The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury and that hiscurrent psychological condition was due to other non-compensable factors.  A hearing was held on April 8, 2015 toconsider the matter.

Issue

Whether or not the worker is entitled to wage loss benefitsafter November 24, 2013.

Decision

That the worker is not entitled to wage loss benefits afterNovember 24, 2013.

Decision: Unanimous

Background

The worker has two accepted claims with the WCB related to two separate work events that occurred on February 4 while employed as a paramedic (stress) and on July 8, 2012 (blood exposure) while employed as a firefighter. File records showed that the worker was diagnosed and treated for post traumatic stress disorder ("PTSD").

In a letter dated October 8, 2013, the worker was advised that WCB wage loss benefits would be issued to September 30, 2013 inclusive as it was determined that his ongoing complaints were related to non-compensable factors.

On January 20, 2014, a worker advisor asked Compensation Services to reconsider the October 8, 2013 decision based on two medical reports from healthcare providers stating that the compensable diagnosis of PTSD continued to be the worker's disabling condition beyond September 30, 2013. Since the WCB initially provided benefits to the worker based on the treating psychologist's opinion, the worker advisor contended that the WCB should continue to provide the worker benefits based on the current opinion expressed by the treating psychologist with respect to the compensable diagnosis of PTSD. The worker advisor noted that when the compensable injury continued to be a contributing factor in a worker's inability to return to work, a loss of earning capacity existed and wage loss benefits were payable in accordance with the Act.

Following review of the worker advisor's submission, Compensation Services upheld its decision of October 8, 2013. The case manager placed weight to the opinions made by the worker's general practitioner and treating psychologist in the context of other psychiatric opinions and collateral claim information. It was felt that the weight of evidence did not support that the worker's loss of earning capacity was predominantly related to the effects of his compensable psychological injury. On March 7, 2014, the worker advisor appealed the WCB decisions to Review Office.

On May 7, 2014, Review Office determined that it was appropriate to extend the worker's entitlement to wage loss benefits by eight weeks to November 24, 2013 in relation to his compensable injury. Review Office referred to file evidence to support that the worker had received appropriate and stable psychological support for his difficulties and that the worker's ongoing loss of earning capacity was more likely the result of employment issues, other matters, and pre-existing factors than his compensable injury. Review Office found that the worker's gradual transition to regular work duties would have been completed as of September 30, 2013. Review Office felt it was reasonable to extend the gradual return to work/desensitization period by a further 8 weeks to November 24, 2013 given the nature of the compensable injury and the regular work duties involved.

On July 31, 2014, the worker advisor asked Review Office to reconsider its decision based on new medical information dated June 5, 2014 from an independent psychiatrist. The new medical information outlined the view that the primary diagnosis was PTSD from which the worker had not yet recovered and that the worker required continued pharmacotherapy and counseling. It was felt that the worker should "...avoid any occupation with a high likelihood of witnessing traumatic experiences..."

On October 7, 2014, Review Office advised the worker that no change could be made to its previous decision. Review Office placed weight to the evidence collected prior to and during the return to work planning in 2013. Review Office felt that the independent psychiatrist did not receive a full history of the claim file and therefore was unable to provide weight to his opinion. On October 20, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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 an injury arising from a July 8, 2012 accident. He is seeking wage loss benefits after November 24, 2013.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions from the panel.

The worker's representative submitted that the worker continues to sustain a loss of earning capacity as a result of the compensable injury. In support of the worker's position, the worker's representative relied upon a June 5, 2014 opinion of a psychiatrist who conducted an independent medical examination of the worker. She noted that the independent psychiatrist opined that the worker's primary diagnosis is PTSD with secondary diagnosis of Major depression, (moderate severity) and Panic disorder. The independent psychiatrist also opined that the worker has a low likelihood of returning to work as a paramedic, but a high likelihood of returning to work. He opined that, as of the date of the examination, the worker did not appear medically able to return to work in any other occupation.

The worker's representative was critical of Review Office's refusal to accept the independent psychiatrist's opinion. She noted that the WCB psychiatric consultant had originally agreed with the diagnosis of PTSD but had changed her opinion. She noted that the WCB psychiatric consultant had not recently examined the worker.

The worker's representative also noted that the worker's treating psychologist and treating physician agree with the diagnosis of PTSD. She referred to the treating psychologist's November 29, 2013 report which noted that "At my initial meeting with [the worker] he described a full complement of Post Traumatic Stress Disorder symptoms."

In answer to questions from the panel the worker advised that:

• he is still in treatment with his original treating psychologist, his original psychiatrist who deals with his prescriptions, his family physician, a second psychologist and a vocational rehabilitation councilor from his employer.
• he is prescribed medications for his condition which his wife keeps in a lock box so that he cannot access the medications.
• he only uses prescription drugs and is not using street drugs
• he has not returned to work since a brief return immediately after the accident
• he is about to undergo EMDR therapy with the second psychologist
• he has no liquor in his house and does not go to bars
• the "gym is my life", he goes to the gym frequently, often twice a day
• he does not socialize
• when his wife is at work he stays with his parent
• he has had no incidents (attempts at self-harm) since December 2014

The worker was asked about events noted on the file which may contribute to his condition:

• childhood abuse. The worker acknowledged this occurred and that he reported the incidents to the police who investigated and recommended charges, but the Crown refused to pursue because of the difficulty of prosecuting such cases. He received this information in either November or December 2014.
• death of infant brother when he was young. The worker said that he never knew his brother and was "too young to comprehend any memory of him."
• death of a friend who served in Afghanistan. The worker said that this was a very sad and stressful event. He said he knows more than one person who died serving in Afghanistan.
• death of a co-worker/friend
• difficult relationship with his son

Regarding his well-being, he acknowledged that he has attempted to commit suicide on more than one occasion. The most recent occasion was in December 2014 when he had to gather and return his paramedic gear as he was not able to continue to work in this field. He said this task triggered flashbacks of all past events. He said that he was able to obtain his medications and attempted to commit suicide. As a result, he was very sleepy for 3 days and went to a crisis stabilization unit but did not go to a hospital emergency ward. The worker described another incident where he took an overdose of drugs and was hospitalized.

The worker told the panel about his attempt to attend at an entertainment venue where he had worked as a paramedic. He said that it brought back memories of all the things he has seen in his work and he could not enter.

He advised that odours and sounds can cause flashbacks.

In his closing comments, the worker addressed the issue of disciplinary action arising from the July 2012 incident. He advised that "My employer also noted on my file, in a written note, that I have no disciplinary actions on my personnel file. So the fact that my case manager believed there is merit to this, is not correct nor is it relevant."

Employer's Position

The worker's employer did not participate in the appeal.

Analysis

The worker's position is that he continues to suffer from a psychological condition, PTSD, which is caused by the workplace accident and prevents him from returning to work. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity as a result of this accident after November 24, 2013.

In addressing this issue, the panel finds two opposing opinions on the diagnosis of the worker's condition. On the one hand, the WCB psychiatric consultant provides psychiatric diagnosis of 1. Alcohol Use Disorder, 2. Bezdiazepine Use Disorder, and 3. Personality Disorder. On the other hand, an independent psychiatrist retained to conduct an independent medical examination on behalf of the worker's disability insurer opined that the worker's primary diagnosis is PTSD with secondary diagnoses of Major depression (moderate severity) and Panic disorder.

After considering all the evidence on the file, the panel places greater weight on the opinion and findings of the WCB psychiatric consultant. The panel notes that the WCB psychiatric advisor has had significant involvement with this claim, participating in case management team meetings and examining the worker. She met with the treating psychologist and the treating psychiatrist. She was aware of the programming that was offered to the worker and his participation in the programming.

The independent psychiatrist met with the worker for approximately 2 hours and had access to limited information from the claim file, mainly the reports of the treating psychologist. The independent psychiatrist did not identify other significant elements of the worker's condition such as alcohol dependence and a Cluster B personality.

The panel accepts the May 28 and October 7, 2013 findings of the WCB psychiatric consultant. In her May 28, 2013 memo the psychiatric consultant reviewed the medical treatment provided to the worker. She noted that initially she made a diagnosis of PTSD as well as Alcohol Dependence, but that as more information became available and after a team meeting of the worker's treatment team, it was determined that the psychiatric diagnoses were Alcohol Dependence and Substance Abuse (Benzodiazepines). She noted that the worker had some symptoms of PTSD but did not necessarily meet the diagnosis of PTSD at that time.

In a memo dated October 7, 2013, the WCB psychiatric consultant opined that:

"As outlined in my memo dated May 28, 2013, [the worker] had an initial diagnosis of PTSD. However, when more medical information as well as details of workplace difficulties became available to the WCB, the diagnosis of PTSD was not found to be valid. There are some symptoms of PTSD, but not enough to warrant a psychiatric diagnosis. The treating psychiatrist and treating psychologist were in agreement with this. New medical information also documented the presence of a pre-existing Personality Disorder."

The WCB psychiatric consultant found that other non-compensable factors were present and dominant as of November 2013 and not the PTSD symptoms from the acute incident. She opined that the diagnoses are not related to the claim. She also opined that the worker had thorough intensive treatment for PTSD symptoms and has, on a balance of probabilities, recovered from the effects of the compensable injury.

The panel notes that at the hearing and in discussions with treating professionals and his case manager, the worker identifies other events in his life that are not related to the workplace incidents, such as the death of a friend in Afghanistan and childhood sexual abuse which appear to be causing significant difficulties for the worker.

The panel finds, on a balance of probabilities, the worker is not entitled to benefits beyond November 24, 2013.

The worker's appeal 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 29th day of April, 2015