The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB") with respect to his February 2016 compensation claim. A teleconference hearing was held on June 29, 2020 to consider the worker's appeals.

Issue

1. Whether or not the worker is entitled to wage loss benefits after August 15, 2017; 

2. Whether or not the worker is entitled to further medical aid benefits beyond the pre-approved kinesiology sessions; 

3. Whether or not responsibility should be accepted for moving costs; and 

4. Whether or not the worker's psychological difficulties should be accepted as being a consequence of the February 10, 2016 accident.

Decision

1. That the worker is not entitled to wage loss benefits after August 15, 2017; 

2. That the worker is not entitled to further medical aid benefits beyond the pre-approved kinesiology sessions; 

3. That responsibility should not be accepted for moving costs; and 

4. That the worker's psychological difficulties should not be accepted as being a consequence of the February 10, 2016 accident.

Background

In a Workplace Incident Report dated February 24, 2016, the worker reported to the WCB that he injured his back on February 10, 2016 when he lifted a suitcase, lost his balance and fell against the corner of a stool. The worker reported the incident to the employer on February 11, 2016.

In a discussion with a WCB adjudicator on February 26, 2016, the worker confirmed the mechanism of injury. The worker advised that he attended a hospital on February 14, 2016, where they did x-rays and a CT scan and prescribed pain medication. The worker indicated he was expected back at work on February 19, 2016, but did not return to work due to his injury.

The CT scan of the worker's lumbar spine performed February 14, 2016 showed a "mild circumferential disc bulge" at L4/5 with no spinal stenosis or significant foraminal narrowing, and a "moderate sized central and right paracentral disc protrusion which may contact the right S1 root as it exits the thecal sac" at L5/S1.

On February 24, 2016, the worker saw his family physician, who referenced the report of the February 14, 2016 CT scan. The worker's family physician diagnosed the worker with a ruptured disc with herniation and a right S1 nerve root compromise, and recommended physiotherapy and that he remain off work.

The worker attended an initial physiotherapy assessment on February 25, 2016, where he reported right-sided low back pain with referral into his legs and feeling "tight" through his back. The physiotherapist diagnosed the worker with a sprain/strain consistent with discogenic back pain, and recommended he remain off work.

The worker's claim was accepted by the WCB and payment of various benefits commenced.

On April 8, 2016, the worker underwent an MRI of his lumbar spine, which indicated "L5-S1 level disc herniation likely mildly compressing the right S1 nerve root origin." On April 21, 2016, the worker's file was reviewed by a WCB medical advisor who opined that the worker's diagnosis as related to the workplace injury was an L5-S1 disc herniation with right S1 radiculopathy and noted that recovery could take 6 to 12 months.

The worker was referred to a neurosurgeon, who examined the worker on May 12, 2016 and provided a diagnosis of discogenic low back pain and right S1 radiculopathy. The neurosurgeon advised that he did not see a need for surgery at that stage, prescribed medications, and recommended a trial of L5/S1 epidural injections and continuing physiotherapy at a milder intensity.

On April 27, 2017, the worker requested reimbursement for moving costs, noting he might have to move. The worker noted that it was important that he keep his family physician, who was located approximately 80 kilometres away from his current residence, and that it was very hard to find another family physician in the area where he was currently living.

The worker underwent two epidural steroid injections, and at a May 8, 2017 follow-up appointment with his treating family physician, reported that he continued to have lower back pain that radiated down both of his legs with intermittent leg pain, left and right, which switched sides. It was recommended that the worker remain off work and a referral for a further MRI was made.

The further MRI of the worker's lumbar spine, performed May 31, 2017, indicated:

Mild to moderate disc degeneration at L5-S1 without significant spinal canal or neural foraminal narrowing. There is a broad-based posterior central disc protrusion with minimal inferior migration that contacts the bilateral S1 nerve roots, right greater than left, without significant displacement or compression.

On July 25, 2017, the worker attended a call-in examination with a WCB orthopedic consultant. The orthopedic consultant noted that the initial diagnosis of a right L5-S1 radiculopathy was accepted from the initial report from the worker's family physician, which was based on the report from the February 14, 2016 CT scan but contained no objective evidence to support the imaging diagnosis. The orthopedic consultant stated that his assessment of the worker "…failed to identify any evidence of an S1 radiculopathy in relation to the imaging studies." The consultant opined that "…the diagnosis of the compensable injury was a right lower back contusion and strain/sprain" and that "…the worker has recovered from this diagnosis."

On July 28, 2017, the WCB's Compensation Services advised the worker that they were unable to accept responsibility for his moving costs as they could not establish a direct relationship between his moving to another location and his workplace injury.

On August 1, 2017, Compensation Services further advised that based on their review of the relevant information, including the results of the imaging studies and the July 25, 2017 call-in examination, they had determined the worker had recovered from his February 10, 2016 workplace injury and his entitlement to wage loss benefits would end on August 15, 2017. With respect to a request from the worker for psychological assistance, Compensation Services added that they would approve three sessions of transitional treatment.

On August 12, 2017, the worker requested that Review Office reconsider Compensation Services' August 1, 2017 decision that he had recovered from his compensable injury. The worker further indicated that he would need a fitness and back to work program. In subsequent correspondence dated August 17, 2017, the worker requested that Review Office also reconsider Compensation Services' July 28, 2017 decision that he was not entitled to moving costs.

On August 25, 2017, Compensation Services advised the worker that they had approved a two-week fitness program with a kinesiologist to increase his fitness and provide him with a home exercise program, but confirmed that his wage loss benefits would not be extended.

On September 15, 2017, Review Office determined that the worker was not entitled to wage loss benefits after August 15, 2017 or to further medical aid benefits, and that there would be no coverage for moving costs. With respect to entitlement to wage loss benefits, Review Office accepted the comments of the WCB orthopedic consultant, and found that the worker sustained a lower back contusion and strain/sprain as a result of the February 10, 2016 workplace accident. Review Office determined that recovery from the worker's injuries would have occurred within a short period of time, that they were unable to establish a causal relationship between the worker's current complaints and his workplace injury, and that there was no entitlement to wage loss benefits beyond August 15, 2017.

With respect to medical aid benefits, Review Office noted that Compensation Services approved that the worker be provided with sessions with a kinesiologist to provide him with a home exercise program, the intent of which was to help him increase his fitness as he had indicated he could be in better condition. Review Office determined that beyond those sessions, there was no entitlement to further medical aid benefits in relation to the compensable injury. Lastly, Review Office considered the worker's request for moving costs, and found there was no evidence that coverage for such costs would "…cure and provide relief from an injury resulting from an accident," and no basis for paying any moving costs the worker incurred.

In a note to file dated September 15, 2017, Review Office further commented that a request by the worker for counselling had been returned to Compensation Services for consideration.

On October 23, 2017, the worker's treating psychiatrist provided the WCB with a copy of a consultation report, indicating a current diagnosis of "Major Depressive Disorder, recurrent, moderate, with anxious distress" which the worker was attributing to his workplace accident.

On November 5, 2017, the worker provided further medical information and submissions to the WCB, including a request that the WCB provide compensation for psychiatric care, depression and anxiety disorders. On November 20, 2017, the worker appealed Review Office's September 15, 2017 decision to the Appeal Commission.

On November 28, 2017, a WCB psychological advisor reviewed the treating psychiatrist's consultation report and a June 23, 2017 mental health intake note, and opined that the worker's psychological difficulties "…are not materially related to the workplace injury and are accounted for by his pre-existing and current history of difficulties unrelated to his workplace injury." On December 1, 2017, Compensation Services advised the worker that they were unable to establish that his psychological difficulties were related to his February 10, 2016 workplace accident.

On September 25, 2018, legal counsel for the worker filed a further appeal from Review Office's September 15, 2017 decision, together with a further submission and documentation in support of that appeal.

On October 17, 2018, the worker's legal counsel requested that Review Office also reconsider Compensation Services' December 1, 2017 decision. Counsel noted that the worker's physical injury was more extensive than what was accepted by the WCB, and as a result, the worker suffered psychological consequences due to pain and other consequences arising from treatment.

On December 11, 2018, Review Office advised the worker that his psychological difficulties were not compensable. Review Office found that at the time of the February 10, 2016 workplace accident, the worker did not report or seek treatment for a psychological injury related to the accident. Review Office further found that the circumstances which were identified as having led to a decline in the worker's mental health were not causally related to his workplace accident. Review Office therefore determined that the worker's psychological difficulties were not compensable, as either a psychological injury caused at the time of the workplace accident or a subsequent injury. Review Office noted that they were not yet able to address other health issues which counsel had raised, as these issues had not been decided by primary adjudication.

On February 3, 2020, the worker's legal counsel filed an appeal from Review Office's September 15, 2017 and December 11, 2018 decisions to the Appeal Commission, together with a submission and additional documentation in support of the appeal. A teleconference hearing was arranged and proceeded on June 29, 2020.

Reasons

Applicable Legislation and Policy

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered a personal injury by accident arising out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Subsection 4(2) provides that 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 states 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 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy"), addresses the issue of pre-existing conditions when adjudicating claims. The purpose of the Policy is described, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

With respect to wage loss eligibility, the Pre-existing Conditions Policy states, in part, that:

When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The following definitions are set out in the Pre-existing Conditions Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides that:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

WCB Policy 44.05.30, Adjudication of Psychological Injuries (the "Psychological Injuries Policy"), addresses the way claims for psychological injuries will be adjudicated as well as the reason some types of psychological injuries will not give rise to a compensable claim.

Worker's Position

The worker was represented by legal counsel, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his legal counsel, and the worker and his counsel responded to questions from the panel.

The worker's position was that the totality of the evidence, submissions and findings indicate that the worker suffered complex, severe and disabling physical and psychological consequences from the February 10, 2016 workplace injury, which are ongoing and have not resolved, and his appeal should be allowed.

The worker's legal counsel noted at the outset of his oral presentation that he would be concentrating on the first and fourth issues on the appeal.

Counsel referred to documentation he had submitted in advance of the hearing, which included indices of documents and additional documentation providing a chronology and information relating to the worker's background and past employment history, and treatment records from his treating healthcare providers indicating their efforts to diagnose and treat the worker from the time of his injury in 2016 to the present.

Counsel submitted that all of the reporting and medical opinions from the treating medical practitioners, and in particular the worker's longtime family physician and his treating neurosurgeon, show a continuous presentation of serious symptoms as a result of the worker's February 10, 2016 workplace injury. Counsel submitted that while there might be some factual inaccuracies, the treatment evidence in total showed that the worker has had a continuous problem with physical injuries, followed by psychological injuries, and demonstrates the interrelationship between his chronic pain and his ongoing psychological issues.

Counsel submitted that the mechanism of injury showed a very forceful and concentrated force to the worker's lower back area in the vicinity of his spine which caused significant damage and harm. Counsel submitted that the main symptom at the beginning was chronic pain which gave rise to a series of cascading effects, including an addiction issue and psychological problems which were documented and ongoing.

Counsel argued that the worker might have had pre-existing medical or psychological conditions, but argued that the medical records did not indicate anything significant or serious or disabling prior to February 10, 2016. Counsel noted that the worker's employment history was extensive; he was able to continue working until 2016, but that came to an abrupt end starting with his disabling pain symptoms in February 2016. Counsel submitted that the worker's condition since his February 10, 2016 workplace incident was markedly different from his condition before that date, and his physical and psychological difficulties since then were directly attributable to the February 2016 incident and therefore compensable.

Counsel submitted that generally speaking, the fact of the worker's February 2016 injury, and the persistence of disabling chronic pain and resulting life changes, clearly precipitated depression. While there may have been other factors that made the worker more prone to depression, the trigger or root cause of his psychological problems or depression, was chronic pain.

Counsel noted that the worker has been assessed as unable to work and as a person with disabilities under a provincial social assistance plan. He has also been found to be entitled to a Canada Pension Plan (CPP) disability pension as a result of his ongoing condition and difficulties, to be paid as of December 2016.

Counsel submitted that the Review Office decisions essentially relied on the opinions provided by the WCB's orthopedic consultant and its psychological advisor, but the evidence has clearly shown that their conclusions were not correct. Counsel suggested that the totality of the reporting from the worker's family physician and treating neurosurgeon was more reliable and should be preferred over the opinions of the WCB orthopedic consultant.

In conclusion, counsel submitted that generally speaking, the worker's physical injury clearly continues, and has undermined his well-being. The worker is not doing well at all, as is reflected in his designation as person with a disability and one who is entitled to a CPP disability pension. The worker has not been able to move on with his life, in his personal or employment activities or in any other way due to his ongoing issues, and asks that his appeal be allowed.

Employer's Position

The employer was represented by its WCB Claims Manager, who provided a written submission in advance of the hearing and made an oral presentation to the panel.

The employer's position was that the evidence failed to draw a definitive correlation between the worker's ongoing medical issues and his February 2016 injury, and further consideration of his claim should be denied.

The employer's representative provided a chronology of the worker's physical and psychological difficulties, treatments and reports from his healthcare providers. The representative submitted that despite differing opinions of various medical professionals, the medical history clearly identified pre-existing physical and psychological difficulties. The representative also referred to a number of events surrounding the worker's personal life which negatively impacted his overall health.

With respect to the first issue on the appeal, relating to wage loss benefits, the employer's representative submitted that the medical supported the worker had recovered from his compensable injury and should not be entitled to further wage loss benefits. The representative referred to and relied on the WCB orthopedic consultant's findings from his July 25, 2017 call-in examination, where the consultant noted that his assessment identified no clinical correlation to the findings of the previous imaging studies, and the initial diagnosis was based on imaging reports but contained no clinical evidence to support the imaging diagnosis; that his assessment failed to identify any evidence of an S1 radiculopathy in relation to the imaging studies; and that the diagnosis of the compensable injury was a right lower back contusion and sprain/strain from which the worker had recovered.

With respect to the issue of medical aid benefits, the employer's representative further submitted that the injury having resolved, the requirements of subsection 27(1) of the Act were not met and there was no entitlement to further such benefits.

With respect to the issue of moving costs, the employer's representative noted that the worker's claim was accepted for a sprain/strain injury. The representative submitted there was no medical evidence to support the worker had a permanent impairment or physical disability relating to his compensable injury, and no evidence to support a requirement that he moved as a result of his injury.

Finally, with respect to the worker's psychological difficulties, the employer's representative relied on the WCB psychological consultant's opinion that the worker's psychological difficulties were not materially related to the workplace injury. The representative noted that in providing her opinion, the consultant referred to a lengthy history of psychological difficulties, personal issues, trial of many medications, and financial difficulties, all of which pre-dated the 2016 injury. The representative submitted that the worker's psychological difficulties were longstanding and not related to the February 10, 2016 injury as accepted, or aggravated by that injury.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits after August 15, 2017.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond August 15, 2017 as a result of his compensable injury. The panel is unable to make that finding.

Based on our review and consideration of all of the information and submissions before us, on file, and as presented prior to and at the hearing, the panel is satisfied, on a balance of probabilities, that the worker is not entitled to wage loss benefits after August 15, 2017.

In arriving at that conclusion, the panel finds, on a balance of probabilities, that the evidence supports that the worker suffered a sprain/strain injury to his lower back, in the environment of degenerative disc disease, as a result of his February 10, 2016 workplace injury. The panel is further satisfied, on a balance of probabilities, that the worker had recovered from his compensable injury as at August 15, 2017.

The panel notes the worker's legal counsel comment that "there's clearly something that happened on the 10th of February, as shown on the scans, and it has necessitated ongoing treatment from [the treating neurosurgeon] and no resolution of symptoms."

The panel recognizes that the initial diagnosis by the worker's family physician on February 24, 2016 was a ruptured disc with herniation and a right S1 nerve root compromise, and that the claim was originally accepted on this basis. The panel accepts the comment of the WCB orthopedic consultant, at the time of his July 25, 2017 call-in examination of the worker, that this diagnosis was based on the report from the February 14, 2016 CT scan, and that there was no clinical evidence to support the "imaging diagnosis." The panel finds that this comment is consistent with our review and understanding of the medical information on file. The panel further notes that the WCB orthopedic consultant stated that his assessment of the worker at the call-in examination failed to identify any evidence of an S1 radiculopathy in relation to the imaging studies, and opined that the diagnosis of the compensable injury was a right lower back contusion and strain/sprain.

At the hearing, the worker further described the February 10, 2016 incident in response to questions from his counsel and from the panel. The worker described how he fell against the table and struck the lower right side of his back on the corner of the table. The panel is unable to accept that the mechanism of injury, as described by the worker, would have caused the findings or symptomatology which are noted in the report of the February 14, 2016 CT scan or of the subsequent MRI, performed April 8, 2016.

The panel finds that the evidence indicates the worker had previous problems with his back. The panel notes that the worker's treating neurosurgeon reported that when he first saw the worker on May 12, 2016 that the worker stated that he had "…a history of minor chronic low back pain." The worker acknowledged at the hearing that prior to the accident, he probably had some back pain from doing things. His counsel also acknowledged that the worker had pre-existing conditions of some kind, but submitted that these were "typically asymptomatic," and the magnitude of symptoms changed significantly after February 10, 2016.

Counsel argued that the scans clearly show the damage from the worker's "traumatizing injury," and suggested that the overlay of degenerative disc disease was not significant. The panel is unable to accept that argument. The panel notes that there were no previous imaging studies available for comparison purposes, to determine any changes in the condition of the worker's back.

The panel further notes that subsequent MRIs and the worker's evidence indicate the worker's pain was increasing or at least not improving and the condition of his low back was becoming progressively worse in 2017 and 2018. The panel is unable to account for the worker's ongoing pain and worsening of his lower back difficulties, particularly as he did not return to work and has not worked since his February 10, 2016 workplace injury.

The panel notes that the treating neurosurgeon indicated following his initial assessment of the worker that he did not believe that surgery was required, and that he has maintained that position throughout. The evidence showed that as of the date of the hearing, the worker had not had surgery for his back, although he continues to receive injections which are directed, in part, towards his back condition.

The panel recognizes that evidence shows that the worker has been considered unable to work and been awarded disability payments due to his inability to work. The panel is unable to find, however, based on the evidence which is before us, that the worker's ongoing back condition and his inability to work are related to his February 10, 2016 workplace incident. Rather, the panel finds, based on the medical information on file and on a balance of probabilities, that the worker would have, and had, recovered from his compensable back injury as at August 15, 2017.

Based on the foregoing, and in light of our conclusion on Issue #4 as set out below, that the worker's psychological difficulties should not be accepted as being a consequence of the February 10, 2016 accident, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity beyond August 15, 2017 as a result of his compensable injury. The panel therefore finds that the worker is not entitled to full wage loss benefits after that date.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to further medical aid benefits beyond the pre-approved kinesiology sessions.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker required further medical aid to cure and provide relief from an injury resulting from his February 10, 2016 workplace accident. The panel is unable to make that finding.

Given our finding with respect to Issue #1 above, that the worker had recovered from his compensable injury as at August 15, 2017, the panel is unable to find that he is entitled to further medical aid benefits.

On August 25, 2017, subsequent to their decision that the worker's wage loss benefits would end as of August 15, 2017, Compensation Services advised the worker that they had approved coverage of a two-week fitness program with a kinesiologist, to increase his fitness and provide him with a home exercise program, while noting that his wage loss benefits would not be extended.

In the course of the hearing, the worker and his counsel confirmed that the worker did not attend the approved kinesiology sessions and that he was looking for further and other medical aid benefits beyond such kinesiology sessions due to his ongoing difficulties and symptomatology. Counsel indicated that the nature of those benefits would depend on the panel's findings on the other issues, particularly Issue #1 above.

Information on file and at the hearing indicates that at the time the worker's benefits ended, Compensation Services also provided the worker with coverage for four sessions of transitional psychological treatment. The worker indicated at the hearing that he did see the psychiatrist four times and was getting better, but he needed more treatment which the WCB refused to cover.

In the circumstances, the panel is satisfied, on a balance of probabilities, that the worker did not require further medical aid to cure and provide relief from an injury resulting from his February 10, 2016 workplace accident. The panel therefore finds that the worker is not entitled to further medical aid benefits beyond the pre-approved kinesiology sessions.

The worker's appeal on this issue is dismissed.

Issue 3: Whether or not responsibility should be accepted for moving costs.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that coverage for moving costs was required to cure and provide relief from an injury resulting from the worker's February 10, 2016 workplace accident. The panel is unable to make that finding.

In response to questions from the panel, the worker's legal counsel indicated that "the issue of moving costs is not clear to me." The worker himself confirmed that the issue had arisen because he was looking to moving back to a location which was closer to his family physician. The worker further acknowledged that such a move never happened.

In response to a further question as to whether they were pursuing the moving costs issue, counsel responded that "I don't think it's really on the table right now."

In light of the foregoing, the panel finds, on a balance of probabilities, that coverage for moving costs was not required to cure and provide relief from an injury resulting from the worker's February 10, 2016 workplace accident. The panel therefore finds that responsibility should not be accepted for moving costs.

The worker's appeal on this issue is dismissed.

Issue 4: Whether or not the worker's psychological difficulties should be accepted as being a consequence of the February 10, 2016 accident.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's psychological difficulties were causally related to his February 10, 2016 workplace accident or injury, as having been caused by that accident or as a further injury subsequent to his compensable injury. The panel is unable to make that finding.

The panel is satisfied that the evidence does not support that the worker suffered a psychological injury or psychological difficulties as part of the original injury. The panel notes that contemporary reports of the worker's incident and injury refer to a back injury, and there is an absence of reporting, or of medical evidence, with respect to the worker having suffered a psychological injury as a result of, or at or around the time of, the incident.

The panel has also considered whether the worker's psychological difficulties were compensable under the Further Injuries Policy as a further injury subsequent to the original injury, and in particular, whether the cause of the worker's psychological difficulties was "predominantly attributable to the compensable injury" pursuant to subsection (i) of that Policy. The panel is unable to arrive at such a conclusion.

When asked at the hearing as to what condition the worker was relying on with respect to this issue, the worker's counsel indicated that the issue was primarily depression. Counsel stated that their focus was on the worker's underlying chronic pain which, in their submission, was at the root of, and the major cause of, the worker's depression.

The panel accepts that pain which the worker has described experiencing following the incident and his inability to work after that incident may have contributed to some extent to his overall psychological condition. The panel is unable to find, however, that the worker's psychological condition or difficulties were predominantly (or even significantly) attributable to the compensable injury as a further or subsequent injury under the Further Injuries Policy.

The panel notes that the medical information on file indicates that the worker had pre-existing problems with depression and had been treated for that condition dating back several years. In the January 20, 2019 letter from the worker's family physician which was submitted in advance of the hearing, the physician referred to the worker having reported employment issues in 2009 which created anxiety and depression; to providing ongoing attention to the worker in 2011 in part because of his depressed mood and anxiety; and to the worker having low energy and low mood during 2012 and being referred to a psychiatrist at the end of 2012. In his initial report dated October 23, 2017, the worker's treating psychiatrist noted that the worker had reported he suffered from recurrent depression for the past nine years, but that it got worse over the past year after he hurt his back.

The worker's counsel noted that there may have been some incidents or mild pre-existing psychological difficulties or condition, but argued that they were not interfering with his lifestyle or his ability to work. Counsel submitted that any such past incidents or circumstances may have made him more prone to depression, but it was the chronic pain which triggered his depression. The panel is unable to accept this argument, particularly as it relates to co-existing conditions, including relationship difficulties and substance abuse issues.

Information on file supports that the worker had a variety of psychological difficulties, including conditions and traumatic events dating back to his childhood, substance abuse, relationship issues, and trials of different medications. The panel is unable to draw a connection between those conditions or difficulties and the worker's compensable injury.

The panel notes, for example, that a memorandum to file dated July 28, 2017, documents that the worker indicated to the case manager that being away from work with nothing to do but think had brought back a lot of bad memories.

The worker indicated at the hearing that he began seeing a counsellor weekly from the beginning, following the incident. In response to further questioning, the worker stated that he began seeing the counsellor in December 2016, following certain relationship incidents and difficulties.

The worker noted at the hearing that he spent 16 months in treatment subsequent to the workplace incident. The evidence indicates, however, that such treatment was initiated as a result of such other issues, and was not due to the worker's compensable injury.

Information on file shows that the worker has also referred to his depression being caused by various other factors, including difficulties dealing with the WCB, his claim being ended and the WCB suddenly cutting off his benefits, and labour issues including a dispute or uncertainly with respect to his employment status. The panel notes that the Psychological Injuries Policy provides that employment-related matters are specifically excluded from the definition of accident and are not compensable psychological injuries. The panel is further satisfied that any difficulties which the worker experienced with respect to the administration of his claim and the termination of benefits are not compensable under the Act.

The worker also stated at the hearing that he had been diagnosed with PTSD. The worker and his counsel acknowledged that they could not point to a clinical diagnosis of PTSD. The worker noted, however, that each counsellor had told him he had PTSD in many ways. The worker went on to note with respect to his February 10, 2016 that "A pain disorder, being fired, having MRSA, having my shingles, are all classed as PTSD." In the circumstances, and given the absence of a clinical diagnosis of PTSD, the panel is unable to find that the worker has work-related PTSD.

Based on the foregoing the panel finds, on a balance of probabilities, that the worker's psychological difficulties were not causally related to his February 10, 2016 workplace accident or injury, as having been caused by that accident or as a further injury subsequent to his compensable injury. The panel therefore finds that the worker's psychological difficulties should not be accepted as being a consequence of the February 10, 2016 accident.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of August, 2020