NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim No.: [X] Oral Hearing, December 13, 2011, Bridgewater, NS [X] Date of Decision: January 31, 2012 Decision: The appeal of the September 7, 2011 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner David Pearson.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: In February, 2008, the Worker hurt her back, right leg and right shoulder when she fell off steps at work while carrying a 50 pound bag of crumbs. The Worker filed a claim for compensation. The Board initially accepted that the Worker s back and right leg injuries were compensable, and provided benefits while the Worker recovered. It later accepted the right shoulder injury as compensable, after receiving additional evidence from Dr. Hewins. The Board determined that after treatment, the Worker had been left with a permanent medical impairment, which it rated at ten percent. The Board paid the Worker temporary benefits until November, The Worker was unable to return to her pre accident work as a result of her injuries, but the Board decided that the Worker was able to return to other work as a customer service clerk. The Board began paying the Worker an extended earnings replacement benefit and permanent impairment benefit in November 2009 when temporary benefits ended. During the course of treatment, the Worker required psychiatric treatment for issues related to events in her past. The Board initially provided compensation for treatment and medication, but later decided that the need for this treatment was not related to the Worker s compensable injury. In an April 19, 2011 decision, the Board denied further compensation in relation to the psychiatric issues. The Worker appealed that decision to a Hearing Officer, but her appeal was denied on September 7, The Worker appealed the Hearing Officer s decision to the Tribunal, The Tribunal appeal proceeded by oral hearing. The Worker was the sole statutory participant in attendance at the hearing. She testified on her own behalf. The Worker also filed a series of documents with her Notice of Appeal, which she wanted the Tribunal to focus on in consideration of her appeal. Those consisted of a September 29, 2011 letter from the Worker, with copies of several documents from the Worker s claim file. No other evidence or submissions were received from any participant. ISSUE AND OUTCOME: Is the Worker entitled to compensation for her psychiatric issues? This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 No, the Worker is not entitled to compensation for psychiatric treatment and related medications and expenses, as there is an insufficient causal relationship to the work injury to attract compensation. ANALYSIS: The Workers Compensation Act, S.N.S , c.10, as amended (the Act ) applies to this appeal. Section 187 of the Act requires me to give the Worker the benefit of the doubt, which means that if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. The Worker seeks entitlement to compensation for her psychiatric treatment, related medications and expenses. The Worker readily admits that her psychiatric issues were not caused by her workplace injuries. However, she says that she was able to block those issues out and move on, such that they did not cause her distress until after her compensable injury. Further, that the reason that those issues required treatment was because of factors related to the adjudication of her claim by the Board. The Worker has been diagnosed with post traumatic stress disorder, related to personal events from her past. They emerged when they did because of feelings the Worker had after her injury that mirrored feelings she had in her past. Those feelings were of not being believed at a time of stress. The Worker was assessed for a Tier 2 multi disciplinary treatment program at CBI on May 14, The Worker reported a high level of anxiety regarding her future regarding a return to work and financial compensation. The Worker reported that she had been diagnosed with depression, and that her doctor had prescribed Effexor for those symptoms. It was felt that the Worker would not benefit from participation in the program considering her high pain focus and symptoms of depression. The Board arranged for the Worker to be seen by Dr. Gosse, a psychiatrist, for an independent psychiatric assessment. It was during this assessment, that the Worker disclosed feelings of not being believed about her pain levels by the Board, and of events in her distant past where she was also not believed. Dr. Gosse thought it was the similarity of feelings around not being believed that lead to the emergence of unresolved issues from the past. He recommended psychiatric counselling to address the unresolved issues as these were a barrier to rehabilitation.

4 4 The Worker went on to receive psychological counselling in her home area with various individuals, including psychiatrists Dr. Bruce and Dr. Ramessar, as well as two different mental health nurses. The Worker also started taking medications Prestiq and Remeron to help deal with the psychiatric issues she was experiencing It is these medications which the Worker seeks coverage for, as they are quite expensive, and the Worker cannot otherwise afford them. The Board initially covered the cost of these medications, but coverage was discontinued a couple of times during the adjudication phases of her claim. Each time coverage was discontinued, the Worker indicated that her progress would suffer because she could not afford to maintain the medications, and it would take some time to re gain that progress once the Board resumed coverage. The psychiatric reports document generally improving symptoms over time with the use of these medications, coupled with counselling. The Worker said that progress was lost again after the Board terminated coverage. She was able to secure some medication samples from her doctor, but in the intervening period, her progress was lost again. Dr. Gosse saw the Worker on the Board s behalf on two more occasions, October 29, 2010 and February 2, At the October 2010 visit, the Worker disclosed more past events that had come to light since beginning psychiatric treatment. He diagnosed a post traumatic stress disorder ( PTSD ), delayed onset. Dr. Gosse reiterated that the PTSD symptoms were not from the work injury, but to events from the Worker s past. Dr. Gosse noted that the workplace injury itself was not especially emotionally traumatic, and that the stress in dealing with the Workers Compensation Board was not excessive or unusual. He characterized the Worker s memories as,... a time bomb likely to become conscious at some point in her life and often this occurs in relation to some stress. The process of being in counselling/psycotherapy itself is likely bringing more fully into consciousness past events and traumas which would intensify her anxiety/posttraumatic symptoms. To causally connect it to the workplace injury, I think would be excessive. In his February 2011 report, Dr. Gosse reiterated his opinion from his last report as to the role of the Worker s involvement with the Board. He indicated that there were likely many factors that contributed to the re opening of the post traumatic stress symptoms, including active therapy, but that the workplace injury was not a cause. In this case, there is no direct connection between the work injury and the Worker s need for psychiatric treatment and need for related medication. It was not the work injury itself

5 5 that required the Worker seek psychiatric treatment in the same sense that it required the Worker to seek medical treatment for the back and/or shoulder injury. Rather, the causal link identified is the Worker s treatment at the hands of the Board combined with the Worker s personal characteristics and frailties. The Board appears to have decided the issue on the basis of whether the Worker sustained a stress injury. Dr. Gosse asked stress related questions in some of his reports, as to whether there was unusual or excessive stress that would have caused the need for treatment. In my view, viewing the issue as whether or not there was a stress injury is not a proper way of deciding the issue. We are not addressing whether there was a new compensable injury, but rather, whether the treatment and medication the Worker seeks for her psychiatric condition are causally related to her existing compensable injury. Dr. Gosse also raised another legal basis of addressing compensation; that was whether there was an aggravation of a pre existing condition. Again, in my view, that type of analysis is not the proper manner of addressing the question in this case. While the factors giving rise to the PTSD were in the past, there was no pre existing condition, per se, to aggravate. Also, it was not a work injury that was alleged to have aggravated a preexisting condition. In my view, the only proper way of looking at this issue is to look broadly at whether this should be the responsibility of the Worker s Compensation system, generally. It is trite to say that the Worker s Compensation system cannot and does not cover every loss occasioned by a work injury. Limits and exclusions abound in the legislation and in Board Policies. The application of common law causation principles in the workers compensation context came before the Supreme Court of Canada in Kovach v. British Columbia (Workers Compensation Board), 2000 SCC 3. In that decision, the Court agreed with the dissenting reasons of Donald, J.A. in the BC Court of Appeal decision below [Kovach v. Singh, 1998 CanLII 6423 (BCCA)]. Justice Donald had decided that the British Columbia WCB was not required to apply common law principles of causation such as novus actus interveniens, but indicated that no single theory of causation could be considered universally applicable and that it all depended on the policy goals of the workers compensation system. While the Board may not have been bound by such principles, the Court did not rule out the use of such principles in establishing causation in particular cases. In the present case, one needs to think about how direct a connection must be present in order to warrant a finding that there exists a causal connection to a workplace injury. That is, whether the treatment and medication sought in this case is too remote from the

6 6 workplace injury. In my view, the link between the treatment and medication sought in this case and the worker injury is too tenuous to attract entitlement to compensation. The benefits sought in this case bear only an incidental relationship to the injury in question. The most significant cause of the Worker s need for therapy and medication are related to issues personal to her. That is, it was the Worker s reaction to events that was the cause of psychiatric issues coming to the fore. As Dr. Gosse said, this was a time bomb waiting to come out. The trigger in this case was how the Worker was feeling about not being able to work and bring in money to the family, and her reaction to being in pain and in conflict with the Board. The adjudication of her claim followed a not atypical course, with decisions being made on the basis of available evidence. I do not see any behaviour on the Board s part that should attract the label of an accident, stress or otherwise, such that psychiatric treatment resulting from the Worker s reaction to those events would be compensable. While sympathetic to the Worker s plight in this case, I find that there is an insufficient nexus between the benefits sought in this case and the work injury. The Worker is not entitled to the compensation sought. CONCLUSION: The Worker s appeal is denied. She is not entitled to compensation for psychiatric treatment and related medications and expenses, as there is an insufficient causal relationship to the work injury to attract compensation. DATED AT HALIFAX, NOVA SCOTIA, THIS 31 ST DAY OF JANUARY, David Pearson Appeal Commissioner

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