The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to her psychological injury. A hearing was held on March 13, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to her psychological injury.

Decision

That the worker is not entitled to further benefits in relation to her psychological injury.

Background

This claim has been the subject of a previous appeal and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision No. 86/08.

In 2003, the worker was employed as a caregiver at an institution. On September 12, 2003, the worker filed an accident report with the WCB claiming "stress/harassment" as the area of injury. The date of injury was recorded as September 10, 2003, as the worker had attended a doctor on that date. The worker's claim was initially denied on the grounds that there was insufficient evidence to find that the worker suffered an acute reaction to a traumatic event. On July 23, 2008, the Appeal Commission allowed an appeal by the worker and accepted the worker's claim for a psychological injury.

In 2016, the worker contacted the WCB and indicated that she had ongoing issues which she related to the September 10, 2003 workplace incident. The WCB advised the worker that as there had been no medical evidence on her claim file since 2008, it would be helpful for her to see her previous psychiatrist and obtain an updated medical report so that the WCB could review her current status.

The worker saw her previous psychiatrist in July 2016, and the psychiatrist provided a diagnosis of "Chronic PTSD" which in his opinion was "a direct consequence of the stress/harassment claim sustained on September 10, 2003."

On September 20, 2016, the worker attended a call-in examination with a WCB psychological advisor, who reported that she was not able to establish that the worker's current presentation and functioning were materially related to the workplace harassment of 2003.

On November 7, 2016, Compensation Services advised the worker that they had determined that her current difficulties were not related to the September 10, 2003 compensable injury and she was not entitled to further benefits.

On March 15, 2017, a worker advisor acting on behalf of the worker requested that Review Office reconsider the Compensation Services decision. The worker advisor submitted that the file evidence supported that the worker's presentation to healthcare providers in June of 2016 and beyond was connected to her compensable psychological injury in 2003 which, it was submitted, was Post-Traumatic Stress Disorder ("PTSD").

On May 9, 2017, Review Office determined that there was no further entitlement to benefits on this claim. Review Office stated that they were unable to establish a cause and effect relationship between the worker's reported difficulties and the 2003 compensable injury. Review Office accepted and placed significant weight on the WCB psychological advisor's opinion that based on the worker's report at the examination, she was not experiencing PTSD or trauma-related depressive disorder, that there was no medical information available to establish continuity of care or symptomatology from the time of the injury to the present, and that the presence of a chronic psychological condition or chronic dysfunction from 2005 to the present, including any condition materially relating to the 2003 workplace events, could not be established.

Review Office also noted that the Appeal Commission's 2008 decision to accept a psychological injury was silent on diagnosis and did not equate to an acceptance of PTSD as a diagnosis "then or now." Review Office placed weight on the Appeal Commission's conclusion that the worker had not been exposed to a life-threatening injury or event, which was necessary to confirm a diagnosis of PTSD.

On August 18, 2017, the worker advisor appealed the Review Office decision to the Appeal Commission and an oral hearing was held on March 13, 2018.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was received and forwarded to the interested parties for comment. On June 11, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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.

Section 37 of the Act outlines the types of compensation payable to workers as follows:

Compensation payable

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

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 her medical presentation in June 2016 and beyond is causally connected to her compensable psychological injury of 2003 which, it was submitted, is PTSD, and that any loss of earning capacity, impairment and/or medical aid related to that injury is the WCB's responsibility.

The worker advisor submitted that medical reports and chart notes in 2003 and 2004 from the worker's family physician, psychologist and two psychiatrists identify the presence of PTSD symptoms or a diagnosis of PTSD. The psychiatrist's support for the worker resuming work in 2005 merely reflected her recovery from depression, as that was the primary focus of treatment.

It was submitted that despite a multi-year gap in medical reports, the worker continued to experience PTSD symptoms. Her decision to work in distant communities, to immerse herself in her work and to avoid public places represented PTSD coping or avoidance behaviour. Her avoidance was specific to encountering former co-workers and males in her home or personal life, which the psychiatrist said was not uncommon. In retrospect, the worker met the criteria for PTSD in 2004, though a formal diagnosis was not made, as the focus of treatment at the time was on her more prominent symptoms of depression.

The worker advisor stated that the Appeal Commission accepted the worker's claim for a psychological injury, noting that she was not merely suffering from chronic stress, but had developed a severe psychological condition which disabled her from working. It was submitted that while the Appeal Commission did not specify the severe psychological condition that resulted from the workplace accident, it is reasonable to conclude that the condition was PTSD, and the worker advisor requested that the panel affirm this in its decision.

With respect to the more recent medical reports on file, the worker advisor submitted that greater weight should be placed on the opinions of the worker's physician and psychiatrist, given their long-term involvement with the worker, than on that of the WCB psychological consultant who saw the worker on one occasion only. It was further submitted that a psychiatrist's opinion should typically command more weight than that of a psychologist when determining whether the worker’s presentation in 2016 was consistent with PTSD.

The worker advisor also submitted that the psychiatrist's August 11, 2017 letter, which was submitted in advance of the hearing, demonstrated that the psychiatrist had a detailed and accurate understanding of the worker's claim history and the benefit of reviewing relevant claim file information which was provided to him. Referring to the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition ("DSM-5"), the psychiatrist stated that the clinical course of PTSD can be chronic, as with the worker, including time periods when symptoms are dormant yet susceptible to re-activation by subsequent traumas, cognitive and physical decline and various psycho-social stressors. Most compellingly, the psychiatrist explained how the worker satisfied the DSM-5 criteria for PTSD.

In the event that the panel were to determine that the worker had recovered from her compensable injury in 2005, it was submitted that she experienced a re-emergence or heightening of her PTSD symptoms in 2016 which represented a recurrence of her compensable injury. The attending psychiatrist had stated that the worker's PTSD symptoms were exacerbated in 2014 in relation to a compensable physical injury, which removed her from the work she relied upon to distract her from her 2003 claim. Then, in February 2016, when she saw an individual whom she recognized as having worked at her former workplace, she experienced an instant adverse reaction. It was submitted that subsequent medical reports establish that the February 2016 incident caused a clinical increase in impairment and a relapse of the worker's previous compensable injury.

In conclusion, it was submitted that the evidence supported a connection between the worker's PTSD diagnosis and her 2003 workplace accident, and she is entitled to further benefits.

Employer's Position

The employer was represented by its Workers Compensation Specialist. The employer’s position was that they were in full agreement with the decision that the worker has no further entitlement to benefits in relation to the 2003 claim, and asked that it be maintained.

The employer's representative noted that the worker was off work from September 11, 2003 until her employment with the accident employer ended in April 2004. She returned to work with a new employer in January 2005. It appeared that she was successfully back to work by mid-2005, and was not getting any medical treatment for her compensable injury after that.

It was submitted that chart notes from the worker's psychiatrist documented that he spoke to the worker on October 17, 2005, at which time she was working full-time, doing reasonably well and her mood was good. On June 2, 2006, he documented that there had been no contact with the worker since the fall of 2005, and on June 5, 2006, the worker indicated by phone that she was continuing to work out of town and trying to move on, and there was no need for further appointments. It appeared, therefore, that as at June 5, 2006, the psychiatrist had no real involvement with the worker with respect to treatment or otherwise in relation to the compensable injury.

The employer's representative submitted that in 2008, the worker's physician indicated that she no longer had PTSD, and there was nothing between 2008 and 2016 to suggest she experienced any symptoms specifically relating to the 2003 claim. In the employer's view, this was particularly important given that the psychiatrist in 2017 tried to explain that the worker had a chronic PTSD issue, which would suggest something that was ongoing and always evident. Based on the evidence, however, that did not appear to be the case.

It was noted that the worker's psychiatrist indicated in his July 28, 2016 report that he had not had contact with her since approximately 2006, or almost ten years earlier. Information in 2016 indicated that the worker was having some difficulty coping in relation to a back and shoulder injury she sustained at work in 2014. It was submitted that the worker's psychological symptoms at that time appeared to be more related to her inability to adjust to no longer being able to do her full-time duties, as opposed to anything directly related to her claim back in 2003.

The employer's representative asked that the panel place significant weight on the very comprehensive report by the WCB psychological consultant of the September 2016 call-in examination of the worker, which took place over a period of approximately three hours. He submitted that the psychological consultant was very definite in her opinion that the presence of a chronic psychological condition or chronic dysfunction from 2005 to the present, including any condition materially resulting from the events at the workplace in 2003 could not be established, and that opinion should be accorded considerable weight.

The employer's representative referred to the psychiatrist's comment that PTSD symptoms were present initially but he did not diagnose her with PTSD at that time as it was not the focus of his treatment. The representative submitted that it was hard to accept that comment so far after the fact; if the worker met the criteria for PTSD, there needed to be some discussion and potential focus on that diagnosis at the time.

The representative noted that in her discussion with the WCB psychological consultant, the worker mentioned that when she saw the individual at the workplace in February 2016, it knocked her back for a few weeks but she continued working, and never missed any time. She described that she felt anxious just that one time when she saw the individual and there was nothing further at that point. It was submitted that being anxious does not necessarily equate to a recurrence of PTSD.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to her psychological injury. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity or impairment, or required further medical aid, as a result of her 2003 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The panel recognizes that the worker sustained a psychological injury in 2003, as was accepted by the Appeal Commission in 2008. The panel accepts that the worker experienced some PTSD-like symptoms at the time of her injury. The panel is not satisfied, however, that the diagnostic criteria for PTSD, as set out in the DSM-5, were met in this case. In particular, the panel is unable to find that the evidence established or establishes that Criterion A, which requires "Exposure to actual or threatened death, serious injury, or sexual violence" is satisfied in the circumstances of this case.

The panel is further unable to relate the worker's present symptomatology to her workplace incident in 2003.

The panel notes that the evidence shows the worker returned to work with a new employer, performing her regular work duties, in 2005. The panel further notes that there is a lack of medical information showing any continuity of care or symptomatology following her return to work. File information shows that the worker advised the WCB adjudicator on July 29, 2008, that she was doing fine and had no further problems. The worker continued working for her new employer, without evidence of difficulty, up until at least the time that she sustained a further and unrelated shoulder and back injury in 2014, and could no longer do that work.

The worker saw a clinical psychologist following her 2014 workplace accident. A copy of a letter from the psychologist dated November 30, 2015 was provided at the hearing, which indicated that the worker was struggling greatly with her physical injury and the limitations it placed on her life, that she had found the loss of independence very difficult and was experiencing a moderate level of depression. In response to a question from the panel as to how this related to the 2003 injury, the worker stated that every session with the psychologist went back to the 2003 event, and suggested that she was experiencing difficulties because she could no longer hide from her PTSD.

Following the hearing, the panel requested chart notes from the treating psychologist on the 2014 claim. The panel has reviewed those chart notes, and is satisfied that while there are some references to the 2003 incident, the chart notes are consistent with the psychologist's statement in her letter that therapy at that time consisted of "dealing with grief and loss, focusing on any positive changes that [the 2014] crisis has facilitated and acceptance of the disability and subsequent changes in her life." The panel is unable to find that the worker's symptoms at that time were materially related to her 2003 workplace incident.

While the worker has argued that she experienced a heightening or re-emergence of her 2003 symptoms or psychological condition in February 2016, the panel is unable to arrive at that conclusion. The worker indicated that she was working late one day when she saw an individual who looked like someone who had been working at the institution where she sustained her injury in 2003. She indicated that when she saw that individual, she ran into the bathroom and fell down on the floor. When she eventually came out of the bathroom, she did not know if she could go back to work. She said that she did not end up missing any work, but started realizing something was really wrong with her, that it was "like it all came back temporarily, for a few, several weeks."

The panel acknowledges that the worker experienced an immediate adverse reaction to the incident, but notes that this was temporary and did not stop her from working. She indicated that she returned to work the next day, and that this did not affect her in her work. She said that she was not sleeping and was having dreams for a couple of weeks after that about things she hadn't dreamed about in a long time, but also indicated that she was having trouble sleeping because of her neck injury.

The panel is further of the view that the worker's current symptoms are different from those which were identified in relation to her 2003 psychological injury. Evidence indicates that the worker's current symptoms of depression, and the loss of her job, mobility and ability to work, are a result of her 2014 workplace injury. The worker indicated that she cannot stop thinking about the 2003 incident, stating that:

I don't have the same relationship with my family because of it. Everything trickled down, I don't have the family relationship that I should have…I'd love to have a friend to play scrabble with and go out. I used to be a very social person, now I don't do anything, and I hate this…I had to leave my family, I feel horrible because of that. These are thoughts that all tie back to that incident, that everything trickled down and basically ruined my life.

The worker stated that she felt guilt and shame at having run away. She noted that while she had functioned very well in her work, she had not functioned as a person in life and did not have a normal life. The panel acknowledges the worker's comments and ongoing difficulties, but is unable to find, based on the evidence which is before us, that they are materially related to the worker's 2003 workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or impairment, or require further medical aid, as a result of her 2003 workplace incident. The worker is therefore not entitled to further benefits in relation to her psychological injury.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of August, 2018