Decision #38/23 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits beyond April 5, 2021. A videoconference hearing was held on February 13, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after April 5, 2021 in relation to the April 25, 2020 accident.

Decision

The worker is entitled to benefits after April 5, 2021 in relation to the April 25, 2020 accident.

Background

On May 3, 2020, the WCB received a Notice of Injury to Employer form from the worker, reporting a mental health injury after the worker was threatened by a resident on April 25, 2020. The Employer's Incident Report, received the same date, described the worker being threatened and having an object thrown at her, after which the worker booked time off work indicating she was sick.

On May 4, 2020, the worker provided her Worker Incident Report, describing further details about the April 25, 2020 incident and noting she left her shift a few hours early that day to calm herself down. The worker referred to the incident as being "…very intense…" but noted she was able to get away from the situation. The worker advised she had been speaking with a counsellor regarding nightmares she was experiencing and had missed shifts since April 26, 2020 due to the incident.

On May 5, 2020, a WCB adjudicator contacted the worker to discuss her claim. The adjudicator advised the worker that her claim was accepted for an acute stress reaction, which would typically resolve in days to a few weeks. The worker confirmed she missed 2.5 hours of work on the day of the incident and the full day on April 26, 2020, and that she remained off work currently. The worker confirmed she sought medical treatment on April 27, 2020. The worker described her current symptoms of issues with sleep, nightmares, feeling anxious and stressed, and feeling tense throughout the day and night.

On May 6, 2020, the WCB received a copy of the worker's Doctor First Report for the April 27, 2020 appointment with her family physician, where the physician noted the worker's complaints of nightmares and flashbacks reliving the April 25, 2020 event and the physician's findings of "increased arousal, irritability, insomnia." The physician diagnosed the worker with "Acute Stress ??PTSD." The physician referred the worker for mental health supports and recommended she remain off work. In a further report of a follow-up appointment on May 6, 2020, the physician noted the worker continued to experience the same symptoms and recommended further time off work.

On May 12, 2020, the worker provided the WCB with a status update, advising she was experiencing an increase in personal stressors and was seeking further medical treatment. On May 27, 2020, the WCB received further information from the worker's treating psychiatrist. The psychiatrist stated he had been seeing the worker since the fall of 2019, at which time the worker had been suffering from anxiety and depression, and noted the worker had "Severe Stress Reaction in 2019." The psychiatrist further noted the worker had PTSD symptoms since the end of April 2020, including anxiety, panic attacks, depressed mood, flashbacks to the traumatic event at work, insomnia and hypervigilance. The psychiatrist described the treatment plan for the worker and noted she required time off from work in order to recover.

The worker continued to see her treating family physician and treating psychiatrist, who noted ongoing and continued symptoms, including anxiety, depression, flashbacks, nightmares, and insomnia. In a further report from the treating psychiatrist dated July 22, 2020, the psychiatrist noted the worker's recovery would take time and he expected it would not occur sooner than January 1, 2021.

On August 10, 2020, the worker's file was reviewed by a WCB psychological consultant, who opined that the worker's diagnosis was an acute stress reaction to a traumatic workplace event, in the presence of pre-existing anxiety and depression. The consultant noted the treating psychiatrist opined the worker would need to be off work until at least January 2021, but did not provide a medical rationale for his opinion. The consultant further noted that there was a lack of information from the worker's family physician and the counsellor the worker had been seeing, and the worker was currently experiencing significant personal stressors.

In a memorandum to file on the same date, the WCB psychological consultant noted she spoke with the worker's family physician by telephone with respect to the lack of medical information on file. The physician confirmed the worker refused to provide her consent to releasing the requested information to the WCB and indicated he understood the lack of information made it difficult to adjudicate the worker's claim. The physician agreed with the WCB's recommendation that the worker should be referred to a psychologist and asked the WCB to make that referral.

The WCB subsequently arranged for the worker to see a psychologist, approving four sessions for an initial assessment and treatment, which the worker attended on September 30 and October 7, 14 and 28, 2020. In a report dated November 12, 2020, the psychologist provided a detailed background of the worker's difficulties and opined the worker did not meet the criteria for a diagnosis of PTSD as a result of the April 25, 2020 workplace incident. The psychologist noted it was their understanding the worker was already experiencing heightened stress at the time of the workplace incident due to her life circumstances, which reduced her ability to cope with the workplace incident. The psychologist further noted the worker indicated she had been functioning fairly well prior to the workplace incident, but the incident combined with the significant external stressors overwhelmed her and led to her mental health difficulties. The psychologist opined that given the number and severity of the worker's current symptoms, a return to work would not be successful at that time. The psychologist recommended an additional six sessions to address the worker's symptoms and help her develop effective coping strategies.

On November 24, 2020, the WCB psychological consultant again reviewed the worker's file. The consultant noted the treating psychologist's opinion that the worker was experiencing symptoms of stress and anxiety, partly related to the workplace incident, in combination with significant personal stressors that were "…exacerbated by the frightening incident at work," and opined that "Psychological symptoms that were present previously appear to have been heightened somewhat in relation to the workplace incident." The consultant agreed that the worker was currently unable to return to work, and opined that it appeared reasonable to support four to six weekly treatment sessions, and to reassess the worker's ability to return to work after four sessions. By letter dated November 24, 2020, the WCB advised the psychologist and the worker that four additional treatment sessions had been approved.

On February 8, 2021, following four treatment sessions, the worker's treating psychologist provided the WCB with a further report. The psychologist noted the worker "…struggled to engage in treatment and had trouble implementing many of the aforementioned strategies…" and that as such, the worker had not experienced significant improvements in her mental health and overall functioning. The worker reported to the psychologist that her life felt chaotic, particularly with respect to her personal stressors, and consistently felt it difficult to commit to the work set out by the psychologist. The psychologist noted the worker described continuing difficulties with sleep as the primary reason every task was difficult and she felt overwhelmed, and reported she was particularly distressed by worsening nightmares of the workplace event.

The psychologist reported that in speaking with the worker about returning to work, the worker indicated she did not believe she was currently capable of performing her job duties but wanted to return to work eventually. The psychologist agreed with the worker's assessment of her ability to perform her job duties and recommended further sessions to specifically deal with the worker's nightmares that were making it difficult for her to sleep. The psychologist further noted the worker's assertion that she had PTSD as a result of the April 25, 2020 workplace incident, which diagnosis was supported by her treating family physician and psychiatrist. The psychologist maintained, however, that based on their original assessment, the worker did not meet the criteria for a PTSD diagnosis and noted there had been no evidence since then to change that assessment.

On March 10, 2021, the worker attended a virtual call-in examination with a WCB psychiatric consultant. After interviewing the worker, the consultant opined that given the history the worker provided and the treating healthcare providers' reports, it was unlikely the worker had experienced remission or recovery from her depressive symptoms from the fall of 2019 by the time of the April 25, 2020 workplace incident. The consultant opined that the worker was therefore vulnerable to developing a trauma-related disorder. The consultant went on to opine that the worker's symptoms were not consistent with the natural history of PTSD, including the frequency and content of the flashbacks and nightmares reported by the worker, as flashbacks and nightmares associated with PTSD generally fluctuate in intensity and are not always about the same incident, which was not what the worker reported. The consultant therefore opined that the worker's current presentation was related to a combination of factors, including her pre-existing depression and ongoing significant personal issues, and was not materially accounted for in relation to the April 25, 2020 workplace accident. The consultant noted this was supported by the February 8, 2021 report of the treating psychologist, who opined that the worker reported "…significant non-claim related stressors and related distress" and did not meet the criteria for PTSD.

The WCB psychiatric consultant further noted the worker reported the main reason she could not return to work was her problem with focusing and concentrating, and opined that those difficulties were known symptoms of depression. No further treatment or workplace restrictions were recommended, as the worker's current difficulties were determined not to be materially accounted for by the workplace incident. On March 26, 2021, the WCB advised the worker that she was not entitled to benefits after April 5, 2021 as they had determined her current presentation was not accounted for in relation to her work-related injury.

On April 15, 2021, the worker's union representative requested that Review Office reconsider the WCB's decision. The worker's representative argued that the evidence on file supported the worker continued to suffer ongoing effects from the April 25, 2020 workplace accident and was entitled to further benefits. The representative submitted that while the WCB accepted the worker's claim for an acute stress reaction, the worker's treating healthcare providers supported her symptoms were of a longer duration and had consistently documented ongoing symptoms associated with the workplace incident. The representative further submitted that the evidence supported the worker had been able to manage her personal challenges while working until she was threatened at work on April 25, 2020. The representative submitted the evidence supported the worker was entitled to wage loss and medical aid benefits after April 5, 2021 because her psychological difficulties and resultant disability and need for treatment beyond that point in time were at least in part a consequence of her workplace incident. On May 18, 2021, the employer provided a submission in support of the WCB's decision.

By letter dated June 14, 2021, Review Office advised the worker that they had determined there was no entitlement to benefits beyond April 5, 2021. Review Office accepted that the worker experienced an acute reaction to a traumatic event and her loss of earning capacity at the time was due in part to the April 25, 2020 workplace incident and in part to the worker's pre-existing condition. Review Office agreed with the WCB psychological consultant's opinion that although the worker may have experienced a transient adjustment-type reaction related to the April 2020 workplace incident, her current difficulties were more comprehensively accounted for by her pre-existing depression and other personal stressors and were not materially accounted for by the workplace accident.

On May 27, 2022, the worker's union representative submitted reports from two further treating psychiatrists dated March 2, 2022 and May 24, 2022, respectively, and requested that Review Office reconsider their June 14, 2021 decision. In the March 2, 2022 report, the psychiatrist documented the worker's report of personal stressors, in addition to the April 25, 2020 workplace incident, and detailed the worker's ongoing symptoms, which he concluded were consistent with PTSD. The psychiatrist recommended medications and further psychological treatment.

In the May 24, 2022 report, the second treating psychiatrist diagnosed the worker with an Adjustment Disorder in addition to PTSD, noting the PTSD symptoms seemed to have started directly after the workplace incident. The psychiatrist further noted that on top of the PTSD from the workplace incident, the worker was "…struggling with significant ongoing psychological stressors – which justifies the diagnosis chronic adjustment disorder in addition to PTSD."

On August 11, 2022, Review Office requested the WCB psychiatric consultant review the new medical information, and on August 17, 2022, the consultant provided an opinion to file. The consultant opined that the worker may have sustained an adjustment type reaction in relation to the April 25, 2020 workplace incident, which may have been associated with a temporary increase in depressive and anxiety symptoms. The consultant further noted that adjustment type reactions are temporary and resolve within six months of the stressor being removed. The consultant therefore opined that the worker's symptoms, more than two years after the workplace accident, were not accounted for by the workplace accident, but were accounted for by other significant factors, including the significant personal stressors the worker had been experiencing. A copy of the consultant's opinion was provided to all parties.

On September 1, 2022, Review Office advised the worker that there would be no change to their decision that she was not entitled to benefits beyond April 5, 2021. Review Office found that the criteria for a diagnosis of PTSD had not been met, and a relationship could not be established between that diagnosis and the workplace event. Review Office accepted the worker experienced an acute reaction to a traumatic event but was unable to account for the worker's current presentation in relation to the April 25, 2020 workplace incident.

On September 2, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's 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.

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 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

With respect to wage loss eligibility, the Policy states, in part, that:

When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker's Position

The worker was represented by legal counsel, who submitted an October 19, 2022 report from the worker's current treating psychiatrist in advance of the hearing, and made an oral presentation to the panel.

The worker's position was that she is entitled to benefits beyond April 5, 2021 as the evidence supports, on a balance of probabilities, that she continued to suffer symptoms and restrictions as a direct result of her compensable injury.

The worker's current treating psychiatrist was called as a witness to give evidence at the hearing. The psychiatrist testified that:

• he began treating the worker on April 12, 2022, with an initial assessment of two hours in person on April 12, 2022, and one and one half hours by telephone on April 21, 2022; 

• he had been the worker's primary care psychiatrist since then, and had seen her on a regular basis, with 30 attendances documented as at the date of the hearing; 

• he was satisfied that in the context of the April 2020 workplace incident, the worker fulfilled all the criteria for the diagnosis of post-traumatic stress disorder (PTSD); 

• he understood the worker also had serious ongoing mental health issues and psychological stressors which arose before the workplace accident, and in the context of those issues, he was satisfied that the worker suffered from an adjustment disorder; 

• he established separate diagnoses of PTSD related to the workplace incident, and adjustment disorder surrounding the personal issues, as well as ongoing legal concerns and stresses; 

• the pre-existing personal issues were stressful, but seemed to be manageable for the worker at the time, and he did not see those issues as triggering for the symptoms the worker described after the workplace incident; 

• it was his impression, however, that the worker was more vulnerable given the previous mental health issues, and the traumatic events in the workplace also complicated her previous mental health state; 

• while there had been some reduction in symptoms, mainly PTSD related symptoms, the worker still presented with a high vulnerability and he was hesitant to say, at the time of the hearing, that the worker would be able to return to her pre-accident duties.

The worker also gave evidence at the hearing, and provided further details with respect to the workplace incident.

The worker's representative submitted that the worker has been diagnosed with PTSD which was brought on by her April 25, 2020 workplace accident. The representative acknowledged the worker had many serious pre-existing personal problems, but noted she was coping and able to go to work and do her job prior to the accident. It was only after the traumatic workplace accident that she started to have additional problems, including nightmares, problems sleeping, panic attacks, night sweats, jumping at loud noises, and flashbacks, all of which prevented her from going to work. The representative submitted that the evidence was clear that the worker had not recovered when her benefits were terminated and continued to need psychological help.

In conclusion, the worker's representative submitted that the worker continues to suffer ongoing symptoms due to the workplace incident, and should be entitled to additional coverage from the WCB until such time as she can recover from her injury.

Employer's Position

The employer was represented by its WCB Coordinator, who made a submission at the hearing, and responded to questions from the panel

The employer's position was that the worker is not entitled to benefits after April 5, 2021 as the information does not support her ongoing psychological difficulties were medically accounted for by the April 25, 2020 incident.

In his submission, the employer's representative referred to and quoted from several medical reports and other file information in support of their position. The representative submitted that based on the weight of the evidence, and on a balance of probabilities, the worker's ongoing difficulties were not related to the April 25, 2020 incident, and asked that the panel uphold Review Office's September 1, 2022 decision.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after April 5, 2021 in relation to the April 25, 2020 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid beyond April 5, 2021 as a result of her April 25, 2020 workplace accident. The panel is able to make that finding, for the reasons that follow.

Based on our review of all of the information and submissions which are before us, the panel is satisfied, on a balance of probabilities, that the evidence supports the worker has not recovered from the April 25, 2020 workplace injury as at April 5, 2021 and is entitled to further benefits.

The worker has an accepted claim for a psychological injury due to the April 25, 2020 workplace incident. The panel notes that there is no doubt that the worker suffered from pre-existing personal difficulties and pre-existing psychological conditions, and that the injury therefore occurred in the environment of such pre-existing conditions.

The panel is satisfied that the evidence supports that the incident the worker was involved in on April 25, 2020 was of a traumatic and violent nature. As indicated above, the worker provided further details with respect to that incident at the hearing, noting among other things, that at the start of the incident, the resident tore the mask off his face, was uttering threats and profanities which never stopped, and was trying to get others to join in. The resident moved from behind the worker, and went up the stairs, where he was about 8 or 10 feet away from the worker, and threw objects at her, including a garbage can and a phone. The worker referred in particular to the phone, which she described as a phone booth sized phone, and noted the worker completely ripped it off the wall and threw it at her, and she had to dodge out of the way to avoid being hit.

In response to questions from the panel, the worker further noted that she had been involved in several different incidents over the years where residents had gone off, but this was the first time it was directed at her. The evidence indicates that in this instance, the worker was directly threatened, and she was removed from the area once a supervisor arrived.

The worker was assessed by the treating psychologist in September and October 2020. While the treating psychologist went on to suggest six treatment sessions following that assessment, only four sessions were approved by the WCB. Following those sessions, the psychologist recommended in their February 8, 2021 report that an additional six sessions be approved, to help the worker "with managing her problematic nightmares that appear to be related to the incident at work." The psychologist therefore indicated that the worker had not recovered from her injury and required assistance to deal with her ongoing symptoms, particularly her ongoing nightmares. The panel notes that the psychologist's report was very specific, and also supported that the worker's prior mental health difficulties likely made her more vulnerable to further trauma and had complicated her compensable psychological injury and recovery from that injury. The panel accepts and relies upon the psychologist's report.

The panel notes that the diagnosis of the worker's compensable injury appears open for debate in this file. While the WCB psychiatric consultant has opined that the worker did not meet the criteria for PTSD, other treating healthcare providers, including the worker's current psychiatrist, have supported a diagnosis of PTSD.

The panel is unable to place much weight on the reports of the WCB psychiatric consultant, which the panel found contained a number of inconsistencies. The panel notes, for example, that despite acknowledging in her March 10, 2021 report that the worker's reported symptoms fulfill the criteria for PTSD, the consultant went on to note that the worker presented with atypical features that "may be related to [the worker's] fear of her claim being rejected."

While the WCB psychiatric consultant also suggested that the worker's symptoms are due to personal stressors and "alleged" personal experiences, the panel finds that such a conclusion is speculative. The panel also notes in this regard that evidence with respect to the worker's ongoing nightmares and other difficulties do not appear to relate to her personal problems or history. The evidence further indicates that the worker did not experience such nightmares or symptoms prior to the workplace incident.

In any event, the panel notes, and the worker's and employer's representatives both agreed, that the issue on appeal was not whether the worker suffered or suffers from PTSD as a result of her workplace accident, but whether or not she is entitled to benefits after April 5, 2021 in relation to the April 25, 2020 workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had not recovered from the effects of her workplace injury, and sustained a loss of earning capacity and required medical aid beyond April 5, 2021 as a result of her April 25, 2020 workplace accident. The panel therefore finds that the worker is entitled to benefits after April 5, 2021 in relation to the April 25, 2020 accident, and returns the file to the WCB for further adjudication.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, 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 April, 2023

Back