The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to the April 23, 2001 accident. A hearing was held on January 22, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the April 23, 2001 accident.

Decision

That the worker is entitled to further benefits in relation to the April 23, 2001 accident.

Background

The worker has an accepted WCB claim for an assault that occurred on April 23, 2001. He received wage loss and medical aid benefits, including psychological treatment, until he returned to full time employment with another employer, with restrictions, in October 2003.

In October 2015, the worker contacted the WCB to advise he was having further difficulties with respect to his psychological injury, which he related to his April 23, 2001 compensable injury. The accepted diagnosis for the worker's psychological injury was Major Mood Disorder, Unipolar Depression, recurrent.

The worker advised that he had been attending counselling at an employee assistance program (EAP). The WCB discussed the worker's treatment with the EAP counsellor on December 16, 2015. The counsellor advised that he started seeing the worker in November 2011. He stated that at the onset, the worker was focused on the April 23, 2001 incident, and despite having been seen for approximately thirty sessions, the worker had not been able to get over the incident. The counsellor felt that the worker kept "…going back to the incident without ever progressing in his thinking and rationalizing about the incident."

On January 26, 2016, the WCB received a report from the worker's family physician who had been following the worker since his compensable injury in 2001. The treating physician opined that the worker "…continued to endorse symptoms of depression, anxiety and post traumatic stress disorder" and felt that a reassessment should be done by a psychiatrist to determine if the issues of post-traumatic stress disorder (PTSD) relating to his original injury were not the major ongoing problem.

On May 4, 2016, the worker attended a call-in examination with a WCB psychiatric consultant. The WCB psychiatric consultant opined that it was not possible to make a causal connection between the 2001 workplace incident and the difficulties which arose in his subsequent employment. The consultant further opined that the worker did not currently meet the diagnostic criteria for PTSD or Major Depressive Disorder and there was no psychiatric diagnosis related to the compensable injury.

On May 30, 2016, the WCB's Compensation Services advised the worker that they had determined his current symptoms were not related to his workplace injury and he was not entitled to further wage loss or medical aid benefits.

On February 22, 2017, the worker contacted the WCB again and stated that further medical information in support of his claim would be submitted. A letter from the worker's family physician was received on April 27, 2017, indicating that the worker had a further psychiatric assessment and was diagnosed with PTSD with delayed onset. In a telephone discussion with the worker on April 28, 2017, the WCB case manager advised that there was no change to the May 30, 2016 decision as the letter did not include any new medical information.

On May 1, 2017, the WCB received a copy of a Psychiatric Assessment of the worker conducted on January 16, 2017. The psychiatrist who conducted the assessment diagnosed the worker with "Post-Traumatic Stress Disorder, with delayed expression" and recommended changes to the worker's medications and referral to a treatment program.

On May 8, 2017, the recent medical information on file was reviewed by the WCB psychiatric consultant. The WCB psychiatric consultant noted that the January 16, 2017 Psychiatric Assessment did not refer to the serious workplace issues and conflicts the consultant had noted in the April 25, 2016 call-in examination notes. The WCB psychiatric consultant further noted that the assessment did not provide new medical information, and the April 25, 2016 opinion that the worker did not have a psychiatric diagnosis which was medically related to his WCB claim remained unchanged. On May 12, 2017, Compensation Services advised the worker that the new medical information had been reviewed, but there would be no change to the May 30, 2016 decision as his ongoing difficulties could not be related to his April 23, 2001 workplace injury.

On May 31, 2017, the worker contacted the WCB, noting his disagreement with the WCB psychiatric consultant's opinion. The worker indicated the case manager should have requested that the WCB psychiatric consultant discuss his claim with the psychiatrist who conducted the assessment of the worker on January 16, 2017. On September 26, 2017, in a memorandum to file, the WCB psychiatric consultant noted that several attempts had been made to contact the psychiatrist but there had been no response.

The WCB psychiatric consultant further noted that there was a difference in diagnoses provided by the psychiatrist from the January 16, 2017 assessment, who diagnosed PTSD, and the consultant's April 25, 2016 opinion that the worker did not fulfil the diagnostic requirements for PTSD. The WCB psychiatric consultant stated that the worker provided inconsistent and different information to the psychiatrist during the January 16, 2017 assessment from that provided to the WCB psychiatric consultant during the April 25, 2016 call-in examination, and that these fundamental differences were "crucial diagnostic criteria." As a result, the WCB psychiatric consultant's April 25, 2016 opinion remained the same. On October 17, 2017, Compensation Services advised the worker that there was no change to the May 30, 2016 decision that his ongoing difficulties could not be related to his April 23, 2001 workplace injury and he was not entitled to further wage loss and medical aid benefits.

On February 5, 2018, the worker's representative submitted a new psychiatric report dated July 5, 2017 to Compensation Services and requested that they reconsider the May 30, 2016 decision. On February 21, 2018, Compensation Services advised the worker that the July 5, 2017 report from a treatment program had been reviewed, but there was no change to the October 17, 2017 decision.

On March 29, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decisions. The worker's representative submitted that the majority of the evidence supported that the worker was experiencing the effects of compensable PTSD with delayed symptom onset. It was submitted that three physicians, two of whom were psychiatrists, had diagnosed the worker with PTSD and related this to his 2001 workplace accident. There was also verification from an EAP counsellor and the worker's family physician that the worker continued to experience psychiatric difficulties throughout the 10-year employment period with the employer.

On May 1, 2018, Review Office determined that the worker was not entitled to additional benefits in relation to the April 23, 2001 workplace accident. Review Office accepted the opinions of the WCB psychiatric consultant that the worker did not have a current psychiatric diagnosis related to the compensable injury and that the difficulties he experienced in the past few years did not appear to be related to the April 23, 2001 workplace accident. Review Office noted that the claim had been filed for a specific incident and that the worker had described many significant psychological stressors or events before and after the workplace accident which were not related to the workplace incident but likely had a psychological impact on the worker. Accordingly, Review Office found that they could not relate the worker's current difficulties to the April 23, 2001 workplace accident.

On July 27, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was subsequently received and was forwarded to the interested parties for comment. On September 4, 2019, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

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.

"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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the appeal hearing and made a presentation to the panel. The worker responded to questions from his representative and from the panel.

The worker's position was that the majority of evidence supports he has never fully recovered from the psychological effects of his traumatic workplace accident, and he is seeking recognition of this fact as well as a determination that he is entitled to additional wage loss and medical aid benefits.

The worker's representative noted that the worker is seeking wage loss benefits for the period after his employment ended in December 2014, as his loss of earning capacity began at that time and his compensable psychological illness had worsened beforehand. Alternatively, should the panel choose to address a period of benefit entitlement but find that loss of earning capacity did not begin when his employment ended, the worker was of the view there is at least entitlement subsequent to that event based on psychiatric assessment performed in 2017 forward. The representative noted that the worker was also seeking reimbursement for medical expenses he has accumulated to treat his psychological illness.

The worker's representative noted that the preliminary issue on this appeal is whether the worker is in fact psychologically injured, and if injured, whether the injury is compensable in relation to the April 23, 2001 workplace accident. The representative noted that the WCB psychiatric consultant was of the opinion that the worker had no psychiatric diagnosis in relation to his workplace accident. The representative asked that the panel attach no weight to the consultant's April 2016 assessment for several reasons, including that:

• The interview that formed the basis for the consultant's opinion lasted approximately 45 minutes to one hour, which was too short a period of time to allow for a comprehensive question and answer session;

• It was submitted that the report contains a number of inaccuracies, as well as assumptions without clarification; 

• While the consultant ultimately concluded that the worker did not meet diagnostic criteria for PTSD, she also acknowledged some uncertainty and used ambiguous language at times. It was submitted that there is a significant difference between explaining why someone does not meet the criteria for a psychiatric disorder and stating that it is unclear if the person satisfies the criteria; 

• The consultant omitted what, in the worker's and worker advisor's view, were highly material facts from her reports, most notably, information regarding his visits to a counsellor.

The worker's representative submitted that by contrast, reports and letters from the worker's long-term physician and two independent psychiatrists all endorse the presence of a psychological injury, being PTSD and/or a depressive disorder, connected to the workplace accident. The representative asked that the panel attach significant weight to the opinions from these physicians due to their long time involvement with the worker and accurate historical knowledge, and because their opinions, particularly that of the second psychiatrist were formulated by team consensus involving other psychiatrists and non-medical professionals.

The worker's representative further submitted that the July 10, 2018 narrative report from the second psychiatrist demonstrated that he had the benefit of relevant file material when expressing his disagreement with the WCB consultant. It was submitted that unlike the WCB consultant, the second psychiatrist had no trouble substantiating his diagnoses by listing each criterion and explaining how the worker satisfied them.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the April 23, 2001 accident. For the worker's appeal to be successful, the panel must find that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of his workplace accident. The panel is able to make that finding, for the reasons that follow.

The panel found this to be a challenging file to consider for a number of reasons, including:

• The significant gap in medical information on the file; 

• The identification and interaction of a number of non-compensable psychological and workplace or employment issues; and 

• The lack of available information regarding the circumstances of the worker's departure from work in 2013.

The panel notes that the worker's submission was centered on a diagnosis of PTSD as a compensable condition. Based on our review of all of the evidence before us, the panel finds, on a balance of probabilities, that the worker has a compensable diagnosis of PTSD with delayed symptom onset.

In arriving at that conclusion, the panel places significant weight on a July 10, 2018 report from the second psychiatrist, in which he opined that the worker meets the DSM-V criteria for PTSD based on a detailed review of those criteria as they applied to the worker. The panel notes that the psychiatrist's conclusions that those criteria were satisfied were based on multiple interviews and observations of the worker in both an individual and group context by him and other mental health professionals in a treatment program, and that those conclusions were consistent with those of the first psychiatrist and the worker's family physician.

Based on the totality of the evidence, the panel further finds, on a balance of probabilities, that the worker's ongoing difficulties are related to his workplace injury of 2001. The panel finds that information on file and chart notes obtained from the worker's family physician subsequent to the hearing support that the worker continued to experience psychological issues relating to the workplace accident over time. In a chart note from October 12, 2006, for example, the physician reported that the worker "can't get incident out of his mind."

Evidence on file and at the hearing indicates that the worker continued to experience nightmares and flashbacks related to the 2001 incident. The evidence further indicates that the worker was managing to function at work, but also needed to seek help on an ongoing basis to enable him to cope with his symptoms.

The panel notes that while the WCB psychiatric consultant stated that the worker had not mentioned symptoms such as hypervigilance at the call-in examination, the evidence shows that the worker had reported being hypervigilant and other symptoms such as needing to be at the back of the bus when travelling to other healthcare practitioners in order to increase his feeling of safety.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker is entitled to further benefits in relation to the April 23, 2001 accident. The panel notes, however, that we do not have sufficient information at our disposal to determine what particular benefits the worker may be entitled to receive, what if any entitlement the worker may have to wage loss benefits on an ongoing basis, and whether or to what extent the discontinuation of his employment in 2013 may affect his eligibility for benefits.

The panel therefore returns the worker's file to the WCB for further investigation and adjudication into such issues as the determination of the extent of the worker's entitlement to different medical aid benefits and the extent to which the worker's symptoms impacted his employment and the impact of the discontinuation of the worker's employment upon his entitlement to wage loss benefits.

Based on the totality of the evidence, the panel finds, on a balance of probabilities, that the worker's diagnosis of PTSD and related difficulties are related to his 2001 workplace accident.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of September, 2019