The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB") in relation to her 2012 claim. A file review was held on April 25, 2016 to consider the worker's appeal.

Issue

Whether or not the diagnosis of Post-Traumatic Stress Disorder is acceptable in relation to the workplace accident of October 10, 2012;

Whether or not the diagnosis of Post-Concussion Syndrome is acceptable in relation to the workplace accident of October 10, 2012; and

Whether or not the worker is entitled to further benefits.

Decision

That the diagnosis of Post-Traumatic Stress Disorder is not acceptable in relation to the workplace accident of October 10, 2012;

That the diagnosis of Post-Concussion Syndrome is not acceptable in relation to the workplace accident of October 10, 2012; and

That the worker is not entitled to further benefits.

Decision: Unanimous

Background

On October 10, 2012, the worker responded to a resident who wanted assistance to be covered with a blanket. As the worker reached over to comply with the request, the resident punched the worker on the right temple area and bridge of her nose.

File records show that the worker has a prior claim with the WCB for injuries she sustained to her nose, neck and head when she was assaulted by a patient on February 27, 2011. An appeal related to this claim was dealt with in Appeal Commission Decision No. 141/12 dated December 27, 2012.

On November 13, 2012, the worker spoke with a WCB adjudicator stating that she was punched in her right eye by a patient on October 10, 2012 and the force bent her eyeglasses. She had redness on the right side of her nose and eye. On the same day of the accident, she began to experience headaches and within a couple of days she noticed neck pain. The left shoulder and upper back between her shoulder blades were tender. She attended several healthcare practitioners in October and November 2012 and started physiotherapy treatment for her neck pain. On November 8, 2012, she made a request to decrease her work week from 5 to 4 shifts and not to work more than 2 shifts in a row. She made the request because of pain in her neck, back and headaches. She also had sleep difficulties and was having flashbacks which she related to the 2011 compensable accident. The worker said she missed one shift on November 8, 2012.

In a memo dated November 14, 2012, the WCB adjudicator documented that she informed the worker that the WCB accepted her claim for a neck strain and contusion to the right side of her nose. After receipt of requested medical information, a decision would be made regarding her entitlement to wage loss benefits.

Further file records show that the worker contacted the WCB to advise that she had a mild concussion from the accident and was reporting that her right shoulder was painful. She also missed further time from work on November 16, 17, 18 and December 7, 2012.

The worker's claim file includes reports from a psychiatrist, physiatrist, the family physician, a physiotherapist and an ear, nose and throat specialist. In a report dated December 19, 2012, the treating psychiatrist stated, in part:

…from a psychiatric perspective, the experience of another unanticipated and unprovoked assault from a resident understandably heightened [the worker's] anxiety. This increased over the few weeks following the assault. [worker] reported sleep disruption, with both middle insomnia and hypersomnia following the injury. She also clearly described multiple features of re-experiencing, hyperarousal and emotional numbing that intensified after the second workplace assault. These symptoms are characteristic of Post-Traumatic Stress Disorder.

PTSD symptoms escalated sufficiently that at the November 8 appointment, I strongly recommended to [the worker] that she take a medical leave. At the appointment she was clearly highly anxious, had pressure of speech, and described her mood as "overwhelmed". The PTSD symptoms, as well as cognitive challenges from Post Concussional Syndrome continued to detrimentally affect [the worker] into early December, rendering her unable to work.

On January 16 and February 15, 2013, a WCB medical advisor responded to questions posed by Compensation Services regarding the current diagnosis and its relationship to the October 10, 2012 incident.

In a decision dated February 19, 2013, Compensation Services advised the worker that based on review of her claims and consultation with a WCB medical advisor, it was concluded that she had recovered from the accepted diagnosis of a nasal contusion and neck strain and that her current ongoing difficulties were not related to the October 10, 2012 workplace accident. It was indicated that the file evidence did not support a relationship between the diagnosis of a concussion and the October 10, 2012 workplace injury.

On April 25, 2013, an occupational health physician reported that he assessed the worker and found that her ongoing pattern of neck soreness and headaches were the result of the October 12, 2012 assault.

In a progress report dated July 2, 2013, a sports medicine physician noted that the worker was seen for a follow-up visit and that a recent MRI showed a disc pressing on the S1 nerve root.

In a report to the worker's union representative dated March 28, 2013, a clinical neuropsychologist stated, in part, "Following a workplace assault in 2011, [the worker] was assaulted again in 2012, and has developed significant anxiety over re-injury." The consultant indicated that the worker had most of the features of PTSD and/or that she has a more general diagnosis of Anxiety Disorder Not Otherwise Specified. He said either way, the worker had a condition that was directly related to the workplace assaults. He said he could not identify current indications of a concussion.

On September 20, 2013, the worker's file was reviewed by a WCB psychiatric consultant. The consultant stated that based on the report of March 28, 2013 and the information from the treating psychiatrist, it was not clearly established that the worker had a psychiatric disorder of the severity to require restrictions or limitations in her occupational functioning. He noted that the improvement of the worker's cognitive functioning would suggest that any symptoms of anxiety, depression or PTSD that the worker was experiencing when assessed by the neuropsychologist were not of the severity to impact her cognitive functioning at that time.

In a decision dated October 17, 2013, Compensation Services advised the worker that based on consultation with the WCB healthcare branch, it was concluded that her current medical presentation could not be causally related to her prior workplace incidents and that her current psychiatric symptoms and impairments are not any more severe, impaired or disabling than they were prior to the compensable incidents. The worker was advised that the medical evidence did not support a diagnosis of Post-Concussion Syndrome ("PCS") which was further supported by the fact that she continued to work following the compensable incidents for many months afterwards and then improved dramatically and sufficiently in a very rapid period of time. Accordingly, the WCB was unable to accept, or relate a diagnosis of post concussion syndrome to the workplace incidents.

Compensation Services noted that the worker had a long history of significant psychiatric conditions which lead to a prolonged period off work, on disability, from approximately November 2007 to the autumn of 2009. Compensation Services determined the worker was not entitled to wage loss benefits or medical aid beyond February 2013. On March 20, 2015, the worker's representative appealed the WCB's decisions of February 19, and October 17, 2013 to Review Office.

On May 21, 2015, Review Office determined that the diagnoses of PTSD and PCS were not acceptable and that the worker was not entitled to further benefits. Review Office accepted the findings of the WCB psychiatric advisor that the medical evidence did not support the worker was experiencing PCS or PTSD in relation to the compensable accident of October 10, 2012. It agreed with these findings and the opinion of the general medical advisor who reviewed the file on January 28, 2013. She noted the worker's physical injuries in relation to the workplace accident are medically supported to be "a very mild nose contusion and neck strain in relation to the October 10, 2012 workplace accident."

Review Office concluded that the evidence showed the worker's ongoing physical and psychological complaints have no relationship to the compensable accident beyond February 19, 2013. The worker's request for reconsideration of the decisions on these matters was denied. On June 18, 2015, the worker's representative appealed Review Office's decision to the Appeal Commission and a file review 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 WCB Board of Directors.

Subsection 4(1) of Act provides that 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 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. 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.

The worker has an accepted claim for an injury arising from an October 2012 assault while at work. The worker is appealing the WCB decision that the WCB did not accept the diagnoses of PTSD and PCS. She is also seeking further benefits from the WCB.

Worker's Position

The worker was represented by legal counsel who provided a written submission, dated April 18, 2016, for consideration of the panel. The submission included documents and authorities which the worker relied upon, Statement of Facts, Statement of Issues, and Argument.

The legal counsel's submission stated, in part, that:

"9. [Worker's] current medical condition is not the result of a pre-existing condition, but the result of the Critical Incident and as such, she is entitled to benefits. Her entitlement is supported by both decisions of this panel, as well as by the medical evidence.

10. In a previous decision of the Appeal Commission the issue before this panel was whether the worker's psychological symptoms related to the compensable accident. The facts in that decision are considerable to those present in [worker's] case… (Appeal Commission Public Decision No. 22/2009).

…

17. [Worker's] case aligns on all fours with this panel's decision in 22/2009. That decision makes clear that this panel must focus on whether [worker] suffers from a "psychological condition" attributable to the Critical Incident, and not whether her psychological symptoms amount to a classic diagnosis of PTSD.

18. In his memorandum…a psychiatric consultant for the WCB, stated that during the time period immediately following the Critical Incident…[worker's] treating psychiatrist, did not describe the criteria required to substantiate the presence of a classic diagnosis of PTSD,

19. [Worker] has been treated by [treating psychiatrist] since 2006. [Treating psychiatrist] treats [worker] for PTSD, PCS, MDD, intense anxiety, chronic pain, insomnia, impaired concentration, executive dysfunction and hyperphagia, as more particularly set out in [treating psychiatrist's] reports of September 19, 2013, June 13, 2013 and May 28, 2013.

20. Generally speaking, [treating psychiatrist] has stated, and maintains, that [worker] is unable to work in any capacity…

21. [Treating psychiatrist] provided a useful overview of [worker's] condition, just two months following the Critical Incident, her letter dated December 19, 2012, to [WCB staff person]. Some key points are as follows:

a. The experience of another unanticipated and unprovoked assault from a resident heightened [worker's] anxiety;

b. That anxiety increased over the few weeks following the Critical Incident;

c. [Worker] has reported sleep disruption, re-experiencing, hyperarousal and emotional numbing that intensified after the second workplace incident - symptoms that are characteristic of PTSD;

d. [Worker's] PTSD symptoms escalated sufficiently that by November 8, 2012, [treating psychiatrist] strongly recommended [worker] take a medical leave;

e. The PTSD symptoms, as well as the cognitive challenges posed from the PCS, continued to detrimentally affect [worker] into early December of 2012, rendering her unable to work.

22. [Treating psychiatrist's] medical report should be given substantial weight, given her and [worker's] longstanding relationship, and the corroborating evidence of [name], a clinical neuropsychologist who assessed [worker] in 2011 and again in 2013. `

…

24. …[neuropsychologist] concluded that [worker] met the following criteria from DSM-IV on PTSD:

a. Experiencing a threat to the physical integrity of self;

b. Persistent avoidance of stimuli associated with trauma;

c. Recurrent and intrusive distressing recollections of the event;

d. Persistent symptoms of increased arousal;

e. Duration of more that a month; and

f. Experiencing clinically significant distress.

25. [Neuropsychologist] qualified his conclusion by stating that it remained debatable to him whether [worker] met one other criteria of PTSD, since her initial response to the Critical Incident did not necessarily involve "intense fear, helplessness or horror." However, he concludes that [worker] either has most of the features of PTSD, and/or that she has a more general diagnosis of Anxiety Disorder Not Otherwise Specified. [Neuropsychologist] finds that "either way, she has a condition that is directly related to the workplace assaults".

26. In light of the above, and in reference to this panel's previous decision in 22/2009, it does not matter whether the "constellation" of [worker's] psychological symptoms amount to a classic diagnosis of PTSD. The focus must be on whether [worker] suffers from a psychological condition attributable to the Critical Incident…

…

28. [WCB psychiatric advisor] found that, based on [neuropsychologist's] report, as well as information provided by [psychiatrist], it was (sic) had not been clearly established that [worker] had a psychiatric disorder of the severity to require restrictions or limitations in her occupational functioning. Significantly, [WCB psychiatric advisor] never actually evaluated [worker] himself, but formed his opinions based on the medical evidence outlined above.

29. [Treating psychiatrist] …provided that she had seen [worker] 34 times from the period of December 2012 until the date of her report. [Treating psychiatrist] concluded that during that period, while [worker's] mood and anxiety symptoms tend to fluctuate, any gains are often short-lived, and that [worker] will never be able to return to her previous workplace.

30. In addition to the evidence of [worker's] PTSD, there is clear medical evidence that [worker] sustained physical injuries as well, resulting in PCS, and back and neck soreness…

…

32. [Occupational health physician] concluded that [worker's] "ongoing pattern of neck soreness and headache is a result of her October 12(sic), 2012 head injury in a patient assault". With respect to her symptoms and treatment [occupational health physician] stated that there continued to be findings of myofascial dysfunction in left SCM trapezius bilaterally and in the upper posterior neck that are the likely triggers to headaches and neck soreness.

…

34. It is clear from the previous decision of this panel in 22/2009, and the medical records made available, that [worker] has been wrongly denied benefits. [Worker] submits that, based on the above, she has clearly demonstrated a nexus between her current medical condition and the Critical Incident, and is entitled to benefits.

Employer's Position

The employer's advocate provided a written submission on April 18, 2016. The employer representative submitted that the diagnoses of PTSD or PCS are not related to the workplace incident of October 10, 2012. She also submitted that the worker had recovered from the mild injuries to the nose and cervical spine and is not entitled to benefits for physical injuries.

The advocate notes that extensive medical evidence shows that the worker had a long standing history of mental health difficulties pre-dating the 2012 incident which remained relatively unchanged. She also noted that the worker's condition does not meet the requirements under the "Diagnostic and Statistical Manual of Mental Disorder" to be diagnosed as PTSD nor did she exhibit symptoms associated with PCS.

The employer representative noted that the Appeal Commission dealt with an appeal by the worker with respect to a February 2011 injury in which the worker claimed that she sustained a concussion. In Appeal Commission Public Decision 141/12 the panel noted that the worker's evidence at the hearing was inconsistent with post-concussion syndrome and dismissed her appeal.

The employer representative noted that after the October 2012 incident, the worker continued to work until February 19, 2013 with the exception of November 16-18 and January 25, 2013.

Regarding the medical information, the employer representative reviewed the medical evidence and noted that the worker's symptoms "largely reveal no significant change in her physical and psychiatric symptoms." She stated that:

None of the medical practitioners noted any cognitive difficulties or findings that would typically be associated with concussion. It is clear at the time of the injury and immediate aftermath that [the worker] did not exhibit symptoms associated with concussion including loss of consciousness, confusion, blurred vision, nausea, dizziness, memory loss, etc. As indicated by the employer, she continued to work in her regular duties without complaint.

The employer representative reviewed the worker's medical charts and submitted that they reveal pre-existing and ongoing difficulties, unchanged as a result of the compensable injury. She noted that a psychiatric examination in October 2008 found the worker to likely have "a diagnosis of personality disorder" which was considered a lifelong diagnosis with longstanding coping strategies that result in difficulties in social and occupational function. It also suggested the "presence of cluster B personality disorder, specifically narcissistic personality disorder."

The representative asked the panel to place weight on the opinion of the WCB medical advisors who reviewed the file in 2011 and 2012. She submitted that "Extensive medical does not support a diagnosis of PTSD or post-concussion syndrome in relation to the October 10, 2012 workplace event."

Analysis

The panel was asked to address 3 issues in our review:

1. Whether the diagnosis of Post-Traumatic Stress Disorder is acceptable.

The worker advised the WCB that she was assaulted by a patient while performing duties on October 10, 2012. The worker claimed that she developed PTSD as a result of the assault. For the worker's appeal with respect to the PTSD diagnosis to be approved, the panel must find that the worker's diagnosis of PTSD was caused by the 2012 workplace injury. The panel was not able to make this finding.

The worker's treating psychiatrist indicated that the worker's PTSD symptoms had escalated when the worker was seen on November 8, 2012. The panel notes, however, that the worker attended a hearing before a panel of the Appeal Commission on November 28, 2012. A review of the hearing transcript suggests the worker was lucid and fully participated at the hearing, and that no reference was made by the worker to a recent injury or its impact on her ability to participate at the hearing.

The panel reviewed the complete medical file and notes that the worker has had long standing mental health issues which appear to have waxed and waned.

In determining that the diagnosis of PTSD is not acceptable, the panel places significant weight upon the opinion of the WCB psychiatric advisor set out in his third report in response to questions from WCB. The psychiatric advisor concludes with respect to the diagnosis of PTSD that:

With regard to [treating psychiatrist's] mention in her Nov 2, 2012 clinical entry, this clinical entry of November 2, 2012, similar to the previous entries since the CI of October 10, 2012, do not describe the criteria required to substantiate the presence of a diagnosis of Posttraumatic Stress Disorder. It does not appear that [worker] had been exposed to a psychological trauma of a severity to be consistent with a DSM-IV or a DSM-5 diagnosis of PTSD. Further, the criteria required to substantiate a diagnosis of PTSD are of significant nature, severity and frequency - these also are not described in the clinical information provided. Also, [treating psychiatrist's] assessment, on November 2, 2012, that [worker's] symptoms are "Stabilizing wrt mood plus anx sx. Still some re-experiencing of recent assault and GMC (general medical condition) issues" do not describe the course or severity consistent with a diagnosis of Posttraumatic Stress Disorder.

The psychiatric advisor also commented on the worker's medical history which the panel considers relevant in determining this issue. He opined, in part, that:

[Worker] has a significant, substantive and long-standing psychiatric history with multiple diagnoses as outlined prior to the CI by her treating psychiatrist, [Dr. ..]. The medical information does not substantiate that the current psychiatric symptoms or impairment that she is experiencing are significantly more severe or causing more impairment than they were prior to the CI…

The nature of the symptoms and symptom severity, as well as the impairments described, seem to be quite similar following the CI, compared to the description in the clinical notes from the time period prior to the CI. Therefore, it is not clear that there has been any significant change in the nature, or the severity, or the impact of [worker's] psychiatric symptoms since prior to the CI.

The panel, upon reviewing the medical reports, also notes that the reports of treating physicians are heavily based upon a reliance on the worker's self-reported complaints.

The panel finds, on a balance of probabilities, that the diagnosis of PTSD is not acceptable.

The worker's appeal of this issue is dismissed.

2. Whether the diagnosis of Post-Concussion Syndrome (PCS) is acceptable.

The worker claimed she developed PCS as a result of the October 2012 assault. For the worker's appeal with respect to the PCS diagnosis to be approved, the panel must find that the worker's diagnosis of PCS was caused by the 2012 workplace injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's diagnosis of PCS is not related to the workplace injury.

In reaching this decision, the panel places significant weight on the following:

• It is the panel's understanding that a diagnosis of PCS will only be entertained if there is a prior confirmed concussion. In a report dated March 28, 2013, the neuropsychologist who treated the worker both before and after the October 2012 incident indicated that he could find no current indications of a concussion. He indicated there was no retrograde amnesia and her concentration was normal. He also indicated there were no specific cognitive restrictions that he would suggest, based upon improvements in her concentration.

• the mechanism of injury provided by the worker did not support a finding that the worker sustained a concussion. There was no loss of consciousness or loss of cognitive function. The worker was able to continue working.

The panel places significant weight on the January 29, 2013 opinion of a WCB medical advisor who reviewed the worker's file and provided an assessment of the claim. The medical advisor noted there was no evidence of any significant nasal injury. The medical advisor also noted that the worker's complaints of headaches and neck pain preceded the workplace accident. The medical advisor further concluded that the evidence on file did not support a diagnosis of concussion in relation to the 2012 injury.

The panel finds, on a balance of probilities, that the diagnosis of PCS is not acceptable.

The worker's appeal of this issue is dismissed.

3. Whether the worker is entitled to further benefits.

For the worker's appeal of this issue to be approved, the panel must find that the worker sustained a loss of earning capacity and required further medical aid as a result of the 2012 workplace injury. In light of the panel's decisions on Issues 1 and 2 above, the panel finds, on a balance of probabilities, that the worker is not entitled to further benefits in relation to a psychological injury.

The panel has also considered whether the worker is entitled to further benefits in relation to a physical injury. After considering all the evidence the panel was not able to find that the worker is entitled to further benefits.

As with Issue 2 above, the panel attaches significant weight to the January 28, 2013 opinion of the WCB medical advisor. The medical advisor noted that the worker was able to work regular hours and regular duties for more than 4 weeks following the October 2012 workplace injury. She also noted that the worker's request for shift changes began prior to the October 2012 injury.

In a further opinion dated February 15, 2013, the WCB medical advisor noted that the reports of neck pains and headaches identified in the report of the worker's physiatrist were reported "both before and after October 10, 2012 workplace accident, with no new symptoms subsequent to the accident."

Regarding an injury to the worker's nose, the panel notes that the worker was examined by an ENT specialist the day after the assault. A note dated December 20, 2012, indicates that the worker was examined in relation to a prior surgery. No reference was made to a new injury and specifically no reference to being hit in the nose at work the day before. The panel finds that any injury suffered by the worker on October 10, 2012 was not significant.

The panel finds, on a balance of probabilities, that the worker is not entitled to further benefits in relation to the October 2012 injury.

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 3rd day of June, 2016