Decision #116/11 - Type: Workers Compensation
Preamble
The worker has a claim with the Workers Compensation Board ("WCB") for a hand injury that occurred in the workplace in 2005. The worker is presently appealing a decision made by Review Office that his panic attacks and depression were unrelated to his compensable injury.
A hearing was held via teleconference on July 12, 2011 to consider the matter.
Issue
Whether or not the worker's panic attacks and depression are related to his compensable injury.Decision
That the worker's panic attacks and depression are not related to his compensable injury.Decision: Unanimous
Background
On August 5, 2005, the worker injured his left hand in a work-related accident. His claim for compensation was accepted and benefits were paid to the worker. File records showed that the worker did not return to his pre-accident employment due to the nature of his hand injury, and he was referred to the WCB's vocational rehabilitation branch to develop an appropriate vocational rehabilitation goal. National Occupational Classification ("NOC") 4212, Community and Social Services Worker was chosen for the worker which necessitated the worker to participate in upgrading and then attend a two year secondary program.
On September 20, 2009, a WCB vocational rehabilitation consultant ("VRC") documented that the worker had commenced the Human Services Program and was in his first year at college. The worker indicated that he was enjoying his studies.
On October 16, 2009, the worker advised the VRC that he was finding his studies challenging and stressful.
On November 18, 2009, the worker advised the VRC that his courses were going well but he was having problems with anxiety and panic attacks. He was seeing a physician and was undergoing some tests. The worker noted that the medicine his doctor prescribed was helping.
A WCB case manager called the worker on November 25, 2009 to obtain additional information. The worker said his chest pain was associated with the stress from school. The worker noted that he had not been at school for the past couple of days but was keeping up with the requirements of his course.
On January 18, 2010, the worker told his VRC that his anxiety attacks were getting worse and he had to miss school. The worker was tearful and said he had an appointment with a psychiatrist in the next few weeks.
On January 14, 2010, the worker told his VRC that he had been plagued by severe anxiety and panic attacks since December 2009. The worker indicated that he shakes constantly, was not eating and, was chronically depressed. He did not know if it was school-related. When he resumed studies in January of 2010 he was "stressed to the max." The worker indicated that he was not sure if he could return to school and was completely depressed about his future.
In a letter to the VRC dated January 28, 2010, an advocate for the worker reported that the worker had been enrolled in a Human Services program and "it appears the trauma of the workplace accident has finally caught up with him." He noted that the worker had to be taken from the classroom on two occasions to a hospital. The advocate stated, "In my opinion, he now must consider seriously whether the current deteriorating condition on his atrophied hand, in addition to his anxiety/psychiatric problems, have rendered him unfit for the workplace completely and permanently…He recalls vividly thinking that his hand would be severed from his arm. [the worker] was now receiving psychiatric counseling for the anxiety attacks he has been experiencing."
Reports were received from the worker's treating consultant psychiatrist dated February 2, 2010 and March 1, 2010. On March 1, 2010, the consultant psychiatrist reported that the worker had been a patient since January 20, 2010. The worker was having negative thoughts of himself and his future since his accident. He indicated that the worker was unable to function and his sleep and motivation had been affected. The worker had components suggestive of major depressive disorder with panic features which he suggested were directly related to the work injury.
The worker's advocate submitted a "Medical Synopsis" dated March 10, 2010 to the WCB. On March 22, 2010, the advocate advised the VRC that this medical information supported that the worker sustained post-traumatic stress disorder ("PTSD") from his injury along with other psychological overlay.
A WCB psychiatric consultant reviewed the file on April 7, 2010 at the request of primary adjudication. The consultant requested additional medical information to determine the worker's pre-injury psychiatric status prior to determining whether the worker's current psychiatric symptoms were related to the 2005 compensable injury.
On June 28, 2010, the WCB psychiatric consultant reviewed medical records from 2000 to 2005. The consultant noted the following:
- In November 2009, the family physician reported "Stressed at school, finding it very difficult to cope, having panic attacks." Hence, the consultant determined that the onset of the worker's psychiatric symptoms were in relation to the psychosocial stressors of dealing with his schooling and was not related to the compensable injury which occurred four years earlier.
- There was no information in any of the family physician's reports during 2005 to 2009 to support the treating psychiatrist's assertion that there was medical documentation that the worker's psychiatric symptoms had been present since the 2005 compensable injury.
- The worker had numerous presentations between 2000 to 2004 of symptoms associated with depression and anxiety, and he received treatment at several points over this time period. This was inconsistent with the consultant psychiatrist's statement that the worker's past psychiatric history was "Nil."
- The worker's psychiatric symptoms were not caused by the compensable injury and the compensable injury did not cause an exacerbation of the worker's pre-existing condition.
On October 22, 2010 and December 7, 2010, the WCB case manager wrote the worker to advise that based on information on file from his medical providers and a WCB psychiatric consultant, it was felt that his present condition preventing him from participating in his original vocational plan was not related to his compensable injury. The worker's advocate disagreed with the decision and an appeal was filed with Review Office.
On December 29, 2010, Review Office determined that the worker's panic attacks and depression were not considered to be related to his compensable injury. Review Office indicated that it preferred the opinion of the WCB psychiatric consultant over the opinion expressed by the treating psychiatrist. It stated that the worker performed exceedingly well in the first 2 years of his educational upgrading program without any suggestion of specific psychiatric complaints. It did not find any evidence that the worker was experiencing ongoing psychiatric difficulties between the date of his accident and the latter part of 2009. In late 2009, the family physician commented that the worker was feeling stressed at school and was having difficulty coping. Review Office accepted that the worker's panic attacks were more likely related to the psychosocial stressors present in the worker's file since the latter part of 2009 rather than the compensable injury sustained in August 2005. In January 2011, the advocate appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
The issue in this appeal is whether the worker's panic attacks and depression are related to his compensable injury.
Worker's Position
The worker was represented by legal counsel who made a presentation on his behalf. The worker answered question posed by his representative and the panel.
In answer to questions from his representative the worker provided background information including information about his age, education, employment history and marital status.
He also provided a detailed description of the accident. He described the equipment he was using at the time and explained how the accident occurred. He said that his hand was trapped in the machine for 15 minutes before co-workers were able to pry him out. He described how his co-workers pried the machine open and how his hand looked when it was finally released from the machine. He said he could not see his hand inside the machine.
The worker advised that he saw a specialist in Manitoba but returned to his home in Nova Scotia for treatment. He described the treatments that he received. With respect to his pain experiences, the worker said that the pain on a scale of one to ten is usually an eight or nine.
The worker advised that he took upgrading that took him two years to complete. He found this to be very stressful. When asked whether he really earned a total upgrading degree, he replied "To be honest with you, no." He said he got a lot of help from other students and his teacher.
The worker said that he could not perform a labour job because his hand was sore all the time. He said he was taking drugs for the pain and that he did not think he could work while using the drugs because he could not concentrate.
The worker described events that occurred in his life between 2000 and 2005 which caused him to become depressed. The worker said he was able to work through these events. He also said that he did not have panic attacks during these events.
The worker advised that he had panic attacks during the upgrading and that these worsened during the fall of 2009 when he was enrolled in the Human Services portion of the retraining. He acknowledged that he started to see a psychiatrist in 2010.
The worker described the symptoms related to panic attacks. He said that they could arise at any time, "Right out of the blue I could be watching T.V... and they, and they just happen."
The worker was asked about nightmares and responded "…like lots of nightmares and the biggest one is like, I'm dreaming that instead of my hand, my head's been cutoff."
The worker was asked about the treatments he received from his psychiatrist and plans for treatment. The worker appeared unable to recall specific treatments or discussions on treatments. To a question about his last session with the psychiatrist, the worker responded: "I think most of the time when I go there it's because I don't feel, I'm not myself. I don't feel like a man anymore 'cause I can't do my physical labour, my work that I enjoy to do and I can't play my sports anymore, and the accident itself like, you know, it could have been my head cut off…"
The worker's representative reviewed the medical information and related documentation on the file. The representative referred to the report from the treating psychiatrist dated March 26, 2011 in support to the worker's position that the panic attacks and depression are related to the workplace injury. He noted the psychiatrist concludes that the worker is not able to participate in the workforce given the diagnosis of major depression disorder with associated panic attacks.
The worker's representative submitted that if not for the accident the worker would be working today. He stated that the accident made life miserable for the worker and that his whole life has changed. He said the worker is no longer himself. He noted the pain and disability which the worker suffers and the psychological impact of all this on his life. He submitted that due to the trauma of the accident, the worker has suffered physical and psychological effects.
Employer's Position
The employer representative indicated that the employer supports the WCB's decision. The representative said that the employer agrees with the WCB that a causal relationship is tenuous at best.
Analysis
The worker's lawyer commented on several issues regarding the worker's claim that are not before the panel. Specifically, the following issues are not before the panel and accordingly will not be addressed by the panel in this decision:
1. The worker's PPI rating
2. The relationship between the long term use of prescription medications and the worker's condition
It remains available for the worker to ask the WCB to address these issues.
The issue before the panel is whether the worker's panic attacks and depression are related to his compensable condition. For the worker's appeal to be successful, the panel must find that the worker's compensable injury caused or aggravated the worker's depression and caused the panic attacks. The panel was not able to make this finding.
The panel reviewed the worker's medical records and finds that he suffered several depressive episodes prior to the workplace injury. The panel notes that the symptoms he experienced during these episodes are very similar to the symptoms which he initially experienced in 2009 and 2010.
The panel notes that the worker's treating physician reported on April 15, 2002 that the worker had two problems, depression and relationship problems. He noted that the worker "…was feeling down and depressed and feeling like a failure. His sleep is disturbed, his appetite is reduced, his self esteem is down but he doesn't have any suicidal ideation."
The worker's treating psychiatrist advised on April 10, 2010 that the worker has symptoms suggestive of major depressive disorder with panic features according to DSM-IV. He noted that the worker "… feels useless and hopeless. He cannot function. He cannot do any sports anymore. It has negative impact on his self confidence and self esteem. He complains of poor sleep...He has no homicidal or suicidal ideas."
The file shows that the worker was able to complete the first stages of the vocational rehabilitation plan and that the symptoms of stress did not arise until the worker commenced the Human Services Program. The evidence does not establish or demonstrate a link between the worker's symptoms and current diagnosis with his workplace injury.
The worker's representative suggested the worker suffers from post-traumatic stress disorder as a result of the accident. In making this claim the representative relied upon the opinion of the treating psychiatrist as noted in his report of March 26, 2011.
The panel notes there was an early reference to a diagnosis of "post-traumatic disorder" in a letter from a physician in November 2005. There is also a reference in a report dated July 5, 2010 from the treating psychiatrist. In this report the psychiatrist reviewed the worker's symptoms and commented that "I ruled out any PTS symptoms although he had some features." There was no further reference to this diagnosis in the medical reports from treating physicians until the treating psychiatrist's report of March 26, 2011.
The panel attaches no weight to the report from the treating psychiatrist on the issue of PTSD. The psychiatrist did not provide facts or reference any clinical or other findings to support the opinion. The reports did not identify treatments provided for this condition. A review of the medical reports did not identify any of the classic symptoms which are associated with PTSD. Accordingly, the panel finds that the diagnosis of PTSD is not supported.
The panel asked the worker about the symptoms that he experienced and notes that he readily and without apparent distress, discussed the accident and his symptoms. He was unable to provide information on treatments for his condition. On the basis of this analysis, the panel finds on a balance of probabilities, that the worker's panic attacks and depression are not related to his compensable injury.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of August, 2011