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 full wage loss and/or medical aid benefits in relation to incidents that occurred at work in March 2016. A hearing was held on August 24, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss and/or medical aid benefits in relation to the incidents that occurred in March 2016.

Decision

That the worker is not entitled to full wage loss or medical aid benefits in relation to the incidents that occurred in March 2016.

Background

On January 9, 2012, the worker suffered an injury to her right knee during the course of her employment as a child care worker. The worker reported:

I was sitting in a chair and a child pushed me out of the chair that I was in. The child asked me for DS machine and I gave it to her and then she kicked me in the right knee. The child is aware of her actions.

Initial medical information showed that the worker was diagnosed with a right knee contusion and she attended a physiotherapist for treatment.

On January 23, 2012, the worker spoke with a WCB adjudicator and stated that she was off work due to her knee condition and her emotional state. The worker advised that this was the third time she had been assaulted by the child.

The WCB accepted the worker's claim for the knee injury as well as a psychological injury, and the worker was referred to a clinical psychologist for treatment.

In a note to file dated February 13, 2012, a WCB adjudicator documented information she obtained from the worker's counsellor. The counsellor noted that the worker felt she was in a high stress, unsafe work environment. The worker felt defenseless and said there were no safeguards in place for her at work. The counsellor stated that the worker's stress "is solely related to the incident at work. This was not the first incident at work, but it was the most traumatic to her."

In a report to the WCB dated March 11, 2012, the treating psychologist opined that the worker suffered from symptoms of Post Traumatic Stress Disorder ("PTSD") based on the initial assessment. The psychologist noted that since March 2010, the worker had experienced at least two physical assaults while working, and that the assaults were perpetrated by high risk adolescents in a shelter/group home.

On March 24, 2012, a WCB psychological advisor reviewed the file information and opined that the mechanism of injury was not to the level of severity where the diagnosis of PTSD was justified. He advised that the initial diagnosis would be of an Adjustment Disorder with anxiety and depressed mood, and more recently, possible Depressive Disorder and Anxiety Disorder NOS.

In May and October 2012, the worker was seen at the WCB offices for a call-in examination by the WCB psychological advisor. In October 2012, the psychological advisor stated, in part:

There are a number of issues here not just the initial triggering event that lead to the current claim, but the history of interactional issues she has experienced in the workplace, her own psychological dynamic features, her sense of vulnerability, and the fact that she had her own history of abuse victimization that has made her more vulnerable and sensitive to reactivity in situations where there is strong adversity and a (sic) high levels of stress. Hence, there is very significant pre-existing vulnerability that is noteworthy here and, a triggering set of stimuli.

On April 21, 2013, the WCB psychological advisor reviewed claim updates and noted that the worker had 2 additional stressors, one related to an attempted return to work, and the other due to a non work-related issue. The advisor recommended additional treatment sessions and stated: "The additional requested sessions appear to be associated with the added psychological stress related to non-CI (compensable injury) related issues although, are dealt with in the context of what most likely is reduced coping skill that would be related to pre-CI and CI-related issues."

In a report dated January 14, 2014, the treating psychologist stated, in part: "It is obvious that the work-related traumatic attack of January 2012, and the [issue] in March 2013, have triggered many underlying psychological and emotional issues for [worker]." It was recommended that the worker continue treatment due to her high level of fragility and anxiety and obsessive thoughts.

On January 15, 2014, the worker was again seen at the WCB offices for a call-in assessment. The psychological advisor stated, in part:

…at this time, she has significant symptom remission in regards to this specific compensable injury related psychological sequelae that can be directly attributed to the personally stressful event that she experienced in the workplace.

Based on her significant injury related symptom remission, she is employable. She is heavily involved in alternate training that she reports she is doing well at and, she has residual symptoms in the phobic anxiety realm, but these are in the context of not being in her previous workplace, hence, is not being re-traumatized or retriggered.

The vast majority of the claimant's other issues appear non-related to this claim…

At this time, the claimant is fit to return to the workplace and I am going to modify her restriction at this point to be as follows:

• The claimant should not work in any situation with individuals who are at high risk of perpetrating violence and in a workplace environment where she is in an isolated situation, with having close proximity to individuals who have a history of significant violence where there have been outbursts. This would need to work around what I can see as the potential for her to work as an Instructional Assistant and there needs to be restriction here that she should not work with individuals who are Level 3 funded due to volatile, high risk, aggressive, and violent behavior.

…She did not appear, at this time, functionally impaired due to the compensable injury and, there appears to be a wide range of non-related and pre-existing issues that are more potent here.

In a note to file dated April 9, 2014, the WCB psychological advisor stated that the worker's current presentation, in the majority, was unrelated to the compensable injury. In the absence of being back in her previous workplace, the worker had minimal symptoms. The psychologist stated that in his view, the worker was fit for all employment except for where there was a risk of violence. He noted that working in close proximity or directly with individuals who were volatile and violent would be contraindicated. In a second note dated April 9, 2014, the psychological advisor clarified that the worker had not completely recovered from the compensable injury, and required the permanent restriction that he had outlined.

On December 10, 2014, the WCB psychological advisor stated, in part:

… she has been seen to be employable although, as I have indicated, with an abundance of pre-existing and post-CI non-related psychological issues and stressors.

She has a pre-CI history of having an Anxiety Disorder, most likely OCD, at a minimum Generalized Anxiety, and at no time has she been diagnosed with having, by myself, PTSD as this would not be an appropriate diagnosis for her given the mechanism of the CI, a distressing and physically aggressive interaction with a child.

…her treatment should be transitioned to a community service provider given the pre-existing issues that she has.

In December 2014, the worker returned to work with the accident employer on a trial basis in the position of Administrative Secretary 2, and by August 2015, the position changed to full-time work.

In a memo to file dated March 22, 2016, it was noted that the worker advised the WCB that "someone raised her voice at her and she had a breakdown." The worker stated that it was a very busy day at work and that a co-worker came to her and blamed her for not completing an electronic request. The worker indicated that she was crying in the office after the co-worker went away. The worker explained that:

She has been doing some training in the trust department, and this requires her to go down into the basement and get the money from admissions. She collects the monies and then goes back upstairs to collect any monies left by relatives for the inmates, she would then count it and balance it. Then she would go back to her regular work. At times she does have contact with both officers and inmates because you have to pass through the visiting area and the elevators as well. She was trying to do a little bit more because her supervisors asked if she wanted to try this and she wanted to try to feel useful. She stated when she would see the inmates she would be scared and her co worker would ask if she was OK and she would continue on. She does not want to go back to where she was where her fear would stop her from doing things, so she wanted to try and do regular things and she did not want to say no when they asked her if she wanted to try. She wanted them to feel like she is useful.

She didn't realize that it would affect her, she must have been exhausted and when she was yelled at this triggered her to breakdown.

In a memo to file dated March 24, 2016, the adjudicator spoke with the co-worker identified by the worker. He said that at no point was she yelled at, nor were any voices raised.

In a report to the WCB dated March 24, 2016, a clinical psychologist noted that the worker had called their office and that she had seen her on March 21, 2016. She stated that since the incident of March 16, 2016, she had been incapacitated. She was crying, wrought with anxiety, very sad, unable to go out independently, and distraught at even the thought of going to work. It was stated:

She described the situation as being one in which she had completely fallen apart emotionally when one of the officers at work made a statement in front of others indicating that [worker] had not responded promptly to an email that they had sent. Although one of [worker's] colleagues had immediately responded in her defense…[worker] was embarrassed and immediately set into a tailspin of anxiety and sadness.

[Worker] explained that the incident was actually one of a number of comments and criticisms that have been offered at various times throughout the week. Although [worker] feels very supported by her immediate supervisor, there are officers and supervisors in her workspace that make comments and judgmental statements that she takes personally, and to heart…She had been doing reasonably well; however, the past weeks that led up to the March 21st incident likely contributed to her crisis response.

[Worker] indicated that over the past two weeks she has been job-shadowing a co-worker…The problem with that task was that the shadowing took place in the basement, where there were prisoners and people that she did not ordinarily come across. The anxiety that was evoked by the setting has been building incrementally each day since she started…The March 21st incident seems to be a minor one - but taken in the context of her increasing anxiety levels, it is now more clear as to why she had such a strong reaction to the comment/criticism.

On May 18, 2016, the WCB psychological advisor reviewed the file information, and was of the opinion that:

The episode in the workplace was interstaff relationally based not one that would be the type of stress that would lead to a trauma or stressor related disorder, and more likely than not was reacted to more by pre-existing issues although more likely than not, her history of multiple challenging situations in her workplace and the CI do play some role.

…psychological support and a rapid return to work would be indicated given that the current event was a normative workplace stressor…

The claimant should not be in personal space proximity to offenders unless in a control booth or contained office/administrative area.

On May 19, 2016, Compensation Services wrote the worker to advise that the WCB was not able to relate her current symptoms to the original work-related compensable diagnosis of Adjustment Disorder based on the WCB medical opinion outlined on May 18, 2016. The decision was also confirmed by a case management manager on June 20, 2016.

On September 14, 2016, the worker's union representative appealed the decisions made by Compensation Services to Review Office. The union representative noted that the worker suffered a resurgence of psychological difficulties in March 2016 as a result of a combination of being assigned a new assigned task that caused her undue stress, and what she perceived to be a tense interaction with a co-worker. It was submitted that these factors triggered relapse of her compensable psychological injury.

On November 7, 2016, the employer's representative submitted to Review Office that weight should be placed on the opinions expressed by the WCB's psychological advisor throughout the file, which clearly established that the worker's reactions and resulting time loss as of March 16, 2016 were not related to the January 2012 incident at work.

The worker's union representative responded to the employer's submission and also provided a medical report from the treating psychologist dated May 16, 2016 for consideration. On November 21, 2016, Review Office referred the case back to primary adjudication to consider the new report.

On December 10, 2016, the WCB psychological advisor noted that the diagnosis outlined in the psychologist's May 16, 2016 report was a "recurrence/relapse of Anxiety/PTSD and depression." He stated that there was no change to the opinion he outlined on May 18, 2016, and that the predominant cause appeared to be the worker's pre-existing vulnerability.

In a decision dated December 19, 2016, Compensation Services advised the worker that following a review of all the information, it remained their opinion that her exacerbation of symptoms and time away from work was as a result of an interaction with another co-worker which was not related to the workplace diagnosis of Adjustment Disorder.

On December 20, 2016, the worker's union representative submitted to Review Office that the worker was entitled to wage loss and medical aid benefits because the evidence supported that she experienced a recurrence of her compensable injury, which resulted in a loss of earning capacity as well as a need for treatment.

On February 17, 2017, the employer's representative submitted to Review Office that they agreed with the decisions of May 19 and December 19, 2016 that the worker's time loss from work effective March 16, 2016 was not related to the original compensable incident of January 9, 2012 or to any work-related matter.

On March 1, 2017, the worker's union representative provided their comments on the employer's February 17, 2017 submission.

On March 6, 2017, Review Office concluded that the worker was not entitled to medical aid and/or full wage loss benefits in relation to workplace incidents in March 2016.

Review Office noted that it specifically considered the worker's training for coverage of another position in which she had exposure to inmates and the worker's conversation with an officer on March 16, 2016.

Review Office noted the worker reported she was job shadowing a co-worker in another position for two weeks in or around March 2016. Review Office did not find that the evidence supported that a relationship between the worker's loss of earning capacity and need for urgent psychological counselling after March 16, 2016 was triggered by the worker training for another position. Review Office recognized that the assigned duties may have compromised the established work restrictions, but did not conclude that the situation resulted in a need for further benefits.

Review Office noted that the worker had an interaction with an officer/co-worker at work on March 16, 2016 and that following this she became upset. She did not work the next day and sought medical treatment. Review Office accepted the WCB psychological advisor's December 10, 2016 opinion, which stated: "the event that resulted from her not being in the workplace was inter-staff relationally based." As such, Review Office determined there was no entitlement to benefits due to the worker's reaction from being spoken to by an officer/co-worker about a work-related matter.

On March 9, 2017, the worker was advised by Review Office that it had considered correspondence which the worker had submitted dated March 1, 2017 (received March 8), and concluded that the information would not alter its decision of March 6, 2017.

On March 15, 2017, the worker's union representative appealed the Review Office 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.

Under subsection 4(2), 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, addresses the issue of pre-existing conditions when administering benefits. The 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.

WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences), deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity."

Worker's Position

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

The worker's position was that the worker is entitled to wage loss benefits to compensate her for her loss of earning capacity that began in March 2016, as well as medical aid benefits for the treatment of her psychological difficulties, which were related to her January 2012 compensable psychological injury.

The advocate submitted that the WCB had overstated whatever pre-existing conditions the worker may or may not have had at the time of the workplace accident, and refused to acknowledge the full impact of the initial assault in January 2012. It was submitted that the evidence supported that the workplace assault in 2012 resulted in a significant change in the worker's psychological well-being, which left her unable to cope with stressors which she had easily managed before.

The advocate submitted that although seemingly ill-conceived as accommodation, the return to work went well until March 2016 when the worker had a recurrence of her psychological condition. The worker reported that she had a mental breakdown at that time, after an officer had wrongly accused her of making an error. While this exchange prompted a relapse of her symptoms, she was already worn down because she was doing job shadowing/training in a new task that exposed her to inmates and scared her.

It was submitted that the worker was entitled to benefits as long as the compensable injury was in part responsible for her time loss and need for medical aid. The WCB erroneously relied on the opinion of the WCB psychological advisor, who sought to apportion causes of the worker's psychological distress between what was considered to be pre-existing conditions and compensable causes. It was submitted that a condition will be compensable when compensable and non-compensable conditions interact, and not simply when the compensable factors predominate.

The advocate submitted that as a result of the January 2012 assault, the worker developed increased sensitivity, which left her struggling to cope, as in this instance, with seemingly minor psychological stress. It was submitted that the assault changed the worker fundamentally, as acknowledged by the WCB with permanent restrictions. In these circumstances, if there is a setback, the WCB should accept responsibility.

Employer's Position

The employer was represented by its Workers Compensation Coordinator and a deputy superintendent.

The employer's position was that they agreed with the Review Office decision that there was no entitlement to wage loss or medical aid benefits in relation to the incidents in and around March 2016.

The representative stated that they disagreed with the submission by the worker's advocate that the WCB had overstated the psychological struggles that the worker had prior to the incident in January 2012. He submitted that there is clear information in multiple medical reports that the worker had very significant pre-existing issues well before the initial incident in January 2012.

The employer also disagreed with the suggestion that the WCB had refused to acknowledge the full impact of the January 9, 2012 incident. The representative submitted that the WCB had in fact given full consideration to the impact of the worker's injury. The representative noted that the WCB psychological advisor had reviewed the claim on multiple occasions, and clearly advised that the injury was not to the level of severity where a PTSD diagnosis was justified. The WCB advisor had also outlined that the worker had significant pre-existing vulnerabilities specifically not associated to the January 2012 incident.

With respect to the March 16, 2016 incident, the representative noted that the investigation that was done into the matter determined that there was no such incident of yelling. Rather it was really a situation of miscommunication about work-related tasks. In addition, while there was some suggestion of concern about the type of job tasks the worker was doing in terms of the job shadowing, it should be noted that she had been asked to do some of this for about two weeks, without comment or complaint. The evidence further showed that this was in a safe and secure area, that there were always officers present and that the worker was not sent there on her own.

In conclusion, it was submitted that there is no direct link between the worker's time loss in March 2016 and the January 9, 2012 incident. As such, there is no entitlement and the appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss and/or medical aid benefits in relation to the incidents that occurred in March 2016. For the worker's appeal to be successful, the panel must find that the worker's loss of earning capacity and/or need for medical aid as of March 2016 were related to her January 2012 compensable injury. For the reasons that follow, the panel is unable to make that finding.

The panel finds, on a balance of probabilities, that the diagnosis of PTSD in relation to the January 9, 2012 workplace injury is not acceptable. In making that determination, the panel places weight on the opinion of the WCB psychological consultant, who opined on March 24, 2012 that "Despite the diagnosis that has been made, PTSD, the mechanism of injury is not to the level of severity where this diagnosis would be justified." The panel also places significant weight on the May 18, 2016 opinion of the WCB psychological advisor who, having reviewed the worker's file and conducted three separate call-in examinations in the course of the claim, again opined that:

The mechanism of injury would not support a diagnosis of PTSD despite what has been outlined by others. The [worker] was pushed out of a chair and kicked in the knee by a 12-year-old. However, this occurred in the context of multiple challenging and stressful situations in the workplace and nonrelated stressors. Given all information, she is a psychologically vulnerable woman who has low stress tolerance.

The panel accepts the WCB psychological advisor's assessment and application of the WCB criteria in respect of a diagnosis of PTSD.

The panel further accepts the WCB psychological advisor's May 18, 2016 opinion that given the mechanism of the worker's compensable injury, she "developed an Adjustment Disorder and that over the course of time, a Depressive Disorder and an Anxiety Disorder NOS."

The worker's representative has argued that the worker suffered a recurrence of her compensable injury in March 2016. Based on our review and consideration of all of the submissions and information before us, the panel is unable to arrive at that conclusion.

With reference to a hand-drawn floor plan, the panel carefully reviewed the layout of the workplace with the worker and the deputy superintendent of the employer, as well as the circumstances relating to the March 16, 2016 incident and the job shadowing in March 2016.

With respect to the March 16, 2016 encounter with the officer, the worker said that the officer did not yell at her, but spoke "in a high tone." She said he blamed her for doing something that she did not do. She said that she tried to answer back, but did not know if he accepted her explanation, as she then turned her back to him. She said she was ashamed because there were people there.

The panel notes that the worker appeared to have no difficulty discussing the job shadowing at the hearing. The information provided indicated that the worker spent approximately 10 to 20 minutes a day in the basement performing those duties. Inmates in the basement would be secured in their cells at that time, relatively far away from where the worker was and she would have no contact with them. There would also be several officers in the area. The worker was also accompanied to and from the basement via a route that was generally secured from inmate contact.

The panel finds that the March 16 incident and the job shadowing position were both very different from the original 2012 workplace incident. The March 16 incident with the officer did not involve any violence or physical contact. The issue with job shadowing related to incidental and very indirect exposure to inmates and was not confrontational.

The panel places little weight on the May 16, 2016 opinion of the treating psychologist, that the worker was experiencing a recurrence/relapse of Anxiety/PTSD and Depression, as being based on significantly different facts than those which are currently before us. The panel attaches more weight to the December 10, 2016 opinion of the WCB psychological advisor, that the predominant cause of her not being in the workplace appeared to be the worker's pre-existing vulnerability, as being based on a history described by him which is more consistent with our understanding of what happened in March 2016.

The panel further notes that based on the evidence on file and as provided at the hearing, we are satisfied that the worker's restrictions were not compromised by the job shadowing which the worker was doing in March 2016. In our view, the evidence indicates that the worker was not at risk of violence, that she was not in an isolated situation, working alone, or in close proximity to individuals who were volatile or violent. In this regard, the panel also notes that the worker's restrictions were originally set by the WCB psychological advisor, and the advisor himself did not find that those restrictions were breached or exceeded.

In summary, the panel finds that the two incidents in March 2016 were not directly related to the compensable injury, and the compensable injury did not have a material effect on the worker's ongoing difficulties at that time.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's loss of earning capacity and need for medical aid as of March 2016 were not related to her January 2012 compensable injury. The panel therefore finds that the worker is not entitled to full wage loss or medical aid benefits in relation to the incidents that occurred in March 2016.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 20th day of October, 2017