The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction:

The hearing of this appeal took place over the course of four days.

During that time the panel heard testimony from the worker, the worker’s treating psychologist, and an expert psychologist called to testify on behalf of the worker (“the worker’s expert psychologist”). We also heard testimony from an expert psychiatrist who was called to testify on behalf of the employer (“the employer’s expert psychiatrist”).

In addition to the oral evidence, the panel was provided with reports from both of these experts, and another psychiatrist relied on by the employer, as well as from the worker’s family physician, his treating psychologist, and from a WCB psychiatrist. The panel was also provided with a statement from the worker’s first wife. As well, the panel reviewed the worker’s entire file dating back to when the claim for the compensable injury was originally made in 1965.

At the end of the presentation of evidence, oral submissions were made on behalf of both the worker and the employer.

Issue:

The issue in this appeal is whether the worker’s psychological difficulties are related to the compensable injury he sustained in 1965.

The Parties’ Positions:

The Worker’s Position:

The worker’s position is that his current symptoms are related to the compensable injury, and that he is suffering from Post Traumatic Stress Disorder (“PTSD”). His counsel identified that the issue is whether, at the end of the day, the worker’s psychological symptoms, whether they are called PTSD, mild PTSD or some other residual psychological or emotional difficulty, are causally related to the compensable injury. That is, the label of the worker’s psychological difficulties is not the issue but rather the cause of those difficulties; his position being that the cause of those difficulties was the compensable injury of 1965. It is the worker’s position that the fact that he did not seek treatment for his psychological problems until many years after the injury is not indicative of a lack of causality. Rather, it is his position that he did not identify those psychological problems in himself until later in life. Instead, he buried his problems in work and in other coping mechanisms, until later in life when the symptoms became such that he had to acknowledge that he was having emotional and psychological difficulties. Further, the worker submitted that the fact that he may have had an objectively successful career does not mean that he did not suffer from emotional and psychological difficulties as a result of the workplace injury.

The Employer’s position:

The employer’s position is that the worker does not suffer from PTSD. Further, the employer disputes the existence of psychological symptoms at all. To the extent the worker may have psychological difficulties, the employer disputes that any of those difficulties are related to the compensable injury. The employer points to medical reports which were filled out by the worker’s physician for the Manitoba Highways and Transportation Department in 1993, 1995, 1998 and 2000, in which the physician reports that the worker had no medical problems. The employer also points to the significant time lapse between the occurrence of the compensable incident and the worker’s reporting of symptoms as evidence that no causal relationship between the two exists. It is the employer’s position that the fact that the worker, subsequent to the compensable injury, went on to complete what it describes as a successful career and to maintain personal relationships mitigates against the findings of PTSD. In any event, the employer submits that the evidence does not establish a connection between any symptoms the worker may be currently experiencing and the compensable injury.

The employer’s position is that while there is little question that the incident of March 13, 1965 would have had an impact on the worker, there was no evidence that it impaired his ability to function in a normal fashion. Accordingly it could not be established that the worker’s psychological problems were a consequence of the compensable incident.

Evidence:

The Worker’s Testimony:

In 1965, during the course of his employment, the worker was injured in a serious assault. His description of the assault, he said, came both from his recollection of the event and from what he had been told since the incident. He remembered being tripped and falling. As he fell he recalled a foot flying at him and being kicked in the nose or forehead area. From that point on he said his recollections were very vague. He recalled a big “flash” and then he could no longer see. He said he remembered a very tumultuous-like disturbance. People were yelling and screaming for help. He recalled losing his dentures. He also remembered there were concerns about his emergency equipment going missing. After that, he remembered hearing a siren for what seemed like ages. He could not see but he knew there was a lot of activity. He remembered the siren wailing up and down. He recalled that people were trying to help him right after the assault occurred and that the ambulance ride seemed like “a ride of hours”. And then he said, in his memory there was a lot of confusion regarding arriving at the hospital. He testified his memory seemed to go blank from the point of arriving at the hospital until later that morning. The initial incident itself took place around 12:30 a.m.

The next thing he remembered was waking up in the hospital, feeling very disturbed like he was having a terrible nightmare. He testified that he did not know who he was or where he was. His evidence was that as he started to be able to see, his vision was blurry.

The panel noted that repeatedly, in describing the assault including being kicked in the head, the worker testified that it was like a “very bad dream”. He also testified that ever since the assault he has continually had times through the years when he wakes up in the middle of the night much the same way as he did the morning after what he described as “the very bad dream of the assault”.

In terms of his physical injuries, the worker testified that both his cheek bones were broken and his nose was displaced because of the fractures of the cheek bones. He said he can still feel the breaks to this day because the joint between the top of his nose and his forehead was never properly put back in place. He testified that his eye sockets had to be corrected because they were out of alignment giving him double vision. His jaw was also suspected of being broken.

The worker testified that he was not allowed to look at himself while in the hospital despite asking for a mirror to see his face. He filed as an exhibit at the hearing a photograph of his face which was taken upon his admission to hospital after the assault. The worker testified that it showed his face to be very swollen. It also depicted a heel print in the middle of his forehead and bruises on his forehead and both shoulders. He testified that his nose and even his ears looked fat because of the swelling. He also testified that when he got home and first saw himself in the mirror he felt sick at what he saw.

The worker testified that while in hospital he received a lot of visitors. In particular, he recalled a superintendent from his employer who came to visit him and in doing so said words to the effect of: “You’ll always have a job with [employer]. Don’t worry. You’ll always have a job.”

The worker said he interpreted this as being an indication that his career was finished; that he was being promised a job but not one that would be the same as his original career path prior to the incident. He said he felt devastated and that this change in career path in fact still haunts him.

The worker testified that it was not until he got home from the hospital that he was able to see himself in the mirror. The panel noted that the worker became very emotional when he testified about the first time he saw his face.

The worker went on to describe that when he went home from the hospital he was very restless. He could not sleep. He never admitted having nightmares at the time but he did have dreams and he said that there was no doubt they were nightmares.

The worker described the dreams as “spells”. He said they are usually short-lived. He repeatedly described a dream which involves a falling sensation where he wakes up before hitting the bottom. When he wakes up, he is confused as to who and where he is. He has had these dreams from the time of the incident to the present. The worker’s testimony was that over a period of 44 years since the assault occurred his sleep pattern has been terrible.

The worker described the nightmares he experienced since the assault, in detail. The first of the nightmares he recalled appeared to be in conjunction with when he woke up in the hospital the morning after the assault. The worker was adamant that he never experienced nightmares before 1965, certainly not like the nightmares he experienced after the assault. The falling sensation is always part of the dream - the waking part of the nightmare.

The worker also testified that right after the incident his concerns were for his career and how he would support his family. He was very uncertain as to where he stood with his employer. For example, after the incident he experienced significant headaches. He recalled that when he reported those headaches to his employer’s physician he was advised that he would never go back to work so long as he had the headaches. So, the worker testified, eventually he simply told the employer’s physician that the headaches were gone even though that was not true. His evidence was that he “lied” to the physician because he was concerned about getting back to work and to his original career path.

The worker also testified about other physical symptoms which have persisted since the assault, including sensitivity in his face to changes in temperature. He said he also involuntarily cries in response to changes in temperature. He described a sensitivity on the left side of his face that has never gone away. He has problems pronouncing words and said that at times he cannot spit out certain terms. Further, he finds himself drooling from the left side of his lip.

The worker has undergone numerous surgeries to address physical problems resulting from the injuries he sustained in the assault. There were surgeries in 1969, 1981, 1987, 1991, 1992 and 1993.

The worker also testified that he experienced memory problems after the assault. Prior to the assault, he had a better than average memory. His understanding was that based on the quality of his work prior to the assault, he was on a very positive career path of advancement. After the assault, however, because he experienced cognitive difficulties, his evidence was that his work was not what it had been. He felt he did not receive the promotions he originally expected to receive, nor did he follow the career path that he had originally hoped to achieve.

In that regard, he admitted re-entering the workforce with the same employer and obtaining effectively two promotions in his career. However, his evidence was that he did not think his career was exceptional and that while prior to the assault, he was moving very quickly career-wise, after the assault things “literally stopped”. He said that the realization that his work simply was not as it had been prior to the assault, was very difficult for him.

The worker acknowledged that he had above average attendance during his years of service and that he established good working relationships with his colleagues. He also testified that he felt that he was always being watched by his supervisors throughout his career, feeling he was always under scrutiny in terms of whether or not he was able to do his job after the assault.

The worker’s evidence was that just like with the headaches, he did not inform his colleagues and supervisors about the dreams he was having. He felt it was no one’s business and certainly was not consistent with the culture of his employer to report experiencing nightmares. He said that in the years following the assault he was very self conscious. He also found that over the years he developed claustrophobia, something he had not experienced prior to the assault.

He described getting into a routine after being released from the hospital where, in order to relax he would take long walks for miles, to the point where his wife did not know where he was.

He described that after the assault he and his wife became very distant. Although they still have a reasonable relationship, their marriage disintegrated after the assault. The worker testified that after the assault he started drinking copious amounts of alcohol, something he had not done prior to the assault. He felt that his alcohol consumption became a serious problem in terms of expense and flare-ups of his temper. It adversely affected his relationship with his wife.

The worker testified that when he retired from his employment in 1989, the sleep issues became even more of a problem. He found that when he got up in the morning he had nothing to do and did not have any goals. As a result, he has sought out a variety of jobs subsequent to retirement. In part, he testified, he needed to work himself to the point of exhaustion in order simply to be able to fall asleep.

He testified that since the assault he has also been afraid of being assaulted again during the course of his employment duties. He became preoccupied with not getting involved in any amount of scuffling or anything of that sort and in particular on his left side. Indeed he testified that his sons joke with him about not taking a poke at him on his left side because he is very protective of himself.

The worker was questioned as to why, although he retired in 1989, he did not seek assistance for any psychological problems until 2000. He was asked what went on during the intervening years. His answer was that before retirement he did not want to admit that he had a psychological problem. That was why he did not seek assistance during the course of his career.

The worker testified that in 1992 he changed family physicians. During the course of the initial visit and history, the subject of the assault came up. Whenever he saw the physician after that they would discuss briefly how he was feeling, however, he never asked to be referred to anyone for his psychological problems.

He said he wished that he had asked for such a referral. He stated, however, that he was very private even to the extent that he did not really want to talk to his physician about any psychiatric problems and that he was just trying to exist.

After he retired in 1989, however, at times he said he felt “he was going buggy”. The nightmares were not going away and if anything they were getting worse. He noticed that particularly in his first 10 years of retirement. In 2000 or 2001, at a breakfast for retired employees, he informally approached the benefits coordinator for his union who suggested that perhaps he should consult with a psychologist. Indeed he thinks that his first appointment was made by the benefits coordinator. The worker testified that the first time he met the psychologist was one of the “real tough times”. Even though he had been retired for 10 years, he found that all he did was work. He thought this made no sense. He said that from the time he retired he had not had a holiday. He thought he was going crazy and wondered why he was getting himself involved in so many extra things. While he had not wanted to admit he had psychological problems, he ultimately felt that he had to see somebody.

He stated that he has seen this psychologist on four occasions in the latter’s office. The two of them came to an agreement that the worker could call or telephone the psychologist at any time even when the psychologist is on holidays. The worker found just knowing that to be extremely reassuring.

The worker also testified about the crib death of his infant son that had preceded the assault. He talked about the things he would do with his son before his death and what a sad period of time was suddenly thrust upon him as the result of the death. He also stated that after the death of his son but before the assault he did not experience any sleeping problems; nor did he experience any nightmares until the morning after the assault.

The panel noted that although the worker became teary during the course of testifying about the assault and subsequent surgeries he did not become teary when he talked about the death of his son, despite his evidence was that he was emotionally affected by that death.

It was also noted by the panel that the worker was often rambling and tangential when testifying about the effects of the assault over the course of the years.

The worker testified that ever since the assault he becomes emotional even when seeing something on TV or that in just general conversation tears will start to flow. His evidence was that he was not like that before the assault. The worker testified that the memories of the assault keep coming back. He testified that he has needed to keep himself busy as a means of response. He said he had thought about suicide and that keeping busy was one way of dealing with those thoughts.

With respect to his career, he reiterated that he thought the advancement in his career would have been different. He did not think that it should have taken 19 years to get his first promotion and as for his second promotion he really felt it was part of a restructuring more than an actual advancement based on ability.

The worker also testified that he always felt somehow responsible for having been assaulted and that he buried his guilt for more than 25 years. He felt that in some ways it was insinuated in his employment environment that he was responsible for the assault. He also testified that when he was not busy it seemed that his nightmares were worse. If he was not very tired he could not sleep and then it seemed that the night sweats and bad dreams that he experienced during the course of the night would get worse.

When cross examined about his employment performance the worker testified that he had higher goals than what he had in fact achieved.

Other Evidence of the Assault

The employer’s Report of Accident form which was prepared shortly after the accident confirms the worker’s description of the incident. It describes that the worker was attacked and assaulted by several men. He was knocked or pulled to the floor in the fight that ensued and was kicked about the face and body. His injuries are described as including: broken nose, right cheek bone cracked, left cheek bone possibly cracked, multiple bruises and abrasions to face and forehead.

A Supplementary Crime Report which was filed subsequent to the incident described that when the police went to see the worker he was unable to speak to them, his nose was swollen, both eyes were blackened, and his face was swollen beyond recognition. The writer of the report said it was very clear to him that the worker was in far too much pain for anyone to speak to him.

First wife’s statement:

A statement taken from the worker’s wife on September 19, 2001 provided further evidence of the worker’s condition after the assault. The statement indicates that she remembered his head being “swollen and grotesque”. Her statement indicates “I wouldn’t have recognized him.”

In the statement she comments on the changes she observed in the worker after the compensable injury took place. She said that upon his returning to work he became very stubborn and that that was not his personality. At the time of the assault they had been married for 7 years and had dated for 4 years prior to that. She said that the worker always wanted to look after their first child but he had a completely different attitude to their second child who was born after the assault. She said that the worker thought work was more important than family but that he was not like that before he was assaulted. She said that after the assault he became verbally abusive and his alcohol consumption increased dramatically. She also described that before the assault the two of them had shared the responsibilities of the home whereas after the assault that changed and the worker wanted to be in charge of everything. She said that five years after the assault things got very bad. The worker seemed to separate himself from the family and they never saw him much. She said he often stated that nothing was going to hurt him again or that this was not going to affect him. Eventually she and the worker divorced. She concludes by saying that while she cannot say if the assault played a part, what she can say with certainty is that their lives changed dramatically after the assault.

Worker’s Family Physician’s Report:

The family physician who took on the worker’s care in 1992 wrote a report dated April 15, 2001. The report indicates that in preparation for the report, the physician reviewed the entire chart material regarding the compensable incident and subsequent admissions to hospital. In the report, the physician outlined that he saw the worker on numerous occasions between November of 1992 and September 2000. On several of those office visits, the physician said the worker would describe symptomatology, clinical concerns and complaints related to the cranio-fascial trauma he experienced and its sequela. The physician indicated that to properly understand the worker’s current condition, it was important to review the extensive nature of his injuries sustained in 1965 and the subsequent operations, procedures, and treatments that occurred over the ensuing years. The report then goes on to outline the numerous surgical procedures the worker was required to undergo to deal with the injuries sustained in the compensable incident.

The physician then described the patient’s symptomatology which was present throughout his dealings with him over the past 9 years as follows:

“…headaches, facial pain, blurred vision, diplopia, tinnitus, intermittent dizziness, hearing loss, nasal congestion, loss of facial sensation with associated paraesthesia, gingival pain, as well as psychological symptoms consisting of anxiety, nervousness, depression, tearfulness, nightmares and recurrent flash backs to his traumatic assault.”

The physician summarized his opinion that the worker continues to require regular overview follow up and treatment for all of the medical conditions previously outlined. In particular, he itemized that he continues to experience persistent symptomatology both of a medical and psychological nature as a result of the injuries sustained in the assault and the subsequent operative procedures and surgeries that he has undergone and experienced. He also indicated that he anticipated that the worker would continue to be bothered by these symptoms and that the prognosis was poor for any anticipated improvement because of the chronicity of the symptoms, the worker’s advanced age and the length of time elapsed since the traumatic incident.

In conclusion, the worker’s physician expressed the opinion that the patient’s life has been affected in an adverse way to a significant degree as a result of the assault that he experienced. In addition to his residual deformities present over his face, the physician commented that “…the psychological effects from his assault continue to linger to a significant degree and cause him emotional instability, poor sleep, nightmares, flash backs and a general fragile psyche.”

The panel noted that over the years this same physician filled out medical examination reports for the Department of Manitoba Highways and Transportation Driver and Vehicle Licensing in which he indicated that the worker had no medical problems. Under the Health History and Physical Examination section of the report in the category of “psychiatric disease” the physician on each occasion checked off: “no appreciable disease”.

Worker’s treating psychologist:

The psychologist whose services the worker ultimately sought out in 2001 wrote a report dated September 26, 2001. He also testified at the hearing. His education and work experience included an extensive work history in setting up support services for workers exposed to trauma in their jobs. He has a specialized practice dealing with clients with PTSD. He explained what the criteria for PTSD entailed by reviewing the DSM-IV description of PTSD. The DSM stands for Diagnostic and Statistical Manual of Mental Disorders. It was first produced by the American Psychiatric Association and is the manual which is relied upon by physicians and psychologists when assessing clinical criteria for understanding and separating the symptomatology their patients’ experience.

The worker’s psychologist testified that he saw the worker on four formal in-person sessions and then had numerous contacts with him outside the office, such as, for example, urgent phone calls. On questioning he admitted there may only have been two formal sessions and the rest by phone.

He testified that at the first meeting with the worker his impression was that the beating incident had essentially been the dominating incident in the worker’s life. He noted that the worker reported the intrusive recall of the incident - whether through thought or dream content. The psychologist observed that the intrusive images clearly attached to the fragmentary memories that the worker had experienced early on in the assault, the most important of which was falling. For an emergency service provider to fall in the midst of an assault, the psychologist testified, is terrorizing because when such an individual is off their feet they are vulnerable. And there was no mistake, in his view, that in the worker’s mind the people who assaulted him were intending to do whatever damage they could. Therefore, the psychologist testified, a threat was clearly recognized by the worker. The falling sensation became the fragmentary sensory physiological experience that the worker has re-experienced ever since 1965. The dream content (the falling) is the connection between the worker’s experience as he lives in the present and what happened in 1965. The psychologist testified that the worker’s fragment memory of boots hitting him in the face has also left fragmented sensory images.

The subsequent component to his trauma was then his pain and suffering. The psychologist testified that this was because the incident did not end with the beating. It continued with every subsequent painful consequence. The incident continued to recharge not only in the memories of falling but in the additional pain stacked on top of it.

The psychologist concluded, therefore, that the worker was experiencing a continuing event that would not stop until the worker passed through the physical trauma associated with it. In that way, the worker’s experience of trauma was related to the surgeries that he had as well as to the initial beating.

The psychologist also confirmed that in the worker’s employment culture, a culture with which the psychologist was very familiar, it was normal for the worker to avoid talking about the incident so as not to be viewed as being weak.

The following excerpt from the DSM-IV outlining the diagnostic criteria for PTSD was introduced in evidence as an exhibit for the panel’s review:

A. “The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;

(2) the person’s response involved intense fear, helplessness, or horror.

NOTE: In children, this may be expressed instead by disorganized or agitated behavior.

B. The traumatic event is persistently re-experienced in one (or more) of the following ways:

1. recurrent and distressing recollections of the event, including images, thoughts, or perceptions. NOTE: In young children repetitive play may occur in which themes or aspects of the trauma are expressed.

2. recurrent distressing dreams of the event. NOTE: In young children, there may be frightening dreams without recognizable content.

3. acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). NOTE: In young children, trauma specific reenactment may occur.

4. intense psychological distress at exposure to internal or external cues that symbolize or resemble as (sic) aspect of the traumatic event.

5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspects (sic) of the traumatic event.

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(2) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(3) inability to recall an important aspect of the trauma;

(4) markedly diminished interest or participation in significant activities;

(5) feeling of detachment or estrangement from others;

(6) restricted range of affect (e.g., unable to have loving feelings);

(7) sense of foreshortened future (e.g., does not expect to have a career, marriage, children, or an normal life span);

D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

(1) difficulty falling or staying sleep;

(2) irritability or outburst of anger;

(3) difficulty concentrating;

(4) hyper-vigilance;

(5) exaggerated startle response.

E. Duration of the disturbance (symptoms in criteria B, C, and D) is more than 1 month.

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Specify if:

Acute: if duration of symptoms is less than 3 months.

Chronic: if duration of symptoms is 3 months or more.

Specific if:

With delayed onset: if onset of the symptoms is at least 6 months after the stressor.”

In his report dated September 26, 2001 and in his testimony at the hearing, the worker’s psychologist expressed the opinion that the worker has the clinical symptoms to meet the criteria for PTSD, DSM 309-81 Chronic Duration. The psychologist made reference to the items listed in the DSM-IV criteria A through F and indicated how, in his view, the worker meets each of the criteria, as follows.

1. “The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;

(2) the person’s response involved intense fear, helplessness, or horror.

The psychologist indicated that the worker was given a life threatening beating consistent with criterion A(1) and experienced intense fear and helplessness, consistent with criterion A(2).

B. The traumatic event is persistently re-experienced in one (or more) [emphasis added] of the following ways:

(1) recurrent and distressing recollections of the event, including images, thoughts, or perceptions. NOTE: In young children repetitive play may occur in which themes or aspects of the trauma are expressed.

(2) recurrent distressing dreams of the event. NOTE: In young children, there may be frightening dreams without recognizable content.

(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). NOTE: In young children, trauma specific reenactment may occur.

(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble as (sic) aspect of the traumatic event.

(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspects (sic) of the traumatic event.

The psychologist testified that the worker meets this criteria in a number of ways. First, he consistently reported thoughts of his original traumatic incident by having intrusive thoughts at times. He had recurrent dreams related to the incident and frequent memories of the multiple surgeries and pain associated with them. He was also very agitated on occasion with spontaneous break through emotion, urgent speech pattern and flushed face when he talked about the changes in his life that the beating had brought about.

3. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) [emphasis added] of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(2) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(3) inability to recall an important aspect of the trauma;

(4) markedly diminished interest or participation in significant activities;

(5) feeling of detachment or estrangement from others;

(6) restricted range of affect (e.g., unable to have loving feelings);

(7) sense of foreshortened future (e.g., does not expect to have a career, marriage, children, or an normal life span);

The psychologist reported that the worker meets this criteria by virtue of the fact that he has persistently avoided the trauma related stimuli by avoiding trauma related subjects, he is unable to recall many aspects of the emotional pain during recovery and he has diminished interest in leisure activities and everyday emotional discourse with a restricted range of affect. The psychologist also expressed his opinion that the effect of the trauma would have been a significant contributor in the breakdown of the worker’s first marriage.

In his testimony at the hearing the psychologist testified that he did not find the worker avoidant of talking about the incident. But that was in contrast with the worker’s reporting that he worked hard to separate himself from the images and memories in his early years after the assault by staying busy and doing whatever he could not to have the thoughts retriggered because he did not want to dysfunction in his workplace. The psychologist found that the worker had a reduced capacity and a numbing of general responsiveness. He was not responsive to rest, relaxation or leisure. He also had a depersonalization and estrangement from others in the sense that he felt he was different than most of his co-workers.

4. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) [emphasis added]of the following:

(1) difficulty falling or staying sleep;

(2) irritability or outburst of anger;

(3) difficulty concentrating;

(4) hyper-vigilance;

(5) exaggerated startle response.

The psychologist indicated that the worker has had persistent symptoms of hyper-arousal including difficulty falling asleep and that he continues to experience concentration problems and difficulty managing his internal anxiety. He also still manifests signs of hyper-vigilance.

5. Duration of the disturbance (symptoms in criteria B, C, and D) is more than 1 month.

The psychologist indicated that the worker’s symptoms have persisted since the beating. He found that the worker has been chronically obsessed with work and continues to be compulsively busy to occupy his energy with a focused purpose. The psychologist expressed the opinion that this has always served as a distraction from the intrusive anxiety that overcomes the worker in quiet reflective moments.

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Finally the psychologist expressed his opinion that the disturbance has caused persistent social, emotional and life altering decision making for the worker since the compensable injury. The psychologist concluded that the worker’s occupational functioning was impaired. In his view the worker’s coping mechanism was to overwork.

The psychologist also described the worker’s ability to articulate his grief about the death of his child. He distinguished the worker’s response to that trauma. In the psychologist’s view, the worker was able to articulate his grief about his child’s death and understand his emotional response to that trauma whereas the same could not be said about his response to the workplace assault.

The psychologist was specifically asked how it was that he was able to determine, so many years after the attack, that the worker’s symptoms, including dreams and flashbacks were in fact related to the attack. He testified he was able to do so because the intrusive disturbing elements of the symptoms are incident specific. In particular, he said the sensation of falling, of being out of control and a terrible helpless feeling are symptoms the worker re-experiences emotionally years after the assault, in a very similar magnitude and emotional content as the night it happened. In particular, the emotional response that accompanied the dreams about falling and the emotional response to some degree when he loses his balance, for example, are, in the psychologist’s opinion, evidence that the dreams and memory of falling are related specifically to the initial traumatic assault.

The psychologist was also asked why he did not prescribe any treatment plan when he first saw the worker in 2000. His evidence was that he did not do so because he thought the worker had reached a maximal adjustment. He also talked about the potential negative impact of stirring up the memories through treatment. In the psychologist’s view, the most important thing for the worker was to actually understand what had happened and its implications so that he could integrate what had happened into his life. He indicated that the worker needed some validation of what he had been coping with all these years.

The psychologist discussed the impact of retirement on the worker and the fact that it highlighted the worker’s inability to actually enter the process of leisure. He testified that the worker had been experiencing difficulty relaxing all the way along but with retirement that issue was highlighted and it caused him distress to recognize it.

The psychologist also commented that while it is true that the worker has been able to enter into personal relationships such as his second marriage, he does, at the same time, suffer from the estrangement typically seen in someone who suffers from PTSD. That is, the estrangement is in the nature of the worker not feeling that he was the person he was before the assault took place. The psychologist referred to the worker’s reporting how he felt different in his employment. He felt that everyone was looking at him; that he was not the same man he was before the assault. His identity in terms of what he could do had changed and he felt that he had to prove himself all over again. So the estrangement was in the sense of having separated himself from himself, as a matter of his identity as a man and as a professional. The psychologist described an attitude of: “me and them” as part of this estrangement.

He also responded to a question as to whether or not having falling sensations in a dream is an uncommon phenomena. The psychologist testified that while he suspected that we all have a dysequilibrium experience the question is: what does it trigger? In the worker’s case it triggered an emotional response resulting in a disabling anxiety experience. The emotional sequelae of the event and the worker’s description of it are consistent not with a dream but a nightmare.

Finally, in response to being questioned as to whether he had biased sympathies for the worker, the psychologist testified that he did not think so. He said he certainly had compassion and understanding of his clinical situation but not bias.

The worker’s expert psychologist:

The worker called a clinical psychologist to provide expert opinion evidence at the hearing. This psychologist has a specialty practice in general clinical psychology, neuropsychology, and forensic psychology and rehabilitation. Over the course of his practice he has frequently seen people who have traumas of many different kinds of severities and parameters from single incident trauma to what he called process trauma. He testified that he has been a psychological consultant for Veterans Affairs Canada in dealing with veterans who have had service related trauma. He has made many presentations on PTSD and psychological issues in the workplace dating back to the mid 1980’s, and has dealt with many workers over the years.

He commented on the fact that since the compensable incident which gave rise to the worker’s claim in 1965, there has been an increased recognition of the reality of significant psychological/psychiatric/social fall out from traumatic events, much more so than would have been the case in 1965. Further, he agreed with the evidence of the treating psychologist who stated that the terminology “PTSD” was not officially endorsed until 1980 with the DSM-III. In general, therefore, he said there is now a much more sophisticated look at how people respond to trauma than would have been the case in 1965 when the worker’s claim first arose.

The psychologist testified that a huge percentage of his practice has been spent in either treating or diagnosing individuals with PTSD. He testified that usually an event is not represented by a single instant in time. It is usually something that extends over time. As an example, in this particular case, he pointed out that for the worker his single event, the assault, extended all the way from 1965 to 1993 when he had his last surgery. Further, it continues on to this day, based on the worker’s testimony at the hearing that he continues to have symptomatology such as tingling and numbness in his face as well as drooling, all of which would be an extension of the experience of the trauma. Therefore, in this psychologist’s view, the worker’s event is something that has lasted, not as a single instant in time but rather for over 44 years.

This psychologist prepared a report dated April 23, 2009 in which he was asked to assess the potential long-term psychological sequelae related to the assault injury the worker sustained.

In formulating his opinion he said he reviewed a number of documents including the treating psychologist’s report and several reports prepared by the WCB psychiatrist. He had the worker carry out a number of common psychological tests that are used in the context of forensic investigation or litigation to assess personality and emotional functioning. He interviewed the worker on two occasions together with a psychiatric nurse, during which time he reviewed the worker’s history of mental status, symptomatology and functioning. Among the tests that he administered to the worker were evaluation tools that measure personality and emotional functioning as well as level of symptoms. They contain validity components built in to see whether someone is over endorsing or under endorsing, being consistent or overly positive or negative in their responses.

Ultimately, the psychologist concluded that the worker’s response profile was honest and there was no evidence of overstatement. He considered the worker’s report to be credible and considered him to be honest in his presentation and interview.

The psychologist concluded that the worker did develop PTSD. The psychologist acknowledged that it is a difficult assessment to make in someone who is being seen so many years post incident. He testified that it was very clear to him from his review that the issue for the worker was not about role functioning deficits but rather about his own subjective distress. Like the treating psychologist, the expert psychologist stated the worker met criterion A through F as set out in the DSM-IV requirements for PTSD. His evidence was as follows:

First, he was satisfied that the worker had experienced exposure to a threshold event.

He found that the worker had symptoms of arousal, avoidance and reliving. These symptoms were elicited when the psychologist interviewed him initially and were confirmed when the psychologist listened to the worker’s testimony at the hearing of this appeal. In particular the psychologist noted that there were at least two episodes during the worker’s testimony when he was discussing his symptoms and response to the assault when he started to “choke up”. As well, the psychologist noted that the worker did not “choke up” when he testified about the tragedy of his son’s crib death. The psychologist noted that the worker also choked up when he was speaking about witnessing his face after he got out of the hospital and he choked up when he talked about what was happening during the assault as it unfolded. Therefore, 40 years after the incident he found the worker is still having difficulty in his verbal discussion of the assault and its effect on him. The psychologist commented that when he interviewed the worker the worker was even more emotional with tears streaming down his face when he described what he had gone through, which the psychologist felt, was genuine.

The psychologist also commented on the shame and humiliation experienced and the words used by the worker to indicate that he felt disgraced. He commented on the worker’s alcohol abuse problem in the years immediately after the assault. He commented on the fact that the worker withdrew from his wife, going for long walks or drives. In the psychologist’s view, the worker did have distress and painful symptoms. He acknowledged that he returned to work and moved on with role functioning but all the while maintained a sense of vulnerability and a concern, for example, that his job was at risk. The psychologist described hearing the worker testify about pain, distress, reliving, avoidance, arousal, being concerned about being assaulted and having vulnerability for anything fast that approached the left side of his body.

The psychologist clarified that the term “arousal” in this context speaks to an increased level of anxiety, emotional angst. He said this was evident in the worker’s difficulty with the fluidity of his speech, stammering, choking up, choking back tears, and facial flushing. All of that was evidence of the worker’s nervous system arousing when talking about the assault.

The psychologist confirmed that this description and observation of the worker was based on both the assessment that he carried out in his office and on the worker’s testimony at the hearing of this appeal during which the expert was present. The psychologist indicated that his opinion regarding the worker having developed PTSD and continuing to have mild residual symptoms did not change after observing the worker’s testimony.

Ultimately, this psychologist expressed the view that the worker had mild PTSD. He described it as mild because in the big scheme of the world, he described the worker’s life unfolding with success and industry and a lengthy career. He acknowledged that part of the worker’s industriousness was probably a means of managing his anxiety. The psychologist was also careful to point out that “mild” does not mean “not painful”. Indeed, he testified, it can be exquisitely painful and that one can be “maximally pained” but “functionally very good”. The psychologist emphasized that he did not believe that the PTSD was a matter of delayed onset but rather that the worker had always had some level of symptomatology over the course of time from the time of the assault.

With respect to the worker’s own impression that he did not succeed in his career to the level of expectation, the psychologist testified that whether or not the worker’s expectation was accurate was untested but nonetheless was his reality. The injury or rather the set of injuries led to the sequelae that reduced the worker’s occupational attainment from his own perspective.

The psychologist was questioned specifically about comments made by a psychiatrist in a report dated September 18, 2007 which was provided by the employer, in support of its position that the worker does not suffer from PTSD. The psychiatrist who wrote that report had not seen the worker in person. The worker’s expert psychologist disagreed with this psychiatrist’s statement that a single traumatic event 40 years previously cannot ripple through a lifetime.

The employer relied as well, on the report of a second psychiatrist (who later testified at the hearing on behalf of the employer) dated September 21, 2007. The psychiatrist in that report commented that PTSD is a treatable illness and therefore it was inconsistent with standards of practice that two clinicians (being the worker’s family physician and his treating psychologist) diagnosed a severe and treatable illness and did not prescribe appropriate treatment.

The worker’s expert psychologist agreed that PTSD is generally a treatable illness but that not everyone has symptom remission. Further, when an individual has chronic PTSD where the symptoms have gone on for so many years, he advised it is unlikely to have resolution of symptoms. He questioned, therefore, the treatability of a disorder three and a half decades later that had never been treated formally, for a man who had a resistance to dealing with feelings anyway and had a coping mechanism of just keeping busy. At best, he testified, one might treat the sleep difficulties and maybe help him understand his symptoms more which is exactly what he understood the treating psychologist had done.

Upon questioning from the panel, the worker’s expert psychologist testified that the worker’s presentation seemed credible. There was no doubt in his mind, given his interviews and his witnessing of the worker’s testimony, that the assault injuries led to long term psychological sequelae and difficulties. He confirmed that it was a trauma-based diagnosis of a mild chronic PTSD relating to the assault that took place in 1965. He testified that the painful symptoms that he elicited retrospectively seemed genuine, had congruence, and seemed to be connected with the worker’s current experience of generally similar symptoms. He noted in particular the level of distress when the worker talked about what happened to him; his tearfulness and his reddened face, even 44 years after the incident.

This psychologist was asked by the employer’s representative about whether there was anything objective in terms of evidence that he could point to that substantiated his opinion that the worker’s symptoms emanated from the compensable injury. The psychologist’s response was that he based his assessment on, among other things, the worker’s contemporaneous presentation of symptoms as opposed to simply his historical recounting of past events and experiences.

The employer’s representative also questioned the psychologist about the worker’s ability to function in the workplace after the assault. The psychologist responded that he was aware that the worker had been described as driven and compulsive but that that was not necessarily one of the symptoms he was focusing on in making his diagnosis. He testified that the symptoms he was thinking about were as follows:

1. The threshold event;
2. Reliving;
3. Arousal;
4. Avoidance and the psychological distress, the subjective symptoms, and the painful symptoms.

He acknowledged that role functioning deficits were not something that he heard much about from the worker although it could be argued that the worker had problems in relationships at least with his first wife. However, that was not a cardinal symptom of disease in his view. The worker’s ability to function in his view, did not factor into the psychologist’s diagnosis in a significant way. Instead he focused on the significant emotional distress the worker experienced as a result of the compensable injury.

Reports from WCB consultant:

The worker was assessed by a WCB psychiatric consultant on May 1, 2002 during a call-in examination. In his report the WCB psychiatrist commented about the worker’s psychological difficulties and that he appeared to have suffered in silence for a long number of years. He commented, among other things, on the worker’s reporting that he had a significant deterioration in his ability to study, read and concentrate following the injury and that he was subsequently denied promotions for a long period of time as a result. The psychiatrist commented on the worker’s reporting of himself as being more emotional as a person. He reported dreams of the assault even up to the current time. These dreams consisted of a falling sensation. He described poor sleep since the assault.

He also commented on the worker’s use of alcohol to help him forget what had happened. The psychiatrist ultimately came to the impression that the worker had done a remarkable job of coping with the post traumatic physical and emotional difficulties that he had had over the years. He did not feel that the worker met the criteria for post traumatic stress disorder, however, he did find that the worker had emotional difficulties that significantly affected his interpersonal and occupational functioning as well as cognitive difficulties that may well have affected his occupational functioning although this was not entirely clear. He assessed the worker with Class 2 Neurosis.

In a subsequent report dated March 2, 2004, the psychiatrist answered questions put to him by the WCB case manager. He said that there was nothing surprising in the idea that someone would seek psychological support many years after a trauma occurs and that it was often the case that emotional manifestations of trauma and other psychological sequelae are recognized slowly and over a prolonged period of time. It is often the nature of psychological injury and treatment that people seek psychotherapeutic care and treatment long after the events that lead to the development of emotional problems.

The psychiatrist was also provided with a letter dated September 30, 2003 from the worker’s employer which documented the worker’s post injury employment history and which in particular noted that the worker was promoted twice in his career, at 18 years of service and again at 20 years of service. The letter said there was no information on file that would support a suggestion that he was passed over for promotion.

The psychiatrist noted that this evidence was in opposition to the worker’s report to him about decreased functioning in his employment following the assault and impression that he had a markedly changed career path following the compensable incident. The psychiatrist wrote that if the worker’s work performance was not significantly impaired following the compensable injury, then he would need to reconsider his opinion that the worker continued to have significant impairments related to the compensable injury. He did, however, confirm that the worker had suffered a very severe physical assault with significant injury and at least some ongoing psychological impairment. He stated that the question as to his past psychological impairments can only be partially inferred from evaluating his functioning at that time; and since there was conflicting employment information, the psychiatrist would like to be advised if there was any better way to clarify the worker’s past functioning.

He expressed the opinion that if the worker’s functioning has been normal over time it would be difficult to establish that he now had significant psychiatric impairment directly related to the compensable injury. He also commented that the nature of the worker’s psychotherapy sessions with his treating psychologist may be important in determining a relationship to the compensable injury. Certainly, he wrote, the type of presenting problems, symptoms and precipitants of problems described in psychotherapy sessions are very important in determining the cause of the symptoms. The psychiatrist also indicated that interviews with co-workers who served with the worker both before and after the compensable injury might be helpful as would perhaps contacting the worker’s first wife and others who might be able to comment on the changes the worker demonstrated on a pre to post compensable injury basis.

The reports of the WCB psychiatrist were put to the worker’s expert psychologist during questions by the employer’s representative. The psychologist confirmed that he and the WCB psychiatrist disagreed as to the diagnosis of the worker’s condition. The psychologist pointed out, however, that while he and the psychiatrist reached different diagnoses, their conclusions were the same in that they both agreed the worker had psychological sequelae resulting from his compensable injury.

The employer’s expert psychiatrist:

The employer relied on reports from two separate psychiatrists: one prepared on September 18, 2007 which was described as an independent file review and the other prepared on September 21, 2007 by the psychiatrist who gave oral evidence at the hearing of this appeal.

This latter psychiatrist is a forensic psychiatrist who practices in the City of Winnipeg. Prior to obtaining his medical degree he obtained an Honors degree in psychology. He testified that in his practice he sees a number of patients with post traumatic stress disorder. At the time he wrote his report dated September 21, 2007 he had not interviewed the worker nor had he seen him testify in person.

By the time of the hearing this psychiatrist had reviewed all of the previous medical reports including the report from the worker’s treating psychologist and the worker’s expert psychologist. Based on his review of these assessments, his opinion was that the worker did not have any symptoms that would have required treatment. In his opinion the worker’s psychological experiences did not constitute an illness either from the perspective of psychiatry or psychology.

Further, in reviewing the DSM-IV criteria for a diagnosis of PTSD, the employer’s expert psychiatrist was of the view that because the worker had either had amnesia or was unconscious after the assault he was unable to experience the assault as a traumatic event. Therefore, criterion A for the PTSD diagnosis was not satisfied, in his view. His evidence at the hearing was that it is difficult to appreciate how someone who is unconscious can have a perceptional experience of a traumatic event or an emotional experience.

Similarly, with respect to criterion B, this psychiatrist was of the view that it would be difficult to have symptoms such as flashbacks of something when one is amnestic. He expressed the opinion that there did not appear to be any evidence from the worker’s testimony and that it did not make sense to him that someone could have flashbacks of something for which they had no memory.

In his report, this psychiatrist stated that while it was clear the worker was severely assaulted in the course of his employment, he was able to return to work and, according to the employer, performed full operational duties with performance evaluations consistently indicating an above average performance.

This psychiatrist therefore expressed the opinion in his report that the worker’s clinical course as reported in the documentation available to him was inconsistent with the medical reporting of symptoms. That is, the worker’s ability to return to full work duties was inconsistent with the treating psychologist’s report that the worker avoided stimuli associated with trauma.

The psychiatrist also noted that the treating family physician reported the worker disclosed the assault in their first meeting and attended multiple appointments for medical injuries relating to the assault. In the psychiatrist’s opinion this was inconsistent with the treating psychologist’s assertions that the worker avoided discussions regarding the trauma. The psychiatrist expressed the view that the worker’s ability to develop a new relationship in a second marriage was also inconsistent with avoidance criteria which include feelings of detachment or estrangement from others. He felt that the worker’s activities at work were inconsistent with PTSD criteria of “markedly diminished interest or participation in significant activities”. The psychiatrist also questioned the worker’s ability to have flashbacks and re-experiencing of the trauma since, in his understanding of the evidence, the worker was unconscious and had no recollection of the time leading up to or the period of time following the event.

This psychiatrist stated in his report and his testimony that criterion F of the diagnostic criteria for PTSD is typically the criterion that mental health professionals look at to determine whether or not difficulties subsequent to a trauma are consistent with an illness state or if they are a normal response to the traumatic event.  Here, the psychiatrist commented that despite the trauma, the worker had completed his career and was able to pursue other careers subsequent to retirement.  He was also able to remarry.  In his view, therefore, the worker did not sustain “clinically significant distress or impairment in social, occupational or other important areas of functioning” as required to meet criterion F.

The psychiatrist also commented that the worker’s family physician had reported in some detail the content of meetings that occurred in 1993, 1994, 1999 and 2000, none of which appeared to involve any complaints of psychiatric illness. 

The psychiatrist also made note of the fact that the family physician in reporting to Manitoba Highway and Transportation reported that there was no psychiatric disease.  Further, he noted the family physician never prescribed medication for psychi