The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he does not have ongoing psychological difficulties related to the compensable injury. A videoconference hearing was held on April 7, 2022 to consider the worker's appeal.

Issue

Whether or not the worker continues to have psychological difficulties related to the accident.

Decision

The worker does not continue to have psychological difficulties related to the accident.

Background

The worker has an accepted WCB claim for injuries to his right arm and leg sustained as a result of a motor vehicle accident at work on January 8, 2015. The worker underwent multiple surgeries, including a brachial artery repair, advancement flap closure, skin grafting, contracture release, tendon transfers and radial head excision. Physiotherapy and occupational therapy treatments were provided.

On August 1, 2017, the worker underwent a Functional Capacity Evaluation with a physiotherapy consultant, followed by a call-in examination with a WCB plastic surgery consultant. The WCB plastic surgery consultant recommended permanent restrictions, which were then provided to the employer, and on September 27, 2018, the employer advised that they could not accommodate the worker. On October 1, 2018, the WCB referred the worker for vocational rehabilitation assessment and services.

On July 5, 2017, the WCB received a request from the worker's treating family physician to refer the worker for psychiatric assessment/treatment. The physician noted the worker had ongoing symptoms since the workplace accident and had been experiencing changes to his "…mental wellness in the form of depression, stress and insomnia."

The WCB expedited a referral, and on August 17, 2017, the worker attended an assessment with a psychiatrist. The psychiatrist noted that the worker reported he had been advised in February 2017 that he had "plateaued" and there was "no more to offer" in the way of treatment for his injuries, and since that time, the worker felt he "…lost all hope and confidence…" and his mood plummeted. The psychiatrist noted the worker reported decreased energy, motivation, and interest, with increased irritability and anger, and that he had experienced nightmares since February 2017, and was always "on edge" when he was the passenger in a motor vehicle. The psychiatrist provided a diagnosis of Major Depressive Disorder with Anxiety (manifesting as panic attacks and generalized anxiety) and started the worker on a trial of anti-depressant medication. The psychiatrist further noted that the possibility of Post-Traumatic Stress Disorder could not be ruled out.

The worker attended three follow-up appointments with the psychiatrist, after which the worker stopped treatment due to a negative response to the medication, and no further appointments were scheduled. In a discussion with the WCB on September 27, 2018, the worker advised he was not in any treatment or taking any medication for his injuries.

On January 7, 2020, the worker's legal counsel contacted the WCB and advised that the worker continued to suffer the effects of his psychological and physical disability due to the workplace accident and requested he be re-assessed for vocational rehabilitation and permanent partial impairment purposes. Enclosed with the representative's letter was a December 15, 2019 report from the worker's treating psychiatrist, who wrote that he had not seen the worker since his last appointment on November 30, 2017 and repeated his previous diagnosis of Major Depressive Disorder with Anxiety. The psychiatrist further wrote that he could not give more detailed information, and that "A two-year hiatus since our last appointment can lead me only to speculation about his current status and prognosis."

On January 23, 2020, the worker's treating family physician provided a progress report to the WCB, indicating "This is a vulnerable man with significant disability related to a road accident. In the office he was tearful, had severe generalized anxiety related to his weight (sic) is being garnished. His stress level was severely extreme." The treating physician went on to note his concern with respect to the worker's mental health.

On March 18, 2020, the worker's file was reviewed by a WCB psychiatric consultant. The psychiatric consultant opined that the worker historically had a diagnosis of Major Depressive Disorder which was medically related to the compensable injury. The consultant noted recovery norms and appropriate treatments for this diagnosis, and stated that comment on a current psychiatric diagnosis would be speculative as there had been no psychiatric contact and no report that fully evaluated the worker's symptoms of a psychiatric disorder for 2.5 years. The consultant further noted there was no report of a pre-existing psychiatric illness and recommended the worker be re-assessed once the pandemic health crisis ended and call-in examinations were being arranged.

On May 10, 2021, the worker attended a call-in examination with a second WCB psychiatric consultant. Following his examination of the worker, the consultant advised that he concurred with the March 18, 2020 opinion of the previous WCB psychiatric consultant that the worker had a diagnosis of Major Depressive Disorder which was medically related to his compensable injury. The consultant opined the worker no longer met "…the diagnostic criteria for Major Depressive Disorder…" based on his examination and that the worker did not meet the diagnostic criteria for Post-traumatic Stress Disorder. On May 21, 2021, the WCB advised the worker that based on a review of his file in consultation with the WCB psychiatric consultant, they had determined he had recovered from the Major Depressive Disorder diagnosis and there was no ongoing psychological diagnosis related to the January 8, 2015 workplace injury.

On July 12, 2021, the worker's legal counsel requested that Review Office reconsider the WCB's decision. The representative enclosed a copy of the December 15, 2019 report from the worker's treating psychiatrist and a report from the worker's treating hand specialist dated April 20, 2021. On July 15, 2021, Review Office confirmed with the worker's counsel that the issue under appeal was whether the worker's ongoing psychological difficulties were compensable.

On September 8, 2021, Review Office determined there were no ongoing psychological difficulties related to the compensable injury. Review Office accepted and placed weight on the WCB psychiatric consultant's opinion following the May 2021 call-in assessment of the worker, as the last psychiatric evaluation was in November 2017. Review Office noted that the worker did not seek treatment or report ongoing psychological difficulties to his treating physician or the WCB, and found that the worker did not have ongoing psychological difficulties related to the January 8, 2015 workplace accident.

On September 29, 2021, the worker's legal counsel appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for April 7, 2022.

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 May 24, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

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. The provisions of the Act in effect as of the date of the January 8, 2015 workplace accident are applicable.

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.

Worker's Position

The worker was represented at the hearing by legal counsel, who filed a February 15, 2022 report from the worker's treating family physician in advance of the hearing, and made an oral submission at the hearing.

The worker's position was that he has ongoing issues and a permanent disability relating to psychological issues arising out of the work-related accident, including PTSD, anxiety, and panic attacks, and his appeal should be allowed.

The worker's counsel submitted that the worker had a terrible motor vehicle accident as a passenger in the midst of his duties on January 8, 2015. As a result, the worker suffered severe disability with respect to his right arm, and has had restrictions on that arm since the accident. Counsel submitted that the evidence shows the worker also suffered psychological problems which flowed from the accident, being PTSD, anxiety and panic attacks.

The worker's treating family physician was called as a witness to give evidence at the hearing, and testified that:

• he is a specialist in internal medicine; 

• he began treating the worker a number of years before the January 8, 2015 accident and continues to treat him on a regular basis; 

• he is not a psychiatrist, but has to assist patients with certain psychological issues in his role as a primary care physician; 

• in his assessment, the worker's emotional state has improved over the past seven years or so, and the worker is much more stable, but continues to have post-traumatic sequelae from the workplace accident; 

• the sequelae are an ongoing issue requiring support, and this will be a lifelong injury from which the worker will not completely recover; 

 • the worker initially had PTSD, which is in its lesser phases now, and still has a stress disorder with regard to a number of issues; 

• the worker has continued anxiety, with involuntary panic-like episodes from time to time and anxiety related to his current life and the reflection of the past; 

• the post-traumatic sequelae relate back to the work-related accident, and while the worker has adapted somewhat, he continues to have some degree of flashbacks, and adjustment in his current life situation is difficult; 

• the worker is currently on only one medication, which acts to decrease his anxiety and agitation and helps with sleep, but the worker still has moments when he is not settled and stress becomes an issue; 

• he has also been using cognitive behavioural therapy with the worker, to encourage him to work out the negatives and work on the positives; 

• the worker's distress tolerance is not particularly good, and he has concerns with how he would be able to adjust in a workplace environment.

The worker also gave evidence at the hearing, indicating that he started having psychological difficulties right after the work-related accident, including difficulties with sleeping, concentrating, emotional stress, insecurity and depression. The worker said he did not feel there was any change between how he felt after the accident and how he felt now, and stated he currently feels "Just very depressed, and very out of touch, and not…able to be so independent like I used to be." Asked about specific conditions, he said he still feels he has PTSD, noting that there are many nights he does not sleep; still suffers "major" anxiety; and still gets panic attacks. The worker said that he believes all these problems go right back to what happened in the accident.

The worker's legal counsel referred to, and quoted portions of, the report from the treating psychiatrist dated December 15, 2019, noting that the psychiatrist had identified his preferred diagnoses as "Major Depressive Disorder with Anxiety (Panic Attacks and Generalized Anxiety)" and "R/O Post-Traumatic Stress Disorder." Counsel noted that the evidence from the worker and the family physician at the hearing showed that the worker still suffers from these issues.

Counsel also referred to and quoted portions of the February 15, 2022 report from the treating family physician which was filed in advance of the hearing.

In conclusion, counsel submitted that there is clear evidence the worker has serious ongoing psychological issues and permanent psychological disability related to the January 8, 2015 work-related accident, and should be eligible for all benefits the WCB can provide with respect to those matters, including further psychiatric treatment, vocational training which takes into account both his physical and psychological disabilities, and a permanent impairment rating with respect to a psychological disability.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker continues to have psychological difficulties related to the accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker has ongoing psychological difficulties which are related to the January 8, 2015 work-related accident. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the evidence and the submissions which are before us, the panel is unable to accept the worker's argument that he has been diagnosed with and continues to suffer from PTSD. The panel notes that following his initial assessment of the worker on August 17, 2017, the treating psychiatrist reported that "The possibility of Post-Traumatic Stress Disorder cannot be ruled out, as [the worker] was a vague and uncertain historian." In subsequent reports, the treating psychiatrist continued to indicate that PTSD was a possibility, noting "R/O [rule out] Post-Traumatic Stress Disorder," but no diagnosis of PTSD was ever made.

The panel accepts the opinion of the WCB psychiatric consultant who assessed the worker at the call-in examination on May 10, 2021, and opined that he "does not meet the diagnostic criteria for Post-traumatic Stress Disorder."

With respect to the diagnosis of Major Depressive Disorder, the evidence shows that the treating psychiatrist diagnosed the worker with "Major Depressive Disorder with Anxiety (manifesting as panic attacks and generalized anxiety)" on August 17, 2017. The panel is satisfied that the medical evidence supports that diagnosis, and accepts that diagnosis as being related to the compensable injury.

The panel notes that the evidence shows that the worker was treated by the psychiatrist for that condition from August 17 to November 30, 2017, but discontinued treatment after that due to concerns with the medication he was taking. The panel is unable to find, based on the evidence which is before us, that the worker continues to have Major Depressive Disorder with Anxiety.

The worker's counsel referred to and relied on the December 15, 2019 report from the treating psychiatrist in support of their position that the worker had ongoing psychological difficulties, pointing in part to the preferred diagnoses as listed in that report. The panel notes that the diagnoses as listed were those which were assessed in 2017, and the psychiatrist specifically noted in his report that he had not seen the worker in over two years and could not comment on the current status of his psychiatric issues, and that "A two-year hiatus since our last appointment can lead me only to speculation about his current status and prognosis."

The panel places weight on and accepts the opinion of the WCB psychiatric consultant, who subsequently interviewed and examined the worker at the call-in examination and determined the worker "no longer meets the diagnostic criteria for Major Depressive Disorder based on my examination of May 10, 2021."

The panel notes that in his Examination Notes dated May 10, 2021, the WCB psychiatric consultant reported that the worker indicated that his sleep, concentration and energy were normal, and he did not feel hopeless, and he denied feeling depressed, having panic attacks, nightmares or flashbacks at that time. When the worker was asked about this at the hearing, his only response was that the consultant never took any notes; that he was there for maybe not even an hour and the consultant was not taking any notes.

The panel further notes that in the treating family physician's chart notes dated March 10, 2022, which were obtained following the hearing in response to a request from the panel, the physician indicated that he did not believe that the worker had MDD.

The panel is of the view that there are significant gaps and inconsistencies in the evidence, and while reference was made to the worker having continued anxiety or panic-like episodes from time to time, the panel is unable to relate any such episodes to the 2015 work-related accident. The panel further acknowledges the treating family physician's evidence that he provides psychoeducation and psychotherapy or talk therapy to the worker (which he noted seemed to have been adequate for the most part), but is similarly unable to relate that therapy or treatment to psychological issues or difficulties related to the work-related accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker does not continue to have psychological difficulties which are related to the January 8, 2015 work-related accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of July, 2022