The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position:

The worker appeared at the hearing with a union representative. It was submitted that the worker had been employed as a crisis worker for approximately six years. On October 17, 2007, he was involved in a horrific workplace incident which caused him to have immediate symptoms consistent with post traumatic stress disorder. However, because of the worker’s commitment to his employer and the clients he served, he continued to work even though he was struggling with these symptoms. For just over a year, the worker continued to experience symptoms. He thought they would go away, but they did not. He discussed his symptoms with his employer in December of 2008 or January of 2009. At that time, his employer suggested that he seek medical attention. Then, on February 7, 2009, the worker became aware of another incident in the workplace. Another rape had occurred that involved the perpetrator from the first assault. The worker did not witness the assault, but became aware of the situation because the victim sought out the worker for counseling after the incident occurred. After the second incident, the worker finally sought medical attention on February 25, 2009. He was referred to a psychiatrist, who opined that the worker was suffering from post traumatic stress disorder and that there was a clear nexus between this diagnosis and the workplace event of October 17, 2007.

It was submitted that on a balance of probabilities, the evidence supported that the worker’s psychological condition was a direct result of the incident of October 17, 2007 and therefore his claim ought to be accepted.

Applicable Legislation:

In order for the claim to be acceptable, 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;

WCB Policy 44.20.60 (the “Policy”) 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:

The issue before the panel is whether or not the worker’s claim for disability arising from his psychological condition is acceptable. In order for the appeal to be successful, the panel must find that the worker’s psychological condition is related to the workplace incident of October 17, 2007. On a balance of probabilities, we are able to make that finding.

The only medical diagnosis on file is PTSD. This diagnosis was supported by both the general practitioner and the treating psychiatrist. There is no contrary diagnosis suggested by another medical practitioner. The panel accepts that the worker’s diagnosis is PTSD.

The question then becomes whether or not the worker’s PTSD was caused by the workplace accident of October 17, 2007.

At the hearing, new evidence was provided regarding the development of the worker’s symptoms. The worker advised that there was a second incident in February 2009 which involved the same assailant. He was not at work at the time, but when he came into work, he was told by other staff members that the same perpetrator had sexually assaulted a young man in the same manner and they had had to intervene. Then a few days later, the victim of the second attack approached the worker for counselling, and described what had happened. After that, the worker started to see the perpetrator around the workplace more often and his symptoms became worse. His nightmares became more frequent and he began reliving the previous rape.

The worker’s treating psychiatrist appeared as a witness at the hearing and gave evidence as to the worker’s condition. He was of the unequivocal opinion that the worker was suffering from PTSD and that this psychological condition was related to the October 2007 incident. Of note, the treating psychiatrist indicated the following:

• He had no doubt that the worker’s condition was related to the rape incident which he witnessed in October 2007. The worker had experienced a traumatic event, had the necessary reaction and then had the constellation of symptoms lasting for a sufficient duration of time to meet the DSM-IV diagnostic criteria for PTSD;
• This was not a case of delayed onset PTSD. The worker’s PTSD symptoms started right away after the traumatic event. The fact that the worker was still able to show up for work did not negate the diagnosis of PTSD;
• The re-exposure to the second incident reminded the worker of the original traumatic event and exacerbated the worker’s symptoms. The October 2007 event set the foundation for the illness and the February 2009 event was a re-experience of a related stressor that pushed the symptoms to a level where they were then unmanageable;
• In his work, the psychiatrist encountered many patients who were not genuine and these “malingerers” present a kind of profile that he has learned to recognize. His professional assessment was that the worker was a reliable historian and he had no reason to disbelieve him. The symptom criteria for PTSD are among the most comprehensive of any diagnostic criteria in the DSM-IV and it would be very difficult for an individual to accurately “fake” a history which would be consistent with all the diagnostic criteria;
• One of the groupings of symptoms for PTSD is avoidance. The fact that the worker did not tell anyone about how the incident affected him would be a common manifestation of avoidance;
• It is entirely possible that an individual could have PTSD and never present for treatment;
• The symptoms the worker described to the psychiatrist were so closely paired to the traumatic event that the psychiatrist could not see how they would be attributable to other random stressors such as financial concerns or relationship issues;
• The fact that the worker responded so favorably to cognitive behavioural therapy specifically geared towards the circumstances surrounding the rape incident was further evidence that the worker had genuine PTSD and that it was related to the sentinel event in 2007. If there were other reasons that had caused him to be off work, such as other stressors, other variables or other diagnoses that had not been discussed, the worker’s psychological condition would not have responded to this very specific treatment paradigm geared at PTSD.

Overall, it was the psychiatrist’s opinion that the October 2007 incident set the foundation for the worker’s PTSD. The worker experienced onset of symptoms immediately after the incident, but was able to manage them. The incident of early 2009 caused the worker to re-experience a related stressor which pushed the symptoms to an unmanageable level.

The panel accepts the psychiatrist’s opinion and we therefore find that the worker’s PTSD is related to the October 2007 incident. We find that there was an accident as defined under subsection 1(1) of the Act. The willful and intentional act of the perpetrator constituted an accident as per subparagraph (a) of the definition. We do not find that there was an accident under the subparagraph (c) occupational disease heading.

We have considered WCB Policy 44.20.60 and we find that the provisions of the Policy are met. In our opinion, the worker’s PTSD is a psychological condition incurred as a result of an event which is similar in nature to those listed in paragraphs 1.(a) to 1.(d) of the Policy. As noted by the union representative, the list of events contained in the Policy are stated to be inclusive and it is not an exhaustive list. We find that the rape witnessed and intervened in by the worker was of a sufficiently horrific and disturbing nature that it is akin to the events listed in the Policy.

At the Review Office level, the WCB indicated that an impediment to the claim is s.19(2) of the Act. Subsection 19(2) provides that, subject to section109 of the Act, no compensation in respect of any injury is payable unless application for compensation is filed within one year after the day upon which the injury occurred. Section 109 allows for an enlargement of time “Where, in the opinion of the board, an injustice would result.”