The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that she is not entitled to additional benefits in relation to the November 6, 2014 accident, and that her claim with respect to a December 14, 2018 accident is not acceptable. A hearing was held on February 16, 2023 to consider the worker's appeal.

Issue

1. Date of Accident – November 6, 2014: Whether or not the worker is entitled to additional benefits in relation to the November 6, 2014 accident; and 

2. Date of Accident – December 14, 2018: Whether or not the claim is acceptable.

Decision

1. Date of Accident – November 6, 2014: The worker is entitled to additional benefits in relation to the November 6, 2014 accident; and 

2. Date of Accident – December 14, 2018: The claim is not acceptable.

Background

Date of Accident – November 6, 2014

The worker filed a Worker Incident Report with the WCB on August 24, 2015, reporting a psychological injury due to stress that occurred at work. The worker noted she had been diagnosed with post-traumatic stress disorder ("PTSD") on July 30, 2015 due to exposure to traumatic events over her 21 years of employment with the employer. The worker noted there had been a couple of events at work that triggered flashbacks for her and she had been experiencing more panic attacks over the past year. The worker noted she had been placed off work until October 30, 2015 but had been using sick time to cover her time loss.

In a discussion with the WCB on August 25, 2015, the worker clarified her initial symptoms occurred in November 2014 when she answered a call at work regarding a fatal motor vehicle accident and realized she knew the person who had died. The worker advised that she continued to work after that event, but was starting to have difficulties and could not stop thinking about other traumatic events she had witnessed over the 21 years she had been employed. She sought medical treatment with her family physician who prescribed medication and took her off work. The worker was referred to a psychiatrist, and also attended a psychologist, and was diagnosed with PTSD on July 30, 2015. The worker advised she had not had any mental health issues prior to the incident, and had spoken to a co-worker about her difficulties after the November 2014 incident.

On August 28, 2015, the WCB received a report from the worker's family physician dated August 27, 2015. The family physician noted the worker had been a patient of theirs for a number of years and had started complaining of significant problems with depression and anxiety, sleeping poorly and depressed mood. The physician advised he had prescribed medications, which provided some improvement in symptoms but did not control her mood as time went on. The family physician opined that the worker was suffering from depression/post traumatic stress disorder, which he noted was related to her employment but did not provide specific details for that diagnosis.

On September 30, 2015, the WCB received a narrative report from the worker's treating psychologist. The psychologist indicated the worker had been consulting with him since January 7, 2014, based initially on a presumptive diagnosis of Generalized Anxiety Disorder with Obsessive and Compulsive features, with some symptom improvement, but with subsequent deterioration following a November 2014 incident. The psychologist noted the worker has since been diagnosed with PTSD by a psychiatrist, and indicated that with proper treatment, the prognosis was good for the worker to recover fully.

On October 16, 2015, the WCB spoke with the worker's supervisor. The supervisor confirmed the incident the worker described occurred on November 6, 2014, but was unclear as to the worker's involvement in the incident. The supervisor noted the worker was not linked on the electronic record as assisting for the November 6, 2014, but was scheduled to work that day and would have been part of a team that responds to major incidents, noting that "…when something major like this happens everyone chips in and helps."

Also on October 16, 2015, the WCB spoke with a co-worker who had worked with the worker for approximately 15 years. The co-worker noted calls related to incidents such as the one that occurred on November 6, 2014 happen a lot in the worker's position, and "Some of the calls can make quite an impact on them even though they are not directly involved in the incident." The co-worker stated that after the November 6, 2014 incident, there was no debriefing for the workers in their positions and she noticed that the worker's "…demeanor had changed." The co-worker noted the worker would react differently to certain types of calls, her facial expressions changed, and she felt the worker was struggling. The co-worker further stated that the worker came and told her she was struggling, feeling anxious, had a "…kind of heavy feeling in the pit of her stomach/dread," and felt anxious just going into the workplace. The co-worker advised the worker to seek medical attention to get through her difficulties.

On November 5, 2015, the employer submitted an Employer's Incident Report to the WCB, noting that the worker never reported an incident to them; that they did not have information relating her difficulties to an incident; and that they could therefore not comment on their ability to accommodate her. That same day, the employer advised the WCB that the worker had not contacted them regarding the incident prior to their conversation with the WCB on October 16, 2015, and confirmed the advice of the worker's supervisor that the worker was not directly involved with the November 6, 2014 incident. Also on November 5, 2015, the WCB advised the worker that her claim was not acceptable, as they were unable to establish that an accident arising out of or in the course of her employment occurred.

On February 25, 2016, the worker requested that Review Office reconsider the WCB's decision and provided statements from two of her co-workers indicating the worker was the dispatch person who answered the call regarding the fatal motor vehicle accident on November 6, 2014. On February 26, 2016, Review Office returned the worker's file to the WCB's Compensation Services for further investigation with respect to the new information the worker had provided. On April 8, 2016, after further investigation, the employer confirmed that the worker was the dispatch person who answered the call on November 6, 2014 and who provided updates with respect to that accident.

On April 20, 2016, the WCB advised the worker that her claim was accepted. The worker advised the WCB that she was doing well and had returned to work, but was not performing her regular duties, as her family physician had provided restrictions against returning to her regular duties until September 2016. Updated medical reports were received from the worker's treating healthcare providers, including an April 26, 2016 progress report from the worker's family physician. The physician noted he had seen the worker on April 19, 2016 and she was "…essentially doing quite well" and her mood was "definitely better" than when he last saw her. The physician also noted the worker had returned to work, not on her regular duties, and her treating psychiatrist would be reviewing the worker's capabilities in September 2016 related to her regular duties. The physician advised the WCB that the worker had arranged her own return to work in November 2015, working with her employer to determine the job duties she felt comfortable performing based on her symptoms.

On October 13, 2016, the WCB spoke with the worker who advised that she had a set-back in July 2016 when she tried to return to her duties in the general work area. It was noted that the worker worked her regular duties for approximately one week but her symptoms increased and she was taken off work by her family physician. Chart notes and a letter from the family physician received December 28, 2016 indicated with a reorganization of the staff, the worker had tried to return to her routine duties but significant deterioration occurred in a short period of time and she was taken off work for one month, from July 19 to August 18, 2016, returning to modified duties on August 19, 2016.

On March 7, 2017, a WCB psychological consultant reviewed the worker's file. The consultant opined that the worker's current diagnosis was PTSD with residual symptoms that would be present if she returned to her full duties, and recommended permanent restrictions for the worker. On March 9, 2017, the WCB advised the employer that the worker's permanent restrictions were to avoid dispatching duties and avoid transcribing reports or statements regarding traumatic events. On May 11, 2017, the WCB advised the worker that the employer had confirmed they were able to permanently accommodate her within her restrictions.

On September 11, 2017, the worker attended a call-in examination with a WCB psychiatric consultant to determine her entitlement to a permanent partial impairment award (PPI). Following her assessment of the worker, the consultant determined the worker had a PPI rating of 5.00%, which would be decreased by 50% due to a pre-existing diagnosis of Generalized Anxiety Disorder.

On March 28, 2019, the worker submitted a new Worker Incident Report, indicating that on March 19, 2019, she contacted her supervisor requesting a modification to her shifts as she had noticed an increase in her PTSD symptoms over the previous three months. The worker noted she was tearful at her desk, with thoughts of past incidents, and a co-worker took her to see her family physician, who placed her off work until July 1, 2019.

On May 1, 2019, the WCB contacted the worker to discuss her claim. As the worker had not identified a new incident or anything specific from her job duties that might have triggered her difficulties, the WCB determined her new WCB claim would be cancelled and transferred into her claim relating to the November 6, 2014 incident. The worker advised the WCB she had been continuing to work her accommodated duties and there had been no changes to those duties, but over the last three months she had noticed that the past incidents she had experienced as a dispatcher were starting to bother her again and referred to symptoms of trouble sleeping and flashbacks of the prior incidents. The worker denied she had worked outside her permanent restrictions, and noted that while she had not been directly involved with other traumatic incidents, she did hear her co-workers talking about them. With respect to March 19, 2019, the worker said she had emailed her supervisor with respect to modifying her shifts to give her more time away from the office to regroup and advised that after speaking with her supervisor about an incident involving a co-worker "…everything came to a head." She indicated a co-worker noticed she was not doing well and took her to see her family physician, who changed her medication and recommended she remain off work until July 2019. The worker said she told her supervisor her difficulties "…were due to her PTSD relapsing" and provided the WCB with dates she had sought treatment.

On May 23, 2019, the WCB spoke with the worker's supervisor. The supervisor confirmed the worker had been working within her permanent restrictions, with no issues being reported regarding the accommodation or the worker's job duties. The supervisor advised that a security incident had occurred with the worker in March, and on March 19, 2019, he had called her into his office to discuss the incident. The worker brought in a medical note the next day, placing her off work until July 31, 2019. The supervisor further confirmed the worker did not work directly with her co-workers who take dispatch calls, but often went into that area to visit with her co-workers and would be exposed to co-workers answering traumatic calls. The supervisor noted it was the worker's choice to visit co-workers in that area and that the employer had done what they could to keep her from being exposed to traumatic calls.

On June 14, 2019, the worker advised the WCB there were a number of incidents that had taken place in the months before March 19, 2019, and the discussion with her supervisor that day with respect to the security issue was the "…last thing she could handle." She said she became tearful at work, a co-worker told her she should go see her doctor, which she did and was taken off work. The worker described some of the traumatic incidents she had been exposed to, including having to read reports to transfer into a new system, and overhearing co-workers talk about difficult dispatch calls they had taken. The worker further advised that when she felt her difficulties were starting to increase, she had asked to modify her hours so could have more days off in a row, and when she was called into her supervisor's office on March 19, 2019, she expected the discussion to be about that, not about the security incident.

Additional reports were requested from the worker's treating family physician and psychologist. In a September 26, 2019 report from the worker's treating psychologist, the psychologist noted that since his last report, he had seen the worker on November 17 and December 17, 2015, June 14, 2016, and April 25 and May 10, 2019, and had a telephone consultation with her on May 28, 2019. The treating psychologist noted the worker reported she had been placed on medical leave on April 25, 2019, after managing well for the past several years, but suffering a "relapse" approximately three weeks previously. The worker advised the relapse was "…attributable to 'things building up', and accompanied by a resurgence of symptoms characterized by tearfulness and crying, and emotional lability." The worker also reported that prior to her relapse, she had been "…behaviourally inert and significantly fatigued," but noted some improvement in those symptoms. The psychologist opined that the worker's diagnosis, based on her self-report, related to a "…recurrence of Post Traumatic Stress Disorder" and that the trigger may have been the inappropriate reviewing of files. The psychologist opined that features of the worker's presentation "…also suggest the possibility of Depressive Disorder, Mild…" but this could not be unequivocally determined. Chart notes received from the worker's family physician indicated that on March 19, 2019, the worker attended for treatment as she felt she was going downhill for "…the last couple weeks, every day getting a little worse. Now totally drained." The worker reported not sleeping well and not controlling her emotions well. The physician opined that the worker had PTSD and placed her off work for six weeks.

On November 20, 2019, the worker's file was reviewed by the WCB psychiatric consultant. The consultant opined that the information the worker provided to the WCB was different from the information the employer provided. The consultant noted that the medical information on file indicated the worker had a recent non-compensable surgery, with the family physician's August 2019 chart notes indicating she had reduced some of her medications and was excited about a return to work with reduced hours. The WCB psychiatric consultant further opined that there was no medical information in those notes to support the re-emergence of PTSD symptoms, and that she was therefore unable to authenticate a psychiatric diagnosis.

On November 21, 2019, the WCB advised the worker that they were unable to establish a relationship between her current symptoms and the original November 6, 2014 compensable injury, and that a recurrence of her PTSD diagnosis was therefore not accepted and she was not entitled to further benefits. On December 20, 2019, the worker submitted a letter from a co-worker in support of her claim, along with a detailed explanation of the March 19, 2019 incident, and asked that the WCB reconsider the decision she was not entitled to further benefits. On January 3, 2020, the WCB advised the worker that they had reviewed the new information, but there would be no change to their November 21, 2019 decision.

On January 15, 2020, the worker's family physician submitted a detailed medical report, with supporting medical studies, and opined that the worker had suffered a recurrence of her previous PTSD diagnosis. On March 25, 2020, the WCB psychiatric consultant reviewed the new information from the family physician, as well as all medical information since March 2019, and noted that while the worker's treating psychiatrist opined on May 3, 2019, that the worker had a known history of PTSD, that did not mean the diagnosis was still active. The WCB psychiatric consultant further noted the treating psychiatrist's reference to the worker's reported symptoms of poor motivation, fatigue, loss of interest and inability to cope and function, and opined that these were non-specific and did not specifically support a diagnosis of PTSD. On April 2, 2020, the WCB advised the worker the new information was reviewed, but there would be no change to their decision she had not suffered a recurrence of her PTSD diagnosis, and was therefore not entitled to further benefits.

On May 1, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker noted her treating healthcare providers all supported there had been a relapse of her PTSD diagnosis, and submitted that she was entitled to further benefits as a result. On June 11, 2020, Review Office determined that the worker was not entitled to additional benefits for her current psychological difficulties. Review Office accepted the opinions of the WCB psychiatric consultant and found the worker's current psychological difficulties were not a recurrence of her PTSD. Review Office further found that the worker's current difficulties began at the time of a work-related discipline meeting, and she was not suffering an increase in her symptoms prior to that incident.

On January 18, 2021, the worker's PPI rating was reviewed by the WCB's Chief Medical Officer, who concluded that the 5.00% mental health impairment rating was valid but that a pre-existing condition of Generalized Anxiety Disorder could not be deemed to be a major pre-existing condition, and the PPI rating should therefore not have been reduced by 50%.

On November 29, 2021, the worker submitted an August 27, 2021 report from her treating psychologist, clarifying the worker's PTSD diagnosis, and requested Review Office reconsider their June 11, 2020 decision. On January 25, 2022, Review Office determined the worker was not entitled to further benefits in relation to her current psychological difficulties. Review Office found the medical evidence provided did not establish a causal relationship between the worker's current psychological difficulties and her accepted claim for PTSD, and her difficulties began as a result of a work-related disciplinary action.

Date of Accident - December 14, 2018

On July 6, 2020, the worker filed a Worker Incident Report with the WCB, reporting she dealt with a traumatic incident at work on December 14, 2018. The worker indicated she had a previous WCB claim for PTSD and had returned to work on accommodated duties of not answering dispatch calls. On February 28, 2019, however, due to the transfer of files to a new system, she had to deal with the file relating to the December 14, 2018 traumatic incident which resulted in an increase in her PTSD symptoms to the point where she was placed off work by her treating family physician on March 19, 2019, due to a recurrence of her PTSD over the previous three months.

In a discussion with the WCB on July 27, 2020, the worker advised she had filed a claim in 2018, but that claim was cancelled and adjudicated on her previous 2014 WCB claim. That claim had subsequently been disallowed, so she filed this new claim. The worker advised the WCB she had been diagnosed with a recurrence of her PTSD.

On July 29, 2020, the WCB advised the worker that this claim would also be cancelled and remain transferred to her 2014 claim. On October 19, 2020, however, the worker's representative spoke with the WCB's supervisor of short term claims, who agreed to allow the new claim to be adjudicated if the worker wished to pursue it, and on October 22, 2020, the worker's representative advised that the worker was re-filing her WCB claim based on specific incidents from December 14, 2018 and February 28, 2019.

On November 6, 2020, the WCB spoke with the employer to gather further information regarding incidents that occurred on December 14, 2018 and February 28, 2019. The employer advised the WCB they were not aware of the worker's difficulties related to any incidents on those dates and confirmed the worker had restrictions in place that restricted her from working in specific areas, answering phones, and working on other clerical duties that would expose her to traumatic incidents. The employer confirmed the worker did work on some files but this was to check for errors on completed files, and indicated that they would require further specifics regarding the reported incidents on those dates as there could be numerous traumatic calls each day.

On November 19, 2020, the employer provided the WCB with specific details regarding an incident that occurred on December 14, 2018. The employer noted the worker was not directly involved in the dispatch or answering of the call regarding a traumatic incident on that date. The worker was on duty on December 14, 2018 but the employer confirmed her workstation was separate and apart from where co-workers who did dispatch and answered the phones were located. Further information was gathered from the electronic and paper file for December 14, 2018, indicating the worker was involved in two reports on the electronic file that included a brief description of the incident, which the worker was not required to access or review, and did not include photographs or statements.

On January 5, 2021, the WCB advised the worker that her claim was not acceptable. The WCB noted there was no mention of the December 14, 2018 incident when the WCB was investigating the PTSD recurrence in May 18, 2019, a review of the medical information on file from the treating family physician did not mention an incident that occurred on December 14, 2018, and the medical information did not support an emergence of PTSD symptoms.

On March 14, 2022, the worker's representative requested the WCB reconsider their decision, basing that request in particular on the WCB's receipt of the treating psychologist's August 27, 2021 report where he discussed the work-relatedness of the worker's PTSD and responding to the WCB's reasons for denying the claim. The worker's representative submitted that the worker's co-worker was aware of her psychological difficulties before the worker contacted the WCB again in 2019; the employer advised the WCB the worker would have been exposed to details of traumatic incidents despite her permanent restrictions; and the worker's treating healthcare providers identified the worker's work activity as the cause of her increase in symptoms and relapse of her PTSD diagnosis. On April 5, 2022, the WCB advised the worker that the further information had been reviewed, but there would be no change to the January 5, 2021 decision that her claim was not acceptable, as they could not establish a psychological injury as a result of the December 14, 2018 and February 28, 2019 incidents.

On April 26, 2022, the worker's representative requested that Review Office reconsider the WCB's decision, noting they were relying on their March 14, 2022 submission. On June 14, 2022, Review Office determined that the worker's claim was not acceptable. Review Office determined that they were unable to establish that the worker had suffered an injury due to an accident. Review Office found the medical evidence in closest proximity to the December 14, 2018 incident, being an assessment by the worker's treating psychologist on September 26, 2019, was less than supportive of a diagnosis of PTSD being a direct cause of the worker's difficulties and noted that no formal diagnostic testing was undertaken. Review Office acknowledged a formal PTSD diagnosis was not necessary for the WCB to accept the worker's claim, but found no evidence was provided to support the worker was totally disabled from working due to her previous compensable issues

Both Claims

On July 5, 2022, the worker's representative filed an appeal from the Review Office decisions on both claims with the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker is employed by a federal government agency or department, her 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 27(1) of the WCA 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 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.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

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."

Worker's Position

The worker was represented by a worker advisor on the appeal. The worker advisor filed a written submission in advance of the hearing, and made a brief oral submission, noting he was largely relying on the written submission he had filed, as well as the worker's previous submissions to the WCB. The worker and her representative responded to questions from the panel at the hearing.

The worker's position was that she experienced a relapse or deterioration of her original compensable injury of PTSD which led to her going off work in March 2019, resulting in a loss of earning capacity and ongoing need for medical treatment related to her original workplace accident and injury. Alternatively, the worker's position was that she was injured by accident arising out of and in the course of her employment on December 14, 2018, and her claim should be accepted.

The worker's representative submitted that the evidence supported the worker's accepted psychological injury of PTSD continued throughout the course of the worker's 2014 claim. leaving the worker highly susceptible to symptoms intensification and relapse, and that this is what the worker experienced over a period of time leading up to her discontinuing work on March 20, 2019.

It was noted that the worker's accident report indicated she had been diagnosed with PTSD on July 30, 2015 and had experienced work-related incidents that had triggered flashbacks, resulting in adverse consequences to the worker's health which had been heightened during the prior year. The worker's claim was accepted in April 2016, and retroactive wage loss benefits were issued from July 30 to November 16, 2015, based on the worker having experienced a recurrence of the November 2014 workplace accident. The worker participated in a modified return to work from mid-November 2015 to mid-July 2016, but she experienced a second recurrence that resulted in a period of total disability from July 19 to August 18, 2016, for which retroactive wage loss benefits were again paid. It was submitted that the WCB's issuance of wage loss benefits for such time periods in 2015 and 2016 represented an acknowledgment that the worker's compensable injury was susceptible to relapse and deterioration.

The worker's representative submitted that the imposition of permanent work restrictions and provision of an impairment award in the course of the worker's claim also represent an admission of the permanency of the worker's compensable injury, whether through the diagnostic criteria for PTSD always being met or because of a known risk of recurrence.

The representative submitted that while the worker did not continue in treatment or maintain continuous contact with a psychologist or psychiatrist throughout, this does not preclude a continuation or recurrence of the compensable injury. It was noted that the evidence supports that the worker continued taking medication for her symptoms for years, and that her use of such medication in between contacts with a psychologist and psychiatrist between 2017 and 2019 is evidence of treatment for a continuing condition.

The worker's representative asked that the panel attach significant weight to the written opinions of the worker's treating family physician, clinical psychologist and attending psychiatrist, who met with the worker on many occasions, dating back well before 2019, and all of whom diagnosed the worker with work-related PTSD. The representative further asked that the panel attach no or less weight to the opinions of the WCB psychiatric consultant for various reasons, including that the consultant had not met or spoken with the worker since September 2017, and had not addressed relevant medical information from the treating healthcare providers which was available on file.

With respect to the March 19, 2019 workplace meeting, the worker's representative submitted that the WCB mischaracterized the nature of that meeting and its effect upon the worker, and failed to pursue or disregarded available evidence. It was submitted that even if the purpose of the meeting was to discuss a security breach, that does not mean the meeting had been scheduled for disciplinary purposes, that the worker had actually been disciplined or that the worker was told that she would be. The representative noted that the worker had thought the meeting was going to be to discuss her earlier accommodation request, and it was only at the time of the meeting that the worker was asked about the security breach. The representative submitted that the worker's psychological status was already deteriorating prior to that meeting, and but for the worker's already compromised coping ability, the meeting would have had no consequential effect.

In conclusion, the worker's representative asked that the panel grant the worker's appeal on the 2014 claim as the worker's loss of earning capacity as of March 20, 2019, and need for medical aid, arose from the deterioration of her long-accepted PTSD.

Alternatively, the representative submitted that if it were determined that the worker had recovered from her originally accepted claim, the file details support that the worker was injured by accident arising out of and in the course of her employment on December 14, 2018. The representative noted that the worker's manager had confirmed she worked on traumatic files daily, which included having to read them. The representative asked that the panel accept the worker experienced such file/case exposures on or about December 14, 2018 and February 28, 2019, and that such exposure rose to the level of being traumatic in accordance with the DSM-5 criteria.

Employer's Position

The employer did not participate in the appeal.

Analysis

Date of Accident – November 6, 2014

Issue: Whether or not the worker is entitled to additional benefits in relation to the November 6, 2014 accident.

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 as of March 20, 2019 and/or need for medical aid which was causally related to her November 6, 2014 workplace accident and injury. The panel is able to make that finding for the reasons that follow.

Based on our review and consideration of the evidence and submissions which are before us, the panel is satisfied that the worker suffered a deterioration and relapse of her PTSD symptoms/condition as at March 20, 2019, and that such a deterioration and relapse and resulting loss of earning capacity and need for medical aid was related to her original November 6, 2014 workplace accident.

The panel is unable to find that the medical information on the file supports that the worker's PTSD had resolved or disappeared by the time she was taken off work in March 2019. The worker had been able to work following the November 6, 2014 accident, but had been given permanent restrictions and was performing modified duties.

The evidence shows that the worker had experienced a deterioration or relapse in her condition in 2015 and 2016 due to her work, to the point that she needed to be off work for a period of time, and was taken off work by her treating healthcare providers. Such relapses were accepted by the WCB, and wage loss benefits were paid retroactively with respect to same.

The evidence indicates that the worker continued to work within her restrictions leading up to March 2019, but her duties included tasks where she would be required to read and was reading traumatic files. The panel is satisfied that this did not fall outside the scope of her stated restrictions, which consisted of avoiding dispatching duties and avoid transcribing reports or statements regarding traumatic events. While the worker had been moved to a separate area away from the general area and front counter, the panel is satisfied that the worker would still have been exposed to hearing about traumatic events on a regular basis at work, and it would have been difficult for her to avoid such exposure.

The panel finds that the evidence supports that the worker was managing well for a period of time, but that she experienced a gradual increase in her symptoms between December 2018 and

March 2019 and that this led to a further recurrence or relapse in her condition and to seeking further medical attention from her family physician and treating psychiatrist.

The panel does not accept that the workplace meeting on March 19, 2019 was as serious as it was treated by the WCB and attaches little weight to that meeting. In response to questioning at the hearing, the worker stated that as far as she knew, nothing was put on her file, and the meeting was turned into something huge with this whole process. The worker confirmed that no disciplinary action was taken. The panel notes there is a lack of evidence to refute these assertions or to indicate that this was a disciplinary meeting. The panel recognizes that the worker indicated to the WCB this was the "…last thing she could handle," and that she went off work the day after the meeting, but is satisfied that while this was may have been a trigger of sorts, it was not the cause, or the primary cause, of the worker going off work.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity as of March 20, 2019 and need for medical aid which was causally related to her November 6, 2014 workplace accident and injury. The panel therefore finds that the worker is entitled to additional benefits in relation to the November 6, 2014 accident.

The appeal on this issue is allowed.

Date of Accident – December 14, 2018

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 her employment. For the reasons that follow, the panel is unable to make that finding.

Information on file shows that the worker only filed this claim after her claim with respect to a relapse related to the November 16, 2014 claim had been dismissed. The worker's representative confirmed at the hearing that this was an alternative claim, in the event the appeal with respect to the 2014 claim was not successful.

Given our findings on the previous issue, that the worker suffered a relapse in her condition and loss of earning capacity and need for medical which was related to her November 2014 workplace accident, this issue is essentially moot. The panel therefore finds that the claim with respect to the date of accident of December 14, 2018 is not acceptable.

The appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of April, 2023