The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she was not entitled to benefits after December 21, 2012.  A hearing was held on June 10, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits afterDecember 21, 2012.

Decision

That the worker is not entitled to benefits after December21, 2012.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a psychological injury resulting from an incident that occurred during the course of her employment on June 26, 2006. The worker was diagnosed with an acute adjustment disorder with anxiety, an acute stress disorder and post traumatic stress disorder by treating healthcare providers. The worker was paid wage loss benefits for the time she missed from work and in August 2006, she returned to work performing data entry duties.

In December 2006, the worker received a subpoena in connection with the events that occurred on June 26, 2006. Based on the worker's psychological response from receiving the subpoena, the WCB paid the worker two days of time loss.

On February 21, 2007, the accident employer advised the WCB that the worker's last day of work was February 23, 2007.

On March 5, 2007, the treating physician noted that the worker left work on February 23, 2007 due to significant workplace stress. "She has been unable to return due to ongoing emotional difficulties as they relate to her employment. She feels unable to continue on in her present workplace as she feels very alienated by her coworkers. This has resulted in significant anxiety and panic attacks".

On August 3, 2007, the WCB determined that no further responsibility could be accepted for the worker's claim as it was felt that her current symptoms were not a continuation of the 2006 workplace injury.

In December 2008, the worker's legal representative requested reconsideration of the August 3, 2007 decision. On May 1, 2009, the WCB confirmed its previous ruling that the worker's inability to work after February 2007 was not related to the June 2006 incident. On January 22, 2010, the decisions dated August 3, 2007 and May 1, 2009 were appealed to Review Office.

On April 16, 2010, Review Office accepted that the worker's loss of earning capacity beginning February 27, 2007 was due to a recurrence of the June 2006 compensable injury. The decision was based on medical evidence dated February 5 and November 30, 2008.

In March 2012, the WCB determined that the worker was capable of returning to work on a graduated basis until she was back at full time hours. The WCB's position was that a relationship no longer existed between the worker's current difficulties and the recurrence of February 27, 2007. The case manager noted that the worker expressed past interpersonal difficulties pre-dating the work injury and that it heightened her fear and distrust of the employer. The case manager acknowledged the worker's concerns but was unable to accept responsibility for any difficulties or time loss as it was felt that these were not related to the workplace injury.

On March 27, 2012, the WCB case manager met with the worker and her union representative to discuss claim status and to provide the worker with an opportunity to express her concerns regarding a return to work and employer issues.

On April 10, 2012, the employer's occupational health physician wrote the WCB stating that she was unable to clear the worker for a return to work in any capacity until the WCB was able to provide her with updated medical information from the worker's claim file.

On May 4, 2012, the worker was advised that the WCB would pay full wage loss benefits to May 7, 2012 and partial wage loss benefits for two weeks beginning May 8, 2012 as if she had worked the graduated return to work plan outlined in the letter of March 22, 2012. The case manager's opinion was that a relationship no longer existed between the worker's current difficulties and the recurrence of February 27, 2007. On June 4, 2012, the union representative appealed the decision to Review Office stating:

"Her treating doctor was not consulted in relation to a graduated return to the workplace which was determined to be essential in a successful return and to suggest that after 2 weeks [the worker] should be back at full duties is unrealistic, given the fact she has been away from the workplace for approximately 5 years. It is therefore our position that to deny [the worker] continuing benefits based on the reasons provided is not only unfair but completely unreasonable and there is no medical information provided to support such a decision. We therefore request that her benefits be retroactively reinstated."

On August 16, 2012, Review Office referred the matter to Rehabilitation and Compensation Services to "obtain current medical opinions from the worker's psychiatrist and WCB psychological consultant, on the issue of the status of the worker's current psychological condition in relation to the June 26, 2006 compensable incident."

After obtaining additional information which included a medical opinion expressed by the WCB's psychiatric consultant dated November 9, 2012, the worker was advised on November 16, 2012 that a relationship no longer existed between the work injury of June 26, 2006 and her current difficulties. The letter stated:

The graduated return to work was to commence on Monday, November 26, 2012. The employer had secured a private office away from your previous work environment and your schedule would have been Monday to Friday. Once you completed your return to work plan your hours would be from 8 am to 4 p.m. ...The [employer] advised that although you attended the appointment you left prior to its completion indicating that you advised them you had no intention of returning to work or participating in a return to work plan...As such, the Workers Compensation Board will provide partial wage loss benefits as per your graduated return to work start date of November 26, 2012. As such your WCB benefits will end as of December 22, 2012.

In a letter to the WCB dated December 6, 2012, the union representative referred to medical information to support that the worker continued to have PTSD and that a successful return to work would be poor to guarded.

On December 17, 2012, the WCB confirmed its position that an ongoing relationship did not exist between the worker's current difficulties and the June 26, 2006 work injury. The decision letter stated: "The accepted diagnosis is that of an adjustment disorder with anxiety. The Review Office decision of April 16, 2010, provided a decision that the criteria for post traumatic stress disorder had not been met and agreed with the accepted diagnosis." The letter went on to state that the worker was not entitled to WCB benefits beyond December 22, 2012.

On January 15, 2013, the union representative submitted an appeal to Review Office with respect to the November 16, 2012 decision. A submission was also made by the employer's representative dated March 13, 2013.

On April 10, 2013, Review Office determined that the worker was not entitled to benefits after December 22, 2012, that the compensable diagnosis was Post Traumatic Stress Disorder and that the worker had recovered from her compensable injury.

After reviewing all file information regarding a diagnosis, Review Office found that the medical opinion outlined on November 30, 2008 was the most accurate in defining the compensable diagnosis of PTSD and that the diagnosis was echoed in the WCB psychiatric advisor's review of the file on October 13, 2010, i.e. that the worker's symptoms matched PTSD more closely than any other psychological diagnosis.

Review Office referred to the November 9, 2012 WCB psychiatric consultant's comments that the possible diagnosis of PTSD was in total remission and that there was no need for psychological restrictions. It was felt that the worker's reluctance to return to her pre accident employment was related to "administrative issues" and not the June 26, 2006 compensable accident. Review Office indicated that this opinion on the worker's return to work was shared by the occupational health physician who stated in her report of June 21, 2012: "[The worker] reports severe anxiety about returning to work ... in any capacity. This is related to her distrust in the [employer] and would not be considered related to her compensable injury."

Review Office indicated that the recommendation for work restrictions by the occupational health physician was more preventive than compensable.

Review Office felt the medical evidence supported that any PTSD symptoms are resolved or are in remission and that the worker's current symptoms were extremely similar to her symptoms and history of prior psychological problems that pre date the compensable injury. The medication taken by the worker now was the same or similar to the medication she was routinely taking prior to June 26, 2006. It was felt by Review Office that the preventive restrictions and return to work proposed by the employer removed the worker from any risk or any chance of relapse in relation to the compensable condition as the job, location and duties had all changed.

On July 2, 2014, the worker's legal representative requested reconsideration of Review Office's decision of April 10, 2013. On August 6, 2014, the employer's representative submitted to Review Office that the new medical evidence provided on July 2, 2014 was insufficient to vary Review Office's decision.

On September 9, 2014, Review Office confirmed that the worker was not entitled to benefits beyond December 21, 2012. Review Office confirmed that the worker's PTSD was in remission or resolved and was no longer materially affecting her psychological well-being or her return to work. It was felt that the worker's pre-existing psychological and physical conditions and the employer/employee relationship issues were the main reason for the worker's difficulties in her return to work. On November 6, 2014, the worker's legal representative appealed the 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 the policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The worker has an accepted claim for PTSD. She is appealing the WCB Review Office decision that her loss of earning capacity after December 21, 2012 is not related to her compensable PTSD.

Worker's Appeal

The worker was represented by legal counsel who outlined the reasons for the worker's appeal.

The worker' counsel identified 3 arguments or themes which she said are inter-related:

1. the worker still has PTSD; it is chronic and longstanding

2. the worker needs psychiatric treatment including psychiatric and psychological counseling

3. the return to work plan that was set up by the employer and approved by the WCB in October and November 2012

1. The Worker Still Has PTSD:

In support of this argument, the worker's counsel relied primarily upon the opinions of the worker's psychologist, who had treated the worker since 2010, and the psychologist employed by the employer, who treated the worker in 2012. Both provided a diagnosis of PTSD and treated the worker multiple times. She contrasted these opinions with the opinion of the WCB's psychiatric consultant, who on the basis of a file review done in the fall of 2012, came to the conclusion that the worker's PTSD had resolved. Counsel noted that he accepted that she was unable to return to work in her prior position because it caused her too much anxiety and stress, but he believed that that was now due to non-compensable causes. Counsel submitted that the decision to terminate her benefits and to return her to work in this claim was based on his advice about the PTSD being in remission. She noted that his conclusion was based primarily on a

paper file review. She submitted that his review was flawed, and asked the panel to accept the opinions of the doctors who met with the worker and provided treatment.

2. The worker needs psychiatric treatment:

The worker's counsel noted that the WCB psychiatric consultant had recommended a case management plan for the worker in 2010 that would involve both psychological and psychiatric treatment and, in fact, many medical practitioners have noted the need for the worker to have some psychological treatment. She said that for reasons which aren't apparent in the file claim, the psychological treatment part of the case management plan wasn't implemented and the WCB did not refer the worker to a psychologist. The worker has been seeing a psychiatrist, who treats her primarily with medication, but she has not been receiving the type of psychological treatment for management of PTSD symptoms and learning of better coping skills that would be necessary to help her recover and get a degree of normalcy back in her life.

The worker's counsel said that the lack of psychological treatment explains why the worker still has symptoms that interfere with her functioning so many years after the fact, and it also shows how it's entirely implausible that a longstanding psychiatric condition, which required psychological treatment, would just now resolve itself without that psychological treatment.

She acknowledged that the worker participated in psychological treatment with the psychologist provided by the employer for a short period. She noted that unfortunately when the worker learned that the return to work plan involved a return back with the service division that she had worked in at the time of the traumatic event, the relationship with that psychologist broke down and the worker ceased receiving treatment. She noted that the treating psychiatrist asked the WCB to arrange treatment from a psychologist who was independent from the employer and the service division but that there was never a response from the WCB.

3. The return to work plan:

The worker's counsel noted that the plan involved returning the worker to a position with the service division of the employer against the advice of her psychiatrist. She said that the worker did not attend, was unable to attend, and her benefits were then terminated at the end of that return to work period, December 21, 2012. She submitted that it was not an appropriate return to work plan and it set her up to fail for these reasons:

• it was implemented without the benefit of the psychological counseling which was required throughout to assist with her return to work.
• it involved a return to work with the service division, against the advice of her treating psychiatrist, which was not heeded and the plan failed.

Counsel said that the inability to return to work with the service division arises out of a lack of trust that the worker has developed with the service division which relates back to the compensable incident. She submitted that the restriction on return to work with the service division should have been used -- it should have been viewed as a compensable restriction -- but the WCB medical consultant and the WCB see it as a having to do with non-compensable issues that the worker was having with her employer.

The worker's counsel noted that the worker has worked for the employer in the service division since 1991. She said that the worker has faced challenges, including a progressive hearing loss, which is not related to her employment, and she's required accommodation from the service division for this condition. Counsel said that this process had been frustrating to her at times as she had been moved around to different positions and that was going on in the background at the time of the traumatic incident back in 2006. The worker also has a history of anxiety and depression. She noted that this history has fluctuated up and down but the worker has managed to the best that she can and that it did not usually interfere with her functioning at work. She was considered to be a good employee and she was managing relatively well in the years before the traumatic incident. Counsel referred to a positive performance review and also noted that she had worked with a senior official in the service division.

The worker's counsel submitted that up to the date of the compensable incident, the worker was functioning well at work, being described as a productive employee, with a cooperative relationship with her coworkers and, according to her own family doctor, her anxiety and depression had been relatively well managed for those few years. Counsel noted that this contrasted with the Review Office decision that her current difficulties relate to her pre-existing depression and relationship problems in the workplace.

The worker's counsel described the working environment and steps leading up to the traumatic incident and asked the worker questions regarding the traumatic incident.

The worker's counsel stated:

"I want to make sure that the Appeal Commission understands the background in terms of the objection to the safe work procedure, the incident that occurred and then how she felt about it afterwards, in order to place in context the lack of trust that she now has in the [service division] and why her psychiatrist and others have noted that lack of trust in medical reports."

The worker's counsel provided a summary of the incident. She noted the incident included an apparent attempt by a person to intimidate the worker including; acting in an odd manner, following her, disappearing and then coming out from behind a corner and suddenly two people that he seems to know, cross the street towards them. She noted that even the worker's official escort found this was highly suspicious behavior.

She said that the worker's supervisor smiled at the worker when she had explained the incident on her return to the workplace. Counsel said the supervisor's response was the start of the worker's disappointment with how the service division handled the incident. Counsel said that:

"She was put in harm's way that day, or at least reasonably perceived herself to be in significant harm, and didn't feel supported after the incident either."

Counsel also noted that a new protocol was put in place after this incident.

The worker answered questions posed by the panel. In reply to a question about whether she will ever work again, the worker said:

"I think of it differently now and I almost kind of look at it differently because I came to a point when they were suggesting a return to work that, okay, I can do this, I can do this, but now I realize that it's not just psychologically that I can't or don't want to. It's physically. This is, there's physically something wrong with me that I can't handle this."

"And so I'm not saying I don't think I could ever return to work, but I need help. I need help. There's obviously some -- I have some serious issues that I need to deal with, serious."

The worker was asked about the return to a building located a distance from her former office and the site of the incident she replied:

"It's not the building. I don't think it's the building. It's just, no, it's my whole -- honestly, it is my whole trust in the [service division] and the [employer]. I told them there was something wrong. We had a policy and procedure to follow ... and then all of a sudden said, no, you can't follow that policy and procedure because we don't have anybody to take you to court."

In answer to a follow-up question about working elsewhere for the employer the worker responded, in part:

"I don't know, honestly. Right now for me, it's not even just a matter of [service division], the [employer]. I mean I lump it all together. I often think working outside of [service division] or outside of working wherever, myself, after everything I've gone through, the knowledge that I have now, until I can even entertain the thought of going back to work in a workforce anywhere, I need help. I know I need help. It not only affects me not returning to work. It affects my relationships, my family, my friends, my life in general..."

In reply to a question about other factors that were at play at the time of the traumatic incident the worker's counsel commented, in part:

"So I don't deny their existence. I do deny any implication that she was -- she was a different person before this incident, before the courthouse incident. She was under a lot of stress, but I also, I cannot stress enough that she was not -- she's not the person that we've seen now. She was somebody who is able to attend work at all time, notwithstanding all of these different stresses on her. She had a six-week leave in 2002, four years before the incident, but she was able to attend work and she had positive employment reviews."

In closing, the worker's counsel reiterated that the panel should consider the reports of the worker's treating psychiatrist who has treated the worker since 2010.

Employer's Position

The employer was represented by its Compensation Coordinator who was assisted by a member of the service division staff. The employer's representative noted that on June 26, 2006, the worker was involved in a stressful situation whilst in the course of her employment. The condition resulting from this situation was accepted by the WCB and the appropriate benefits paid. He advised that the employer does not question the validity of the June 26, 2006 compensable incident.

The employer's representative asked the panel to give weight to the independent medical examination conducted by a psychiatrist, and his 15-page assessment, dated October 5, 2007. The representative noted that the report identifies vocational issues which would lead the panel to the conclusion that the worker's inability/reluctance to return to work is not a consequence of the June 26, 2006 compensable incident, but rather her animosity towards her employer, which include lack of trust, feelings of anger and concern that she would be terminated upon her return.

The employer's representative also referred to the October 13, 2010, assessment by a WCB psychiatric consultant and to the opinions of the other physicians the worker saw during the time period following the stressors. The employer's representative stated they considered the worker was responding more to longstanding workplace issues than she was to the effects of an acute stressor which had occurred at that time.

The employer representative also relied upon the opinion of the employer's occupational health physician who opined the position offered by the employer satisfied the worker's compensable restrictions. The representative stated that the barriers the worker presented to re-employment, as described by the treating psychiatrist, are unrelated to the compensable injury. The employer representative noted that the treating psychiatrist describes his involvement as "primarily pharmacotherapy with limited psychological treatment."

In closing the employer representative submitted that:

"It's our position that her current psychological problems after December 2012 are no longer related to the 2006 compensable incident and if you do not agree with the -- regardless of whether you agree with the diagnosis, we suggest that her failure to avail herself of the accommodation was unrelated."

Analysis

This is primarily a medical case. There are opinions from family physicians, an occupational health physician, psychiatrists and psychologists regarding the worker's condition, its relationship to her employment and its impact on her ability to work. The panel accepts that the worker has PTSD which was caused by a traumatic incident at work in 2006. The panel's focus at the hearing and in this decision, is on whether the worker's PTSD was the cause of the worker's inability to return to work on December 21, 2012.

The issue before the panel is whether the worker is entitled to benefits after December 21, 2012. For the worker's appeal to be approved the panel must find that the worker sustained a loss of earning capacity beyond December 21, 2012 as a result of the compensable workplace injury. The panel was not able to make this finding.

After considering all of the evidence on the file, the panel finds that the worker's inability to return to work on December 21, 2012 was not due to her compensable PTSD condition. In arriving at this conclusion, the panel attaches significant weight to the following:

• opinions of the WCB psychiatric consultant, and in particular the consultant's November 9, 2012 opinion. The consultant notes that factors identified by the treating psychiatrist with respect to the return to work "... are not related to Post-traumatic Stress Disorder, but rather, are related to the issues regarding lacking trust, feelings of anger and suspicion, lack of confidence that she could work in her previous environment successfully and her concern that she would be terminated should she return to work..."

• November 30, 2008 opinion of the psychologist retained by the worker's counsel. The psychologist noted there are multiple factors at play in this case which existed prior to the traumatic event.

• October 5, 2007 opinion of the psychiatrist retained to perform an independent medical examination of the worker for an employee benefits program. The psychiatrist found the worker to suffer from an adjustment disorder with depressed mood and anxiety, mild severity, chronic duration, in partial remission. He commented that:

"Other factors that might be affecting [worker's] motivation to return to work include the following; a DSM-IV diagnosis of vocational problems has been documented above. [worker] dislikes her work environment; hence, it appears that [Worker's] motivation to return to work is a function of workplace issues that existed prior to her leaving work".

• June 21, 2012 report of the employer's occupation health physician:

"[worker] reports severe anxiety about returning to work for the [employer] in any capacity. This is related to her distrust in the [employer] and would not be considered related to her compensable injury. There would be no medical justification for her being unable to work for the [employer]."

The worker's counsel asked the panel to accept the opinions of the treating psychiatrist who treated the worker from 2010, and the employer's psychologist who treated the worker from June to August 2012.

The panel considered the opinions of the treating psychiatrist but attaches less weight to his opinion than to the opinions noted above. The panel notes the psychiatrist's comment that he is primarily involved in the pharmacotherapy with limited psychological treatment. Regarding a return to work, the psychiatrist noted in his August 29, 2011 report that:

"I suggested to her that there are three options, (1) return to the [service division], (2) return to the [employer]in a very different job, or (3) retrain for a new job. I have informed her that I believe decisions about numbers 1 and 2 are emotionally charged and she lacks the trust in the employer and therefore feels angry and suspicious. Based on her perception of the past experience with the H.R. Department and the [service division] and the [employer] services, she is not confident that she could work there successfully. She believes that they would have the primary goal of dismissing her from employment."

The panel notes the psychiatrist's suggestions appear to be based on factors that pre-existed the PTSD diagnosis and that there is no other medical support for these restrictions. Specifically the panel notes that both the employer's occupational health physician (quoted above) and the employer's psychologist, who treated the worker were of the view that a return to work with the employer could proceed. In any case, the worker did not attempt a return to work.

The worker's counsel noted that the employer's psychologist diagnosed the worker's condition as PTSD and stated that this condition was preventing her from returning to work. With respect to the opinion of the employer's psychologist, the panel notes the psychologist did not appear to be aware of the worker's lengthy pre-existing psychological issues when she noted that the worker is unlikely to have a personality disorder. This is inconsistent with the opinions of the independent psychologist and independent psychiatrist. The panel therefore attaches less weight to her opinion.

While the panel finds that the worker's PTSD symptoms did not cause a loss of earning capacity as of December 21, 2012, the panel acknowledges that PTSD symptoms can be triggered and recur in the future. If this should this should happen, worker is entitled to contact the WCB to adjudicate further entitlements.

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 27th day of July, 2015