Decision #99/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable and he is not entitled to benefits after September 1, 2017. A hearing was held on May 31, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable;
Whether or not the worker is entitled to benefits after September 1, 2017.
The claim is acceptable;
The worker is entitled to benefits after September 1, 2017.
The worker filed a Worker Incident Report with the WCB on January 4, 2016 reporting a psychological injury as a result of his employment. The worker provided a letter dated December 30, 2015 and listed the events which explained how he became injured and unable to work since November 10, 2015.
In the worker's psychologist's report of February 18, 2016, the worker was diagnosed with "symptoms associated with post traumatic stress disorder." The worker's psychologist noted that the worker "did not appear ready to return to work."
On March 9, 2016, the WCB advised the worker that his claim was accepted. Payment of wage loss and other benefits commenced.
At the request of the WCB, a WCB psychiatric consultant arranged a call-in examination of the worker on June 30, 2016. The WCB psychiatric consultant provided the opinion that the worker met the DSM-V criteria for post traumatic stress disorder based on the following:
Criterion A - He witnessed a described suicide attempt at his workplace.
1) He continues to have recurrent involuntary and intrusive memories of the event.
2) He has recurrent distressing dreams related to the event.
3) He has intense psychological and physiological reactions to external cues that symbolize the event.
Criterion C - He has persistent avoidance of stimuli associated with the event.
1) Avoiding external reminders (places, situations) that arouse distressing memories and feeling about the event.
1) Inability to remember an important aspect of the traumatic event - specific details.
2) Persistent negative emotional state - fear and horror.
Criterion E - Alterations in arousal and reactivity.
1) Irritable behavior and angry out bursts.
3) Problems with concentration - not demonstrated on examination.
4) Sleep disturbance.
Criterion F - Duration greater than one month.
Criterion G - Clinically significant distress and impairment not attributable to the physiological effects of a substance or other medical condition.
The WCB psychiatric consultant also noted that the worker was not currently actively involved in treatment and recommended the worker participate in therapy.
On December 28, 2016, the WCB requested information from the worker's healthcare providers regarding the worker's ability to return-to-work and whether the worker would require restrictions. The worker's family doctor advised the WCB on January 4, 2017 that the worker could return to work away from his previous environment but that he was not ready for employment at that time. The worker's treating psychologist advised the WCB on January 16, 2017 that he felt the worker would be "best served in an alternative employment position" when the worker was ready to return to work.
The WCB continued to request and gather information regarding the worker's ability to return to work including information from the employer received on April 21, 2017. The information also included a number of incident reports regarding the original incident as well as a commentary from an assistant supervisor regarding the worker's exposure to the events of that day.
Based on this new information, the WCB requested that a WCB psychiatric consultant review the worker's file. On April 22, 2017, the WCB psychiatric consultant reversed the previous opinion of June 30, 2016 and opined that based on the new information provided by the employer, the worker did not meet Criterion A of the diagnostic criteria for PTSD. The worker therefore did not have a psychiatric disorder that was medically accounted for by the workplace incidents and, as such, there would be no compensable workplace restrictions.
On July 14, 2017, the worker was advised by WCB that his claim had been reviewed and as a result of the review, his entitlement to benefits would end effective September 1, 2017. The worker's representative requested reconsideration of the WCB's decision to end the worker's benefits on August 16, 2017 to Review Office as it was felt the worker continued to suffer psychological symptoms as a result of his exposure to trauma at his workplace.
On October 10, 2017, the employer responded to the worker's representative submission and also requested reconsideration by Review Office of WCB's earlier decision to accept the worker's claim. The worker's representative provided a submission in response to the employer's request for reconsideration on October 16, 2017.
On November 10, 2017, Review Office advised the worker that his claim was not acceptable and he was not entitled to further benefits. Review Office relied on the WCB psychiatric consultant's April 22, 2017 opinion that the worker did not meet the criteria for a diagnosis of post traumatic stress disorder. Review Office acknowledged the worker's place of employment could be considered a stressful one but chose to give more weight to the employer's submitted records than to the worker's description of events. Review Office was unable to conclude that the worker was "treated in a manner that can be concluded to include malice or bad faith on the part of his employer." As such, Review Office determined that the worker's condition was likely a result of stress and possibly burnout and did not meet the definition of an accident under the Act.
The worker's representative filed an application with the Appeal Commission on November 14, 2017. An oral hearing was held May 31, 2018.
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.
"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,
(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 panel notes that subsection 4(5.8) became effective on proclamation, which occurred on January 1, 2016.
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.
The worker was represented at the hearing by a union representative who relied upon a written submission that had been submitted prior to the hearing. The representative also made a presentation at the hearing and asked questions of the worker. Their position was that the worker's claim should be accepted as a psychological injury. The worker has PTSD which developed from a traumatic event while he was performing his job duties as a correctional officer. He is therefore entitled to additional benefits including wage loss benefits and medical aid benefits for his ongoing issues.
The representative noted the WCB originally accepted the worker's claim for a psychological injury and that the employer has fought that position, misrepresenting the worker's presence at the incident and providing various statements, all intended to undermine the worker's credibility. In particular, the employer was relying on information and interpretation of evidence from the assistant superintendent who was not present at the time of the incident.
The representative submitted that the panel should rely instead on the original incident reports, rather than the evidence of the assistant supervisor. The representative noted that the worker clearly stated at the outset, in an incident report prepared at work following the incident, that he was called to the area immediately following the suicide attempt. He was present for the immediate aftermath of the incident. The worker never suggested at any time that he witnessed the actual event. His reaction was not to the incident but to its aftermath - seeing the individual bleeding from both wrists, with large amounts of blood on his body and clothes.
The representative noted that the claim had been accepted originally for PTSD with the support of a WCB psychiatrist after a call-in examination. However, after the claim was accepted, the assistant supervisor provided an interpretation of the events as well as incident statements suggesting that the worker was only incidentally involved in the attempted suicide and therefore did not have enough exposure to the trauma. This led the WCB psychiatrist to reverse her position and indicate that the worker did not meet Criterion A of the DSM-V PTSD diagnostic protocol.
The representative suggested that the WCB psychiatrist took a too narrow interpretation of Criterion A, in focusing only on whether the worker was present to witness the actual suicide attempt rather than considering as well the immediate aftermath of the attempt. He noted that co-worker incident reports also describe blood flowing from both wrists and on his hands and clothes, and that the individual was shaking, trembling and bleeding from both wrists. Other reports confirmed the gravity of the situation. A 911 call was made for an ambulance, with a comment that the individual "may not have made it."
The representative noted that the fact that the injury was later determined to only require one or two stitches does not diminish the fact that at face value, what the worker saw could easily be interpreted as a serious injury. He submitted that Criterion A only requires apprehension of a serious injury, and that the worker was in fact exposed to a serious injury leading to his psychological injury.
The representative noted that Criterion A provides for "Exposure to actual or threatened death, serious injury…" including witnessing, in person, the events as it occurred to others. The worker did in fact observe exactly that, a graphically disturbing incident. He relies on a recent psychiatrist assessment, dated May 14, 2018, which found, with these facts, that Criterion A had been met. This report had been prepared after a referral initiated by the worker's union.
The worker responded to questions from the representative and described his work history with the employer. He noted that this incident took place within the first three months on the job, and it was a very new type of experience for him. He then described his workplace environment over the next three years, including a deteriorating work environment where he felt he was being bullied and started to feel increasing anxiety about going to work. He was off work August to November 2014 with panic attacks after participating in an independent review of the facility but was okay when he returned to work in November. He then had an onset of migraine headaches in June 2015. He first became aware that something was wrong psychologically in those last few months before leaving work in November 2015. He described an incident at home where his child mimicked a cutting action and it triggered him. He tried to keep his thoughts suppressed, but they became severe, to the point that he dreaded his days off because they would lead to him having to go back to work again.
The worker then described his current psychological condition and his ongoing treatments. He feels that he has regressed.
The employer was represented by its Workers Compensation Coordinator ("coordinator"). Also present for the employer was the assistant superintendent from the facility where the worker had been employed.
The coordinator stated that Review Office had made the correct decision. He noted that the Worker Incident Report noted a combination of incidents over four years, referencing not only the suicide attempt, but also labour relations issues associated with assignment to dorm duties, keys being taken away from the worker (leaving him locked inside), claustrophobia, panic attacks, safety being compromised, workplace bullying and other procedural issues. He suggested that with the delay in acute psychological symptoms until late 2015, the worker's psychological issues are more likely to be from non-compensable labour relations issues than from the January 1, 2012 incident.
The coordinator also submitted that the incident itself was not that serious and did not meet the requirements of Criterion A for a PTSD diagnosis. In support of that position, he posed a series of questions to the assistant superintendent who advised that he first came to the facility to that position in March 2012, two months after the workplace incident that is the subject of this appeal. He reviewed the incident reports and provided his interpretation of those reports. His position was that the worker was far away from the incident when it occurred; the worker was one of the last to the scene; he was posted outside the medical unit when the individual was being attended to after the incident; the worker had seen the individual inside the medical unit only after medical treatment had been provided; and the medical information later confirmed that the injury only required one or two stitches which meant that the wounds were superficial and thus not a serious or traumatic event.
The coordinator noted that many things can cause anxiety at the workplace that are not necessarily traumatic, including dealing with stress and burnout. These do not qualify as an accident under the Act and WCB policies. As for the diagnosis of PTSD, he asked the panel to rely on the second opinion by the WCB psychiatrist dated April 22, 2017, indicating that diagnostic Criterion A for PTSD was not met. He relied on the evidence of the assistant supervisor, noting that the worker only saw the aftermath of the incident, and even then he only saw superficial wounds which would not reasonably be considered to be a traumatic event.
For the worker to succeed in this appeal, the panel must find that the worker suffered an injury as a result of an accident arising out of and in the course of his employment. The panel was able to make this decision.
The panel notes, at the outset, that this claim had originally been accepted for PTSD, based on a strong concurrence of medical opinions between the worker's treating health care providers and later confirmed by the WCB psychiatrist advisor after a call in examination on June 30, 2016.
Of particular note is that this diagnosis was confirmed, even with extensive documentation on file and full disclosures during the various psychiatric examinations of the worker's long history of a variety of workplace stresses. Even with those other (non-compensable) factors, all the medical opinions supported that the January 1, 2012 workplace incident was the trigger event for PTSD which finally manifested itself in late 2015, with resultant time loss and medical treatment. In particular, there was agreement that all the formal DSM-V criteria for a diagnosis of PTSD had been met.
What changed well after the claim was accepted was the employer providing additional information that challenged the original exposures by the worker to a traumatic event. This opened up a new reconsideration of whether Criterion A for PTSD had been satisfied. This information was provided to the WCB in an email dated April 21, 2017 which added a number of incident reports from the worker and co-workers, and as well, a series of responses to posed questions, from the assistant supervisor. The relevant new evidence or assertions were that:
• The assistant supervisor's comments were provided "after close review of the COMS [incident] reports."
• The worker was the seventh worker that attended.
• The worker was the last to attend.
• The incident took place in a common area washroom. Other officers got the individual out of the washroom, medical staff addressed the wounds, and other staff escorted the individual to the medical unit for further treatment, medical staff addressed the wounds, and then there was a wait for the ambulance. It was only then that the worker saw the injured individual.
• "The worker did not directly witness the suicide attempt…"
• "[The worker] arrived at [area] when [the individual] had already received treatment and was being escorted from [area]. [The worker] may have seen some blood on [the individual's cloths (sic) and some blood on the floor of the common area of [area] where medical did their initial assessment and treatment. According to medical, the wounds were only superficial in nature. [The worker] followed behind the group that responded and attended the medical unit and supervised from outside the door with another Officer until he was relieved to his original post…In all the COMS reports from staff, [the worker] is not even referenced as being there, which confirms that he attended after the fact. There is no information other than his own report to support [the worker] witnessing any blood flowing from [the individual], witnessing injuries or having direct contact with blood."
• The panel notes that the COMS reports were sourced and sent by the assistant superintendent to his employer and ultimately to the WCB. He listed numerous other incident reports in an email of December 28, 2016, with an offer to provide the actual reports if necessary.
• The COMS reports were printed out on January 1, 2017 and placed on the WCB file on February 27, 2017. There were a number of redactions in the reports.
The WCB psychiatrist advisor reviewed this documentation, and in particular, the assistant supervisor's email summary, and provided an updated opinion dated April 22, 2017, indicating that Criterion A had not been met and thus the diagnosis of PTSD could not be supported. The opinion provided, in part, that:
The employer reported that [the worker] was geographically far away when the incident occurred. By the time he was able to arrive on the scene, [the individual] had already been attended to by medical personnel. The injury was described as superficial, and was dealt with at the infirmary. [The worker] was posted outside the infirmary.
Information provided by [the worker] is at odds with documentation provided by the employer. None of the incidents which cover the period 2011 to 2015, meet Criterion A of the DSM-5 Manual for PTSD. Criterion A outlines the severity of events that would have to be met before a diagnosis would be considered, and includes exposure to death or threatened death, serious injury or sexual violence.
With the information from the employer now on file, it is evident that [the worker's] workplace incidents do not meet criteria for PTSD.
This appeal has largely focused on the employer's evidence which was accepted by the WCB's psychiatrist advisor, as noted above, and whether the described documentation does in fact accurately reflect the workplace incident and the worker's actual exposure. Briefly stated, the question before the panel is whether the evidence does or does not support that Criterion A has been met.
The panel notes that much of the new evidence was provided by the assistant superintendent, both in providing documentation to the file regarding the workplace incident and later at the hearing, in response to questions from the coordinator and the panel.
After a review of all the evidence on file and as provided at the hearing, the panel makes a specific finding that the assistant superintendent was not credible, and places little to no weight on his evidence. This will have a significant effect on our determination of this matter. Our findings regarding credibility (and consequently, our findings of fact) are based on the following considerations:
• The Assistant Superintendent was not employed at the facility at the time of the January 1, 2012 incident. He started there in March 2012. He was not involved in any way with the incident itself or the subsequent internal investigations and report collections that would normally ensue after this type of incident.
• He advised at the hearing that his April 21, 2017 email commentary was based on what he read in the file. Similarly, he acknowledged that his evidence at the hearing was based only on his interpretation of those same incident reports. In the panel's view, the assistant superintendent was reading the same reports as the panel. Under these circumstances, the panel finds that he was not providing evidence, but simply his interpretation of others' descriptions of the events that had already occurred. As such, beyond his description of the facility, his evidence has no probative value.
• The panel has compared the incident reports originally provided by the assistant superintendent to the WCB to a second set of incident reports that was provided by the employer advocate to the panel, prior to the hearing. The panel notes that there appears to have been significant manipulation of that written evidence, at or before April 2017. In particular, the panel finds that the worker's own incident report was originally redacted far beyond its expected scope (which might include privacy and security concerns) and included the redaction of wording that was actually supportive of the worker's claim. As well, another supportive report was blanked out in its entirety. In particular:
o The worker's own Incident report: "As [name redacted] was escorted from the unit it was visible that he was bleeding from his wri…[long redaction]. I/m had blood on his clothes."
o The full statement, in contrast, states " As [name redacted] was escorted from the unit it was visible that he was bleeding from his wrists. The wounds appeared to be long slices in the wrist area and were bleeding as [name] had blood on his clothes." [emphasis ours]
o An incident report completed by the supervisor of the medical unit was not submitted to the WCB at the outset, but showed up in the later disclosure to the panel prior to the meeting. To be specific, the original submission of reports has the top line of the supervisor's incident report, but the rest of the page that contained the entire content of the incident report was blanked out. This incident report notes that the individual was "crouching and shaking and trembling with a razor in his hand. Both of his wrists were cut and bleeding...He was escorted upstairs to the nurse's office and was assessed by medical. I informed [named staff] that medical stated an ambulance was needed." The supervisor then documents a later conversation with another individual who had called for help, stating "I told him that we were all very grateful that he had called up when he did, otherwise [redacted name] may not have made it."
• Although questions were asked by the panel about the differences in the documentation, the panel found no reasonable explanation for these discrepancies. This is problematic, as this was the very documentation that was sought and assessed by the WCB psychiatric advisor, prior to her changing her opinion regarding a potential PTSD diagnosis.
• The panel finds that the excluded evidence essentially tips the balance in favour of the worker, as several of the assistant superintendent's assertions are not consistent with the full evidence now available to the panel. In particular, the panel finds that:
o The worker was in his first months in a new job. He had never been exposed to this type of event before.
o On January 1, 2012, the code system in the facility identified a medical event that required his participation. He went to the designated location from another area where he had been assigned.
o The suicide attempt had obviously already occurred.
o The worker, as well as his co-workers knew it was a suicide attempt. In the panel's view, this would be characterized as a life-threatening event and as a serious injury.
o The worker did see the individual after the attempt and saw the actual injury sites. At the hearing, the worker advised that he saw horizontal cuts across both wrists as well as bleeding from the cuts. This is consistent with what he reported, soon after the incident, in his incident report.
o The incident was significant and potentially traumatic. The unredacted incident reports indicate that the worker as well as his co-workers noted a lot of blood on the individual's arms, clothes, and on the floor. The worker was posted outside the medical room while the individual was stabilized. 911 was called, and an ambulance arrived.
o In this context, the panel places little weight on the suggestion that the worker did not see the actual suicide attempt and therefore was not exposed to the traumatic event. The panel finds that worker was exposed to the full drama immediately following the suicide attempt, and finds that any attempt to distinguish between the actual suicide attempt and the immediate aftermath is not warranted, on the facts of this case.
o The panel places little weight on the commentary that the wounds ultimately were determined to be superficial. It was what the worker witnessed that counts, the immediacy of the aftermath of a suicide attempt. The cuts, although ultimately found to be "superficial" (i.e. non-life-threatening), were, at least visually, serious. In this regard, the panel notes that a 911 call was made for an ambulance, and the supervisor of the medical unit was not sure if the individual would have survived.
The panel finds the evidence, as originally provided by the assistant superintendent in April 2017, was the specific and sole basis on which the WCB psychiatrist advisor reversed her original opinion and determined that Criterion A for PTSD had not been met.
However, as noted, the panel has disregarded much of the evidence provided by the assistant superintendent. Our findings place the worker at the immediate aftermath of the suicide attempt, with a clear view of the yet-to-be treated wounds, which a reasonable person would describe as a serious injury, given the amount of blood that was described to be present.
To the degree that the panel places little weight on the assistant superintendent's evidence and commentary, it follows that we place little weight on the psychiatrist's amended medical opinion, given that this original commentary from the employer was the only source that led to the revised opinion.
In the absence of that second medical opinion, the panel is quite comfortable in reverting back to and placing greater weight on the WCB psychiatrist's first opinion that the worker had satisfied all the diagnostic criteria for PTSD, including Criterion A. The panel finds that this medical opinion is in agreement with the worker's health care providers both before and after, and as well with the recent May 18, 2018 psychiatric assessment solicited by the worker's union representative.
In light of these findings, the panel concludes on a balance of probabilities that the worker did have a workplace injury on January 1, 2012, which was later diagnosed as PTSD, that qualifies as an accident under the Act.
The panel further relies on the worker's evidence regarding his ongoing psychiatric condition as well as the May 14, 2018 psychiatric assessment that supports both the diagnosis and ongoing need for treatment, to find that the worker is entitled to further benefits beyond September 1, 2017.
The worker's appeal is accepted in respect of both issues.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Finkel - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of July, 2018