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 wage loss and medical aid benefits. A hearing was held on January 24, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits.

Decision

The worker is entitled to further wage loss and medical aid benefits.

Background

The worker has an accepted claim for stress arising out of two incidents that occurred at work in July 2013.

The worker was assessed by a psychologist on August 28, 2013, who reported that:

Based on this intake interview assessment, it is apparent that [the worker] meets the DSM-5 diagnostic criteria for Posttraumatic Stress Disorder. Her symptoms are currently interfering with her ability to function at work, at home, and in social situations.

The psychologist went on to state:

Given [the worker's] diagnosis of Posttraumatic Stress Disorder in addition to her decreased levels of functioning, we recommended a gradual return to work. We recommended that [the worker] complete the three pre-authorized therapy sessions prior to returning to work. After completing the three therapy sessions, we will re-assess [the worker's] symptoms and level of functioning. If [the worker] were to return to work in the absence of a sufficient number of therapy sessions or in an expedited fashion, this could interfere with her mental health and well-being and hinder her performance at work.

The file was reviewed by a WCB psychological consultant on September 17, 2013, who agreed with the diagnosis of Post-Traumatic Stress Disorder (PTSD) and noted that with appropriate treatment, the natural progression for the worker's condition should be a gradual decrease in symptoms and ability to "…approach stimuli and situations previously avoided."

In a report dated September 26, 2013, the treating psychologist recommended that the worker begin a gradual return to work program in order to help with her recovery, but not at the facility where the incident occurred. It was suggested that the worker could attempt a trial return to work at a desk job for four hours a day, three days a week, at satellite offices of the facility. On November 21, 2013, the treating psychologist noted the worker's success with the graduated return to work. A further graduated return to work program was recommended at the worker's original facility in an administrative position, followed by a gradual return to her regular work duties.

On April 25, 2014, the WCB wrote to the worker and advised:

Information on file indicates that you have returned to work, working your regular duties and not missing any time from work due to your injury. Medical information from your appointment on April 17, 2014, with [the treating psychologist] revealed you have made great gains with your in clinic sessions and you have functionally recovered from the workplace event. Given this, I will close your claim at this time.

On October 21, 2016, the worker contacted the WCB to advise that she had a recurrence of symptoms after being startled when she opened a door and there was a person on the other side. The worker advised the WCB that she had attended at the psychologist's office for treatment on October 20, 2016. In a report dated October 24, 2016, the treating psychologist noted:

Based on the findings of our interview, behavioural observations, and questionnaires, it is evident that [the worker] still meets the DSM-5 diagnostic criteria for Post Traumatic Stress Disorder (PTSD).

The psychologist recommended that the worker attend eight therapy sessions to assist with alleviating her symptoms of PTSD.

A WCB psychological consultant reviewed the file on December 22, 2016, and in response to questions regarding the worker's current presentation in relation to the workplace injury, opined that:

A material association between [the worker's] current symptoms and the compensable injury of July 2013 is not substantiated:

- [The worker] had recovered from the diagnosis of Posttraumatic Stress Disorder as of April 17, 2014, based on [the treating psychologist's and associate's] report of April 23, 2014. 

- [The worker] returned to her former employment and hours, and to working with [clients], as of April 17, 2014.

- She chose to quit her position with her accident employer in January, 2015 and reportedly, (according to an October 24 report of [the treating psychologist's associate]) began working seven months later as a server in a restaurant. 

- There is no evidence of any continuing symptoms resulting from the C.I. [compensable injury] subsequent to April 17, 2014 and there has been no continuity of care to document any recurrence of difficulties following the reported recovery as of April 17, 2014. 

- [The worker] reportedly did not seek psychological assistance again until October 20, 2016. According to a report of October 24, 2016, [the worker] reported to [the psychologist's associate] that very severe symptoms and dysfunction have resulted from her being startled because her boyfriend "happened to be on the other side of a door when she opened it." 

- This mechanism of recurrence of psychological injury over two years post-recovery, with no exposure to trauma and with exposure only to being startled by someone unexpectedly being behind a door, would not be supported by evidence.

On December 29, 2016, the worker was advised by the WCB that her claim for a recurrence of her July 2013 workplace injury was not accepted, based on the report of the WCB psychological consultant. The WCB received new medical information from the worker's physician on March 27, 2017, and from the worker's psychologist on March 30, 2017. On March 29, 2017 and on April 5, 2017, the worker was advised that there was no change to the WCB's decision. On April 26, 2017, a worker advisor acting on behalf of the worker requested reconsideration of the decision by the Review Office.

In its decision dated June 15, 2017, Review Office determined that there was no further entitlement to benefits, as the worker had recovered from the effects of her compensable psychological injury. In making this determination, Review Office relied on the opinion of the WCB psychological advisor that the evidence did not support a recurrence of the worker's psychological injury where there was no exposure to trauma and the only exposure was being startled by someone unexpectedly being behind a door.

On July 26, 2017, the worker advisor appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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.

Worker's Position

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

The worker's position was that she was entitled to further benefits on the basis that her compensable injury recurred following her return to full work duties in 2014. Further, or in any event, the worker experienced a re-triggering incident in August 2016 which caused new and intense symptoms and exacerbated her PTSD.

The worker advisor submitted that substantial weight ought to be attached to the opinions of the treating psychologist, and in particular, to her letter of March 30, 2017, which contained a significant amount of detail and rebutted each of the WCB psychological consultant's December 2016 comments.

The worker advisor noted that the WCB psychological consultant's opinion appeared to have been guided by the lack of third party corroboration of her ongoing difficulties. It was submitted that reliance on that point appeared inconsistent with WCB Policy No. 44.05.30, Adjudication of Psychological Injuries, which provides that "Sometimes a worker experiences poor psychological health after years on the job and numerous accidents…Although symptoms of a psychological injury may not be recognized until long after the event, the injury has often occurred earlier in time."

The worker advisor noted that the worker worked in an institutional setting, where staff were expected to show strength, competence and confidence at all times, and anything less was considered a sign of weakness and unreliability. It was submitted that the culture of the workplace reasonably explained why the worker did not seek help from others for some time.

It was submitted that neither Policy 44.05.30 nor DSM-5, excerpts of which had been provided in advance of the hearing, identify a time line for PTSD to reoccur, and that DSM-5 lists the avoidance of stimuli associated with traumatic events as being common with PTSD. The worker advisor noted that this was consistent with the treating psychologist's reports that the worker had been actively avoiding her PTSD symptoms as well as avoiding thinking and talking about her experiences.

The worker advisor submitted that historical details provided by the worker indicated that she was exposed to further trauma, including the occurrence of a traumatic workplace incident in December 2014, shortly after which she resigned. In any event, DSM-5 indicates that individuals with PTSD can be very reactive to unexpected stimuli, and while the August 2016 incident alone may have been minor in nature, it was nevertheless a triggering event for the worker.

It was submitted that the DSM-5 indicates that PTSD exists on a spectrum, and that just because a person no longer meets the full criteria for PTSD, it does not mean that they have fully recovered. The treating psychologist's April 2014 discharge report indicated that the worker did not meet all of the criteria for the full threshold diagnosis of PTSD, not that she had fully recovered. The worker was doing better at that time, but there was a lingering vulnerability; she was still injured and that was why the incident in 2016, where she was startled, had such a significant impact and was essentially the culminating incident which resulted in her seeking help.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's position was that the worker's medical issues after April 2014 were not related to her 2013 compensable injury, and the worker was not entitled to further wage loss or medical aid benefits.

The employer's representative noted that during the course of the initial claim, the worker attended for multiple treatment sessions with the treating psychologist. Reports on file show slow progression towards the worker eventually coming back to work. The treating psychologist recommended a gradual return to work, and the worker and the psychologist set out a plan which was reviewed by the WCB psychological consultant, and all were in agreement. A note to file in April 2014 states that the worker had been working full-time hours and was handling the duties and position well.

The representative submitted that the April 23, 2014 report from the treating psychologist should be given significant weight. The most significant portion of the report indicated that on clinical interview and observation, the worker did not meet the DSM-5 criteria for PTSD. The worker's own psychologist was therefore saying that the worker no longer met the criteria for PTSD and recommended, given her reported success and improved symptoms, that she proceed to full return to work status and her file be closed. In the employer's view, this indicated that the worker had recovered from her compensable injury and there was no basis for further treatment.

The representative commented that based on this review by the treating psychologist, the WCB advised that the worker had functionally recovered from the workplace event and they would be closing her file. The representative emphasized that the WCB also advised the worker that if she was having ongoing difficulties related to her compensable injury, she should call the WCB as soon as possible, and if they did not hear from her, they would assume she was managing without difficulty.

It was noted that nothing further was submitted on the claim after the end of April 2014, and by all accounts the worker was managing well. The worker then chose to resign her position with the employer effective January 5, 2015. No reason was given for her resignation.

It was not until October 21, 2016, some 22 months after she had resigned, that the worker contacted the WCB and advised she was having further problems. In speaking with the WCB, the worker indicated that a trigger occurred when she was walking through a door in August 2016 and was startled. She admitted that she had not sought treatment for any psychological problem since she was discharged from care, which would have been over 30 months earlier.

The representative stated that on October 24, 2016, the treating psychologist reported that the worker believed her current symptoms were directly related to the long-term effects of being physically threatened, and suggested she had PTSD again. The employer disagreed with that diagnosis, as the evidence showed she had recovered from the PTSD in April 2014, and in their view, the event that allegedly triggered her symptoms would not meet the threshold criteria under the DSM-5 to reinstate the diagnosis of PTSD.

The representative relied on the WCB psychological consultant's December 22, 2016 opinion as supporting the employer's position. He challenged the various explanations provided by the treating psychologist in her further report dated March 30, 2017, and noted that they were based solely on information reported by the worker herself.

The representative argued that the trigger in this instance would be opening the door, which would be a new and separate incident. The representative submitted that the situation should be evaluated under WCB Policy No. 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, and in particular, as to whether the cause of the further injury "is predominantly attributable to the compensable injury." In the employer's view, any adverse reaction the worker experienced in August 2016 arose out of the incident where she opened the door and had nothing to do with the compensable injury. As of April 2014, the diagnostic criteria for PTSD were not met and the event that may have potentially triggered the worker's condition in 2016 would not have met the threshold criteria for such a diagnosis. Although the treating psychologist indicated that everything began to slide or decline at this point, any such exacerbation would have been as a result of this event and was not predominantly attributable to the compensable injury.

Analysis

The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits. For the worker's appeal to be successful, the panel must find that the worker suffered a further loss of earning capacity and/or further need for medical aid as a result of her July 2013 compensable injury. For the reasons that follow, the panel is able to make that finding.

The panel notes that the initial incident on July 24, 2013 involved a situation where the worker was physically intimidated and threatened by a client. Following treatment and a gradual return to work program, the worker returned to her full-time duties in late April 2014.

Based on the evidence which is before us, the panel is satisfied that the worker had not fully recovered from her injury when she returned to work. The panel notes that the recommendation from the April 23, 2014 report from the treating psychologist states that: "In light of [the worker's] reported success in her gradual return to work and her improved symptoms of PTSD, we recommend that she proceed to full return to work status." While the report indicates that the worker had "made tremendous gains through therapy" and states that "it was evident that the worker does not meet the criteria for DSM-5 Posttraumatic Stress Disorder", it does not state that the worker had fully recovered from her compensable injury.

Information on file and at the hearing indicates that the worker was employed in an extremely tough and aggressive environment, where she worked with a predominantly male workforce and clients. The panel accepts the description of the culture of the workplace as being one where frontline staff were expected to exhibit strength, competence and confidence at all times, and where anything less was considered a sign of weakness and unreliability. The panel further notes that at the time of the original incidents, the worker was assigned to the area with the more difficult and challenging clients.

The worker's evidence at the hearing indicates that she continued to have difficulties after her full return to work, but "felt that she should be able to work through those difficulties." The worker stated that:

I felt that I just had to persevere through it and deal with it and keep going, that maybe that symptom would pass and it was just…something that would come and go.

I can look at it now and think that I was definitely in denial of my symptoms. I wanted to do well at my job. I wanted to be working. I wanted to exude strength.

I wanted to be strong, because that's what you do, you're supposed to show that, lead by example in the job that I do.

So as things kind of deteriorated for me, or in my mind I thought, gee, I can do this, I can still work through these symptoms, that I didn't need help and I thought I was doing okay, and the choice of eventually quitting my job became overwhelming.

The worker ultimately resigned from her employment with the employer shortly after a particularly violent incident which occurred at the workplace in December 2014. The incident was described in the March 30, 2017 letter from the treating psychologist as follows:

Although [the worker] was not working during this event, a coworker reported that he was afraid for his life. [The worker] was alarmed by his fear, noting that he was much larger and stronger than she was and questioned her ability to stay safe should a similar event occur while she was on shift. Following this event, [the worker] gave her two weeks notice and quit her job in late December 2014 as she felt she could no longer cope with the stress, anxiety, and symptom of PTSD. Her last day working at [workplace] was January 5th 2015…

The worker specifically stated at the hearing that after the December 2014 incident, she basically "decided I didn't want to die in my job, and I quit." The panel accepts the worker's evidence in this regard. In response to a question at the hearing, the worker further stated that she told her co-workers at the time that she was leaving because she had another job.

The panel would note that while recognizing that the worker continued to experience symptoms and difficulties at this time, we are nevertheless of the view that the worker's resignation from her employment was not itself directly related to her compensable injury. Rather, as she stated, it was based on concerns for her safety and that she "didn't want to die."

The worker subsequently went to work at a restaurant. The panel is satisfied, based on the evidence before us, that the worker continued to experience anxiety and difficulties while working at the restaurant. She noted, for example, that part of the original incident and one of the triggers for her was uniforms, and she would experience stress and anxiety when former co-workers would come to the restaurant in uniform.

At the hearing, the worker stated that when the incident occurred in August 2016, with opening the door and there being someone behind it, she was startled and had a panic attack. She noted that she didn't immediately know that was a trigger, but that:

…I saw myself declining and becoming more anxious, and things becoming more stressful, even at work. And then I started to get fearful of…I'm going to be robbed. I can't trust people.

What if [a former client] comes in here? Like, a lot of cognitive things were happening. And I would use my toolbox and my cognitive thinking, my breathing, my meditation to work on myself.

Do my self-care and get through. And it wasn't until things got really bad for me, and I just felt I couldn't be there anymore, I couldn't work.

I couldn't handle the simple stress of maybe, for an example, going in, in the morning and opening the door and…starting my day. That to me felt super stressful, and that was not the norm.

In the panel's view, the worker's reaction to this incident in August 2016 is consistent with and representative of the worker's ongoing difficulties and symptomatology as a result of her compensable injury.

The panel places significant weight on the March 30, 2017 report from the treating psychologist, who opined:

In summation, even though it took [the worker] a considerable length of time to access psychological services, she has gradually experienced symptom intensification since being reintroduced to the triggering environment of working at [workplace]. This symptom recurrence and intensification in response to repeated triggers is consistent with the diagnosis of PTSD as related to the compensable injury in question. We therefore believe that the symptoms that [the worker] is currently experiencing are directly related to the previous mental health injury of being physically threatened by [a client] that arose out of and in the course of her employment at [workplace].

The panel accepts the treating psychologist's opinion in this regard.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had not recovered from the initial compensable injury and continued to suffer from the effects of her compensable injury on an ongoing basis after April 2014. The panel therefore finds that the worker suffered a further loss of earning capacity and further need for medical aid as a result of her July 2013 compensable injury.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of March, 2018