The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on October 6, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on September 14, 2018 for a psychological injury. He noted that either at the end of May 2016 or the beginning of June, 2016, the airplane he was in had an engine failure that required a rapid landing on water. He further noted that he couldn’t reach the survival gear and was in the water for 40 minutes, where he developed hypothermia. After the incident and for the rest of the season, he had difficulty sleeping.

In a discussion with the WCB on September 14, 2018, the worker advised he worked for one season for the employer, beginning in May 2016 and ending in August 2016. He worked the 2017 season for a different employer but did not work in 2018 due to anxiety, confirming that he only works during the summer. The worker confirmed the mechanism of injury noting that after the incident, he continued to work for the employer but suffered from sleep deprivation, only sleeping 2 to 3 hours a night. After his contract ended, he left the company and worked for another employer in 2017. He went on to advise that on April 25, 2018, he sought treatment at a local emergency department after experiencing an adverse reaction to a medication he was on. At that time, he had suicidal ideation and described symptoms of hyperarousal and startle effect, jumping at sudden sharp noises. After the April 25, 2018 incident, the worker was seen by a psychiatrist, who advised the worker there had to be an underlying condition but did not provide a diagnosis. He followed up with his family physician who, after reading the psychiatrist’s report, diagnosed the worker with Post-Traumatic Stress Disorder (PTSD).

The WCB received information from the employer on October 9, 2018. The employer advised the incident the worker was referring to was not an engine failure but was a “…cylinder failure (one cylinder out of 9) and had to do a precautionary landing.” Further, the employer noted that the worker would not have been in the water for any length of time; instead, he would have been waiting inside of the plane that was on the water but not in the water himself.

On November 20, 2018, the WCB received a response to their request for information from the worker’s treating family physician. The physician noted a diagnosis of PTSD for the worker and provided symptoms of suicidal ideation and stress due to work. On December 6, 2018, the WCB received a telephone call from the emergency room physician who treated the worker on April 25, 2018. The physician confirmed the worker sought medical advice regarding side effects from medication he was taking. The physician noted the worker had some suicidal ideation, but no plan and suffered from insomnia. Medication to help the worker sleep was prescribed and it was recommended he follow-up with his treating family physician.

The worker was advised on February 19, 2019 that his claim was not acceptable. The WCB advised the medical information provided did not support his psychological difficulties were related to the workplace incident as there was a more than two year delay in reporting the incident to the WCB and the employer and the worker continued to work his regular duties after the incident.

After discussion with the worker, the WCB advised the worker on March 7, 2019 his claim would be further investigated and additional medical information would be requested. The worker’s family physician provided chart notes from February 21, 2018 to October 11, 2018 to the WCB on March 21, 2019. Additional information was gathered from witnesses to the late May/early June 2016 incident on April 17, 2019. A worker from a nearby fishing lodge recalled the worker having a mechanical issue which was repaired and he continued working but did not recall the worker mentioning any issues regarding the incident, which was also confirmed by the general manager of the nearby lodge.

The worker was seen by a psychiatrist on April 10, 2019. The psychiatrist diagnosed the worker with “Post-traumatic stress disorder without added depression” and “Alcohol use disorder secondary to his PTSD”. Further psychology treatment was recommended. The worker’s file was reviewed by a WCB psychiatric consultant on July 10, 2019. The consultant opined the history of the incident provided by the worker was vague and “…highly inconsistent with the detailed history given by his employer” and found the worker did not meet Criterion A for PTSD as described in the DSM-5. As Criterion A of the DSM-5 must be met before the other criteria can be considered, the WCB psychiatric consultant was unable to medically support a diagnosis of PTSD related to the workplace accident. On July 26, 2019, the worker was advised his claim was not acceptable and the February 19, 2019 decision remained unchanged.

On November 20, 2019, the worker requested reconsideration of the WCB’s decisions to Review Office. In his submission, the worker provided a chronology of events after the workplace accident and noted that he advised his healthcare provider of his fears and anxieties related to his job duties and was provided with a note that he could not perform those duties due to PTSD.

Review Office determined on January 8, 2020 the worker’s claim was not acceptable. Review Office accepted and relied on the opinion of the WCB psychiatric consultant and found that the worker was not “…directly exposed to death, threatened death, actual or threatened serious injury…during the precautionary landing in which the worker has had previous experience and training to perform.” Review Office did not find evidence to support the worker suffered a psychological injury as a result of the workplace accident and as such, his claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on February 7, 2020. A teleconference hearing was arranged and held on October 6, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 28, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

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

WCB Policy 44.05.30, Adjudication of Psychological Injuries, states:

Claims for psychological injuries 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.

Accident

The definition of accident in the Act has various components. A psychological injury can be caused by:

• a chance event; 

• a wilful and intentional act; or 

• the injury can be an occupational disease (an acute reaction to a traumatic event or post traumatic stress disorder).

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically.

Some events will be accidents under more than one part of the definition. The WCB will start by looking at the beginning of the definition. If it does not find an accident at the beginning of the definition, it will continue until it either finds an accident or finds that there was no accident under any part of the definition.

Claims for psychological injuries cannot arise under the part of the definition of accident that refers to 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. That part of the definition applies to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries and so on.

Presumption Regarding Post-Traumatic Stress Disorder (PTSD)

Subsection 4(5.8) of the Act creates a rebuttable legislative presumption that may apply when a worker is exposed to a traumatic event or events and later receives a diagnosis of PTSD as described under the most recent version of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

For claims involving PTSD, as with other psychological injuries, the WCB will consider whether there is an accident under any part of the definition. In the majority of cases, an event(s) that triggers PTSD will be a chance event caused by a physical or natural cause, a wilful and intentional act by someone other than the worker, or a "traumatic event" as that term is used in the definition of occupational disease. The WCB will most often consider a claim under the presumption when the necessary causal connection between the worker's employment and the injury is not clear.

In such cases, the Act provides that the PTSD is presumed to be an occupational disease the dominant cause of which is the worker's employment unless the contrary is proven. If there is evidence demonstrating on a balance of probabilities that the worker's employment is not the dominant cause of the occupational disease, the presumption will be rebutted. For the presumption to apply, the diagnosis must be made on or after January 1, 2016 by a physician or psychologist.

Injury

The WCB will next determine whether the worker suffered an injury as a result of the accident. People can react differently to the same situation. Not every worker who experiences the same event will suffer a psychological injury.

Like physical injuries, psychological injuries range in severity from minor to major. A specific diagnosis is not necessary in order for a psychological injury to be compensable, except under the legislative presumption regarding PTSD. The severity of the injury is a factor to consider in determining the benefits payable. It does not determine whether the claim is compensable.

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. 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.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

Psychological injuries that occur as a result of voluntary personal relationships or their breakdown will not usually give rise to a compensable claim, even if both parties are in the same workplace or met in, or as a result of, that workplace because these matters arise out of the personal relationship, not out of the employment.

Worker’s Position

The worker was assisted by a worker advisor, who made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker was in fear for his life when his aircraft, carrying extremely flammable jet fuel, suffered a sudden engine malfunction which required him to urgently find a place to land in an environment that presented with extremely limited landing opportunities. He landed the plane but was so shaky he couldn’t immediately use the satellite phone. He entered the water in order to protect the plane from damage on the rocks. At the time of the incident, the worker did not know the cause of the engine problem, just that there was unexpected vibration and noise which were of serious concern.

Following repair of the plane the next day, he continued to work. He began having sleeping difficulties. Although he finished the current contract, and continued flying in 2017, when he went to obtain his medical certification in 2018 to qualify for his pilot’s license, he felt nervous and jumpy and asked the doctor to advise his employer that he was unable to work. A week later he spoke with the doctor again and obtained the medical certification but, prior to arriving at work, he had a panic attack and did not show up to work. He used alcohol as a way to deal with his anxiety. The worker was referred to a psychiatrist who, in 2018, diagnosed PTSD.

Employer’s Position

The employer did not participate in the hearing. In communications with the WCB, the employer acknowledged the incident described by the worker but advised that there was no engine failure and the worker made a precautionary landing due to a cylinder failure. The worker did not report a workplace accident to the employer and completed his contract, after which the worker went on to fly for another employer. The employer did not recall the worker complaining and did not hear anything from the worker until the winter of 2018/19.

Analysis

The worker described an incident when his plane, loaded with jet fuel, had an engine problem which caused him to fear for his life and immediately seek out a safe landing area. Although the engine difficulty was described by the employer as an issue with one cylinder and the landing as precautionary, the worker did not know the nature of the engine problem at the time. Notwithstanding the later diagnosis of the engine problem, the worker perceived an immediate threat to his safety and reacted by immediately landing the plane. The panel accepts that there was a chance event within the meaning of “accident”.

It is clear that the worker found the incident to be traumatic. After landing the plane, the worker realized he could have died. As described by the worker at the hearing “I was at low level and I only had, I only had one shot of this body of water. If I missed, if I missed it, that, I would have been a statistic”.

Following this incident, the worker reported suffering from insomnia with significant ruminations and began self-medicating with alcohol. He was diagnosed with PTSD and alcohol use disorder secondary to his PTSD. The panel questioned the delay, given that the worker did not report symptoms until 2018, but notes that the WCB medical advisor confirmed that a person can continue working and then experience some sort of trigger and then develop difficulties. By its nature, PTSD is a delayed response. Following the hearing, the panel asked for, and received, clarification of the PTSD diagnosis from the worker's psychiatrist. The panel noted the WCB psychiatric consultant’s opinion that the worker did not meet Criterion A for PTSD but prefers the evidence of the worker’s psychiatrist and finds that Criterion A has been met.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. The panel therefore finds that the worker’s claim is acceptable.

Panel Members

K. Gilson, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of July, 2021