Decision #02/19 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on July 24, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on December 5, 2016 reporting a psychological injury as a result of his employment. In a December 15, 2016 discussion with the WCB, the worker stated that there was no single incident that occurred in November 2016 that caused him to go off work but that his symptoms had gotten progressively worse. He further advised that it was his treating psychiatrist who suggested he file a WCB claim.

The worker was seen by his treating psychiatrist on December 3, 2016 who noted the worker's history for the present complaint as:

Work related stress and diffulties (sic), traumatized at work with threat from [residents] and incidents, mood is depressed, poor motivation, no energy, crying spells, unable to function, poor concentration, anxiousness with thought of going to work due to past incidents and what might happened (sic), flashbacks, hypervigilance, paranoia with thought of being followed by [residents] he has dealt with, easily irritable, avoid contact with friends, poor sleep, no substance abuse. Attending therapist through [program] at work but not helping.

The treating psychiatrist diagnosed the worker with a depressive episode and PTSD (post-traumatic stress disorder). At a follow-up appointment with the psychiatrist on February 18, 2017, the psychiatrist noted that the worker had attended for three sessions. The worker's provisional diagnosis of PTSD and comorbid depression was noted from his initial appointment. The treating psychiatrist noted that the worker reported a life threatening incident at work and as a result, reported having flashbacks and nightmares related to that incident. The psychiatrist also noted: "…he had hypervigilance and paranoia watching over his shoulder, thinking that he is being followed by [residents] whenever in public. He has avoidance features as he is always anxious going back to work with thought of past incidents and worried about what might happened (sic). He is easily irritable, avoid contact with friends and prefer to isolate himself. He reports fluctuating low mood and sleep difficulties."

On February 23, 2017, the WCB advised the worker that his claim was acceptable. Payment of wage loss and other benefits started.

The employer's representative requested reconsideration of the WCB's decision to accept the worker's claim to Review Office on May 31, 2017. The employer's representative noted the worker initially reported to the WCB that there was not a specific incident that led to his workplace injury of November 10, 2016. It was further noted that it was not until the February 18, 2017 appointment with his treating psychiatrist that the worker reported a specific incident however, no internal incident report was filed regarding the incident. The employer's representative argued that the WCB accepted the worker's claim for PTSD based on the worker having encountered a specific life threatening situation, which situation had not been established.

The worker's representative submitted a response on July 4, 2017, supporting the WCB's decision. On September 6, 2017, the employer's representative provided a further submission, including a copy of the employer's reporting standards for incidents. Review Office submitted further questions to the employer's representative on September 11, 2017 and the employer responded to most of the questions on September 13, 2017. Review Office also requested to contact one of the worker's co-workers who was reported to have witnessed or discussed a specific incident that occurred in April 2016 with the worker. Review Office requested a WCB medical advisor review the worker's claim on November 20, 2017 as they were unable to contact the co-worker for their confirmation of the specific incident. The WCB medical advisor opined:

Recently, the employer has responded to several questions from the Review Office. This is quite some time after [the worker] was assessed by the psychologist and the psychiatrist, neither of whom had access to this information from the employer. In the email, the employer elucidated policies pertaining to behavioural disturbances by [residents]. It is policy that each incident be documented before the [employee] goes off shift. There is a protocol for subsequently addressing each report. The protocol indicates that threats, for example, are not taken lightly and are not lightly dismissed by supervisory staff.

Given the protocol and regulations for documentation, it is reasonable for the writer to conclude that [the worker] did not find the threats to generate sufficient concern for him to document them.

This, in turn, indicates that Criterion A is not met. For [the worker's] WCB claim, the decision to not document the threat belies the severity of the perceived threat.

The WCB medical advisor's opinion was provided to all of the parties. The worker's representative provided a response on December 6, 2017 and the employer's representative provided their response on December 21, 2017.

On January 5, 2018, Review Office determined that the worker's claim was not acceptable. Review Office relied on the WCB medical advisor's November 20, 2017 opinion that Criterion A of the WCB's PTSD policy had not been met. Review Office noted that as a workplace incident that met Criterion A could not be established, a diagnosis of PTSD could also not be established. Review Office further noted that the worker's comorbid diagnosis of depression was not considered an occupational disease and happens commonly in the general population. As Review Office was unable to conclude a specific injury occurred, it was determined the worker's claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on January 8, 2018. An oral hearing was arranged.

Following the hearing, the appeal panel requested additional information. The requested information was later received and was forwarded to the interested parties for comment. On December 4, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 union representative, who relied on a written submission provided to the panel prior to the hearing. He summarized their position at the hearing. The worker responded to questions from his representative and the panel.

The representative's position was that the worker had been exposed to a variety of trauma at work over the years, but it had first affected him around 2016, at which time the worker reported to the WCB that he became angry, paranoid and anxious, with difficulties sleeping and focusing. He first sought help through an EAP program and then from his general practitioner who referred him to a psychiatrist. At that point, the worker was diagnosed with PTSD and he filed a WCB claim. After a few sessions, his thoughts centered around a specific incident in April 2016. He had moved to a new unit and was threatened by a specific resident.

The representative noted that the WCB had initially accepted the claim. The employer appealed, noting that the worker would have been required to report this incident to them, and as he had not done so, the incident did not happen. The WCB psychiatric consultant agreed, and Review Office denied the appeal on that basis. Their position is that it was unreasonable to conclude that the failure to file a report meant that the incidents didn't happen. Instead, the reports from the worker's treatment providers support that a delayed onset of PTSD is reasonable and credible, given the circumstances. In particular, the worker's realization of the effects of a specific trauma occurred over time, with treatment, when his symptoms began to abate. This is consistent with what the worker reported when he filed his claim, that he had hoped to identify the cause of his psychological difficulties through treatment. This is precisely what happened.

The worker described his employment history and the nature of the work environment, which included residents who were gang members and histories of violent behaviour, and the gradual onset of behavioural changes which were first noted by his work partner. He ignored the comments at the outset, but finally decided to get help when he was having difficulties driving to and from work, and when the residents started to comment on changes in him.

Regarding the worker's focus on the resident's threat in April 2016, the worker advised that:

It emerged just over time and I still am not positive that that's the only incident. It's just the incident that I had the most nightmares about. It was the incident that I kept thinking about more often than anything else. So when that happened, at that time WCB had not accepted my claim for approximately six or eight months, and they kept telling me that they wanted a specific incident, and that was the most specific that I could possibly get, so I said that I believe that this might be it. I never said that it was guaranteed it.

The worker also noted he had witnessed a suicide and a suicide de-escalation, where an individual had put a razorblade to his neck and threatened to kill himself.

The worker then described the specific event in April 2016, where he had been transferred to a unit that housed a particular gang. He had been there for two weeks. He was having some issues with a specific resident who was not listening to him, and was breaking minor rules and not paying attention to the direction that the worker was providing.

A Yes. I had been having some issues with him for a couple days already. He just wasn't listening to me. I would give him direction -- he would be breaking a rule, a minor rule, and I'd give him direction and he just wouldn't listen to me. He'd just sluff me off and not pay attention to me. And on this day I was telling him that he had to go lock up, … and he just ignored me, told me that he wouldn't do it. And then when I told him again that he's got to go lock up, he just threatened me, threatened to kill me and beat me up. And that was that. I just stared, I stared him down. I really didn't have a choice at that time. I was backed up against a stairwell. I really couldn't go anywhere. I stared him down. He eventually gave up and decided to go back to his cell.

Q Were you alone at the time?

A Yes, I was.

Q Alone in terms of you had no coworkers. Were there other [residents] around?

A Yes, there was other [residents] around. They were just doing their thing, locking up.

Q After you told him to [lockup], how did you feel?

A It didn't bug me a whole lot. It felt a lot like -- I mean I was, I had adrenaline going. It was definitely something on my mind, but I've been threatened before. I didn't think anything major of it. I thought what's wrong with the guy. Obviously something's wrong with him. What's going on? I honestly just thought that he did it as a thing because I was new and I thought he was just pushing my buttons. So I went and I talked to other staff members about it and I found out that he had a history of doing this before. He had a history of not listening to new staff. So I took it as that and I just figured that, hey, he was doing it because I was new and he's going to stop. And he did stop.

The worker noted that he had spoken to a specific co-worker, who "went and talked to [the resident] about it. And after that, he was perfectly amicable with me." He advised that he did not feel it was a big deal at the time, but did feel that is life was in jeopardy at that point. The resident outweighed him by probably 40 pounds. The worker was backed up against a stairwell, and the resident had been a gang member his whole life.

The worker acknowledged that he hadn't reported the incident to the employer, as he felt that not much would get done. The resident would receive a loss of certain privileges and would be back in the unit, and it would not make the worker's life any better. When asked about the standing order that the facility has regarding incidents, and whether all incidents are reported to the employer, the worker replied "not even close." The worker did not feel that this incident was major but he should have reported it, but didn't. He had made a mistake.

The worker then described his treatments afterwards and the difficulties he now encounters in his daily life. He continued to work until November 2016, at which point he described his symptoms as close to a 10/10. He physically could not drive to work any more. At the time the WCB terminated his claim he was still under treatment and was at a 5-6/10. At that point, he was about to go out in public again. Under a guided process, the worker has since returned to work with restrictions, where is not to work in the higher security areas.

The representative asked the panel to place weight on the worker's evidence that regardless of the employer's policy requiring all incidents to be reported and charges laid, this is not consistent with the real practices at the workplace. He asked the panel to accept the worker's evidence that he was threatened and perhaps didn't feel that his life was in jeopardy at that time, but that it haunted him later, which is what has been identified consistently by the worker's health care practitioners as being responsible for his PTSD.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. His position was that the claim should not be acceptable as an accident under the Act nor does it meet the definition of PTSD. There was no identifiable act and Criterion A under the DSM-5 has not been met.

The coordinator notes that there has been inconsistency throughout the file as to what the worker attributed his psychological issue to. The worker did not report any specific events to his employer, physicians, or the WCB early on, only general issues related to the type of workplace where he had been working.

He further notes that there are policies regarding reporting of incidents as well as logbooks that are used as a means of sharing information about shifts and maintaining written accounts of events, occurrences and resident counts. They are located in each unit. There was, however, a list of incident reports associated with the worker, none of which were serious enough to meet the criteria for PTSD. However, there is no record of the incident that the worker was describing, which was more serious. The coordinator suggests that all the physicians seen by the worker are maintaining the diagnosis of PTSD on the basis of their accepting that he was threatened by one particular resident. However, this has not been established. The only evidence is that of the worker. This isn't sufficient to establish the claim.

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 was able to make that finding.

The central issue in this claim has been on whether a diagnosis of a work-related PTSD can be established. In order to establish this diagnosis, the panel must find that all the criteria for PTSD as set out in the DSM-5 have been met. The focus of all parties, from the outset of the claim and in this appeal, 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.

During the hearing, the worker and his representative focused on certain interactions in April 2016 that the worker had with a specific resident who, he said, had been threatening him. The worker advised that he had spoken with a co-worker about it, and that she had then gone to speak with the resident to calm the situation down. It was that particular incident which was traumatic to him that eventually led to his seeking psychiatric treatment a few months later and then filing a WCB claim, on the advice of his psychiatrist. Countering this position, the employer's representative asserted that the nature of the job would routinely expose workers to those types of threats. There were standard reporting practices available to the worker (and which were regularly used) that would lead to immediate disciplinary consequences to the residents. The worker acknowledged that the he knew of that system but did not report these particular incidents. The employer believed this incident was therefore minor in nature and would not meet Criterion A, and a work-related diagnosis of PTSD cannot be established.

Given the positions of the parties, the panel turned its attention to two questions: 

a. Was there an incident or incidents at the workplace had the potential to qualify as traumatic events under Criterion A, in particular, direct exposure to actual or threatened death or serious injury? 

b. If yes, were those incidents actually traumatic to the worker?

Dealing with the first question, the panel finds that there was an incident at work in April 2016 that would notionally qualify under Criterion A of the DSM-5 for PTSD, based on the following considerations:

• The panel explored whether there was corroborating evidence as to whether the April 2016 incident had in fact happened, given the heavy focus on this by both parties at the hearing. The panel noted that a co-worker was referenced in the file and at the hearing, but had not been contacted successfully by the WCB case manager. Accordingly, after the hearing, the panel arranged to obtain a statement from the co-worker (the worker's colleague at the time of the April 2016 incident), which was shared with the parties for their comments. Her October 1, 2018 statement disclosed that: 

o She did not directly witness any encounters between the worker and the resident. 

o She did remember "there was [a resident] who was being not so much threatening, but just always getting into his face, always talking, you know -- …-- not so much threatening. I did have--I don't even remember the guy's name, but I do remember something like that. I talked to the [resident] a couple of times, addressed his behaviour towards my partner and --" 

o She described the work environment and conduct as: "It's -- like, they -- they do that to show intimidation. If they threaten you, if they're mad at you and they say they're going to do this to you, we're going to beat you up and slash you, we're going to kill you, that's totally different. In this case it was he just didn't like [the worker] for some reason. He always gave him a difficult time, he wouldn't listen to his direction. It's minor to me, anyway, maybe I shouldn't say that, but it is, you know, to me, and I just talk to him, Hey, you know what, he's an officer just like me, give him that -- show him that you just show me, blah, blah, blah. And before you knew it, it was -- [the worker] was relocated to another unit in the facility and that was it. And honestly, that's I can remember (sic)." 

o The reporting and disciplinary process is not used 100% of the time for all incidents. She and her co-workers have the discretion on when to use that process, even for threats. There are no automatic triggers for when it is to be used.

• The panel finds the worker's delayed identification of the specific April 2016 event was reasonable in the circumstances of this particular case. By the time the worker filed his WCB claim in November 2016, he was in general distress and had already been seeing a counselor and his doctor, and soon after saw a psychiatrist who had provided a provisional diagnosis of PTSD and depression on December 3, 2016. The worker's history at that time did specifically note "work related stress and difficulties, traumatised (sic) at work with threat from [residents] and incidents…"

• The panel notes that somewhere between December 3 and February 2017, the psychiatrist was able to isolate a specific incident. On February 18, 2017, the psychiatrist reported on that he had seen the worker for three follow up appointments. He provided a more detailed history, that "[the worker] had a life threatening incident with [a resident] at work as a [worker's occupation]. He reports having flashbacks and nightmares relating to that incident…" The panel notes that the worker provided a similar history to a WCB psychological consultant who interviewed the worker on June 28, 2017.

• The panel places little weight on the delay between the April 2016 incident and the first visits with the psychiatrist in December 2016, given that the worker had attended an EAP counsellor in that period as well as his attending physician. The worker left work in November 2016 and sought treatment soon after.

• The panel therefore finds that the April 2016 incident with a specific resident did take place, based on the worker's consistent identification of the incident soon after leaving work and the corroborating evidence provided by the worker. In this regard, the panel also notes and accepts the worker's early comments that he was hoping his treatment would help him identify a specific trigger, which is in fact what happened. As a result, the panel places lesser weight on the worker's failure to file an incident report, given the evidence of both the worker and the co-worker that there was some discretion left with them on whether and when to file these reports.

The panel then considered whether the events were traumatic to the worker, and finds that the evidence supports that the April 2016 did have that effect on the worker. The panel acknowledges that while threats by a resident did not bother the co-worker, her evidence clearly suggests that it had in fact affected the worker, given that: the worker and co-worker had only worked with each other for a short period of time, yet the co-worker clearly recalled the incident that had occurred two years earlier; the worker had approached her for assistance; while not recalling the resident's name, the co-worker remembered his general conduct and demeanor; and she had to intervene on the worker's behalf with the resident. In the panel's view, the co-worker corroborated the worker's early evidence to the WCB and the histories he provided to his treating psychiatrist regarding the impact of that incident. The panel therefore concludes that Criterion A of the DSM-5 guidelines for PTSD, was met, as were all the other criteria, based on the medical information on the file. The panel further finds that the worker's PTSD condition was related to his work.

The panel therefore finds that an accident has been established under the Act, based on acceptance of a work-related PTSD, on a balance of probabilities.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

A. Finkel - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of January, 2019

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