Decision #150/13 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's loss of earning capacity beginning on May 10, 2011 is related to the compensable workplace accident of May 7, 2008. A hearing was held on October 1, 2013 to consider the matter.Issue
Whether or not the worker is entitled to further benefits in relation to the recurrence that occurred on May 10, 2011.Decision
That the worker is entitled to further benefits in relation to the recurrence that occurred on May 10, 2011.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for an incident that occurred in the workplace on May 7, 2008. The accepted compensable diagnoses related to the incident were acute stress disorder and post traumatic stress disorder ("PTSD"). By March 2009, it was determined that the worker was capable of returning to work with certain workplace restrictions.
In July 2011, a WCB case manager spoke with the worker to obtain an update on her work status. The worker advised that she had been off work since mid May 2011 as she had a "blow out" with her boss and had not returned to work since then. The worker did not believe that it was related to her current claim. The worker said she did not have any difficulties with her boss prior to the May incident. The worker reported that she was working in the records department as per her work restrictions. The worker advised that she had an upcoming appointment with her psychologist.
On August 11, 2011, the worker advised her case manager that she was diagnosed with situational depression by her treating psychologist and that she was told by the psychologist and her union that her current condition, time loss and treatment, were related to the original incident in May 2008. With respect to the May 2011 incident, the case manager documented the following:
The worker advised that she went to work for her 1:00 shift. Immediately upon entering work her boss started yelling at her in front of other co-workers. The worker advised her boss that she did not want to do this. The boss yelled at her to get into his office or go home numerous times. The worker advised that she did not want to. The worker eventually accompanied her boss in his office and he proceeded to yell at her for not doing someone else's job (the worker works the night shift and apparently someone on the day shift did not complete a job, and the worker did not end up completing it for them on the night shift). The worker advised that she felt isolated in the office with someone attacking her. She advised that after the event she couldn't stop crying. She has not returned to work since this incident.
The worker advised that she had difficulties going out and could not sleep. When asked why she did not report the incident at work sooner, the worker said she had no idea it was related to the original claim.
On August 24, 2011, the case manager spoke with the employer and was informed as follows:
…the May 10 incident was regarding performance. The process is that if you see an error, it is everybody's responsibility to correct it. The worker was advised of this by the Supervisor. No incident report was ever put in regarding an argument arising between the worker and the supervisor. The worker left the workplace on May 10, and has yet to return.
On May 13/11 the Deputy Superintendent…requested a written report from the worker outlining what occurred on May 10/11. The worker has not submitted a report, or contacted the employer since then. As well, the worker has never mentioned to anyone that this was a WCB issue.
…there are other performance issues with this worker. One of them, is that 1 month prior to the May 10/11 incident, there were issues with the worker being tardy for work.
On September 2, 2011, the employer's representative provided the WCB with a copy of the worker's incident report. The representative stated that the employer did not support that the interaction between the worker and her supervisor on May 10, 2011 met the basic definition of a workplace injury.
When speaking with the WCB on November 30, 2011, the worker noted that she had not yet returned to work and that some co-workers were saying things about her.
On January 6, 2012, the worker provided witness names who had knowledge of the May 2011 incident.
On February 24, 2012, further information was provided by the worker's supervisors to the WCB case manager.
By letter dated May 30, 2012, the worker was advised that the WCB was unable to find that the May 2011 incident and resulting time loss were related to the 2008 workplace accident. The case manager concluded that the worker either had an argument or discussion with her supervisor regarding performance issues. She did not find any evidence that the events on May 10, 2011 were related to the 2008 claim. The case manager noted that file documents prior to the May 2011 incident showed that the worker was asymptomatic and was functioning within her WCB restrictions. The case manager referred to WCB policy to support that the events in May 2011 did not meet the definition of an accident.
On June 29, 2012, the worker was interviewed by a WCB psychiatric consultant. The opinion outlined was that the worker suffered from PTSD, chronic in partial remission, and a major depressive disorder also in partial remission.
On August 17, 2012, the WCB psychiatric consultant considered additional information that was provided to him by the WCB case manager. The consultant stated, in part:
…In the case of the diagnosis of posttraumatic stress disorder, there is the additional requirement for the occurrence of a psychological trauma to have taken place. Following the development of PTSD, the symptoms of PTSD may recur if the patient is exposed to further triggering events.
However, if the events as reported by [the worker] as having taken place on May 10, 2011, did not occur in the manner in which they were described by [the worker] to be, this would lead to the requirement to reconsider and revise the diagnostic conclusions that I provided in my June 29, 2012, psychiatric report.
Specifically, if the events of May 10, 2011, did not occur in the manner as described by, or very similar to that described by [the worker], then an opinion that her PTSD may have relapsed following the May 10, 2011, incident would be cast into serious doubt, and would, in fact, be difficult to support.
In January 2013, the WCB contacted the witnesses identified by the worker to obtain their knowledge of the events that occurred in May 2011.
On February 26, 2013, a second decision to the worker stated that the WCB still found that her time loss and need for restrictions commencing in May 2011 were not related to the compensable injury of 2008. The case manager indicated that she contacted the witnesses identified by the worker and was unable to corroborate the events as outlined by the worker. The case manager noted that there had been a discipline issue which caused the worker's current symptoms and as such, the time loss and ongoing restrictions were not compensable or related to the May 2008 incident.
On April 4, 2013, a worker advisor acting on the worker's behalf appealed the above decision to Review Office. A copy of the submission was forwarded to the employer for comment. Their response to Review Office is dated May 24, 2013. A further submission was made by the worker advisor dated May 24, 2013.
In a decision dated June 13, 2013, Review Office determined that there was entitlement to further benefits as it decided that a stressful interaction between the worker and her supervisor took place on May 10, 2011 resulting in a recurrence of the worker's PTSD symptoms and that this led directly to her loss of earning capacity. Review Office accepted the WCB medical opinion outlined on June 29, 2012 that the worker was suffering from PTSD. It stated that a second psychiatrist also diagnosed the worker with chronic PTSD and a related depressive disorder, both in partial remission, as did her treating psychologist. Review Office noted that there was no medical evidence to the contrary. On June 14, 2013, the employer's representative appealed Review Office's decision to the Appeal Commission a hearing was arranged.
Reasons
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.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years. 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.
WCB Policy 44.10.20.50.10 Recurring Effects of Injuries and Illness (Recurrences), (the "Policy") sets out how to distinguish between a new and separate accident and the recurring effects of a previous injury or illness. The Policy states, in part, as follows:
2. New Accident
The WCB will consider that the current loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to the previous injury or illness. The current loss of earning capacity has no relationship to a previous injury if the same body part or anatomical site as the original injury or illness is not injured or the worker's condition is not consistent with the details of the accident and the diagnosis as established in the original claim.
If there was an intervening incident, event or exposure deemed capable of either causing the injury, or aggravating a previous susceptibility to injury, the WCB will also consider the current loss of earning capacity the result of a new and separate accident.
Employer’s position:
The employer was represented by its Benefits Administration Coordinator and an Assistant Superintendant of Operations. The employer did not agree with the WCB's decision in authorizing further benefits after May 10, 2011. The employer's position was that the worker's difficulties were a management issue, not a compensable issue. The discussion that occurred between the worker and her supervisor on May 10, 2011 did not meet the definition of an accident, and the employer did not agree that the incident caused an aggravation of the worker's compensable injury. The employer gave evidence regarding performance issues with the worker and submitted that the key to adjudication of this claim was to determine what happened on May 10, 2011. Based on the witness statements and evidence regarding insubordination and late attendances, the employer's position was that the incident on May 10, 2011 was solely related to disciplinary matters which management had a right and responsibility to address. The incident was not an accident leading to a compensable injury, but rather was an employer/employee relations work performance issue, and was not compensable in nature.
Worker’s position:
The worker was assisted by a worker advisor at the hearing. It was submitted that the worker was entitled to wage loss and medical aid benefit in relation to the incident on May 10, 2011 because this experience triggered a recurrence of her compensable PTSD. Compensability of the worker's recurrent psychological condition was supported by the Policy as well as the opinions provided by both the worker's treating psychologist and the WCB's psychiatric consultant. Evidence on file suggested that the worker had achieved a functional recovery from her original 2008 injury; however her psychological condition recurred following an incident on May 10, 2011. The employer characterized the interaction with the supervisor as a performance-management discussion. While that characterization may be factually true, it ignored the very personal and experience-based nature of the worker's psychological condition. The attack in the workplace in 2008 left a lingering effect on the worker, including a vulnerability to relapse. While the employer had sought to discount the worker's account of the events on May 10, 2011, it was submitted that the worker's perception of the experience was the paramount consideration in determining the compensability of her response. The worker's position was that she was entitled to wage loss and medical aid benefits because the evidence supported that she suffered a recurrence of her compensable psychological injury as a result of the personal stressful exchange she experienced on May 10, 2011.
Analysis:
In order for the employer’s appeal to be successful, the panel must find that the psychological difficulties the worker experienced after May 10, 2011 are not related to the PTSD condition she developed as a result of the workplace incident of May 7, 2008. On a balance of probabilities, we are not able to make that finding.
In the panel's opinion, the incident on May 10, 2011 was an event which aggravated a previous susceptibility to injury and caused the worker to suffer a recurrence of her PTSD condition. In coming to our decision, the panel relied on the following:
- The evidence regarding the specific details of how the incident transpired is inconsistent but the panel is satisfied that on that date, the worker was asked to meet with her supervisor alone in an office, isolated from her co-workers, and that a heated discussion ensued. The worker's evidence was that: "it was the situation, not [the supervisor]" which caused her to become distressed, as the scenario had similarities to the initial assault in 2008 which caused her PTSD. The panel accepts that this was sufficient to trigger her previously manageable PTSD condition.
- The panel notes that it does not matter whether or not the May 10, 2011 incident would in and of itself constitute an "accident" pursuant to the Act. The worker already had an accepted claim for the 2008 PTSD injury. According to the treating psychologist, this condition never fully resolved and the worker remained vulnerable and sensitive to increments in stress. Accordingly, it did not matter whether or not the event which triggered the recurrence constituted an accident. The trigger need not even be work- related. There is entitlement to benefits based on a recurrence of the original workplace injury.
- The medical opinions on file from the treating psychologist, the treating psychiatrist, and the WCB psychiatric advisor all support an ongoing diagnosis of PTSD and that the May 10, 2011 incident led to a relapse of the initial symptoms.
- The August 17, 2012 memo of the WCB psychiatric advisor noted that there was some question as to the accuracy of the worker's report of the May 10, 2011 events and that if the events did not occur in the manner in which they were described by the worker, it may cause him to revise his diagnostic conclusions. He stated: "In the case of the diagnosis of [PTSD], there is the additional requirement for the occurrence of a psychological trauma to have taken place. Following the development of PTSD, the symptoms of PTSD may recur if the patient is exposed to further triggering events." The panel is satisfied on a balance of probabilities that the incident of May 10, 2011 involved a situation where the worker was isolated in an office with her supervisor in a confrontational situation and that subsequently, an immediate emotional response on the part of the worker was witnessed by several coworkers. As such, we find that a triggering event did occur on that date, and that the diagnosis of a recurrence of PTSD symptoms remains accurate.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 21st day of November, 2013