The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. Their current psychological difficulties are not accepted as a recurrence; and 

2. They are not entitled to wage loss benefits commencing March 24, 2020.

A videoconference hearing was held on March 10, 2021 to consider the worker's appeal.

Issue

1. Whether or not the worker’s current psychological difficulties should be accepted as a recurrence; and 

2. Whether or not the worker is entitled to wage loss benefits commencing March 24, 2020.

Decision

1. The worker’s current psychological difficulties should be accepted as a recurrence; and 

2. The worker is entitled to wage loss benefits commencing March 24, 2020.

Background

The worker has an accepted claim for post-traumatic stress disorder (PTSD) as a result of an incident at work that occurred on August 3, 2016. The WCB facilitated a referral to a psychologist for the worker and after seeing the worker on September 7, 2016, the treating psychologist provided a formal diagnosis of PTSD. The psychologist recommended the worker remain off work pending treatment for their severe symptoms.

The worker continued to receive treatment from the psychologist and from their family physician on a regular basis. On December 2, 2016, the worker’s treating psychologist recommended the worker begin a graduated return to work plan and also recommended that the worker not return to the worksite where the August 3, 2016 incident occurred. On January 10, 2017, the employer advised the WCB they could accommodate the worker’s restrictions and were looking for a suitable position for the worker. On July 24, 2017, the worker began a leave unrelated to the workplace injury and did not seek further treatment from the psychologist until January 23, 2018 when they reported an increase in symptoms due to witnessing another traumatic event.

On May 17, 2018, the worker attended for a call-in examination with a WCB psychological consultant. After assessing the worker, the consultant provided an opinion that the worker was “…experiencing significant depressive symptoms” and was “…experiencing mild, occasional, but still present symptoms related to the workplace…”. The consultant noted as well that prior to the worker’s leave, they had improved significantly and had been capable of a graduated return to work in an accommodated position. The WCB psychological consultant recommended the worker continue with their ongoing psychological treatment for the remaining two months left of their leave and that a graduated return to work in an accommodated position be considered at that time. In a memorandum to file dated June 5, 2018, the WCB psychological consultant noted the recommended restrictions should be temporary but for a one year period. On August 22, 2018, the worker returned to work in an accommodated position at four hours per day, three days per week.

The WCB psychological consultant again reviewed the worker’s file on October 18, 2018 and opined the worker’s restriction of not working at the location where the workplace accident occurred was related to the earlier diagnosis of Major Depressive Disorder, as the PTSD had resolved. The consultant recommended the worker return to their full regular work hours, in an accommodated position, as soon as possible. Due to a shortage of work, the worker was placed in a different accommodated position in November 2018.

At the WCB’s request, an independent psychologist assessed the worker on March 18, 2019. The psychologist provided an opinion that the worker continued to suffer from PTSD, despite the “…significant treatment from her psychologist…” and continued to struggle daily with symptoms. Further, the psychologist suggested that the prognosis for significant improvement for the worker’s condition was guarded. The independent psychologist recommended the worker continue with their treatment with the psychologist and that the employer and WCB continue to support the worker in an accommodated position within their restrictions.

The worker’s graduated return to work plan was interrupted after the worker sustained a physical injury unrelated to the workplace but continued once they recovered from that injury.

A WCB psychological consultant reviewed the worker’s file on July 18, 2019. Based on the review, the employer was advised on July 19, 2019, the worker’s restriction of not returning to the pre-accident workplace was now permanent.

On October 18, 2019, a progress report was received from the worker’s treating psychologist. The psychologist outlined that based on the worker’s presentation and their results from screening tests, the worker no longer met Diagnostic and Statistical Manual (“DSM-V”) criteria for PTSD, although they continued to experience residual symptoms and continuing treatment for PTSD symptoms was recommended. The treating psychologist also noted the worker met the criteria for a diagnosis of Major Depressive Disorder, in partial remission.

On December 17, 2019, the WCB provided the employer with an additional permanent restriction that the worker should not have in-person contact with the clients of the accident workplace. The worker began working full time regular hours in January 2020.

The worker contacted the WCB on March 24, 2020 indicating an increase of symptoms of anxiety and panic episodes due to the uncertainties related to Covid-19. The worker noted some co-workers were being allowed to work from home; however, that option was not available to them. The worker further advised they had been off work due to a motor vehicle accident, and then returned to work for approximately two weeks before going off work again, using sick time.

On March 24, 2020, the worker’s treating psychologist provided a further progress report noting the Covid-19 pandemic had exacerbated the worker’s PTSD symptoms and they once again met the criteria for a diagnosis of PTSD related to the workplace event. The psychologist further noted worsening of the worker’s symptoms of Major Depressive Disorder and that they met the criteria for a diagnosis for “Major Depressive Disorder, recurrent episode, moderate severity, with psychotic features.” The psychologist recommended that the worker remain off work and be re-evaluated after four weeks’ time.

On May 7, 2020, a WCB psychological consultant again reviewed the worker’s file and noted the worker’s treating psychologist’s October 18, 2019 report that the worker had recovered from the diagnosed PTSD and “The few reported mild trauma-like symptoms were infrequent and not debilitating.” Further, the consultant noted the April 27, 2020 report of the psychologist reported the worker was engaging in many activities at home, in an effort to avoid distressing thoughts, and found “This reported level of activity is inconsistent with the reported presence of severe and debilitating mental health symptoms.” As such, the WCB psychological consultant could not medically account for the worker’s development of psychological difficulties related to the August 3, 2016 workplace accident and the Covid-19 global pandemic.

On May 8, 2020, the WCB advised the worker it had determined they had recovered from the diagnosis of PTSD and as no connection could be made between that diagnosis and the worker’s current difficulties, they were not entitled to wage loss benefits commencing March 24, 2020.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on June 15, 2020. The representative requested Review Office consider the opinion of the worker’s treating psychologist explanation of the worker’s increase in symptoms in relation to Covid-19. Further, the representative provided the worker was entitled to further benefits as their increased symptoms rendered them unable to work and required further medical aid benefits. On July 31, 2020, the employer provided a submission in response to the worker’s representative’s request and in support of the WCB’s decision, to which the representative provided a further response on August 17, 2020.

Review Office found the worker’s current psychological difficulties should not be accepted as a recurrence and the worker was not entitled to wage loss benefits as of March 24, 2020. Review Office relied and placed weight on the opinion of the WCB psychological consultant that the worker had recovered from their diagnosis of PTSD and a recurrence of their PTSD symptoms was not medically accounted for. Accordingly, the worker was also not entitled to wage loss benefits commencing March 24, 2020 when they chose to remain off work.

The worker’s representative filed an appeal with the Appeal Commission on August 20, 2020. A videoconference hearing was arranged for March 10, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

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. 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 benefits will be determined when recurring disability occurs. The Policy defines 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 with a union representative as an advocate. The advocate made an oral submission on behalf of the worker and relied as well on a written submission provided in advance of the hearing date. The worker provided testimony in response to questions posed by the advocate and by members of the appeal panel.

The worker’s position, as outlined by the advocate, is that in March 2020, the worker experienced a resurgence of symptoms of PTSD, triggered by the images and news related to the Covid-19 pandemic. This resulted in a recurrence of the worker’s disability arising out of the diagnosis of PTSD that is directly related to the worker’s compensable traumatic psychological injury. As a result, the worker has experienced a further loss of earning capacity and is therefore entitled to wage loss benefits commencing March 24, 2020.

The advocate noted the worker’s position is supported by the March 24, 2020 report from the worker’s treating psychologist which sets out that the worker had “...a significant increase in symptoms of anxiety, hypervigilance, and low mood” since the pandemic was declared and that the worker “appears to meet criteria for” PTSD related to the workplace event.

The worker’s advocate submitted that the worker experienced a recurrence of disability as a result, but that this was not a recurrence of the diagnosis of PTSD, as this is an ongoing psychological condition that the worker has not recovered from to date. The advocate pointed to the provisions of the DSM-V which speak to the kinds of triggers that may result in recurrence of PTSD symptoms:

“The symptoms of PTSD and the relative predominance of different symptoms may vary over time. Duration of the symptoms also varies....Symptom recurrence and intensification may occur in response to reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events.”

Further, the worker’s advocate stated that there is no evidence to support the Review Office conclusion that the worker’s symptomatic reaction to the circumstances of the pandemic rather arose out of and was due to the worker’s pre-existing personality traits that pre-dispose the worker to developing PTSD and major depressive disorder, and that similarly predispose the worker “to experiencing a disabling psychological reaction (denoted by the treating psychologist as PTSD) in reaction to hearing of a global health pandemic.” This position is supported by the February 12, 2021 report from the worker’s treating psychologist who stated that “Based on the reports on file, [the worker’s] symptoms of PTSD, MDD, and insomnia developed not due to a predisposition or personality traits, but due to exposure to a terrible, traumatic event that occurred while [they were] working...in 2016.”

In answer to questions by members of the appeal panel, the worker testified that they continued to experience symptoms related to PTSD even after the return to work in 2018, and when those symptoms increased, they would use sick days as needed rather than contacting WCB for benefits. Further, the worker testified that they continued to see the treating psychologist after WCB discontinued benefits, noting that the psychologist has continued to provide ongoing treatment without payment since approximately June 2020, at first weekly and then biweekly. Due to the pandemic this treatment has been provided remotely since March 2020 so that there was no ongoing opportunity to engage in therapeutic treatment such as EMDR which was previously helpful to address the worker’s PTSD symptoms and which continued until March 2020, when in person appointments were no longer available. The worker explained to the panel that when their symptoms exacerbated from time to time, the psychologist would “pause” ongoing treatment to work more on cognitive behavioural therapy so as to allow the worker space to experience symptoms and feelings in a safe environment. Then, when symptoms were better controlled, the prior therapeutic treatment would resume.

The worker noted to the panel that even in accommodated work positions they continued to be exposed on occasion to some of the individuals from the accident workplace and their paper files. The worker confirmed that since first appearing, their psychological symptoms persisted and that they have never since been fully without PTSD symptoms. The worker described that their life has been permanently altered by the injury and that the incident is replayed every day. As a result of the injury, the worker cannot return to their chosen career and continues to experience a resultant reduction of income.

In sum, the worker’s position is that in March 2020 they experienced an increase in symptoms related to the compensable psychological diagnosis of PTSD resulting in a recurrence of disability such that as of March 24, 2020 they experienced a loss of earning capacity related to that condition. Therefore the WCB should accept the worker’s current psychological difficulties as a recurrence and the worker is entitled to wage loss benefits commencing March 24, 2020.

Employer’s Position

The employer was represented in the hearing by its WCB coordinator who made an oral submission on behalf of the employer.

The employer’s position is that a causal relationship cannot be established between the worker’s current psychological condition and the compensable traumatic psychological injury. The employer’s representative noted that the employer supports the conclusions set out in the decision of the Review Office of August 20, 2020.

The employer’s representative stated that the March 2020 declaration of the Covid-19 pandemic cannot be equated to the previous triggering incident and noted that seeing images of death and illness on the news is not unusual. Therefore, the employer’s position is that the worker’s exposure to Covid-19 related images could not be a trigger for recurrence of the worker’s PTSD symptoms.

The employer’s representative relied upon the conclusion of the WCB psychological advisor in their May 2020 report that a relationship between the worker’s current psychological condition and the compensable traumatic psychological injury “...cannot be substantiated with a reasonable medical/psychological accounting”.

The employer’s representative noted as well that the worker returned to work in an accommodated position in November 2018, and that the worker’s position had not changed as of March 2020 when the worker’s treating professionals stated the worker was disabled from all work. The worker’s return to work restrictions were all met within the accommodated position.

In sum, the employer’s position is that the evidence does not support a finding that the worker’s current psychological condition is related to the compensable traumatic psychological injury and therefore the worker’s condition is not a recurrence, and the worker is not entitled to benefits commencing March 24, 2020.

Analysis

There are two issues on appeal for the panel to determine. In order to find that the worker’s current psychological difficulties should be accepted as a recurrence, the panel would have to determine that there is evidence of a clinically demonstrated increase in temporary or permanent impairment due to the worker’s current psychological condition which results in a current loss of earning capacity, or that the worker has had a relapse of an injury which has been directly related to a previous compensable condition and which results in a current loss of earning capacity. In order to find that the worker is entitled to wage loss benefits commencing March 24, 2020, the panel would have to determine that as of that date, the worker experienced a loss of earning capacity arising out of the compensable psychological injury. As outlined in the reasons that follow, the panel was able to make such determinations.

The WCB Recurrence Policy defines recurrence in relation to its impact on the disability or impairment of a worker and the resulting loss of earning capacity. Recurrence is defined 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.”

In the case before us, the Review Office relied upon the opinion of the WCB psychological consultant that the worker had recovered from their diagnosis of PTSD and a recurrence of their PTSD symptoms was not medically accounted for.

However, the panel finds that the evidence does not support the conclusion reached by the WCB psychological advisor that the worker had “recovered” from PTSD; rather, the evidence of the treating psychologist is that the worker’s PTSD was in partial remission, with less significant symptomatic presentation in late 2019. As explained by the treating psychologist in the detailed report to the worker’s advocate dated February 12, 2021:

“This writer’s March and April 2020 reports describe [the worker’s] presentation as visibly anxious, and symptoms are described in detail as containing themes of fear and safety with direct references to the traumatic accident. While [they] certainly presented with symptoms of depression as well (as indicated in these report[s]), these symptoms appeared to be secondary to the PTSD symptoms....

A review of this writer’s October 2019 report should provide a clear description of the symptoms of PTSD that had not fully resolved and provide evidence that [the worker] had not recovered from [their] compensable injury despite no longer meeting full diagnostic criteria…Further, in the October 18, 2019 report, this writer recommended trauma-specific psychological treatment (EMDR therapy, exposure to reminders of the workplace incident) in order to continue treating the symptoms of PTSD. WCB continued to support trauma-specific psychological treatment from October 18, 2019 until March 2020, indicating support for the persistence of these symptoms and for the need for treatment.”

Further, the panel does not accept the conclusion of the WCB psychological consultant that the recurrence of the worker’s PTSD symptoms was not medically accounted for. The DSM-V provisions outlining the diagnostic criteria for PTSD specifically identifies that symptom recurrence and intensification may occur in response to “reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events.” The worker described to the panel that the media images of people ill and laying on stretchers, and of those who died due to Covid-19 triggered a resurgence of a number of their PTSD symptoms. The worker’s treating psychologist confirmed that the exacerbation of symptoms was triggered by the worker’s exposure to Covid-19 related news coverage and images. In the February 12, 2021 report, the psychologist stated:

“In March 2020 [the worker] experienced another exposure to death (images of sick or dead individuals in hospital beds or stretchers, images of dead bodies, discussion of dead bodies and death that occurred at the beginning of the COVID-19 pandemic). This writer...offered a primary diagnosis of PTSD and a secondary diagnosis of MDD....[the worker’s] symptoms did not appear to be a general stress response (e.g., feeling of increased stress due to the onset of a pandemic or the related restrictions), but seemed to be a specific reaction to exposure to death (a reminder of the workplace incident). Further, the presence of MDD symptoms appeared directly related to the exacerbation of PTSD symptoms...”

The panel also noted that the WCB accepted a previous recurrence of disability arising out of a further traumatic exposure in 2017 which, though unrelated to the original traumatic event, triggered an increase in the worker’s PTSD symptoms related to the compensable injury.

The panel also took note that the WCB put in place the worker’s permanent restrictions to seek to prevent the worker from having a recurrence related to direct exposure to the stimuli and circumstances in which the trauma first occurred. Not only do the permanent restrictions indicate non-recovery from the diagnosed psychological condition of PTSD, but the fact that these restrictions remain in place further supports that the WCB believes a recurrence of the worker’s disability is possible if exposed to other traumatic circumstances.

The panel considered the evidence of the worker and the treating psychologist that the worker continued with treatment for PTSD beyond the period when the WCB psychological advisor determined the worker was recovered and that for a period of time well beyond October 2019, this medical aid to address the worker’s PTSD was supported by the WCB. This ongoing treatment further supports the worker’s position that their PTSD symptoms were ongoing and related to the compensable diagnosis of PTSD.

With respect to the Review Office conclusion that the March 18, 2018 report from the independent psychologist provides a basis for a determination that the worker’s pre-existing psychological profile predisposed the worker to a disabling reaction to the news of pandemic, the panel noted that there is no evidence in the file of any pre-existing psychological symptomology or diagnosis. Rather, the panel finds that the report of the independent psychologist suggests that the worker’s symptoms are related to the worker’s experience of the traumatic workplace event and that the exacerbation of symptoms in late 2017 was related to the worker’s further traumatic exposure to death.

Based upon the worker’s evidence and the evidence provided in the reports from the treating psychologist as to the psychological symptoms that arose in March 2020, the panel is satisfied on a balance of probabilities that the worker’s PTSD symptoms increased as a result of the imagery and news stories around the declaration of the Covid-19 pandemic in March 2020, with the effect that by March 24, 2020 the worker was again disabled from all work relating directly to the compensable psychological injury.

In the result, the panel determines that the worker’s current psychological difficulties should be accepted as a recurrence and the worker is entitled to wage loss benefits commencing March 24, 2020.

The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of April, 2021