The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his right hand/arm injury as being related to the August 24, 2016 accident. A hearing was held on January 8, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right hand/arm injury as being related to the August 24, 2016 accident.

Decision

Responsibility should be accepted for the worker's right hand/arm injury as being related to the August 24, 2016 accident.

Background

The worker had an accepted claim with the WCB for a psychological injury that occurred on August 24, 2016. The worker was in receipt of wage loss and medical aid benefits.

On December 18, 2017, the worker contacted the WCB to advise he injured his right arm and hand. He further advised the WCB that due to his psychological injury, he had not been eating or sleeping properly and had taken too much of his prescription medications. As a result, he had been rendered unconscious and fell on his arm in the bathroom between the toilet and the wall. He was found approximately eight hours later and rushed to the local emergency department. Due to the length of time he was laying on his arm, the worker was required to undergo a right hand compartment release.

The worker attended an appointment with his treating psychologist on December 27, 2017. The psychologist noted:

Recently, he had experienced an incident where he was triggered by a television show where a crime was examined. He indicated experiencing "a flood" of flashbacks and memories that resulted in his being unable to sleep for three days. He noted using alcohol and prescription medication in attempt to fall asleep. His actions resulted in his losing consciousness and awakening five days later. He noted almost having his arm amputated as a result of his falling on the ground in an awkward position. He stated that this incident was not an attempted suicide.

The WCB advised the worker on January 8, 2018 that the injury to his right arm and hand was not accepted in relation to his original compensable psychological injury as a secondary injury. The WCB noted that given the length of time the worker had been taking the medications and given his training as a registered nurse, he would have been, on a balance of probabilities, more educated on the harmful and potential deadly effects of using excess medications combined with alcohol.

On March 16, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker expressed disagreement with the WCB's decision as he felt his educational background should have had no bearing on his claim and that his treating community healthcare providers were not consulted for their opinions after his injury.

Review Office determined on June 22, 2018, that no responsibility would be accepted for the worker's right arm injury in relation to the August 24, 2016 accident. Review Office noted the evidence on the file reported to both the WCB and the worker's treating psychologist that the worker had consumed alcohol in addition to more than the recommended dosage of his prescription medication in an attempt to deal with the difficulties he was experiencing. However, Review Office found that the consequences of the worker's actions were not the responsibility of the WCB.

The worker's representative filed an appeal with the Appeal Commission on July 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.

The worker has an accepted claim for PTSD and is seeking coverage for a secondary incident which occurred after his diagnosis.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, sets out guidelines applicable to claims for psychological injuries.

WCB policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, ("the Policy") is applicable to this appeal. It states:

A. POLICY

A further injury occurring subsequent to a compensable injury is compensable: 

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

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's right arm injury is a further injury subsequent to his compensable injury and accordingly, is a compensable injury under the Act. The worker's representative stated:

We submit that the evidence supports that this right arm injury is a further compensable injury subsequent to his compensable psychology condition, in accordance with WCB policy 44.10.80.40. This policy provides that a secondary condition will be considered compensable in three scenarios:

(a) when it's predominantly attributable to the compensable injury; 

(b) when the situation -- when it's caused by a situation where the WCB has specific control; or, 

(c) it is the result of treatment for the original compensable injury.

Consistent with the first option, we submit that, on the balance of probabilities, [worker's] compensable post traumatic stress disorder either caused or significantly contributed to his experience of overwhelming psychological distress in 2017, December of 2017, the associated inability to sleep, his misuse of medication, whether intentional or not, his loss of consciousness, his collapse and the resultant right arm injury.

The worker's representative acknowledged the second scenario outlined in the policy would not be applicable in this case. However, he submitted that right arm injury can be considered compensable under the third option of the policy because the circumstances of his secondary injury which arose out of the pharmaceutical treatment of the compensable injury.

The worker's representative noted that the WCB denied the worker's claim on the basis of the condition in the policy which states:

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The worker's representative stated:

We submit that the evidence on file demonstrates the effects of his PTSD overwhelmed [worker] in December of 2017. He had been going for therapy and was taking medications, but these treatments failed to enable him to adequately manage the mental distress and lack of sleep.

The worker's representative submitted further that:

• while he did take more than the medication recommended, used to treat the effects of the PTSD, he did not knowingly do anything contrary to WCB direction.

• the worker maintains that he simply wanted to get some sleep and acknowledged that he did misuse the medication in an attempt to achieve that goal.

• the worker was not likely in a sufficiently clear and capable state of mind to fully appreciate the consequences of his actions at that time,

• it is unjust for the WCB to assign all responsibility back onto worker when his judgment was clearly impaired by his distressing psychological symptoms and the associated lack of sleep.

The worker's representative submitted that the WCB has refused coverage of the further injury because the worker failed to mitigate the effects of his injury. He stated that the WCB failed in its obligation to identify and address this matter before denying any responsibility. He also stated that the WCB is responsible to supervise and control the medication that was prescribed to treat the effects of the worker's compensable injury.

In reply to questions from his representative the worker advised:

• he is a registered nurse with experience in forensic nursing for juvenile/adolescent psychiatry, medical trauma, and psych trauma.

• he has worked with marginalized populations.

• at the time that the PTSD claim arose, he worked in a position which involved investigating the deaths of young people.

• he was having trouble sleeping, panic attacks, and nightmares. He kept seeing kids and their photographs and couldn't get them out of his head.

• he trialed different antidepressants and different sleeping medications.

• he was seeing a psychiatrist and psychologist.

Regarding the incident which resulted in a further injury, he advised that he had been watching a documentary which dealt with the murder of a young person which "just destabilized me." He said he could not sleep for several days. He tried using alcohol and medication to get some sleep.

Regarding his use of medications, he advised that:

I just kept upping the dose, thinking I'd go to sleep eventually. And then I just kept upping it and upping it and upping it, and I collapsed in my bathroom.

He advised that when he awoke he did not know where he was at first, but learned he was in an intensive care unit. He remained in the hospital for about month.

The worker explained that as a result of the incident and specifically passing out on his side for approximately 8 hours, he injured his right arm. He is seeking coverage for the right arm injury under this claim.

The worker denied this incident was an attempted suicide. He stated that he did not want to die, he just wanted to sleep.

The worker's representative submitted that the evidence on file confirms that, but for the effects of his compensable injury, the worker would not have had a secondary accident, nor sustained a further injury to his right arm.

The worker answered questions from the panel. He confirmed that he was aware of the purpose of the various prescribed medications and the prescribed dosages. He told the panel that he did not know the volume of the prescribed medications that he used during the three days prior to the incident.

In reply to a question from the panel about when he exceeded recommended dosage if he was aware that it would potentially cause him to go into an unconscious state, he replied:

No, I was just terrified. I just wanted to sleep.

In reply to a further question about when he became destabilized, the worker responded:

I just destabilized. Like I can't -- it's tough to describe. You know, you're doing okay and then the next second you're down the rabbit hole.

In closing the worker's representative submitted, in part, that:

There's no question, the medical evidence supports that he has an acceptable claim. He was suffering from post traumatic stress and he had an intensification of those symptoms. It wasn't a personal issue, a family matter, fights with the employer. There's no evidence to suggest that there was any other reason for his symptoms to become acute, other than the injury itself. And, unfortunately, the options that he had available to him did not help. And in our view, the fact that those treatments failed to help him only supports the fact that it was an increase of his injury, an increase of that compensable injury. It was the compensable injury that was predominantly responsible for this right arm injury and, in our view, there's no evidence to suggest there's any other reason for this.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. His position was that the worker's December 8, 2017 injury is not a subsequent accident under the Policy, is not related to the worker's August 24, 2016 injury, and therefore is not covered by the WCB.

He submitted that:

In our view, there is no causal relationship between the right hand/arm injury and the accepted compensable injury. We submit that the circumstances surrounding the worker sustaining his right hand and arm injury don't meet the specific requirements under the Board policy ... We agree with the prior decisions of Compensation Services and Review Office and we're asking the panel to find that no responsibility should be accepted for these injuries to his arm in relation to the compensable injury.

The employer representative also submitted that the worker has failed to demonstrate that any of the three conditions noted in the Policy have been met. He submitted that the resulting injury to the worker's right hand and arm were the result of actions known by the worker that would not have been compensable to the WCB.

The employer representative noted that the worker told the case manager that he was having sleep and eating issues, that he took too much medication and passed out, that he could not sleep due to traumatic memories, that he misused certain types of medication and that this wasn't an attempt on his life.

He referred to correspondence dated January 4, 2018 in which the case manager noted:

I inquired with him how many pills he took, he [said] he was going in and out of his bathroom several times taking pills over the course of [the] evening, the bottles were full prior to that evening. He stated he was unstable for about 3 days and had been unable to sleep and [that's] all he wanted [to do]. He confirmed he drank about 6 cans of beer as well over the same course of time ... his judgement was [somewhat] clouded as he only wanted to sleep, that is why he used the alcohol as a depressant...

The employer's representative submitted that evidence on the file showed that the worker could rationalize that taking more pills than recommended would help him sleep, he could rationalize and could understand what the recommended dosage for the pills were and he could rationalize that taking more than what was recommended would help him achieve the sleep that he wanted. He said that the worker:

...decided on his own accord to intentionally over medicate with alcohol and prescription medication, in an attempt to fall asleep.

The employer representative also submitted that:

…it wasn't the use of the medications that resulted in his passing out. It was his conscious misuse of the medications over and above what was medically prescribed, in combination with the alcohol, that resulted in him losing consciousness.

The employer representative stated:

Now with respect to part (iii) of the policy, the rationale put forward by the worker rep we disagree with totally. In our view, point (iii) pertains to situations where injuries can occur as a result of intended and prescribed treatment, not where the worker knowingly and intentionally decides to circumvent that treatment.

With regards to the overuse of the medications, the employer's representative said that consideration should be given to the fact that the worker was a registered nurse and had training as a psychiatric nurse, and should have known about the potential consequences of an overdose.

The employer representative submitted that the worker's incident did not fall into any of the three categories noted in the Policy for acceptance of a further injury claim. However, it did fall into the condition in the Policy, specifically it was a further injury which occurred as a result of actions known by the worker not to be acceptable to the WCB is not compensable.

Analysis

The worker is appealing the WCB decision that his December 8, 2017 injury is not related to his 2016 claim. For the worker's appeal to be approved, the panel must find that the worker's actions and the resulting injury satisfy the requirements of the policy. The panel was able to make this finding in the unique circumstances of this claim. The panel finds that the worker suffered an exacerbation of his PTSD symptoms and the resulting injury was the result of his workplace accident.

The central issue in this claim revolves around whether the facts of this claim fall within the terms of the Policy. At the hearing, the worker's representative acknowledged that item (ii) of the policy does not apply to the worker's claim. However he submitted that item (i) the cause of the further injury is predominantly attributable to the compensable injury and (iii) it is the result of treatment for the original compensable injury do apply.

The panel accepts the worker's evidence that after viewing a video, he became distraught, could not remove the shocking images from his mind, could not sleep, fell in to a confused state over multiple days where his only goal was to get sleep and remove the images from his mind. The panel accepts that the worker consumed the prescription medications in an attempt to manage a major flare-up of symptoms of his compensable PTSD and was not intentionally undertaken to abuse the medications. Given these findings, the panel finds that the unintended consequences of the use of the medications - loss of consciousness and injury to the arm are causally related to the compensable injury.

In making this decision, the panel has accepted the worker's evidence regarding his condition at that time, specifically that he suffered an acute exacerbation of trauma, days of sleep deprivation and triggering, and then made a desperate and irrational attempt to deal with the symptoms. The panel also notes there is evidence to support that the worker was having difficulty dealing with his condition prior to the acute exacerbation. This was confirmed in the following correspondence.

• report from the worker's psychiatrist pertaining to a November 16, 2017 meeting indicated that:

I met with [worker] on November 16, 2017. At that time he continued to experience ongoing symptoms of depression and posttraumatic stress disorder, with intense anxiety and very disturbed sleep.

• report from the worker's psychotherapist dated November 29, 2017 indicated that the worker had reported that he was having distressing symptoms including flashbacks. 

The panel also notes that shortly after the incident, the worker was interviewed by a psychiatrist at the hospital and provided information consistent with his explanation to the WCB.  In a December 11, 2017 Consultation Report the psychiatrist noted:

He denies suicidal intent and states that he wanted to "go to sleep for 24 hrs" and felt that taking mare (sic) pills than recommended will help him achieve that. He denied any association between a tub of water and overdosing, stating he did not think the pills would actually render him unconscious, or too sleepy before able to have a bath.

As well, the worker's psychologist noted in a December 27, 2017 report that the worker advised that he was not sleeping due to trauma memories and that he misused medication.

Regarding the suggestion that the incident was an attempted suicide, the panel accepts the worker's evidence that he did not intend to harm himself.

The panel notes that the employer has submitted that the worker's action falls under the condition in the Policy which states:

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The panel finds that the condition noted in the policy does not apply to the facts of this case. The panel accepts the worker's evidence that his focus was strictly on getting sleep and that he was not intending to hurt himself or cause any further injury. The panel accepts that when the worker ingested the medications, he was not capable of rational thought, and his decisions were not based on consideration of consequences, rather on relief from the trauma of the workplace injury,

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of January, 2019