The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

• Accident of September 16, 2003: Responsibility should not be accepted for the worker’s psychological condition as being a consequence of the September 16, 2003 accident; and

• Accident of September 1, 2017: The claim is not acceptable.

A teleconference hearing was held on September 24, 2020 to consider the worker's appeals.

Issue

Accident of September 16, 2003: Whether or not responsibility should be accepted for the worker’s psychological condition as being a consequence of the September 16, 2003 accident; and

Accident of September 1, 2017: Whether or not the claim is acceptable.

Decision

Accident of September 16, 2003: Responsibility should be accepted for the worker’s psychological condition as being a consequence of the September 16, 2003 accident; and

Accident of September 1, 2017: The claim is not acceptable.

Background

Accident of September 16, 2003

The WCB accepted the worker’s claim for enhancement of his pre-existing degenerative lumbar disc disease protrusions at L4-L5 and L5-S1 resulting from an accident at work on September 16, 2003. Following treatment, the worker returned to modified work on a graduated basis and then to his regular duties, but experienced ongoing recurrences of his lower back difficulties related to the accident resulting in further time loss. On August 9, 2010, the worker underwent an L5-S1 disc excision and decompression surgery. After post-surgical rehabilitation, a functional capacity evaluation in May 2011 determined the worker was capable of returning to his regular full job duties with restrictions on lifting.

On February 16, 2012, the worker attended for an assessment with the WCB Pain Management Unit due to concerns regarding the worker's use of opioid medication. At that time, a 10-week weaning period was recommended and it was noted the worker was not experiencing any psychological condition related to the compensable injury.

The worker continued to work modified duties with some further time loss due to ongoing difficulties, including a period in 2014 due to another workplace injury. On February 12, 2015, the worker advised the WCB he applied for disability benefits as he was not capable of working.

The WCB advised the worker on March 10, 2015 that he was not entitled to wage loss benefits after March 17, 2015 as the employer was able to suitably accommodate his physical restrictions and non-compensable factors were preventing the worker from returning to work. A WCB orthopedic consultant reviewed the file on May 6, 2015 and determined the worker's restrictions were no longer required.

Beginning June 11, 2018, the WCB undertook a further review of this claim after the worker filed a claim in December 2017 for a psychological injury and was advised his current psychological difficulties would be investigated related to his back injury that occurred on September 16, 2003. The WCB obtained further information including a copy of the May 2, 2018 opinion of the WCB psychological advisor prepared for the worker’s 2017 WCB claim file and chart notes from the worker’s treating family physician for the period of 2016 to 2018 that noted a referral for psychiatric assessment in September 2016.

On June 29, 2018, the worker advised the WCB that he had remained off work after his benefits ended on March 17, 2015, returning in approximately March 2016, with restrictions. He continued to work in an accommodated position for approximately a year, until he began throwing up. His family physician sent him for several tests to determine if there were gastric difficulties causing the issues, with nothing indicated. He was then referred to a psychiatrist in May 2017. The worker confirmed the psychiatrist provided medications that helped with the panic attacks but reported that these continued. He further advised he had been off work since December 2017.

On July 20, 2018, the employer provided the WCB with additional information regarding the worker’s job duties, workplace incidents he had been exposed to and further information regarding a traumatic incident in 2012. The treating psychiatrist noted in a report received on July 24, 2018, that the worker’s “…depressive symptoms seem to have elevated but his post-traumatic symptoms remain unchanged.”

A WCB psychological advisor reviewed the worker’s file on July 26, 2018 and concluded the worker had a Stressor and Trauma-Related Disorder with anxiety and post-traumatic symptoms with delayed onset, indirectly related to his compensable back injury and more directly related to his feelings of vulnerability and fearfulness when anticipating a return to his regular duties. On July 27, 2018, the WCB advised the worker that his current psychological difficulties could not be related to the September 16, 2003 workplace accident.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on October 11, 2019. In their submission, the representative provided that the worker’s psychological difficulties should be accepted as a subsequent injury to his compensable back injury as the evidence supported the back injury was a predominant cause of the worker’s psychological issues.

On December 17, 2019, Review Office determined the worker’s psychological condition was not compensable. While Review Office acknowledged the worker’s feeling of vulnerability and the potential risks of the worker’s job duties, it noted the worker had been in an accommodated position since 2016, away from the area he had been working in previously. Given the worker was removed from potential risks, Review Office was unable to relate the worker’s current psychological difficulties to the compensable back injury.

Accident of September 1, 2017

The worker filed a Worker Incident Report with the WCB on December 15, 2017 reporting he suffered a psychological injury with an accident date of September 1, 2017. The worker listed incidents of violence he had been exposed to over the previous fifteen years, noting:

“There have been more incidents that I have noticed in the last few months. Before I never used to notice them as much. I have anxiety and panic attacks, trouble sleeping. I do not like leaving the house.” The worker further noted a weight loss due to “…throw[ing] up in the morning and randomly.”

On December 21, 2017, the WCB contacted the worker to discuss his claim. The WCB case manager asked the worker if there was a specific incident that happened on December 13, 2017, noted to be the last day the worker was at work. The worker confirmed he completed his full shift as scheduled on that date and denied any traumatic or stressful event took place that day. The worker noted that he was injured at work approximately 10-11 years earlier and that he was afraid it would happen again as his back condition had not improved. He explained that approximately 2-2.5 years ago when he was working his full regular duties, he was a first responder to a traumatic event. The worker described symptoms of vomiting that began about 6-7 months earlier, panic attacks and trouble sleeping. He denied any history of mental illness, depression or anxiety and noted other stressors in his life including financial issues and his prior back injury. The worker further noted that due to his back injury, he works in an accommodated position and had not had any employment related issues related to his accommodation.

The WCB spoke with one of the worker’s supervisors on January 12, 2018. The supervisor advised the worker called him on December 15, 2017 to advise that his doctor told him he should not be at work and that he would be off work due to stress. The supervisor confirmed that in past casual conversations with the worker, the worker had advised “…he was experiencing stress related to being at work or stress related to his lack of sick leave and his ongoing back issues.” Further, the supervisor stated the worker reported that his stomach issues and vomiting were related to stress at work, and the supervisor noted an increase in the worker’s stress levels. The supervisor could not relate the increase in the worker’s stress to a specific incident or difficulties with specific incidents.

On January 22, 2018, the WCB received a copy of a May 25, 2017 report from the worker’s treating psychiatrist to the worker’s family physician. The psychiatrist noted the worker’s absence from work due to his prior back injury and that “Since he returned to work in September of 2016, he has not been the same.” The report outlined the worker’s diagnosis of Major Depressive Disorder versus Adjustment Disorder with depressed mood and that medication was prescribed. A summary of the worker’s treatment was included with the report, noting the initial consultation on May 18, 2017, with a follow-up appointment occurring later in 2017. At the follow-up, the worker reported having “flashbacks” of events that happened at work, that he had lost a significant amount of weight and was experiencing difficulty with sleep. The psychiatrist then diagnosed Major Depressive Disorder with stress and Post-Traumatic Stress Disorder (“PTSD”). When the worker next saw the psychiatrist in January 2018, some improvement was noted.

On February 6, 2018, the WCB spoke to two other supervisors of the worker. The first reported conversations with the worker regarding the worker being stressed at work about not being able to perform his job duties in the event of an emergency. The second reported the worker had made some vague comments about feeling stressed and challenges with coping but never related this to a work incident.

The WCB received further information from the employer regarding the traumatic incident involving the worker in 2012. The employer confirmed the worker had some involvement after the incident occurred and submitted a report but was not a first responder to the incident.

At the request of the WCB, the worker attended for a call-in examination with a WCB psychological advisor on May 2, 2018. After the examination, the advisor noted the worker had a “complicated psychological situation” of being exposed to traumatic events at work, but those events were not traumatic to him. The WCB psychological advisor opined the worker had a diagnosis of a Stressor and Trauma-Related Disorder with anxiety and post-traumatic symptoms with delayed onset and recommended the worker not return to his previous accommodated position but continue to receive ongoing psychiatric care with psychotherapy and medication management.

On June 7, 2018, the WCB advised the worker that his claim was not acceptable as an accident as defined by the WCB legislation could not be established; however, the WCB did advise the worker that his current psychological difficulties appeared to be related to his prior back injury and would be managed under that claim.

On April 15, 2019, the worker requested reconsideration of the WCB’s decision to Review Office noting on his submission that his physician advised him he had PTSD related to his job and PTSD symptoms related to a workplace injury. Review Office determined on May 6, 2019 that the worker’s claim was not acceptable. Review Office found the evidence on file did not support the worker was involved in a work-related event that could lead to a diagnosis of PTSD and as such, could not establish an accident occurred as defined by the WCB legislation.

Both Claims

The worker’s representative filed an appeal on both claims with the Appeal Commission on December 24, 2019. A teleconference hearing was arranged and took place on September 24, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was received and provided to the interested parties for comment. On December 9, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Pursuant to paragraph 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under that Act and the policies established by the WCB's Board of Directors. The Act sets out the definition of an accident in s 1(1) as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured….

The Act defines an occupational disease as including a disease arising out of and in the course of employment and that results from causes and conditions that trigger post-traumatic stress disorder but does not include an ordinary disease of life or stress, other than an acute reaction to a traumatic event. The Act also sets out a presumption in respect of a diagnosis of PTSD in s 4(5.8), where a worker is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for PTSD and is diagnosed with PTSD by a physician or psychologist. In such a circumstance, the PTSD must be presumed to be an occupational disease, the dominant cause of which is the employment unless the contrary is proven.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work.

The WCB has established Policy 44.05.30 Adjudication of Psychological Injuries (the “Psychological Injury Policy”) to outline how claims for psychological injury will be adjudicated. This policy sets out that such claims will be adjudicated in the same way as claims for physical injuries. The WCB will determine whether: there has been an accident arising out of and in the course of employment; the worker has suffered an injury; and the injury was caused by the accident. The Psychological Injury Policy specifically excludes from coverage psychological injuries that occur because of burn-out or the daily pressures or stressors of work as the daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event. Further, matters of discipline, promotion, demotion, transfer, or other employment related matters are also specifically excluded from the definition of accident.

The WCB has also established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Subsequent Injury Policy”) to address how a separate injury that is not a recurrence of the original compensable injury will be dealt with where there may be a causal relationship between the further injury and the original compensable injury. This policy sets out 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. A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The administrative guidelines to the Subsequent Injury Policy clarify that the WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and original injury.

Worker’s Position

The worker was represented in the hearing by a worker advisor, who made oral submissions on behalf of the worker. The worker provided testimony to the panel in response to questions posed by the worker advisor and by panel members.

The worker outlined to the panel the nature and kind of duties he undertook in his employment prior to the accident of September 16, 2003 and also described the accommodative duties assigned to him when he returned to the workplace thereafter. He described the circumstances in which he was injured on September 16, 2003 as well as his subsequent treatment and continuing symptoms. He noted that his post-surgical symptoms were worse than before the surgery and that his functional abilities remain limited today as a result of his back injury.

The worker described to the panel his exposure to a traumatic workplace incident in which an individual was fatally stabbed in 2012, noting that he responded to a call for help and on arrival, found the victim and then escorted the perpetrator away from the scene. He also described to the panel a number of other violent or potentially violent workplace incidents he was witness to or participated in through his job.

In response to questioning by panel members, the worker further described the nature of the accommodated duties he undertook after 2003 noting that even in these accommodated roles he was still exposed to workplace violence and potentially violent situations.

The worker, on questioning by the worker advisor, noted that his symptoms first appeared approximately one year prior to the psychological diagnosis, initially as irritability and avoidance, as well as gastro-intestinal symptoms that upon investigation, did not have any physical cause. He described symptoms that included avoiding people, not going out alone, easily becoming violent, poor sleep, worry about hurting others or being hurt, shakiness and unclear thinking, panic attacks and nightmares.

Accident of September 16, 2003

The worker’s position, as outlined by the worker advisor, is that the worker sustained a psychological injury as a further injury directly related to and arising from the compensable workplace accident of September 16, 2003. The back injury resulting from that workplace accident left the worker with permanently reduced range of motion and chronic nerve pain, resulting in significant adjustment issues and anxiety. But for that back injury and its continuing impacts, the worker would not have responded as he did to subsequent traumatic events in the workplace. In other words, the worker’s position is that the predominant cause of the psychological injury is related to the continuing effects of the compensable injury, and as such, the psychological injury is also compensable as a further injury.

The worker advisor noted the WCB’s view that the worker’s psychological diagnosis arose when the WCB suggested in 2017 that the worker return to regular duties but pointed out that the worker’s stress related to this possibility was due to his belief that he was not capable of a return to full duties, as he continued to experience sleep difficulties due to the chronic pain caused by the unresolved back injury.

The worker advisor provided, in a written submission to the Review Office dated October 11, 2019 that:

“It is our position that the worker would have continued to enjoy all the aspects of his job including the challenge of physical...altercations “but for” the compensable back injury that left him questioning his ability to do his job in emergency situations. The fourteen year daily struggle with the pain and restricted range of motion took a toll on the worker’s mental health and led to the vulnerability and fearfulness of re-injury in the environment where the worker would be exposed to multiple more traumatic and physically violent situations.

...[T]he feelings of vulnerability and fearfulness are a direct result of the back injury. “But for” the back injury, the worker would not be experiencing the vulnerability that has led to the psychological injury.

...The back injury and the effects of that back injury are the predominate cause of the psychological injury.”

Accident of September 1, 2017

The worker advisor outlined that the worker was witness to a traumatic event in the workplace in 2012 that would meet the traumatic event exposure thresholds for a diagnosis of PTSD and that ultimately resulted in a delayed onset of psychological symptoms that began to manifest in 2016 and resulted in a diagnosis of Major Depressive Disorder in 2017 and PTSD in 2018.

The worker advisor noted that the WCB psychological advisor examined the worker prior to this incident and recorded that the worker “...appears to be a decidedly cheerful individual, who, by his report, copes well psychologically....Based on his report and presentation, there is no psychological condition that is playing a role in the claimant’s current physical functioning.” The worker advisor suggested this call-in examination report establishes a baseline in terms of the worker’s psychological condition prior to the 2012 workplace event.

The worker advisor noted the worker has described exposure to many traumatic events in the course of his employment. Although these did not initially bother him early in his career, and in fact he liked that aspect of his job, after the 2012 workplace incident, the worker’s psychological status changed along with his ability to cope, related to the permanent restrictions and chronic pain arising from his back injury.

The worker advisor argued that the statutory presumption set out in s 4(5.8) of the Act applies here in that the evidence confirms the worker was exposed to a traumatic event of a type specified in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”) as a trigger for PTSD, specifically the 2012 workplace incident. Further, the worker was diagnosed with PTSD by a psychiatrist in January 2018. Therefore, it must be presumed that the dominant cause of the worker’s PTSD diagnosis is his employment and that it is an occupational disease, unless the contrary is proven. The worker advisor submitted there is no evidence to the contrary.

Further, the worker advisor argued that the worker’s further diagnosis of trauma and stressor disorder with delayed onset arose out of his exposure to traumatic events in the workplace, whether arising out of the specific incident in 2012 or the cumulative effect of a series of traumatic exposures over the course of his career. As such, the worker’s psychological injury is the result of his occupational exposure to acute trauma and should be compensable.

Employer’s Position

The employer was represented in the hearing by two staff members who indicated they were participating in the hearing to provide any information that may be required by panel members. The employer did not take any position in respect of the issues on appeal.

The senior staff member noted that she was the worker’s supervisor at the time he left work in 2017. She confirmed to the panel that the worker had never returned to full, unrestricted duties since his injury in 2003. The senior staff members stated she had no comments to offer on the worker’s medical condition but noted that the employer had accommodated the worker’s injury and abilities in compliance with the recommendations of the WCB and the worker’s physician.

In response to questions from panel members, the senior staff member confirmed it would be fair to say that over the course of a long career with the employer, an individual will be subjected to violent incidents, as violence in this workplace is not uncommon. She stated that the violence can be traumatic for those working in that environment.

Analysis

This appeal deals with two different accident claims filed by the appellant worker in 2003 and 2017. In determining the issues before us, the panel considered the evidence and submissions of the worker and the employer, as well as the contents of each of the WCB claim files.

Accident of September 16, 2003

The issue for determination on this claim is whether or not responsibility should be accepted for the worker’s psychological condition as being a consequence of the September 16, 2003 accident. In order to find that the WCB should accept responsibility for the worker’s psychological condition, the panel would have to determine that the compensable back injury is the predominant cause of the worker’s psychological injury. The panel was able to make such a finding for the reasons that follow.

The panel reviewed the medical reporting with respect to the worker’s psychological condition, with particular attention to the reports from the treating psychiatrist and the WCB psychological consultant.

The panel considered the reports from the worker’s treating psychiatrist dated July 24, 2018, January 22, 2018 and May 25, 2017, which were also referenced in the opinions provided by the WCB psychological consultant. The psychiatrist first saw the worker on May 18, 2017 for a consult and at that time diagnosed Major Depressive Disorder versus Adjustment Disorder with depressed mood. Medications were prescribed and the worker was to return in 4 weeks for follow-up. The January 22, 2018 report outlines that the worker did not follow-up as expected, but continued to see his family physician, and then returned for follow-up late in 2017. At that time the worker reported not doing very well with symptoms including anxiety and fearfulness, irritability and feeling unsafe at work, flashbacks about past incidents at work, hypervigilant nightmares and more. The psychiatrist then diagnosed Major Depressive Disorder with stress and PTSD, and prescribed medications. The worker saw the psychiatrist again in January 2018 at which time some improvement was noted but symptoms continued. The psychiatrist recommended the worker remain off work during that phase of treatment but suggested he would soon be able to return to work as his symptoms resolved. In a report dated July 24, 2018, the treating psychiatrist commented on the worker’s continuing symptomatic presentation, noting that “...his depressive symptoms seem to have elevated but his post-traumatic symptoms remain unchanged.” The psychiatrist also commented that he reviewed the WCB psychological consultant’s report arising out of the May 2, 2018 call-in examination. The psychiatrist did not offer any contrary opinion, though noting further symptoms related to the worker’s sleep, irritability, sensitivity, fearfulness about work and flashbacks to situations he was previously involved in.

A WCB psychological consultant reviewed the worker’s 2017 claim file on March 22, 2018 and noted the worker had first been diagnosed with “Major Depressive Disorder vs an Adjustment Disorder with depressed mood”. At that time, no symptoms of PTSD were reported although it was noted the worker thought he might have PTSD based upon his symptoms. Then, in late 2017 the worker’s psychiatrist diagnosed the worker with Major Depressive Disorder and PTSD. The WCB psychological consultant noted the need for verification that the worker had exposure to the kind of threshold traumatic events required to establish a diagnosis of PTSD, noting that the 2012 workplace event “could be a threshold event that could lead to PTSD, particularly in the context of the claimant’s sense of vulnerability in the workplace.”

The worker was subsequently examined in person by the WCB psychological consultant on May 2, 2018. The findings from that examination are set out in a report of the same date prepared for the 2017 claim file. The WCB psychological consultant assessed the worker and reviewed the reports and chart notes of the treating psychiatrist and physician. The psychologist recorded that although the worker had “multiple exposures to difficult, challenging, and stressful events...he was very clear in his statement that...these were not traumatic for him at the time, but alternatively he stated that he ‘liked that part of the job’, and had felt historically ‘invincible’ and now, subsequent to his back injury, was fearful of many workplace circumstances, was fearful of being hurt, and was fearful that he could not intervene appropriately in escalated situations....” The psychologist reviewed the worker’s reported symptoms in some detail and concluded that the worker had a “complicated psychological condition” noting his workplace exposures to threats, stabbings, murders and suicides that were not traumatic to him, but that these circumstances “...became very much more difficult for him subsequently after his back injury when he returned to work, and he was concerned and fearful...” about a possible return to his pre-accident duties. The psychologist stated, “I did not find that he had a specific PTSD as, while the events he had dealt with were threshold events that could lead to PTSD, they were not experienced as same....”

Rather, the WCB psychological consultant concluded that the worker “...has a Stressor and Trauma-Related Disorder with anxiety and post-traumatic symptoms with delay onset, this is related to his back injury, feelings of vulnerability and fearfulness, this fearfulness and anxiety had increased over the course of time, with specific workplace events that have accumulated and led to a situation where he did not feel that he would be safe anymore, that he was vulnerable, that he startled easily, was fearful, was vigilant...” and would not be able to return to his pre-accident duties.

On July 26, 2018, after the WCB received additional information from the worker and the employer, as well as from the worker’s treating psychiatrist, the WCB psychological consultant again reviewed the worker’s files and confirmed the previously provided diagnosis of Stressor and Trauma-Related Disorder with anxiety and post-traumatic symptoms with delayed onset.

On reviewing all of the evidence before the panel, we are persuaded by the conclusion of the WCB psychological consultant that the worker’s diagnosis of Stressor and Trauma-Related Disorder with anxiety and post-traumatic symptoms with delayed onset is related to his back injury. The evidence here does not support the diagnosis of PTSD provided by the worker’s psychiatrist, as explained by the WCB psychological consultant, in that although the worker was exposed to threshold-type traumatic events in the course of his work, he did not subjectively experience those events as traumatic.

The evidence points to the worker’s development of significant psychological symptoms with his return to work due to the lingering effects of the unresolved back injury which continued to severely limit his abilities and function in the workplace environment in which exposure to violence and potentially dangerous situations is common, as confirmed by employer’s representative in her testimony to the panel. The worker’s back injury and continuing symptoms caused him to feel vulnerable resulting in the manifestation of symptoms of anxiety, stress and trauma. As his physical abilities became compromised, the worker was left more vulnerable and prone, triggering a psychological response and creating anxiety about the future.

The panel prefers and accepts the opinion of the WCB psychological consultant that the worker’s psychological injury is secondary to his back injury and is predominantly attributable to the back injury, though also impacted by his work environment in which physical altercations are likely as well as his past experiences in potentially traumatic situations.

The panel therefore concludes, on a balance of probabilities, that responsibility should be accepted for the worker’s psychological condition as being a consequence of the September 16, 2003 accident. The worker’s appeal on this question is allowed.

Accident of September 1, 2017

The issue for determination on this claim is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine that the worker was injured because of an accident that occurred arising out of and in the course of his employment. The panel was not able to make such a finding for the reasons that follow.

The worker’s claim is based upon the allegation that as a result of his exposure to traumatic incidents in the workplace, including in particular, an incident in 2012 in which he arrived on the scene after an individual fatally stabbed another individual, and then had further direct contact with the perpetrator immediately thereafter. He also reported to the WCB that his psychological health was impacted by other incidents in the workplace, including stabbings, death threats, suicides and other violence. In his testimony to the panel, the worker described, in general terms, other such incidents that took place in the workplace.

The evidence before the panel confirms that the incident in 2012 took place as described and that the worker was present on the scene after the stabbing occurred and had contact with the perpetrator immediately afterwards. But the panel noted that the worker himself did not experience this incident as traumatic at the time it occurred as confirmed in the report of the call-in psychological examination of May 2, 2018 and further that the worker reportedly found this aspect of his work to be positive.

On the basis of the evidence before the panel, and given the conclusion reached by the panel that the worker’s psychological condition is a consequence of the September 16, 2003 accident, the panel finds that the evidence does not support the worker’s position that his psychological condition is the result of occupational exposure to an acute traumatic event in the workplace.

The worker advisor also argued that the statutory presumption regarding a diagnosis of PTSD should be applied in this circumstance, where the evidence confirms the worker was exposed to a traumatic event of a type specified as a trigger for PTSD, specifically the 2012 workplace incident. Further, the worker was diagnosed with PTSD by a psychiatrist in January 2018. Therefore, it must be presumed that the dominant cause of the worker’s PTSD diagnosis is his employment and that it is an occupational disease, unless the contrary is proven.

In considering whether the statutory presumption applies here, the panel considered the medical reporting and opinions on file, noting that the treating psychiatrist in January 2018 provided a diagnosis of PTSD and Major Depressive Disorder, but that the WCB psychological consultant who reviewed the file on multiple occasions and assessed the worker in person on May 2, 2018 came to a different conclusion, namely, that the worker’s diagnosis is of Stressor and Trauma-Related Disorder with anxiety and post-traumatic symptoms with delayed onset. Further, the WCB psychological consultant concluded that the predominant cause of the worker’s psychological diagnosis is not the worker’s employment, but the compensable back injury sustained in the accident of September 16, 2003.

As outlined above, the panel accepts the conclusion of the WCB psychological consultant with respect to the worker’s back injury being the predominant cause of his psychological injury, although also impacted by his feelings of vulnerability and fearfulness of risk of re-injury and of being unable to protect himself or others in the kind of escalated situations that occur in his workplace.

For these reasons, the panel finds, on a balance of probabilities, that the presumption regarding predominant cause of PTSD as set out in s 4 (5.8) of the Act is not applicable.

The panel concludes, on a balance of probabilities, that the evidence does not support that the worker was injured as a result of an accident as defined by the Act, but that his psychological injury relates directly to the compensable back injury sustained on September 16, 2003. This claim is therefore not acceptable and the worker’s appeal on this issued is denied.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of January, 2021