The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on March 29, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On August 24, 2016, the worker filed a Worker Incident Report for a psychological injury, which the worker described as follows:

Several instances over the past year of being placed in an unsafe work environment, including various witnesses. Also being instructed to have crew members carry out work after they exercised their Right to Refuse to perform unsafe work. Ordered to perform work in an unsafe manner which was in direct violation of Federal Workplace Safety and Health regulations, Example Bill C-45.

In support of the Worker Incident Report, the worker submitted a medical report from a psychologist dated August 23, 2016. The psychologist reported that during an initial session on August 9, 2016, the worker described symptoms consistent with Post-Traumatic Stress Disorder (PTSD) associated with his employment.

On August 26, 2016, the worker advised the WCB that he had been dismissed from his position with the employer on April 2, 2016, reportedly due to a shortage of work. The worker explained that the reason for the delay in filing his claim with the WCB was that he had seen his family doctor in July 2016, and his doctor had recommended he see a psychologist who specialized in PTSD. On September 29, 2016, the WCB was provided with a Doctor's First Report from the worker's family physician relating to the worker's July 8, 2016 appointment, in which the reported diagnosis was "Depression. July 22/16 ? PTSD."

On August 31, 2016, the employer filed an Employer's Accident Report indicating they were unaware of any incident.

On October 27, 2016, the WCB requested that the worker's psychologist provide a report illustrating specifically and fully her findings with respect to the Diagnostic and Statistical Manual of Mental Disorders - 5th Edition (DSM-5) criteria in connection with the diagnosis of PTSD. The psychologist's assessment report dated November 8, 2016 is on file.

The worker's file was reviewed by a WCB psychological advisor, who provided an opinion on November 24, 2016. Based on her review of the file and a conversation with the treating psychologist, the WCB psychological advisor stated that she was "…unable to find support for any diagnosis as related to a workplace injury claim." The WCB psychological advisor also opined that the workplace situations reported by the worker, according to information provided by the worker and his healthcare providers, "…do not meet the threshold Criterion A of the diagnosis Post-Traumatic Stress Disorder." As noted by the WCB psychological advisor:

According to the DSM-5, for the diagnosis of Posttraumatic Stress Disorder to be made, the following threshold criterion (Criterion A) must be met: "Exposure to actual or threatened death, serious injury, or sexual violence…" This exposure can be directly experienced by the individual or can be witnessed as happening to others.

As appears to have been indicated in the psychologist's reports of August 23, 2016 and November 8, 2016, as well as in her phone conversation with me today, [the worker] and his co-workers did not directly experience actual or threatened death, serious injury, or sexual violence at the workplace. Rather, it was reported that [the worker] learned "after the fact" and "later found out" that he had been in a potentially dangerous situation…There is no evidence that death or serious injury was imminent.

Although [the worker], by his report, may have been exposed to potentially dangerous workplace conditions, simple exposure to potentially dangerous workplace conditions or performing work that is associated with some potential risk of physical harm, without presence of actual threat of death and awareness of that threat at the time of its presence, would not meet Criterion A of the diagnostic criteria for Posttraumatic Stress Disorder.

On November 25, 2016, Compensation Services advised the worker that the evidence obtained did not support that he sustained a psychological injury due to a workplace accident and no responsibility would be accepted for his claim. In February 2017, a worker advisor acting on behalf of the worker requested that the WCB reconsider its decision based on further medical evidence, including letters from his treating psychologist dated December 8, 2016 and February 28, 2017 and a report from a psychiatrist dated January 31, 2017.

On April 25, 2017, Compensation Services advised the worker that there was no change to their earlier decision. Compensation Services advised that the new medical information was reviewed by the WCB psychological advisor and a WCB psychiatric advisor, both of whom opined that the information provided did not support that Criterion A for the diagnosis of PTSD was met.

On May 25, 2017, the worker advisor requested reconsideration of the WCB's decision by Review Office.

On July 5, 2017, Review Office determined that the worker's claim was not acceptable. Review Office accepted the opinions of the WCB psychological advisor and the WCB psychiatric advisor that the information did not meet the threshold Criterion A for the diagnosis of PTSD. Review Office found that the evidence did not substantiate that the worker was subjected to a life threatening event, and was unable to find that the worker was exposed to "actual or threatened death" in the course of his employment as required by the DSM-5 for a diagnosis of PTSD. Review Office was therefore unable to relate the PTSD diagnosis or a psychological injury to the worker's employment, and concluded that the worker did not have an accident as defined by The Workers Compensation Act (the "Act").

On October 20, 2017, a worker advocate acting on behalf of 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 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

"Occupational disease" is defined as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to the particular employment; or 

(b.1) that trigger post-traumatic stress disorder; but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event.

"Post-traumatic stress disorder" is defined as follows:

"post-traumatic stress disorder" means Posttraumatic Stress Disorder as that condition is described in the Diagnostic and Statistical Manual of Mental Disorders.

Subsection 4(5.8) of the Act further provides as follows:

Presumption re post-traumatic stress disorder

4(5.8) If a worker 

(a) is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder; and 

(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist; the post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.

The WCB's Board of Directors has established WCB Policy 44.05.30, Adjudication of Psychological Injuries, the purpose of which is to explain the way that claims for psychological injuries, including PTSD, will be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.

Worker's Position

The worker was assisted by a worker advocate, who provided several written submissions in advance of the hearing. The worker participated in the hearing by videoconference. The worker and the worker advocate both made oral presentations at the hearing, and responded to questions from the panel.

The worker’s position was that he has been diagnosed with PTSD which is related to his work with the employer, and his claim should be accepted.

The worker advocate submitted that the worker suffered an acute reaction to a traumatic event. He worked as a foreman in charge of a crew assigned to work in a particular area following a blast. They worked with hydraulic hammers attached to excavators to hammer rock to the desired level. At a crossover or shift change meeting on March 20, 2016, the worker learned that there were live explosives in the area they had been working in for four or five days. It was submitted that the March 20 meeting was the event that caused or triggered the worker’s psychological injury.

It was submitted that the worker suffered an immediate reaction when he found out that he and the crew he was responsible for had been working in an area that had live explosives and they could have suffered serious injury or death. He immediately began to shake and feel sick to his stomach. Than night, he started experiencing intrusive dreams. His symptoms increased once he left the job site on March 29, 2016. After returning home, he continued to have nightmares where workers were blown up by the explosives being detonated. His personality changed and he became a recluse. When he found that he could not handle the situation himself, he sought medical treatment from his family physician and was referred to a psychologist, who diagnosed him with PTSD on August 9, 2016.

The worker advocate noted that the further report from the treating psychologist dated November 18, 2016 confirmed that the worker met the DSM-5 criteria for PTSD. A subsequent report from a psychiatrist dated January 31, 2017 also confirmed the diagnosis of PTSD.

It was submitted that the information on file clearly shows that what transpired at work caused the worker’s PTSD. Unknowingly working in areas with undetonated explosives is an identifiable physical event that resulted in a psychological injury. Interviews and company reports show that the events occurred, and the medical information provided supports that these events were the major cause of the onset of the worker's psychological symptoms.

The worker advocate submitted that the WCB acknowledged the worker may be suffering from a psychological injury and/or PTSD when it issued benefits for counselling, but it did not provide him with wage loss benefits. The worker continues to suffer and has not been able to work since March 29, 2016 due to his PTSD and recurring nightmares.

In his presentation, the worker referred to the previous submissions by the worker advisor dated February 23 and May 25, 2017 and asked that the panel also consider those submissions in our deliberations.

The worker further submitted that his claim is acceptable pursuant to the statutory presumption in subsection 4(5.8) of the Act. He was diagnosed with PTSD after January 2016, and under the presumption clause it is to be presumed that his PTSD arose out of the course of his employment, unless the contrary has been proven. He submitted that the WCB has never attempted to prove that his PTSD arose out of other employment in his past, and could never do so.

The worker referred to other information which had been provided, including a video of a blast, which he submitted was further evidence of unsafe work conditions and what he referred to as a “production over safety atmosphere.” In response to a question from the panel, the worker acknowledged that he had no direct involvement with the explosion in the video.

The worker emphasized that his psychologist and psychiatrist had both diagnosed him with PTSD and related it to his employment. In response to questions from the panel, the worker noted that there was no confusion on the part of his medical advisors with respect to the diagnosis of PTSD and Criterion A. Both of his medical advisors arrived at their diagnosis after in-depth and comprehensive interviews and assessments, and provided very detailed reports. He said they had told him specifically that what occurred, namely becoming aware after the fact that he and his crew were working in an area where there were undetonated explosives, constituted a traumatic event. The worker referred to the credentials of his advisors and stated that they were “bar setting people in this area.” He noted that he had never even spoken to the WCB medical advisors, and did not know how they could question or ignore his medical practitioners' reports.

The worker noted that he had been accepted for EI and CPP benefits based on the reports from his treating psychologist and psychiatrist and his PTSD diagnosis.

In closing, the worker stated that he had "lived a life of hell since March 20th," with what he had been subjected to and had to live with every day. This was a direct result of his PTSD and finding that he and members of his crew for whom he was responsible could have been killed doing the work they were required to do by the employer.

Employer's Position

The employer was represented by its WCB case manager, who provided two written submissions in advance of the hearing and made an oral presentation to the panel.

The employer's position was that the worker's diagnosis of stress/PTSD was not work-related under the Act and WCB Policy, as no event or accident occurred to support such a diagnosis, and the claim should remain denied.

The employer's representative noted that the worker did not report any workplace injury or incident to the employer prior to being laid off for shortage of work on April 2, 2016 or subsequently. He did not seek medical attention until July 2016, which was three months after being laid off. It was only after the worker filed a claim on August 24, 2016 that the employer received notice from the WCB that the worker had made an injury/stress claim.

It was submitted that the worker's daily notes for the specified dates did not indicate that there was any issue. In a log book note, he indicated that it had been brought to his attention at a meeting that there were "live" loaded holes in the area where his crew was hammering that never went off. The employer's representative stated that the worker himself was not actively working in that area, but would drive into the area in his truck. She noted that the employer has safe work procedures to deal with misfires, which were followed and there were no explosions due to misfires.

With respect to a second incident which the worker had raised in the course of his claim concerning an excavator being improperly anchored to a dozer, the employer's representative acknowledged that the worker had safety concerns. She noted that it was part of the worker's duties as a foreman to identify such concerns and the area log book indicates that these safety concerns were addressed and work continued.

The employer's representative commented that as at any construction site, there were many hazards and safety concerns, which is why there are policies and procedures in place to help mitigate and prevent accidents and injuries. It was submitted that the employer followed all procedures and reporting requirements, and Workplace Safety and Health found no fault with the employer with regard to any handling of explosives or blasting procedures.

The employer's representative stated that from a medical standpoint, they recognize that the worker has symptoms of PTSD. In their view, however, as per the WCB psychological advisor's opinion, the information does not support that the PTSD diagnosis is related to a workplace injury.

Analysis

The issue before the panel is claim acceptability. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of, and in the course of, his employment. The panel is unable to make that finding, for the reasons that follow.

The worker’s position is that he suffers from PTSD which is related to his employment with the employer.

The worker and his advocate confirmed at the hearing that the only medical diagnosis being advanced was that of PTSD, based on the DSM-5, and that no other diagnosis was being proposed or at issue in this claim.

Based on our review of all of the information on file and as presented at the hearing, the submissions of the parties, and the relevant provisions of the Act and WCB policy, the panel is unable to find that the diagnosis of PTSD as related to a workplace injury has been satisfied. In particular, the panel is unable to find that Criterion A of the DSM-5 is satisfied in the circumstances of this case.

The panel notes that Criterion A of the DSM-5 specifies that the worker must have been exposed to “...actual or threatened death, serious injury or sexual violence...” Under subsections A.1 and A.2., the worker must directly experience the traumatic event(s) or witness the event(s) in person.

In response to questions from the panel, the worker acknowledged that he was not directly exposed to a blast, that none of his friends or co-workers were hurt in a blast, and that what he was describing to his caregivers was something that could have happened. The worker went on to state:

…that is correct, but what I’m saying once again, for me that was traumatic because my years, almost 30 years in the construction industry, heavy civil earthworks...and working around explosives, knowledge of it and through friends, et cetera, and relatives who are blasters, knowing that we were there, that is traumatic. And like I said, what is traumatic to me doesn’t have to be traumatic to an impartial observer...to cause or bring on the onset of PTSD...

In terms of what was traumatic to him, the worker responded:

When I found out that we had been working there and it’s just like we had been walking around landmines and could have had the same effect, except we had an excavator with a hydraulic hammer on the front of it and, like I say, my knowledge of explosives, et cetera, is when I found that out it just traumatized me there March 20th, that morning in our crossover meeting...to know that we could have been seriously hurt or killed.

The panel accepts the worker's comment that what is traumatic for one individual is not necessarily traumatic for another. The panel notes, however, that the issue is not whether the event was traumatic but whether there was an event. In this regard, the panel finds that the worker's learning after the fact of the possibility that he or others could have been injured was not an event as contemplated under the DSM-5.

The panel places significant weight on the opinion of the WCB psychological advisor who opined on November 24, 2016, that "simple exposure to potentially dangerous workplace conditions or performing work that is associated with some potential risk of physical harm, without presence of actual threat of death and awareness of that threat at the time of its presence, would not meet Criterion A of the diagnostic criteria for Posttraumatic Stress Disorder."

The panel notes that after further reports were received from the treating psychologist and the worker's psychiatrist, the reports were also reviewed by the WCB psychological advisor who then affirmed her previous opinion. The worker's file was also sent to a WCB psychiatric advisor who, following her review of the entire file, including the most recent reports from the worker's treatment providers, opined as follows:

With regard to a possible psychiatric diagnosis of PTSD, the writer reviewed the workplace event and the DSM-5 criteria for PTSD. The information on file indicates that [the worker] was unknowingly working in an area of some explosives that had not been detonated. After later learning about the undetonated explosives, he then reflected on the possibility of having been injured. He was not exposed to actual or threatened death, serious injury or sexual violence. The workplace incident does not meet Criterion A of PTSD.

There is another workplace event described wherein [the worker] secured an excavator. This did not involve actual or threatened death, serious injury or sexual violence. [The worker] has reflected on the possibility that something could have happened, and he could have been injured. In the activity of securing the excavator, there was no actual event that led to an actual or threatened death, serious injury or sexual violence. This workplace event does not meet Criterion A of PTSD.

The writer agrees with the conclusions of the WCB Psychologist. There is no psychiatric diagnosis materially related to the workplace.

The panel accepts the WCB medical advisors’ interpretation of Criterion A of the DSM-5. The panel finds that interpretation to be consistent with our view of the required exposure and our understanding of how PTSD should be interpreted as related to a traumatic event. Based on the evidence which is before us, the panel finds that the worker was not exposed to a traumatic event or to actual or threatened death which was materially related to the workplace, and that Criterion A of the DSM-5 has therefore not been met.

The panel notes that the worker has argued that his claim is acceptable pursuant to the statutory presumption in subsection 4(5.8) of the Act. For the presumption to apply, the Act requires that the worker be exposed to a traumatic event or events specified as a trigger for PTSD under the DSM-5. Given our finding that there was no traumatic event, the presumption in subsection 4(5.8) does not come into play or apply in this case.

The panel further notes that the evidence shows there was considerable focus by the worker on safety issues and employment or labour issues, which are excluded under the Act. In the course of the hearing, the worker made numerous references to what he considered to be violations of provincial and federal codes and how lax things were at the worksite where there was a “production over safety atmosphere.” The worker agreed that the bar in terms of safety was not as high at the site as he was accustomed to and that he had a lot of anger, but added that it was justified anger with what was going on and was not part of his PTSD. The panel notes that information on file also indicates that in her conversation with the WCB psychological advisor, the treating psychologist stated that it was difficult to differentiate between the worker's distress about workplace issues prior to his being laid off and his reported symptoms.

The panel acknowledges that the worker experienced some emotional reactions due to employment-related events. The panel is unable to find, however, that the worker sustained a work-related compensable psychological injury to establish an accident as defined by the Act.

Based on the foregoing, the panel finds that the worker did not sustain an injury by accident arising out of, or in the course of, his employment. The worker's claim is therefore not acceptable.

The worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of May, 2018