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 after October 17, 2017. A hearing was held on January 29, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after October 17, 2017.

Decision

The worker is entitled to benefits after October 17, 2017.

Background

On February 8, 2017, the worker submitted a Worker Incident Report to the WCB indicating he was and had been suffering from Post-Traumatic Stress Disorder ("PTSD") for some 8 years related to his job duties. An Employer's Report received by the WCB on February 8, 2017 indicated the worker reported being "…involved in a sequence of traumatic events including the arrest and death…" of a co-worker.

When the WCB contacted the worker on February 9, 2017 to discuss his claim, the worker provided details of various traumatic events that he encountered in the course of his job duties including a death threat directed to the worker and his family in 2015, and the 2016 investigation and arrest of a colleague. The WCB requested further information from the employer and the worker's treating healthcare providers. Various medical reports were received and on April 7, 2017, the worker's claim for psychological injury was accepted by the WCB. Wage loss and medical aid benefits were paid and the worker continued to seek treatment.

On September 14, 2017, the worker's treating psychologist provided a report to the WCB. The psychologist noted that the worker continued to "…express considerable concern about what his coworkers may think of him" and that his initial reporting of feelings of paranoia was no longer evident. The treating psychologist stated that the worker "…continues to experience anxiety about the possibility of running into colleagues while out and about in the community" and that he plans activities to avoid running into colleagues. Further, the psychologist noted that the worker "…continues to exhibit symptoms of heightened arousal. However, he no longer experiences intrusion symptoms…and his level of avoidance is significantly diminished." The psychologist opined that the worker's PTSD was in "partial remission" and recommended restrictions for the worker's return to work. On September 22, 2017, the WCB advised the employer that the worker's temporary restrictions would be placement in work with a limited and stable group of co-workers; limited encounters with other colleagues from other working groups, including those in passing; placement in an out-of-the way physical location; and not to be placed in a safety sensitive position.

The worker's file was reviewed by a WCB psychological advisor on October 10, 2017. The WCB psychological advisor opined that the worker's psychiatric diagnosis of PTSD had resolved as the worker's current difficulties were not related to his job duties and "…were centered on a colleague who has died." The WCB psychological advisor was of the view that the work restrictions provided by the worker's psychologist were wholly related to anxiety about being judged by his colleagues about non-compensable issues and events, and were not related to the workplace incident. The WCB advised the worker on October 10, 2017 that he was not entitled to benefits after October 17, 2017 as there were no restrictions related to his compensable injury and he no longer had a loss of earning capacity.

On November 8, 2017, the worker requested reconsideration of the WCB's decision to Review Office, noting his disagreement with the decision as he had not been examined by the WCB psychological advisor who provided the October 10, 2017 opinion. As well, the worker outlined his belief that the psychologist's September 14, 2017 report "…may have been misinterpreted."

On January 11, 2018, the employer advised the WCB they will be participating in the worker's appeal. On February 5, 2018, the employer provided a submission in support of the WCB's October 10, 2017 decision. On March 13, 2018, the worker's representative submitted further medical information, including a March 9, 2018 report from the worker's treating psychologist.

At the request of Review Office, the worker's file, including the information received from the worker's representative, was again reviewed by a WCB psychological advisor on April 16, 2018. The WCB psychological advisor provided an opinion that the treating psychologist's diagnosis of PTSD in partial remission "…is not a psychiatric diagnosis. PTSD is either present or it is not." The WCB psychological advisor noted that the worker continued to have lingering symptoms of anxiety that "…became and continue to be focused on the workplace" and opined that the worker did not currently meet the diagnostic criteria for a psychiatric diagnosis and there was no change to the previous opinion of October 10, 2017.

The WCB psychological advisor's opinion was provided to the worker's representative and the employer on April 17, 2018. The employer provided a response on May 2, 2018 and the worker's representative provided a response on May 8, 2018. Copies of each submission were provided to the parties.

Review Office determined on May 22, 2018 that the worker was not entitled to benefits after October 17, 2017 as it was unable to relate the worker's current issues to the original psychological injury. Review Office relied upon the opinions of the WCB psychological advisor to determine that the worker's difficulties were not related to a diagnosis of PTSD but to workplace related anxiety and the worker's beliefs as to how he is perceived by his colleagues.

The worker's representative filed an appeal with the Appeal Commission on September 23, 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.

… 

Injury 

The WCB will next determine whether the worker suffered an injury as a result of the accident. People can react differently to the same situation. Not every worker who experiences the same event will suffer a psychological injury.

Like physical injuries, psychological injuries range in severity from minor to major. A specific diagnosis is not necessary in order for a psychological injury to be compensable, except under the legislative presumption regarding PTSD. The severity of the injury is a factor to consider in determining the benefits payable. It does not determine whether the claim is compensable.

Under s 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. Section 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.

Section 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."

Worker's Position:

The worker appeared with a union representative who made a submission on behalf of the worker. The worker provided oral testimony and answered questions from members of the panel.

The worker described to the panel the incidents in the course of his employment that resulted in his developing a psychological injury, ultimately diagnosed in 2017 as PTSD. He described reaching out to the employer's occupational health physician about his mental health concerns as early as 2015 and referenced the occupational health program chart notes provided to the panel in advance of the hearing as confirmation. The worker reported reaching "rock bottom" in summer of 2016 at which time he reached out to arrange to see a psychologist.

As outlined in the occupational health physician's chart notes, when the worker learned that the WCB was clearing him for a return to work in late September 2017, he did not feel he was ready for that. The physician notes "PTSD/mental health issues, agree with restrictions as per WCB." The chart notes from October 30, 2017 indicate the worker was very upset and crying about the WCB's determination that he was cured of PTSD, and that the worker was not coping well. By December 13, 2017, the occupational health physician notes that the worker reported that his whole life was affected. He was not sleeping, not doing normal activities, crying and struggling with activities of daily living (making his children's lunches, for example). The physician notes that the worker needs further treatment and restrictions in place as before.

The worker informed the panel that when the employer offered an appropriate accommodation of his restrictions, he began a return to work program in June 2018, initially working 3 days per week, then increasing to 4 days and up to 5 days as of January 8, 2019. He outlined the progress he was making under the care of his psychiatrist, including increasing his exposure and tolerance to being among colleagues and in workplace facilities.

The worker described to the panel that the symptoms of his PTSD ebb and flow, but that he still has PTSD. As an outcome from the treatment he has received, the worker stated he now has the ability to recognize onset of his symptoms of injury and can address them appropriately.

The worker's representative summarized the worker's position for the panel, stating that the worker still has PTSD and this diagnosis has not changed even though the presence of symptoms of his PTSD may have fluctuated from time to time. The worker's representative noted that the submission to the WCB on behalf of the worker, in a letter dated March 13, 2018, pointed to the distinction between describing the worker's PTSD as in partial remission and stating that it is resolved. As was later clarified by the treating psychologist, the report did not say that the worker did not have PTSD, but that not all symptoms were being expressed at the time of the September 2017 report. The absence of certain symptoms from time to time does not mean that the diagnosis was no longer valid or that the worker had fully recovered.

The worker's position is that the evidence supports a finding that he was not fully recovered as of October 17, 2017 and continued to experience a loss of earning capacity, and to require medical aid, at that time and beyond that date. Therefore, the appeal should be allowed.

Employer's Position:

The employer was represented in the hearing by a human resources supervisor and Workers Compensation coordinator. The employer's Workers Compensation coordinator did not make any submission and advised that the employer was participating in the hearing solely to provide any clarification that might be required with respect to any employer-related issues or concerns that the panel might raise.

The employer, on questioning by the panel, confirmed that accommodation of the worker's unique return to work restrictions was initially challenging, such that it was not able to offer appropriate accommodative duties to the worker until June 2018.

Analysis:

The issue for determination is whether or not the worker is entitled to benefits after October 17, 2017. In order for the worker's appeal on this issue to succeed, the panel must find that the worker continued to experience a loss of earning capacity or required medical aid to cure and provide relief from his compensable injury after October 17, 2017. On the basis of the evidence before us, the panel was able to make that finding.

As outlined in the background, the worker's claim to WCB arose out of occupational exposure to trauma over a course of at least 8 years, leading up to the Worker Incident Report filed February 8, 2017. The treating psychologist's report to WCB of March 28, 2017 confirmed there was a causal relationship between the worker's occupational exposure to trauma and the psychological injury:

"Taken together, [the worker's] history, presentation and symptom pattern supported a diagnosis of Posttraumatic Stress Disorder, with a cumulative history of trauma exposure over the course of his work history contributing to development of the disorder."

Based upon the medical reporting and the investigation undertaken by the WCB, the worker's claim was accepted on April 7, 2017 and benefits were paid until October 17, 2017.

In the intervening period, the worker was treated by the psychologist who next reported to the WCB on the treatment in a letter dated September 14, 2017, noting that the worker was fully cooperative and actively participating in his treatment. The psychologist outlined the worker's continuing symptoms of anxiety in relation to his coworkers and noted that symptoms of paranoid thinking were no longer evident. The worker continued with avoidance behaviour, but was "somewhat less withdrawn and socially avoidant" than he had been previously. He continued to report hypervigilance, exaggerated startle response and irritability as well as symptoms of heightened arousal. At that time he was no longer experiencing intrusion symptoms.

Importantly, the treating psychologist concluded that the worker's PTSD was "in partial remission" and noted that his primary barrier to a successful return to work related to his anxiety about interactions with his coworkers. The psychologist therefore stated the opinion that the worker was "…fit to return to work if restrictions governing the unpredictable encounters with coworkers…can be adhered to."

Based upon this report that the WCB advised the employer on September 22, 2017 that the worker was fit for work with temporary restrictions as outlined above, but the WCB also then sought an opinion from its own psychological advisor as to the worker's current diagnosis and whether the restrictions related to the compensable injury.

The WCB psychological advisor's October 10, 2017 opinion, based upon the information provided by the treating psychologist, was that it appeared that the worker's PTSD had resolved and that the temporary restrictions were "entirely related to anxiety" which was a non-compensable issue. This opinion led the WCB to determine, also on October 10, 2017, that the worker was no longer entitled to benefits as of October 17, 2017.

The worker's treating psychologist, however, clarified in a letter dated March 9, 2018, that while the worker had "…made considerable progress, he continues to experience difficulty with some PTSD symptoms, and further treatment is recommended to enhance the likelihood of achieving full remission." In other words, the worker required ongoing treatment of his PTSD. Further, the psychologist went on to explain the ongoing anxiety that the worker was experiencing in relation to encountering colleagues or returning to the workplace, as follows:

"With a diagnosis of PTSD, exposure to cues associated with the traumatic event(s) may serve as a symptom trigger. For an individual who has developed PTSD following work-related trauma, returning to the workplace or encountering situations associated with the workplace may trigger the expression of symptoms.

…[I]n stating that exposure to a particular set of circumstances might serve as a symptom trigger, I am referring to the triggering of a temporarily increased expression or subjective experience of PTSD symptoms, in an individual who currently suffers from PTSD."

The WCB psychological advisor provided a further opinion on April 16, 2018 in response to the September 2017 and March 2018 reports from the treating psychologist, stating that there cannot be a diagnosis of PTSD in partial remission as "PTSD is either present or it is not." Based upon the file reports reviewed, the WCB psychological advisor concluded that the worker did not meet the diagnostic criteria for a psychiatric diagnosis at that time and confirmed the conclusions set out in the October 10, 2017 report.

The worker's representative suggested that there is a significant distinction between describing the worker's PTSD as being in partial remission and stating that it has resolved. The worker's treating psychologist stated in September 2017 that the worker's PTSD was in partial remission; but, the WCB psychological advisor took the view that this meant the worker's PTSD had resolved.

In respect of this conflict between the opinions of the psychologists, the panel prefers the opinion of the treating professional who has an ongoing relationship with the worker, over the opinion of the WCB psychological advisor who never met or assessed the worker.

Having considered the explanations provided by the treating psychologist, the panel agrees that the worker's PTSD, while no longer fully symptomatic at that time, had not fully resolved at the time of the September 14, 2017 report as suggested by the WCB psychological advisor. This conclusion is supported by the subsequent reporting from the worker's treating psychologist and the worker's own testimony.

The worker's reported PTSD symptoms are not consistent over time, neither do these symptoms consistently improve nor worsen; rather, the worker's symptoms of his psychological injury ebb and flow. In this regard, the worker testified, for example, that he experiences triggering events, such as around Remembrance Day and when he learned of this hearing date, that cause an increase in his symptoms.

Through therapeutic treatment, the worker has learned techniques to recognize and address situations where his symptomology increases. After September 2017, the worker continued to see his treating psychologist 1-2 times monthly into spring 2018, until he started seeing a psychiatrist, whom he continues to see approximately each 2-3 weeks. The worker confirmed that in the period before his return to work in June 2018, from September 2017 through May 2018, he did not experience any new traumatic events or incidents.

The panel is also persuaded by the explanation of the worker's treating psychologist with respect to the relationship between the return to work restrictions outlined in September 2017 and the worker's PTSD diagnosis. The panel accepts that, on the balance of probabilities, these were related to the accepted compensable workplace injury.

In this regard, the panel notes that the employer admitted these were particularly challenging to accommodate. While the employer made accommodation offers during the period that followed, both formally and informally, these offers did not meet the worker's requirements and it was only in late spring 2018 that an appropriate accommodation offer was made. The worker began his return to work on a graduated basis, initially working 3 days per week and was working 5 days per week as of January 8, 2019. He testified that through continuing therapeutic treatment, he continues to work toward and make gains in increasing his comfort with being in certain work-related settings.

Both the Review Office and the WCB, at the adjudicative level, raised the issue of the employer's discovery of the worker's use of cannabis as one of the bases for the worker's anxiety about his return to work. The panel notes, however, that the worker's prescribed use of cannabis has been and continues to be accommodated by the employer since October 2016 and was not a lingering issue or cause for concern either to the employer or the worker, as suggested by the WCB psychological advisor. Although there were ongoing restrictions related to this usage, these were not related to the employer's challenges in accommodating the worker's PTSD-related restrictions.

The panel is satisfied, on a balance of probabilities that the worker continued to experience a loss of earning capacity as a result of his compensable workplace injury after October 17, 2017, and further, that the worker required medical aid to cure and provide relief from that injury after October 17, 2017. Therefore, the worker is entitled to benefits after October 17, 2017.

The 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 12th day of March, 2020