The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

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;

Restriction on definition of "accident"

1(1.1) The definition of "accident in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, (the "Policy") sets out guidelines applicable to claims for psychological injuries. The effective date is November 1, 2012, for all claims regardless of accident date.

The relevant portions of the Policy are as follows:

Accident

The definition of accident in The Workers Compensation Act (WCA) has various components. A psychological injury can be caused by:

· a chance event

· a willful and intentional act; or

· the injury can be an occupational disease (an acute reaction to a traumatic event)

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically.

…

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no willful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The Worker’s Position

The worker was self-represented and accompanied by a companion at the hearing. At the hearing, the worker described her current status and provided updated information from several medical practitioners who were providing treatment to her. She expressed concern that the WCB was not taking her complaints seriously and that they failed to consider all of the medical information. Her position on the appeal was that she only began showing her various symptoms after her initial accident on June 29, 2009. She felt that the WCB ought to pay her further benefits in respect of the injuries she suffered at work.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. In order for the appeal to be successful, the panel must find that the worker continues to suffer from the effects of the injuries she sustained in any or all of her work-related accidents. We are not able to make that finding.

The worker was involved in three separate workplace accidents and suffered injury to multiple areas of her body. We will group her symptoms into five areas of injury.

Cervical/Shoulder Injury

The worker's complaints concerning this area involve symptoms of constant throbbing, aching pain and tightness in the left side of her neck and shoulder. The symptoms prevent her from raising her arm over her shoulder or rotating her head.

Following the May 29, 2012 hearing date, the panel requested an updated report from the worker's attending physical medicine and rehabilitation specialist at a pain clinic. By letter dated June 29, 2012, the specialist described the segmental neuromyotherapy he was providing to her for her left-sided neck and shoulder pain. Despite treatment, he reported that overall, the worker's condition was essentially unchanged. With respect to the cause for the worker's condition, the specialist stated:

It would be impossible for me to confirm that all of her current symptoms stem from an incident that occurred in June of 2009 having not been involved in her care immediately prior to and following this incident. There is evidence of chronic degenerative changes in the cervical and lumbar spine and no evidence of a traumatic type lesion in these areas. She has also had a CT head which was normal and no explanation for her facial twitching and visual disturbances. It may be that some of this chronic pain and unusual physical presentation could be related to post traumatic stress from these traumatic incidents however, this is well outside my area of expertise…

This opinion is similar to the November 1, 2011 opinion of the treating anesthesiologist who indicated that:

• MRI investigations showed evidence of ongoing degenerative changes throughout the cervical and lumbar spine as well as some changes in the foot.
• Some of these degenerative changes may have been exacerbated by traumatic instances in the workplace but it was difficult to tell given the time since those injuries.
• The worker's current neck pain and headaches seemed more likely related to degenerative changes in her cervical spine. A neurology consult would not likely offer much by way of diagnosis with therapy.

At the hearing, the worker submitted material regarding complex regional pain syndrome ("CRPS") and indicated that some of her symptoms were similar to those experienced by people with CRPS. There is no medical opinion, however, which diagnoses the worker as suffering from CRPS, and the panel therefore finds that CRPS is not applicable to the worker's situation.

In the panel's opinion, the worker's cervical/shoulder complaints cannot be related to the injuries she suffered in the workplace accidents. As indicated by the attending specialist, there was no evidence of an acute traumatic lesion in the area. Accordingly, it would appear that no permanent damage was incurred to the structures of the worker's cervical spine or shoulder. To the extent that the worker suffered an aggravation of pre-existing degeneration in the cervical region, it has been over three years since the initial incident and any such aggravation will have resolved. The panel therefore finds that the worker is not entitled to further benefits in respect of her cervical/shoulder complaints.

Left Knee

The worker's complaints regarding her left knee consisted of pain and inflammation in her knee. Going up and down stairs was bothersome. She also had a limp which was partially due to her knee and partially due to pain coming from her left buttock/groin.

The panel carefully reviewed the worker's medical record to chart the progression of the worker's left knee difficulties. The first workplace accident on June 29, 2009 involved the left arm, shoulder and neck. The left knee was not involved.

The second accident on August 4, 2009 was a slip on water which was on the floor and the worker fell on her left knee and left arm. Treatment following this accident was all focused on the left arm. She did not receive any specific treatment for her left knee. On March 11, 2011, the WCB medical advisor indicated the diagnosis from the August 4, 2009 accident was a probable knee contusion.

The third accident on May 17, 2011 was also a slip and fall. The worker reported banging her left knee, then falling backwards and landing on her buttocks. On September 21, 2011, an MRI of the left knee was taken. The radiologist interpreting the MRI was asked whether the findings were more in keeping with an acute traumatic injury as per the Mary 17, 2011 accident, or whether they were more in keeping with pre-existing degenerative change. By letter dated October 31, 2011, the radiologist's response was:

The findings related to the patellofemoral articulation including chondromalacia and secondary osscous changes are typically seen as a degenerative process slowly evolving. However, it is difficult to ascertain whether or not the acute event resulted in exacerbation. Delineation of the relationship of any traumatic incident and patients' functional outcome is difficult when based only on imaging findings.

The November 16, 2011 opinion of the WCB medical advisor was that: "The initial diagnosis as related to the May 17, 2011 injury was a probable simple contusion of the left anterior knee. There is no evidence of any significant physical or structural injury to have occurred with this incident."

By letter dated January 3, 2012, an orthopaedic surgeon indicated that his impression was that the worker was suffering from early stage left knee patellofemoral osteoarthritis which seemed to have been aggravated as a result of her work incident on May 17, 2011.

At the hearing, the worker indicated that the treatment offered by the orthopaedic surgeon was visco-supplementation injections in her knee. The panel's understanding of these injections is that they are used to treat osteoarthritis in the knee by acting as a lubricant and a shock absorber. This would further support the view that degeneration is the cause for the worker's current left knee difficulties.

The panel accepts that as a result of her workplace accidents, the worker suffered contusions and possibly an aggravation of the pre-existing patellofemoral osteoarthritis in her left knee. In the absence of any evidence of structural damage to her knee, however, the panel finds that the contusions and aggravation have now resolved, particularly given the significant passage of time. Any ongoing complaints of pain or stiffness in the left knee are attributable to the pre-existing degenerative changes, and are not compensable. We therefore find that the worker is not entitled to further benefits in respect of her left knee complaints.

Lumbar Spine/Coccyx

At the hearing, the worker was asked to describe her complaints of pain in the low back area. The worker's evidence was that it was "sore" and that she would often have to apply a heating pad to it. It was uncomfortable such that she could not lay flat on her back. She was very tender to the touch, and there was swelling in the low back region. The worker also referred to tenderness and inflammation in the coccyx or tailbone area.

The panel also notes references in the WCB medical file to numbness in the left foot, which we understand to be sciatic in origin and related to dysfunction in the lumbar spine.

The only workplace accident to involve the low back was the slip and fall on May 17, 2011. The medical reports from the other two incidents in 2009 reference only left shoulder/neck/wrist involvement. The first report of low back and coccyx issues was in a May 26, 2011 report from the worker's family doctor, approximately one week after the fall. Neither the worker's accident report nor the chiropractor's first report describe injury to the low back. From this, the panel concludes that any injury to the low back was relatively minor, as it did not warrant mention.

The MRI report of September 19, 2011 describes degenerative changes in the lumbar spine, including lower lumbar facet osteoarthritis, contributing to mild acquired canal stenosis at the L4-L5 level. No traumatic type lesion was observed.

In view of the foregoing, the panel concludes that the worker's low back complaints are more likely related to the degenerative changes present in her lumbar spine. We therefore find that the worker is not entitled to further benefits in relation to her lumbar spine/coccyx.

Left Eye/Vertigo/Headaches

According to the worker, commencing in about June 2009, she began to experience difficulties with vertigo and dizziness. With respect to her eye, the worker's evidence at the hearing was that after the second accident, she had developed a twitch and after her third accident, the twitch developed into a full loss of control where her left eye would involuntarily close on its own.

On reviewing the record of conversations with the worker following the three workplace accidents, the only time she reported hitting her head was during the third accident when she fell on May 17, 2011. The notes indicate: "She fell quickly and is unsure exactly how she landed. She noticed her legs were bruised. Hit her head on the back wall and landed somehow on her buttocks." In the initial weeks and months following the third accident, there was no medical treatment directed towards a head injury nor were any concussion-type symptoms reported. At the time of the August 29, 2011 call-in examination, no mention was made of any left eye difficulties. The June 29, 2012 report which the attending pain clinic specialist provided the panel indicates that the worker first reported new left-sided facial twitching and left eye visual disturbances in November 2011. On presentation to the pain clinic, she had a normal neurological exam, but at her request, she was referred to a neurologist.

The neurologist's report of May 23, 2012 indicates that he did not think he would be able to come to a specific neurological diagnosis beyond a diagnosis post-traumatic headache and other diagnoses which had been entertained, including Post Traumatic Stress Disorder and depression. He did note that it was possible that the worker's nausea was related to traumatic vesticulopathy and she was referred to an ear, nose and throat ("ENT") specialist.

In a letter dated August 2, 2012, the ENT specialist reviewed the worker's history and stated that she had a trauma where she slipped on a wet floor and hit the occipital region of her head without loss of consciousness. With respect to her condition, he stated: "I do hold reservation as to whether or not this represents a vestibular disorder, as motion is not a predominant complaint. This may be entirely traumatic brain injury owing to her occipital trauma." In a subsequent letter dated November 15, 2012, the ENT specialist indicated that testing for vestibular issues was unremarkable. He repeated the history that the worker "had a significant traumatic event and since that time continues to have lightheadedness, as well as imbalance." He then offered the opinion that: "I imagine that the patient's difficulties are primarily from acute brain injury."

The worker was also referred to an ophthalmologist who indicated that he was not able to find anything wrong with the worker. He noted that there were significant problems but he did not feel they were directly attributable to anything specific to the eye. In his letter dated December 14, 2012, he stated: "Again, nothing objective could be found with the exception of blepharospasm which I think may be semi-voluntary on the left side … Again I wonder more about anxiety and perhaps depression as perhaps being a co-morbidity or perhaps a primary morbidity resulting in facial spasm i.e. voluntary tic. Beyond this, there are no objective signs suggestive of an ophthalmic problem which can lead to this tremor/spasm."

The only medical opinion which supports a relationship between the worker's left eye symptoms and a workplace accident is the ENT specialist. It is clear, however, that he was relying on a history in which the workplace slip and fall resulted in a significant blow to the occipital region and where the worker experienced symptoms from that time forward. The panel finds that the evidence does not support this version of events. The fact that the worker did not report any concussion-type symptoms nor receive treatment for same in the weeks and months following the third workplace accident lead the panel to conclude that the blow she suffered to her head was not significant. Further, the left eye symptoms for which she was referred to the ENT specialist did not, according to the pain clinic specialist, appear until approximately November 2011. This was about six months after the fall occurred. Finally, the CT scan referred to in the pain clinic specialist's report dated July 29, 2012 was normal and provided no explanation for the facial twitching and visual disturbances. In view of the foregoing, the panel is not able to accept the opinion that the worker's left eye symptoms are related to an acute brain injury sustained in the May 17, 2011 slip and fall.

None of the other health practitioners seen by the worker have been able to explain why she is experiencing these difficulties with her eye nor does anyone support a causal connection between the left eye/vertigo/headache symptoms and any of the three workplace accidents. Accordingly, the panel is unable to conclude, on a balance of probabilities, that the worker is entitled to further benefits in relation to these conditions.

Post Traumatic Stress Disorder

The final remaining condition is the worker's psychological condition. At the hearing, the worker indicated that this is the condition which impairs her the most. The worker submitted that her treating psychologist, an attending psychiatrist, the pain clinic physical medicine specialist and the neurologist all supported that she was suffering from Post Traumatic Stress Disorder ("PTSD").

A report from the treating psychologist dated February 17, 2012 indicated that the worker's reported symptoms of mixed anxiety and depression are characteristic of PTSD and were very likely related to the worker being physically attacked and the subsequent physical pain she had experienced. The WCB did not place much weight on this report as the worker gave the psychologist a history which she had not reported to the WCB (for example, frequent nightmares of being attacked). This history was also not reported to any of her other treatment providers.

At the request of the panel, the treating psychologist provided a further report dated July 13, 2012. In this report, the psychologist confirmed that the worker currently met criteria for the DSM-IV-TR diagnoses of "Posttraumatic Stress Disorder, Chronic, With Delayed Onset" and "Major Depressive Disorder, Single episode, Moderate, Chronic". Based on the worker's reported symptoms and current presentation, the psychologist confirmed that these diagnoses appeared to be disabling the worker from being able to work.

In a report dated May 8, 2012, an attending psychiatrist wrote: "In summary, this is a woman who has developed agoraphobia and panic since a work related injury as well as PTSD and Major Depressive Episode."

Following our initial consideration of the appeal, the panel felt that it did not have sufficient information regarding the etiology or source of the worker's psychological condition. This was particularly so given the delay in onset of her PTSD diagnosis. We therefore arranged for the worker to be assessed by an independent third party psychologist. In particular, the panel was interested in ascertaining whether, on a balance of probabilities, the worker's current presentation was medically accounted for in relation to any of the workplace accidents.

In response to the panel's request, an independent third party examiner provided an extensive 39 page report dated January 11, 2013. In a written submission, the worker expressed concerns regarding the fact that the third party examiner disclosed that he performs a role at the WCB as a psychological advisor but explained that he was performing the assessment as an independent psychological practitioner. She found it contradictory that he would state that he is not employed by the Appeal Commission. The worker also stated that she felt the third party examiner was condescending and that he was belittling to her. She felt uncomfortable and intimidated by him.

The panel notes that the Appeal Commission is a separate and independent body from the WCB. It was therefore accurate for the third party examiner to state that he is not employed by the Appeal Commission. Although the third party examiner does perform some work for the WCB, he had had no prior involvement with the worker's claim and the panel is satisfied that he was able to provide an independent and unbiased assessment of the worker's case. With respect to the worker's impression of the third party examiner, it is unfortunate that she did not feel comfortable with the process. We note, however, that this was an assessment only, and was never intended to form the basis of a therapeutic relationship. The report appears to be very thoroughly researched, supported by objective psychometric testing and an interview with the treating psychologist. The panel acknowledges the worker's voiced concerns, however, we do not feel that they are sufficient to invalidate the report. The panel accepts the third party examiner's psychological assessment as providing information that is unbiased and pertinent to our decision-making process.

The overall conclusions of the January 11, 2013 psychological assessment are as follows:

1. [The worker's] current diagnosis is of a Major Depressive Disorder, Agoraphobia with Panic, a Somatoform Disorder NOS and benzodiazepine over use/abuse.
2. I have outlined [the worker's] history, course over time, and symptoms as I had listed to these and observed signs of them when she was seen for the evaluation.
3. In the absence of pre-existing psychopathology, as she had reported, and in the context of her working for her employer for 2 years previous to the initial workplace injury, in June 2009, her mental health condition appears to be related to the initial workplace injury and, the psychological effects of the subsequent two workplace accidents. I have outlined the rationale for this above.
4. Her psychological condition would have been aggravated by the subsequent slip and fall injuries.
5. On balance of probabilities, her current presentation appears to be related to the workplace assault and accidents.
6. She is not currently fit to return to work.

With respect to point 3, the rationale contained in the body of the psychological assessment included the following paragraphs:

Despite the diagnosis that had been made by [treating psychologist] and [attending psychiatrist], related to PTSD and mild to moderate depressive mood and, for [attending psychiatrist], PTSD and a Major Depression [the worker] returned to operational work … following her injuries through to June 24, 2011 and, while there was no early report of psychological sequelae in the injury reports or, initial medical or chiropractic reports, she did report to case management as of February 26, 2010, to be experiencing a lot of anxiety and that she was isolating herself and staying in her apartment. She denied experiencing anxiety previously despite being on diazepam that she stated was for insomnia.

…

[The worker's] report was that while she returned to work quickly following the June 29, 2009 assault, this was due to feeling pressured and forced to do so by her supervisor despite having physical symptoms, and she reported that the major stressors she experienced was in relationship to not being assisted by a coworker and, feeling harassed by her supervisor. Her major reason for leaving the workplace in June 2011 was associated with ongoing physical symptoms. However, as I have indicated, in February 2010, she did report to experiencing a lot of anxiety and was isolating herself and staying in her apartment, and she did report to feeling vulnerable and at risk in the workplace during her Hearing testimony.

The June 29, 2009 incident was one where she could have developed psychological reactivity to what occurred, and the incident was such that it was permissive for her to develop PTSD or, significant work-related anxiety, and my opinion here is that from what I have reviewed, despite the absence of an early report, that she was psychologically distressed over what occurred, this was primarily regards to her coworker's absent intervention, and what she described as her supervisor's lack of sensitivity to her, and in the context of her enlarging array of physical symptomatologies that gave her distress and led to multiple consultations and intrusive treatment with trigger point injections, that this was most likely related to her myofascial pain exacerbated by underlying anxiety that subsequently led to her referral to [treating psychologist], and that it is possible that she had earlier symptoms that had not been disclosed through to potentially February 2010. Despite the diagnosis made of PTSD, given the fact she had returned to work for as long as she had, it is doubtful that she had a syndromatic PTSD as this would have sufficient symptom severity to make work very difficult and, more likely than not she had anxiety related to her work circumstances that increased over time, with her documented report of anxiety and social isolation in January 2010.

…

It is possible that the initial injury stemming from the assault incident sensitized her to risk in the workplace, she stated that she "suppressed" her anxiety, but this was noteworthy subsequently, in the context of not having anxiety either on a pre-2009 basis, albeit for being on diazepam for reported sleep disturbance, and that she was subsequently seen to have PTSD although, at the time I saw her, her symptoms here were more limited in the PTSD domain with the primary symptom related to her vulnerability and more significantly agoraphobia and panic and, depressive disturbance. Not feeling protected was a theme that came through for her in terms of what happened initially with a staff member not intervening and, that subsequently experienced by her as security in her workplace as not optimal.

In order for the panel to find that the worker's psychological condition is compensable, we must be satisfied that the psychological condition is attributable to a workplace accident. On a balance of probabilities, we are not able to make that finding.

Firstly, it is notable that the third party examiner declined to find a psychological diagnosis of PTSD. He did not find support for this condition which involves a psychological reaction to a specific traumatic event. Instead he identified the diagnosis of a Major Depressive Disorder, Agoraphobia with Panic, a Somatoform Disorder NOS and benzodiazepine over use/abuse. Unlike PTSD, these conditions do not necessarily arise from a single traumatic event.

When reviewing the evidence from the hearing and the information contained in the psychological assessment, the panel observes that a repeating theme is the worker's feelings of vulnerability and lack of support in her work environment. At the hearing, the worker referred to such things as a co-worker who just stood and watched while she was assaulted, a supervisor who threatened her about her job, and a security person who was never available. Similarly, the psychological assessment referred to feeling vulnerable and at risk in the workplace and that not feeling protected was a theme that came through for the worker. With respect to the immediate post-assault events, the worker appeared to be more distressed with the reaction of the supervisor and co-worker. After her return to work, the worker stated she felt disrespected by her supervisor. Based on these comments, it would appear that the worker's psychological distress was mainly attributable to her dissatisfaction with her work environment and workplace support, as opposed to a reaction to the assault itself or the incidents of falling. The panel notes that the worker did not report much in the way of reliving either the assault or the falls by way of nightmares or flashbacks. In fact, the psychological assessment reports that the worker did not blame the perpetrator for the incident and was described as being more distressed with the reaction of the supervisor and co-worker. The panel also notes that the worker did not start reporting her anxiety and isolation until approximately February 2010. This would be consistent with a psychological condition developing over time as a result of unhappiness in the workplace, as opposed to a reaction to a traumatic event which occurred over seven months earlier.

Although there is only a subtle difference between a condition being "attributable to an accident" versus "attributable to the handling of an accident", the legislation specifically excludes workplace relational issues from coverage as an accident. Subsection 1(1.1) of the Act places a restriction on the definition of accident and states it does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination (i.e. labour relations issues). The Policy also provides under the heading "non-compensable psychological injuries" that: "Discipline, promotion, demotion, transfer and other employment related matters are specifically excluded from the definition of accident." In the panel's opinion, the worker's psychological condition found its roots in her reaction to how her workplace handled the assault and this is an employment related/labour relations type of issue. As such it is specifically excluded from the definition of accident contained in the Act and is therefore not compensable. The panel therefore finds that the worker is not entitled to further benefits in respect of her psychological condition.