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 benefits for the period June 19, 2023 to July 17, 2023, July 23, 2023 and/or August 10, 2023. A hearing was held on February 27, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period June 19, 2023 to July 17, 2023, July 23, 2023 and/or August 10, 2023.

Decision

The worker is entitled to wage loss benefits for the period June 19, 2023 to July 17, 2023, July 23, 2023 and/or August 10, 2023.

Background

The worker has an accepted WCB claim for a psychological injury that occurred at work on February 7, 2021, after they witnessed a violent event at work. The WCB accepted the worker's injury as post-traumatic stress disorder (“PTSD”) on September 27, 2021, after a WCB psychological consultant reviewed the worker's file and a September 13, 2021 report from the worker's treating psychologist and agreed with the diagnosis provided.

The worker continued with treatment and discussions took place beginning in December 2021 for the worker to return to work. On January 26, 2022, the worker's treating psychologist contacted the WCB to advise the worker had suffered a setback in their treatment with a relapse in their symptoms. On January 31, 2022, the psychologist recommended that the worker was not fit to return to work at that time and further recommended the worker be placed in a different work area when they did return.

On March 11, 2022, the worker's treating psychologist provided a follow-up report to the WCB indicating the worker would be ready to commence a gradual return to work plan the week of April 4, 2022. The employer confirmed the worker returned to work on April 6, 2022. The worker returned to their regular duties in June 2022.

The WCB provided the worker with approval for further sessions with the treating psychologist to assist with the worker's return to work. The worker provided regular status updates to the WCB advising that their return to work had been progressing well, noting they were experiencing some symptoms but with help of the treating psychologist, were learning strategies to cope with those symptoms. An August 3, 2022 report from the treating psychologist, noted the worker "…has made significant progress…" and was successfully working their regular duties in a new area. It was noted that the worker still experienced some symptoms, including nightmares and distressing dreams related to the February 7, 2021 incident, and that the psychologist was working with the worker on strategies of how to deal with and manage those symptoms. A December 29, 2022 follow-up report noted continued improvement in symptoms and the worker's ability to deal with their symptoms.

The worker's treating psychologist contacted the WCB on February 24, 2023 to advise they had met with the worker, who had started to experience nightmares and other symptoms again due to receiving distressing news about the February 7, 2021 incident and requested approval for further sessions with the worker. The WCB met with the worker in-person on March 1, 2023. The worker noted they had missed some time from work due to their symptoms and provided a list of those dates to the WCB on March 6, 2023. After reviewing the times and dates missed with the employer, the WCB provided wage loss benefits for the time missed.

On June 22, 2022, the worker's treating psychologist contacted the WCB via email to advise the worker had a "…series of incidents happened at work…" that caused the psychologist to note safety concerns for the worker given their symptoms. The treating psychologist was recommending the worker remain off work until July 17, 2022, and attend for weekly treatment. On June 23, 2022, the WCB spoke with the worker to discuss their claim. The worker described incidents that had occurred between themselves and a newly hired supervisor and noted those interactions were causing them stress and increasing symptoms of anger. The worker advised they felt they needed a break so they would not overreact and lash out at their supervisor. The WCB received a report from the worker's treating psychologist on June 25, 2023 dated June 22, 2023. The report noted the worker had attended for a session on June 22, 2023, and reported feeling very distressed due to a series of incidents at work "…that triggered significant anger and a fight response." The treating psychologist noted the worker had been dealing with ongoing stressors related to the February 7, 2021 incident and the incidents with their supervisor, which led the worker to feel intense rage and fear that they could not control themselves. The psychologist noted those feelings left the worker in distress and they were having difficulties grounding themselves despite using strategies they had learned in treatment. The treating psychologist recommended that the worker remain off work for their safety and the safety of others and attend weekly sessions, with the worker being reassessed to return to work on July 24, 2023.

A report from the worker's treating family physician from an appointment on June 27, 2023 noted the worker's reporting of worsening moods, increased anger and frustration at work due to worsening conditions, feeling unsupported at work and ongoing workplace stress and trauma. It was recommended that the worker remain off work for 6 weeks. The worker's file was reviewed by a WCB psychiatric consultant on June 28, 2023. The consultant noted an August 6, 2022 report from the worker's treating psychologist indicated the worker continued to experience symptoms of occasional nightmares and feelings of anxiety at work but had "…developed strategies to manage much of the difficulties…" that would arise at work. Subsequent reports from the psychologist dated January 3, 2023, May 23, 2023 and June 25, 2023 noted the worker's feelings of anger and resentment toward their workplace and further noted that those feelings arose specifically in relation to a newly hired supervisor. The psychiatric consultant went on to note the worker was experiencing a significant amount of emotional distress, however, it was noted to be primarily focused on workplace-related issues, which was not an accepted source of trauma for the criteria of PTSD. The consultant opined that a recurrence of PTSD does not normally present as anger, which the worker's treating psychologist provided was the worker's current presentation. Further, the consultant provided that the worker was likely having difficulties working in the current environment based on the workplace-related issues they were experiencing, however, total disability was not medically supported by their diagnosis of PTSD. On July 4, 2023, the WCB advised the worker that their time loss as of June 19, 2023 was not accepted by the WCB as being related to their February 7, 2021 workplace accident.

The worker provided a detailed letter to the WCB on June 28, 2024, asking the WCB to reconsider covering their time loss from June 19, 2023 to July 17, 2023. The worker noted they were feeling "Extreme and uncontrollable anger, rage and emotional volatility…" in addition to breaking down crying for no apparent reason, hyperventilating and uncontrollable panic attacks. The worker also described having "…vivid, recurring nightmares…" of the February 7, 2021 workplace accident, which led to lack of sleep. The worker provided they were also experiencing paranoia related to their superiors, which led to mistrust in authority and leadership figures at work. These symptoms led to the worker having a confrontation with their new supervisor and needing to take time off work. The worker noted the sessions they had with their treating psychologist helped them "…from spiraling further downwards" and had taken June 19, 2023 to July 17, 2023 and July 23, 2023 and August 10, 2023 off work to deal with their symptoms. On July 12, 2024, the WCB advised the worker there was no change to the earlier decision they were not entitled to wage loss benefits for June 19, 2023 to July 23, 2023 and the medical evidence also did not support wage loss benefits for time missed on July 23, 2023 and August 10, 2023.

The worker's representative requested reconsideration of the WCB's decision on the worker's entitlement to wage loss benefits to the Review Office on August 2, 2024. The representative submitted the evidence on the worker's file supported the worker had not recovered from the compensable PTSD diagnosis and continued to experience symptoms of that diagnosis, which was exacerbated by issues related to the February 7, 2021 workplace accident and required time off work to deal with their symptoms. On September 24, 2024, the employer provided a submission in support of the WCB's decision, a copy of which was shared with the worker and their representative.

On October 8, 2024, the Review Office determined the worker was not entitled to wage loss benefits for June 19, 2023 to July 17, 2023, July 23, 2023 and/or August 10, 2023. The Review Office found that the worker had returned to their full regular duties, however, they did not make a full recovery and continued to receive treatment from their psychologist. The Review Office further found there was a change in the worker's mental health difficulties in December 2022. Their treatment initially focused on their PTSD diagnosis but then changed to a focus on helping the worker learn strategies to deal with their anger toward the employer and how their workplace was being run. The Review Office placed weight on, and agreed with, the June 28, 2023 opinion of the WCB psychiatric consultant who provided the worker's current presentation was not medically accounted for in relation to their diagnosis of PTSD. The opinion was that the worker’s difficulties stemmed from workplace relational issues, which were found to be pre-existing.

The worker's representative filed an appeal with the Appeal Commission on October 16, 2024 and a hearing was arranged.

Reasons

Applicable Legislation

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

The following sections of the Act are applicable.

Section 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.

Section 4(2) of the Act 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.

Section 37 of the Act provides that compensation is payable when the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident.

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.

Worker’s Position

The worker appeared in the hearing with a union representative who provided a written submission in advance of the hearing and made an oral submission at the hearing on behalf of the worker. The worker provided testimony through answers to questions posed by their representative and by members of the appeal panel.

The position of the worker is that they experienced a loss of earning capacity during the stated timeframes due to increased symptoms of their compensable psychological injury and was entitled to wage loss benefits as a result.

The worker’s representative states that despite the worker returning to work their treating psychologist noted that the worker was experiencing ongoing difficulties and that symptoms related to the worker’s compensable diagnosis of PTSD would continue as their work environment was filled with triggers.

The worker submits that the evidence is that the worker had significant stressors at work, which caused them significant dysregulation and that they encountered additional stressors at work which resulted in the worker taking time off work.

The worker asks the panel to rely on the evidence of their treating psychologist, which supports a finding that the worker encountered incidents through their work that caused an exacerbation or their already heightened psychological distress and warranted time off work.

The worker is seeking entitlement to wage loss benefits during the time period in question.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer.

The employer’s position is that the evidence on file does not support that the worker’s need for time off for the time periods in question was casually related to the February 7, 2021 workplace injury.

The advocate outlined the employer’s position that the evidence indicates that the worker recovered from the injuries sustained in the accident of February 7, 2021 and returned to their full duties in April 2022, and that the symptoms that later arose are not related to that accident.

The employer states that the worker’s feelings of anger and resentment towards their workplace, and particularly towards a supervisor, were pre-existing and were not medically accounted for in relation to the compensable injury. The employer agrees with the Review Office that the worker’s stressors were workplace relational issues and not related to the diagnosis of PTSD.

The employer states that the worker is not entitled to wage loss benefits.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period June 19 to July 17, 2023, July 23, 2023 and/or August 10, 2023. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports the worker is not capable of returning to work on the aforementioned timeframe. The panel is able to make that finding, for the reasons that follow.

The panel has considered the medical evidence and notes that the documented symptoms of the worker following the workplace injury included depression, irritability, panic, anxiety, anger, sadness, disrupted sleep, nightmares, fatigue and a feeling that was growing out of control. The panel acknowledges that the worker was diagnosed with PTSD and that this was accepted by the WCB.

The evidence is that the worker had ongoing symptoms and had regular therapeutic treatment from their psychologist. The panel emphasizes the May 15, 2023 report from the worker’s treating psychologist which noted the worker’s symptoms, including extreme anger, frustration, anxiety, difficulty sleeping, increased nightmares, fatigue and jitters at work and significant mental and physical fatigue. The psychologist reported that the worker was dealing with various triggers and stressors at work due to changes in the workplace, ongoing exposure to traumatic incidents, increased violence outside of the workplace, and most notably, the news that legal action was being launched against a colleague in relation to the workplace accident.

The panel has also considered the treating psychologist’s email to the WCB on June 22, 2023 wherein the psychologist expresses safety concerns for the worker and others due to a series of incidents at work that have “significantly dysregulated” the worker. Furthermore, the panel has reviewed the worker’s own communications to the WCB on June 23, 2023, and notes that the worker reported issues related to their coworker and an inability to control their anger. The evidence of the worker at the hearing was that they had no prior issues with their conduct at work and no prior issues with the co-worker in question. The panel accepts the worker’s evidence that their reaction to their coworker was out of character.

The panel finds that during the time frame in question the worker was experiencing ongoing symptoms related to their compensable PTSD diagnosis and that the environment in which they were working triggered the same symptoms or an increase in symptoms they experienced following the workplace incident in February 2021.

The panel places greater weight on the evidence of the worker’s treating psychologist, who has provided treatment to the worker over several months. The panel finds flaws in the WCB Psychiatric Consultant’s June 28, 2023 report, as it focuses incorrectly on whether the worker’s recent workplace relational issues are a source of trauma in the DSM-5 criterion A of PTSD, and whether “systemic or institutional trauma” is an accepted diagnosis. The worker had been diagnosed with PTSD, and therefore a review of whether their current symptoms were exacerbated or had increased was required, not a review of whether the factors or events the worker experienced met the DSM-criteria. The worker did not need to be exposed to further traumatic events for an increase of symptoms to be compensable.

In conclusion, based on the foregoing and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of their workplace injury, and suffered a loss of earning capacity for the period June 19 to July 17, 2023 and July 23, 2023 and August 10, 2023 as a result of the February 7, 2021 workplace accident. The panel therefore finds that the worker is entitled to wage loss benefits.

The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of April, 2025