The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

Date of Accident - November 2, 2018:

1. Their psychological difficulties occurring in early 2021 should not be accepted as a recurrence of the November 2, 2018 accident; and 

2. They are not entitled to wage loss benefits for November 9, 2018 and November 21, 2018 and December 7, 2018 and December 9, 2018.

Date of Accident - May 7, 2021:

Their claim is not acceptable.

A videoconference hearing was held on February 7, 2023 to consider the worker's appeal.

Issue

Date of Accident - November 2, 2018:

1. Whether or not the worker's psychological difficulties occurring in early 2021 should be accepted as a recurrence of the November 2, 2018 accident; and 

2. Whether or not the worker is entitled to wage loss benefits for November 9, 2018 and November 21, 2018 and December 7, 2018 and December 9, 2018.

Date of Accident - May 7, 2021:

Whether or not the claim is acceptable.

Decision

Date of Accident - November 2, 2018:

1. The worker's psychological difficulties occurring in early 2021 should not be accepted as a recurrence of the November 2, 2018 accident; and 

2. The worker is entitled to wage loss benefits for November 9, 2018 and November 21, 2018 and December 7, 2018 and December 9, 2018.

Date of Accident - May 7, 2021:

The claim is acceptable.

Background

Date of Accident – November 2, 2018

The worker filed a Worker Incident Report with the WCB on January 4, 2019, reporting a psychological injury that occurred at work on November 2, 2018 as a result of multiple traumatic incidents in the previous 12 months. The worker described they "…have been feeling anxious and have had issues with sleeping. Started seeing a psychologist recently." The worker noted they had not yet spoken to the employer about their claim but would be speaking with their supervisor on their next scheduled shift. The worker also provided a list of time missed from work due to their injury.

On January 9, 2019, the WCB spoke with the worker to discuss their claim. The worker provided the WCB with details of a traumatic incident they were involved with on November 2, 2018, along with details of other incidents that had occurred. The worker described having difficulty controlling their emotions and having inappropriate emotional responses since the November 2, 2018 incident. The worker confirmed they reported their injury to their supervisor on January 4, 2019 and advised the supervisor they had been experiencing difficulties since November 2, 2018 and were seeking treatment from a psychologist. The worker further confirmed they had not discussed their difficulties with co-workers, but had spoken to a co-worker who facilitates a mental health course approximately two to three weeks after the November 2, 2018 incident, and the co-worker provided resources and recommended further treatment. The worker advised the WCB they had missed work on November 9 and 21, and December 7, 9, and 20, 2018 due to their difficulties. The worker further advised that on November 22, 2018, their family physician had recommended they see a counsellor, but they chose not to see the recommended counsellor and self-referred themselves to a psychologist. The worker denied experiencing any other work-related or personal stressors or having experienced any past trauma or violence in their personal life.

On January 14, 2019, the employer provided the WCB with an Employer's Accident Report noting the worker had been exposed to a traumatic event at work on November 2, 2018, and that event was one of "…many violent situations…" the worker had been exposed to in approximately 12 months. The employer noted the incident left the worker feeling "…very distraught and angry both at the time of the incident and following his shift, those feelings have not gone away. [The worker] has been having trouble sleeping and controlling emotions."

On January 17, 2019, the WCB received a copy of a report from the worker's November 22, 2018 appointment with their family physician. It was noted that the worker reported three traumatic events at work in the past year and generally increased violence resulting in significant anxiety and "…increased anger manifesting with arguments at home." The treating physician noted increased psychomotor activity, reduced eye contract, agitation and depressed affect, diagnosed the worker with work stress, and referred the worker to a psychologist.

The WCB gathered further information from the employer regarding the worker's involvement in various incidents. On February 1, 2019, the WCB received a January 31, 2019 assessment report from the worker's treating psychologist. The psychologist provided a detailed report of their sessions with the worker, including the worker's past history and their assessment. The psychologist provided a diagnosis of Posttraumatic Stress Disorder (PTSD) and Major Depressive Disorder, noting the severity for both diagnoses was in the moderate range.

On February 27, 2019, the WCB requested a WCB psychological consultant review the worker's file. On March 26, 2019, the consultant opined that the worker's diagnoses were "…Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder," and stated that "On balance, given [the worker] has experienced several significant non-work stressors and losses recently, the Major Depressive Disorder likely is related to those events and losses. The PTSD appears to be related to his experiences at the workplace."

On April 4, 2019, the worker's WCB adjudicator advised the worker by telephone that their claim was accepted for PTSD and 10 additional sessions were approved with the treating psychologist. The adjudicator further advised that the worker's time loss would not be accepted as there was no medical evidence to support the time loss was related to the workplace injury; the evidence only indicated that they called in sick and the worker did not make any ongoing complaints to the employer or co-workers about their difficulties. On April 5, 2019, the WCB provided the worker with a formal letter confirming their decision.

On May 21, 2019, the WCB received a progress report from the worker's treating psychologist. The psychologist reported the worker's participation in the sessions and progress towards recovery, and reported the worker's depression and PTSD symptoms were both in remission at that time. On October 5, 2019, the WCB received a final report from the treating psychologist, who noted the worker was an active participant in the treatment and had made significant gains in addressing their depression and PTSD symptoms, both of which were again noted to be in remission at that time. The treating psychologist opined that the worker had a "…good prognosis for recovery of his functional abilities and to maintain fulltime employment. He presents as having insight into his difficulties, willingness to engage in treatment and to improve his self-care, good social supports, and a positive attitude toward his work." On October 8, 2019, the WCB provided the worker with a letter indicating they would not be taking any further action on their claim.

On May 13, 2021, the worker contacted the WCB to advise their psychological injury had never fully recovered and had become worse over the last while. On May 18, 2021, the WCB contacted the worker to gather further information. The worker advised that approximately two months previously, they started to feel very stressed, with lots of anxiety, very depressed and "down/low mood" as there had been increasing incidents of violence at work over the last several months. The worker noted they felt they were not reacting to situations at work as they normally would, had trouble focusing and concentrating, and had been taking a lot of time off work. When the WCB asked how they had been doing since being discharged from treatment in October 2019, the worker advised that they had been doing fairly well, were able to go to work and do their job, but noticed a change in the fall of 2020 with the increased stress and violence in the workplace. They continued to work as long as they could, but when they felt they could not handle it anymore, they sought medical treatment from their family physician on May 7, 2021. At that time, the family physician placed the worker off work for a month, and referred them back to the psychologist. The worker was not able to provide a specific event or trigger for their increased symptoms, and reported symptoms of sleeping too much, lacking motivation, and having nightmares about work. The worker noted they had advised their supervisor of their difficulties. On May 21, 2021, the worker provided the WCB with a copy of the sick note from their treating physician, placing them off work for 4 weeks due to "…depressive symptoms related to stress."

On May 26, 2021, the worker's supervisor confirmed the worker had discussed their ongoing psychological issues with them, and had indicated they were seeking treatment and had been placed off work due to those issues. The supervisor advised that the worker had not informed them of a specific incident that brought on those difficulties and further advised there was no specific measurable scale for rating increased stress or violence in their workplace.

The WCB received a report from the worker's treating psychologist dated June 13, 2021. The psychologist summarized the worker's previous treatment and noted that by October 2019, the worker was determined to be in remission of their PTSD and depression. The psychologist noted the worker contacted them in January 2021, noting an increase in symptoms, and the psychologist received a referral from the worker's family physician dated January 14, 2021. The psychologist opined that the worker's initial presenting concerns dealt primarily with personal issues the worker was experiencing, and their first few sessions focused on treatment for those issues. The treating psychologist noted that more recently, the worker had reported "…a significant exacerbation of his depression and anxiety symptoms" and opined that the worker's difficulties appeared to be a "…relapse of his previous depression and PTSD symptoms, triggered and/or exacerbated by the stresses over the past year associated with the COVID-19 pandemic…" and personal issues. The psychologist further opined that the assessment results suggested the worker met the criteria for PTSD and Major Depressive Disorder, Recurrent episode, Moderate.

On June 16, 2021, the WCB requested that the WCB psychological consultant review the worker's file, and on July 1, 2021, following an email exchange with the worker's treating psychologist, the WCB consultant placed their opinion to the worker's file. The consultant opined, based on the report and information received from the treating psychologist, that the worker's current diagnosis was Major Depressive Disorder, recurrent, moderate, which arose in response to very significant personal stressors, and were not materially related to work. The WCB psychological consultant further noted the worker was experiencing symptoms of anxiety and concern about workplace safety, but opined that those symptoms would be subsumed under the Major Depressive Disorder diagnosis and did not meet the criteria for a diagnosis of PTSD. The consultant noted the worker's treating psychologist advised in an email, that they had provided a diagnosis of PTSD and depression as these had been diagnosed previously, but that the worker's difficulties could also be diagnosed as Other Specific Trauma and Stressor Related Disorder or Adjustment Disorder if it was felt the worker did not meet the full PTSD criteria. The consultant opined that as the worker's current difficulties did not appear to be related to a specific trauma,"…the most appropriate diagnosis would be Adjustment Disorder, with mixed mood symptoms." The consultant further opined that due to the worker's previous PTSD diagnosis, they were likely "…vulnerable to heightened anxiety in response to feelings of being unsafe in the workplace," and indicated that it would be reasonable to support additional sessions with the psychologist. On July 5, 2021, the WCB advised the worker that their current psychological difficulties were not accepted as a recurrence of their November 2, 2018 workplace accident.

On August 20, 2021, the worker requested the WCB reconsider the decision to not accept the recurrence of their psychological difficulties. Additional information was gathered by the WCB, and the worker's treating psychologist provided a report in support of the worker's request to review the decision. The psychologist noted that the worker was "…currently struggling with symptoms related to his previous injury and that he has been experiencing these difficulties for several months now…" and opined that based on their clinical work with the worker, the worker had suffered a relapse of their PTSD symptoms. The treating psychologist opined that the worker "…may have completed his previous psychological treatment too early: although his symptoms were in remission at the time, it appears that he continued to have some trauma-related cognitions…and continued to engage in some anxiety-avoidant behaviours – and that these, over time, increased his anxiety and PTSD symptoms." The psychologist further opined that while the worker initially sought treatment for help with stress due to personal issues, compounded by work-related stress due to the COVID-19 pandemic, it was apparent the worker was experiencing symptoms of PTSD at that time. The psychologist went on to indicate how the worker met the criteria for a diagnosis of PTSD, including intrusion symptoms; persistent avoidance of stimuli associated with the events; negative alterations in cognitions and mood; and marked alterations in arousal and reactivity.

After receiving clarification with respect to some details in the August 26, 2021 report from the worker's treating psychologist and the employer, the WCB requested that the WCB psychological consultant again review the worker's file. On September 16, 2021, the consultant advised that the new information did not change their July 1, 2021 opinion that the worker's "…adjustment-related symptoms and Major Depressive Disorder related to a number of significant personal stressors" and their reported anxiety and ideation was related to the worker's concern about the safety of the workplace and their personal safety within that workplace. The consultant further opined that a recurrence of PTSD was not supported by the medical evidence on file. On September 16, 2021, the WCB advised the worker that there would be no change to their decision that a recurrence of their psychological difficulties was not accepted.

Date of Accident – May 7, 2021

On July 6, 2021, the worker submitted a Worker Incident Report to the WCB reporting a psychological injury that occurred at work on May 7, 2021, noting they reported it to the employer and their treating psychologist on May 8, 2021. The worker indicated they had been experiencing increased stress at work due to the COVID-19 pandemic and detailed several violent and traumatic incidents they had witnessed at work since April 2020. The worker also described an incident that occurred at work on April 17, 2021, noting the incident caused an increase in their anxiety symptoms, and by May 7, 2021 they felt they "…could no longer take it or work anymore." The worker reported still having nightmares, feeling depressed and wanting to sleep all the time. On July 6, 2021, the worker contacted the WCB to add additional information to their report. The worker advised that on May 5, 2021, they had a verbal altercation with a resident, which was out of character for them.

On July 9, 2021, the WCB received a progress report from the worker's family physician for an appointment on May 7, 2021. The physician reported the worker's complaints of feeling very anxious, continuing to have frequent violent terrifying nightmares about work and feeling "dead inside" but not suicidal. On examination, the family physician found the worker was "hypervigilant, agitated, poor eye contact, depressed mood" and remained very symptomatic. The physician referred the worker back to the treating psychologist and placed the worker off work for 4 weeks.

On July 20, 2021, the WCB contacted the worker to discuss the claim. The worker confirmed they had been feeling a lot of stress due to having to deal with the COVID-19 pandemic at work and that tensions had been increasing due to the pandemic. The worker further advised there had been some changes at work that had caused an increase in violent incidents and noted an April 16, 2020 incident where a co-worker was assaulted. The worker also confirmed an incident that occurred on April 17, 2021 and noted that while they were not at work on that date, they could feel the tension increasing in the days prior and the possibility of a violent incident in their workplace still affected them. The worker then described the incident with a resident on May 5, 2021 where they confronted a resident and put themselves and their co-workers in danger with their overreaction to the incident. The worker noted they knew at that time they were having difficulties which they still felt were related to their 2018 claim, but the WCB denied this was a recurrence and they were advised to file a new WCB claim. The worker described their current symptoms as having nightmares, feeling depressed, wanting to sleep all the time, and experiencing a loss of appetite.

That same day, the WCB contacted the worker's supervisor to discuss the worker's reporting of the claim. The supervisor advised that they had not observed any of the worker's difficulties, but noted the worker advised them that the years of witnessing traumatic events at work had built up and were causing them psychological difficulties, and the verbal altercation with the resident made them realize they required treatment.

On July 23, 2021, the worker contacted the WCB to provide further information about their claim. The WCB advised they had contacted their supervisor to obtain additional information with respect to their claim and the worker provided further details regarding the confrontation incident. The worker confirmed the incident with the resident took place on May 2, 2021, and no report was completed regarding the incident. The worker provided the WCB with names of co-workers who witnessed the incident. The worker again stated their reaction to the incident was out of character for them and that they put themselves and their co-workers in a potentially dangerous situation with their reaction. The worker further noted it was their actions and behaviour, in addition to the other stressors they were experiencing, that made them realize their difficulties were similar to the ones they had previously. The WCB contacted the worker's co-workers who witnessed the incident with the resident. On August 17, 2021, both co-workers confirmed the incident as described by the worker and advised the WCB that the worker's reaction appeared to be out of character for the worker.

On August 19, 2021, the WCB advised the worker that their claim was not acceptable. The WCB advised that based on the medical and other evidence on the worker's file, they were unable to relate the worker's current symptoms to the incident that occurred at work on May 7, 2021.

Both Claims

On November 1, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that they continued to experience increased anxiety and recurring nightmares regarding the traumatic and violent incidents they witnessed at work and had not recovered from their diagnosed PTSD. The worker also submitted they had an altercation with a resident that could have endangered their life and the lives of their co-workers, and felt they required further benefits as a result.

On December 6, 2021, Review Office determined the worker's recurrent injury related to the November 2, 2018 accident date was not accepted and their claim related to the May 7, 2021 accident date was not acceptable. Review Office noted that the worker was in remission of their initial PTSD and Major Depressive Disorder diagnosis by October 2019, and their initial reporting of increased difficulties and symptoms in January 2021 related to significant personal stressors the worker was experiencing at that time and work issues. Review Office further found the evidence did not support the worker's current difficulties were related to an incident that occurred on May 7, 2021, and the worker's claim relating to that incident was therefore not acceptable.

Date of Accident – November 2, 2018

On April 27, 2022, the worker's representative requested that Review Office reconsider the WCB's April 5, 2019 decision that the worker was not entitled to wage loss benefits for November 9 and 21, and December 7, 9, and 20, 2018. The representative submitted that the worker experienced psychological difficulties on November 9 and 21 and December 7 and 9, 2018 and booked sick time off work due to those difficulties, and they attended for their first assessment with their treating psychologist on December 20, 2018. The representative submitted that the worker should therefore be entitled to wage loss benefits for those dates.

On June 14, 2022, Review Office determined that the worker was entitled to wage loss benefits for December 20, 2018, as he had a medical reason for missing work given this was the first date of his psychological assessment. Review Office found that the other "random" dates of missed time were not related to the worker's psychological difficulties as the worker attended work in between those dates, and the treating physician noted on November 22, 2018 that the worker was not disabled from returning to work and did not require restrictions. Review Office therefore concluded that the worker's request was partially accepted as there was entitlement to wage loss benefits for December 20, 2018.

Both Claims

On July 12, 2022, the worker's representative filed an appeal to the Appeal Commission from Review Office's December 6, 2021 and June 14, 2022 decisions relating to the November 2, 2018 accident date. On January 19, 2023, the worker's representative contacted the Appeal Commission and requested that the issues under appeal be expanded to include whether the claim related to the May 7, 2021 accident date was acceptable. On January 20, 2023, the Appeal Commission confirmed the issues on appeal, and a hearing was arranged for February 7, 2023.

Reasons

Applicable Legislation and Policy

As the worker is employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA").

Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "…a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to subsection 4(2) of the GECA, a federal government employee who is usually employed in Manitoba is entitled to receive compensation at the same rate and under the same conditions as are provided under The Workers Compensation Act of Manitoba (the "WCA").

The Appeal Commission and its panels are bound by the WCA, regulations and policies of the WCB's Board of Directors. The provisions of the WCA which were in effect as at the date of the worker's accidents are applicable.

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

"Accident" is defined in subsection 1(1) of the WCA as:

…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, 

(b) 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, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

Subsection 4(2) of the WCA 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 WCA 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.

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

Under the heading of "Non-Compensable Psychological Injuries", the Policy provides, in part, as follows:

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.

WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences), deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity." The Policy distinguishes between a new and separate accident and the recurring effects of a previous injury or illness, and states, in part, that:

…The distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury…

The WCB will consider that the current loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to a previous injury or illness…

If there was an intervening incident, event, or exposure deemed capable of either causing the injury, or aggravating a previous susceptibility to injury, the WCB will also consider the current loss of earning capacity the result of a new and separate accident.

Worker's Position

The worker was represented by a worker advisor, who submitted additional documentation in advance of the hearing and made a presentation to the panel. The worker and his representative responded to questions from the panel.

The worker's position with respect to the issues on appeal was that the worker suffered a recurrence of their work-related psychological injury in April 2021; or alternatively, that the worker's 2021 claim should be accepted as a new claim. The worker's further position with respect to the November 2, 2018 workplace accident was that their loss of earning capacity in November and December 2018 was causally related to that accident and they are entitled to wage loss benefits on the listed dates.

The worker's representative submitted that the worker has been exposed to numerous traumatic events in the workplace throughout their career, including a very significant event in 2009. The evidence showed that the worker had a present and active role in that event.

The worker's representative noted that the November 2, 2018 claim was accepted for PTSD. The representative submitted that the evidence supports the worker suffered a recurrence of their psychological injury in April 2021. It was submitted that the trigger event for the increase in the worker's symptoms was an incident on April 17, 2021, which was reminiscent of a violent and traumatic incident which occurred in 2009. Subsequently, between April 19 and May 9, 2021, the worker attended 5 out of 12 scheduled shifts, with his last shift worked being May 2, 2021, when the worker had a verbal altercation with a resident and realized they needed to seek professional help.

The worker's representative noted that Review Office heavily relied in their decision on their belief that the worker was not present at the 2009 incident because the employer did not have a record confirming his presence. The representative submitted that the worker had been consistent in his statements regarding his involvement in the 2009 incident, and that documentation confirmed the worker was directly involved in that incident. The representative noted that in providing their opinion on the 2021 claim, the WCB psychological consultant had indicated that the worker was not directly involved in the 2009 incident and that the incident was not a factor in the accepted 2018 claim, and the consultant's opinion was therefore based on incorrect information.

The worker's representative submitted that any non-work-related issues were not significant enough to cause the worker's psychological condition in May 2021, and that the triggering event was the April 17, 2021 workplace event. The representative acknowledged that the worker had experienced personal issues in 2020 and saw the psychologist with respect to those issues, but submitted that the evidence shows he was able to continue working up through to April 17, 2021 when the incident occurred. The representative noted the worker's PTSD had been described as being in remission, but this did not mean they had recovered, and the condition was always present under the surface.

The worker's representative submitted that if it was determined that the worker did not suffer a recurrence of a psychological injury, the 2021 claim should be accepted as a new claim. The representative noted the worker had a long history of being exposed to violent experiences in the workplace, including the very significant event in 2009, which rendered them more vulnerable to injury. The representative submitted that the April 17, 2021 incident met the definition of an accident under the legislation, and should be accepted as a compensable injury.

With respect to wage loss benefits in November and December 2018, the worker's representative further submitted that the worker's loss of earning capacity in those months was causally related to the November 2, 2018 accident. The representative noted that while the worker was not present when the incident occurred, they had to deal with the residents who were involved in that incident immediately after it occurred, and were deeply disturbed by their demeanour. The worker continued trying to work, but called in sick on a few days due to significant anxiety, which was confirmed in the psychologist's January 31, 2019 report. The representative submitted that the November 2, 2018 events led the worker to seek psychological treatment, and the WCB accepted the diagnosis of PTSD and that the worker required treatment for their PTSD. The representative therefore submitted that evidence supports the worker is entitled to wage loss benefits on the listed dates.

Finally, the worker's representative requested that if it was determined that the worker suffered a recurrence, or a new injury, in April or May 2021, the panel would recommend the worker be entitled to wage loss and medical aid benefits until at least October 28, 2021 when the worker returned to work.

Employer's Position

The employer was represented by a senior manager, who participated in the hearing by teleconference. The employer's representative made a submission at the hearing and responded to questions from the panel.

The employer's representative indicated on behalf of the employer that they supported the worker on their appeal.

The employer's representative noted that while information which was originally submitted indicated the worker was not present at the incident that occurred in 2009, further information which had since been provided, including an Observation Report and a note from a manager and a co-worker who both attended at that event, confirmed that the worker was present at that incident. The representative confirmed that they had no reason to doubt the worker was there for that incident. The representative further confirmed that this was a very violent and traumatic incident for all of the workers who were involved. The representative noted that the incident went on for several hours, which would have been an extremely stressful and high risk situation for all of the workers.

The employer's representative also confirmed that there is a lot of violence in the workplace, and the incidents which had been outlined occurred. The representative said that they did not disagree with anything that had been described.

The employer's representative confirmed that they were of the view that the worker's claim for psychological difficulties should have been accepted as a recurrence of his PTSD injury, or if not, as a new workplace injury. The representative further concluded that they supported the worker's entitlement to wage loss benefits for the dates at issue.

Analysis

Date of Accident – November 2, 2018:

Issue 1: Whether or not the worker's psychological difficulties occurring in early 2021 should be accepted as a recurrence of the November 2, 2018 accident.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's psychological difficulties in early 2021 were causally related to their November 2, 2018 workplace accident or injury. The panel is unable to make that finding for the reasons that follow.

Based on our review of all of the evidence and submissions which are before us, the panel is not satisfied, on a balance of probabilities, that the worker's psychological difficulties in early 2021 are acceptable as a recurrence of the November 2, 2018 accident.

In this regard, the evidence indicates that the worker had returned to work and was medically able to perform his regular duties following the November 2, 2018 accident. The panel acknowledges the worker's position that their PTSD and symptoms had been described as being in remission and that this did not mean they had recovered, but is not convinced that the evidence establishes the worker had ongoing difficulties related to, or had not recovered from, the November 2, 2018 incident. In the circumstances, the panel finds that the November 2018 accident was the not the dominant cause of, or causally related to, the worker's increased symptoms or psychological difficulties in early 2021.

The panel notes that while the worker also appears to be suggesting that there is a causal connection between the 2009 and November 2018 workplace incident, the panel is unable to establish such a connection based on the evidence and the issues which are before us.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to wage loss benefits for November 9, 2018 and November 21, 2018 and December 7, 2018 and December 9, 2018.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity on the above-noted dates as a result of their November 2, 2018 workplace injury. The panel is able to make that finding for the reasons that follow.

Based on the evidence, the panel is satisfied that the worker is entitled to wage loss benefits for the listed dates, being November 9 and 21 and December 7 and 9, 2018.

In arriving at the conclusion, the panel notes that the dates which are identified are relatively close in time to the November 2, 2018 incident which led to the worker's claim. The worker testified that he was trying to stay at work in the days following that event, but called in sick on the dates he indicated due to anxiety and stress. The panel accepts the worker's evidence and that they were struggling with what was eventually diagnosed and accepted by the WCB as PTSD. While no doctor's notes were obtained for these absences, the employer indicated that they did not require the worker to obtain a note or to provide a reason as to why they were absent. The panel further notes that the employer supported the worker's position on this issue and that there was nothing to indicate that the worker's absence was not related to the workplace accident or injury.

The panel therefore finds, on a balance of probabilities, that the worker suffered a loss of earning capacity as a result of the November 2, 2018 workplace injury and is entitled to wage loss benefits for November 9 and 21, 2018 and December 7 and 9, 2018.

The worker's appeal on this issue is allowed.

Date of Accident – May 7, 2021

Issue: Whether or not the claim is acceptable.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury as a result of an accident arising out of and in the course of his employment. For the reasons that follow, the panel is able to make that finding.

Based on the evidence, the panel is satisfied that evidence supports that the April 17, 2021 workplace event was a new incident, and the worker suffered a psychological injury as a result of that incident.

The evidence indicates that the April 17, 2021 incident was a significant event which was recognized and dealt with earlier and did not become as serious as the 2009 incident. The evidence also indicates that there were numerous similarities between the two incidents, and is satisfied that the circumstances surrounding, and events relating to the April 17, 2021 incident, could trigger a psychological injury.

The worker described the very noticeable and distinctive increase in tension in the workplace at in the time surrounding the April 17, 2021 incident, which was similar to reports of what had been happened around the time of the 2009 incident, and noted that the threat of violence did not end when the incident was averted.

While there is reference to the May 2, 2021 incident (originally indicated as having occurred on May 7, 2021) where the worker had a verbal altercation with a resident, the panel is satisfied that this was not a triggering incident for the worker's symptoms but was, as they indicated, the point at which he realized that he was experiencing difficulties and needed to seek treatment.

The worker sought medical attention from their family physician that same day, with complaints of feeling anxious, having frequent violent nightmares about work and feeling dead inside, and the family physician placed them off work and referred the worker back to the treating psychologist.

The panel accepts that there is a lot of violence in the workplace, and that the worker's exposure to that violence over the years had made them more vulnerable or susceptible to injury. In the circumstances, the panel finds, on a balance of probabilities, that the worker suffered an injury as a result of an accident arising out of and in the course of their employment on April 17, 2021, and that the worker's claim is acceptable.

The worker's appeal on this issue is allowed.

Footnotes

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

Recording Secretary, J. Lee

Panel Members

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

Signed at Winnipeg this 6th day of April, 2023