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 benefits for a psychological condition in relation to the March 29, 1984 and/or the March 15, 1993 accidents. A hearing was held on November 13, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for a psychological condition in relation to the March 29, 1984 and/or the March 15, 1993 accidents.

Decision

The worker is entitled to benefits for a psychological condition in relation to the March 29, 1984 and the March 15, 1993 accidents.

Background

Accident of March 29, 1984: 

The worker sustained a gunshot wound to his abdomen in the line of duty on March 29, 1984. Due to the worker wearing an armored vest, he suffered only an impact injury as well as three individual wounds where the skin on his abdomen below the vest was pierced. The worker attended his employer's Occupational Health Branch on April 4, 1984 and was cleared to return to work. The worker returned to his full regular duties.

The WCB accepted the worker's claim arising out of the accident of March 29, 1984.

Accident of March 15, 1993: 

The worker sustained injuries to his right foot and knee, left hip, arm, shin and shoulder and his head after being thrown approximately 20 feet from the vehicle during a motor vehicle accident while in pursuit of a stolen vehicle. The worker was taken to a local emergency department, diagnosed with a contusion of the left elbow, sprain of the right ankle and a Grade 1 acromioclavicular separation and discharged from the hospital on March 17, 1993. The worker returned to his full regular duties on April 9, 1993 after he was assessed and cleared by the Occupational Health physician on April 6, 1993.

The WCB accepted the worker's claim arising out of the accident of March 15, 1993.

Both Claims: 

On September 11, 2013, the worker contacted the WCB to initiate a claim for post-traumatic stress. He indicated he was experiencing sleep disturbances, hyper-vigilance, body jerks and could not relax. He reported that he retired from his job in June 1999 due to stress.

The WCB advised the worker on October 11, 2013 that a relationship between his current difficulties and the workplace accidents of March 29, 1984 and March 15, 1993 could not be established. The WCB noted there was no medical information provided or contact with the worker after he returned to his regular duties post-accident in 1984 and in 1993. On October 17, 2013, the worker provided further medical information related to his 1984 claim to the WCB and requested reconsideration of the earlier decision. On October 23, 2013, the WCB advised the worker the additional medical information had been reviewed but the earlier decision remained unchanged.

The worker requested reconsideration of the WCB's decision to Review Office on November 25, 2013. In his submission, the worker provided examples of the symptoms he has been experiencing, and referenced medical literature in support of his diagnosis. Review Office returned the worker's file to Compensation Services for further investigation on November 27, 2013.

On January 28, 2014, the worker's file was reviewed by a WCB psychological advisor. The WCB psychological advisor noted there were no current psychological or psychiatric reports for the worker and accordingly, no diagnosis had been provided. The psychological advisor commented that the worker had self-diagnosed post-traumatic stress disorder (PTSD) but noted that only medical professionals and psychologists could make that diagnosis. The WCB advised the worker on February 10, 2014 that the WCB would not accept responsibility for his current psychological difficulties.

On February 21, 2014, the worker requested reconsideration of the February 10, 2014 decision to Review Office. In his request, the worker noted that he had made an appointment with a neuro-psychologist to be assessed for PTSD on March 14, 2014 and as such, Review Office returned the worker's file to Compensation Services on February 25, 2014 to receive and review that report.

In the September 8, 2014 report to the WCB, the neuropsychologist concluded that "…the 2 traumatic workplace events that [the worker] experienced were not psychologically neutral for him, they were the events around which PTSD symptomatology developed, they appear to have altered his psychological status…." However, it was noted that additional employment information requested had not been received. A second report, dated April 24, 2015, was provided by the neuropsychologist after additional employment information was received and reviewed. At that time, he confirmed his earlier opinion that the worker "…has residual PTSD symptomatologies regarding the 2 salient events that he had outlined for me, the March 29, 1984 event where he was shot in the chest, and the March 15, 1993 service-related motor vehicle accident that he was injured in."

On June 4, 2015, the WCB advised the worker that his claim for a psychological injury could not be related to the 1984 workplace accident as the worker did not seek treatment for the difficulties, no complaints or changes in function or job duties were noted and no medical reports providing evidence of the psychological condition were received.

The worker filed a request for reconsideration with Review Office on June 10, 2015, noting he disagreed with the June 4, 2015 decision to deny entitlement to benefits in relation to a psychological condition. The June 4, 2015 decision letter contained incorrect information and on June 11, 2015 an amended decision was provided to the worker. On the same date, Review Office advised the worker that it was premature to make a determination on his 1984 claim as a decision on a psychological condition related to his 1993 claim had not yet been made. Review Office advised that after a decision had been rendered on his 1993 claim, he could request reconsideration on this 1984 claim.

A WCB psychological advisor reviewed the worker's 1993 claim on August 20, 2015 and concluded that although the nature of the 1993 accident met Criterion A for a diagnosis of PTSD according to the Diagnostic and Statistical Manual of Mental Disorders (DSM–5), the full criteria for a current diagnosis of PTSD had not been met. The WCB advised the worker on September 23, 2015 that he was not entitled to benefits in relation to a psychological condition for his 1993 claim.

On August 2, 2016, the worker requested reconsideration for both his 1984 and 1993 claims and asked the WCB to consider arranging for an independent psychological examination.

Review Office determined on October 14, 2016 that the worker was not entitled to benefits for a psychological condition in relation to his March 29, 1984 and March 15, 1993 workplace accidents. Review Office accepted and placed weight on the August 25, 2015 report of the WCB psychological advisor, noting that the advisor spoke with the neuropsychologist on August 20, 2015 who confirmed that he did not provide a current diagnosis of PTSD. Review Office found that the evidence did not support the worker's current difficulties as being related to the 1984 and/or the 1993 compensable workplace accidents and as such, the worker was not entitled to benefits.

The worker's representative filed an appeal with the Appeal Commission on January 4, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act, regulations and policies of the WCB's Board of Directors.

Section 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.

WCB Policy 44.05.30, Adjudication of Psychological Injuries ("the Psychological Injuries Policy") 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.

Worker's Position

The worker was represented in the hearing by legal counsel. The worker provided oral testimony in response to questions from counsel as well as members of the panel.

The worker's psychiatrist appeared as a witness and provided oral testimony in response to questions from counsel as well as answering questions from members of the panel. The psychiatrist stated that he first assessed the worker on October 30, 2018 at the request of the worker's legal counsel. The worker and the psychiatrist met again on June 10, 2019. The psychiatrist advised that based upon those meetings, as well as a review of collateral documents provided and after speaking with the worker's spouse, he formed the diagnostic opinion set out in his reporting letter of June 13, 2019.

The psychiatrist outlined for the panel that, with respect to the shooting of March 1984 and the motor vehicle collision of March 1993, in each case there was a real risk of the worker's life ending as a consequence of those events. At that time, the worker perceived this risk. The psychiatrist stated that either event, on its own, could meet most any definition of a traumatic event.

The psychiatrist noted that the worker reported to him some psychological sequelae to the 1984 accident but that for the most part the worker was able to self-manage his response through compensatory behaviours that allowed him to function adequately, so that there was no profound impact at that time. The worker reported to the psychiatrist that after the 1993 accident, he experienced further psychological distress or difficulty making it harder for him to make changes to manage the resulting functional impairments.

The psychiatrist stated that the worker experienced an evolution of symptomology over time, that included: withdrawal from active association with his colleagues outside of work; psychological distress manifested through avoidance of triggers such as work-related social activities; physiological distress and symptom avoidance; avoidance of thinking about traumatic events; depersonalization in speaking about difficult or traumatic events; insomnia over the course of many years due to the worker's hyper-aroused physiological state, especially at certain times of the night; exaggerated startle response that might be related to the worker's sleep issues; panic attacks on more than one occasion, including at least once at work; and acute, but infrequent, onset of physical symptoms with fear of something about to happen. The psychiatrist noted that the worker relies on medical marijuana and also takes other medications to manage his cardiac health, address his anxiety and to support his sleep.

The psychiatrist confirmed that the worker's presentation is consistent with a diagnosis of post-traumatic stress disorder as set out in the DSM-5 and that he was unable to identify any other source of significant trauma other than the 1984 and 1993 accidents that occurred in the course of the worker's employment. The onset of the worker's PTSD was likely shortly after the accident in 1993, the psychiatrist stated, and at the time of his assessment in late 2018 and early 2019, that diagnosis continued. The psychiatrist explained to the panel that the worker's symptoms appear to have waxed and waned over time and were largely untreated and undiagnosed through the years.

The psychiatrist confirmed that he had no diagnosis to offer for the worker other than PTSD.

The worker, in response to questions from his legal counsel, briefly outlined for the panel the circumstances of the accidents of March 29, 1984 and March 15, 1993 as well as the physical injuries he suffered as a result of each accident.

The worker described to the panel the symptoms that he subsequently exhibited. He noted that after the 1984 shooting, he experienced a period of distress for approximately one month, in which he had some troubling dreams and on at least two occasions, blacked out for a period of time. He has experienced chronic insomnia, occasional panic or stress attacks, and high adrenaline levels when lying in bed. He stated that he doesn't like to be around people and has a need to know where everyone is when he's in a room with others. He described flashbacks with pain experiences related to the 1993 motor vehicle accident. He described experiencing muscle spasms during the night, particularly around the times when each accident occurred.

The worker outlined for the panel what he sees as the impact of these continuing symptoms on his life, including causing him to take an early retirement in 1999 and challenges with other jobs he had taken since that time.

The worker noted that he is willing to be treated for PTSD and believes that if he is not treated, it may shorten his life. He indicated he is now taking medications as directed by his physician to help him sleep, reduce his anxiety and address his cardiac condition. He stated he is on a wait list to see a psychiatrist.

The worker's position, as set out for the panel by his legal counsel, is that as a result of the shooting in 1984 and the motor vehicle accident in 1993, both of which occurred in the course of the worker's employment, the worker developed symptoms of PTSD. These two incidents were the triggers for that condition. As outlined by the psychiatrist, the diagnosis of PTSD is clearly related to the workplace accidents.

The worker's counsel stated that as a result of his PTSD, the worker left his employment and took early retirement, and has been unable to sustain employment since then due to the impact on the worker's sleep patterns in particular.

Counsel stated that the worker should therefore be entitled to benefits for a psychological condition in relation to the March 29, 1984 and the March 15, 1993 accidents.

Employer's Position

The employer did not participate in the hearing or provide submissions to the panel in advance of the hearing.

Analysis:

The issue before the panel is whether the worker is entitled to benefits for a psychological condition in relation to the March 29, 1984 and/or March 15, 1993 accidents. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a psychological injury as a result of either or both accidents. The panel was able to make that finding for the reasons that follows.

The worker has an accepted claim arising out of the accident of March 29, 1984 and an accepted claim arising out of the accident of March 15, 1993. There is no question for the panel to consider as to whether or not these are compensable accidents. The only question here is whether the worker experienced a psychological injury as a result of either or both compensable accidents.

The panel noted that the question of whether or not the 1984 accident could be related to the worker's current psychological condition has not been specifically addressed or considered by the WCB psychological advisor. On August 20, 2015, the WCB psychological advisor did provide an opinion on whether the March 15, 1993 accident could be related to the worker's diagnosis of PTSD. At that time, the WCB psychological advisor opined that this was a traumatic event that met the requirements of Criterion A for a PTSD diagnosis as outlined in the DSM-5, but went on to state that the worker did not present with all other required criteria for that diagnosis.

The worker was assessed by a neuropsychologist in March and April of 2014. That assessment included a clinical review, mental status examination and history taking as well as completion of various psychological assessment tools by the worker and a review of documentation provided to the psychologist by the worker. On the basis of that assessment, the neuropsychologist provided a detailed report dated September 8, 2014 concluding that "…the 2 traumatic workplace events that [the worker] experienced were not psychologically neutral for him, they were events around which PTSD symptomology developed, they appeared to have altered his psychological status, and in the absence of disconfirming information which I do not have, resulted in the changes in his career path as I have indicated, and his earlier than anticipated retirement."

The neuropsychologist subsequently obtained, reviewed and considered additional information with respect to the worker's employment history with this employer and provided an updated report dated April 24, 2015 taking this information into account. In that report, the neuropsychologist confirmed his September 8, 2014 opinion and outlined that the employment information reviewed supports the "non-neutral effects of the traumas, compatible with [his] previous opinion."

The panel noted a file note indicating that the WCB psychological advisor reported a conversation with the neuropsychologist dated August 20, 2015 in which the neuropsychologist clarified that he did not make a diagnosis of current PTSD.

Subsequently, the worker was assessed by a clinical psychologist on March 15 and 29, 2017. In a reported dated March 29, 2017, the clinical psychologist documented the assessment process as including two clinical interviews, review of a number of documents including the neuropsychologist's September 8, 2014 and April 24, 2015 opinions, and completion by the worker of two psychological assessment tools. Based upon this assessment, the clinical psychologist concluded that the worker has a diagnosis of PTSD related to his work with the employer and to his two workplace injuries. The clinical psychologist stated that the worker might also be "suffering from REM Disorder, which might also be trauma-related. Finally, he is showing marked depressive symptomology, and Major Depressive Disorder needs to be ruled out." The clinical psychologist noted there were no inconsistencies between his report and that of the neuropsychologist. Psychotherapy treatment was recommended for the worker's PTSD diagnosis.

The psychiatric assessment by the psychiatrist who appeared as a witness on behalf of the worker at the hearing took place, as noted above, on October 30, 2018 and June 10, 2019. In addition to assessing the worker in person, the psychiatrist also reviewed collateral information provided to him by the worker's legal counsel. The psychiatrist makes an unequivocal diagnosis of PTSD arising out of the traumatic events of March 1984 and March 1993. He stated in his report that the worker's PTSD:

"…is related to events which he experienced related to his employment….It is possible there is an aspect of a cumulative exposure to numerous events as opposed to one singular traumatic event that the PTSD symptoms are attributable to. However, it is my opinion that he was experiencing clinically significant distress or impairment related to PTSD symptoms. This did not occur until after the events of the motor vehicle accident he was involved with in the course of his employment duties in 1993."

The psychiatrist stated in his report that there is a possibility that appropriate treatment could lead to improvement in the worker's symptoms if he has a positive response to treatment. That treatment could include pharmacological treatments as well as psychological treatments.

The panel considered the totality of the evidence as to the worker's psychological condition and was persuaded in particular by the reports of the assessing professionals that linked the worker's 1984 and 1993 compensable workplace accidents to the worker's current diagnosis of PTSD. While the WCB psychological advisor found the worker did not meet all the criteria for a PTSD diagnosis, the panel noted that she never met or assessed the worker in person.

The Act sets out 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. The evidence here supports the worker's claim that as a result of the accidents of March 29, 1984 and March 15, 1993, he sustained a psychological injury, subsequently diagnosed by two psychologists and one psychiatrist as PTSD.

The panel therefore finds, on a balance of probabilities, that the worker is entitled to benefits for a psychological condition in relation to the March 29, 1984 and March 15, 1993 accidents.

The worker's appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of December, 2019