The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a numberof decisions made by the Workers Compensation Board (“WCB”) with respect to hiscompensable claim related to a plane crash (the “event”) which occurred onNovember 18, 2012.  A hearing was held onApril 16, 2015 to consider the appeal.

Issue

Whether or not the worker's restrictions are appropriate;

Whether or not the diagnosis of post-traumatic stress disorder is compensable; and,

Whether or not the worker is entitled to wage loss benefits after November 19, 2013.

Decision

That the worker's restrictions are not appropriate;

That the diagnosis of post-traumatic stress disorder is compensable; and,

Decision: Unanimous

Background

i. The event

On November 18, 2012, during the course of his employment, the worker was travelling on a chartered airline when the plane crashed. The worker was taken to the hospital on November 19, 2012 and was diagnosed with a T12 chance fracture and a thoracolumbar sacral brace (“TLSO”) was recommended. At that time, the treating hospital physician reported that the worker had some on and off pain in his cervical spine region. However, imaging studies were negative for any cervical spine fractures.

On February 7, 2013, a WCB medical advisor noted on the claim file that the current diagnosis was a T12 chance type fracture of the thoracic spine and that once healing of the fracture had been established, a physiotherapy course should commence.

ii. The Worker's Restrictions

On June 26, 2013, a WCB medical advisor outlined the following workplace restrictions for the worker with a re-assessment in 8 to 12 weeks:

· Avoid lifting more than 15 pounds repetitively; and,

· Avoid stooping, twisting, flexing and bending.

On October 23, 2013, the worker had x-rays taken of his thoracic and lumbar spines. The worker also underwent a Functional Capacity Evaluation (“FCE”) and was seen by a WCB orthopedic consultant at a call-in assessment.

In a memo to file dated November 4, 2013, the WCB orthopedic consultant noted the following:

· the x-rays of October 23, 2013 reported an anterior compression deformity of T12 with loss of height measuring approximately 20%. The remainder of the examination was normal.

· although the FCE report was reported as being valid with 3/5 validity tests, there was evidence throughout this assessment of poor effort and inconsistencies, as with some of his claims of loss of function at the call-in.

· it was almost a year since the compensable injury and it was probable that the worker had achieved Maximum Medical Improvement (“MMI”), although it was difficult to explain his continuing claims of pain and loss of function. Many individuals with this location and degree of fracture would have made a good recovery in 5 to 6 months.

· there were ongoing inconsistencies in the worker's assessment of functional loss and the outcome of the FCE (i.e. unable to carry the empty box weighing 10 lbs.). It was also determined to be difficult to explain the worker's claimed loss of upper limb function as related to the fracture. These inconsistencies did not support the FCE assessment of light-work capacity.

· based on the examination findings at the call-in exam, the WCB orthopedic consultant opined that the worker should be capable of medium work capacity.

· The worker's permanent work restrictions were therefore set:

o 50 lbs. single lift and carry;

o 25 lbs. frequent lift and carry;

o no restrictions for sitting, standing or walking; and,

o avoid prolonged sustained stooped postures with axial loading.

· no further treatment was recommended.

By letter dated November 5, 2013, the worker was advised that he was capable of medium work capacity with permanent work restrictions as noted by the WCB orthopedic consultant on November 4, 2013.

On January 9, 2014, the worker's legal representative advised Review Office that the worker had returned to work for about three weeks and was in pain. After seeking medical attention, the worker was advised to remain off work.

On January 24, 2014, in a memo to file, the WCB orthopedic consultant commented on a Doctor First Report on file dated December 13, 2013. Here, the WCB orthopedic consultant opined that:

The report is provided by [doctor’s name], who has not seen the claimant before.

The diagnosis given is fractured D12 with complaints of dorsal lumbar spine since November 18, 2012.

The objective findings refer to lumbar spine reduced flexion and extension and dorsal spine tenderness on palpitation over T12 with some notation of rotation movement 30º.

The treatment plan refers to physiotherapy (illegible) 13/12.

The absence from work note has stated incapacity for work from December 13, 2012 to February 28, 2014.

This report adds nothing to the clinical information available, particularly as the reporting physician has apparently not been involved in previous treatment.

My opinion regarding capacity for work and the stated restrictions is unchanged.

This is a young man in excellent physical condition whose recovery from a fracture of D12 now far exceeds the average, and whose clinical assessments show significant inconsistencies and inexplicable apparent incapacity to perform even light lifting tasks at the functional capacity evaluation.

The stated restrictions placing him in a medium category Canadian Classification and Dictionary of Occupations (“CCDO”) are reasonable and unchanged.

By letter dated January 27, 2014, the WCB advised the worker that based on the medical opinion of January 24, 2014, his permanent restrictions remain unchanged and he was considered capable of working with those restrictions.

iii. Post-traumatic Stress Disorder (“PTSD”)

With respect to the worker's psychiatric situation, the following is to be noted.

On November 13, 2013, the WCB case manager documented that he spoke with the worker who advised that his return to modified duties was planned between November 2013 and February 2014. At that time, the worker stated that he was nervous about flying and that this may prevent him from returning to work.

The case manager reminded the worker that he had recently taken a flight to Winnipeg for his call-in exam. The worker indicated that he was still nervous about flying. The case manager documented: “This is the first time worker has expressed fears regarding flying.”

On January 7, 2014, a psychologist consulted by the worker, reported that the worker:

"...consulted me on his own. He reports having experienced a traumatic incident, i.e., an airplane crash on November 18, 2012…He would like to know if he is ‘normal’, because he is very uncomfortable flying. The client’s work environment requires him to fly in order to get there. He has already heard of PTSD and wants to know if he suffers from it or other psychological disorders. In the beginning, he mentioned that he wanted a report following my evaluation, i.e. this document.

…

[The worker] describes symptoms to me that fall under PTSD. The three major types of symptoms present in the client are: avoidance, hypervigilance, and flashbacks (reliving certain traumatic events). So, the client relives the events fairly frequently, especially in the form of intrusive memories. The symptoms exhibited by [the worker] indicate significant suffering and an impairment of his social and professional functioning.

...

Given the confirmed diagnosis of PTSD, it would be desirable to give the client cognitive-behavioural therapy in the aim of reducing the associated symptoms, improve the quality of life, and desensitize the client in the face of airplane travel."

Subsequently, a WCB psychiatric consultant reviewed the medical report dated January 27, 2014 and noted that there was no indication from any treating physicians of any psychological issue until one year following the plane crash. As well, it was noted that the while the worker reported a fear of flying, he managed to fly to Winnipeg in the recent past and there were no concerns regarding symptoms, fears or avoidance.

In addition, the WCB psychiatric consultant noted that the author of the January 27, 2014 report was an M.A. and not a PhD psychologist. The WCB psychiatric consultant further noted that it was not clear whether the M.A. had expertise in neuropsychological testing or in psychometric testing or what training and expertise he had in undertaking psychiatric assessments for the purpose of making psychiatric diagnoses. This led the WCB psychiatric consultant to opine that there was no indication on the report of a validity assessment. In sum, the WCB psychiatric consultant concluded that the available medical information did not clarify that a diagnosis of PTSD was substantiated or whether any restrictions were required.

By letter dated February 3, 2014, the worker was advised that the WCB was unable to accept the recent diagnosis of PTSD and the related request for treatment. The worker was therefore advised that he required no restrictions related to air travel.

On February 26, 2014, the worker's legal representative asked Review Office to reconsider the January 27, 2014 adjudicative decision and to downgrade the worker's work capacity from medium to light. The worker's legal representative suggested that the worker should be accommodated with alternative transportation given that he suffered from PTSD, which was directly linked to the event.

iv. Wage Loss Benefits

With respect to this particular issue, by letter dated March 3, 2014, the WCB advised the worker that he was not entitled to WCB wage loss benefits beyond November 19, 2013, as his employer had been able to accommodate his permanent restrictions since November 20, 2013.

v. Review Office Findings

File records showed that a WCB Review Officer spoke with the worker's legal representative and the issue of PTSD acceptance and the worker's entitlement to wage loss benefits beyond November 19, 2013 was added to the worker's appeal. On May 15, 2014, a medical report from an independent orthopedic consultant dated April 2, 2014 was provided to Review Office for consideration.

On May 29, 2014, Review Office made the following determinations:

· That the worker's restrictions were appropriate;

· That the diagnosis of PTSD was not compensable; and,

· That the worker was not entitled to wage loss benefits after November 19, 2013.

After considering the file evidence which included the WCB call-in examination findings, the FCE findings and the April 2, 2014 report by an independent orthopedic consultant, Review Office agreed with the WCB orthopedic consultant that the worker was capable of medium work capacity and that his work restrictions were appropriate. It found that the medical evidence did not provide findings to support reducing the worker's hours to an 8 hour work day instead of his regular 12 hours.

With respect to the worker's psychological condition, Review Office determined that the file information did not support the finding that the worker was suffering from PTSD in relation to his compensable injury and that any restrictions related to same were not acceptable. Based on these determinations, Review Office indicated that the worker was fit to return to work within the capabilities of his permanent restrictions and that a loss of earning capacity did not exist beyond the return to work date of November 20, 2013.

On August 9, 2014, the worker's legal representative appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

Legislation and Policy: PTSD

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 wilful 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 the 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;

The definition of “occupational decease” as contained in the Act is as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than an acute reaction to a traumatic event.

With respect to injuries arising from employment related matters, the Act contains the following limitation:

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.

Duration of wage loss benefits