Decision #22/09 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for injuries that he suffered to his right elbow in a work related accident that occurred on April 4, 2006 as well as psychological symptoms stemming from the incident. The accident employer disagrees with the WCB’s position that the worker’s psychological symptoms are related to the accident and an appeal was filed with the Appeal Commission. A hearing was held on December 9, 2008 to consider the matter.

Issue

Whether or not the worker’s psychological symptoms are related to the April 4, 2006 compensable accident.

Decision

That the worker’s psychological symptoms are related to the April 4, 2006 compensable accident.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries to his neck, right elbow and left leg that he attributed to an incident that occurred on April 4, 2006. The worker reported that he was transporting a stretcher over a snow bank when the stretcher tilted towards his left and he tensed up to prevent the stretcher from falling. He later noticed that his neck was sore and he had a hard time moving it from side to side. After he finished his shift, he went home and had a hot bath and then went to bed. When he awoke in the middle of the night, his left leg on the outside thigh was completely numb. His neck was still sore three weeks afterwards. He also noticed a pain in his right elbow.

File records showed that following the April 4 work incident, the worker continued to work his regular job duties and sought medical treatment on May 11, 2006 for his right elbow. He then continued working until May 20, 2006 when he stopped work because of discomfort.

On June 1, 2006, the worker was advised that his claim for compensation was accepted but he was not entitled to time loss or medical aid benefits as the adjudicator was unable to establish that his current difficulties were related to the April 4, 2006 accident. The decision was appealed to Review Office on July 26, 2006. On October 25, 2006, Review Office accepted responsibility for medical treatment related to the worker’s right elbow epicondylitis condition but not for the worker’s back treatment.

In a progress report dated November 16, 2006, the treating physician provided a new diagnosis of post traumatic stress disorder (“PTSD”) and fibromyalgia.

On November 22, 2006, a WCB case manager spoke with the worker about the events that occurred on April 4, 2006. The worker indicated, in part, that his partners were trying to resuscitate an unconscious baby and that he was sent to bring in a stretcher when his injuries occurred. When he proceeded to carry the stretcher outside and into the ambulance, some cords/cables got caught in the door and were pulled out. His supervisor yelled at him spontaneously. Once in the ambulance, they re-intubated the baby. Upon arrival at the hospital, the child was pronounced dead. Soon after the family arrived and the worker was present at the time of notification. It was obviously a very difficult scene. The worker advised that with the passage of time, his pain became broad-based and non-specific in orientation. His systemic complaints began to be investigated in the summer. His doctor proceeded with a barrage of physiological tests including x-rays and blood work. At one point the worker thought he might have cancer or arthritis. Finally, his doctor asked him if he had ever experienced something bad or traumatic, and during that visit, the PTSD diagnosis was contemplated for the first time. The worker indicated that this was the second time that he had significant disabling psychological periods in his life.

Medical information was received from a clinical psychologist dated December 28, 2006. He stated that when he saw the worker on December 21, 2006, he noted that the worker had very significant Post-Traumatic Stress symptoms and possible somatization.

The worker was interviewed by a WCB psychiatric consultant on March 14, 2007. The report noted that following the compensable injury, the worker began to develop a reduced ability to sleep at night, as he became more and more obsessed with the idea that something would happen to his own kids (ages 2, 4 and 11). He was thinking frequently about the April workplace incident and was having intrusive thoughts in regard to this. The worker would lie awake at night obsessing about his children’s health and well being. If he was not right next to his children, he would often begin to develop palpations with headache, sensations of dizziness, chest pain feeling like a heart attack, anxiety and a feeling of loss of control. The WCB psychological consultant concluded:

“In my opinion, his current symptoms are directly related to the workplace incident of April 4, 2006. It is not my opinion that they are significantly related to the workplace incident of 1990, because it is most likely that even if the incident (sic) 1990 had not occurred, he would have still developed the current symptom profile following the April 2006 event. It is also my opinion that his current psychological symptoms are not related to a pre-existing condition.”

On April 11, 2007, a WCB case manager accepted responsibility for the worker’s current psychological symptoms and associated medical costs. The acceptance was based on the probable relationship between the workplace events that transpired on April 4, 2006 and a documented predisposition/vulnerability to this kind of psychological fall-out.

The worker was interviewed by a second psychiatrist at the employer’s request. In his report dated May 23, 2007, he stated, in part,

“In conclusion, [the worker] is a 40-year-old man who seems to have recovered from a bout of post-traumatic stress. I am not completely convinced that this patient has experienced classic Post-Traumatic Stress Disorder. PTSD usually involves a situation where there is greater physical threat to the patient. There are certainly other factors such as generalized anxiety, possible obsessive tendencies and associated guilt issues that cloud this patient’s presentation.”

In a submission to Review Office dated October 17, 2007, the employer’s representative outlined the position that the totality of credible evidence on file did not support a relationship between the medical condition accepted by the case manager and the incident of April 4, 2006. To support his position, the representative submitted a report by an independent forensic psychiatrist dated September 18, 2007 which outlined the view that the worker did not have PTSD as was suggested by the WCB psychiatric consultant and the psychologist who saw the worker on December 21, 2006.

The Review Office considered the employer’s appeal submission as well as a rebuttal submission from the worker (undated). On March 13, 2008, Review Office upheld the case manager’s decision that the worker’s psychological symptoms were related to the April 4, 2006 compensable accident. Review Office accepted the opinion of the second psychiatrist who examined the worker on behalf of the employer when he opined that the worker “seems to have recovered from a bout of post-traumatic stress.” It placed less weight on the forensic psychiatrist who was not able to interview and assess the worker’s demeanor. It also accepted the opinion of the WCB psychiatric consultant that the worker’s current symptoms were directly related to the workplace incident and that the worker’s current psychological symptoms were not related to a pre-existing condition. Review Office felt that the evidence in its totality supported “a probable relationship, in that it was more likely than not, the traumatic evident of April 4, 2006, resulted in symptoms acutely manifested in the reported diffuse pain, sleep disturbance and heightened vigilance.”

On March 31, 2008, the employer’s representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Employer’s Position:

A representative from the employer appeared at the hearing. It was argued that the totality of the evidence in this case did not establish the necessary nexus between the worker’s psychological condition and the compensable incident of April 4, 2006. It was noted that the worker initially did not lose any time from work as a result of the incident and that he continued to work for seven weeks thereafter without avoidance of the stimuli normally associated with his profession. On May 20, 2006, the worker ceased work and sought medical attention for the first time. During this period the attending physician noted that the symptoms were largely physical. On October 31, 2006, nearly seven months after the accident, the worker was diagnosed with PTSD by the attending physician. He was referred to a psychologist who confirmed the diagnosis and that the condition was related to the incident of April 4, 2006. The psychologist opined that initially, the worker’s psychological distress manifested somatically and only later did it become evident that the worker was using somatic and conversion like coping mechanisms to deal with his PTSD symptomatologies. It was submitted by the employer that there was no medical corroboration that the psychological symptoms were present from the very beginning. Further, in light of the fact that the worker had been previously diagnosed with PTSD, one would anticipate a recurrence of same immediately following the incident, which there was not. The employer placed considerable reliance on the file review performed by the forensic psychiatrist and also noted that the consulting psychiatrist and the WCB psychiatric consultant were both unable to conclusively state that the worker did in fact have PTSD.

Worker’s Position:

The worker appeared at the hearing with a worker advisor. The worker’s position was that the WCB correctly determined that his current symptoms are directly related to the workplace incident of April 4, 2006. It was submitted that PTSD claims do not ever start out as such. Many injured workers do not conclude that they have had psychological trauma when they suffer an injury. They may have physical concerns, but no one wants to believe that their psyche has been affected. Unfortunately, at times this is the case. At times, people react in unexpected ways, and that is what occurred in this worker’s case.

Applicable Legislation:

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

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.

Analysis:

In order for the employer’s appeal to be successful, the panel must find that the worker’s psychological condition is not related to the workplace incident of April 4, 2006. On a balance of probabilities, we are not able to make that finding.

At the outset, we note that much of the employer’s argument focused on the fact that the progression and type of symptoms exhibited by the worker did not fit the typical symptom complex of PTSD. In the panel’s opinion, it does not matter whether the constellation of the worker’s psychological symptoms amounted to a classic diagnosis of PTSD. Our focus is on whether the worker suffered from a “psychological condition” attributable to the accident which could be considered a personal injury by accident, for which compensation may be paid.

After a review of the evidence as a whole, the panel concludes that the worker’s psychological symptoms are related to the April 4, 2006 compensable accident. In coming to our decision, the panel relied on the following evidence:

  • The December 28, 2006 report from the treating clinical psychologist opines that the worker clearly had post-traumatic symptoms associated with the event that occurred on April 4, 2006. The clinical psychologist was familiar with the worker as a patient as he had previously treated the worker for a traumatic event which caused the worker to suffer from prolonged injuries due to a post-traumatic and conversion-like set of symptoms. Given the clinical psychologist’s long term knowledge of the worker’s condition, the panel places a significant amount of weight on his opinion.
  • The WCB psychiatric consultant also opined that the worker’s current symptoms are directly related to the workplace incident of April 4, 2006. In his March 14, 2007 report, the WCB psychiatric consultant noted that the worker’s main problems were related to his sleep and his anxious, obsessive, ruminative thinking regarding his children’s safety. He also stated: “I do not think that it is the case that there was a significant delay in the onset of psychological symptoms; rather it is my opinion that (the worker) is a somatizing individual and focuses on physical symptoms rather than on psychological distress as an explanation for his problems.
  • The medical reports reflect that sleep disturbance was evident from an early stage. The physiotherapy assessment dated May 24, 2006 indicates sleep was already disturbed at that time.
  • The worker’s evidence at the hearing was more conservative and he candidly admitted that he could not specifically recall when his sleep started to become disturbed. He estimated that his sleep disorder began before August (2006) but was unable to be any more precise. The panel found the worker to be credible without any exaggeration of his symptoms.
  • The May 23, 2007 report of the general practitioner states that: The reasons that he was unable to work was largely that his sleep was so disturbed. None of the medications that were tried were very helpful. He was emotionally and physically exhausted. I do not believe that he was capable during this time of doing anything substantive, as he was entirely focused on his pain, and our treatments were at that time focused on trying to elucidate a diagnosis and manage symptoms physically. He denied psychological origins, frankly, because he at that time did not have the insight into their impact on his physical well being.”
  • The evidence of the worker at the hearing was that he was able to continue to perform his duties between the date of the incident in April 2006 until he sought treatment from his physician in May, 2006. He also noted, however, that during that time, he was absent from work for a week and a half due to knee surgery and he was working on a transfer truck, which did not require him to respond to emergencies. Thus, although the worker was able to continue working for approximately six weeks post-incident, it was in a less stressful position and he did not work continuously.
  • In the panel’s opinion, the worker’s presentation at the hearing was consistent with a non-psychologically minded individual. When describing his condition in 2006 after he went off work he stated: “I just sort of went on with my daily life and tried to figure out what was wrong with me. Being in a lot of pain, losing sleep, it got to the point where I just, you know, I thought there was something else wrong because, you know, it went from one thing to another thing, then my back and then my sleep. Everything just started being affected by this. So I kind of pushed everything else behind and I started talking to my doctor about, you know, what else is going on with me. Like I mean maybe there’s cancer, or maybe, you know, there’s something else because I’m just in a lot of pain and I don’t feel very good.” It was evident to the panel that the worker was searching for a physical cause for his symptoms.
  • The report of the second psychiatrist dated May 23, 2007 was prepared for the purpose of assessing the worker’s fitness for a return to work. Although the employer argues that the second psychiatrist concluded that the worker in all probability did not have PTSD, we do not read the report as reaching that conclusion. The report itself is focused on the ability to return to work in May 2007, and while the second psychiatrist indicated that he was not convinced that the worker experienced classic PTSD, he made no conclusions in that regard. The report does confirm that mental status examination indicated that the worker did exhibit a propensity towards anxiety and that he was at a greater risk of getting PTSD because of previous psychiatric treatment.

The employer placed significant weight on the report of the forensic psychiatrist dated September 18, 2007. The overall thrust of this report is that the diagnosis and accounts relayed by the worker and associated parties be viewed as not credible. In the report, it is acknowledged that the impressions are based solely on a chart review and that the worker had not been interviewed by the forensic psychiatrist. In the circumstances, the panel discounts the opinions contained in the report as the credibility findings are based on file review alone. The panel prefers the opinions of the clinical psychologist, general practitioner and the WCB psychiatric consultant, which are based on face to face interviews with the worker and a working knowledge of his condition.

Based on the foregoing, the panel’s opinion is that the weight of the evidence favours the finding that the worker’s psychological symptoms are related to the April 4, 2006 compensable accident. The employer’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of February, 2009

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