The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his psychological difficulties are not a consequence of his compensable accident. A hearing was held on March 28, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's psychological difficulties are a consequence of the January 17, 2012 compensable accident.

Decision

That the worker's psychological difficulties are not a consequence of the January 17, 2012 compensable accident.

Background

On January 17, 2012, the worker fractured his left clavicle when a piece of rock fell approximately 18' and landed on his hard hat and bounced onto his left shoulder. On August 27, 2012, the worker underwent a distal clavicle excision followed by physiotherapy treatment. His claim for compensation was accepted and benefits and services were paid.

On April 17, 2013, the worker was seen at the WCB offices for a call-in assessment due to ongoing pain complaints in his shoulder. An MRI examination was suggested by the examining medical advisor which was later carried out on May 8, 2013. The findings revealed a SLAP II tear and neurogenic edema within the teres minor. On August 7, 2013, the WCB medical advisor noted to the file that the labral tear was related to the compensable injury. On October 10, 2013, the worker underwent a left shoulder scope with biceps tenotomy and subacromial bursectomy.

On November 8, 2013, a WCB medical advisor noted to the file that the worker's post-operative visit showed that his pain was under control and he had near full range of motion. The medical advisor concluded that the worker was fit for sedentary type duties with certain physical restrictions.

File information showed that the worker was scheduled to return to work performing alternate duties but advised the WCB that he could not do so due to his state of mind. In a memo to file dated April 4, 2014, the WCB case manager stated, in part:

He feels depressed when he thinks that he will have to go back to work for accident employer. He feels that if he is to return to work in any capacity that "he will be weeded out." He is also worrisome of what could happened (sic) if he was to go back to work and have to deal with the pressure from staff members. He is also feeling depressed as he does not have any income and he has 3 children (2 children in University) and a bigger home. When suggested that his financial burden may be eased if he was to return to work, he still felt that he could not go to work.

In a report dated January 15, 2014, the treating specialist reported that the worker continued to have considerable discomfort in his shoulder and was unable to perform any overhead activities even without any loading. This meant that the worker was not able to return to his previous employment.

On March 13, 2014, the family physician noted that the worker was feeling depressed. His symptoms included lack of interest, insomnia, no increased appetite, anorexia, poor concentration, feelings of guilt, no pleasurable activities and lack of energy.

On April 18, 2014, the worker was seen by a clinical psychologist and it was recommended that the worker undergo a psychological assessment regarding his psychological fitness before a return to work was attempted.

On May 20, 2014, the worker was seen at the WCB offices for a call-in assessment by a WCB psychological consultant. The consultant stated:

Based on the claimant's report, it appears that the depression is related to the following: the claimant's interactions with the employer; the attempted suppression of this claim by his employer (according to [worker]); and his diminished sense of self-esteem and ability to provide for his family in the style to which they have become accustomed; his inability to fund the advanced education of his children…It is this writer's opinion, that at present, [worker's] psychological status, that is, the extent of his depressive symptomatology and associated deterioration in functioning, would preclude his ability to return to work."

By letter dated June 12, 2014, the worker was advised that the WCB was not able to accept responsibility for his psychological condition as the circumstances did not give rise to an accident as defined by the WCB. The decision was based on the opinion expressed by the WCB psychological advisor on May 20, 2014. The worker disagreed with the WCB's finding and an appeal was filed with Review Office.

On August 28, 2014, Review Office confirmed that the worker's psychological difficulties were not compensable. Review Office cited WCB Policies 44.05.30, Adjudication of Psychological Injuries and 44.10.80.40, Further Injuries Subsequent to a Compensable Injury.

Review Office noted that the worker was diagnosed with anxiety and depression by the attending physician on September 19, 2013. There was no further medical follow-up in relation to the worker's psychological difficulties until March 13, 2014, six months later. Given the significant delay in symptoms development (20 months later) and reporting, Review Office placed little weight to the worker's contention that his mental health condition was a direct consequence to the workplace accident. Review Office indicated that its decision was further supported by the May 20, 2014 interview findings. Review Office stated "based on the evidence before us, we do not find the origin of the worker's psychological condition meets the criteria for a compensable psychological injury or subsequent injury."

On December 18, 2015, the treating clinical psychologist submitted a report outlining the results of clinical interviews, diagnostic impressions, etc. of the worker's psychological difficulties in relation to the compensable accident of January 17, 2012. The report stated that the worker met the diagnostic criteria for Post-traumatic Stress Disorder (PTSD). On April 5, 2016, Compensation Services wrote the worker to advise that the WCB was unable to find that the origin of his psychological condition meets the criteria for a compensable psychological injury or subsequent injury.

On April 26, 2016, a worker advisor asked Review Office to reconsider its previous decision that the worker's psychological difficulties were not compensable based on new medical information. A copy of the submission was provided to the employer and their response is on file dated June 10, 2016 which included an audio recording of a telephone conversation between the worker and his employer on August 29, 2013.

On July 14, 2016, Review Office determined that the worker's psychological difficulties were not compensable.

Review Office acknowledged the statement made by the psychologist in the report of December 18, 2015: "…[the worker's] psychological difficulties subsequent to his work injuries appear to

result from the psychological combined effects of being the victim of the…accident itself and being the victim of perceived threats by workplace superiors that importantly are related to the accident, and impact the psychological consequences of the accident…"

Review Office stated that it placed greater weight to the evidence at close proximity to the workplace accident. It concluded that the origin of the worker's psychological condition was due to matters which do not meet the criteria for a compensable psychological condition and that the worker's injury did not cause or significantly contribute to the decline in his mental health.

On August 16, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's 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 willful 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 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 disease” 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 as 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.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, (the "Policy") sets out guidelines applicable to claims for psychological injuries. The effective date is November 1, 2012, for all claims regardless of accident date.

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors   of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no willful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident

The worker appealed the WCB decision that his psychological difficulties are not a consequence of his January 17, 2012 compensable injury.

Worker's Position

The worker was self-represented. He introduced himself as a 57-year-old miner with over 25 years experience in a hard rock mining environment.

He advised that:

my life changed with a fallen rock that had injured my arm and shoulder and led to two surgeries, and a disability that led to permanent restrictions on lifting, and no overhead work that precludes me from working in an underground environment.

To go with the trauma of the accident, I’ve had to endure threats, intimidation and bullying from my employer for reporting the incident at the hospital. This has led to stress, depression and a diagnosis of PTSD, and I have been on antidepressants since August of 2013…

In answer to questions from the panel the worker advised:    

• the employer tried to suppress his claim and he complained to the WCB.
• he was worried that he would be let go if he returned to work on light duties; he said this happened to 2 co-workers who returned on light duties and were let go by the employer.
• "I just believe that they would get rid of me, yes, it was my belief that, you know, we’re not in a union environment."
• when he returned to light duty work after his accident, but before the surgery, he was sent back to his full duties.
• a WCB psychologist told him he was depressed and that he might be able to return to work if the employer contacted him and told him his job was secure. He said that he never got a phone call and there was no correspondence after that.
• he has asked for a reference because there is a big lapse in his working career but a reference was not provided.
• he told the treating psychologist that "… I had woke up at one time and I had a dream of the accident, I woke up in a cold sweat."
• he was having difficulties with his marriage and was suicidal, so his wife took him to see  his doctor in September of 2013.
• he did not think he could do mining again and wanted to be retrained.
• regarding returning to work as a supervisor he said "… I didn’t think I would be able to do a supervisory position.
• he agreed with the psychologist's suggestion that he was grieving the end of his mining career.
• he said "…my mining career was coming to an end, everything that was going on with the investigations, me looking at possibly filing a complaint with the helpless, workplace safety and health, and just my mining career coming to an end and just, it just…made me very, very sad and depressed.."           

The worker disagreed with the WCB report that did not find claim suppression by the employer. He noted that a subsequent investigation resulted in corrective orders being issued against the employer under The Mines Act.  

When asked "in your layman’s words, what are your current psychological difficulties?" the worker responded:

My psychological difficulties are I’m stuck at home, I can’t do anything, I have a hard time getting out of my house, I take antidepressants, I mope around at home, I can’t get another job in anything that’s going to pay me to support my family…I have no spark in me left…"

Employer's Position

The employer was represented by an advocate.  As well, the Manager of Safety and Operations for the employer participated by conference call.

The employer's representative advised that the employer does:

"…not believe that his psychological condition is a consequence of the January 17, 2012 workplace incident. We don’t see a direct or a temporal link between the onset of his psychological difficulties occurring years later, and his left collarbone injury.

The employer representative stated the employer believes that the worker's depression was related to non-compensable employment matters, including his perceived interactions with the employer, which arose long after the workplace injury. She advised that the employer denies that there were threats, intimidation and bullying.  She noted the findings of the WCB compliance unit that found there was no evidence of claim suppression.

The employer representative noted section 1(1.1) of the Act does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, layoff or termination.  She also noted the Policy indicates that psychological injuries that occur as a result of burnout or the daily pressures or stressors of work, will not give rise to a compensable claim.

She stated that the worker's psychological injury claim does not meet the definition of an accident, because there’s no chance event, no willful and intentional act, and no traumatic event.  She noted that discipline, promotion, demotion, transfer or other employment-related matters are specifically excluded from the definition of an accident.

The employer's representative said that the first indication of depression was noted in a March 13, 2014 doctor’s progress report, over two years post-injury.

The employer representative submitted that the:

significant delay in symptom development does not validate a direct link to the workplace injury, but rather to concerns primarily about  returning to work in light duties, money issues which could have been alleviated had he return to work in the  

accommodation offered by the employer perceived unpleasant  interactions with the employer, worries about what his  coworkers would think of him, unfounded worries about possible layoffs down the road, and unfounded fears of termination of employment…

[worker's] symptoms seemed to have surfaced when it became apparent that the employer could accommodate any restrictions, that the WCB would not retrain him, and that wage loss benefits would be denied if he declined suitable work.

Regarding the evidence of the treating psychologist, she noted that the psychologist opined that the worker's depression and anxiety were symptoms of post-traumatic stress disorder caused mostly by his perceived interactions with workplace superiors. The employer representative noted that there was no evidence of threats from the employer and that a formal psychological assessment or workplace evaluation was not done. As well, the psychologist indicated that she did not seek corroboration regarding this information.

The employer representative also noted that the WCB Psychological Consultant indicated that the worker's depression was related to "interactions with the employer," attempted suppression of this claim by his employer, and the worker's diminished sense of self-esteem.

The employer representative submitted that the symptoms do not meet the provisions under the diagnostic statistical manual of mental disorders to be diagnosed as PTSD, nor are his symptoms compensable under WCB policy.

In closing, the Manager of Safety and Operations acknowledged that the worker was an exemplary employee.

The employer representative asked that the appeal be dismissed.

Analysis

The worker has an accepted claim for an injury to his left shoulder.  He claims to be suffering from a psychological injury that is due to his employment.  He has identified specific events that occurred in the workplace which have resulted in his illness.  For the worker's claim for a psychological injury to be accepted the panel must find that the psychological injury was caused by an accident arising out of and in the course of his employment. The panel was not able to make this finding for the reasons that follow.

The panel notes that this appeal deals only with the issue of whether the worker's psychological difficulties are a consequence of his workplace accident. The panel has considered the various events that were identified by and discussed with the worker and finds their effect on the worker do not constitute a compensable condition.   We reach this conclusion after careful consideration of the events and the medical evidence.

Claim Suppression:  The worker complained of claim suppression by the employer.  The panel notes that an investigation was conducted by WCB Compliance Services which found that there was insufficient evidence to conclude the Safety Superintendent, acting on behalf of the employer, attempted to dissuade the worker from filing a claim or receiving compensation from the WCB.  The panel also notes that as a result of the workplace accident, a claim was filed, adjudicated and that the worker received benefits under the claim. The panel is not able to relate the worker's concern about claim suppression to the development of a compensable psychological injury.

Fear of Termination:  The worker expressed fear that he would be terminated if he returned to work. The worker's evidence suggests a distrust of the employer and its managers.   The evidence on the file does not support that this fear was well-founded.  At the hearing, the Manager of Safety and Operations told the panel that the employer wanted the worker to return and discussed placing him in a supervisory role.  The worker acknowledged this offer had been made but said he could not work in that role.  In any case, the panel finds that the worker's fear of termination and the resulting psychological condition, do not meet the requirements of the Act.  Subsection 1(1.1) of the Act provides that "the definition accident does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination." (Underlining added).  The worker's fear that he would be terminated and a psychological condition resulting from this fear is not compensable.

This issue is also dealt with in the Policy which identifies non-compensable conditions.  It provides, in part, that:

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors   of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no willful and intentional act and no traumatic event. Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident

Post-Traumatic Stress Disorder (PTSD): The worker relied upon the opinion of the treating psychologist. The treating psychologist opined that the worker's  "…depression and anxiety difficulties are best seen as symptoms of PTSD, which result from the combined and inextricable psychological effects of his having been both the victim of an underground mining accident and the victim of perceived threats by his workplace superiors…"

The panel has considered this opinion but is not able to give weight to this opinion.  The panel notes the psychologist did not perform a psychological assessment, workplace assessment or workplace evaluation, and did not seek corroboration regarding the worker's allegations.  The panel finds that much of the background information relied upon by the psychologist is based upon the worker's perceptions which are not supported by the available evidence. 

Regarding the accident, at the hearing the worker did not describe fears about the actual workplace accident except when asked whether he had dreams about the accident. The worker advised that:

I know I did mention it to [psychologist] at one time, that I had woke up at one time and I had a dream of the accident, I woke up in a cold sweat.

The evidence does not indicate indicia of other PTSD symptoms such as triggers and panic attacks, as noted above, the panel does not place weight on the treating psychologist's report.

The panel notes that the WCB Psychological Consultant examined the worker on May 20, 2014. The psychological consultant opined that:

Based on the claimant's report, it appears that the depression is related to the following:   the claimant's interactions with the employer; the attempted suppression of this claim by the employer (according to the worker); and his diminished sense of self-esteem and ability to provide for his family in the style to which they have become accustomed; his inability to continue to fund the advanced education of his children.  

The panel attaches greater weight to this opinion. 

In conclusion the panel finds that the evidence on file does not support a finding that the worker suffered psychological symptoms related to the actual accident.  The overwhelming evidence is that worker's psychological injury is primarily due to concerns about job security, the end of long career, impact on his lifestyle, and impact on his marriage and family. 

The panel is not able to find, on a balance of probilities, that the worker's psychological injury was caused by an accident arising out of and in the course of his employment. 

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of May, 2017