The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations, and policies made by the WCB Board of Directors.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Worker’s Position:

The worker was assisted at the hearing by a worker advisor. It was submitted that the worker’s diagnosed psychiatric condition was a further injury which the evidence supported, on a balance of probabilities, was caused by her compensable injury. It was conceded that there was no evidence to confirm that the worker developed a significant psychological injury directly from the slip and fall incident on December 4, 2005; however, the evidence did show that the worker developed a major depressive disorder as a consequence of the resultant injury, the lack of recovery and ongoing disability. It was argued that it was the injury and the ongoing disability which was predominantly responsible for the worker’s depression. It was the injury that took away the worker’s independence and her ability to be active in home life and work life. It was not the decisions by the WCB or the interactions with the employer. The worker advisor relied on the more recent clinical findings of a TFCC tear to submit that the worker’s injury was more significant than initially thought, and that there was objective verification of the worker’s disability and ongoing complaints of pain. The clinical findings reinforced the opinion of the WCB psychiatric consultant who concluded that the pain and disability from the right arm injury was a significant cause of the development and ongoing severity of the worker’s depressive symptoms. The panel was therefore asked to accept responsibility for the worker’s psychological condition.

The Employer’s Position:

A representative from the employer participated by teleconference. The employer’s position was that the evidence did not establish a direct relationship between the psychological condition and the compensable injury. It was submitted that the worker’s psychological condition was not a direct reaction to coping with her compensable physical impairment. Instead, the evidence, and in particular, the clinical notes of the treatment providers, showed that the worker’s condition was directly related to her perception of mistreatment by the WCB and her employer. The worker’s personality traits drove her to focus most of her attention on how she felt she was being treated rather than using that energy to focus on moving on with her life. The employer noted that the clinical notes reflected improvements and/or deterioration in the worker’s psychological condition and moods depending on the status of the adjudication of her claim. The therapy received by the worker centered on her obsessive focus with her work situation rather than her disability. It was submitted that this supported that the predominant driving factor behind her psychological reaction was not her compensable condition, but the decisions and actions surrounding her claim.

Analysis:

The issue before the panel is whether or not responsibility should be accepted for the worker’s psychological condition. The worker claims that she developed a major depressive disorder secondary to her compensable right hand injury.

In order for the worker’s appeal on this issue to succeed, the panel must find her psychological condition qualifies as a “further injury” under one of the three tests set out in the Further Injuries Policy. The test applicable to the worker’s major depression would be the one contained in paragraph (i), that is, whether or not the cause of the further injury is predominantly attributable to the compensable injury.

The administrative guidelines to the Further Injuries Policy provide as follows:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g. unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance.

There does not appear to be any real dispute in this case that the worker is suffering from a disabling major depressive psychological disorder. The crux of the issue concerns the cause of the depression. The WCB psychiatric consultant’s report of September 23, 2008 lists the following as contributing causes to the psychiatric diagnosis:

• Psychosocial factors related to the workplace relationships and insurance claims the worker has had through the accident employer and the WCB;
• The worker’s perception of how she has been treated over time;
• Some underlying vulnerability to Depression;
• Some Axis II personality traits;
• The right arm injury and the degree of pain and limitation in motion; and
• Impairment she has experienced due to the pain.

At the time when the September 23, 2008 opinion was rendered, the worker’s physical diagnosis was thought to be complex regional pain syndrome. Subsequent to the hearing, in October, 2009, the WCB completed further medical investigation into the worker’s right arm injury and a new diagnosis of a TFCC tear was identified and accepted as compensable. It was also noted that the worker now had advanced degenerative changes present in her right wrist, as osteoarthritic involvement, likely with some enhancement as a result of the injury, and there was some evidence of ulnar impaction.

According to a medical opinion provided by a WCB medical advisor dated October 1, 2009, the previous diagnosis of complex regional pain syndrome is normally expected to be improvable by reactivation and remobilization of the wrist. However, with the presence of the other conditions in the wrist (osteoarthritis, TFCC tear and ulnar impaction), this may not be possible. When the history of the worker’s claim is reviewed, one can see that pressure was placed on the worker to engage in more aggressive rehabilitative efforts, such as more vigorous physiotherapy. The worker resisted these efforts, citing increased pain. In hindsight, while the push to mobilize the worker was appropriate given the initial diagnosis, it is now apparent that with the presence of a TFCC tear, this was medically not the right approach for this worker; the increased pain and lack of recovery no doubt frustrated the worker and also contributed to her psychological condition.

After reviewing the evidence as a whole, the panel is satisfied, on a balance of probabilities, that the pain and disability arising from the worker’s compensable right hand injury significantly contributed to the development of her major depressive disorder. While we acknowledge the employer’s arguments that most of the counselor’s clinical notes focused on the worker’s frustration in dealing with the WCB and her employer, the panel feels that her physical right wrist injury was still enough of a factor in the development of her depression. In making our decision, we acknowledge the complexity of determining the etiology of a psychological condition, and the multi-factorial nature of the diagnosis. We are, nevertheless, satisfied that the pain and limitation which the worker experienced was a significant contributor and that the depression can considered to be predominantly attributable to the worker’s reaction to coping with the sequelae of her right wrist injury.

For the foregoing reasons, we find that the worker suffered a further injury as a result of her compensable injury and accordingly, responsibility should be accepted for the worker’s psychological condition. The worker’s appeal is allowed.