The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after March 16, 2022. A videoconference hearing was held on October 25, 2023 and reconvened on November 24, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after March 16, 2022.

Decision

The worker is entitled to wage loss and medical aid benefits after March 16, 2022.

Background

The worker filed a Worker Incident Report with the WCB on March 12, 2019, reporting a psychological injury that occurred at work on February 22, 2019 when they witnessed a person under their care struggling in pain and vomiting blood. The worker repeatedly sought to obtain the required approval to authorize the necessary care for the individual, which was delayed for reasons outside the worker’s control. After the worker ultimately offered the necessary care, the individual soon passed away. In their report, the worker outlined that they began a planned vacation on March 11, 2019, and were experiencing symptoms, including nightmares, from the incident. The worker saw a family physician on March 11, 2019 reporting poor concentration, nightmares, difficulty with work, and crying. The physician noted poor eye contact, crying and a severe sense of guilt, queried a diagnosis of post-traumatic stress disorder (PTSD), and recommended medication and time off work.

In discussion with the WCB on March 14, 2019, the worker advised that after the February 22, 2019 incident, they continued working and experienced some symptoms, but spoke with family and friends about the event, which they believed would help. The worker noted their anxiety increased and they sought medical treatment for that reason. At the time, the worker was unsure if their symptoms related to the incident and did not advise the employer of them. The worker confirmed they sought further medical attention on March 11, 2019, when they reported the incident to their physician, who was also monitoring their pre-existing depression symptoms.

On March 15, 2019, the employer submitted an Employer Injury Report indicating the same mechanism of injury as was reported by the worker, and noting that on March 7, 2019, the worker contacted the employer noting their concerns regarding the circumstances of the incident. The employer provided details as to how the worker’s concerns were being addressed.

On April 4, 2019, the WCB received copies of the treating physician’s chart notes for March 11, 2019, March 18, 2019, March 28, 2019, and April 3, 2019, which noted the worker’s ongoing complaints of anxiety, panic attacks and nightmares. The treating physician provided a diagnosis of PTSD and referred the worker to a psychiatrist.

On May 7, 2019, the worker advised the WCB that they were admitted to a crisis unit due to suicidal ideation. The WCB received a copy of the May 5, 2019 referral of the worker from a local emergency department to the crisis unit, which noted the worker’s history of anxiety and depression, with the recent trauma of the incident of February 22, 2019 causing the worker to experience daily, vivid nightmares of losing family members by traumatic means. In the May 10, 2019 report from the crisis unit, the treating psychiatrist outlined their diagnosis of adjustment disorder with “anxiety symptoms and exacerbation of anxiety with panic attacks." The psychiatrist recommended medication and counselling for the worker.

The WCB referred the worker for psychological counselling and the first session took place on May 10, 2019. In a report provided to the WCB on May 16, 2019, the treating psychologist provided an opinion that as a result of two traumatic incidents at work since 2018, the worker continued to "…experience symptoms which are consistent with PTSD, including nightmares, suicidal ideation, impulsivity, low mood, poor concentration, anhedonia, disruption in sleep and appetite, and emotional dysregulation." The treating psychologist further noted the worker’s symptoms were expected to improve with treatment. A further report from the treating psychiatrist received on June 11, 2019 outlined a diagnosis of adjustment disorder with anxiety and indicated the worker could attempt a graduated return to work on a trial basis.

A WCB psychological consultant reviewed the worker’s claim on June 18, 2019 and agreed with the treating psychiatrist that the worker's diagnosis was adjustment disorder with anxiety, including panic attacks. The WCB consultant noted symptoms of depression were noted but there was no diagnosis of depression. Further, the consultant provided there was no support in the medical reporting for a diagnosis of PTSD, noting that "…ruminative thinking and distress related to the workplace events is related to anger and dissatisfaction about workplace factors" as well as the worker's history of depression and anxiety related to remote non work-related trauma. The consultant concluded “It is reasonable to surmise that, in combination with past history, [the worker's] anxiety related to the workplace situation may have been partially associated with the need for a brief leave from work, perhaps in the nature of one month (as with an acute stress reaction).”

On June 21, 2019, the WCB advised the worker that their claim was accepted, and they were entitled to wage loss benefits until April 8, 2019; however, the WCB could not relate their ongoing psychological difficulties to the February 22, 2019 workplace accident. Upon further review of the file by the WCB psychological consultant, the WCB advised the worker they were entitled to wage loss benefits until May 8, 2019.

On September 20, 2019, the worker's representative requested Review Office reconsider the WCB's decision on the basis that the worker continued to experience psychological difficulties and remained off work. The representative noted the worker acknowledged and had advised the WCB and their treating healthcare providers of their previous psychological difficulties, and that the workplace accident of February 22, 2019 aggravated their previous condition.

On November 7, 2019, the employer's representative provided a submission to Review Office in support of the WCB's decision, which was shared with the worker and their representative, who provided a further response on November 15, 2019.

On November 15, 2019, the WCB received a report from the worker's new family physician in relation to an appointment on October 30, 2019, providing a diagnosis of PTSD and placing the worker off work from October 30, 2019 to November 15, 2019.

On November 25, 2019, the worker's representative provided Review Office with a copy of a report from a psychiatrist who treated the worker on November 13, 2019. The psychiatrist noted the worker's reports of suicidal ideation, which resulted in a recent hospital admission, as well as their symptoms of anxiety and/or PTSD, occurring daily, including an exaggerated startle reflex, irritability and withdrawal from others, intrusive re-experiencing parts of the accident, palpitations, sweating, trembling, and shaking, chest pain, dizziness, and numbness. The psychiatrist arranged a follow-up appointment to discuss further treatment.

On November 27, 2019, Review Office returned the worker's file to the WCB's Compensation Services for further investigation as the worker had moved to another province and was being treated by new healthcare providers. The WCB arranged for the worker to see a psychologist in the province where they were living. That psychologist provided a report to the WCB on January 16, 2020, indicating that after completing two sessions with the worker, it was their opinion that the worker suffered from "PTSD in the severe range" directly related to their work activities, and setting out how the worker met the criteria for that diagnosis. The psychologist further opined the worker had symptoms of a major depressive episode and recommended ongoing treatment, noting they considered the worker to be completely disabled and unable to work in any capacity.

On January 21, 2020, a WCB psychological consultant reviewed the treating psychologist’s report, along with the worker's file, noting the opinion that the worker now met the criteria for a diagnosis of PTSD in relation to the February 22, 2019 workplace accident. The WCB consultant was not able to account for the difference in reporting as compared to the reports nearer in proximity to the accident.

On January 22, 2020, the WCB advised the worker that the new medical information was reviewed and the WCB determined the worker was entitled to further benefits. After receiving payroll information from the employer, the WCB placed the worker back on full wage loss benefits on February 13, 2020.

The treating psychologist provided ongoing treatment of the worker into 2021 with regular reporting to the WCB. The psychologist noted the worker's improvement, with setbacks due to the COVID-19 pandemic and an unrelated hospital admission in the summer of 2020. In spring 2021, the WCB requested that the WCB psychological consultant review the worker's file. After the WCB consultant made attempts to speak to the treating psychologist about the worker's treatment, the worker noted their concerns to the WCB on July 5, 2021, and as a result, the WCB arranged for a third-party psychiatrist to assess the worker. On October 21, 2021, the WCB received a report from the third-party psychiatrist. The psychiatrist concluded, based on their interviews with the worker and psychological testing, that the worker had "…pre-existing mental health difficulties, including Borderline Personality Traits, and history of severe trauma" but had no diagnosis related to the February 22, 2019 workplace accident. The third party psychiatrist recommended treatment directed at the worker's "…issues related to borderline personality disorder…" rather than PTSD. The psychiatrist found they could not identify symptoms of a mental illness that would prevent the worker from returning to work; however, based on the worker's dissatisfaction with the WCB and their interpersonal difficulties, concluded that arranging a return to work may be difficult. The psychiatrist recommended that as the worker had not worked for a while, a graduated return to work would be beneficial.

On November 16, 2021, the worker's treating psychologist provided a response to the third party psychiatrist's report, restating their position that the worker met the criteria for a diagnosis of PTSD in relation to the February 22, 2019 workplace accident. The third party psychiatrist responded in a report dated December 10, 2021, outlining their view that the worker’s current condition was “associated with longer standing attachment issues, complex PTSD, and borderline personality disorder”.

On January 13, 2022, the WCB advised the worker on January 13, 2022 their entitlement to benefits would end as of March 16, 2022 as it had determined their current difficulties were not related to the February 22, 2019 workplace accident.

On March 7, 2022, the worker requested Review Office reconsider the WCB's decision, providing a detailed submission, in which they noted their concerns with the assessment by the third party psychiatrist and indicated they remained disabled from work due to their PTSD symptoms arising from the workplace accident, and therefore required further benefits. The employer's representative provided a submission in support of the WCB's decision on April 6, 2022, and the worker provided a further response on April 15, 2022.

On May 5, 2022, Review Office determined the worker was not entitled to benefits after March 16, 2022. Review Office accepted and relied upon the opinion of the third party psychiatrist and found the dominant cause of the worker's difficulties to be related to non-employment causes and as such, the worker was not entitled to further benefits after March 16, 2022.

On July 14, 2022, the worker submitted a report from a new treating psychiatrist, which included chart notes from April 28, 2022 to July 8, 2022, and again requested reconsideration of the WCB's decision they were not entitled to further benefits. The treating psychiatrist indicated the worker initially presented with PTSD and borderline personality traits (“BPT”) and after treatment for more than two months, stated that the diagnosis remained PTSD with comorbid BPT. Further, the psychiatrist indicated the worker remained unable to work due to their symptoms and required ongoing treatment including psychotherapy and medication.

On August 22, 2022, the employer's representative again provided a submission in support of the WCB's decision. At the request of Review Office, the WCB's psychiatric consultant reviewed the worker's file and on September 16, 2022, placed their opinion to file. The WCB consultant opined that some of the worker's reported initial PTSD symptoms were related to the diagnosis of borderline personality disorder (“BPD”) and were not related to the February 22, 2019 workplace accident. Further, the WCB consultant provided that three years after the accident, in an environment of significant psychosocial stressors, the worker's current difficulties could not be accounted for in relation to the workplace accident.

The worker submitted additional medical information which was placed to their file. The employer's representative, after receiving a copy of the WCB psychiatric consultant's opinion, provided a further submission in support of the WCB's decision on December 7, 2022, and the worker responded on January 4, 2023.

On January 11, 2023, Review Office upheld the previous decision that the worker was not entitled to wage loss or medical aid benefits after March 16, 2022. Review Office found the additional medical evidence provided by the worker did not include any new information to support their claim and concluded that the worker's psychological difficulties after March 16, 2022 were not related to the February 22, 2019 workplace accident and as such, the worker was not entitled to further benefits.

The worker's representative filed an appeal with the Appeal Commission on June 20, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect at the time of the accident are relevant.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work, as defined in s 1(1) of the Act which includes an occupational disease. Occupational disease is defined in s 1(1) of the Act as follows:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to or the particular employment; or 

(b.1) that trigger post-traumatic stress disorder 

but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event.

Section 4(1) of the Act provides that a worker injured in an accident is entitled to compensation, and s 4(2) outlines that wage loss benefits are payable to an injured worker for the loss of earning capacity resulting from the accident. Section 4(4) sets out that where an injury consists of an occupational disease that is due in part to the employment and in part to a cause or causes other than the employment, the WCB may determine that the injury is the result of an accident arising out of and in the course of employment only where the employment is the dominant cause of the occupational disease. In respect of the diagnosis of PTSD in particular, s 4(5.8) of the Act provides that:

Presumption re post-traumatic stress disorder 

4(5.8) If a worker

(a) is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder; and

(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist;

the post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB established Policy 44.05.30, Adjudication of Psychological Injuries (the “Psychological Injuries Policy”) to outline how the WCB will determine acceptability of claims for psychological injury. This policy confirms that such claims will be determined in the same way as claims for physical injuries, in that the WCB will first determine whether there has been an accident arising out of and in the course of employment and if so, whether the worker has suffered an injury, and if so, whether the injury was caused by the accident.

The WCB also established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. This policy sets out that the WCB will not provide benefits for disability 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" but when a worker’s loss of earning capacity is caused in part by a compensable condition and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker was represented in the hearing by legal counsel, who provided a written submission in advance of the hearing and made oral submissions during the hearing. The worker offered testimony through answers to questions posed by their counsel and by members of the appeal panel. The worker’s treating psychologist also offered testimony in response to questions posed to them by the worker’s lawyer and by members of the appeal panel.

The worker’s position is that they are entitled to wage loss and medical aid benefits beyond March 16, 2022 as they remained unable to return to work at that time and continued to require treatment for the injury sustained because of the workplace accident of February 22, 2019. The worker’s position is that the traumatic event that occurred on February 22, 2019 caused the worker to develop PTSD, as accepted by the WCB on January 22, 2020 and that the evidence of the treating healthcare professionals supports a finding that the worker continued to be treated for and to experience a loss of earning capacity in relation to that injury beyond March 16, 2022. As such the worker is entitled to wage loss and medical aid benefits beyond that date.

Counsel for the worker submitted that the statutory presumption in respect of a diagnosis of PTSD applies because of the worker’s exposure to a triggering event under the provisions of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5) and subsequent diagnosis of PTSD by a physician and psychologist. Further, counsel submitted there is insufficient evidence to rebut the presumption that the worker’s PTSD is an occupational disease, the dominant cause of which is their employment.

The worker’s counsel pointed the panel to consider and give greatest weight to the evidence from the worker’s current treating psychiatrist and psychologist, noting that each supports an ongoing diagnosis of PTSD related to the workplace event of February 22, 2019, with comorbid BPT and that the worker remains unable to return to work and continues to require treatment in relation to their PTSD. Counsel urged the panel to give less weight to the opinion of the WCB psychological advisor who has never examined or provided treatment to the worker, and further, to give less weight to the opinion of the third-party psychiatrist whose diagnosis of Complex PTSD is not supported by the treating providers nor by the WCB psychological advisor. In this regard, counsel also pointed to the evidence of the treating psychologist who confirmed that Complex PTSD is not a diagnosis contained within the DSM-5, and who noted that the evidence does not support a diagnosis of BPD in relation to the worker’s history.

In their testimony, the worker described their professional and work history, noting that while completing the accelerated education program for their current occupation, they were hospitalized due to injuries sustained in a house fire, which delayed their graduation by one year. The worker also noted that they continued working part-time while in that program and that on completion, went on to finish their practicum and successfully complete their licensing. The worker also testified that prior to taking three months off work for a stress leave in 2018, on their family physician’s recommendation, they went through a divorce, lost a parent, and experienced a stressful event at work. The worker also explained that their family physician placed them on a low-dosage SSRI medication in relation to their low back pain, as a replacement for an opioid pain relief medication previously used. The worker confirmed that through all these events, they did not require or seek any psychological or psychiatric treatment.

The worker also described having suicidal ideation after the accident date, both before and after their move out of Manitoba. The worker described having nightmares and hallucinations relating to the incident, of hearing screams and smelling blood. The worker noted that in late 2019, they were admitted into a psychiatric hospital unit, and that the social worker they met in that hospital referred them to a psychologist, who provided treatment on two occasions before referring the worker to another psychologist who specialized in PTSD treatment. Around this time the worker learned that they still had five unused sessions of treatment previously approved by the WCB. The worker then arranged to meet with a psychologist who specialized in PTSD treatment, and they continue treatment with that psychologist to the present.

The worker testified that in 2019, they received a referral to another psychiatrist in relation to an unrelated civil litigation matter, and that psychiatrist provided two sessions of EMDR treatment in relation to the worker’s PTSD before the worker moved out of province in August 2019. The worker confirmed that this treatment occurred after the accident date.

The worker also described that after the WCB discontinued their benefit entitlement in 2022, they continued biweekly treatment with their psychologist on a pro bono basis, focused more on maintenance than on active recovery. The worker described having an increase in suicidal ideation again such that they returned to hospital as an inpatient for a time, and soon afterward began treatment with the current treating psychiatrist.

The worker testified that they met with the third-party psychiatrist over two remote sessions, and the remaining online session was with the assistant focused on completing questionnaires. The worker noted that the psychiatrist briefly asked about the events of February 22, 2019 and focused their discussion on the worker’s childhood trauma experiences. The worker testified that they did not recall any conversation with the WCB case manager after the third-party psychiatric assessment about a return to work or mindfulness training to prepare for such a return, as recommended by that psychiatrist in their reports to the WCB.

The worker noted that after moving to the other province, their partner went missing and soon afterward, the worker learned that their partner had died by suicide. The worker also described having a motor vehicle rollover accident while travelling to treatment with their treating psychologist. The worker noted that they do not have nightmares about these subsequent events.

In sum, the worker’s position is that they continue to experience symptoms of PTSD due to the workplace incident of February 22, 2019. Both the treating psychiatrist and the treating psychologist provided evidence that the worker continued treatment for PTSD after the WCB accepted the diagnosis of PTSD in January 2020, and that despite the termination of medical aid benefits, the worker continued in hope of returning to work. Further, the evidence does not support the WCB’s position that the worker had any pre-existing psychological condition or diagnosis. As a result of the worker’s continuing PTSD symptoms, the worker remains unable to return to work and has a resulting loss of earning capacity beyond March 16, 2022, for which they are entitled to wage loss benefits.

Employer’s Position

The employer was represented in the hearing by an advocate who made oral submissions to the panel in the hearing.

The employer’s position is that the worker is not entitled to wage loss and medical aid benefits beyond March 16, 2022 as the evidence does not support a finding that the worker’s continuing loss of earning capacity and requirement for medical aid is the result of the workplace accident of February 22, 2019, but is rather related to the worker’s pre-existing condition and their subsequent non-compensable life events.

The employer’s advocate relied upon and urged the panel to give significant weight to the opinion of the WCB psychological advisor, who noted that the evidence of the worker’s current symptoms does not support an ongoing relationship between the workplace incident and the worker’s psychological condition. The advocate pointed to the psychological advisor’s specific criticism of the treating care providers’ reports and noted that the WCB psychological advisor does not accept that the worker developed PTSD because of the workplace incident. Further, the advocate submitted that the panel should give weight to the opinions of the third-party psychiatrist that the worker was not disabled by the workplace accident but that the worker’s ongoing condition related to their pre-existing psychological condition.

The advocate submitted that the treating psychologist’s statement that the worker had no prior psychiatric diagnosis was not accurate, noting that the worker had a stress leave in 2018, which the employer presumes related to a psychiatric or psychological diagnosis of some kind. The advocate further noted the worker’s testimony of other significant pre-accident and post-accident stressors in the worker’s life that the employer assumes could cause some of the worker’s current psychological issues.

The employer’s advocate acknowledged that the worker handled the circumstances on February 22, 2019 professionally.

The employer’s advocate concluded that the evidence does not support a finding that the worker continues to experience ongoing acute effects of the compensable accident and that any ongoing disability is more likely to be related to the worker’s post-injury trauma and their pre-existing BPD than to the workplace event.

Analysis

The worker’s appeal arises from the WCB’s decision that the worker is not entitled to wage loss and medical aid benefits after March 16, 2022. For the appeal to succeed, the panel would have to determine that as a result of the injury sustained in the workplace accident of February 22, 2019, the worker continued to sustain a loss of earning capacity and to require medical aid beyond March 16, 2022. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The panel considered the submissions of the worker’s counsel as to the application of the PTSD presumption in s 4(5.8) of the Act. This presumption relates to determining entitlement to compensation on the basis of an occupational disease arising out of and in the course of employment. The WCB accepted the worker’s claim for compensation on June 21, 2019 and that decision is not under appeal. On January 22, 2020, the WCB accepted the worker’s diagnosis of PTSD as arising from the compensable accident of February 22, 2019. That decision is also not the subject of this appeal. This appeal relates to the question of the duration of the worker’s entitlement to compensation under the Act in relation to the injury sustained on February 22, 2019. The panel therefore finds that the presumption in s 4(5.8) of the Act is not relevant to this appeal.

The panel also considered the submissions of the worker’s counsel as to the application of the provisions of the WCB’s Psychological Injuries Policy in relation to this appeal. We note the stated purpose of that Policy is to “explain the way that claims for psychological injuries will be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.” The panel further noted that the Policy provisions relate only to the adjudication of whether a claim for a psychological is acceptable but do not address questions of entitlement to specific benefits in relation to such an injury once a claim is accepted. As the question on this appeal relates solely to benefit entitlement, the panel finds that the Psychological Injuries Policy is not applicable in the present appeal.

The panel considered the employer’s position that the worker’s current symptoms and diagnosis are solely attributable to the worker’s pre-existing psychological condition. We note that the Pre-existing Policy outlines that the WCB will not provide benefits for disability resulting solely from the effects of a worker's pre-existing condition, but that when a worker’s loss of earning capacity is caused in part by a compensable condition and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. The employer’s advocate submitted that the worker’s continuing psychological diagnoses and symptoms are the result of the worker’s pre-existing psychological condition in combination with the stressful and non-compensable post-accident events in the worker’s life but cannot be related to the compensable workplace injury after March 16, 2022.

In considering this argument, the panel noted the WCB psychological advisor’s opinion that the worker has BPD, which the WCB found was a pre-existing psychological condition. The WCB psychological advisor, upon reviewing the worker’s WCB claim file, concluded that the worker met the “full criteria” for the diagnosis of BPD, a diagnosis which the psychological advisor stated:

“…is generally made over several assessment sessions geared towards assessment of personality or with review of the comprehensive medical file, none of which was available to the psychologists who assessed [the worker] initially. This diagnosis cannot be accounted for by a workplace incident conceptually and is related to longstanding pattern of behavior and interpersonal relationships.”

The panel also noted that the third-party psychiatrist stated in their opinion of December 10, 2021 that “My medical opinion is that all of [the worker’s] current symptoms are causally related to [their] longstanding diagnosis of complex PTSD or BPD.” The psychiatrist also confirmed their belief that at the time of evaluation of the worker in August 2020, the worker did not have a DSM-5 psychiatric diagnosis accounted for by the workplace accident.

The panel noted that in contrast to these opinions, the treating psychiatrist outlined their opinion on June 22, 2022, that:

Borderline personality traits (BPDt) were present prior to [the worker] developing symptoms of PTSD, as demonstrated by a pattern of interpersonal difficulty that manifested almost exclusively with family members. There was a marked absence of functional impairment at work (over the time [they] spent successfully advancing [their] career and then working successfully as [an occupation] for 10 years). A lifelong pattern of difficulty at work would be required to diagnosis (sic) borderline personality disorder, and [the worker] does not meet this threshold.

The treating psychologist’s evidence supports this view, as outlined in their report dated October 11, 2023. In reference to the proposed diagnoses of BPD and complex PTSD, the psychologist noted both diagnoses “…involve characterological/personality involvement of symptoms (e.g. dysregulation across multiple domains including emotions and relationships) and are both chronic and pervasive in nature” but confirmed that in the worker’s case,

“…neither chronicity nor pervasiveness is present; instead, [their] dysregulation has been obvious since the trauma (as opposed to pre-trauma) and exists within the context of [their] interactions with WCB personnel since the trauma. This is not sufficient for a diagnosis involving personality dysfunction (i.e. BPD and/or [complex PTSD] and is much better explained by symptoms of PTSD….”

The evidence before the panel, including the worker’s testimony, confirms that the worker’s history contains numerous challenging life experiences and circumstances, but also indicates a history of overcoming those challenges and circumstances. While there is some evidence that the worker previously experienced depression, after the birth of a child in 2002 and possibly, in relation to other family circumstances in 2018, there is no evidence before the panel to indicate that the worker was previously diagnosed with any significant psychological condition until after the accident of February 22, 2019. Further, the panel noted the evidence from the treating psychologist in their report of November 10, 2021, that even if the worker had a pre-existing psychological condition such as BPD, the DSM-5 outlines that pre-existing mental health conditions are risk factors for developing PTSD following a trauma that meets Criterion A, and that a pre-existing diagnosis of BPD in particular “…can increase the likelihood of PTSD and amplify subsequent symptoms” as in the worker’s case. Further, the treating psychologist noted the DSM-5 provides that “Interpersonal difficulties that had their onset, or were greatly exacerbated [emphasis added], after exposure to a traumatic event may be an indication of PTSD, rather than a personality disorder…”.

On reviewing the medical opinions and reports in evidence, the panel is not satisfied that there is support for a conclusion that the worker had pre-existing BPD; rather, we find that the evidence supports the conclusion that the worker likely had pre-existing BPT, and there is a lack of evidence that this impacted the worker’s earning capacity prior to the accident. In this regard, we accept and rely upon the opinion of the treating psychologist that the worker “…seemed to have maintained a fairly successful career in an interpersonally demanding job without the level of dysregulation seen today. This changed in 2019.”

In considering the worker’s position that their continuing psychological condition beyond March 2022 is related to the compensable injury, the panel noted the various diagnoses proposed by treating and consulting professionals in relation to the worker’s response to the accident. The current treating psychologist and treating psychiatrist both remain of the view that the diagnosis of PTSD accounts for the worker’s post-accident presentation and symptoms, with comorbid and pre-existing BPT. Shortly after the accident, in May 2019, a Manitoba psychologist diagnosed PTSD and began treating the worker with the WCB’s approval. At that time, the worker was experiencing symptoms that met the criteria for a PTSD diagnosis, as outlined in the report of May 16, 2019. Around the same time, in May 2019, the worker also saw a psychiatrist on two occasions, who diagnosed adjustment disorder with anxiety, including panic attacks. On June 18, 2019, a WCB psychological consultant determined that there was “no support for a diagnosis of [PTSD] in relation to workplace traumas” as the worker was more likely “experiencing an adjustment-related stress reaction to a workplace stressor, in the context of significant past and current stressors and a history of depression and anxiety.” In late 2019, another psychiatrist assessed the worker over the course of three visits and documented a diagnosis of “Adjustment disorder with mixed disturbance of mood and conduct and a self-reported historical [diagnosis] of PTSD." As noted previously, the third-party psychiatrist offered their diagnosis in October and December 2021 of pre-existing Complex PTSD and BPD, but no diagnosis related to the workplace incident. The WCB psychological advisor, on August 30, 2022, outlined their opinion that the worker’s “…symptoms that were attributed to the diagnosis of PTSD in the initial assessment are related to the diagnosis of [BPD]” which is a diagnosis that “cannot be accounted for by a workplace incident conceptually and is related to longstanding pattern of behavior and interpersonal relationships.” While the WCB psychological advisor allowed for the possibility that the worker experienced worsening of BPD symptoms following the incident, they concluded that those symptoms were no longer accounted for in relation to the accident of three years earlier.

The panel noted that the WCB psychological advisor did not offer any comment on the diagnosis of Complex PTSD by the third-party psychiatrist to whom they had referred the worker for assessment in 2021. The treating psychologist testified that Complex PTSD is not a diagnosis contained within the DSM-5, the manual of psychological conditions used in North America, but is an accepted diagnosis in the ICD-11, which is the World Health Organization's diagnostic manual. The psychologist testified complex PTSD describes a combination of PTSD and BPD, which is better diagnosed as childhood trauma or childhood PTSD with comorbid BPD, noting the diagnostic requirement for intrusions, memories, nightmares, and avoidance behaviours that are clearly linked to events during a person's formative years. The treating psychologist further explained that complex PTSD is a chronic diagnosis that “…should begin in childhood and wax and wane throughout lifetime, with research suggesting [it] should actually start to burn out in adulthood or decrease in adulthood.” The panel accepts and relies on the treating psychologist’s testimony in this regard, noting that none of the other treating mental health professionals referenced any possibility of a diagnosis of Complex PTSD.

In reviewing the various diagnoses offered, the panel noted a lack of agreement between the third-party psychiatrist and the WCB psychological consultants. We further noted the worker’s concerns that the WCB provided the third-party psychiatrist with extensive information on the worker’s interactions with WCB staff and that the resulting report focused on those issues as well as the worker’s pre-accident life history with comparatively minimal evaluation and assessment of the impact of the compensable workplace accident on the worker. We further note that the current treating psychologist and treating psychiatrist do agree as to the worker’s diagnosis in the spring of 2022 and as to the relationship between the worker’s psychological condition at that time and the workplace event of February 2019.

With respect to the question of the worker’s need for further treatment related to their PTSD, the panel considered that after January 2020, when the WCB accepted that the worker developed PTSD as a result of the workplace accident, which was based upon the reporting and diagnosis provided by the treating psychologist, the WCB subsequently provided medical aid benefits in relation to that diagnosis until March 2022. Further, the panel considered the evidence that the worker continued to receive treatment for PTSD from the treating psychologist and initiated treatment for PTSD from the treating psychiatrist after March 16, 2022. We noted the treating psychologist’s testimony that they continued treatment on a pro bono basis as they believed that failing to do so while the worker’s diagnosis continued would be unethical. Both the treating psychologist and the treating psychiatrist indicated a need for treatment beyond March 2022, and the evidence confirms that their ongoing treatment of the worker is specifically in respect of the diagnosis of PTSD arising from the February 2019 injury.

The panel finds that the evidence indicates a continuity of the worker’s post-accident symptoms and continuity of diagnosis and treatment beyond March 2022. We find that the evidence does not indicate that the worker recovered from their compensable workplace psychological injury by March 2022. We acknowledge that the worker’s recovery was likely delayed by or made more challenging by other life circumstances, including interpersonal relationships, the suicide death of their partner with resulting emotional and financial implications, non-compensable health issues, and interruptions in treatment due to COVID-19 pandemic. We further accept that the worker’s treatment and progress toward recovery was also negatively impacted by their reduced access to treatment due to the March 2022 discontinuance of WCB support for that treatment and the financial impacts of the WCB’s decision to discontinue wage loss benefits while the worker remained unable to return to work.

With respect to the question of wage loss entitlement, the panel considered that both the treating psychologist and treating psychiatrist are of the opinion that the worker remained incapable of a return to work beyond March 2022. We also noted the employer’s submission that the worker’s entitlement to wage loss benefits is limited by their move out of province; however, given the absence of evidence that the worker was capable of a return to work in March 2022, the panel does not find this to be a relevant consideration in this appeal. We noted there is no evidence before us of any discussions between the employer, the worker or the WCB in relation to any return to work offers or offers of accommodation. The panel is satisfied based on the evidence before us that as a result of the psychological injury sustained arising from the workplace injury of February 2019, the worker was not capable of a return to work as of March 16, 2022.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker continued to sustain a loss of earning capacity and to require medical aid after March 16, 2022 arising from the compensable workplace injury of February 22, 2019. Therefore, the worker is entitled to wage loss and medical aid benefits after March 16, 2022 and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of January, 2024