The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his psychological difficulties are not compensable. A hearing was held on April 3, 2019 to consider the worker's appeal.

Issue

Whether or not the worker's psychological difficulties should be accepted as being a consequence of the August 26, 1996 accident.

Decision

That the worker's psychological difficulties should not be accepted as being a consequence of the August 26, 1996 accident.

Background

This claim has been the subject of previous appeals and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision Nos. 78/12 and 21/16, dated June 26, 2012 and January 27, 2016, respectively.

On August 26, 1996, the worker suffered an injury to his left shoulder and a scalp contusion following an assault at work. His claim for compensation was accepted by the WCB and various types of benefits were paid to the worker.

Following a call-in examination of the worker on October 27, 2000, a WCB medical advisor recommended permanent restrictions for the worker's left shoulder and temporary restrictions for his neck. As a result of the permanent restrictions, the worker was referred to the WCB's vocational rehabilitation program.

On January 22, 2001, the worker was assessed by a psychological consultant to assist with determining possible vocational options for the worker. One of the psychological consultant's recommendations as a result of that assessment was:

In recognition of the significant physical and family changes that [the worker] has experienced, you had discussed with him further counseling, and I understand that his (sic) will be forthcoming.

On June 28, 2001, the worker began seeing a counsellor in his home community. Updates on the worker's progress were received by the WCB on January 16, 2002 and May 8, 2002.

On June 19, 2002, the worker attended a further call-in examination with a WCB psychological advisor. Recommendations from that examination included:

1. Continuation with counselling on a weekly basis for the next 2-4 months.

2. Solicit monthly reports from the counsellor with the counsellor focusing on barriers to rehabilitation and early issues as these interfere with his successful current coping… (Original emphasis)

On February 10, 2003, the worker's counsellor advised the WCB that the worker had attended for sessions on June 5, 19 and 26, July 18 and August 7, 2002, but that contact with the worker had diminished when he started working as a truck driver. The counsellor wrote that the worker indicated he felt "finished with our work for now and expressed gratitude for my assistance." The counsellor added that the worker called him in December 2002 to say that things were going well and that he sounded happy and stable.

On December 5, 2006, the worker contacted the WCB case manager and advised that he was having issues dealing with emotional problems regarding his claim. He noted that he had seen a counsellor a few years earlier. The case manager indicated she would look into this and recommended he see his family physician and obtain a medical report. On December 7, 2006, the WCB referred the worker to a clinical psychologist for an assessment. On April 9, 2007, the clinical psychologist advised that the worker had attended for two sessions, and made no recommendations for further treatment.

On May 2, 2017, the worker contacted the WCB to advise that he was unable to sustain long-term employment due to mental health issues which he attributed to the August 26, 1996 workplace accident. On May 17, 2017, the worker sent a letter to the WCB setting out details of an altercation with a co-worker that occurred on March 21, 2017, and wrote "I'm scared for I was assaulted at work in 1996 and do not want to be assaulted again at work I'm nervous scared and yes feel like I've been a victim of work place bulling (sic)!"

On May 31, 2017, the WCB was provided with a report from a health clinic indicating that the worker had attended a grief recovery method program from April 27, 2017 to May 18, 2017, then informed the clinic he could no longer continue in the program because he was leaving town.

On August 24, 2017, the claim file was reviewed by a WCB psychological advisor, who opined:

I have reviewed the entire file, including the psychological assessment of [the clinical psychologist] dated January 24, 2007. In her assessment report of January 24, 2007, [the clinical psychologist] opined, "It would appear that [the worker] has endured various problematic experiences for the entire course of his life." She also noted, "He appears to be very frustrated with the WCB for not providing greater support that from his perspective would a (sic) continuation of all the harmful hurdles thrown in his way over the years…"

There is no evidence in [the clinical psychologist's] report of 2007 or elsewhere on file of the presence of any psychological condition or psychiatric diagnosis that has materially arisen as a result of the workplace injuries of August 1996.

There also is no report of a pre-existing psychiatric diagnosis having been made. Based on reports to file and on file material, there are pre-existing congenital/developmental features that are having a significant impact on [the worker's] functioning, including his decisions with respect to his jobs and his recently reported fear of workplace altercations.

On September 21, 2017, Compensation Services advised the worker that responsibility was not accepted for his psychological difficulties as they were not related to his August 26, 1996 workplace accident.

On March 7, 2018, the worker contacted the WCB by email and advised that he did not "have the proper skills of dealing with simple altercations" and was unable to cope with his fear of physical altercations and being hurt again. The WCB was provided with an initial assessment by a treating psychologist, dated March 28, 2018. The treating psychologist noted that the worker was referred "for counselling due to non-compensable factors that are seen as barriers to optimal treatment for physical injuries." In an email dated April 9, 2018, the treating psychologist clarified that the worker had reported that his psychological symptoms were the result of his 1996 compensable injury.

On May 4, 2018, Compensation Services advised the worker that the further information had been reviewed by the WCB psychological advisor, who opined that:

…The March 28, 2018 report of [the worker] does not include symptoms that support a diagnosis of PTSD [post-traumatic stress disorder].

[The worker] also does not provide support that symptoms reported are materially related to a workplace injury.

Based on information provided by [the worker] in his report, there is no diagnosis of PTSD and no diagnosis materially related to the worker's original workplace injuries.

As a result, Compensation Services advised the worker that there was no change to the September 21, 2017 decision.

On May 8, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that he was suffering from PTSD as a result of his 1996 workplace assault and had suffered many job losses due to his fear of physical and vocal altercations turning into an assault such as he had experienced in 1996. The worker further submitted that he suffered from depression and anxiety as a result of the 1996 workplace accident, in addition to PTSD, as diagnosed by his treating psychologist.

On June 1, 2018, Review Office determined that the worker's psychological difficulties were not compensable. Review Office found that at the time of the August 26, 1996 workplace incident, the worker did not report, or seek treatment for, a psychological injury related to the workplace accident. Review Office noted that the worker's reported emotional difficulties in 2006 were related to personal stressors and interactions with the WCB. Review Office found that these types of issues would not be considered an accident under The Workers Compensation Act (the "Act").

Review Office placed weight on the August 24, 2017 and May 3, 2018 opinions of the WCB psychological advisor that the evidence did not support that any psychological injury or psychiatric diagnosis for the worker occurred as a result of the worker's August 26, 1996 workplace accident.

On August 29, 2018, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by 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.

"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 in subsection 1(1) 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.

The WCB's Board of Directors has established WCB Policy 44.05.30, Adjudication of Psychological Injuries, the purpose of which is to explain the way that claims for psychological injuries will be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.

Worker's Position

The worker was self-represented and was accompanied by a support person at the hearing. The worker and the support person participated in the hearing by teleconference. The worker made an oral presentation, and the worker and the support person responded to questions from the panel.

The worker's position was that his PTSD is related to the August 26, 1996 workplace assault and should be accepted as a compensable injury.

The worker described the August 26, 1996 incident as a serious and vicious assault, where he was rendered unconscious, and woke up in the hospital with a third degree separated shoulder. He stated that his life changed dramatically because of that assault. Among other things, he said that he has chronic pain. He has been through 42 jobs since 1996. He quits his jobs when issues arise, as he fears physical and vocal altercations. He is always on guard. He cannot go close to where the original incident occurred or into public places. Odors and noises are triggers for him.

The worker noted that he was not treated for PTSD when he was going through the vocational rehabilitation process and getting into trucking in the early 2000s. He thought that PTSD was not something that was recognized by the WCB back then.

He stated that numerous times he had felt that there was something wrong with him, going from panic attacks to depression, being scared of going out in public for fear of being assaulted or getting into an altercation. He said he did not know anything about PTSD at that time.

The worker stated that he is at school now, which is helping. He said he has been diagnosed with PTSD by his current psychologist, who has been treating him for the past nine months. He indicated that while that diagnosis goes back to 1996, it has continued to affect him since then. In his appeal form, it was noted that he had tried to move on, but the trauma had been re-activated more recently while working on modified duties.

The worker's support person is an educator who helps put WCB clients through educational services and had been working with the worker for approximately ten months. She said that the worker's progress over that period of time had been amazing. She described significant improvements in his ability to integrate and socialize, to focus on his work and to succeed in his studies. She indicated that the support for the worker from his visits with the psychologist throughout that process had been very helpful, and submitted that it is really important that he continue to receive that psychological help.

In conclusion, the worker indicated that he was not looking to go back to 1996, but was asking that the WCB work with him now, to help him so he could continue seeing the treating psychologist and continue to get better from his injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's psychological difficulties should be accepted as being a consequence of the August 26, 1996 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's psychological difficulties were caused by the August 26, 1996 workplace accident. The panel is unable to make that finding.

The worker's position is that he suffers from PTSD which is related to his August 26, 1996 workplace accident.

The panel acknowledges the worker's current psychological difficulties, but is unable to relate those difficulties to the August 26, 1996 workplace accident.

In coming to this conclusion, the panel notes that there is an absence of references in the early medical reports to psychological complaints or difficulties.

The panel further notes that the psychologists who subsequently reviewed the file and assessed the worker consistently referred to barriers to returning to work due to unrelated past issues.

The worker was thus seen by the WCB psychological advisor at a call-in examination on June 19, 2002 in the context of dealing with barriers to rehabilitation. The advisor conducted a detailed examination of the worker and reported findings of chronic post-traumatic stress symptomatologies, which were related to pre-existing childhood and family issues, as opposed to the workplace accident. The panel notes that the advisor, who was fully familiar with psychiatric conditions such as PTSD, declined to establish a PTSD diagnosis at that time.

The worker was subsequently referred to a clinical psychologist, who conducted a 1½ hour assessment of the worker on January 5, 2007, and similarly attributed the worker's psychological difficulties to pre-existing childhood and family issues as opposed to effects of the workplace accident. Again, a diagnosis of PTSD was not established.

The panel notes that there is an absence of any suggestion in the information on file that the worker's psychological difficulties were being attributed to his workplace injuries. In the panel's view, if the difficulties were being considered in that way, restrictions to address those difficulties would have been discussed.

The worker relies on an initial report from his treating psychologist dated March 28, 2018. The panel notes that the report indicates that the worker had been referred to counselling to address factors that were seen as barriers to optimal treatment for physical injuries and to facilitate a return to work. While the worker stated that the treating psychologist had diagnosed him with PTSD, the panel notes that the report states that the worker "appears" to suffer from symptoms of post-traumatic stress and that the worker attributed these stress symptoms to being "the victim of an assault in 1996."

Accordingly, based on our review of the information on file and as presented at the hearing, the panel is unable to find that the worker's symptoms support a diagnosis of PTSD. Even if the diagnosis of PTSD could be established, given the evidence and the significant passage of time since the accident, the panel would be unable to find that such an injury or diagnosis is causally related to the workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's psychological difficulties were not caused by the August 26, 1996 workplace accident.

The panel therefore finds that the worker's psychological difficulties should not be accepted as being a consequence of the August 26, 1996 accident.

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 31st day of May, 2019