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 June 11, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker reported that she suffered a psychological injury to the WCB on January 25, 2017. She attributed her injury to a "personal incident at home" that occurred on December 16, 2016.

On December 20, 2016, the worker was diagnosed with PTSD (post-traumatic stress disorder) by her treating physician after reporting that she was suffering from nightmares, panic attack, flashbacks and hypervigilance from the incident on December 16, 2016 and approximately "4 other calls over her career." The physician noted "poor concentration, in tears, anxious mannerisms" by the worker and referred her for counselling. A pre-existing condition of anxiety was noted.

At a follow-up appointment on January 24, 2017, the worker's treating physician noted that the worker was "a little more in control of her emotions" but also noted that the worker was not in a position to return to work. A further referral to a psychologist was made.

In a discussion with her WCB case manager on February 9, 2017, the worker confirmed the incident on December 16, 2016 and that the incident triggered flashbacks for her of five other calls she had responded to in the past that were difficult. The worker noted that she did not discuss her ongoing difficulties with her co-workers, just her family, but had sought treatment from an EAP throughout her career. The WCB spoke with one of the worker's co-workers on February 9, 2017 who confirmed one of the incidents the worker mentioned.

On March 2, 2017, the worker's treating psychologist provided a report to the WCB indicating that the worker met the criteria for PTSD, major depressive disorder and that she had symptoms of generalized anxiety disorder. The psychologist further noted that the worker met the criteria for acute PTSD but could not determine whether the condition was chronic or if the worker met the criteria prior to the incident on December 16, 2016.

The WCB requested confirmation and further information from the employer regarding the incidents mentioned by the worker on March 20, 2017, which was received on May 19, 2017. The employer could only confirm that one of the described incidents occurred. In a follow-up email dated June 16, 2017, the employer advised that the worker had not discussed any of the incidents with her supervisors and that her managers only became aware of a concern after the December 16, 2016 incident.

The WCB advised the worker on July 26, 2017 that while she met Criteria A of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for a diagnosis of PTSD and her job duties led to her being exposed to traumatic events, it was determined that the incident of December 16, 2016 occurred on her personal property, while she was off duty and was not considered to be an accident as defined under the Act. Therefore, her claim was not acceptable.

The worker requested reconsideration of the WCB's decision to Review Office on December 13, 2017. The worker noted in her request that her PTSD was caused when she was assaulted at work in October 2016 and submitted a November 10, 2017 assessment from her psychiatrist. In the treating psychiatrist's report, it was noted that the worker "…became symptomatic with Post-Traumatic Stress Disorder…" after she suffered a sexual assault in October 2016. On December 14, 2017, Review Office returned the worker's file to the WCB for further investigation.

The WCB requested further information regarding the October 2016 assault from the employer on December 18, 2017. On December 20, 2017, the employer confirmed with the WCB that the worker had filed an Occurrence Report for the incident on October 3, 2016 but had not reported any further complaints related to that incident since then. On February 8, 2018, the WCB advised the worker that the new medical information submitted was reviewed but the decision that her claim was not acceptable was upheld. The WCB further noted that the worker's symptoms began after the December 2016 homestead incident and that the diagnosis of PTSD was not related to her employment. The presumption that the worker's employment was the dominant cause of her PTSD was rebutted.

The worker's representative contacted the WCB on April 23, 2018 and requested that the WCB speak with the worker regarding her claim as she believed she was working with her other employer on the incident date of December 16, 2016. The WCB discussed this information with the worker on April 23, 2018. The worker confirmed that she worked in a volunteer capacity for a rural municipality and that she was paid for three hours of work in relation to the December 16, 2016 incident by the municipality. On May 3, 2018, the Chief Administrative Officer for the rural municipality confirmed that the worker, and other volunteers, received and responded to an emergency page for the December 16, 2016 homestead incident and that the worker was paid for three hours work for that day. The WCB advised the worker on July 26, 2018 that the new information from her representative was reviewed. However, it was determined that her involvement in the incident of December 16, 2016 was a personal one and there was no change to the earlier decisions.

On August 10, 2018, the worker's representative requested reconsideration of the WCB's decisions to Review Office. The worker's representative expressed the opinion that the worker developed PTSD from her job duties with both employers. The worker's representative also noted that the evidence from the rural municipality supports that the worker was working for them on the date of the incident. While the incident did involve a personal matter for the worker, she did respond to the page by the rural municipality and performed her job duties on December 16, 2016 on her home property. The first employer provided a response on October 9, 2018 advising that they believed the dominant cause of the worker's PTSD diagnosis related to the December 16, 2016 incident, for which the worker was not working in any capacity for the first employer. It was also noted that the employer believed the worker's current difficulties and diagnosis were related to that incident and if the worker was deemed to be working at the time of the incident, it was unrelated to her position with the first employer. The employer's submission and a further submission by the worker's representative on October 15, 2018 were shared with all the parties.

Review Office determined on October 19, 2018 that the worker's claim was not acceptable. Review Office found, on a balance of probabilities, that the worker was not working or at work when the trigger event for her diagnosis occurred. Review Office further found that the main cause of the worker's psychological issues was not related to her job duties and accordingly, an accident as defined under the Act did not occur and the worker's claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on October 25, 2018. An oral hearing was arranged.

Reasons

The Appeal Commission and its panels are bound by The Worker’s Compensation Act (the “Act”), regulations and policies of the WCB’s Board of Directors.

WCB Policy Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Subsection 1(1) of the Act provides a definition of “accident,” “occupational disease” and “posttraumatic stress disorder” as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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” 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;

“post-traumatic stress disorder” means Posttraumatic Stress Disorder as that condition is described in the Diagnostic and Statistical Manual of Mental Disorders.

With respect to PTSD, the Act further provides at 4(5.8) that:

If a worker

(a) is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder; and

(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist;

the post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.

Board policy 44.05.30, Adjudication of Psychological Injuries, (the “Policy”) sets out guidelines applicable to claims for psychological injuries. It explains the way in which claims for psychological injuries will be adjudicated and provides an explanation as to why some psychological injuries will not give rise to a compensable claim.

Worker’s Position:

The worker was represented by a worker advisor and was accompanied by her daughter. The worker’s position was that the PTSD ought to give rise to a compensable claim.

The worker began by explaining that she was employed by two separate employers. Specifically, she was employed as a paramedic for one employer and she was employed as a volunteer firefighter for the second employer, the municipality.

The worker took the position that her PTSD was related to a series of four specific traumatic events that she experienced during the course of her employment as a paramedic which cumulatively caused her to develop PTSD as well as a Major Depressive Disorder (MDD). Thereafter, her involvement in responding as a volunteer firefighter for the municipality to her nephew’s fatal accident on December 16, 2016 merely exacerbated her existing and already symptomatic PTSD and MDD as well as a Generalized Anxiety Disorder (GAD).

In the alternative, the worker took the position that the December 16, 2016 incident caused the PTSD, MDD and GAD. At the time, the worker was responding to a 911-call center page in her capacity as a volunteer firefighter for the municipality, and not as a paramedic. Although the scene of the accident happened to be on her property and involved her nephew, she was nonetheless responding to the 911 call center page and was employed as such when she attended the scene. As such, the worker’s attempts to save her nephew and the resulting injurious psychological consequences both arose out of and in the course of her employment as a volunteer firefighter.

Consequently, the worker’s psychological injuries either arose as a result of traumatic events during the course of her employment as a paramedic or were caused by the single event on December 16, 2016 which occurred during the course of her employment as a volunteer firefighter. Either way, her claim arose out of and in the course of employment and ought to be compensable.

Employers’ Position:

The employer who employed the worker as a paramedic (the “first employer”) was represented by an advocate and disability case coordinator. The employer who employed the worker as a volunteer firefighter (the “municipality or second employer”) was represented by the Chief Administrative Officer of the municipality.

The first employer submitted that the trigger for the worker’s PTSD and other psychological injuries was the December 16, 2016 incident. Although the employer did not deny that the worker had experienced a number of traumatic events during the course her employment as a paramedic, it was submitted that the earlier traumas paled in comparison to the December 16, 2016 incident and the loss of the worker’s nephew. Prior to that incident, and despite having experienced some traumas, the worker had been working and functioning well in her work as a paramedic. It was only after the December 16, 2016 incident that she was no longer able to continue working. The December 16, 2016 incident, it was therefore submitted, was a standalone incident and the trigger for the worker’s PTSD. The December 16, 2016 incident, however, occurred while the worker was employed by the municipality and while off work as a paramedic. As the municipality was the employer of record at the time of the incident, the municipality should be responsible for the claim.

The municipality (second employer) disagreed that the claim was acceptable as against it. Although the municipality did not deny that the worker was working in her capacity as a volunteer firefighter at the time of the incident on December 16, 2016, it was the municipality’s position that the PTSD and attendant psychological injuries were the result of an accumulation of several traumatic incidents that occurred during the course of the worker’s career as a paramedic, the most recent of which was a sexual assault which occurred on October 3, 2016. Although the worker may have continued to work prior to December 16, 2016, she was nonetheless experiencing a number of psychological symptoms as a result of the traumatic experiences prior to the December 16, 2016 incident and it was these experiences that set the groundwork for the PTSD. As such, the municipality submitted, if the claim were to be accepted, it was acceptable only against the first employer.

Analysis:

The issue before the panel is claim acceptability. For the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment. The panel is able to make that finding.

Based on a review of all of the evidence on file, as well as the evidence presented at the hearing, assessed on a balance of probabilities, the panel finds that the worker suffered a psychological injury, namely PTSD. There is, in fact, no dispute that the worker is suffering from PTSD.

It is also clear that worker suffered a number of traumatic events in the course of her employment. Each of the events was traumatic for her. She had reported the previous events to her employer, including the October 2016 assault, and had completed an occurrence report. The evidence also establishes that the worker was suffering psychological symptoms prior to the December 16, 2016 incident. The panel accepts that all of the workplace incidents described by the worker met the Criterion A of the DSM-5 guidelines for PTSD.

The majority of the traumatic events occurred over the course of the worker’s career as a paramedic. Although the worker was not working as a paramedic at the time of the December 16, 2016 incident, the panel finds that she was working in her capacity as a volunteer firefighter for the municipality at the time.

As a volunteer firefighter, it was the worker’s role to respond to 911 call center pages when available. The types of calls to which she responded varied from case to case and involved car accidents, farm injuries, farm equipment fires, and marsh and grass fires, among other things. It was not unusual for the worker to accompany an accident victim to the hospital while responding to an emergency in her capacity as a volunteer firefighter.

At the time of the December 16, 2016 incident, the worker received a 911 center call page regarding the incident on her homestead. In response to questions from the panel, it was acknowledged by her employer that the worker transitioned into employment when she was paged after the 911 call. This was the type of call to which she had responded as a volunteer firefighter in the past. The panel therefore finds that the fact that the December 16, 2016 incident occurred at the worker’s homestead and involved a familial connection is therefore not relevant.

The panel finds that the psychological injury sustained by the worker was cumulative. It was, in other words, acquired as a result of a series of incidents that occurred in both workplaces over the course of several years and was not the result of a stand-alone incident on December 16, 2016.

Based on the foregoing, the panel finds on a balance of probabilities that the worker suffered psychological injury in the course of her employment with both employers. The worker’s claim is therefore acceptable as against both employers.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of August, 2019