Decision #177/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after November 24, 2013. A hearing was held on October 23, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after November 24, 2013
The worker is entitled to wage loss benefits after November 24, 2013.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 49/15, dated May 6, 2015. The background will therefore not be repeated in its entirety.
The worker has two accepted claims with the WCB related to two separate work events while employed as an emergency responder. The first injury occurred on February 4, 2012 (stress) and the second injury occurred on July 8, 2012 (blood exposure) while employed in his concurrent employment as a firefighter. File records showed that the worker was diagnosed and treated for post-traumatic stress disorder ("PTSD"). In a letter dated October 8, 2013, the worker was advised that WCB wage loss benefits would be issued to September 30, 2013 inclusive as it was determined that his ongoing complaints beyond that date were related to non-compensable factors. The worker requested reconsideration and Review Office determined that the worker was entitled to further wage loss benefits. The worker's wage loss benefits were extended a further eight weeks to November 24, 2013. The worker appealed the decision to the Appeal Commission, who, under Decision No. 49/15, determined that the worker was not entitled to wage loss benefits after November 24, 2013.
On November 17, 2016, the worker's representative applied to the Chief Appeal Commissioner for a reconsideration of the May 6, 2015 decision under subsections 60.10(1) and 60.10(2) of the Act. The worker's representative provided a copy of an October 23, 2016 report from a clinical psychologist who had been treating the worker for approximately 13 months. The worker's representative provided that the clinical psychologist's report contained new evidence that met the criteria pursuant to subsection 60.10(2) for reconsideration of the Appeal Commission's previous decision. The worker's representative further noted that while the worker had begun treatment with the clinical psychologist prior to the previous Appeal Commission hearing, the information gathered by the clinical psychologist would not have been available until treatment had been completed in April 2016.
The clinical psychologist found, during her treatment of the worker, that his symptoms were caused by ongoing PTSD. The clinical psychologist did not disagree with the WCB psychiatric consultant's findings in 2013 but concluded that the non-compensable conditions the worker was found to be suffering from were not a factor during her treatment of the worker.
The worker's representative presented the argument that the new evidence supported that once the worker's alcohol and drug use were controlled, the worker presented with symptoms of PTSD and there was sufficient new evidence to warrant a reconsideration of the worker's entitlement to benefits.
On March 7, 2018, the Chief Appeal Commissioner granted the request for reconsideration. The Chief Appeal Commissioner found that the October 23, 2016 report from the worker's treating clinical psychologist contained a thorough and detailed assessment of the worker's condition that was not available at the time of the hearing. The report addressed all eight criteria used in diagnosing PTSD and its relationship to the workplace accident. The Chief Appeal Commissioner found that the findings and opinions of the clinical psychologist were substantial and material to the issue of whether or not the worker had recovered from the PTSD and whether or not the condition was related to the workplace accident.
The request for reconsideration was granted and an oral hearing was arranged.
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 by the WCB.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…” 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.
WCB Policy 18.104.22.168, Pre-Existing Conditions (the "Pre-Existing Conditions Policy") addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:
The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition, as a pre-existing condition is not “Personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The Pre-Existing Conditions Policy further provides:
WAGE LOSS ELIGIBILITY
(a) When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.
(b) When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was assisted by a union representative at the hearing. It was the worker’s position that the evidence supports that he continued to suffer from the disabling effects of his compensable psychological injury beyond November 24, 2013 and, as such, should be entitled to further wage loss benefits.
The worker noted that WCB had previously accepted responsibility for his claim for PTSD in relation to occupational trauma to which he had been exposed as a result of his employment as a paramedic and firefighter. The worker disagreed with the opinion of the WCB consultant that the effects of the PTSD from occupational trauma had subsided by November 24, 2013. The worker submitted that although he underwent intensive treatment for his compensable injury, the evidence demonstrated that it failed to achieve the results claimed by the WCB consultant. Consequently, and although he has overcome significant challenges, he continues to suffer from ongoing and profound effects of PTSD, as confirmed by his current medical providers, and which prevent his return to his pre-accident employment.
The worker further disagreed with the opinion of the WCB consultant that his ongoing symptoms were due to unrelated or pre-existing issues. Although he acknowledges that he also suffers from Alcohol Use Disorder, he submitted that the compensable injury either caused the development of Alcohol Use Disorder or significantly contributed to its progression.
The worker therefore submitted that he ought to be entitled to wage loss benefits beyond November 24, 2013 because the evidence supports that his loss of earning capacity at that point in time and beyond was, on a balance of probabilities, a direct result of his compensable PTSD.
The employer was represented by an HR coordinator.
The employer did not take a position with respect to the appeal.
The worker had an accepted claim for a compensable injury, namely PTSD, as a result of traumatic incidents he witnessed in the course of his employment in February 2012 and again in July 2012. The worker takes the position that he continues to suffer from PTSD which was caused by his exposure to a traumatic workplace incident and prevents him from returning to work. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity after November 24, 2013 as a result of the accidents. For the reasons that follow the panel is able to make that finding.
Although the claim was initially accepted as a compensable injury, WCB advised in correspondence dated October 8, 2013 that it was no longer of the view that the effects of the compensable injury were the principle cause of the worker’s ongoing loss of earning capacity. In reaching its decision, the WCB relied heavily on the opinion of the WCB psychiatric consultant, who found that although the worker was suffering from some symptoms of PTSD, it was not sufficient to warrant a psychiatric diagnosis and that the other non-work related issues, which were pre-existing and included maladaptive coping strategies, prevented a return to work. The WCB therefore concluded that an adequate course of treatment to address the psychological effects of the accident had been provided and that the combined effects of other pre-existing variables, including substance use/abuse, as well as personality style and stress associated with a pending disciplinary review, were considered predominant in relation to the perpetuation of a loss or earning capacity.
At the hearing, the panel reviewed with the worker the available medical evidence and his treatment subsequent to April 2015. The preponderance of medical evidence, including evidence from the worker’s treating psychologist and treating psychiatrist among others, as well as the worker’s general practitioner and an independent psychiatric examiner, all concluded that the worker suffered from PTSD in relation to his exposure while attending the scene of an accident on July 8, 2012 as well as other previous trauma to which he had been exposed as a result of his employment and, further, that the worker had not yet recovered from his compensable injury.
The panel placed particular significance on the opinion provided by one of the worker's treating psychologists dated October 23, 2016, and to whom the worker was referred for Eye Movement Desensitization Reprocessing (EDMR). The worker had participated in 33 sessions with the psychologist over the course of a year from February 2015 to March 2016. The psychologist provided a thorough and comprehensive report in which she noted that the worker met all eight criteria for PTSD. Her diagnosis was "…a classic, severe and chronic case of Post Traumatic Stress Disorder" and she stated:
Based on his history and the medical information provided to me, [the worker] did suffer from Alcohol Use Disorder. However, during the time when I was meeting with him, (for approximately 13 months), this diagnosis was largely in remission, although he would acknowledge being an alcoholic. During the period when I met with him, he had been successful in maintaining sobriety almost all the time. I was not aware of a drug use disorder at the time I was meeting with him.
The psychologist added that although the worker’s case was complex and his childhood history would have made him vulnerable to the development of PTSD, in her opinion, the symptoms she observed were directly related to his experience as a firefighter and first responder and, hence, the work-related trauma was the predominant cause of his PTSD.
As far as non-work related issues were concerned, the panel notes that although the worker may have had a diagnosis of substance abuse and, in particular, a benzodiazepine abuse issue that may have delayed or complicated his recovery from the compensable injury, the prescription for benzodiazepine medication was prescribed by the worker’s caregivers to treat his PTSD. Further, the worker’s benzodiazepine abuse issue began after the emergence of the PTSD diagnosis in July 2012. The worker's clinical psychologist noted:
I was able to witness the extent of his PTSD symptomatology when he was alcohol-free and, for a period, antidepressant and sleep medication free. In my opinion the co-occurring diagnoses do not adequately account for, or offer sufficient explanation for, his trauma-related symptoms and do not preclude the diagnosis of Post-Traumatic Stress Disorder, chronic.
In terms of alcohol use, the panel notes that the worker’s increased alcohol consumption appears to have coincided with the emergence of PTSD symptoms. Given the worker's previous disclosure of excessive alcohol consumption, the panel accepts the worker abused alcohol to self-medicate. The panel also notes that the worker's treating psychologist made reference to the fact that while the worker was being treated by her, the worker had remained alcohol free and, for a period, antidepressant and sleep medication free. As such, the psychologist was able to witness the extent of the worker’s PTSD symptomology when he was alcohol free and antidepressant and sleep medication free. In her opinion, the co-occurring diagnoses do not adequately account for, or offer sufficient explanation for, the worker’s trauma related symptoms and do not preclude a diagnosis of PTSD.
As far as the worker's 'work related disciplinary issue' is concerned, based on the evidence in the file and provided at the hearing, the panel disagrees with the WCB position that the looming potential discipline was a significant issue in the management of this claim.
In addition to the medical information provided regarding the worker’s diagnosis and treatment, the file also contains numerous medical and psychological reports submitted after benefits were discontinued by the WCB that support the conclusion that the worker remained unable to work due to his compensable injury.
In our view, the weight of the medical evidence and, in particular, the evidence available post-2013, dispels the view that the worker’s PTSD had subsided in 2013 and further dispels the conclusion that the worker’s symptoms were due to unrelated or pre-existing issues. Although the worker has had intensive treatment for his compensable injury, the evidence demonstrates that it failed to achieve the results sought. Despite overcoming significant challenges, the worker continues to suffer from the ongoing and profound effects of PTSD. Although the worker may have an alcohol/substance use disorder, such disorder appears to have arisen in conjunction with his psychological injury.
Based on all of the foregoing, the panel finds, on a balance of probabilities, that the worker had not recovered from his compensable injury by November 23, 2013 and was entitled to benefits beyond that date.
The worker’s appeal is therefore accepted.
K. Wittman, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of December, 2018