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 conditions were not related to his compensable accident. A hearing was held on October 2, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's psychological conditions.

Decision

That responsibility should be accepted for the worker's current psychological conditions as indicated herein.

Background

The worker filed a claim with the WCB for an injury to his spinal cord and right foot resulting from a June 4, 1990 work-related accident. His claim for compensation was accepted by the WCB and various types of benefits have been paid to the worker over the course of his claim. The compensable diagnoses noted on the claim file are varied and include partial cauda equina syndrome. In 1992, the worker started treatment with a clinical psychologist to deal with the psychological effects of his physical injury related to the accident.

On June 20, 2012, the worker was advised by Rehabilitation and Compensation Services that the WCB was unable to accept further responsibility for ongoing psychological services or supports as it was felt that his ongoing psychological issues were multifactorial in nature and predominantly unrelated to his 1990 compensable injury. The case manager's decision was based on the following comments by the worker's treating clinical psychologist:

…the psychological issues being, in a minor way, related to his compensable injury, but in the majority are related to a variety of lifestyle, family and other non-related issues…

and

…[worker] was dealing with increased distress and depressive disturbance that has multiple causes, with these identified as related to decline in his physical status, increased right knee pain, issues with the Workers Compensation Board, legal issues, as he stated that the WCB were pursuing charges against him regarding fraud, and issues with his workplace.

On September 3, 2013, the worker's union representative submitted further medical information from the clinical psychologist and from a psychiatrist to support that the worker's current psychological treatment needs were related to the original compensable injury and the subsequent life-changing issues that the injury had created.

In a decision dated December 4, 2013, Compensation Services advised the worker that the report from his clinical psychologist dated February 12, 2013 had been reviewed by a WCB psychiatric consultant who offered an opinion that was very similar to the one that formed the basis of the June 20, 2012 decision. The case manager confirmed that the worker's psychological issues were multifactorial in nature and were not, on a balance of probabilities, related to his 1990 workplace injury.

On February 19, 2014, the worker's union representative provided the WCB with further medical information dated May 28, 2013 and February 12, 2014 to support that there was a direct correlation between the worker's current psychological difficulties and the compensable accident.

On January 29, 2015, a sector manager with Compensation Services wrote the worker and his union representative to advise that after reviewing all the medical reports that were gathered during 2014, as well as medical opinions on the WCB file and the full claim history with the WCB, it was his opinion that the worker's current psychological condition was not directly related to the compensable injury of June 4, 1990; that the worker had unrelated stressors and had demonstrated an ability to obtain and sustain work and other activities of daily life over the past 24 years since his compensable injury. On February 6, 2015, the worker's union representative appealed the decision to Review Office.

On February 17, 2015, the worker's union representative confirmed with Review Office that the diagnoses which the worker felt were related to his claim were as follows:

1. Major depressive disorder, recurrent, severe, with moderately severe anxious distress, possibly treatment-resistant 2. Panic disorder

3. Cocaine use disorder, in sustained remission by patient's history 4. Alcohol use disorder, in sustained remission by patient's history 5. Rule out: opiate use disorder

In a decision dated April 13, 2015, Review Office determined that the worker was "not entitled to further benefits in relation to a non-physical diagnosis on this claim."

Review Office acknowledged that the WCB provided psychological supports to the worker after his accident, but observed that the worker's addiction related issues were driven by his personality, situation and choice. It found that the worker's cocaine/alcohol/opiate use disorders were non-compensable in nature.

Review Office noted that the worker's anxiety issues were described in the report on file from the WCB psychiatric consultant dated October 16, 2014. Review Office concluded that any anxiety related disorders, including the worker's panic disorder, were caused by his poor relationship with the WCB and major life stressors, including the worker's legal troubles, dissolution of his marriage, custody challenges, and financial stressors, and were non-compensable.

Review Office acknowledged there was no evidence that the worker had a pre-existing history of psychological or coping challenges prior to his accident. Review Office noted, however, that the worker was a very young man in 1990 and found the evidence insufficient to draw any material conclusions in regard to his history. Review Office concluded that the longstanding non-compensable factors outweighed the compensable ones as the primary causal consideration of what had been described at times as chronic and/or recurrent depression.

Review Office determined that by 2002, based on the opinions by the worker's clinical psychologist and the WCB psychiatric advisor, the worker's psychological condition was almost exclusively the result of lifestyle, family and other non-related issues, and that beyond 2002, the evidence did not support a relationship between a longstanding depressive condition and the workplace accident.

Review Office concluded that the worker's psychological conditions were not related to the original compensable injury. The evidence revealed significant situational events that occurred prior to the reported onset of symptoms in the fall of 2011, specifically a conflict with a direct supervisor and conflict with the WCB, neither of which were compensable.

On October 18, 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.

As the worker's injury occurred in 1990, his claim is governed by the Act as it existed at that time.

In 1990, subsection 4(1) of the Act provided 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.

Subsection 27(1) of the Act provided, in part, that the WCB "…may provide for the injured worker such medical, surgical, and hospital treatment…as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury…"

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was assisted by a union representative, who provided written submissions in advance of the hearing and made a presentation to the panel. The worker responded to questions from his union representative and the panel.

The worker's position was that the WCB is responsible for the worker's psychological conditions as the evidence supports that these conditions are further injuries which are predominantly attributable to his compensable physical injury, and are therefore compensable.

The union representative noted there was no evidence that the worker had any psychological difficulties prior to his June 4, 1990 workplace accident. The evidence on file suggests that life was going well for him and his future was bright. The representative acknowledged that the accident itself was unlikely to have caused the worker significant psychological trauma. In their view, however, the evidence supports that the worker developed a psychological injury as a direct result of the effects of his compensable physical injury.

In his written submission, the union representative provided an exhaustive review and analysis of the medical information on file pertaining to the worker's psychological difficulties following his June 4, 1990 workplace accident. The representative noted that the injury resulted in pain, difficulty with mobility, bowel, bladder and sexual dysfunction. The injury took the worker away from work, took his independence, and had a significant impact on his identity as a worker and a husband. It also caused him to pull away from his social supports because of a sense of humiliation.

The worker was first assessed by a clinical psychologist in April 1992, and diagnosed with a major depression later that year. The representative submitted that the evidence supports that the initial major depressive episode was predominantly attributable to the significant effect the worker's injury had on his physical health and mental well-being, and was accepted as such by the WCB. This initial major depressive episode significantly increased the likelihood of recurrent depression and was responsible for the development of other comorbid personality issues and psychological conditions.

The union representative submitted that the worker had repeated bouts, if not a persistent disturbance, of mental illness in the years that followed. While this was often related, in part, to circumstances of life, in their view it was always still causally connected to the worker's compensable physical injury.

It was submitted that the evidence demonstrates that the state of the worker's mental health has consistently followed his physical and occupational well-being. His first depressive episode was directly tied to his injury, and the most recent psychological deterioration has been caused by a deterioration of his compensable injury and an increase in his pain and disability in 2011.

The union representative submitted that in addition to a right knee condition, which the worker attributed to the initial accident, he has struggled with a right foot injury, which was partially caused by a separate workplace accident, but was also partially accepted in relation to his 1990 claim. It was submitted that despite multiple surgical interventions, the medical evidence suggests this right foot condition will result in a further permanent impairment.

The union representative submitted that the medical evidence supports that the worker's physical condition, over 30 years after his accident, has gradually deteriorated. Despite having previously realized notable improvement in functionality, he has continued to suffer from permanent bowel, bladder and sexual impairments. More recently, his right knee and foot difficulties have significantly impacted his mobility, which has again resulted in a deterioration of his mental health and a relapse of his chronic depression.

The union representative submitted that the worker's chronic depression is a compensable injury because its initial onset occurred as a direct result of his compensable injury. The worker's initial depression was a further injury predominantly attributable to his compensable injury. That initial episode of depression resulted in the worker having a greater risk for recurrence, and with each recurrence of his depression, the likelihood for a further recurrence increases. Each episode of major depression is therefore linked to the previous instance, which has a causal relationship to the worker's initial psychological condition. While non-compensable stressors have undoubtedly added to the worker's psychological struggles, it was submitted that their contribution has been relatively trivial compared to the compensable factors, and would not have been a significant challenge had it not been for the worker's vulnerability due to his previous depression.

Prior to the hearing, the panel had requested and had been provided with a copy of the worker's file from his third party benefit provider. The union representative submitted that the information from the worker's third party benefit plan further supports that the recurrence or resurgence of the worker's depression in 2011 was predominantly attributable to the ongoing and progressive effects of his compensable injury, namely his chronic pain, bowel and bladder dysfunction, and the additional challenges of his right foot injury.

In conclusion, the union representative submitted that the evidence clearly supports that the worker's depression is a consequence of his physical injury. The representative noted that the worker's mental health has not been level throughout. It has waxed and waned over the years, as has his physical condition. In their submission, there is ample evidence to show that the worker's depressive condition, starting in 1990, whether it waxed and waned, improved or deteriorated, has been causally related back to the compensable workplace injury since the date of the accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker's psychological conditions. For the worker's appeal to be successful, the panel must find that the worker's current psychological difficulties are causally related to his June 4, 1990 workplace accident as a further injury subsequent to his compensable injury. The panel is able to make that finding, for the reasons that follow.

The test which would apply in this instance would be the one outlined in paragraph (i) of the Policy, namely whether the cause of the worker's further injury (i.e., his psychological difficulties) is predominantly attributable to the compensable injury.

The panel notes that the focus of the appeal is on the exacerbation of the worker's psychological conditions, and in particular his depression, from 2011 forward. In response to questions from the panel as to the scope of the issue and the relevant conditions on the appeal, the union representative confirmed that the issue in their view dealt with 2011/2012 forward. He noted that the medical evidence suggested that depression is the primary issue, and that was the issue they were addressing. In their view, that issue would include anxiety and panic disorder, not as a separate matter, but more as a complication or component of the depression. The representative noted that any sort of alcohol or drug dependency would be moot, as they were in remission. The WCB would have to look at those conditions if they were to come back again, but in their view, there was no value in adjudicating those issues at this time.

Medical information on file shows that the worker was treated for and diagnosed with depression shortly after his accident. In his letter dated August 31, 1992, the worker's treating clinical psychologist indicated that he had diagnosed the worker in June 1992 "from suffering from major depression with significant concern regarding his suicide risk." The clinical psychologist confirmed, in his letter of January 11, 1993, that the worker "was suffering from a major depression secondary to a variety of psychosocial, activities of daily living, physical, as well as major self-esteem issues related to his compensable injury that dates to June of 1990 when he fell sustaining a sacral nerve lesion resulting in lower limb weakness, substantial pain, as well as bowel, bladder, and sexual dysfunction."

Based on the evidence on the file as well as the submissions and evidence provided prior to and at the hearing, the panel accepts that the worker had an ongoing major depressive disorder in 2011 which continues to the current time, and is causally related to the worker's June 4, 1990 workplace injury.

In arriving at this conclusion, the panel places significant weight on reports of the treating clinical psychologist. In this regard, the panel notes, in particular, that:

• The clinical psychologist wrote on November 23, 2011 that he had started seeing the worker again as of November 10, 2011 "in the context of seeing him many years previously for a chronic Depressive Disorder associated with physical injuries he sustained in the workplace going back to 1990." The psychologist reported that the worker was "dealing with increased depressive disturbance that had multiple causes, including the decline in his physical status as he is reporting to me, issues he has had with the WCB, legal issues, and issues in regards to his workplace. However, in the majority, these relate to the health deterioration he is experiencing that is attributed to his earlier, 1990, workplace injury."

• On January 3, 2012, the psychologist further reported that the worker had "a history of chronic Depressive Disorder on a post-accident basis previously, and at this time his situation has evolved into a moderately severe Major Depressive Episode."

• In a report dated September 18, 2012, the treating psychologist wrote that "an issue that continues to be problematic and distressing for [worker] that leads to humiliation and shame is related to bowel and bladder problems he has. By his report, he has frequent accidents, and this is a major issue he deals with that contributes to his situation as well. Hence, in my view, the 1990 accident continues to play a significant role in his life."

• In a letter dated May 9, 2014, the clinical psychologist wrote that "[worker] has chronic orthopedic and musculoskeletal problems from what I have reviewed in the material I have historically, and from what he informs me, and he has a chronic Depressive Disorder with intermittently exacerbated anxious features and limited episodes of panic…"

• In a letter to the WCB psychiatric consultant dated November 13, 2014, the psychologist commented with respect to the October 15, 2014 call-in examination notes that "I have no disagreement that this man has a Major Depressive Disorder as his most significant diagnosis. He has had episodes of anxiety and panic, and my understanding is that his cocaine and alcohol use has been in sustained remission…He has had chronic depression over the last number of years that I have seen him."

The panel notes that medical and other information on file shows a consistent reference to problems and issues with loss of bowel and bladder control and incontinence, all of which have been accepted as medical conditions related to the claim.

As indicated previously, the panel obtained a copy of the worker's file from his third party benefit provider prior to the hearing. Having reviewed that file, the panel notes that problems and concerns on that file similarly relate to issues arising out of the worker's compensable injury, including his loss of bladder and bowel control and other injuries and effects of his compensable injury. The panel notes that there is a lack of references to external stressors in the contemporary reporting of the worker's issues and concerns in the benefit plan file.

The panel accepts the report of the WCB psychiatric consultant who, after reviewing the worker's file and conducting a call-in examination of the worker on October 15, 2014, concluded that the worker's "Major Depressive Disorder continues to be severe and non-responsive to treatment, and he has worrisome suicidal ideation. This requires more optimal treatment at this time."

The panel further accepts and places significant weight on the WCB psychiatric consultant's comment that: …it is the case that patients with a history of a single major depressive episode are at approximately a 50% risk for having a second; that patients with a second major depressive episode are at approximately a 75% risk for having a third; and that patients with a third major depressive episode are at approximately a 90% risk for having future episodes. Therefore, the presence of a major depressive episode in relation to the compensable injury would be a major risk factor for the development of any subsequent major depressive episodes experienced by [worker].

The panel notes that in an October 15, 2014 memorandum in response to a Healthcare Service Request following the call-in examination, the WCB psychiatric consultant opined that there were factors which were supportive of a relationship between the worker's current psychiatric condition and the 1990 compensable injury and factors which were not supportive of such a relationship, and set out a list of those factors.

Having carefully considered the call-in examination notes and the October 15, 2014 memorandum and factors listed by the WCB psychiatric consultant, the panel is of the view that the factors which support a relationship between the worker's current psychiatric condition and the 1990 compensable injury outweigh those which do not support that relationship.

Based on the foregoing, the panel is satisfied, on a balance of probabilities, that the cause of the worker's current psychological conditions is predominantly attributable to the worker's compensable injury.

As a result, the panel finds, on a balance of probabilities, that the worker's current psychological conditions, and more specifically his depression, including his anxiety and panic disorder, are causally related to his June 4, 1990 workplace accident as a further injury subsequent to his compensable injury. The panel therefore finds that responsibility should be accepted for those conditions.

The worker's appeal 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 30th day of November, 2017