Decision #107/08 - Type: Workers Compensation

Preamble

On May 31, 2006, the worker filed a claim with the Workers Compensation Board (“WCB”) for injuries that she incurred on May 26, 2006 while attending a client’s residence. It was later determined by primary adjudication and Review Office that the worker did not have a psychological injury related to the workplace incident and that she was not entitled to benefits beyond March 27, 2007. The worker’s union representative disagreed and filed an application to appeal with the Appeal Commission. A hearing then took place on July 24, 2008 to consider the matter.

Issue

Whether or not the worker has a psychological injury related to the workplace incident of May 26, 2006; and

Whether or not the worker is entitled to wage loss benefits after March 27, 2007.

Decision

That the worker has a psychological injury related to the workplace incident of May 26, 2006; and

That the worker is entitled to wage loss benefits after March 27, 2007.

Decision: Unanimous

Background

On May 26, 2006, the worker reported injuries to her cervical and thoracic spine and left shoulder due to the following work related accident:

“I was on a home visit. I went into the home and her bedroom is at the front of the home. She does not speak English. We wanted to do the interview in her bedroom. But when going into the living room, my back was to her and she grabbed me from behind. She grabbed both my shoulders and pulled me backwards. I stepped back about 2-3 steps with her and then twisted to get out of her grasp to get away from her.”

Following the incident, the worker sought treatment from a chiropractor and a general practitioner for neck, back and shoulder pain. She also complained of stress, anxiety and flashback memories of the assault. On June 22, 2006, the general practitioner referred the worker to a psychologist with a diagnosis of adjustment disorder and for possible post traumatic stress disorder (“PTSD”).

The claim for compensation was accepted based on a diagnosis of a strain/sprain to the back and responsibility for chiropractor treatment and wage loss benefits were paid. On June 1, 2006, the worker returned to her regular duties but went off work on June 23, 2006 due to ongoing back difficulties.

On June 27, 2006, the worker advised a WCB staff person that she was seeing a psychologist as she was not dealing very well with her injury and the attack. She had trouble sleeping and was afraid for her safety.

In a memorandum dated July 5, 2006, a WCB case manager documented a telephone conversation that he had with the treating psychologist. He stated, in part, “[treating psychologist] noted that she was not sure that this would even be a WCB claim or if it should go to Blue Cross. I asked her at this time what she felt the current working diagnosis would be and she noted definitely that this was a retriggered residual PTSD situation, specifically related to a traumatic event that took place some 20 + years ago when she was held hostage at gunpoint for a 4 hour period. [The psychologist] noted that this most recent event would likely be the ‘straw that broke the camels back’ and she noted that this would definitely be considered as an aggravation of a pre-x, Psychological condition. She further noted that there may be some issues surrounding a possible depressive mood disorder but she will work that out completely after a few more sessions.”

In a further memorandum dated July 5, 2006, the WCB case manager recorded that he agreed with the treating psychologist’s position that this was “likely an aggravation of an underlying pre-existing psychological condition” and that he was authorizing the worker to undergo six treatment sessions with the psychologist.

In a letter to the family physician dated July 5, 2006, the treating psychologist reported that the worker presented with symptoms of a depressed mood, exaggerated fearfulness, crying spells, nightmares and insomnia. As a result of the recent assault, the worker was re-experiencing the symptoms of a PTSD and possibly some signs of depression. The psychologist reported that the worker was held hostage at gunpoint for four hours in B.C. over twenty years ago in her capacity as a social services worker.

In a narrative report to the WCB case manager dated October 16, 2006, the psychologist outlined details of her treatment sessions with the worker. The psychologist reported that the worker had gone through a number of other incidents in which she had been assaulted or harassed in the course of her 25 years in the social services field. These incidents occurred in 1982, 2002 and 2004. The psychologist stated “Although I initially indicated to you in our telephone conversation of July 5, 2006 that her symptoms might well represent the reactivation of symptoms previously repressed as a result of the hostage-taking in B.C. and other events, I am now of the opinion that [the worker’s] symptoms are severe enough to warrant a full Posttraumatic Stress Disorder diagnosis related to the May 26, 2006 incident. I am also basing this opinion on the fact that, when it occurred, [the worker] could not have predicted that the assault would end with her receiving only relatively minor injuries. Given her history of having been threatened with serious injury in the past, she would in all likelihood have anticipated the worst when she was assaulted again.”

On January 15, 2007, the worker was interviewed by a WCB psychiatric consultant and she described the events that occurred on May 26, 2006. She stated, in part, “…she wanted to conduct the interview in the bedroom and the claimant and her colleague explained that this was not possible, they should move out into the livingroom. The client became agitated and then grabbed the claimant from behind as if to more forcefully demonstrate her wishes. It went through the claimant’s mind that the client was using two hands, therefore did not have access to a weapon, and she turned around quickly to see the expression on the client’s face but did not detect any hostility. Nonetheless, she was alarmed at being grabbed and twisted and dropped to free herself from the grasp. They then moved into the livingroom at which time the client’s husband and another man entered the residence. The claimant then “panicked” and did not recall much of the remaining sequence of events.” It was concluded following the assessment that the worker’s symptoms as described by the treating psychologist, i.e flashbacks about the incident, sleep difficulties, irritability, difficulty concentrating and hypervigilance, did not meet the diagnostic criteria for PTSD. The consultant was further of the opinion that the worker did not have an Axis I psychiatric diagnosis or any other psychiatric diagnosis related to the compensable injury and that the worker’s cognitive function did not preclude a return to the workplace.

A WCB case manager met with the worker and her husband on February 21, 2007 to discuss the return to work process. The worker indicated that there was a very poor working relationship with some of the senior staff and that she had been very outspoken regarding what she determined to be neglectful safety and other issues within the workplace. There had been managers and directors that had been very cruel to her and others and that she was very concerned that her issues would not be taken seriously in the workplace. The case manager advised the worker that responsibility for her claim would be ending.

On March 14, 2007, the treating psychologist referred the worker to another physician to determine whether the worker required further medical treatment. The psychologist indicated that the worker’s symptoms had escalated in intensity since she was told that she was fit to return to work by the WCB.

By letter dated March 20, 2007, the WCB advised the worker that based on the WCB psychiatric consultant’s opinion that there was no indication of any need for physical or psychological restrictions based on her injury of May 6, 2006, the worker was capable of returning to her pre-accident employment and she was no longer eligible for wage loss coverage.

On March 28, 2007, the worker’s union representative argued that the worker continued to suffer a loss of earning capacity as a result of her workplace injury. In support of her position, the union representative referenced a report made by an independent psychiatrist dated March 19, 2007 and from the treating psychologist dated March 20, 2007.

In the report dated March 19, 2007, the independent psychiatrist outlined the view that the worker was exhibiting symptomatology in three PTSD domains such as re-experiencing, avoidance and hyperarousal consistent with the diagnostic criteria for PTSD. He felt that with aggressive treatment, the worker was capable of recovering from her condition but would have some continued vulnerability to situations in which she perceived her safety to be at risk. He felt it may not be feasible for the worker to return to her previous employment as a return to her previous occupation could reactivate symptomatology to a level where she may become occupationally impaired. The psychiatrist outlined the view that the current diagnosis PTSD represented a new condition attributable to the events in the workplace and was not a reactivation of a pre-existing condition.

In the report dated March 20, 2007, the treating psychologist outlined rationale to support her opinion that the worker continued to suffer from PTSD due to the May 26, 2006 workplace incident and was not capable of returning to work.

In a second submission dated March 29, 2007, the union representative requested the convening of a Medical Review Panel (“MRP”) in accordance with subsection 67(4) of The Workers Compensation Act (the “Act”) due to the difference of medical opinion between the WCB’s consultant and the worker’s treating practitioners.

On May 28, 2007, the file was reviewed by the WCB psychiatric consultant who had interviewed the worker in January 2007. In response to questions posed by the WCB case manager, the consultant provided the following comments:

· that on a balance of probabilities, the current symptoms described by the treating psychologist and independent psychiatrist were not related to the compensable event as evidenced by:

o history over the past 20 years of workplace conflict;

o family issues;

o the worker had initially improved, but then deteriorated after hearing a supervisor made negative comments about her;

o worker went into crisis after the WCB found she was able to return to work;

o no suggestion of autonomic arousal when interviewed by the independent psychiatrist.

· the reports by the two consultants did not add information or new evidence for restrictions or any additional treatments;

· there was no psychiatric diagnosis that was related to the compensable incident and that the worker’s current difficulties were not considered related to the compensable incident.

On May 29, 2007, the WCB case manager advised the worker that the submitted medical information was reviewed in conjunction with a WCB medical consultant and that the decision made on March 20, 2007 remained effective.

On June 15, 2007, a WCB sector services manager granted the request for an MRP based on a difference of medical opinion.

In a submission to Review Office dated June 25, 2007, the union representative appealed the case manager’s decisions dated March 20, 2007 and May 29, 2007. The union representative maintained that the worker continued to suffer a loss of earning capacity based on the medical opinions provided by the independent psychiatrist and the treating psychologist.

On July 5, 2007, Review Office determined that the worker did not have a psychological injury related to the workplace incident of May 26, 2006 and that there was no entitlement to wage loss benefits after March 27, 2007. It was Review Office’s opinion that the worker’s psychological distress was in response to WCB processes, ensuing events and to dealing with external stressors rather than a direct causal result of the workplace event of May 26, 2006. It stated that a reaction to the “process” and to “external stressors” was not compensable. Any loss of earning capacity that may exist after March 27, 2007 was not the responsibility of the WCB.

An MRP took place on January 29, 2008. In answer to questions posed by primary adjudication, the MRP determined that the worker developed PTSD and a co-morbid major depressive disorder resulting from her workplace incident. It indicated that the worker did not have a pre-existing psychiatric condition at the time she experienced the workplace incident and that restrictions were required as a result of her compensable injury.

Based on the MRP’s findings, the worker was advised on March 7, 2008 by the WCB that her wage loss benefits would be reinstated retroactively to March 28, 2007.

Subsequent file records indicate that the decision of March 7, 2008 was made by the WCB in error by the wrong level of adjudication. The case was referred back to Review Office for further consideration.

At the request of Review Office, the file was again reviewed by the WCB psychiatric consultant on April 7, 2008. The psychiatric consultant noted, in part, that the history of events of the compensable injury described by the worker when she was interviewed in January 2007 differed from what the worker described to the MRP.

In a decision dated April 8, 2008, Review Office indicated there would be no change to its previous decision dated July 5, 2007. In making this determination, Review Office indicated that it reviewed the totality of evidence since the start of the claim which included the treating psychologist’s report of January 24, 2008, the MRP report, a submission by the worker’s union representative and the WCB psychiatric memorandum of April 7, 2008. It stated that there were discrepancies between the worker’s evidence at the time she reported her claim and what she reported to the MRP. As the expressed opinions of the panelists were based on what the worker reported to them on that day, as to what happened and how she felt at the time, which is different from that reported to the WCB psychiatric consultant some 12 months earlier, it could not accept the MRP’s expressed opinions. On April 8, 2008, the union representative appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Worker’s Position:

The worker appeared at the hearing with a union representative. The position put forward on behalf of the worker was that the worker suffered a compensable event on May 26, 2006 and that as a direct result of this event, she was diagnosed with PTSD. This condition has resulted in a loss of earning capacity for the worker as it has prevented her from returning to work. The WCB in its decision-making process relied upon other nonwork-related factors and found those nonwork-related factors to be the cause of the worker’s psychological condition. It was submitted that the evidence shows that the nonwork-related factors did not cause the psychological condition; rather, the factors were caused by her condition.

Applicable Legislation:

In order to be entitled to benefits for her psychological injury, the worker must have suffered injury by an accident, as provided under subsection 4(1) of The Workers Compensation Act (the “Act”).

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker;

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

Subsection 1(1.1) of the Act restricts the definition of “accident” by stating the definition: “does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.”

If a claim is adjudicated as an accident under part (c) of the “accident” definition, it must satisfy the definition of “occupational disease” set out in subsection 1(1) as follows:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than as an acute reaction to a traumatic event.

WCB Policy 44.20.60 deals with claims involving psychological conditions. Policy 44.20.60 provides as follows:

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:

(a) Organic brain damage from a traumatic compensable head injury.

(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).

(c) Psychosis resulting from exposure to harmful chemicals at the worksite.

(d) Psychosis resulting from the use of drugs used in the treatment of a compensable injury.

2. Accidents prior to January 1, 1992: Stress or psychological conditions said to be a result of a non-specific event or events and, therefore, cumulative in nature are considered to be chronic stress, and in the absence of a specific identifiable compensable event or events are to be adjudicated on the individual merits and circumstances of the case.

3. Accidents on or after January 1, 1992: Stress is not an occupational disease as defined under The Workers Compensation Act, except as an acute reaction to a traumatic event.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the worker’s psychological condition is related to the workplace incident of May 26, 2006 and that after March 27, 2007, she continued to be disabled from working because of her compensable injury. On a balance of probabilities, we are able to make those findings.

Issue 1: Does the worker have a psychological injury related to the workplace incident of May 26, 2006?

In order to decide this issue, the panel must consider the evidence surrounding the worker’s condition and determine whether her symptoms can be related to the workplace incident. There is ample medical evidence to support that the worker has PTSD which is related to the May 26, 2006 incident, namely:

· The October 16, 2006 and March 20, 2007 reports of the treating psychologist, who had been involved in the treatment of the worker since July 2006;

· The opinion of the independent psychiatrist, as outlined in his reports of March 19, 2007 and June 15, 2007. The independent psychiatrist also gave oral evidence at the hearing regarding his diagnosis of PTSD related to the workplace incident;

· The findings of the MRP held January 29, 2008.

With respect to the opinion of the MRP, the WCB psychiatric consultant had indicated concerns with the conclusions of the MRP due to the discrepancy in the worker’s reporting of events, particularly with respect to whether or not the worker perceived the May 26, 2006 event to be life endangering. At the hearing, the independent psychiatrist was asked for his opinion as to the significance of the differences in reporting. His response was that he felt there were only minor differences in detail and that the general description of the incident was remarkably similar to all other descriptions. The independent psychiatrist stressed that what is relevant to a diagnosis of PTSD is that there is the perception of a severe life threatening event. In his opinion, the way that the worker described her experience of the event was such that she felt it was life threatening.

The worker’s evidence at the hearing was that when the client grabbed her from behind, her first thought was about whether the client had a weapon. She wondered whether she was going to lose her life. She crouched, twisted and turned to look in the client’s eyes. When she did not see rage in her client’s eyes, she then recognized that the client was not intending to hurt her. At that moment, two men walked into the house, and perhaps due to her heightened anxiety, the worker immediately became fearful that these men could cause her harm. She was aware that there was a restraining order against the client’s husband due to violence. He was one of the two men who had entered the house. She admits that she and her partner stayed at the home for a short time afterwards, but that she kept motioning to leave and all she could think of was that she wanted to get out of there.

In our view, it is reasonable to conclude that at the time of the incident, the worker perceived that her personal safety was at risk. The panel accepts that being suddenly grabbed from behind in a situation where she already felt uneasy followed by the presence of the husband did cause the worker to fear for her life and constituted a severe life-threatening event which caused the worker to develop PTSD.

It is therefore the panel’s opinion that the weight of the evidence favours the finding that the worker does have a psychological injury which is related to the workplace incident of May 26, 2006.

Issue 2: Is the worker entitled to wage loss benefits after March 27, 2007?

Given our finding that the worker’s psychological condition is related to the workplace incident, the worker is entitled to wage loss benefits after March 27, 2007.

The March 20, 2007 report of the treating psychologist indicates that at that time, the worker had not recovered from the incident and that she was not fit to return to work because she was continuing to suffer from a number of symptoms of PTSD including recurrent dreams about death and dying, and intense distress at the thought of returning to her former job duties and workplace. She continued to experience intense physiological arousal when directly or indirectly reminded of the event which precipitated her symptoms, and she remained hyper-vigilant about further dangers. In the treating psychologist’s opinion, the worker’s fragile condition, severe concentration difficulties, tearfulness, hyper-vigilance and anxious, irritable and depressed mood all indicated that it would be impossible for the worker to return to work at that time. The panel accepts this opinion and finds that because of her work related PTSD, the worker was not fit to return to work after March 27, 2007.

As outlined earlier, WCB Policy 44.20.60 gives direction regarding claims for psychological conditions. The policy provides that where 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 shall be considered a personal injury by accident, for which compensation may be paid.

WCB Policy 44.20.60 also provides a non-exclusive list of incidents which may give rise to psychological conditions for which compensation may be paid. In our opinion, the worker’s situation falls under (b) of this list which refers to a psychological reaction or condition which is a direct result of a serious compensable life-threatening injury/event. In the present case, although the client may not have intended the worker any harm, we find that as the worker had a reasonably-held subjective perception of serious life-threatening harm, compensation may be paid to the worker for the loss of earning capacity resulting from the psychological injury.

The worker is therefore entitled to wage loss benefits after March 27, 2007. The worker’s 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 26th day of August, 2008

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