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 additional benefits in relation to the June 29, 2015 accident. A teleconference hearing was held on October 8, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to additional benefits in relation to the June 29, 2015 accident.

Decision

The worker is entitled to additional benefits in relation to the June 29, 2015 accident.

Background

On December 4, 2017, the worker filed a Worker Incident Report with the WCB reporting he suffered a psychological injury. The worker attributed his psychological difficulties to a traumatic incident he was involved with on June 29, 2015 and a similar traumatic incident that took place on October 8, 2016. He noted symptoms of anger and poor sleeping habits and that his psychological issues were impacting his personal life. He also reported anxiety when he went to work and that he had withdrawn from personal interactions with his friends.

The worker saw his family physician on December 2, 2017 who reported the worker was mentally run down, angry, fearful and appeared exhausted. The physician diagnosed post-traumatic stress disorder (“PTSD”), referred the worker to a psychologist and recommended that he remain off work.

The WCB contacted the worker on December 7, 2017 to discuss his claim. The worker confirmed the details of the traumatic incidents he was exposed to at work and noted that after the incident in 2015, he suffered flashbacks of that incident that came in waves. He advised the WCB that he would soon be seeing a psychotherapist.

On December 11, 2017, the worker met with a psychotherapist. The psychotherapist provided an opinion that the worker was "…experiencing moderate to severe Post Traumatic Stress Disorder as described per DSM-5. He met all 8 of the required criterion (sic)". The psychotherapist recommended the worker remain off work for the month of January 2018 for treatment, with the expectation the worker could begin a graduated return to work in February 2018.

Upon referral to a psychologist, the worker was seen for initial assessment on January 18, 2018 and January 25, 2018. The psychologist provided an opinion that the worker met "…the diagnostic criteria for Posttraumatic Stress Disorder, secondary predominantly to traumatic experiences at his job…" and was of the view the worker could not return to work at that time based on his symptomatic presentation. The psychologist recommended psychotherapy focused on PTSD treatment.

The WCB accepted the worker's claim on January 30, 2018.

The worker continued to receive treatment from the psychologist and provided regular status updates to the WCB on his symptoms and treatment. On July 26, 2018, at the request of the WCB case manager, a WCB psychological advisor reviewed the worker’s file and report from the treating psychologist dated June 27, 2018. The psychological advisor opined that the worker continued to experience "…Post-Traumatic Stress Disorder, with only small improvement… primarily resulting from [the worker] being away from work." The WCB psychological advisor noted that although the treating psychologist did not provide any of the evidence-based treatments for PTSD, the WCB would continue to fund that treatment. The advisor also recommended the WCB case manager discuss with the worker the benefits of meeting with a psychologist who specialized in PTSD treatment as "…evidence-based treatment is appropriate and may be of most benefit for him to achieve symptom relief and to be able to proceed with his life plans…."

On September 10, 2018, the worker's WCB case manager spoke to the worker who agreed with the recommendation of the WCB psychological advisor and the worker was then referred to a psychologist who specialized in PTSD treatment.

On January 10, 2019, the WCB psychological advisor again reviewed the worker's file and noted that in a discussion with the worker's second treating psychologist of the same date, the psychologist stated that while the worker was too symptomatic to return to his regular job duties, suitable alternate duties could be considered and might be of benefit to the worker. Because the worker appeared to be "…engaging well in appropriate treatment" with the second treating psychologist, the WCB authorized further treatment.

In a report from the second treating psychologist dated April 16, 2019, the psychologist noted the worker reported symptoms consistent with a Major Depression during recent sessions and that the worker was recommended to speak with his family physician for a prescription for anti-depressant medication. The psychologist also indicated he had spoken with the worker's prior treating psychologist and both found the worker expressed strong convictions against returning to his pre-accident occupation. Noting that the worker had been off work for some time, the psychologist recommended a call-in examination with a WCB psychological advisor.

The worker attended a call-in examination with a WCB psychological consultant on September 5, 2019. Afterwards, the WCB psychological consultant expressed the opinion that the worker's current symptoms and functioning were not consistent with a diagnosis of PTSD. The consultant noted the worker had "…undergone lengthy therapy with two psychologists, including evidence-based treatment for PTSD" but reported no benefit from the therapy. Further, the consultant suggested a permanent restriction of not returning to his previous profession would be appropriate, but noted “There does not appear to be a rationale based on psychological diagnosis or symptoms that would preclude him from doing other forms of work.”

On October 16, 2019, the WCB advised the worker he was not entitled to further benefits as it had determined his ongoing psychological difficulties were not related to the compensable injury.

On October 22, 2019, the worker provided the WCB with a detailed list of what he believed were inaccuracies in the WCB psychological consultant’s report from the September 5, 2019 assessment and asked the WCB to reconsider its decision. The WCB psychological consultant reviewed the information provided by the worker and advised on October 31, 2019 that the report from the September 5, 2019 interview was “…a valid representation of the information provided and discussed during the 3-hour interview with [the worker]” and there was no change to the opinion expressed in the report. On the same date, the WCB advised the worker there would be no change to the earlier decision.

On November 5, 2019, the worker requested reconsideration of the WCB’s decision to Review Office noting that his symptoms and current functioning were related to his compensable injury diagnosed as PTSD. On November 12, 2019, the worker provided Review Office with an October 27, 2019 note from his family physician indicating the worker was suffering from PTSD related to his workplace, was being treated by a psychologist with an expected prolonged recovery process. The treating family physician opined the worker may be able to return to work but not at his previous position.

Review Office determined on December 5, 2019 the worker was not entitled to additional benefits, relying upon the opinion of the WCB psychological consultant that the worker had undergone extensive treatment with two psychologists and based on his level of functioning, including his ability to visit his workplace and similar workplaces, was no longer experiencing PTSD or other disabling psychological symptoms. Review Office found that the worker still presented with some psychological difficulties but could not relate those difficulties to the workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on April 2, 2020. A teleconference hearing was arranged for October 8, 2020.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB 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.

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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker’s Position

The worker was represented in the hearing by a worker advisor, who made a submission on behalf of the worker and addressed questions to the worker. The worker provided testimony to the panel through answers to questions from the worker advisor and from members of the appeal panel.

The worker advisor outlined the worker’s position in a written submission provided to the panel and shared with the employer in advance of the hearing date. The worker’s position is that he did not recover from his compensable injury (PTSD) by October 16, 2019 when the WCB terminated his benefits and that the worker is therefore entitled to additional benefits.

The worker’s position is supported by a report from his treating psychiatrist March 25, 2020, attached to the worker advisor’s written submission. In that report, the psychiatrist outlines how the worker continued to meet the criteria for a diagnosis of PTSD and describes the ongoing treatment for PTSD provided to the worker between December 2019 and March 2020. The psychiatrist’s opinion was that the worker is not capable of returning to his pre-accident work “...due to ongoing intense physiological and psychological symptoms in response to exposure to real or symbolic reminders of previous trauma. This leads to derealization, emotional dysregulation and going into a freeze response that sometimes requires help from another person to resolve.” The psychiatrist concluded that he did not expect the worker to be able to return to any kind of work before March 2021.

The worker advisor’s written submission also included a letter from the treating psychiatrist dated December 20, 2019 in which the psychiatrist outlined the conclusions reached as a result of his assessment of the worker of that date. The diagnoses include PTSD arising out of recurrent trauma occurring in the worker’s employment, depressive symptoms, attention deficit hyperactivity disorder and obstructive sleep apnea.

The worker advisor urged the panel to prefer the opinion of the treating psychiatrist over the opinion of the WCB psychological consultant. The treating psychiatrist met with and comprehensively assessed the worker over the course of 5 appointments, while the WCB psychological consultant reached conclusions on the basis of a single interview. Further, the treating psychiatrist provided an opinion that addressed the diagnostic criteria for PTSD as outlined in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”) while the WCB psychological consultant’s report addresses only one criterion, intrusive ideation, which the worker did not report.

The worker advisor specifically questioned the worker on the details of his attendance at the workplace in 2019, as this was an issue of concern raised by the Review Office. The worker described his visits, noting that these were mostly to an entirely different area of the employer’s premises than where he worked or was exposed to traumatic events. On the two occasions when he returned to his actual work location in the summer of 2018, it was for limited periods of time and on the urging of his treating professionals, as a therapeutic process.

Further, the worker explained to the panel that when he travelled on a number of occasions during his time away from work, he did so with the approval and encouragement of his treating professionals, to visit and experience time of rest with a close family member. While some aspects of the travel were particularly anxiety-inducing, the worker was able to use these opportunities to practice the coping and anxiety reduction strategies learned in his treatment.

The worker advised the panel that he remains susceptible to triggering of PTSD symptoms as his medications are being adjusted and as he practices his learned coping strategies. He continues to see his psychiatrist every three weeks and has recently been approved to receive a PTSD service animal.

The worker’s position, in sum is that the evidence supports a finding that the worker has not to date recovered from his compensable psychological injury and will likely remain susceptible to future recurrence of the injury. The worker therefore remains disabled from all forms of work and as such is entitled to additional wage loss and medical aid benefits.

Employer’s Position

The employer was represented in the hearing by its human resources manager who outlined the employer’s support for the worker’s recovery and eventual return to work. The human resources manager confirmed that the employer is ready and willing to work with the worker and his treatment providers to support him in a return to work with or without restrictions or limitations, as required. The human resources manager noted that there have been some workplace staffing changes and resultant changes in job duties over the course of the past year that might impact the worker upon a return to work.

In sum, the employer is supportive of the worker’s recovery and willing to accommodate his return to work as circumstances allow.

Analysis

The worker appealed the decision that he is not entitled to additional benefits. In order to find in favour of the worker, the panel would have to determine that the worker continued to sustain either a loss of earning capacity or required further medical aid as a result of the compensable psychological injury. The panel was able to make such a determination for the reasons that follow.

In reviewing the evidence before us, the panel carefully considered the medical reporting for the period leading up to and after the WCB’s October 2019 decision that the worker is not entitled to further wage loss benefits.

The worker’s treating psychotherapist, in an April 6, 2019 progress update to the WCB noted some improvement in the worker’s symptoms but also an increase in the worker’s feelings of anger and frustration. He reported symptoms consistent with Major Depression and that he referred the worker to his family physician to discuss medication to address those symptoms. The psychotherapist noted the worker indicated he did not feel he could ever return to his pre-accident employment, but the psychotherapist noted that there was not any such restriction currently in place. The psychotherapist therefore suggested that the WCB consider a call-in examination to explore with the worker his prospects for a return to work, noting that the worker may be approaching maximum medical improvement.

A WCB psychological advisor reviewed the worker’s file on August 6, 2019 and determined that given the recommendations of the treating psychotherapist, a call-in examination should take place to assess the worker’s current status in relation to restrictions and readiness for a return to work. The psychological advisor’s assessment notes from the September 5, 2019 examination summarize the worker’s diagnosis and treatment history, his presentation and current circumstances. In her report, the psychological advisor notes the worker’s request for information on other treatment options and sets out that she told the worker there were two other evidence-based treatments for PTSD but that these would not likely provide any additional benefit to the worker or were not appropriate for his situation. The psychological consultant concluded that the worker’s current presentation would not meet criteria for Major Depressive Disorder, although he was experiencing some “mood symptoms”. The psychological consultant also noted the worker did not report other traumatic experiences related to his work that result in intrusive ideation or experiences and therefore, “...it does appear that he is not experiencing Post-Traumatic Stress Disorder at this time. His anger, irritability, and transient anhedonia may be trauma-related as well as characterological....” Based on her assessment, the WCB psychological advisor determined the worker was not disabled from any form of work, but that a permanent restriction of not returning to his pre-accident work should be put in place. As the worker had been away from work for nearly 3 years, had undergone lengthy therapy with two psychologists, and the assessment that his current presentation was not consistent with a diagnosis of PTSD, the psychological consultant concluded the worker’s continuing absence from work was “strongly related to his lack of direction related to his career, his strong desire not to return to work with his previous employer, and his high need for control associated with anger....”

Following further conversations with the WCB case manager, the WCB psychological advisor confirmed the permanent restriction that the worker could not return to his pre-accident job duties or role. The psychological advisor also stated her belief that while the worker’s symptoms of anger, irritability and difficulty with interpersonal interactions may be associated to some extent with events he experienced at work, other factors not related to work were also at play, and to a greater extent.

After the worker provided a lengthy written response to the psychological advisor’s report, the psychological advisor reviewed the worker’s comments and on October 31, 2019 again confirmed the opinions expressed in the September 5, 2019 report.

The worker’s treating family physician, on October 27, 2019 provided a medical note setting out that the worker “...continues to suffer from posttraumatic stress disorder related to [events] at his workplace.” Noting the worker’s treatment is ongoing, in terms of medication and psychological treatment, the physician states that “I would anticipate a prolonged recovery process.”

The worker was assessed by another psychiatrist on December 20, 2019 who reported the worker was experiencing PTSD related to recurrent trauma in his employment and depressive symptoms that were addressed by medication, as well as other issues not related to the worker’s employment. The psychiatrist indicated there would be follow-up to develop a recovery plan.

The psychiatrist’s narrative report of March 25, 2020 outlines his subsequent treatment and details his assessment of the worker in the period from December 2019 through to March 2020. The focus of those sessions was symptom reassessment and coping with the worker’s symptoms. The psychiatrist noted the treatment plan was to find a medication that better controlled the worker’s “intrusive memories, rumination, emotional dysregulation and irritability” as well as improving the worker’s skills in managing these symptoms, with the hope of referring the worker to trauma-informed intensive psychotherapy once the worker’s symptoms were better controlled. In the report, the treating psychiatrist reviewed each of the DSM-V diagnostic criteria for PTSD and noted how the worker met each, concluding that the worker “qualifies for the dissociative subtype in that derealization has been a frequent symptom.” The psychiatrist also concluded the worker is not capable of returning to his pre-accident work:

“due to ongoing intense physiological and psychological symptoms in response to exposure to real or symbolic reminders of previous trauma. This leads to derealization, emotional dysregulation and going into a freeze response that sometimes requires help from another person to resolve....I do not expect him to be able to return to any kind of work before March 1, 2021.”

The panel noted that the WCB psychological advisor’s assessment does not review the complete DSM-V diagnostic criteria for PTSD nor their application to the worker yet concludes that the PTSD diagnosis is no longer valid. This is in stark contrast to the March 25, 2020 report from the worker’s treating psychiatrist, who reviewed the DSM-V diagnostic criteria for PTSD and set out how the worker evidenced this symptomology.

The panel noted that the treating psychiatrist’s report also addressed some of the worker’s concerns arising out of the WCB psychological advisor’s report and in particular, that it confirms an ongoing diagnosis of PTSD with continuing treatment, and that the worker remains unable to return to any work. The conclusions of this report directly contradict the WCB determination of five months prior that the worker’s condition was no longer related to the compensable workplace diagnosis.

The panel considered the worker’s testimony as to his symptoms and treatment, abilities and status, noting the worker’s explanations provided with respect to his travel and occasional visits to his workplace during the recovery period. The worker’s testimony that he remains susceptible to triggering of PTSD symptoms as his medications are being adjusted and as he practices his learned coping strategies is consistent with the reporting from his treating psychiatrist. The panel also noted the worker’s past and continuing cooperation with and participation in all treatments offered to him as well as his interest in other options that might address his symptoms.

The evidence here leads the panel to find on a balance of probabilities that the worker continued to experience debilitating symptoms arising out of the compensable diagnosis of PTSD such that he was not capable of a return to work and continued to require medical aid at the time that the WCB determined he was recovered in October 2019.

Where there is a difference of opinion between the WCB psychological advisor and the worker’s treating psychiatrist, the panel prefers and accepts the conclusions of the treating psychiatrist. In particular, the panel accepts and relies upon the March 25, 2020 report from the worker’s treating psychiatrist as to the worker’s ongoing symptomology and PTSD diagnosis, the ongoing need for treatment and his inability to return to any kind of work at this time.

With respect to the worker’s entitlement to further benefits, the panel accepts the conclusions of the treating psychiatrist that the worker remains fully disabled from all work and continues to require medical aid to treat and address the symptoms of his compensable psychological injury.

The panel therefore determines, on a balance of probabilities, that the worker is entitled to further benefits. The appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of November, 2020