The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits for her recurrent mental health difficulties. A teleconference hearing was held on October 27, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for her recurrent mental health difficulties.

Decision

The worker is entitled to benefits for her recurrent mental health difficulties.

Background

On April 13, 2017, the worker filed a Worker Incident Report with the WCB indicating she sustained a psychological injury at work on April 9, 2017 when she was assaulted by a resident. She noted that she worked the following day "…but found it difficult to be there." The worker had a pre-scheduled appointment with her treating psychiatrist on April 12, 2017.

The psychiatrist reported seeing the worker for the first time on March 15, 2017 at the request of her treating family physician. The psychiatrist noted the worker had a long history of anxiety and had been trialed on different medications to address her anxiety. On April 12, 2017, the worker reported the workplace incident to the psychiatrist who noted "Her anxiety has escalated and she had difficulty with sleep…She has a known diagnosis of Generalized Anxiety Disorder." The psychiatrist adjusted the worker's medications and recommended two weeks off work.

The WCB accepted the worker's claim on May 8, 2017.

The worker saw a psychologist for three sessions. On June 8, 2017, the treating psychologist provided an opinion that the worker has a pre-existing panic disorder, "…which has been exacerbated by the workplace incident" but did not meet the criteria for post-traumatic stress disorder. The psychologist noted the worker had significant fear and anxiety related to, among other things, returning to work and recommended against a return to work at that time.

A WCB psychological advisor reviewed the worker’s file on June 27, 2017 and concluded the worker's diagnosis was "Generalized Anxiety Disorder (with panic attacks)." The psychological advisor noted the diagnosis was a pre-existing condition and the pre-existing condition was a significant detriment to recovery.

On March 26, 2018, a WCB psychiatric advisor reviewed the worker’s file, noting the worker had been hospitalized due to her significant pre-existing conditions, diagnosed as Borderline Personality Disorder and anxiety. The WCB psychiatric advisor provided that the worker’s current difficulties were not medically accounted for by the workplace accident and it would be helpful for the worker to return to work. Temporary restrictions of no work in a personal care home and no work where there was a high likelihood of being alone with a male were put in place, to be reviewed in one year. The worker returned to work in an accommodated position within her restrictions on July 5, 2018.

The worker contacted the WCB on April 2, 2019 to advise she was interested in applying for positions outside of her restrictions and no longer required the temporary restrictions. The WCB psychological advisor recommended on April 24, 2019 the worker’s file be reviewed by the WCB’s psychiatric advisor.

On June 25, 2019, the worker contacted the WCB to advise she had a recurrence of her psychological injury after she found out the person who assaulted her on April 9, 2017 had passed away. The worker advised she was “…having major panic attacks that she has no control over.” Further, she advised she had seen a physician who advised her to remain off work for four weeks. On July 4, 2019, the employer noted the worker had not advised of the recurrence or that an incident had occurred.

At the request of the worker’s WCB case manager, the worker’s file was reviewed by the WCB’s psychiatric advisor on August 14, 2019. The psychiatric advisor opined the worker’s diagnosis in relation to the workplace accident was an adjustment disorder, with the worker’s treating healthcare providers indicating her primary diagnosis throughout the claim as a Borderline Personality Disorder. The WCB psychiatric advisor determined the worker’s absence from work was related to her pre-existing Borderline Personality Disorder condition and not related to the workplace accident. Noting that the worker had found the death of the person who assaulted her to be upsetting, the psychiatric advisor concluded that “Her understanding of the incident is impaired, and her reaction to the death is rather atypical.”

On August 19, 2019, the WCB advised the worker that her recurrence was not accepted, and she was not entitled to further benefits.

The worker filed a request for reconsideration of the WCB’s decision to Review Office on December 27, 2019, stating in her request that she had post-traumatic stress disorder (PTSD) that recurs and is unpredictable. The employer’s representative provided a submission in response to the worker’s appeal on January 30, 2020.

Review Office determined on February 25, 2020 the worker was not entitled to benefits for her recurrent mental health disability. Review Office accepted and relied on the WCB’s psychiatrist advisor’s opinion that the worker’s current psychological condition was related to her significant pre-existing condition and not the April 9, 2017 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on June 3, 2020. A teleconference hearing was arranged for October 27, 2020.

Reasons

Applicable Legislation and Policy:

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.

The WCB has established Policy 44.10.20.50.10, Recurring Effects of Injuries or Illness (the “Recurrence Policy”) to provide guidance on how recurring disability occurs. The Policy defines a recurrence as “...a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.”

Worker’s Position

The worker appeared in the hearing accompanied by her spouse, as an observer. The worker was represented by a union representative, who provided a written submission in advance of the hearing and made oral submissions on behalf of the worker. Another union representative also attended as an observer. The worker provided testimony to the panel through answers to questions posed by her representative and by members of the appeal panel.

The worker’s representative noted that although the worker discontinued psychological treatment for her injury, the evidence does not support a finding that she had fully recovered from that injury, nor that she was not vulnerable to recurrence of the injury. The fact that the worker remained in an accommodated position with restrictions in place supports the conclusion that she was not fit to return either to her pre-accident duties nor to that specific workplace.

The worker testified as to the events surrounding the workplace incident of April 9, 2017 and described the impacts of that incident on her psychological health. She noted that with treatment she was able to return to work in a new position at another worksite where she was able to cope with the work and conditions. She nonetheless hoped to be able to return to the kind of work she had done before the injury and had therefore asked the WCB to review her restrictions in April 2019. The worker described learning of the death of the resident who assaulted her and feeling at that time like everything was crashing down around her.

The worker’s representative argued that the evidence supports a finding that the worker’s recurring psychological symptoms are directly related to the compensable injury. Upon learning of the death of the resident, the worker began to experience an increase in panic attacks and reported this to the WCB on June 25, 2019. In a follow up email to the WCB case manager on July 8, 2019, the worker reported that “I thought I was doing better, but everything was dragged back up when I found out about his death. Everything got stirred up and it’s been very traumatic and negative.” She reported this to her employer as well by email dated July 5, 2019.

The worker was admitted for psychiatric treatment on July 9, 2019 reporting to the consulting psychiatrist that learning of the death was a “significant stressor.” The worker described to the panel that she had never before felt like she did then. On discharge from that treatment, the noted diagnoses were Adjustment Disorder and complex PTSD. The worker testified she continued under the care of her family physician and community mental health worker. She did not return to work with the employer and ultimately resigned from the employment on May 25, 2020.

Since that time, the worker has started work with another employer with the encouragement of her family physician. She described to the panel that she is generally managing now, taking on more responsibility and doing really well. She continues to see her community mental health worker and physician for care.

The worker’s representative referred the panel to materials from the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) provided with the written submission, noting that the worker’s reaction to the death of the resident is consistent with the diagnosis of Adjustment Disorder. One of the criteria for that diagnosis is “...distress that is out of proportion to the severity or intensity of the stressor.” The worker’s representative also noted that although the WCB has not accepted the diagnosis of Post Traumatic Stress Disorder (“PTSD”), the treating professionals have provided this diagnosis on December 14, 2017, April 13, 2018 and July 19, 2019 in relation to the workplace assault of April 2017. In respect of that diagnosis, the worker’s representative noted that the DSM-5 explains that “Symptom reoccurrence and intensification may occur in response to reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events.

The worker’s representative noted that the evidence does not support the conclusion of the WCB psychiatric consultant that the worker’s increased symptomology reflects her lack of capacity to cope with life stressors. The worker testified to a number of other stressful situations in her life that she was able to cope with in the period leading up to June 2019, without any recurrence demonstrated.

The worker indicated to the panel that she is seeking acknowledgement that the psychological symptoms that reappeared beginning in June 2019 after she learned of the resident’s death are directly related to the psychological injury she incurred as a result of the 2017 workplace injury. She noted that this injury has affected not only her, but her whole family and has “changed everything” for her.

The worker’s position, in sum, is that beginning in late June 2019, she experienced a recurrence of the psychological injury originally incurred as a result of the compensable incident of April 9, 2017. The recurrence of her compensable psychological injury is directly related to the event of learning of the death of the perpetrator of the 2017 assault and as such, is a compensable recurrence. As a result, she required further medical aid and experienced a loss of earning capacity. Therefore, she should be entitled to benefits arising out of the recurrent mental health difficulties.

Employer’s Position

The employer was represented in the hearing by an advocate who provided an oral submission outlining the employer’s position in respect of the issue under appeal.

The employer agrees with the findings and conclusions reached by Review Office and takes the position the recurrence of the worker’s mental health symptoms in June 2019 is not related to the compensable injury of April 2017.

The advocate noted there is evidence to support that the worker has a non-compensable psychological condition that is both pre-existing and concurrent with the accepted compensable injury and stated that this non-compensable condition was the cause of the worker’s difficulties in 2019. The advocate stated that the worker learned of the death of the resident by happenstance, and that this was not an event of such significance to cause a recurrence of her compensable psychological injury, in that there was no material change to the worker’s circumstances after the resident’s death. This event was not of itself a recurrence.

In support of the employer’s position, the advocate relied upon the August 14, 2019 report from the WCB psychological consultant who stated that the worker’s current presentation arose out of the primary diagnosis of borderline personality disorder rather than out of the compensable diagnosis of adjustment disorder. On this basis, the advocate argued that the worker’s symptomology beginning in June 2019 and going forward arose out of the worker’s pre-existing, concurrent condition of borderline personality disorder.

In sum, the employer’s position is that the worker is not entitled to benefits for her recurrent mental health difficulties as the evidence does not support a finding that those difficulties are causally related to the compensable workplace injury.

Analysis

The issue on appeal is whether the worker is entitled to benefits for her recurrent mental health difficulties. In order for the worker’s appeal to be granted, the panel would have to find that the worker’s recurrence of mental health symptoms in June 2019 related to the compensable workplace injury of April 9, 2017. For the reasons outlined below, the panel was able to make such a finding.

After the initial injury in April 2017, the worker was treated and returned to a different position with the same employer in June 2018, with restrictions in place. The file indicates that in April 2019 the worker made inquiries of the WCB as to whether the restrictions could be removed or changed so as to allow her to return to the kind of work she had done before the injury occurred. This indicates to the panel that the worker was not at that time experiencing any significant symptoms or ongoing effects of the injury such that she felt capable of returning to her prior work.

In considering the request for review of the worker’s restrictions, the WCB psychological advisor contemplated that the worker had not fully recovered, as set out in the file memo of April 7, 2019 where he outlines the need to determine whether or not it would be psychologically safe for the worker to again work in the environment where the injury occurred “...where she could confront further adversity that could destabilize her again.” But, before that assessment could take place, the worker’s symptoms of panic, severe depression and anxiety resurfaced upon learning of the death of the person who assaulted her two years earlier.

On June 24, 2019, the worker saw her family physician who noted the worker’s complaints of “panic attacks history of sexual assault at work (2017) Feeling dread of going to work, not sleeping well....” As outlined in a file memo dated June 25, 2019, the worker reported to the WCB case manager on that date that the resident who assaulted her had died a few days earlier. She began having “major panic attacks” soon after learning of the death and was not able to control her symptoms and could not work.

On July 9, 2019 worker again saw her family physician, now presenting with severe panic attacks, suicidal ideation and intent, severe depression, not eating, no concentration, poor sleep, no energy. At this time, the physician referred the worker for emergency psychiatric care.

The worker was admitted for psychiatric treatment on July 9, 2019. The diagnostic impression on admission was recorded as major depressive disorder and borderline personality disorder. At that time, the worker reported:

“...having worsening depressive symptoms in the last three to four weeks with pervasively low mood, decreased energy, poor sleep, hopelessness and daily suicidal thoughts.... She reported having increasing anxiety symptoms with frequent anxiety attacks almost every other day.... She indicated that she had been sexually assaulted about three years ago and that she recently found out that the perpetrator had passed away which she identified as a significant stressor. She also identified her work situation as stressful as she has been unable to work as a [previous occupation] since her sexual assault....”

The worker was discharged on July 19, 2019. The discharge record noted again the worker’s report of “...having anxiety attacks and ‘huge bouts of depression’. These episodes were coming and going throughout the day and had been happening since June 20, 2019.” The most responsible diagnosis, or the condition most significant to the length of stay was identified as adjustment disorder, complex PTSD, with the primary diagnosis recorded as borderline personality disorder.

On July 9, 2019, the WCB psychological advisor reviewed the reports from the worker’s family physician and stated “...it would be difficult to attribute the symptom reoccurrence predominantly to learning of the death of the perpetrator, and that finding out of the death of the man who had assaulted her 2+ years previously would be an unusual triggering event for a symptom reoccurrence.” While he is skeptical as to a causal link, the WCB psychological advisor does not rule it out but suggests that a report be obtained from the worker’s mental health worker and “...there should be a review of potential other issues that may be occurring in the claimant’s life that could be stressful for her.”

A WCB psychiatric consultant reviewed the file in August 2019 and determined that the symptoms that the worker began to experience in June 2019 were not related to the original psychological injury but were attributable to the worker’s pre-existing mental health diagnoses, stating:

“The psychiatric diagnosis relating to the workplace incident was Adjustment Disorder. Her primary diagnosis over the course of the claim has been Borderline Personality Disorder.... [The worker] went off work after she heard that the resident...had died. She did not have contact with the resident, and indirectly learned of his death. She finds it upsetting that the...resident...was not charged for assault, and now she will not find justice....Her understanding of the incident is impaired, and her reaction to the death is rather atypical. Her absence from work is related to a pre-existing condition – difficult with coping strategies (Borderline Personality Disorder). It is not directly related to the original workplace incident.”

On the basis of the psychiatric consultant’s assessment, the WCB determined in August 2019 that the worker’s symptomatic presentation in late June 2019 was not related to the compensable workplace injury but was related instead to the worker’s pre-existing diagnosis of borderline personality disorder.

The worker’s representative suggests that it is not relevant whether the worker’s response was objectively unusual or atypical, as the evidence of the worker’s subjective response to receiving this information suggests that it was an inciting or triggering event for her. As noted by the WCB psychological consultant it is relevant whether there was any other stressful event or triggering incident at the time of the worker’s reoccurrence of symptoms. The panel noted there is no evidence in the medical reporting of any other such triggering event. Further, there is no evidence in the WCB file, and the worker did not testify to the presence of any other triggering or stressful event in her life at that time.

The panel also noted that the WCB psychological advisor, in the context of an examination of the worker for permanent partial impairment rating purposes, outlined in his report of February 20, 2020 that the worker “...was in agreement that she had a previous history of trauma, previous generalized anxiety, and a diagnosis of Borderline Personality, and that she had previous issues with coping, but indicated this had become significantly worse since the sexual assault incident and here, I would have no reason to disagree with this given her claim history.” The WCB psychological advisor went on to conclude that the worker sustained an increase in her psychological symptoms following the workplace incident of April 2017,

“...where she had an increase in her pre-existing generalized anxiety, most likely an increase in her previous trauma experience sequelae, she had a diagnosis of Borderline Personality Disorder, and had difficulties coping. She clearly had pre-existing issues, these predated her claim, but she had been rendered more symptomatic on a post-claim onset basis.... She clearly has been affected by sexual assault incident, and has had an exacerbation of her pre-existing issues with the addition of the claim-related Adjustment Disorder and, she continues to have post-traumatic and depressive mood symptoms at this time.”

The panel agrees with the worker’s position that the fact that she was asymptomatic prior to June 2019 does not mean that she had fully recovered from the compensable injury. Rather, the fact that the worker could only return to work with restrictions in place that would preclude her from returning to the same workplace or to the same position in another workplace suggests that she remained vulnerable to recurrence of the psychological injury. That the WCB understood this is evident from a file memo dated April 8, 2019 in which the WCB case manager outlined the need to be cautious in addressing the worker’s request to review the restrictions so as to avoid a setback or triggering incident. The WCB psychological advisor who reviewed the file in April 2019 also noted the question of the worker’s psychological safety needed to be addressed in considering what restrictions were appropriate, indicating that although the worker was not at that time symptomatic, she did remain vulnerable to recurrence of her injury.

The panel accepts the evidence of the worker that learning of the death of the resident who had assaulted her was a triggering event that led to reappearance of psychological symptoms including increasing anxiety, frequent panic attacks, depression and suicidal ideation. These symptoms were not evident in the worker in the months leading up to this event but did present within days of learning of the resident’s death, as confirmed by the worker’s reports shortly thereafter to her family physician, her employer and the WCB case manager. These symptoms increased and intensified over the two weeks following this event to the point where the worker was admitted for psychiatric care on July 9, 2019. The medical reporting arising out of the July 9-19, 2019 psychiatric admission points to a recurrence of the compensable diagnosis of adjustment disorder as well as complex PTSD in the context of the worker’s pre-existing borderline personality diagnosis.

The panel noted the WCB psychiatric advisor’s opinion, based upon a review of the worker’s medical file on August 14, 2019. While the psychiatric advisor agrees that the diagnosis relating to the 2017 workplace incident was adjustment disorder, the psychiatric advisor does not agree with the treating professionals that there was a recurrence of this diagnosis arising out of the worker learning of the death of the resident who assaulted her. Rather, the psychiatric advisor finds that the worker’s response is “atypical” and that her absence from work is rather related to the pre-existing diagnosis of borderline personality disorder.

The panel prefers the opinion of the treating professionals in respect of the worker’s diagnosis resulting in her admission to psychiatric care in July 2019. While there is no doubt on the basis of the medical reporting that the worker’s pre-existing diagnosis of borderline personality disorder remains a factor in her presentation, we accept the evidence that there were multiple co-existing diagnoses resulting in the psychiatric admission on July 9, 2019 including recurrence of the compensable diagnosis of adjustment disorder arising out of the April 2017 workplace injury. Although the WCB psychiatric advisor does not accept that recurrence of the worker’s adjustment disorder was triggered by learning of the resident’s death, the panel notes that the WCB psychological advisor does acknowledge that possibility, and the treating psychiatric professionals also accept that this was a triggering event.

On the basis of all the evidence before us, the panel finds, on a balance of probabilities that the worker’s recurrence of mental health symptoms beginning in June 2019 related to the compensable workplace injury of April 9, 2017. As a result, the worker is entitled to benefits for her recurrent psychological condition. 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 10th day of December, 2020