The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing three decisions made by the Workers Compensation Board ("WCB") with respect to his claim for a work-related injury that occurred in November 1991. A hearing was held on April 23, 2014 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's pain disorder as a consequence of the November 9, 1991 compensable injury;

Whether or not responsibility should be accepted for the worker's major depressive disorder as a consequence of the November 9, 1991 compensable injury; and

Whether or not the worker is entitled to temporary total disability benefits after April 30, 1996 in relation to the psychological conditions.

Decision

That responsibility should not be accepted for the worker's pain disorder as a consequence of the November 9, 1991 compensable injury;

That responsibility should not be accepted for the worker's major depressive disorder as a consequence of the November 9, 1991 compensable injury; and

That the worker is not entitled to temporary total disability benefits after April 30, 1996 in relation to the psychological conditions.

Decision: Unanimous

Background

In March 1992, the worker filed a claim with the WCB for pain and swelling to both elbows that he experienced while performing his work duties. The date of accident was November 9, 1991.

Since then, the worker has been seen by a number of medical professionals and had been diagnosed as having bilateral medial epicondylitis, ulnar nerve entrapment, ulnaritis, ulnar nerve neuropraxia, tendonitis with underlying fibromyalgia, a displaced fracture to the transverse process of a cervical vertebrae, strain to the wrist extensor muscles and triceps, mild impingement syndrome of the left shoulder and arthrosis of the left AC joint.

On September 17, 1993, it was determined by the WCB that the worker had recovered from the effects of his compensable injury and was no longer entitled to benefits. The worker appealed the decision to Review Office and then to the Appeal Commission. Under Appeal Commission Decision No. 262/94, the appeal panel determined that the worker had not recovered from the effects of his accident and benefits were reinstated.

The worker's case was again the subject of an appeal panel hearing in June 1996 to determine whether or not the worker was entitled to payment of wage loss benefits beyond April 30, 1996. Under Appeal Commission Decision No. 119/96, the appeal panel determined that the worker was not entitled to payment of wage loss benefits beyond April 30, 1996 as it was felt that he had recovered from the effects of his compensable injury and that his current condition was not related to the compensable injury. Specifically, the Appeal Commission found that the worker had recovered from the strain injury to the muscles of his forearms and upper arms, in particular the extensors of the wrist and bilateral triceps muscle strain. It also determined that the diagnoses of mild impingement syndrome, left shoulder and arthrosis left AC were not compensable.

On April 29, 2008, the worker's case was considered by Review Office as the worker appealed the WCB's decision dated February 12, 2008, that his psychological conditions, diagnosed as a Major Depressive Disorder and Post-Traumatic Stress Disorder ("PTSD"), were not related to his compensable injury of November 9, 1991. Following review of all file information, Review Office concluded that the worker's psychological conditions were not related to his compensable injury of November 9, 1991.

Review Office accepted the opinion of a WCB psychology consultant that the medical documentation established that the predominant cause for the worker's mental health disability was the decision of the WCB to end responsibility for the worker's claim effective April 30, 1996, and not the compensable injury itself. Review Office indicated that the WCB psychology consultant's opinion was based on the absence of psychological intervention and the worker's high level of functioning prior to the WCB's decision to end benefits in 1996. The consultant did not accept a diagnosis of PTSD in relation to the compensable injury.

On March 18, 2010, the worker advisor representing the worker requested a Medical Review Panel ("MRP") based on a difference of medical opinion regarding the diagnosis and etiology of the worker's psychological condition. An MRP later took place on May 13, 2011.

On September 7, 2012, Review Office determined that the worker's Major Depressive Disorder was not related to his compensable injury of November 9, 1991 and that the diagnosis of PTSD was related to his compensable injury.

Review Office stated in its decision that the board was not bound by the opinions expressed by the MRP. Review Office indicated that the new diagnosis of pain disorder offered by the MRP had not been previously ruled on by Rehabilitation and Compensation Services and that this issue was being returned to them to adjudicate whether a relationship existed to the worker's compensable injury. With respect to the diagnosis of delayed onset PTSD proffered by the MRP, Review Office accepted the MRP's opinion that a relationship existed between this condition and the 1991 compensable injury.

Review Office noted the MRP's opinion that the predominant psychological condition affecting the worker was the Major Depressive Disorder. Review Office, however, did not find that the opinions expressed by the MRP permitted it to alter its previously adopted position that the worker's depression was predominantly related to the discontinuation of his WCB benefits and his perceived mistreatment at the hands of the WCB. Review Office indicated that the file evidence clearly showed a strong temporal relationship between the onset of the worker's Major Depressive Disorder and the negative decisions conveyed to him by the WCB regarding his entitlement to benefits.

By letter dated April 24, 2013, a WCB senior case manager wrote the worker to advise that based on medical information, reports by the worker and review by a WCB psychiatric consultant, she did not find that his pain disorder was a result of the injuries he sustained in the 1991 accident. The decision was based on the following factors: the WCB psychiatrist's opinion that there was no relationship between the PTSD and pain disorder; the medical literature did not support a link between PTSD and Pain disorder; and that the worker's pain complaints were to areas of his body that were not injured at the time of his original compensable injury.

On May 27, 2013, the WCB wrote the worker with respect to entitlement issues related to his PTSD condition that was ruled compensable by the Review Office. The worker was advised that based on all the relevant file information, there was no medical evidence to support that his PTSD condition resulted in any wage loss benefit entitlement. The case manager noted that the worker's treating psychiatrist provided information that the worker's ongoing care was not focused on PTSD symptomology and the psychologist did not recommend any workplace restrictions related to PTSD. The case manager wrote that there was insufficient evidence to support that the worker's loss of earning capacity was a result of PTSD symptoms or that PTSD symptoms had significantly impacted his ability to secure employment.

In a submission dated October 8, 2013, a worker advisor wrote Review Office to request reconsideration of the April 24, 2013 decision to deny responsibility for the worker's psychological pain disorder and the May 27, 2013 decision to deny wage loss benefits related to the worker's compensable PTSD condition. Review Office was also asked to reconsider its previous decision dated September 7, 2012 to deny the compensability of the worker's major depressive disorder. The worker advisor referred to file evidence to support that the worker's pain disorder and major depressive disorder was causally related to his November 9, 1991 workplace accident and that the effects of these conditions are the WCB's responsibility. He also submitted that the worker was entitled to wage loss benefits because his psychological conditions disabled him from returning to his pre-accident employment.

On November 16, 2013, Review Office determined that the worker's pain disorder and major depressive disorder were not causally related to the November 9, 1991 compensable injury. To support its position, Review Office considered medical reports on file which included a June 6, 2007 report from the treating psychiatrist, the WCB psychiatric consultant's medical opinion of April 22, 2013 and the report by the treating psychiatrist dated August 13, 2013.

Review Office noted that the worker saw a physical medicine physician in June 2009 and he obtained segmental neuromyotherapy for left-sided neck and shoulder pain. The physician noted that the worker had "a longstanding history of left-sided neck and shoulder pain radiating to the left arm" which was supported by the evidence on file. Review Office noted that these areas were not injured at the time of the worker's accident.

Review Office referred to a nurse practitioner who reported that the worker's "chronic left-sided neck and shoulder pain" were being treated at the pain clinic. Review Office found that the neck and shoulder pain complaints and other medical issues currently reported by his treatment providers were unrelated to the compensable physical injury. Given the diagnostic criteria for pain disorder as noted by the WCB psychiatric consultant, it did not find there was a cause and effect relationship between the diagnosis and the compensable physical injury.

Review Office indicated that the worker's perception of his dealings or interactions with the WCB related to the administration of his claim were not compensable.

Review Office accepted the opinion of the WCB's psychiatric consultant who wrote the treating psychiatrist on October 1, 2013:

"As you indicated in your letter, medical literature indicates that pain can be associated with PTSD, if the person has sustained an injury during the traumatic event. Pain itself, however, is not one of the diagnostic criteria for PTSD. Medical literature does not support a link between Pain Disorder and PTSD. [The worker] has pain in areas that were not injured at the time of his workplace injury. Pain was present for many years before he developed symptoms of PTSD. Thus, it is my opinion that Pain Disorder is not related to his workplace injury."

Review Office felt that the evidence did not support a change to its decision of September 7, 2012 that "The file evidence in the opinion of Review Office clearly shows a strong temporal relationship between the onset of (the worker's) Major Depressive Disorder and negative decisions conveyed to him by the WCB regarding his entitlement to benefits." Review Office concluded that the worker's pain disorder was not causally related to his compensable injury and that responsibility was not accepted for this diagnosis.

Regarding the worker's entitlement to temporary total disability ("TTD") benefits after April 30, 1996, Review Office referenced the June 7, 2011 MRP report which stated that there were no psychological or psychiatric restrictions. Review Office indicated that since responsibility had not been accepted for two of the three psychological diagnoses, it could not find that the delayed onset of PTSD resulted in a loss of earnings due to disability after April 30, 1996. The reasons for the worker's disability were multi-factorial and predominantly unrelated to the compensable injury. Therefore, the worker was not entitled to TTD benefits after April 30, 1996 in relation to his psychological conditions.

On December 2, 2013, the worker advisor appealed Review Office's decisions to the Appeal Commission and a hearing was held on April 23, 2014.

Reasons

Applicable Legislation

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

The worker has an accepted claim for a workplace injury and is seeking recognition that his Pain Disorder and Major Depressive Disorder are related to his 1991 workplace injury. He is also seeking benefits beyond April 30, 1996 in relation to his psychological conditions.

As the injury occurred in 1991, this appeal is determined in accordance with the Act as it existed at the time of his claim.

Worker's Position

The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker's treating psychiatrist attended, was sworn in as a witness and answered questions. The worker also answered questions from his representative and the panel.

At the hearing, the worker's representative submitted:

"It is our position that [the worker] is entitled to further benefits due to his psychological conditions. The evidence on file is clear. Before his accident in 1991, he was a happy, hard-working, well respected, family man, active in his community and the work place.

There is no evidence whatsoever of any psychological disturbance on the file. It is confirmed that the workplace accident has caused both physical and psychological injuries.

Extensive medical testing was done with numerous, often conflicting opinions on the source of his ongoing pain. This is clearly frustrating to [the worker] and his return to the workplace also was frustrating given the alternate work he was provided.

People known to [the worker] confirmed with [name], the WCB’s psychological consultant, that he changed as a result of the accident. His daughter called him a different father as a result of that accident. His mother said that after the accident he became very sad and worried. His union rep provided a letter explaining all the different reasons why [the worker] had changed.

And his employee assistance program counsellor confirmed early symptoms of anxiety and low mood, along with struggle with his loss of reputation as a good worker. She described him as over-whelmed and disengaged at that time in 1991.
...

[The worker] returned to the EAP counsellor in 2005 and ’06 and she reported that he had experienced on-going anxiety and depression since 1991. He appreciated he wasn’t being seen during that time, but that’s (sic) been evidence to support there was already difficulties happening.

While it is not clear on the file, there’s multiple reasons why the deterioration of his mental health was not clearly documented. He clearly wanted to focus on the recovery from his physical injuries.

He put on a brave face and used humour to hide his internal struggles. He (sic) own personality made it difficult for him to discuss these matters. The nature of the work place...was not indicative of sharing emotions and there was limited access to mental health support in the north.

In addition to that, the small community of [name] certainly challenged the personal privacy that somebody dealing with these issues would like.

[The employer] put him on permanent disability while the WCB questioned his injuries. In 1996 the WCB’s decision to end responsibility for his claim and the VR plan (sic) was on-going was significant to him, but it is our position that he had already been struggling with anxiety, stress and depression as a result of his compensable injury.

There has been subsequent numerous life stressors, including unemployment, divorce, homelessness, financial stress, ongoing chronic pain.

[WCB psychological consultant] determined, quote, “My opinion is that the injury he sustained in the workplace was not psychologically neutral for him. It set in motion a series of psychological changes for him." End quote.

Nonetheless, [WCB psychological consultant] concluded that the WCB’s decision was the predominant cause of his mental health disability.

[Worker's psychiatrist] agreed that the WCB decision to withdraw support increased the symptoms of depression and diagnosed PTSD, but these were first triggered by his 1991 compensable injury.

His counsellor...agreed with [worker's psychiatrist's] assessment.

Another psychiatrist, [name], she diagnosed major depression and PTSD as well.

[The Psychologist], who’d only seen [worker] on one occasion also agreed with [worker's psychiatrist's] assessment and completed his CPP application for both depression and Post Traumatic Stress.

The MRP, which was held in 2011 for his psychological difficulties, confirmed there was no pre-existing psychological disorder. They provided diagnosis of Pain Disorder, major depression and post-traumatic stress all resulting from the compensable injury. They also indicated that further treatment was required.

From that report, I quote, “In retrospect and from the information recorded from 1995 onward, it is clear that this man was suffering from some psychological effects starting not too long after the initial injury.” End quote.

Following the MRP the WCB accepted responsibility for the PTSD, but not the depression and neither the Pain Disorder.

There is ample literature that supports – there is an interaction between all of these conditions provided with our submission from Veterans Affairs. It says, depression is common amongst those with PTSD. It also states the depression is nearly three to five times more likely in those with PTSD than those without.

Another study is showing, quote, “PTSD and co-morbid PTSD depression are effectively one-and-the same thing. The data suggested that depressive symptoms are often integral to PTSD and that to separate depression out as a distinct disorder when it occurs with PTSD is somewhat of an arbitrary distinction.”

There is absolutely no doubt from the file that the decisions the Board has made with respect to [worker's] compensation were devastating to him, but, it is our position that there is ample evidence to accept that he had already been struggling with depression, anxiety, PTSD, prior to these decisions and that these conditions all arose as a direct result of his workplace injury..."

The worker's psychiatrist answered questions from the worker advisor and the panel and provided significant information, including;

• the worker has post traumatic stress disorder which is still very active and also has major depressive disorder and chronic pain.
• the root cause of each of the worker's conditions: "his injury in '91 and his second injury in 1996 when his funding was terminated and as I understand it without much explanation as to why it was terminated. Those are the two significant traumas."
• all three conditions emanate from the same accident.
• there is an interrelationship or association between the 3 conditions. "There are connections. Co-morbidity of having two or all three of them is more common than just having one diagnosis alone. Post traumatic stress disorder at least half of people with PTSD also qualify for a DSM 4 and now DSM 5 diagnosis of depression."
• over half of people with PTSD also qualify for a diagnosis of major depressive disorder.
• "The same changes that happen in the emotional mid-brain, which is also where we kind of coordinate our physical sensations and awareness. There is common damage between PTSD, major mood disorders, and chronic pain syndromes. And, you know, although [WCB psychiatric consultant] stated in her opinion, one of the psychiatry opinions, that, you know, pain is not a symptom of PTSD, as it is listed in the DSM 4 and DSM 5, there’s tons of evidence that chronic pain is a common complication of PTSD. And, it can be both from the physical injuries of the trauma, but it also can become generalized pain and flooding with pain that is from other areas of the body besides where the initial physical trauma is."
• regarding the relationship between the three diagnoses: "They all have individual roots, but it’s like feeding on each other, like amplifying what’s going on in the other two conditions."
• regarding the worker's psychological condition before his accident: "There is no history of counselling, psycho, psycho-active medication, no psychiatry consults. There was nothing like that before the injury."
• regarding a lack of evidence between 1991 and 1998 of any psychological problem: "Yes. A couple of explanations is, one, the focus was on the physical pain and injury in trying to restore [worker] to a working kind of position, so that often happens, is that we focus on the body stuff and we’re not necessarily enquiring very much about the psychological stuff. A second reason is, and I think [worker] has affirmed this as well, is the shame that’s related to having psychological problems and that often more so for men as well. They’re not going to talk about flash-backs. They’re not going to talk about avoidance unless they are specifically asked about that. And then thirdly, everything got ramped up after 1996 in which case it was pretty difficult to ignore the psychological symptoms after ’96, but they were there before ’96".
• regarding whether a chronic pain or Pain Disorder can continue without an organic source: "Well, theoretically speaking, yes. I mean that’s why there’s things like fibromyalgia and chronic pelvic pain and TMJ and stuff like that; is that the pain is amplified by the brain’s otherwise wornoutness and depletions, right. Now my understanding is, is that there are both peripheral lesions, you know, body injuries that are still being treated, as well as central nervous system kind of exhaustion and what we call dysregulation or unhealthy regulation of pain sensation."
• on the WCB's decision to separate responsibility for a delayed onset PTSD from responsibility for depression and pain: "I don’t think they’re separable. And, and the, the expanding body of evidence is if you treat somebody successfully, you’re treating all three of them at the same time. They are that inseparable. And so to try and divide them up into categories is not based on current reality and understanding."
• he disagreed with the opinion of the MRP.
• regarding the worker's current treatment: he and the worker are reviewing medications, making sure they are doing what they’re supposed to do which are minimally helping at high dosages and working with the worker on doing the self-regulation technique and providing supportive psychotherapy.
• regarding the worker's ability to return to his pre-accident work or to alternate employment: "His psychological prognosis for returning to his physical job is poor. His psychological prognosis for turning (sic) to some other kind of work would be guarded. He’s got some strengths and some curiosity and interest in things, but that’s really shaken up by the PTSD flooding, numbing, flooding, numbing, stuff that’s going on, but that is kind of the long term goal that [worker] and I have is to, you know, work through this process, and, and survive and hopefully thrive through it and then to be working towards building something new."
• regarding the worker's WCB claim file, he acknowledged that he has not seen the entire file.
• regarding PTSD symptoms in 1991: "You know, if you’re thinking about the state of medicine in 1991, I would not expect your average family physician and probably not even most psychiatrists would be asking about PTSD. And, so, you know, I don’t, I wouldn’t find it hard to believe that nobody asked enough questions to find out what was going on."
• regarding the worker's depression: "I think there were symptoms of depression going on before ’96, but things got way worse after that removal of funding."
• regarding the origins of the worker's Pain Disorder: "I think it is evident from his history that he had pain during ’91 to ’96, but a major source of this man’s resilience of pushing through is being able to do physical things and, and have a plan, you know, as to have a meaningful activity and a direction in his life. And so, you know, yes, he was functioning, which I think is a credit to his strength and resilience and, yes, in ’96 all of that was shattered by WCB’s decision to not support him in further training and getting him back into some meaningful activity again. When did it start becoming something that looked like Pain Disorder? I can’t answer that question, you know. All I know is that by the time I’m working with him, it’s not just pain from the – in the area of the physical region. It is now generalized to other parts of his body which, again, gets complicated by poverty and inactivity and not being able to do the things that kept him strong before. So, I really don’t have a specific answer as to who first thought Pain Disorder and when, because it is a gradual process."

The worker's evidence:

The worker described the workplace accident. He told the panel he and a co-worker were performing an anode change in a rounds plating tank. With reference to drawings (Exhibit 1 at the hearing), he explained the procedure he was performing and his position in relation to anodes which were being changed. He advised one of the anodes fell off the rack towards him. He stated "I could see it now. I – there was nowhere to go. So instantaneously your internal instinct, your animal instinct says fight and I got some extra strength, managed to catch it, stop it right (sic) this, on this side, and pushed it back."

When asked how he felt after the incident he replied "I am a sports guy. My immediate reaction after was I was so friggin angry I think I – I think I got some extra stuff there. I did the rest of the tank one arm."

With respect to whether he had any pain at the time, he advised "I’m numb. I, I just – I’m angry. I’m not even feeling anything."

The worker was asked about his employment record between 1996 and 2006. He advised:

• he sold real estate for a couple years. He advised that he took a real estate course and was registered to sell real estate. He said the economy worsened so he stopped selling real estate.
• he worked as a "kind of coordinator" at a golf course. He was paid poorly but was given a cabin and food. He supervised staff who were sodding a fairway, organized a tournament, and served as a course marshall. He could not afford to stay because the pay was so low.
• he lived in his truck doing odd jobs for friends.
• he worked as a truck driver as he was familiar with driving on winter roads. He did odd jobs, helping a handyman, worked at a friend's paint supply shop. "So if my arm was sore I would be on the counter...If my arm wasn't too bad and my other arm was - it would do stuff, I'd go out and I would supervise and help do some of the physical stuff."
• he worked at a large retail establishment running the garage. "...I ran the entire garage...after the course of a year and a half I had taken that garage from not being rated at all and turned it into the number one, ten bay garage in Canada." He ultimately left this job after a disagreement with the new owner and after an accident at the garage.

Regarding his psychological condition the worker advised:

• prior to the injury he was active in the community belonging to the executive of many groups including the golf club and curling club.
• he saw an EAP counsellor a couple times in 1991 regarding his psychological condition. He said it was difficult to be seen to receive counselling services in a small town. The counsellor provided him with a stress reducing technique.

Employer's Position

The employer did not participate in this appeal.

Analysis

The panel notes there are two prior Appeal Commission decisions on the worker's file. Of particular relevance to the issues before this panel is Appeal Commission Decision 119/96 which dealt with the worker's physical injuries. The Appeal Commission found that the worker was not entitled to wage loss benefits arising from the physical injuries which the worker sustained in the workplace accident. It accepted the opinion of an MRP which found the worker's diagnosis related to the workplace injury to be "a strain injury to the muscles of his forearms and upper arms." The Appeal Commission found that "based on the preponderance of evidence that the claimant has, on a balance of probabilities, recovered from the effects of his compensable injury and that, in addition, the worker's current condition is not related to the compensable injury."

The issues before this appeal panel deal with the worker's psychological condition. As a starting point, the panel notes that the WCB has accepted that the worker suffers from Pain Disorder, Major Depressive Disorder and PTSD. The panel also accepts the existence of these diagnoses. The issues for the panel to address deal with the relationship of these conditions to the worker's 1991 workplace accident and the consequential impact on the worker's ability to work and earn an income.

1. Whether responsibility should be accepted for the worker's Pain Disorder as a consequence of the November 19, 1991 compensable injury.

For the worker's appeal of this issue to be accepted the panel must find, on a balance of probabilities, that the worker's Pain Disorder is caused by the worker's accepted workplace accident. The panel was not able to make this finding.

The worker's position is that his Pain Disorder is related to his compensable injury. The argument advanced on his behalf is that the worker's PTSD, major depression and Pain Disorder cannot be separated. As the PTSD is related to his workplace injury, so must the Pain Disorder be related to the workplace injury. The worker's psychiatrist stated that "There is common damage between PTSD, major mood disorders, and chronic pain syndromes." The worker's psychiatrist said there is historical evidence that there was pain between 1991 and 1996. He noted that it was in the physical region of the injury and "It is now generalized to other parts of his body..."

The WCB psychiatry consultant provided a different opinion on the relationship between Pain Disorders, major depression and PTSD than the treating psychiatrist. In a memo dated April 22, 2013, the consultant opined that:

"Pain Disorder , as defined by the DSM-IV-R has diagnostic criteria: Pain at an anatomical site that is the focus of presentation and severe enough to warrant clinical attention: pain causes distress in occupational, social and other areas of function; psychological factors are important in the onset, severity and maintenance of the condition; the symptoms is not intentionally produced; it is not better accounted for by a diagnosis of depression or other psychiatric condition....

...There is no medical literature to support a link between PTSD and Pain Disorder. [The worker] has reported pain throughout the claim; the pain is in areas that were not injured at the time of the injury, and as such, is considered non-compensable. The location of the pain as well as the intensity has been stable for more than 10 years. The symptoms were present many years before [the worker] was diagnosed with Depression and PTSD. There is no relationship between PTSD and Pain Disorder. Pain Disorder is considered unrelated to the PTSD for these reasons:

•  there is no time correlation between PTSD and Pain Disorder.
•  Pain Disorder is a type of somatization disorder. Somatization disorders are a result of a person's perception of pain as well as other body functions. This in turn is related to a person's coping strategies and personality style. Personality style has its onset in childhood, adolescence, and early adulthood. Coping styles are an enduring pattern of thinking, feeling, and behaving. In this case, [the worker's] coping strategies were well in place long before the injury. 
•  medical literature does not support a link between PTSD and Pain Disorder."
  

The WCB psychiatric consultant also opined that:

• PTSD does not manifest as Pain Disorder.
• Depression does not manifest as Pain Disorder.
• Literature has not found a link between a diagnosis of Major Depression and Pain Disorder. Major Depression is not contributing to the diagnosis of Pain Disorder.
• The diagnosis of Pain Disorder is not related to the compensable injury.
• Pain Disorder is not related to the claim.
• The primary barrier to the worker's return to work is the Pain Disorder.

In determining this issue and after consideration of all the evidence, the panel attaches greater weight to the analysis and opinion of the WCB consultant. Specifically the panel accepts the WCB psychiatrist's opinion that:

• the worker's coping techniques which are fundamental in the development of a Pain Disorder were in place long before the injury.
• there is no relationship between the worker's PTSD and Pain Disorder.
• the medical literature does not support a link between PTSD and Pain Disorder.

The panel considered the medical literature provided on the worker's behalf but is not able to rely upon this literature to conclude that the worker's Pain Disorder is related to the compensable injury or the worker's PTSD.

In particular, the panel notes and finds that the worker's pain and pain disorder are not in areas which were injured in the workplace accident. In this regard, the panel notes the July 1995 opinion of a WCB medical advisor who examined the worker and found "there was no evidence that the worker was suffering from a condition affecting his left elbow and no evidence that he was suffering from any type of cervical disorder, including the relating to a previously identified fracture of the C7 traverse process." As the current areas of complaints are not related to the original compensable injury, the panel finds that a pain disorder in these new areas is likewise not compensable.

The worker's appeal of this issue is dismissed.

2. Whether or not responsibility should be accepted for the worker's Major Depressive Disorder as a consequence of the November 9, 1991 compensable injury.

For the worker's appeal of this issue to be successful the panel must find, on a balance of probabilities, that the worker's Major Depressive Disorder is caused by the worker's accepted workplace accident. The panel was not able to make this finding.

The WCB found that the Major Depressive Disorder was not related to the worker's injury but rather was caused by a reaction to the WCB decision to terminate the worker's benefits. The WCB relied upon the February 14, 2007 Psychological Call-In Examination by the WCB psychology consultant. The WCB psychology consultant noted that:

"...the issue I have been asked to address is over the potential psychological fallout from this compensable injury, and here, while I have undertaken as exhaustive a review as I can, given the requests I made for information, collateral interviewing, and careful review with [the worker] , it is clear to me that his current clinical status is, in the main predominantly caused by the fallout from the 1996 decision that the Compensation Board made that led for his wage to be discontinued as of April 30, 1996, and this led to his training program that he was to enter to be terminated at that time as well...Hence, the predominant cause for the level of severity mental health disability at this point is the decision the Compensation Board made to discontinue wage loss beyond April 20, 1996 and to discontinue a rehabilitation program that he was to be engaged in."

In a further opinion dated June 7, 2007, the WCB psychology consultant opined that:

"...the predominant cause of his current psychological mental health state, and his unemployability at this time, is the events that transpired following 1995/1996 and, are related to the consequences of an adverse decision by the WCB and its aftermath and, the development of lifestyle-related factors that have multiple influences. "

The worker's position is that his Major Depressive Disorder developed as a result of his injury. The worker's representative acknowledged that the WCB decision to end the worker's benefits, just when he was starting a retraining plan, did cause an increase in his psychological distress, but that "this represented an exacerbation of an underlying condition that had already been established."

The panel was not able to find that the worker had sustained the exacerbation of an underlying condition or that the worker's depression was due to the accident.

The panel attaches significant weight to the opinion of the WCB psychology consultant. The panel notes that the psychology consultant met with the worker on several occasions, made inquiries of his family and others regarding the worker's condition prior to the WCB decision to end his benefits. He noted that the worker was seen by a psychologist in February 1995 for the purpose of a vocational assessment and was assessed to be functional, without distress, and ready to pursue a vocational rehabilitation plan. He noted that the medical rehabilitation professionals the worker saw before 1996 did not identify a mental health issue. In contrast, the worker's attending psychiatrist first met with the worker in 2007 and formed his opinions regarding the timing of these conditions based on his interview and without the collection of collateral information or access to the extensive evidence in the worker's claim file.

The panel notes that the worker's psychiatrist provided testimony regarding the worker's PTSD, Major Depressive Disorder and Pain Disorder. He stated "They are that inseparable. And so to try and divide them up into categories is not based on current reality and understanding."

The panel considered this position but finds that the symptoms relating to the Major Depressive Disorder were apparent before the worker's PTSD and Pain Disorder were diagnosed and related directly to WCB decisions regarding benefit entitlement in 1996, and not to his compensable injuries.

The worker's appeal of this issue is dismissed.

3. Whether the worker is entitled to TTD benefits after April 30, 1996 in relation to the psychological conditions.

The panel notes that under the Act as it existed in 1991, TTD benefits are payable where the worker sustains a loss of income due to a disability arising from a compensable injury.

For the worker's appeal of this issue to be successful, the panel must find that the worker is entitled to TTD benefits after April 30, 1996 as a result of a compensable condition. The panel was not able to make this finding.

The panel notes that the June 2011 MRP was asked whether the worker has restrictions as a result of the November 9, 1991 incident. The MRP responded that:

"Physical restrictions are not recommended at this time. There should also be no psychological or psychiatric restrictions as well. The worker should have a graduated return to normal activity."

The worker's representative argued that the MRP report supports the notion that the worker's psychological condition requires intensive treatment to address the worker's ongoing disabling symptoms.

The panel has already determined that the worker's Pain Disorder and Major Depressive Disorder are not compensable consequences of the November 9, 1991 workplace injury. Accordingly, the panel finds that any loss of income caused by or otherwise related to these conditions is not compensable. This leaves the panel to consider whether the accepted PTSD condition disabled the worker and resulted in a loss of income.

The panel notes that the MRP found the PTSD to be late onset and the Review Office accepted this diagnosis as related to the November 1991 injury. The panel finds that the worker's loss of income commenced long before the onset of the worker's PTSD which was first diagnosed in 2007. The panel is not able to attribute the worker's current and ongoing loss of income to this condition.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of June, 2014