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 further benefits. A hearing was held on December 4, 2017 to consider the worker's appeal.

Issue

Whether or not the worker was entitled to further benefits.

Decision

That the worker is entitled to two additional counselling sessions.

Background

During the course of her employment on October 18, 2014, the worker reported:

I was doing on call. While I was working, 3 shots were fired into the building I was at. I was not injured physically. The bullet came into the room but it did not hit me.

Following receipt of a medical report from a clinical psychologist dated January 15, 2015 and discussion with the worker regarding the event that occurred on October 18, 2014, the worker's claim for stress was accepted as a WCB responsibility based on the diagnosis of Acute Stress Reaction.

In a note to file dated March 27, 2015, a WCB adjudicator noted that she spoke with the worker who advised that she was doing very well and did not have any further appointments booked with the clinical psychologist. The adjudicator advised the worker that her claim would be closed and that she could call the WCB if she had any concerns.

In a report to the WCB dated April 12, 2015, the treating psychologist reported that aspects of the critical incident had been revisited with the worker and that the worker appeared to have stabilized now and was doing well.

On April 20, 2016, the worker spoke with a WCB adjudicator to advise that she was experiencing an increase in difficulties for the last six to eight weeks. She had difficulty sleeping and a sense of anxiety/fear. She reported that several incidents took place at her workplace and there were no panic buttons or security to contact. She was recently called for jury duty which made her think whether it was a similar type of incident. The worker noted that she recently opened the apology letter from the person that committed the incident. She had it for quite some time and did not feel she could open it.

On April 22, 2016, the worker spoke with a second adjudicator and confirmed the information she provided on April 20, 2016. The worker advised that it all started when she was called for jury duty and this is what triggered all her issues. The worker advised that she needed to seek medical attention so she made an appointment to see her psychologist. The worker advised that she had some personal stressors she was dealing with, and her workload was heavy because of a shortage of staff. With all the incidents that occurred at work, she did not feel safe at work.

On June 27, 2016, a WCB psychological medical advisor was asked to review the file information which included a report from the treating psychologist dated June 13, 2016. In answer to questions posed by the WCB adjudicator, the medical advisor stated, in part:

In sum, the worker's diagnosis were longstanding and pre-existing. Her symptoms waxed and waned in response to various life stressors (including work stressors). By reports, her current "escalation" of symptoms was triggered by being called to jury duty and receiving a letter of apology with respect to past violence. The diagnosis of Generalized Anxiety Disorder and Major Depressive Disorder (recurrent) would not be caused by the original workplace incident; she had recovered from her stress reaction to that incident. The level of current symptoms may be related to the jury duty and the letter, and to other life stressors.

The therapy recommended by [treating psychologist] is reasonable and appropriate, but is not in relation to the C.I. (compensable injury). [Psychologist] had been treating [worker] prior to the C.I. and the anxiety and depression had been ongoing. Treatment may assist [worker] to cope with workplace stressors and, as such, would be of assistance to [worker] maintaining functioning at work.

If C.M. (case manager) wishes to fund some brief treatment to assist [worker] to cope with recent work-related stressors, then three to four sessions may be appropriate.

In a decision dated July 28, 2016, the worker was advised of the WCB's position that she had recovered from her stress reaction from the October 18, 2014 incident and that her ongoing difficulties were not related to the incident. As such, the WCB would not authorize financial responsibility for further therapy sessions with the treating psychologist.

On November 1, 2016, the worker's union representative appealed the July 28, 2016 decision to Review Office. On January 19, 2017, the employer's representative submitted that the medical evidence did not seem to support that the recent disability was a recurrence of the October 18, 2014 incident.

On February 2, 2017, Review Office determined that the worker was not entitled to further benefits. Review Office noted that the worker's current life stressors are not related to the October 18, 2014 accident.

Review Office stated that it preferred and accepted the opinion of the WCB psychological advisor dated July 27, 2016. It stated that the opinion of the WCB psychological advisor was in keeping with the worker's treating psychologist who discharged the worker from care in April 2015 with regards to the compensable accident. Review Office concluded that the worker's stress reaction stabilized over a year ago and the reason she required therapy currently, was not related to the claim.

On February 17, 2017, 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.

The worker has an accepted claim for a workplace injury. Specifically her claim is for a psychological injury resulting from a reaction to a traumatic event which occurred on premises provided by the employer. The worker is seeking further medical aid benefits for this injury.

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."

The WCB Board of Directors has adopted Policy 44.120.10, Medical Aid (the "Medical Aid Policy"). The stated purpose of the Medical Aid Policy is to provide a "comprehensive and coordinated approach to delivery of medical-aid services to injured workers" so as to "minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible."

Subsection A.2. of the Medical Aid Policy provides that to "minimize the impact of workers' injuries and to encourage recovery and return to work", the WCB approves the use of many prescribed and recommended treatments.

Subparagraph A.2.a.i) of the Medical Aid Policy goes on to state that:

The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) … when required by reason of a compensable injury, and the treatment … is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.

Worker's Position

The worker participated by teleconference. She was represented by a union representative, who made a presentation on the worker's behalf. The worker responded to questions from her union representative and the panel at the hearing.

The worker's representative advised that the worker disagrees with the case management and Review Office decisions to deny her request for the limited additional psychological counseling sessions. She submitted that the request for these services is directly related to her compensable injury.

The worker provided a detailed description of her work and the events which resulted in the injury. She advised that she is a nurse and that her primary responsibility was in the training area and on occasion she worked at health centers. The incident happened when she was filling in for the weekend at a health center. She said that she had worked at the location previously and was familiar with the set-up. There was a trailer adjacent to the health center which was used as a residence by staff when working at the health center.

She said that in the early evening, while by herself in the residence, she heard gunshots. She checked the residence and found glass on the floor in one of the rooms. She contacted police who attended and confirmed that three shots had been fired at the residence.

The worker's representative advised that as a result of this incident the worker received limited counselling and missed no time from work. She advised that the worker is seeking additional counselling arising from this incident.

The worker's representative advised that the worker contacted the WCB in April of 2016, seeking coverage for additional counselling services. She explained that several stressors caused a recurrence of the worker's symptoms.

The stressors included the receipt of a letter of apology from one of the perpetrators of the shooting incident at the health center. 

The worker's representative stated that:

The WCB policy on recurring effects of injury and illness states, the distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current disability is a consequence of the original compensable injury or illness, or an intervening incident, event or exposure that contributed to the injury. And a recurrence is 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 the current loss of earning capacity. That’s what we need to look at when we’re looking at the request for the additional counseling sessions.

The representative noted that the police provided the worker with a letter from one of the perpetrators. This occurred in the winter of 2015 but the worker did not read the letter until the spring of 2016. She said that the receipt of and reading of the letter is directly related to the compensable injury and that this alone should have facilitated the coverage by the WCB for additional psychological treatment to support the worker.

The worker's representative noted that the worker had received counselling for anxiety and depression before the health center incident. She said that:

We do know that pre-existing conditions are considered by WCB, and there is a policy for pre-existing conditions based -- what they’re going to look at, is on the balance of probabilities, was [worker's] health impacted by a pre-existing condition, or did she suffer a recurrence related to the compensable injury? That’s the question the WCB would be asking.

She submitted that, on the balance of probabilities, the reading of the letter from the perpetrator, and the other events that occurred in the workplace caused a recurrence of symptoms, and that this recurrence is directly related to the compensable injury.

The worker's representative questioned the opinion of the WCB Psychological Advisor who commented that the therapy recommended by the worker's psychologist is reasonable and appropriate, but it’s not in relation to the compensable injury.

The worker's representative submitted that:

The impact of reading the letter from the perpetrator had on [the worker] is directly related to the compensable injury. This alone should have facilitated timely coverage by the WCB for additional psychological treatment to support [the worker]. The other violent incidents at work, even though not directed at her, made [the worker] feel unsafe at work, and she asked for assistance.

Employer's Position

The employer was represented by its Occupational Health and Safety Coordinator. He advised that the employer agrees with the Review Office decision.

The employer representative provided additional information regarding the other events in the workplace which the worker had expressed concern about.

In reply to a question from the panel, the employer representative advised that the employer’s position is not about the interpretation of the medical. He said that the employer leaves that to the professionals. He said that he was speaking to some of the issues around the non-support that may have contributed to the worker's concerns.

Analysis

The issue before the panel is whether the worker is entitled to additional benefits, specifically two additional counselling sessions. For the worker's appeal to be approved the panel must find that the worker required additional benefits as a result of her workplace injury. The panel was able to make this finding.

The panel accepts that the worker has a psychological condition which was exacerbated by a traumatic incident at work in 2014. The panel's focus at the hearing and in this decision, is on whether the worker required additional psychological counselling as a result of the traumatic incident and subsequent related event.

The panel notes the opinion of the treating psychologist provided in answer to questions from the worker's representative.

Q 5.: …On the balance of probabilities, in your professional opinion, could the October 18, 2014 workplace incident enhance [the worker's] vulnerability to an increase in symptoms and decrease her sense of safety at work, when other acts of violence occurred in the workplace?

Answer: Yes. In my professional opinion, the October 18, 2014 workplace incident could enhance [the worker's] vulnerability to an increase in symptoms and could decrease her sense of safety at work.

Q 7.: In your professional opinion, would it be reasonable for [the worker] to experience some of the previous symptoms of acute stress reaction if reminded of the compensable injury?

Answer: Yes it would be reasonable to expect that if reminded of the compensable injury, [the worker] might re-experience such symptoms as high anxiety, irritability and increased sleep disturbance.

The panel finds that the worker required two additional counseling sessions to treat the exacerbation to her psychological condition. The panel accepts the worker's evidence that receipt and reading of the apology from one of the perpetrators involved in the incident caused her to experience symptoms which resulted in a recurrence of her compensable psychological condition.

While the panel notes that the worker and her advocate referred to other events which contributed to the worker's condition, the panel makes no findings on whether these other events also contributed to the worker's need for counselling. The panel finds, on a balance of probabilities, that the worker required the additional counselling as a result of the receipt of the letter.

The panel accepts the opinion of the treating psychologist regarding the worker's need for the additional counselling sessions. The panel is satisfied that the evidence on file establishes, on a balance of probabilities, that further psychological treatment was necessary and appropriate in this instance, to provide relief from the compensable injury.

The panel finds that such treatment is contemplated by subsection 27(1) of the Act and consistent with subparagraph A.2.a.i) of the Medical Aid Policy.

The panel notes that the WCB Psychological Advisor agreed that the worker's psychologist's proposed therapy was reasonable and appropriate, but not in relation to the compensable injury. The panel prefers the opinion of the treating psychologist that the treatment was in relation to the compensable injury.

The panel notes that the worker requested coverage for two additional psychological counselling sessions. 

The panel finds, therefore, that the worker is entitled to the two additional psychological counselling sessions.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 31st day of January, 2018