumatic reaction. The clinical psychologist was of the opinion that in retrospect, the decision to return the worker to work at the same location was inappropriate and re-exposed him to trauma related symptomatology. He also indicated that in all the times he has seen the worker, he has never seen him to have an earning capacity. When asked about what PTSD symptoms caused the worker to be unemployable, the psychologist listed both PTSD and depressive symptoms of high level of basal anxiety, level of agitation, ease of triggering, low stress tolerance, sleep disturbance, energy disturbance, problems in continuity of thinking, problems with follow through and social avoidance. Specific PTSD symptoms were the reliving, repetitive dreams, flashbacks, and intrusive ideation.

The clinical psychologist also discussed secondary victimization, which he described as something that may occur when the syndrome (PTSD) is present, and it becomes much more problematic when the person is put back into an environment where they are uncomfortable, they feel not listened to, not appreciated, and where the person almost feels punished. In such cases, given the already restricted coping skills, the effects may be very deleterious. The clinical psychologist was asked by the panel whether he felt that the depressive symptoms resulted from the secondary victimization, rather than by the PTSD. His response was that there are multiple pathways to depression and secondary victimization is not a separate condition, but is a dynamic fact to look at with post traumatic stress. It is a concept that is relevant in terms of how people cope with bad things.

Finally, the clinical psychologist was asked whether he felt that the termination of the worker’s employment was a triggering event for a delayed onset of PTSD symptoms. The response was that on his construction of the worker’s case, he did not believe that this was a case of delayed PTSD triggered by the termination. It was possible, but he did not have that information. He noted that the family physician’s report suggested that the PTSD symptoms predated the termination, based on the severity as reported.

The difficulty faced by the panel in considering the evidence in this case is the interplay between the worker’s PTSD symptomatology and the worker’s individual reaction to situational stress. The clinical psychologist admitted that it is difficult to separate the two.

This was also the view expressed in the October 3, 2006 assessment of the independent psychiatrist who found that the worker is suffering from both the psychological sequelae as a result of the workplace incident and from the financial, psychological and career implications of termination and prolonged unemployment. The psychiatrist’s opinion was that the two issues and consequences are intertwined, and that the worker’s psychiatric status was that he was not able to work in any capacity at that time.

The MRP report of October 9, 2007 also opined that the worker currently suffers from PTSD and major depressive disorder, and the etiology of the PTSD was the incident at work. The depression was regarded as a complication secondary to the PTSD.

After review of the evidence as a whole, the panel is of the unanimous opinion that, at the present time, the worker continues to suffer from PTSD symptomatology related to the April 12, 2003 incident and that the worker’s PTSD symptoms prevent him from being employed in any capacity. While there were other factors involved in the development and severity of the symptoms, the worker’s reaction to the traumatic event in the workplace has remained a major contributing factor to his present inability to work.

The point of divergence between the majority and minority surrounds the question of when the PTSD symptoms incapacitated the worker from engaging in employment.

We know that after October 25, 2003, the worker was able to return to his former employment. Although his evidence at the hearing was that it was very difficult and that he returned only because he was pressured to do so by his employer and the WCB he did, nevertheless, manage to continue to work in that capacity for several months.

The majority finds that the date upon which the worker is to be considered disabled from working is May 13, 2004. May 13, 2004 is the date of the first medical evidence documenting the decline in the worker’s psychological condition. The report of the family physician indicates that at that time, the worker was: “showing signs and symptoms of PTSD, most likely related to the incident of April 26, 2003 (sic)” and that the worker was “not in condition to return to work, he will need time off work for further counseling.” The treating physician’s assessment of PTSD was later confirmed by the specialists who treated the worker, including the clinical psychologist who assessed the worker a few months later in October, 2004.

Although throughout the course of the file, the worker’s PTSD symptoms wax and wane, at no point does it appear that the PTSD symptoms totally resolve. As in the findings of the independent psychiatrist, we find we are unable to reliably delineate the effects of the PTSD from the effects of situational stress. There is clearly some overlap between the two. The majority is, however, satisfied that the PTSD played a major role and caused a loss of earning capacity from May 13, 2004 onwards. The worker is therefore entitled to wage loss benefits effective May 13, 2004. The 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 1st day of August, 2008

Commissioner's Dissent

Under these circumstances, where a worker has lost his job for non-compensable reasons, the only way for the worker to access wage loss benefits would arise when his compensable medical condition has deteriorated to the point where he would not have been able to do the job he had, before he was terminated.

In this case, there appears to be a consensus among his healthcare providers that he was unemployable after his termination. The question is whether it was due to a compensable psychological condition or to a non-compensable psychological condition (a reactive depression in this case).

After a review of all the information on the file, I have concluded that the worker started to show mild PTSD symptoms within a couple weeks following his termination in employment, but that this condition was confirmed to be mild in severity, at least into January 2005. I further conclude that the worker suffered a significant (and non-compensable) reactive depression to his dismissal, which was the primary focus of treatment through January 2005.

I further find that as of February 3, 2005, the worker’s presentation to his healthcare practitioners underwent a major and long term shift. This change was consistent with subsequent medical reports describing a major increase in severity of the worker’s PTSD symptoms, and became the primary cause of his inability to work from that point forward. On the basis of these findings, I find that the worker would be entitled to wage loss benefits from February 3, 2005 and forward.

A. Finkel

Commissioner

Signed at Winnipeg, this 1^st day of August, 2008.