The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits beyond April 22, 2018. A videoconference hearing was held on December 3, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 22, 2018.

Decision

That the worker is not entitled to wage loss benefits after April 22, 2018.

Background

The worker filed a Worker Incident Report on April 18, 2018, reporting a psychological injury as a result of an incident at work on April 17, 2018 which involved an encounter with an aggressive person. The worker sought treatment on April 18, 2018 from a physician assistant, who noted the worker "…was in a hostile environment at work. Emotionally upset…" and recommended time off work to seek further help. In a discussion with the WCB on April 25, 2018, the worker confirmed the incident and advised that after the incident, she was "…shook up, crying, very nervous, not sleeping…" and had flashbacks of the individual's face. She confirmed she had no prior psychological issues and was arranging to see a counsellor.

On May 28, 2018, the WCB contacted the worker for an update. The worker confirmed she had not yet returned to work. She noted she had ongoing anxiety about going into the facility where the incident occurred, but had to do so in order to see her treating physician assistant. The worker noted she was concerned about being at work as this was not the first time this had happened. She advised that she had been involved in three other incidents with aggressive people, all of which were reported to the employer, but she did not miss work as a result.

On June 1, 2018, the employer confirmed to the WCB that two of the incidents had been reported to them. The employer advised that the job duties the worker was performing when the April 17, 2018 incident occurred was a term position, and that after the incident, they had asked the worker if she wanted to return to her original position, but she declined. On June 11, 2018, the employer advised the WCB that the worker had concurrent employment and had been working at her concurrent job while she remained off work with the accident employer. On the same date, the worker confirmed with the WCB that she had concurrent employment, where she continued to work approximately two shifts per week.

On June 14, 2018, the worker's file was reviewed by a WCB psychological consultant. The psychological consultant noted there was no diagnosis on file related to the workplace accident, only a report from the treating physician assistant that the worker required and was given time off to seek treatment, with no diagnosis provided and no report of symptoms severe enough to suggest the worker was totally disabled from work. The WCB psychological advisor opined that it appeared reasonable that the worker may have experienced some "short-term distress" immediately following the workplace accident, but that based on the information on file, the worker was capable of returning to work as she continued to work at her concurrent employment; no diagnosis was provided related to the workplace event; there were no disabling or severe symptoms reported by any healthcare providers; and she chose to remain in the temporary position where she had reported difficult interactions with aggressive people, rather than return to her permanent position.

On June 27, 2018, the WCB advised the worker that her claim was acceptable and she was entitled to wage loss benefits from April 18 to April 22, 2018. On July 4, 2018, the WCB advised the worker that her claim had been accepted for an acute stress reaction. The WCB further advised the worker that she was not entitled to wage loss benefits after April 22, 2018, as they were unable to relate her ongoing difficulties to the workplace accident, given she continued to work at her concurrent employment and had agreed to extend her temporary position instead of returning to her permanent position.

On August 27, 2018, the treating physician assistant provided a report to the WCB, indicating a diagnosis of post-traumatic stress disorder ("PTSD") and listing the worker's symptoms and criteria the worker met in support of that diagnosis. The August 27, 2018 report was reviewed by the WCB psychological consultant on September 13, 2018. The psychological consultant noted that the symptoms the worker was reportedly experiencing "…would not meet all eight diagnostic criteria for the diagnosis of PTSD," and opined that as such, the medical evidence did not support a diagnosis of PTSD. On October 11, 2018, the WCB advised the worker that the new medical information had been reviewed but there would be no change to the earlier decision that she was not entitled to wage loss benefits after April 22, 2018.

On December 20, 2018, the worker attended a consultation with a psychiatrist. On January 9, 2019, the WCB was provided with a copy of the psychiatrist's consultation assessment report, in which the psychiatrist noted that the worker experienced a threatened assault at work in April 2018 and had developed PTSD symptoms in the eight months since then. The psychiatrist diagnosed the worker with PTSD of moderate severity. On February 7, 2019, the WCB advised the worker that the new medical information had been reviewed and there was no change to the earlier decision that her entitlement to wage loss benefits ended on April 22, 2018.

On March 5, 2019, the worker requested that Review Office reconsider the WCB's decisions. In her submission to Review Office, the worker noted multiple incidents had occurred while she was at work and the last one was a traumatic event. The worker enclosed copies of occurrence reports relating to these incidents. On March 13, 2019, Review Office returned the worker's file to the WCB for further investigation. The WCB contacted the employer to gather further information, which was received on April 8, 2019. After reviewing the information, the WCB advised the worker on May 2, 2019, that there would be no change to the earlier decisions.

On May 20, 2019, the worker requested that Review Office reconsider the WCB's May 2, 2019 decision. On June 18, 2019, the employer's representative provided a submission in support of the WCB's decisions, and the worker provided a response to that submission on July 2, 2019.

On July 3, 2019, Review Office determined that the worker was not entitled to wage loss benefits beyond April 22, 2018. Review Office reviewed the medical information on file, and placed more weight on the WCB psychological consultant's opinion. Review Office found that a causal relationship could not be established between the worker's current difficulties and the workplace accident, and that as such, the worker did not have a loss of earning capacity after April 22, 2018.

On December 5, 2019, the worker's representative requested that Review Office reconsider their July 3, 2019 decision. Included with the representative's request was a copy of a further report from the treating psychiatrist dated October 28, 2019, who noted disagreement with the WCB's decision that the worker did not meet all the criteria for a diagnosis of PTSD. The psychiatrist further confirmed his opinion that all the criteria for a formal diagnosis of PTSD were met, and the worker continued to suffer the effects of the workplace accident. On January 7, 2020, the employer's representative provided a further submission in support of the WCB and Review Office decisions, and the worker's representative provided a response to that submission on January 14, 2020.

On January 28, 2020, Review Office requested that the WCB psychological consultant review the worker's file and the treating psychiatrist's opinions, and the psychological consultant recommended the worker attend a call-in examination, which took place on February 13, 2020. Following her assessment of the worker, the WCB psychological consultant opined that the worker appeared to have experienced anxiety subsequent to a disturbing workplace event, the symptoms of which included hypervigilance, nightmares and avoidance of work, but that based on the worker's reporting and her presentation, she did not have a diagnosis of PTSD. On March 12, 2020, the WCB provided a copy of the psychological consultant's call-in examination notes to the parties for comment, and the worker's and employer's representatives provided their comments on March 12 and March 13, 2020, respectively.

On March 27, 2020, Review Office determined there was no entitlement to wage loss benefits beyond April 22, 2018. Review Office found the diagnostic criteria to confirm a PTSD diagnosis had not been established in relation to the workplace accident, and that information on file demonstrated marked differences in the worker's level of function. Review Office noted the worker's psychological injury was accepted as an acute stress reaction, and a short period of time off work from the accident employer was reasonable. Review Office found that as such, the worker was not entitled to wage loss benefits beyond April 22, 2018.

On April 9, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged for December 3, 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 October 27, 2021, the appeal panel met further to discuss the case and render its final decision on the issue 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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that 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.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Subsection 4(5.8) of the Act deals with a presumption regarding post-traumatic stress disorder, and provides:

4(5.8) If a worker 

(a) 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 post-traumatic stress disorder; and 

(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist; 

the post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.

The WCB's Board of Directors has established WCB Policy 44.05.30, Adjudication of Psychological Injuries, the purpose of which is to explain the way that claims for psychological injuries will be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.

Worker's Position

The worker was represented by a worker advisor, who made a presentation on her behalf at the hearing. The worker responded to questions from her representative, and the worker and her representative responded to questions from the panel.

The worker's position was that as of April 22, 2018, she continued to suffer from the effects of her workplace incident and to experience a loss of earning capacity as a result of her injury, and was entitled to wage loss benefits after that date.

The worker's representative noted that the claim was accepted by the WCB based on a psychological injury. In support of the worker's entitlement to further benefits, the representative referred to the initial report from the physician assistant immediately following the incident, which confirmed that the worker was to be removed from her employment from April 19 to May 18, 2018, with an unknown return to work date. Monthly reports from the physician assistant through to August 2018 indicated the worker was to refrain from all work with the accident employer and supported that the worker continued to experience a loss of earning capacity due to her injury. The representative noted that a further medical report dated August 27, 2018 stated the worker's diagnosis was PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5").

The worker's representative noted that the worker was finally assessed by a psychiatrist on December 20, 2018, who confirmed that the worker's injury had evolved into a clear cut case of PTSD of moderate severity. The representative submitted that in a subsequent report, the psychiatrist confirmed, based on his interview and assessment of the worker, that the worker met all eight criteria for PTSD under the DSM-5.

The worker's representative asked that the panel put more weight on the opinion of the treating psychiatrist, who provided a confirmed clinical assessment and diagnosis. The representative argued that regardless of the WCB psychological consultant's opinion, the treating psychiatrist diagnosed the worker with PTSD and confirmed that diagnosis, and the presumption under subsection 4(5.8) of the Act should apply.

In summary, the worker's representative asked that the panel place more weight to the medical opinions as of April 22, 2018, which were based on actual interviews and assessment by the worker's healthcare providers from the time of the incident and beyond, and confirmed a diagnosis of PTSD in accordance with the DSM-5, and in particular that the worker had not recovered and was not able to return to work with the accident employer.

The worker's representative submitted that the claim remains accepted for a psychological injury that arose from the workplace incident. The representative further submitted that there is no evidence to support the worker had fully recovered from the effects of the April 17, 2018 workplace event as of April 22, 2018, and the worker's appeal should be granted.

Employer's Position

The employer was represented by an advocate, who made a presentation at the hearing and responded to questions from the panel.

The employer's position was that the WCB correctly decided the worker was not entitled to further wage loss benefits on this claim.

The employer's advocate acknowledged that the worker had experienced some degree of psychological difficulties, but submitted that they did not appear to be directly or proximately related to the workplace incident beyond the original brief period of time.

The employer's advocate argued that the WCB's criteria for the diagnosis and acceptance of a PTSD claim were not met in this case. The advocate submitted that the medical and other evidence on file proved the worker did not have PTSD, and the presumption under the Act therefore did not apply.

In conclusion, the employer's advocate submitted that based on the information on file and on a balance of probabilities, the workplace incident and injury did not result in PTSD, but rather in an acute psychological stress reaction. The advocate agreed with the assessment that a short period of time off work with the accident employer as a result of the injury was reasonable. The employer therefore believed that the worker had been properly and adequately compensated by the WCB for that acute stress reaction, and her appeal should be dismissed.

Analysis

The issue on this appeal is whether or not the worker is entitled to wage loss benefits after April 22, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after April 22, 2018 as a result of her April 17, 2018 workplace incident. For the reasons that follow, the panel is unable to make that finding.

The worker has a claim for a psychological injury which has been accepted as an acute stress reaction.

The worker has argued that she has been diagnosed as having PTSD as a result of the workplace incident, and her claim should be accepted on that basis. Further, or in any event, the worker has argued that she had not recovered from her workplace injury as at April 22, 2018, and is therefore entitled to wage loss benefits beyond that date.

In support of her position with respect to PTSD, the worker relies on the opinions and diagnosis provided by the treating psychiatrist in particular. In the panel's view, an important element or consideration in arriving at that diagnosis and whether the applicable criteria for establishing such a diagnosis were satisfied was the worker's indication that she was subsequently unable to go into the hospital facility where the incident occurred.

While there is repeated reference in the file to the worker being unable to enter the hospital facility following the incident, the worker acknowledged at the hearing that she did in fact go into that facility. The worker added, however, that she had no choice as she was expected to go there once a month to see her physician assistant for her disability insurance and his office was in the clinic which is in the hospital. The worker further noted that she was very distraught and anxious on those occasions; that the nurses would see she was very anxious and would rush her through to see the physician assistant as quickly as possible. In response to a question as to whether she had discussed her concerns about going to the hospital with her physician assistant, the worker stated: "Absolutely. He knew exactly what was going on. I broke down to him every time."

Following the hearing, the panel requested complete chart notes from the physician assistant for the relevant period of time. The panel notes on reviewing the information provided, that the worker's description at the hearing of her presentation and extreme distress and anxiety on attending the hospital is not reflected in the chart notes from the physician assistant or supported by those notes.

In his consultation assessment reports, the treating psychiatrist referred to the worker being unable to go to the hospital where the workplace incident occurred. In his December 20, 2018 report, the psychiatrist thus stated that since April the worker "...will not go near the hospital…" and in his October 28, 2019 report noted that the worker is "…'terrified' to go to the hospital…has tried to go there with a friend but has only been able to get to the parking lot." Given the information on file and the worker's confirmation at the hearing that she regularly attended appointments with the physician assistant within the hospital, the panel requested that the psychiatrist advise as to whether this altered his previous opinions or PTSD diagnosis.

By letter dated August 20, 2021, the treating psychiatrist responded to that request, stating that "Clearly my reports reflect the information any patient gives me. [The worker] clearly reported extreme anxiety if she was near the hospital and she told me she could not enter it yet…" The psychiatrist went on to state:

You report that [the physician assistant's] appointments with [the worker] were at the hospital…I will accept what you say as correct. My only comment would be that individuals with extreme anxiety can overcome it if they "must" and tolerate certain situations, with attendant distress, for brief periods of time. Perhaps this was the case here. I don't feel this disqualifies, or invalidates, the reality of her symptoms which resulted from the near assault at work and her subsequent diagnosis of PTSD, which I would still support.

In the circumstances, the panel is unable to place weight on or accept the treating psychiatrist's diagnosis of the worker with PTSD. The panel finds that the psychiatrist's assessment of the worker and his diagnosis of her injury was based on incomplete and incorrect information. In his reports, the psychiatrist described the worker's inability to go to the hospital in absolute terms, yet the evidence shows that she was attending the hospital facility on a monthly basis. The panel notes that in response to questions at the hearing, the worker stated that the psychiatrist knew she was regularly attending the hospital, yet the reports from the treating psychiatrist, including his August 20, 2021 letter, indicate that this was not the case.

Based on the evidence which is before us, the panel is unable to find that a diagnosis of PTSD in accordance with the criteria under the DSM-5 has been provided or is acceptable in this case. The presumption in subsection 4(5.8) of the Act would therefore not apply.

The panel therefore finds that the evidence supports that the compensable injury in this case is an acute stress reaction. The panel further finds that the time loss for the worker's acute stress reaction injury would have been minimal. In this regard, the panel notes that the worker was paid wage loss benefits from April 18 to 22, 2018. Information on file indicates that the worker was scheduled to work for the accident employer on April 18, 20, 21 and 22, then was scheduled to be off work on her regular rotation for a week. A memorandum to file of a telephone conversation with the worker further confirmed that during the scheduled week off work, the worker was working at her concurrent employment and had not missed any time from that position.

In conclusion, the panel acknowledges the worker's complaints of ongoing difficulties, but is unable to relate such difficulties to the April 17, 2018 workplace incident or injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity after April 22, 2018 as a result of her April 17, 2018 workplace incident. The worker is therefore not entitled to wage loss benefits after April 22, 2018.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of December, 2021