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 further wage loss and medical aid benefits after July 31, 2019. A teleconference hearing was held on November 19, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits after July 31, 2019.

Decision

The worker is entitled to further wage loss and medical aid benefits after July 31, 2019.

Background

The worker filed a Worker Incident Report on March 26, 2018 indicating he injured his left rib in an incident at work on March 15, 2018 when he was struck by a resident. He reported: “Not sure exact time or cause of injury – felt uncomfortable with some numbness.” The day after the incident, the worker felt unable to work and called in sick to seek medical treatment. The worker attended at a local walk-in clinic on March 19, 2018 reporting that he developed “…left lateral chest wall pain” during the incident. The walk-in clinic physician noted left lateral chest wall tenderness but no bruising and referred the worker for a chest x-ray, which indicated a left 9th rib fracture. The physician recommended treatment with analgesics and deep breathing and that the worker remain off work for four weeks. The WCB accepted the worker’s claim on March 27, 2018.

On April 3, 2018, the worker contacted the WCB to report he was experiencing pain over recent days in an area of his chest where he was injured in an incident in 2000. He noted discomfort in his spine and was concerned that he may have reinjured the same area as he did in 2000. At a follow-up appointment with his physician on April 10, 2018, the worker reported his pain improved but he was still experiencing pain with movement. The physician noted tenderness over the left lateral chest wall and recommended the worker remain off work for a further two weeks. At follow-up on April 30, 2018, a repeat chest x-ray was taken. The x-ray report notes the left 9th rib fracture shown on the March 19, 2018 x-ray “…is not clearly demonstrated on these images.” The treating physician recommended the worker remain off work for an additional six weeks to prevent re-injury. On May 7, 2018, the treating physician continued to note left lateral chest wall tenderness and recommended the worker remain off work unless the employer could accommodate the worker on modified duties.

A WCB medical advisor reviewed the worker’s file on May 10, 2018. The advisor noted most rib fractures heal in 6 to 8 weeks, with the possibility there could still be pain after that time but a gradual return to regular activities would be considered safe. The WCB medical advisor opined that at 8 weeks recovery the worker would be able to gradually return to normal activities and recommended restrictions of no heavy lifting and no risk of physical altercation, to be reviewed in two weeks.

On May 11, 2018, May 15, 2018, May 17, 2018 and May 21, 2018, the worker expressed his concerns over returning to work, reporting he felt unsafe performing very risky job duties and that he had been hurt multiple times at work. On May 21, 2018, the worker reported he felt pain in the middle of his chest while he was at home.

The worker saw his physician on May 22, 2018 for follow-up. The physician noted the worker reported improvement in his pain but continued to experience pain with arm movement. There was tenderness over the worker’s left lower lateral chest wall and decreased range of motion in his left shoulder. A further chest x-ray was taken and compared to the April 30, 2018 x-ray. No rib fractures were evident. The physician referred the worker for physiotherapy and recommended he remain off work to June 5, 2018. At an appointment on June 26, 2018, the worker requested a referral for mental health services from his physician due to reported symptoms of depression.

A WCB medical advisor reviewed the worker’s claim on July 12, 2018. The medical advisor noted the worker continued to report pain related to his workplace injury, which was expected but would continue to improve over time and provided an opinion that “…there is no indication that he requires ongoing restrictions or treatment for the effects of the C/I (compensable injury)”. Updated medical information should be provided to determine whether there were any further issues if the worker felt he could not return to work due to the workplace injury.

On the same date, the WCB discussed the medical advisor’s opinion with the worker and advised him that it had determined he was recovered from the effects of the workplace injury. The WCB advised the worker his entitlement to wage loss benefits would end on July 19, 2018 or the date he returned to work, whichever was sooner.

The worker requested reconsideration of the WCB’s decision to Review Office on August 8, 2018 noting that he was still experiencing pain and discomfort from his injury and in the area of his sternum. He further noted that he was receiving treatment by a psychologist. On August 27, 2018, Review Office returned the worker’s file to the WCB for further investigation with respect to the worker’s claim of a psychological injury related to his claim.

On September 4, 2018, the worker’s treating psychologist provided the WCB with a report. The psychologist noted the worker had previously sought treatment from 2011 until 2013 to “…manage mood and anxiety symptoms…” and that the worker began treatment again in July 2018 “…due to an exacerbation of mood and anxiety symptoms.” The psychologist provided an opinion that due to the incident at work, the worker had “…frequent and intense trauma-related symptoms, such as intrusive symptoms, avoidance symptoms, negative changes in thoughts and mood, and hyperarousal symptoms…” and as such, the worker met the criteria for Post-Traumatic Stress Disorder (PSTD).

On September 18, 2018, the worker’s treating physician provided an updated diagnosis for the worker of sternal pain and anxiety.

The worker’s treating psychologist provided a detailed report on how the worker met the criteria for PTSD on December 5, 2018, noting the worker was unable to return to work at that time due to his symptoms.

The employer provided the WCB with a copy of the incident report completed for them by the worker regarding the March 15, 2018 incident.

A WCB psychological consultant reviewed the worker’s file on December 11, 2018. On December 21, 2018, the WCB advised the worker he was not entitled to further benefits in relation to an injury to his left rib or to his sternum, but he was entitled to benefits in relation to an aggravation of his pre-existing psychological condition and his wage loss benefits were reinstated as of July 20, 2018.

A report from the worker’s treating psychologist dated February 8, 2019 indicated the worker was attending for weekly sessions and had demonstrated symptom improvement but was still unable to return to work.

The worker attended for a call-in examination with a WCB psychiatric consultant on May 1, 2019. After the examination, the consultant opined the worker did not have a current psychiatric diagnosis related to the workplace injury but noted a pre-existing history of anxiety and depression. The WCB psychiatric consultant stated there were “…no medical contraindications to returning to work” and the worker would not require workplace restrictions.

On June 13, 2019, the WCB advised the worker it had determined he no longer had a loss of earning capacity and his entitlement to wage loss and medical aid benefits would end on July 31, 2019.

On July 24, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. The worker provided a lengthy submission with his request noting his displeasure and difficulties with his dealings with the WCB and noting that he continues to experience physical and psychological difficulties from the workplace accident.

Review Office found on September 30, 2019 that the worker was not entitled to further benefits. Review Office accepted and agreed with the worker’s treating physiotherapist’s assessment of August 14, 2019 that the worker’s symptoms and complaints related to the worker’s physical deconditioned state and not the workplace accident. With respect to the worker’s psychological condition, Review Office relied upon the WCB psychiatric consultant’s opinion, based on the May 1, 2019 call-in examination, that the worker’s psychological difficulties were not related to the March 15, 2018 workplace accident. Accordingly, Review Office found the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on June 11, 2020. A teleconference hearing was arranged for November 19, 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.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker provided evidence to the panel in response to questions posed by the worker advisor and by members of the panel. The worker advisor made oral submissions to the panel and relied upon a written submission provided to the panel in advance of the hearing.

The worker’s position, as outlined by the worker advisor, is that the worker is entitled to further benefits as he suffered from a psychological injury arising out of an accident at work and had not recovered from that injury as of July 31, 2019, when the WCB determined he was no longer entitled to benefits arising out of that accident.

Further, the worker advisor set out that the diagnosis attributable to the workplace assault is PTSD, consistent with the conclusions set out in the reporting of both the treating psychologist and the WCB psychological consultant. The worker advisor noted that this diagnosis does not appear to have been considered by the WCB at the call-in examination by the WCB psychiatric consultant who determined instead that the worker did not have a current psychiatric diagnosis related to the workplace injury but noted a pre-existing history of anxiety and depression. The worker advisor noted that although the WCB determined that the worker’s psychological condition was attributable to a pre-existing condition, there is no evidence of such a pre-existing diagnosis or condition.

When the WCB determined the worker was fit to return to work in July 2019, the treating psychologist remained of the view that the worker remained disabled by his PTSD symptoms. It was not until early in 2020 that the treating psychologist recommended the worker begin a gradual return to work process through volunteering.

The worker advisor noted as well, in the written submission provided, that the WCB file revealed some organizational challenges in considering and determining whether the worker’s diagnosis of PTSD arose out of the compensable accident.

The worker provided testimony outlining for the panel the nature of his work with the employer and the events of the day of the accident in particular. He described the mechanism of injury in detail, noting the assault was unexpected and forceful, causing him to suffer contusions, a broken rib and bruised sternum as well as traumatic injury to his head and back. The worker described how he felt that work was meaningful and that he really cared about the individuals he provided support and care to.

In terms of his mental health after the accident, the worker noted experiencing unpredictable rage, sleep disruption, hysterical crying, antisocial behaviour, hallucinations, extreme stress and anxiety, avoidance behaviours, tremors and shaking and trust issues. He first noticed that he was having difficulty coping as he was recovering from his physical injuries. The worker reported that the treatment by his psychologist has been helpful, as he has learned to practice increasing his distress tolerance, meditation and other strategies to de-escalate his symptoms. The worker advised the panel that early in 2020 he was preparing to participate in volunteer activities designed to assist in his return to work, but those plans dissolved with the advent of the pandemic. In the interim, he continues with psychological therapy by phone or videoconferencing and is working on exercises to reduce his symptoms and gain control over his trauma.

In sum, the worker’s position is that as a result of the compensable workplace accident, he developed and was diagnosed with PTSD and that as of July 31, 2019 when the WCB discontinued his benefits, he had not returned to his baseline, pre-accident level of functioning but remained impaired by the psychological injury.

Employer’s Position

The employer did not participate in the hearing.

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.

The panel considered the worker’s testimony as to his symptoms and treatment, abilities and status, as well as his reports on file. The worker’s testimony that he continues to practice strategies to reduce and address his PTSD symptoms is consistent with the reporting from his treating psychologist. The panel also noted the worker’s past and continuing cooperation with and participation in all treatments offered to him to address his symptoms and that plans to progress toward a return to work were interrupted and delayed by the pandemic.

The panel reviewed and considered the medical reporting with respect to the worker’s psychological injury. The worker’s treating psychologist first offered a diagnosis of PTSD arising out of the compensable accident in a report to the WCB dated September 4, 2018, noting that because of that incident, the worker was “...experiencing an exacerbation of previous mood and anxiety symptoms, as well as frequent and intense trauma-related symptoms, such as intrusive symptoms, avoidance symptoms, negative changes in thoughts and mood, and hyperarousal symptoms....” In a further and more detailed report dated November 28, 2018, the treating psychologist detailed how the worker met each of the criteria for a diagnosis of PTSD, noting that the worker’s report of the workplace attack satisfied Criterion A, in that he had a traumatic experience with direct exposure to actual serious injury.

The panel also considered the evidence of the WCB consulting psychologist who spoke with and reviewed the reports from the treating psychologist. In a file memorandum dated December 11, 2018, the WCB consulting psychologist noted the treating psychologist clarified that the worker was presenting very differently than he had in the past, when he was treated for anxiety and depression, and that he was now presenting with “extreme reactivity and hypervigilance.” The treating psychologist also explained that any discrepancies in the worker’s reporting of the workplace incident would be in keeping with the worker’s current functioning given his extreme emotional reactivity.

The WCB consulting psychologist provided an opinion dated December 12, 2018 that:

“Based on the assumption that [the worker] did experience an assault that resulted in physical injuries and given that the symptoms reported by [the treating psychologist] meet full criteria for the diagnosis of PTSD, the diagnosis related to the workplace event is Post-Traumatic Stress Disorder.”

The WCB consulting psychologist went on to note that there was no report of psychological difficulties after the worker was treated for symptoms of anxiety and depression in 2011-2013 and “...as such, no report of a pre-existing psychological condition at the time of the workplace assault.” The psychologist suggests that a number of other factors may also be at play in the worker’s presentation, including workplace dissatisfaction, frustration with the WCB claim management process, and apparent congenital/developmental factors and that these “...would be seen to have interacted with the workplace event to result in [the worker’s] current symptom presentation.” Finally, the psychologist noted the worker was unable to work at that time and that a return to work should not be considered until his symptoms were better managed.

The treating psychologist provided a further report dated February 8, 2019 noting the worker was being treated and demonstrating symptom improvement but remained unable to return to work.

The panel considered the May 1, 2019 report from the WCB call-in psychiatric examination of the worker. The WCB consulting psychiatrist concluded that there was no pre-existing psychological diagnosis and that the worker’s psychological difficulties were not related to the workplace injury. Further the psychiatrist concluded that the worker had “...recovered back to his baseline function” and there were “...no medical contraindications to returning to work for the accident employer.”

The treating psychologist, in a report provided to the worker advisor dated May 15, 2020 confirmed his diagnostic impressions as set out in his report of November 28, 2018. He states that the worker’s “...lack of reporting symptomology to the WCB case worker immediately following the incident is not evidence that he did not experience the symptoms” noting that the diagnostic criteria for PTSD specifically contemplates that there may be delayed onset of symptoms. Further, the psychologist noted with respect to the “...suggestion of ‘congenital/development factors associated with [the worker’s] perceptions and interactions with others’, there has not been any formal assessment or diagnoses to this effect, and, as such, any kind of speculation can also be misleading.”

The panel noted that the findings of the WCB consulting psychiatrist from the May 2019 call-in examination are not consistent with the diagnostic findings of the treating psychologist or the conclusions of the WCB consulting psychologist. Further, despite the prior diagnosis of PTSD, the psychiatrist’s report does not address how the worker does not meet the diagnostic criteria for PTSD.

The panel also noted that although the WCB consulting psychologist accepted the diagnosis of PTSD as arising out of the workplace accident, the psychologist also reaches conclusions about the impact of a pre-existing condition that is neither clearly described or substantiated with any diagnostic criteria or references. We do not find that the evidence supports any conclusions as to the existence or impact of any pre-existing condition.

We agree with the conclusion of the WCB consulting psychologist of December 12, 2018 that the diagnosis related to the workplace injury is PTSD. This conclusion is fully supported by the reporting of the treating psychologist. Where there is a difference of opinion between the WCB psychiatric advisor and the worker’s treating psychologist, the panel prefers and accepts the conclusions of the treating psychologist. In particular, the panel accepts and relies upon the November 28, 2018 report from the worker’s treating psychologist 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 that time.

Further, we find on the basis of the treating psychologist’s evidence that the worker continued to experience debilitating symptoms arising out of a 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 on July 31, 2019.

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
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of December, 2020