The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions that were made by the Workers Compensation Board ("WCB") with respect to his compensation claim. A hearing was held on April 4, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to benefits.

Decision

That the claim is acceptable; and

That the worker is entitled to benefits.

Background

On November 20, 2015, the worker was initiating an IV procedure when the patient abruptly lashed out and struck him in the mouth with a partially closed fist while yelling and screaming profanities at him.

A Doctor First Report dated November 20, 2015 stated that the worker complained of "stressed post assault." The examination findings were "Depressed Mood/No Visible Injury." The diagnosis outlined was soft tissue injury/head injury. The report indicated that the worker was not capable of alternate or modified work and was to be off work indefinitely.

On November 25, 2015, the worker advised his adjudicator that he attended the ER doctor after he was struck in the face by the patient and was taken off work. The worker stated that he was fine physically, but was unable to return to work from an emotional/psychological standpoint.

On November 30, 2015, the employer's disability case coordinator advised the WCB that the worker had a previous psychological health condition and had recently started a graduated return to work program when the injury occurred on November 20, 2015.

On December 3, 2015, the worker advised the WCB that he was experiencing a lot of stress, anxiety, anger and frustration, and that his family physician was arranging a psychological referral. The worker advised that he started a graduated return to work program on October 13, 2015, and was never treated for any psychological difficulties. He said he had resigned earlier from the position of clinical team manager with the intention of going back to his previous position of general duty nurse, as the management position was not working out and was causing him significant stress. When the incident occurred on November 20, 2015, he had returned to work at the new position of general duty nurse with restrictions of 6 hour shifts.

The WCB accepted the worker's claim for an acute reaction to a traumatic event, and wage loss benefits were issued to the worker starting November 21, 2015.

On December 23, 2015, the worker was seen at the WCB offices for a call-in assessment by a WCB psychological consultant. In a note to file dated December 23, 2015, the consultant stated:

The claimant has a Major Depressive Disorder - mild to moderate severity, and an Other Specified Trauma and Stressor Related Disorder (insufficient symptoms of PTSD), with the Depressive Disorder being an aggravation from his history and the Other Specified Trauma and Stressor Related Disorder caused by this CI [compensable injury] albeit occurring within the context of vulnerability given his June to October leave from the workplace due to anxiety and depression, by his report more depression, and workplace stressors.

…

The claimant is not immediately fit to return to nursing at this time. The major issues here are his low tolerance, anxiety, mood disturbance with irritability, avoidance, and fearfulness.

On January 7 and 19, 2016, the worker was seen by a psychologist for an initial assessment. In his report to the WCB dated January 31, 2016, the psychologist stated:

[Worker's] responses to the TSI [Trauma Symptom Inventory] were valid and reflective of difficulties primarily in the area of mood. [Worker's] profile did not match that of a population diagnosed with posttraumatic stress disorder.

…he is presenting with difficulties with low frustration tolerance, anxiety, and mood disturbance. While some of these difficulties appear to have been present on a premorbid basis, [worker] was able to function within the workplace, and it was not until the occurrence of a combination of factors/events (culminating in being punched by a patient) that [worker's] ability to tolerate being in the workplace and working there, was exceeded.

In a note to file dated April 11, 2016, it was documented that the worker began a return to work program on April 12, 2016 and the target date for return to full duties was May 9, 2016.

In a submission to Review Office dated July 12, 2016, the employer's representative stated that they were appealing the WCB's decision to accept any responsibility for the worker's alleged post-traumatic stress disorder and other psychological issues. The representative believed that the evidence on file did not support that the workplace accident caused any degree of disability, and that WCB wage loss benefits should not have been accepted on the claim.

The representative further stated: "It is also very important to note that the claimant was actually actively disabled at the time of the WCB workplace incident in that he was on a modified/graduated return to work plan for his non-compensable conditions when the workplace incident took place. So it's not as if his non-compensable condition was in the past. It was still disabling at the time of this incident." In support of the position that the worker did not have PTSD, the representative referred to specific comments made by the WCB psychological consultant in his notes of the call-in assessment of December 23, 2015 and comments made by the treating psychologist in his report dated January 31, 2016.

On August 3, 2016, the worker's union representative responded to the employer's submission of July 12, 2016. The representative submitted to Review Office that the WCB made the correct decision to accept the worker's compensable injury of November 20, 2015.

On October 3, 2016, Review Office determined that the claim was not acceptable and the worker was not entitled to benefits.

Review Office referred to early file information to support that the claim was not acceptable in relation to a physical injury. Review Office stated that "although the worker may have been struck by the worker (sic) on November 20, 2015, the evidence does not support that he was physically injured by the contact."

Review Office concluded that the file evidence did not support that an acute psychological injury was sustained on November 20, 2015. Review Office found that the worker's need for time off from work, beginning November 20, 2015, was related to a broader and longstanding multifactorial problem, including a significant pre-existing and active psychological condition(s), the worker's characterological traits, and workplace stress and job dissatisfaction. On October 20, 2016, the worker's union representative 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 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.

"Accident" is defined in subsection 1(1) of the Act 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.

Under subsection 4(2) of the Act, a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy") addresses the issue of pre-existing conditions when administering benefits. The Pre-existing Conditions Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The Pre-existing Conditions Policy sets out the following definitions:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

WCB Policy 44.05.30, Adjudication of Psychological Injuries (the "Psychological Injuries Policy") states, in part, as follows:

The definition of accident in The Workers Compensation Act...has various components. A psychological injury can be caused by:

• a chance event;
• a wilful and intentional act; or
• the injury can be an occupational disease (an acute reaction to a traumatic event or post traumatic stress disorder).

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically.

Worker's Position

The worker was represented by a union representative, who made a presentation on the worker's behalf. The worker provided a written submission in advance of the hearing, and responded to questions from his union representative and the panel at the hearing.

The worker's position was that he suffered an assault in the course of his employment while performing his regular work-related duties, and is entitled to wage loss and treatment benefits.

It was submitted that the assault was clearly a wilful and intentional act of a patient which resulted in a psychological injury and fell within the definition of an accident. The accident causing injury was a specific event which was confirmed as such by both the worker and the employer.

The worker's representative submitted that the medical evidence clearly demonstrated that the incident resulted in a significant change in the worker's health and well-being, and a meaningful decrease in his presentation. The WCB psychological consultant met the worker and opined that the compensable injury caused him to develop a reactivation or aggravation of a major depressive disorder and to have another stress and trauma related disorder. The psychological consultant's assessment and documentation confirmed that the accident caused injury to the worker.

The treating psychologist also stated that the worker was able to function within the workplace and it was not until the occurrence of a combination of factors and events which culminated in the worker being punched by the patient that the worker's ability to tolerate being in the workplace and working was exceeded. It was submitted that the medical opinions on file support that the worker sustained an aggravation of a pre-existing condition due to the unexpected and unprovoked assault.

It was further submitted that the fact the worker was on a graduated return to work when the incident occurred did not preclude the claim from being accepted or benefits being paid. The graduated return to work and other issues which the worker was having in the workplace were independent of the accident causing the injury.

In conclusion, it was submitted that the claim is acceptable, and the worker is entitled to wage loss and treatment benefits from the date of injury until May 9, 2016, when he returned to full capacity at work.

Employer's Position

The employer was represented by an advocate. The advocate submitted that the employer had no issue with the claim being accepted as a physical claim, as it was clear that the incident occurred. It was their position, however, that the worker's psychological condition was not caused by the November 20, 2015 workplace incident, and the worker's disability and loss of wages were not related to that incident.

The advocate noted that the area of injury which was identified on the Worker Injury Report was "right side mouth/teeth," and that no psychological issues were listed. The worker saw a doctor and was diagnosed with a soft tissue injury. No treatment was required and, in the employer's view, this was essentially a one-visit claim.

It was submitted that the medical evidence did not support that the worker sustained a psychological injury as a result of the incident. A diagnosis of post-traumatic stress disorder ("PTSD") had not been established. In fact, both the WCB psychological consultant and the treating psychologist had rejected PTSD as a diagnosis in this case. In addition, while the worker was diagnosed with depression, the evidence did not support that this condition was caused by the workplace incident.

In the employer's view, the evidence indicated that the worker's stress-related conditions, including Major Depression, pre-existed and were symptomatic prior to the workplace incident. In their view, it was also important to note that the worker was still at least partially disabled when the incident occurred, as he was on a graduated return to work plan for his non-compensable conditions at that time.

It was further submitted that the evidence did not support that the workplace incident aggravated the worker's pre-existing condition. It was submitted that for the WCB to accept an aggravation of a pre-existing condition, it must be established that the workplace accident caused a diagnosed injury, which then aggravated the pre-existing condition. In this case, there was no established psychological diagnosis. The workplace accident was not significant enough to aggravate the worker's psychological issues from before, and there was no injury which was related to the workplace accident.

Analysis

Issue 1. Whether or not the claim is acceptable.

For the appeal on this issue to be accepted, the panel must find that the worker sustained a personal injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is able to make that finding.

The evidence shows that the worker was off work on leave following his resignation from his previous position from July 23 to October 12, 2015. He started back to work on a graduated return to work plan in a new position on October 13, and was continuing to work in that position on a .5 EFT basis at the time of the incident.

At the hearing, the worker described in detail the circumstances surrounding the November 20, 2015 incident. The worker said that he had been working with the patient for more than half an hour, building a rapport, and that he felt comfortable with her. He said that through his training and his experience, he knew to "assess your scene, make sure everything is safe" and that "looking for …physical cues of possible aggression, I didn't see any of that with this individual." He said that he "was completely caught off guard" when the patient abruptly lashed out, struck him in the face and began yelling profanities at him.

The evidence confirmed that the worker was in a vulnerable position preparing to insert an IV when the incident occurred. It also confirmed that the worker was emotionally fragile at the time. Based on the evidence, the panel is satisfied that on the day of the incident, the assault by the patient negatively affected the worker's presentation and conduct.

The panel further finds that the worker had a major pre-existing depression disorder that was being managed effectively up until the time of the incident, with the worker returning to work on a graduated return to work basis.

The panel places significant weight on the opinion of the WCB psychological consultant, who reviewed the file and conducted a call-in examination of the worker on December 23, 2015.

As previously indicated, the WCB psychological consultant stated in a note to file dated December 23, 2015, that:

The claimant has a Major Depressive Disorder - mild to moderate severity, and an Other Specified Trauma and Stressor Related Disorder (insufficient symptoms of PTSD), with the Depressive Disorder being an aggravation from his history and the Other Specified Trauma and Stressor Related Disorder caused by this CI [compensable injury] albeit occurring within the context of vulnerability given his June to October leave from the workplace due to anxiety and depression, by his report more depression, and workplace stressors.

…

The claimant is not immediately fit to return to nursing at this time. The major issues here are his low tolerance, anxiety, mood disturbance with irritability, avoidance, and fearfulness.

In his notes of the call-in examination, the medical consultant further wrote that the worker:

…has been impacted by a stressful workplace event where he was assaulted and where he was directly exposed to the possibility of serious injury given his vulnerable position and where this in fact was not a (sic) serious as it could have been. This occurs in the context of…his history of vulnerability given multiple factors in his life.

The Other Stressor and Trauma Related Disorder is more directly associated with the workplace traumatic event, his Major Depressive disorder is aggravated, given an earlier history and, at this time, he is not fit to return to nursing. Here, this is due to the report I have and what I saw in general regarding his irritability, low tolerance, distress, anxiety, and tremulousness when speaking of possibly returning to work where he was visibly distressed and, he was visibly distressed at speaking about what had occurred to him.

The panel notes that the WCB psychological consultant was very specific in his use of the term "aggravation", as understood in the context of the Pre-existing Conditions Policy, and in authorizing treatment.

The panel also places weight on the opinion of the treating psychologist, who opined that while some of the worker's difficulties appeared to have been present on a premorbid basis, the worker had been able to function within the workplace, and it was not until the occurrence of a combination of factors, culminating in being punched by a patient, that the worker was unable to tolerate being in the workplace and working there.

The evidence further indicates that the treatment which the worker received, as authorized by the WCB medical consultant, was effective and restored the worker to his pre-accident baseline status. In our view, this supports that the worker suffered an aggravation of his pre-existing condition as a result of the November 20, 2015 incident.

The panel notes that neither the WCB psychological consultant nor the treating psychologist diagnosed the worker with PTSD, and the worker and employer representatives acknowledged that there had been no such diagnosis. However, the panel notes that a formal diagnosis of PTSD is not essential to the establishment of a psychological injury claim. The panel in this instance is satisfied that the worker suffered an "acute reaction to a traumatic event" which meets the requirement of the Act and Psychological Injuries Policy.

Based on the foregoing, the panel finds that the worker sustained a psychological injury by accident arising out of and the course of his employment on November 20, 2015, which constituted an aggravation of his pre-existing condition. The panel therefore finds that the claim is acceptable on that basis.

The worker's appeal on this issue is allowed.

Issue 2. Whether or not the worker is entitled to benefits.

For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid as a result of his November 20, 2015 workplace incident. The panel is able to make that finding.

In her submission, the union representative stated that the worker was seeking wage loss and treatment benefits from the date of injury until the date the worker returned to full capacity at work on May 9, 2016. The panel notes that the claim was originally accepted by Compensation Services and certain wage loss and medical aid benefits were provided. In the course of the hearing, the representative indicated that benefits had been paid to the completion of the claim, and what they were seeking was essentially to have the Review Office decision reversed and the worker's entitlement to benefits restored.

Given our previous finding that the claim is acceptable, and based on the evidence before us, the panel finds that the worker suffered a loss of earning capacity and required medical aid as a result of his November 20, 2015 workplace incident, and is entitled to benefits.

In the circumstances, the panel makes no specific findings with respect to the length of benefits to which the worker is entitled.  

The worker's appeal on this issue is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of June, 2017