The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") that she is not entitled to a permanent partial impairment award for a condition of post-traumatic stress disorder under The Victims' Bill of Rights (the "VBR"). A hearing was held on January 9, 2019, then reconvened by videoconference on March 15, 2021 and April 1, 2021, to consider the claimant's appeal.

Issue

Whether or not the claimant is entitled to a permanent partial impairment award for a condition of post-traumatic stress disorder.

Decision

That the claimant is not entitled to a permanent partial impairment award for a condition of post-traumatic stress disorder.

Background

On March 16, 2016, the claimant filed an application for compensation under the Program in respect of incidents that took place between April 2011 and June 2013. The claimant reported that during that period of time, she was physically assaulted five times by an acquaintance, and now suffered from post-traumatic stress disorder ("PTSD"). The claimant stated that as a result of the incidents, she required counselling regularly and was permanently impaired psychologically with PTSD and finding it very difficult to cope on a daily basis.

On July 4, 2016, the Program advised the claimant that her application for compensation had been approved, but due to the passage of time since the incidents occurred, the only benefit that had been approved was funding for counselling therapy.

The claimant subsequently requested the Program assess her for a PTSD impairment rating resulting from the trauma she sustained due to domestic abuse from 2011 to 2013. On January 31, 2017, the Program advised the claimant that her file, including reports from her treating psychiatrist and treating psychologist, had been reviewed by the Program's medical consultant with respect to an impairment award for post-traumatic stress disorder. The Program noted the medical information from her psychiatrist and psychologist did not provide "…a full outline of symptomatologies…" to satisfy the requirements for a PTSD diagnosis and they were unable to proceed with a psychological impairment assessment at that time.

On February 1, 2018, the Program advised the claimant that their medical consultant had reviewed her file, including further reports and records from her treating healthcare providers. It was noted that the consultant had opined that the full diagnostic criteria for PTSD had not been met in relation to the incidents which occurred between 2011 and 2013, nor had an alternative psychiatric diagnosis been provided, and that a rateable impairment had not been determined. The Program advised that as a result, they were unable to issue an impairment award.

Further medical reports were received from the treating psychiatrist and psychologist and were reviewed by the Program's medical consultant. On June 6, 2018, the Acting Manager of the Program again advised the claimant that her file had been reviewed by the Program's medical consultants, and that the medical information was "…not strong enough to support a diagnosis of PTSD." The claimant was therefore advised that she was not eligible for a permanent impairment award for a psychological injury.

On July 6, 2018, the Acting Director of the Program advised the claimant that the medical information in relation to her request for a psychological impairment rating had been reviewed by the Program's medical consultant, and it had been determined that the evidence was not strong enough to support a diagnosis of PTSD and there was therefore no rateable impairment.

On July 10, 2018, the claimant appealed the July 6, 2018 decision to the Appeal Commission. An oral hearing was arranged, which commenced on January 9, 2019, then reconvened and continued by videoconference on March 15, 2021 and April 1, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the VBR and regulations made under the VBR.

Compensation for victims of crime is provided for under Part 5 of the VBR.

Subsection 46(1) in Part 5 of the VBR addresses the meaning of the word "victim" and reads, in part, as follows:

46(1) For the purpose of this Part, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba that 

(a) is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) specified in the regulations;…

Section 47 of the VBR outlines the types of compensation which are payable to injured victims and states, in part, as follows:

Compensation to injured victims 

47 A victim who is injured as a result of an incident described in subsection 46(1) is entitled, in accordance with the regulations, to the following: 

… 

(b) compensation for related counselling services; 

(c) if the victim is disabled by the injury, compensation for loss of wages; 

(d) if the victim is permanently impaired by the injury, compensation for the impairment.

General provisions regarding compensation are set out in Part 3 of the Victims' Rights Regulation (the "Regulation"). Section 9 in Part 3 of the Regulation addresses compensation for permanent impairment and provides, in part, as follows:

Compensation for permanent impairment 

9(1) A victim who is permanently impaired by his or her injury is entitled to compensation for the impairment as determined by the director in accordance with this section. 

Determining the degree of impairment 

9(2) The director shall determine the degree of a victim's permanent impairment expressed as a percentage of total impairment. 

Director may apply guidelines 

9(3) In determining the degree of a permanent impairment, the director may apply any guidelines used to determine impairment under section 38 of The Workers Compensation Act.

WCB Policy 44.90.10, Permanent Impairment Rating (the "Policy"), states that impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy and that whenever possible, and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule attached as Schedule A.

The Policy further provides that the existence of a pre-existing condition will not negate an entitlement to an impairment benefit arising from an accepted injury. If there is a pre-existing condition, eligibility for an impairment rating is based on the difference between the total rating and the rating assigned to the pre-existing condition.

The methodology for determining the rating for mental health impairments is set out at pages 44 to 57 of Schedule A to the Policy, which states in part that the impairment rating of psychological function following a mental health diagnosis that has been accepted will be determined by a WCB Healthcare Advisor through clinical examination or assessment of the medical information on file.

Claimant's Position

The claimant was represented by legal counsel, who submitted extensive additional information in support of the appeal, including medical notes, records and reports, and police incident reports. Legal counsel made a submission at the hearing, and the claimant responded to questions from her counsel and from the panel. A witness was also called to testify as to an incident she had observed involving the claimant and the alleged offender.

The claimant's position was that she has a permanent PTSD injury, which is causally or materially related to the criminal incidents which occurred in 2011 to 2013, and is entitled to a permanent partial impairment award for her PTSD condition.

Legal counsel submitted that there is material before the panel which is absolutely consistent with PTSD arising from domestic abuse. Counsel submitted that the claimant's symptomatology, and her recounting of what were very traumatizing events, was consistent with the materials and medical and treatment reports on file.

Legal counsel referred to the decision of the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458, as indicating that the test is one of a material contribution. Counsel relied on that case as indicating that as long as there is a material contribution to damage, then there is full liability, and submitted that by analogy there is full entitlement to compensation.

Legal counsel submitted that there were the two qualified psychiatrists who had personally examined the claimant and diagnosed her with PTSD. Counsel noted that the claimant's treating psychiatrist had a substantial long-term therapeutic relationship with the claimant and was very clear that she was suffering from PTSD as a result of the incidents. The second psychiatrist was also very clear that she agreed with the treating psychiatrist and would not have come to any other conclusion.

Counsel also noted the treating psychiatrist had opined that the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) which the Program's consultant had applied, had reliability but very little validity in the scientific world of psychiatry, and was problematic. The psychiatrist indicated that the approach he preferred and applied, which followed the teachings of a well-recognized world authority with respect to victims of violence, was a more valid approach, and he recommended that whoever the Program had consulted be ignored.

Further, or in any event, counsel reviewed the information on file and comments from the treating healthcare providers in conjunction with each of the DSM-5 criteria and submitted that the criteria and requirements of the DSM-5 were in fact satisfied.

Legal counsel argued that little, if any, weight should be placed on the opinions of the Program's psychiatric consultant, who did not personally examine the claimant and was not available to be cross-examined. Counsel submitted that in choosing between experts, it is just commonsense and a matter of law, to put less weight on a reviewing psychiatrist.

It was further submitted that the psychiatric consultant seemed to be of the view, at least in his interpretation of the DSM-5 criteria, that if there is any pre-existing condition, the DSM criteria cannot be satisfied. Counsel submitted that if taken to its logical conclusion, this interpretation would mean that no victim of domestic violence could ever sustain PTSD as a result of a vicious assault if they had even an inkling of prior mental illness. Counsel submitted that this would be an absurd interpretation of the DSM-5.

Counsel further submitted that it appeared from the evidence that the Program's psychiatric consultant did not have the complete file. Counsel suggested that there are significant gaps in the consultant's report and analysis, and it is unclear whether he was even made aware of certain information. Counsel noted, for example, that the consultant said there was no alternative diagnosis, yet the file itself showed there was an alternative diagnosis or diagnoses. Counsel further noted, in particular, that the consultant was apparently unaware of evidence that the claimant experienced nightmares of a military man, with the face of the alleged offender, which were clearly related to the incidents and would satisfy various DSM-5 criteria.

Analysis

The issue before the panel is whether or not the claimant is entitled to a permanent partial impairment award for a condition of post-traumatic stress disorder. For the appeal to be successful, the panel must find, on a balance of probabilities, that the claimant suffered a PTSD injury as a result of the alleged criminal incidents which entitles her to a permanent partial impairment award. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the information and submissions which are before us, on file and as presented at the hearing, the panel is not satisfied that the claimant developed PTSD or suffered a PTSD injury as a result of the reported incidents in 2011 to 2013 or that she is entitled to a permanent partial impairment award for PTSD.

In arriving at that conclusion, the panel accepts that the claimant underwent a series of traumatic experiences between 2011 and 2013. The panel notes that these experiences were acknowledged by the treating psychologist in his March 27, 2018 report, where he noted that the "reported incidents appear to meet the criteria required by the DSM-V for a potential diagnosis of PTSD" and by the Program's consultant in his January 2, 2018 report, where he agreed, based on the medical reports and police narratives on file, that Criterion A of the DSM-5 had been met. The panel notes, however, that just because the claimant experienced traumatic events does not mean she developed PTSD as a result of these events.

The panel places weight on the reports of the treating psychologist. Information on file indicates that the claimant attended 10 sessions with her treating psychologist between July 16, 2016 and January 5, 2017 which were funded by the Program, to help her deal with the emotional trauma she was experiencing. The panel notes that in his report dated November 21, 2017, the psychologist indicated that issues with the justice system were paramount and so dominant that discussions of other aspects of the trauma were difficult, and suggested that an assessment be done to determine an accurate diagnosis as per the DSM-5 and the severity of her symptoms.

The panel places significant weight on the March 27, 2018 report from the treating psychologist relating to that assessment and interview, where the psychologist noted "significant validity concerns," with respect to the claimant's responses which "appeared, at times, internally inconsistent and also, at times, impossibly extreme." The psychologist noted, for example, that the claimant stated she avoided thoughts and feelings about the event, but then stated she discussed the event to the point where it was alienating those close to her. The treating psychologist concluded, in part, that the claimant's "response style make [sic] interpretation of the assessment results unreliable. For this reason, this assessment cannot determine whether [the claimant] has a diagnosis of PTSD or whether her potential trauma symptoms are affected by historical trauma in her life."

The panel also places weight on the January 2, 2018 report of the Program's psychiatric consultant who reviewed the information submitted by the claimant's mental health professionals to consider whether the DSM-5 diagnostic criteria of PTSD had been met, and concluded, based on the information available, that "the full diagnostic criteria for PTSD had not been met in relation to incidents that occurred between 2011 and 2013," and that "In the absence of a current DSM based diagnosis in relation to incidents that occurred between 2011 and 2013, a rateable impairment has not been determined."

Further, the panel places weight on the April 3, 2018 report from the Program's psychiatric consultant who reviewed the reports from the treating psychologist and noted that "the assessment of the treating psychologist was thorough and included both objective and subjective measures, including assessment interviews and psychological testing. This thorough review was unable to confirm a diagnosis of Post-Traumatic Stress Disorder." The consultant also reviewed the treating psychiatrist's report and noted that it "did conclude with a diagnosis of PTSD, but was brief, and did not adequately address the concerns raised in my previous report…As such, my opinion remains that the medical information available does not provide documentation that supports a diagnosis of PTSD related to incidents which occurred during [the claimant's] relationship between 2011 and 2014."

The panel does not accept the claimant's submission that the WCB psychiatric consultant has effectively suggested that a diagnosis of PTSD would not be available if there was a pre-existing condition. The panel would expect, however, that there would be differences or increases in symptomatology with a new diagnosis of PTSD, given that a new condition or diagnosis would be present.

The panel acknowledges the position of the claimant's treating psychiatrist with respect to the use or value of the DSM-5 in diagnosing PTSD, but is satisfied that it was an appropriate tool to apply in evaluating and diagnosing PTSD in this instance. While the treating psychiatrist referred to an alternate approach, few details were provided relating to that approach or how it was applied in this case in assessing whether the claimant had PTSD. While the treating psychiatrist had been asked to provide further details, the panel is unable to find that sufficient information was provided to support a diagnosis of PTSD.

The panel also had a number of other concerns with the information which was reported by the treating psychiatrist. The panel notes that in many reports the psychiatrist is reporting what the claimant "says." In an April 21, 2017 report, for example, the psychiatrist notes that the claimant "claims she suffers from permanent damage due to Post-Traumatic Stress Disorder. She insists on this." In the November 10, 2016 report, similar to the above validity concerns referred to by the psychologist, the treating psychiatrist noted that the claimant had "also demonstrated her immense ability to catastrophize."

The information shows that the claimant had pre-existing mental health issues, with varying diagnosis. The panel notes that while the claimant saw her treating psychiatrist on an almost weekly basis from 2009 on and the criminal incidents allegedly occurred between 2011 and 2013, the first mention of such incidents having been reported to the psychiatrist appears to be in the psychiatrist's March 31, 2015 Progress Notes on file. Professional Progress Notes from 2011 through to 2019 show the level of functioning and stressors as unchanged and the diagnosis and treatment plan as the same. Disability Assessment Reports completed by the psychiatrist do not appear to refer to a diagnosis of PTSD until May 22, 2019, where PTSD and Depression are identified as the primary diagnoses, with the original date of diagnosis indicated as 2009, which would pre-date the incidents.

The claimant also relied on the report from a second psychiatrist. The panel notes, however, that the evidence indicates the claimant only saw this psychiatrist on one occasion and the report does not appear to have been based on a full assessment of the claimant. Reference is further made in that report to information which is not consistent with other information on file, including that the alleged offender "once tried to kill her with a vehicle." While the second psychiatrist went on to suggest that her assessment would be no different than that of the treating psychiatrist, she also indicated that if the claimant required a more detailed assessment she should look into the services of a private psychologist.

While there was evidence of the worker having been involved in a few motor vehicle accidents in or around this time period, for which insurance claims appear to have been made in at least some instances, the worker was unable to recall or provide information with respect to those accidents, other than to say they related to incidents of domestic violence. The panel found it surprising that in a three-page letter dated May 31, 2016, the treating psychiatrist referred to the worker having chronic pain and "suffering from a permanent psychological impairment of function, arising from the motor vehicle accidents in question," but makes no reference to symptoms or a diagnosis of PTSD.

In conclusion, based on the evidence which is before us, the panel is unable to find that the reported criminal incidents caused or contributed to a PTSD injury or condition.

Based on the foregoing, the panel finds, on a balance of probabilities, that the claimant did not suffer a PTSD injury as a result of the alleged criminal incidents. The claimant is therefore not entitled to a permanent partial impairment award for a condition of post-traumatic stress disorder.

The claimant's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of May, 2021