Decision #18/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. Responsibility should not be accepted for the worker's psychological difficulties as being a consequence of the December 8, 2017 accident; and
2. They are not entitled to wage loss and medical aid benefits after May 31, 2018.
A hearing was held on October 25, 2022 to consider the worker's appeal.
1. Whether or not responsibility should be accepted for the worker's psychological difficulties as being a consequence of the December 8, 2017 accident; and
2. Whether or not the worker is entitled to wage loss and medical aid benefits after May 31, 2018.
1. Responsibility should be accepted for the worker's psychological difficulties as being a consequence of the December 8, 2017 accident; and
2. As the panel accepted the worker's psychological difficulties, the worker's file is returned to the WCB for further adjudication related to whether the worker is entitled to wage loss and medical aid benefits after May 31, 2018.
On December 11, 2017, the worker provided a Worker Incident Report to the WCB describing an incident at work on December 8, 2017 resulting in injury to their left lower leg. The worker reported being punched in the face causing bleeding and falling down and breaking their left leg. The worker noted that emergency personnel were dispatched. The Employer's Accident Report submitted to the WCB on December 13, 2017 noted that on December 8, 2017, the worker "Was attacked by an individual. When attacked, fell to the ground and broke his shin."
The worker was taken by ambulance to a local emergency department on December 8, 2017 reporting a painful left leg and initially diagnosed with a left ankle sprain. The worker returned for an x-ray the following morning, which revealed "An oblique fracture of the distal fibula extending up to the level of the talar dome…". The worker reported that they were unable to move or walk and required assistance to return to the emergency department. The emergency room physician recorded the worker's report of 10/10 on a pain scale, and full left-sided pain in their head, neck, shoulder, leg, ankle and foot while lying on their right side. The physician diagnosed a left distal fibula fracture and the worker's leg was cast, with a sick note provided until January 12, 2018.
On initial assessment by their family physician on December 13, 2017, the worker reported left hip pain, pain when walking and that they had left sided body pain since the workplace accident. On examining the worker, the physician found normal neurovascular testing of the worker's left leg and normal range of motion with tenderness on the worker's gluteus medius muscle.
When the WCB contacted the worker on December 14, 2017, the worker confirmed the mechanism of injury and stated they were experiencing a lot of pain in their leg and had a tender head from the incident. A return to work was discussed and the WCB advised that a medical review would first take place and then, there would be further discussions as to whether the employer could accommodate the worker.
The worker returned to the emergency department on December 27, 2017 reporting "…anxiety and frustration over ongoing post traumatic pain…". An x-ray revealed no concerns. The treating physician noted tenderness to the worker's chest wall with no visual evidence of trauma and diagnosed "Pain (Mechanical and Traumatic), poor coping strategies, distal fibula Fracture (now 3 weeks post injury)".
A sports medicine physician assessed the worker on January 25, 2018 and recorded that the worker was treated conservatively for a left distal fibula fracture that occurred during an assault, with the worker in a splint and non-weightbearing since the incident occurred. The physician noted the worker had other pain complaints, including their back, chest and left hip and stated, "Some of these may have been related to the assault, but he was not entirely certain." On examining the worker, the physician found that swelling in the worker's ankle was slowly resolving with decreased range of motion, and pain-free range of motion noted in the worker's left hip "…but exquisite point tenderness to palpation along the greater trochanter suggestive of trochanteric bursitis" was also recorded. An x-ray taken that day indicated "…the minimally displaced fibula fracture is healing in good position with no evidence of mortise shift." The worker was placed in a removable boot cast and requested to follow-up in two months' time when a return to work would be discussed.
An orthopedic surgeon assessed the worker on March 8, 2018 regarding their right shoulder complaints. The orthopedic surgeon recorded the worker's report of chronic pain in their shoulder that got substantially worse after the December 8, 2017 workplace accident. The worker reported localized pain "…in the posterior aspect of the shoulder and states that it is achy all the time” and worsened when lying on it or trying to elevate the arm or push with it. The surgeon noted the worker also reported some pain in the front of their right shoulder and outside since the assault, which is not as severe as the posterior pain. Further, the surgeon noted the worker had tenderness at the bicipital groove and greater tuberosity, could elevate their arms fully over their head with mild discomfort, pain with O'Brien's and posterior load and shift testing. After reviewing the diagnostic imaging including an x-ray and an MRI study, the treating orthopedic surgeon noted the studies indicated "…a posterior labral tear with a small posterior paralabral cyst" and discussed treatment options with the worker. The worker opted to proceed with arthroscopic surgery.
When the WCB discussed the worker's right shoulder difficulties with the worker on March 15, 2018, the worker confirmed they experienced difficulties with their shoulder prior to the workplace accident but those difficulties were worse now. The worker noted they had undergone an MRI study for their right shoulder in October 2017 but had only seen the orthopedic surgeon for their left shoulder at that time. The worker went on to state they were also experiencing difficulties in their low back and spine and could not sleep on their right side or back due to pain. The WCB advised the claim was only accepted for a left leg injury but further information would be gathered.
On April 5, 2018, the worker attended for follow-up with the treating sports medicine physician who noted the worker continued to use the cast boot, despite the physician recommending they discontinue its use and found "…the ankle and subtalar range of motion has decreased compared to the contralateral side" due to the continued use of the boot. The physician recommended the worker discontinue use of the boot and start range of motion exercises for their ankle, noting the boot was contributing to the ankle stiffness and likely causing some pain. The physician referred the worker to physiotherapy and on April 6, 2018, the worker attended an initial physiotherapy assessment. At that time, the worker reported pain in their left distal fibula, worse with weight bearing and ongoing left hip and lower back pain, affecting their normal gait after being attacked by six men at work. The physiotherapist noted an antalgic gait on the left due to low back, hip and foot/ankle pain and an inability to bear weight fully on the left ankle but could not perform ligament stress testing on the left foot due to the worker’s pain limitations. The physiotherapist diagnosed a left distal fibula break with persistent left hip and left low back pain.
On April 13, 2018 the WCB received further medical information regarding the worker’s right shoulder. A January 6, 2017 chart note from the treating sports medicine physician noted the worker reported their right shoulder was still sore with their chest and lumbar pain unchanged, noted a positive impingement test and diagnosed a right rotator cuff tear. After normal findings were noted with an x-ray study, the worker was referred for an MRI. The MRI study of October 25, 2017 indicated mild acromioclavicular osteoarthritis, mild tendinosis with no significant cuff tear or atrophy, and an undisplaced tear and paralabral cyst in the posterior labrum.
A WCB medical advisor reviewed the worker’s file on May 3, 2018 and concluded that the December 8, 2017 workplace accident caused "…a fracture of the left distal fibula and contusion of the left side of the body" as supported by the medical evidence on file. The advisor noted the initial reporting on December 9, 2017 and December 13, 2017 did not specifically mention the worker's shoulder, and offered the opinion that the worker's right shoulder difficulties were a pre-existing condition unrelated to the workplace accident. The medical advisor concluded the worker was not totally disabled because of the accident and proposed restrictions of no running and jumping, no repetitive walking over uneven surfaces and no prolonged standing or walking for more than an hour.
At the request of the WCB, the worker attended a call-in examination with a WCB orthopedic consultant on May 10, 2018. Upon examining the worker, the orthopedic consultant concluded that the December 8, 2017 workplace accident caused a fracture of the left distal fibula and a contusion on the left side of the worker's body, with the contusion expected to resolve within six weeks and the fracture expected to heal after four months. The orthopedic consultant found the worker's right shoulder difficulties were likely degenerative rather than traumatic, based on the lack of reporting of right shoulder pain soon after the workplace accident and right shoulder pathology noted by MRI prior to the workplace accident. The consultant also noted delayed mobilization of the left ankle but that it demonstrated a functional range of motion and as such, total disability was not supported. Further, the WCB orthopedic consultant did not recommend any further workplace restrictions or treatment.
On May 25, 2018, the WCB advised the worker that their entitlement to wage loss and medical aid benefits would end on May 31, 2018. Further, the WCB advised the worker that it would not accept responsibility for their right shoulder difficulties. On July 24, 2018, the worker requested Review Office reconsider the WCB's decision, noting the diagnosis of chronic pain in their left leg, chest, ribs, and hip, as well as psychological issues after the accident of December 8, 2017. On August 2, 2018, Review Office determined the WCB should not accept responsibility for the worker's right shoulder difficulties and the worker was not entitled to wage loss and medical aid benefits after May 31, 2018. With respect to the worker's right shoulder, Review Office concluded the worker's right shoulder difficulties were not related to the workplace accident. Review Office accepted that the worker had functional range of motion in their left leg and no further treatment or medical restrictions were required for that injury. Review Office also noted the worker had not provided the WCB with information on medical attention for their psychological concerns.
On September 10, 2018, the worker submitted a July 21, 2018 report from their treating psychiatrist. The psychiatrist noted the worker's report of the December 8, 2017 workplace accident when they were "…beaten up by six people from a gang", who were wearing masks and punching them and their belief they were not going to survive. Further, the worker reported suffering "multiple fractures", which were treated. Since that time, the worker reported difficulty sleeping, being very scared, looking over their shoulder and feeling like they are being followed. The worker noted they were startled by noise and had nightmares regarding the incident. The psychiatrist noted the worker had a "…constellation of depressive symptoms…" and diagnosed post-traumatic stress disorder (“PTSD”) and major depressive disorder. The psychiatrist recommended medication and therapy and did not support a return to work.
A WCB psychological advisor reviewed the worker’s claim file on October 4, 2018. The psychological advisor noted differences between the initial reporting of the workplace accident by the worker and the description of the workplace accident reported to the worker's treating psychiatrist, and that the diagnosis of post-traumatic stress disorder was based on a description of the workplace accident "…that is highly discrepant with the details of the event that initially were reported". Further, the psychological advisor found the initial reporting of the incident would not meet Criterion A for a diagnosis of PTSD. The WCB psychological advisor also noted the worker did not report any issues with depression prior to July 21, 2018, and noted that at the time of the May 10, 2018 call-in examination, the worker made a good physical recovery. As such, the development of a depressive disorder two months later was not medically accounted for in relation to the workplace accident.
On October 17, 2018, the WCB advised the worker that their psychological difficulties would not be accepted. The worker requested reconsideration of the WCB's decision on October 23, 2018 and on December 4, 2018, Review Office upheld the WCB's decision responsibility would not be accepted for the worker's psychological difficulties.
The worker's representative submitted a June 15, 2019 report from the worker's treating psychiatrist and on August 15, 2019 requested Review Office reconsider the earlier decision. The representative noted the psychiatrist's opinion that while there may have been a discrepancy in the worker's reporting, the worker believed they experienced a traumatic event at the time of the accident, and it caused a psychological injury.
The WCB requested the WCB psychological consultant review the information provided by the worker's representative and on October 22, 2019, the consultant opined there was no change to their earlier opinion. A copy of the opinion was provided to all parties, with the worker's representative providing a further submission on October 29, 2019. On October 31, 2019, Review Office determined responsibility would not be accepted for the worker's psychological difficulties on the basis that the worker’s initial reporting of the workplace accident would not meet Criterion A of a diagnosis for PTSD as the worker was not exposed to a traumatic event or events that would be triggers for post-traumatic stress disorder.
The worker's representative filed an appeal with the Appeal Commission on July 19, 2022 and a hearing was arranged. 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 January 16, 2023, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect at the time of the accident are relevant.
The Act sets out the definition of an accident in s 1(1) as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(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, and
(c) an occupational disease,
and as a result of which a worker is injured….
The Act defines an occupational disease as including a disease arising out of and in the course of employment and that results from causes and conditions that trigger post-traumatic stress disorder but does not include an ordinary disease of life or stress, other than an acute reaction to a traumatic event.
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.
The WCB has established Policy 44.05.30 Adjudication of Psychological Injuries (the “Psychological Injury Policy”) to outline how claims for psychological injury will be adjudicated. This policy sets out that such claims 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. The Psychological Injury Policy specifically excludes from coverage psychological injuries that occur because of burn-out or the daily pressures or stressors of work as 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.
The worker appeared in the hearing represented by legal counsel who made an oral submission on behalf of the worker. The worker provided testimony through answers to questions posed by their counsel and by members of the appeal panel.
The worker’s position is that because of the compensable workplace accident of December 8, 2017, which the worker experienced as a traumatic event, the worker sustained not only a number of physical injuries, but also a psychological injury that has left the worker unable to return to work since that time. Because the worker’s psychological injury was sustained as a result of the workplace accident, the WCB should accept responsibility for the worker's psychological difficulties and the worker should be entitled to wage loss and medical aid benefits after May 31, 2018. Counsel confirmed that the worker’s appeal relates only to their entitlement to additional wage loss and medical aid benefits in relation to the psychological injury sustained arising out of the workplace accident.
Counsel for the worker submitted that the evidence supports that the worker developed psychological symptoms following their injury, noting that the worker felt threatened and fearful about the possibility of returning to their employment and as a result, moved to another community within weeks of the accident. Even now, the worker watches over their shoulder all the time and has difficulty in sleeping. The worker sought help from their physician who referred the worker to a psychiatrist but was unable to access counseling or therapy. The worker continues to follow up with the psychiatrist as needed. Counsel noted that the treating psychiatrist provided a diagnosis of PTSD which the WCB did not accept, but that regardless the specific diagnosis, the evidence indicates that the worker sustained a psychological injury as a result of the workplace attack and injury.
Counsel noted that the worker indicated there was a misunderstanding on the phone in the conversation they initially had with WCB about the accident. The worker described to the panel the events leading up to the accident of December 8, 2017 noting that they were warned by their manager to keep watch for the individuals who attacked them. The worker described 6 young people approaching them in an area of the building where there was no surveillance camera. The worker indicated that one individual punched them in a stairwell, causing the worker to fall down the stairs, resulting in the injuries noted on attending the local emergency department afterwards. The worker described trying to get away from the individuals and fearing for their safety. The worker described that the police came to the location and took a report. The worker was taken to the local emergency department for treatment and then sent home with pain relief medication. After a few hours the worker called friends for help to return to the hospital due to the pain they were experiencing.
The worker confirmed to the panel that they asked their doctor for help because of their sleep difficulties after the accident and the doctor referred them to the psychiatrist but the psychiatrist had a waiting list, and the worker could not see them until July 2018. In the meantime, the treating physician provided sleep medication to the worker.
The worker stated that they had two jobs at the time of the accident and lost all that income because of their injuries. The worker described being scared of the individuals who assaulted them and feared they would come to the worker’s home. For this reason, the worker moved away from the community where they were injured and left their work. The worker stated they did not quit their jobs and could return to their employment, but they did return their uniform. The worker noted that the accident employer is no longer in business, but that they could return to the other job when they are again in good health.
In sum, the worker’s position is that as a result of the accident on December 8, 2017 in which they were attacked and injured while in the course of doing their job, the worker sustained a psychological injury which has disabled the worker from their employment and therefore the WCB should accept responsibility for the worker’s psychological difficulties and the worker should be entitled to wage loss and medical aid beyond May 31, 2018 in relation to those difficulties.
The employer did not participate in the appeal.
The worker appealed from the Review Office decision that the WCB should not accept responsibility for the worker’s psychological difficulties in relation to the accident of December 8, 2017, and that the worker is not entitled to wage loss and medical aid benefits after May 31, 2018. As outlined in the submissions of the worker’s legal counsel in the hearing, the worker’s appeal is limited to their entitlement to wage loss and medical aid benefits after May 31, 2018 arising out of their psychological difficulties and as such, the panel did not consider whether the worker was entitled to any benefits relating to their other injuries arising from the workplace accident of December 8, 2017.
The panel reviewed and considered the evidence relating specifically to the worker’s psychological health. We noted, firstly, that there is no evidence that the worker experienced any psychological difficulties, whether diagnosed or undiagnosed, prior to the events of December 8, 2017. The worker’s testimony indicates that at the time of the workplace accident, they were working two jobs, with similar duties in each. The panel finds that this evidence supports that the worker was neither psychologically nor physically disabled from employment before that event.
The worker testified in respect of the accident at work on December 8, 2017 that they had an aggressive encounter with several people in the course of their work and that they were chased by those people in or into a stairwell, where one of the individuals punched the worker causing the worker to fall down the stairs, resulting in a broken leg as well as other soft tissue injuries. The panel acknowledges that there are various descriptions of this event contained within the file reporting. While there are some inconsistencies in the reporting of the number of individuals who chased and attacked the worker and the specific details of the assault, we are satisfied on the basis of the totality of the evidence, including the worker’s own testimony in the hearing, that in the course of carrying out their job duties, the worker was assaulted by an individual and that this caused the worker to fall down some stairs resulting in various injuries. We do not agree that the variations in the reporting of this event indicate that it did not occur or that the worker is untruthful, and we note that the WCB accepted the worker’s claim on the basis of their initial report. The panel also considered that the worker’s first language is not English and that they speak English with a heavy accent which may have added a layer of challenge in their communications about the event to the various report-takers in the course of this claim. Indeed, counsel for the worker also addressed this difficulty in their submissions, specifically in relation to the worker’s initial reporting to the WCB, noting that the worker felt the WCB employee misunderstood their report on the phone.
In reviewing the medical reporting following the accident, the panel noted that the treating emergency room physician recorded on December 27, 2017 that the worker is experiencing “anxiety and frustration over ongoing post traumatic pain” and demonstrating poor coping strategies following the injury. The same day, the worker advised the WCB that they were moving out of the community where the accident occurred as they were fearful for their safety. On December 28, 2017, the worker confirmed their new address to the WCB and again noted they were moving due to their health and for safety. The worker testified that they did not return to their job with the accident employer and also left their second job with that move, although the worker indicated their belief that they could return to that employment when they are recovered. We find that this evidence indicates that as early as a few weeks after the workplace assault, the worker was already reporting symptoms of a psychological nature that related to the circumstances of the accident, including anxiety and fearfulness. Further, in a meeting with the WCB on March 15, 2018, the worker reported ongoing difficulty sleeping due to pain. The panel noted that the April 27, 2018 WCB Healthcare Service Request notes that the worker has indicated they are afraid to return to work in any capacity. A memorandum to file dated June 1, 2018, indicates that in the course of a lengthy and heated in person conversation about the termination of their benefits, the worker asked the WCB whether any information had been received about the worker’s depression. The panel finds that these additional reports establish a continuity of symptomatic reporting in relation to the worker’s post-accident psychological symptoms, consistent with the later medical reporting.
The panel also considered the evidence provided by the treating psychiatrist. We note that worker testified that their treating family physician made a referral for psychiatric care after the worker sought treatment for their sleep difficulties following the accident and that they were not able to see the psychiatrist until July 2018. The psychiatrist’s reporting confirms that the worker was assessed on July 21, 2018, at which time the worker described being attacked by a number of people on December 8, 2017 resulting in multiple injuries. Further, the worker described having difficulty with sleeping since then, feeling very scared and looking over their shoulder when out with a feeling of being followed. The worker reported feeling anxious and easily startled with nightmares about the assault. The psychiatrist noted the worker reported depressive symptoms including impaired concentration, low energy, no sex drive, decreased appetite, poor sleep, poor self-esteem, feeling worthless and helpless, anhedonia and passive suicidal thoughts. Further, the worker denied any auditory or visual hallucinations, delusional symptoms or suicidal intent or plan. The psychiatrist noted the worker’s affect was “restricted and anxious” and that the worker appeared more anxious when talking about the events of December 8, 2017. Further, the worker indicated being fearful all the time and that they need to look over their shoulder and feel like the same thing is going to happen again. The psychiatrist provided a diagnosis of PTSD and Major Depressive Disorder, for which they prescribed medications and recommended cognitive behavioural therapy. In a further report dated June 15, 2019, the treating psychiatrist confirmed the worker’s diagnoses on the basis of the “constellation of mood and anxiety symptoms” mentioned in their July 2018 report. The psychiatrist further stated:
“I would like to clarify that it does not matter whether [the worker] was attacked by two or three or the six people, but it matter (sic) what [the worker] experienced at that point in time about [their] life and afterwards. Again, I would like to emphasize that there is a no doubt that [the worker] suffers with posttraumatic stress disorder and the major depressive disorder related to that incidents.”
The psychiatrist went on to note that while there had been some improvement in the worker’s depressive and anxiety symptoms in the intervening period, the worker continued to suffer with symptoms of PTSD and was unable to return to work at that time.
The panel also considered the opinion of the WCB psychological advisor provided on October 4, 2018. Upon reviewing the reports in the worker’s WCB claim file, the psychological advisor outlined that the description of the workplace accident provided by the worker to the treating psychiatrist is “highly discrepant with the details of the event that initially were reported” and noted that the initial reports would not meet Criterion A in respect of a diagnosis of PTSD. Further, with respect to the diagnosis of Major Depressive Disorder, the psychological advisor noted the absence of any reports of depressive symptoms until two months after the WCB determined the worker to have recovered from their injury does not support a cause and effect relationship between the worker’s accident and this diagnosis. On this basis, the WCB psychological advisor concluded that “there does not appear to be evidence to support that a psychological condition or psychiatric diagnosis resulted from the workplace event.”
The worker’s position, however, is that whatever the label applied to their psychological condition, the evidence supports a finding that as a result of the workplace assault and injuries sustained on December 8, 2017, they developed a psychological injury, and further that they reported symptoms and sought treatment for this condition prior to July 2018 as outlined in their evidence and as supported by the evidence of the treating psychiatrist. The panel finds this to be the case, based upon the totality of the evidence before us. We are satisfied that the evidence confirms that the worker experienced what they perceived as a significant and frightening event at work on December 8, 2017 when they were injured as a result of an assault. As a consequence, within a few weeks the worker uprooted themself, leaving behind two jobs and moved to a new community because they felt fearful in the community where the assault took place. Subsequently, and while still recovering from their physical injuries, the worker sought treatment from a family physician for sleep difficulties and was referred to a psychiatrist. Further, the evidence confirms that on more than one occasion between January and July 2018, the worker advised the WCB of their fear of returning to work and referenced depressive symptoms, and there is no evidence before the panel of any pre-existing psychological condition, whether diagnosed or undiagnosed. As such, the panel accepts and finds that as a result of the workplace accident and the physical injuries sustained in that event, the worker developed a psychological injury which was not diagnosed until they were first assessed by the treating psychiatrist in July 2018. The panel finds that worker experienced the assault of December 8, 2017 as a significant event, both in terms of the physical injuries sustained and resulting pain and other symptoms, as well as in terms of their psychological wellbeing and that but for the circumstances of the accident and injury resulting, the worker would not have developed the psychological symptoms reported by the treating psychiatrist in July 2018.
We further note that to the date of the hearing, the worker was not able to access any psychological supports other than the medications prescribed by the treating psychiatrist and that both the worker and their treating psychiatrist indicates that this is an ongoing psychological condition. The panel considered the worker’s position that they are entitled to additional medical aid and wage loss benefits in respect of the psychological condition; however, as the matter of the worker’s entitlements to benefits arising from their psychological condition has not been previously adjudicated by the WCB, the panel makes no findings with respect to the second question before us and refers this question back to the WCB for further adjudication.
On the basis of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the WCB should accept responsibility for the worker's psychological difficulties as a consequence of the December 8, 2017 accident. The worker’s appeal is granted, in part.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of February, 2023