The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on October 31, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a claim with the WCB on May 30, 2016 for a psychological injury that occurred on April 27, 2016. The worker did not recall a specific event but stated that she had a "mental/emotional breakdown from the progressiveness and accumulation of what she has been exposed to at work…"

The worker's treating physician provided a report on May 17, 2016 noting that the worker had been treated for anxiety and depression for the last year. The physician referred the worker for an appointment with a psychiatrist on May 28, 2016. The physician also provided a sick note recommending the worker be off work until June 2, 2016.

In a discussion with the WCB on June 1, 2016, the worker advised that she had been having difficulties coping at work for a few years and had sought treatment from her doctor. She had started taking antidepressants approximately three years ago in order to cope at work. In a follow-up conversation on June 7, 2016, the worker advised the WCB that her shift on April 27, 2016 was the first one after the death of a colleague and she felt angry and frustrated that morning and was grieving the loss. The WCB spoke with the worker's supervisor on the same date who confirmed that the worker had never expressed feeling overwhelmed with work or dealing with stressful situations and that she had not been aware, at any point, that the worker's difficulties were related to her job duties. The worker's supervisor noted that there had been a change in the form of a pilot project in the worker's unit that the worker seemed to have difficulty with.

On May 28, 2016, the worker met with a psychiatrist who diagnosed the worker with "Major depressive disorder with some anxiety symptoms which appear to be work related. Possibility of PTSD [post-traumatic stress disorder] in her case. Axis II is deferred. No acute suicidality or homicidality well. (sic)" The diagnosis was confirmed by the worker's physician in a report dated June 13, 2016.

The worker's file was provided to a WCB psychological consultant who provided an opinion on July 27, 2016. The WCB psychological consultant confirmed that, based on the psychiatrist's May 28, 2016 report, the worker's diagnosis was Major Depressive Disorder ("MDD"), with no severity mentioned. The WCB psychological consultant further opined that a diagnosis of PTSD had not been made and symptoms were not documented in the report that would meet the criteria for PTSD. It was further opined that there was no evidence of the worker being totally disabled.

The WCB received a report from a second treating psychiatrist and a psychiatry resident dated July 26, 2016. The report noted:

It is our impression, in agreement with the previous assessment by [doctor's name], that [the worker] meets criteria for Major Depressive Disorder with anxious features. In addition she meets the criteria for Posttraumatic Stress Disorder with dissociative symptoms of depersonalization and derealization.

The psychiatrist's July 26, 2016 report was provided to the WCB psychological consultant for review. On August 23, 2016, the WCB psychological consultant opined, in part:

2. Based on information on file as well as on the report of [psychiatrist] and [resident], the diagnosis is not materially related to any workplace incident or incidents. The anxiety and low mood that the worker reported as having started three years ago was not reported as being in response to a specific workplace trigger. As noted in the report of [psychiatrist and resident], "there did not appear to be a specific event or exposure that was threatening to her life or caused physical injury to her." As well, there was not "repeated or extreme exposure to aversive details of the traumatic event (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse)." Therefore, Criterion A of the diagnosis of Post-Traumatic Stress Disorder, as related to [the worker's] workplace, is not met. [Psychiatrist and resident] do document a highly significant history of abuse, family dysfunction, multiple foster placements, past personal and family substance use difficulties, and psychiatric difficulties (including two family suicides). The diagnoses of Major Depressive Disorder (with significant elements of anxiety reported) and Post-Traumatic Stress Disorder would be opined to be related to these non-work-related variables.

At the request of the WCB psychological consultant on October 27, 2016, the worker's treating psychiatrist was asked to provide details of specific work-related experiences that met Criterion A for PTSD. The worker's treating psychiatrist provided the following response, in part, on December 2, 2016:

[The worker] reports repeatedly witnessing several events over the past 8 years at her most recent place of work which have been traumatizing for her. These events include: seeing children engage in violent acts upon themselves and each other, specifically piercing objects into open wounds; children banging on doors and windows for hours whilst yelling death threats and insults; having to check on children frequently to ensure safety but worrying that they may have attempted on their lives' due to the constant threats of suicide; hearing children's stories of hopelessness, despair and fear and personally having to notify them of deceased relatives; developing close relationships with 17 youths and then having them taken way suddenly in 24 hours; learning of 5 co-workers deaths in the past 5 years.

The above events continue to negatively impact and impair [the worker] in the ways of nightmares, intrusive memories, dissociative reactions, preoccupations, and symptoms of anxiety and depression.

The report was reviewed by the WCB psychological consultant who opined on December 8, 2016:

I have reviewed carefully the workplace events listed in [psychiatrist and resident's] report. They would not meet the threshold Criterion A of the diagnosis of PTSD.

- The events listed are not of directly witnessed or experienced death.

- The events listed do not involve witnessing serious injury comparable to the type of traumas/serious injury/violence described in the DSM-5 ("Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse of another person due to violent assault, domestic violence, accident, war or disaster, or a medical catastrophe in one's child").

- The events listed about learning of deaths (i.e., indirect exposure) would not meet the description of indirect exposure in the DSM-5 ("Indirect exposure through learning about an event is limited to experiences affecting close relative or friends and experiences that are violent or accidental. Such events include personal assault, suicide, serious accident, and serious injury").

On December 20, 2016, the worker was advised by the WCB that her claim was not acceptable as the WCB could not establish a specific workplace incident or trigger, nor could repeated or extreme exposure to aversive details of a traumatic event be found. The WCB further advised that the work history provided by the worker did not meet Criterion A for the diagnosis of PTSD. It was noted that the worker's non-work-related history was determined to meet Criterion A.

The worker's representative requested that the WCB reconsider their decision on April 18, 2017 and submitted a February 13, 2017 report from a psychiatrist who was treating the worker. The psychiatrist disagreed that the worker's traumatic symptoms were due to her early life experiences and felt that it was the worker's experiences doing her job duties that initiated her PTSD symptoms.

The worker attended for a call-in examination with the WCB psychological consultant on August 3, 2017. The WCB psychological consultant opined "Although [the worker's] current presentation does appear to be related to some extent to workplace stressors, on a foundation of some pre-existing and past difficulties, I was unable to find evidence to support the diagnosis of PTSD as related to the workplace."

On October 16, 2017, the WCB advised the worker that they had reviewed the medical information provided but her claim was not acceptable.  The WCB noted that the worker's representative had asked for reconsideration of the worker's claim based on the WCB's Pre-Existing Conditions Policy.  However, it was noted that as the worker's injuries fell within the definition of an occupational disease, that Policy would not apply to the worker's claim.  The WCB further noted that while some of the worker's job duties and situations were stressful, the situations would not be considered an accident as defined under the Act.  It was also noted that given the worker's significant personal history, her employment could not be considered the dominant cause of her psychological injury.

The worker's representative requested reconsideration of the WCB's decision to Review Office on November 2, 2017. The worker's representative stated that the medical evidence supported that the worker was suffering from MDD at the time of the workplace incident, which would have made her vulnerable to psychological injury. The employer submitted a response on February 9, 2018 and the worker provided a submission in response dated February 27, 2018, both of which were shared with all the parties.

Review Office determined on February 28, 2018 that the worker's claim was not acceptable. Review Office accepted the opinions of the WCB psychological consultant and found that the worker was not suffering from PTSD as a result of her employment. Review Office acknowledged that the worker was struggling with mental health issues but found that her conditions did not arise out of or in the course of her employment. Further, the conditions were not an "occupational disease".

The worker's representative filed an appeal with the Appeal Commission on March 5, 2018. An oral hearing was arranged.

Reasons

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,

(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.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, sets out guidelines applicable to claims for psychological injuries. Relevant portions of this policy are as follows:

Accident:

The definition of accident in The Workers Compensation Act…has various components. A psychological injury can be caused by:

• a chance event;

• a wilful and intentional act; or

• the injury can be an occupational disease (an acute reaction to a traumatic event or post traumatic stress disorder).

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically. …

Claims for psychological injuries cannot arise under the part of the definition of accident that refers to 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. That part of the definition applies to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries and so on.

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

WCB Policy 44.10.20.10, Pre-existing Conditions addresses the issue of pre-existing conditions when administering benefits. The policy states that:

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 WCB will accept responsibility for the full injurious result of the compensable injury.

Worker's Position

The worker was represented by a worker advisor, who provided a submission to the panel. The worker responded to questions from her representative and the panel.

The worker's position was that her claim is acceptable because the evidence supports, on a balance of probabilities, that she sustained a psychological injury as a result of a workplace accident resulting from her exposure to traumatic events in the workplace. This was supported by her healthcare providers, who ultimately diagnosed PTSD. The worker also has co-existing diagnoses of MDD and anxiety which she asserts were work-related as well.

The representative asked the panel to place greater weight on six medical doctors, including four psychiatrists, who indicated the worker presented with PTSD, over the opinion of a WCB psychological consultant who opined that the worker did not meet the DSM-5 criteria for PTSD.

The representative noted that the worker had been exposed to chance events at the workplace, including observing youths engage in self-bodily harm and physically assaulting each other, with or without weapons, and repeatedly striking doors and windows while yelling death threats, as well as incidents of attempted suicide.

The representative acknowledged that the worker had many early life issues, but had managed the stressors of her first five years in this position well, and only started to show symptoms in the last three years.

In response to questions from her representative, the worker advised she is now working in alternative duties and her symptoms have stayed the same. She is mentally slow to process things and is hyper-vigilant on her walks to and from work. She is easily startled by loud noises or too much activity, and has difficulties with too many people and too much activity. Memories flash through her mind of altercations between youth and response teams running to the incidents. She currently sees a psychiatrist monthly, where her medications are monitored and they discuss CBT techniques to help her with daily challenges.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. His position was that the circumstances surrounding the establishment of this claim do not meet the definition of an accident. In particular, the diagnosis of PTSD has not been established in accordance with Criterion A, and is in any event not related to the worker's employment. As well, the diagnosed conditions of MDD and anxiety were on a balance of probabilities the result of non-work-related factors, and do not meet the tests under the Act, either as a chance event or an occupational disease. The representative noted that under the Act and Policy, daily pressures and stressors do not qualify as there is no chance event, no wilful and intentional act, and no traumatic event. As well, discipline, promotion, demotion, transfers and other employment related matters are also excluded from the definition of an accident.

The representative focused on the April 27, 2016 incident that generated the worker's claim, as well as non-work-related matters that were affecting the worker at that time, including the death of a co-worker. He noted that the worker had been on anti-depressant medications for three years, well prior to the April 2016 incident and had advised a WCB adjudicator that she had become disconnected from the clients she worked with. The worker also expressed difficulties in adjusting to a different system that had been implemented after eight years.

The representative's position is that the worker's psychological difficulties fall under the part of the Act that excludes coverage where they are related to changes in respect of employment.

Regarding the PTSD claim, the representative asked the panel to place considerable weight on the August 3, 2017 call-in examination conducted by the WCB's psychological consultant, and pointed to various findings in that report that supported his position.

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 suffered a personal injury by accident arising out of and in the course of employment. For the reasons that follow, the panel is unable to make that finding.

The panel notes that the submissions made on behalf of the worker and employer deal with two distinct psychological conditions, being PTSD and MDD/anxiety. We will deal with each in turn.

As to the diagnosis of PTSD, the panel must find that all the criteria for PTSD as set out in the DSM-5 have been met. The focus in this appeal, and in the worker's claim as a whole, has been on whether Criterion A has been met. Failure to meet this criterion means that a formal PTSD diagnosis cannot be established. Criterion A is described as follows in the DSM-5:

A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

1. Directly experiencing the traumatic event(s).

2. Witnessing, in person, the event(s) as it occurred to others.

3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.

4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).

Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

The panel recognizes that a number of the worker's healthcare providers support a diagnosis has been met. However, after a careful review of all the evidence, we find that Criterion A has not been met, on a balance of probabilities, and thus a PTSD diagnosis is not supported. Rather, the totality of the evidence suggests that the worker was dealing with a number of issues related to her work environment and her co-workers that affected her emotionally, and it was these issues that led her to leave her workplace, seek medical attention and file a WCB claim. In reaching this conclusion, the panel places particular weight on the following:

• The original claim and early file documentation refer only to the incidents at work in late April 2016, the death of a co-worker, and generally, an accumulation of job-related stressors, job fit, and frustrations with organizational changes that had been introduced. Despite numerous inquiries, no acute traumatic events were identified at that time.

• A May 28, 2016 report from a psychiatrist notes, "When I probed her further she said there was no major trauma related to this particular incident wherein she had a complex history. But she said it is stress working in this job for a long time which could have accumulated over time….She described low mood starting 3 years ago with no clear trigger as such. It has got worse since and her mornings are worse."

• An August 3, 2017 interview with a WCB psychological consultant notes that the worker's emotional state became apparent starting on April 27, 2016 when she had a confrontational incident with a resident that she managed poorly, and realized something was wrong. This led to a bad weekend that included nightmares, depression and anxiety, and time off starting on May 2, 2017. She later attributed her psychological issues to significant changes in the workplace, where she had been assigned to work with a new group of residents and with different rules applying. She noted as well that a co-worker had died two days before this date, alone and at home, and that it had affected her deeply. There were also five non work related deaths of colleagues in the previous five years, and the worker had not been exposed to a death at the workplace while employed there.

• The panel notes that there were events at the workplace over the years that had the potential to qualify as traumatic events under Criterion A, including incidents of self-harm, acts of violence, and threats. The panel therefore inquired carefully as to whether any of those events were actually traumatic to the worker. After consideration of the evidence on file and at the hearing, the panel was unable to find that they were. The panel notes that the general tenor of the worker's evidence dealt more, again, with changes in the workplace, and that even when questioned about specific events, the worker was less traumatized about the event than the circumstances around it. At the hearing, for example, the worker described a code alert for a resident in an attempted hanging. The worker was, however, far more concerned about an unsafe work practice - how she had tossed a rescue knife to a co-worker, instead of handing it over - than what was happening with the resident. The panel notes that the worker's evidence tended to be consistent in this regard, where she described playing work events over and over in her mind again at home. However, these were more focused on how conversations had gone at work and whether she could have done things differently, rather than on acute traumatic events. In the panel's view, the challenging events at work, while present, were not traumatic to the worker, and were not comparable to the type of events which would be required under Criterion A of the DSM-5 Diagnostic Criteria.

• As such, the panel finds that an accident based on acceptance of a work-related PTSD cannot be established. In doing so, the panel concurs with and accepts the analysis and conclusions of the WCB psychological consultant in her August 3, 2017 examination, as well as her commentaries provided before and after that date.

The panel then turned its attention to whether the worker suffered a psychological injury under the Act and Policy, in particular the worker's diagnoses of anxiety and depression. Again, the panel was unable to so find, after considering the worker's prior psychological history as well as the precipitating factors that the worker pointed to in her workplace.

In considering whether these conditions are compensable, the panel notes that psychological conditions can be accepted as accidents under the Act and Policy, but that there are circumstances where they will not be accepted, even if they are work-related.

In particular, the Policy notes that "Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event."

In the panel's view, the worker falls under this part of the Policy, which would make the worker's psychological conditions non-compensable. We note in particular that numerous medical reports on the file refer to the worker having had an extremely difficult and challenging life including psychiatric difficulties that predated the start of her employment with her employer but which continued through and beyond that date. Then, according to a psychiatrist (May 28, 2016), the worker's psychological issues worsened about three years prior to her filing a WCB claim which she attributed to an accumulation of stress over time at work, at which time she started on anti-depressant medication. The panel also notes that the general tenor of the worker's evidence to the WCB, to her healthcare providers and to the panel was similarly focused on interpersonal relationships, in-work and out-of-work stressors, ruminations and concerns over how she was doing or was supposed to do her job and associated anxiety, and finally, a particularly high commitment on her part to care for the residents under her care.

Indeed, the panel would describe the worker as a deeply caring person working in a caring profession with challenging clients, who over time started to demonstrate what the Policy describes as "burn-out" or what the panel would similarly describe as "compassion fatigue." The panel has no doubt regarding the worker's commitment and compassion towards her position and her clientele. However, the Act and Policy are clear that these are employment-related matters which do not qualify as an accident under the Act.

The panel finds, on a balance of probabilities, that the worker's diagnosis of anxiety and depression are not related to the workplace. The panel concurs with the WCB psychological consultant's comments on August 23, 2016, that these conditions are related to non-work-related variables. As well, the panel finds that to the degree that these conditions manifested themselves or worsened in the workplace, they were related to overall changes in her job duties, general workplace stressors and the job no longer fitting her style, as she noted a number of times on the claim file. Based on these considerations, the worker's anxiety and depression diagnoses are not compensable under the Act and Policy.

Accordingly, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of her 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
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of December, 2018