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REVIEW DECISION

Re: Review Reference #: R0119660

Board Decision under Review: Augu t 3,2010

Date: 'January 25, 2011

RevIew Officer: AlianWothe rspoon

The workerreque,stsa review of the AUgUst 3,2010 d ecisio of the Workers·

Compensation Board ("the Board'), which operates asW afeBC. The worker

, is represented bya solic;:itor, who madewrittensubmissions nsueport ofth¢ request for review. The employer was given notice of1t!e r'eieV'/, butis not participating.

Section 96(Q) of the Worl<ersCompensationAct(theRAcrj 9 es a Review

Officer aulhority to conduct this review. '

Issue

The issUe before me is whether the worker sustained a com ensable mental stress injury.

Background and Evidence The worker is the general manager for a dog tour company. n May 7, 2010, the . worker filed an Application for Compensation for Post Traum . Stress Disorder ("PTSIY'}.ln his application, the work;er stated that he had put dawn 3QD.,f, of

the company's herd, approximately 70 animals. The Employ r's Beportof Injuty was fried on May 18,' 2010. In it, the employer indicatedlhat 100 dogs had been put down on April 21 and 23, 2010. The employer did not pr test aoceptanceot

the claim. " ,

On July 5, 2010, the Board recerved chart notes from Ms. R. clinical counselor treating the worker. The chart notes indicated that the work had been treated in late 2009 after euthanizing a number of dogs. The chart n es indicated that the worker was being treated for stress. However after the h rd reduction on

April 21 anti 23, 2010, an April 28, 2010 chart note iridii:ated atinent for PTSD.

.on August,1. 2010, the Board Case Manager (jIC~) spoke, request, with the worker's wife and wastold the following:

• The worker developed PTSD as a result of having to p down a large number of dogs. Due to a slow winter season. approx mately 100 dogs were eutnanized, • ,The worker had been employed with the company for known a lot of dogs over the years. He had named an dogs that were put down.

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" The worker has having panic attacks and difficulty si

• Attempts were madeto adopt out as many dogs as 6sible.

• Part of the worker's job indUded herQcontrol; what rn de it different on

this occasion was the large number of dogs involved.

In tne August 3.,?01 0 decision letter before me on this revi , the eM did not

aUowthe wurkerts claim on the basis that his PTSD did nota 'se'out of a sudden and unexpected traumatic event.

Submissions:

In support of the request for reviewt the worker's solicitor ma e BIn extensive written submission which included a . statutory declaration fro the worker

-providing additional evidence not before the eM, written arg ent;additional

medical records and case law supporting the solicitor's subm ssiens, I wmonly blieftysummariZe its contents, .

In his statutory declaration, the worker stated the following;

• His employerprovides dog sled tours. His duties inet de feeding, caring

. for and generally handling hundreds of dogs. Heresi es at the same . location as the dogs and descnbes his posit jon as sim Jar to that of a farmer; in that he must be aV!1ilable to attend the anim Is seven days a week at all hours.

• Among his duties, he occasionally euthanized animal .

• Narmally he has euthanrzed only a single dog at a tim 1 but on rare occasions has euthanzed four or five at a time. In th past, he has

euthanized dags due to old age, illness, injury and wh re there were .

unwanted puppies. All prior eutls were done with the upport and approval

of a veterinarian. .

• In the past, his practice when euthanizing a dog was t take it'for a walk in the woods and give them a nice meat meal to di$1raet hem, That would make far a calm environment and kept the dogs away om the gereral' population so as not to disrupt them. He would use a' un to euthanize the dogs.;,

'.. On April 21 and 2312010, he was tasked to cull the ptoyer's herd by

approximately 100 dogs. The size of the cun meant t 1 he had no choice but to euthanize the dogs in fuR view ofo1her dogssla d to be

euthanized.. A veterinarian was contacted, but refu to euthanize

healthy animals~ Attempts were made to adopt out th dogs with only

limited success, .

• The worker had raised many of the dogs he had to e anize from bj~h,

named them. and had developed a strong emotional nd of mutual Jove

and trust with them.

• On April 21, 2010, he noticed that the. dogs were getti 9 harder to handle by about the 15th dog_ It appeared to him t~at the dog we;re experiendng

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anxiety and stress from observing the euti1::-nasia of o er members of the pack and were panicking.

... As a result ofthe panic, mid~way through April 21 st, h wounded but did not kill one dog. "Suzie". Suzie was the mother of his amily's pet dog

"BumbIeM• He had to chase Suzie through the yard b use thehorritic

noise she made when wounded caused him to drop t leash. Although she had the leftslde of her cheek blown off and her e e hangiJigout, he was unable to catch her. He then obtained a gun with a scope and used it to shoot her when she settled down close to another roup of dogs. When he went to gather her body he was attacked by one 0 the other dogs and bitten in the arm. Although because he had a 1hick sh rton he was not .

injured, the moment was horrific given his fear when acked combined .

with his feelings about the culling of the dogs. .

• After disposing of Suzie's body, he noticed that anotll r dog, ·Poker" was injured: He realized that when he shot Suzie, the bun t passed through .and injured Poker. Poker was covered in blood from neck. wound and covered in his own feces. He believed that Poker su red for

. approximately 15 minutes before he could be put d· ; Poker.had·not

been slated to be euthanized and was one of his favo tes.

• On April 21, 2010, he put down approximately 55 dOg . As he neared the

-. end of the cull that day, the dogs were so panicked th y were biting him; he had to wrap his arms in foam to prevent injury. He Iso l1adtQ perform what he described as "execution style" killings where e wrestled the dogs .. to the ground and stood on them with one foot 10 sho them. The last few

kills were -multiple-shot killings as he was simplYI.male to get a clean shot. He described a guttural sound he had never hea d before from the dogs and fear in their eyes.

• The incidents on April 23, 2010 were worse than thos on April 21, 2010. • . The fear and Cltl'laety In the herd began almost immedi tely. Many of the kilfings were multiple-shot-execution-slyJeandit took great amount of time and wrestling to get the dogs in a. position to be p . t down.

• The first signiflcant inCident on April 23, 2010 occurr When he noticed

. thai a female, "Nora", who he hadshctappro:ximately 0 minutes before, was crawling around in the mass grave he had dug fo the animals. He

had to climb down into the graV(! amidst the 10 or so dies already there,

and put her out of her misery.

• Shortly thereafter, he grazed an uncooperative male. t king off part of his head. The dog bolted and the worker realized he was out ofammuniti<m. When he went to get more, he was attacked by the do and had to kill the dog wtth his knife, by slitting its throat while the dog w s on top of him.

...After the inddent with the male, he switched to using rifle to euthanize the dogs as the stress level of the herd was so high h felt he would

otherwise have to chase after many of them. .

• By that point he wanted nothing more than to stop'the 'nightmare:" but he continued because he had been given a job to finish a d did not want IQ prolong the suffering and anxiety of the whole kenneJ opulation. He stated that he. felt "numb".

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• His memory of the final 15 dogs is fuzzy . Some he sh t cleanly, others he had to chase. In some cases it was simply easie.r to 9 t behind the dogs

and slit their throats and let them bleed out. By tf'Ie. he was covered in.

blood.

• When he finished he cleaned up the mess, filled in 111 mass grave and . . tried to bury the memories as deeply as he-could.

.• Soon afte~rds he sQughtprofessional help. On Apr 128, 2010 he saw Ms. R. He hadseen her in the past after he had euth nized sma"

. numbers of dogs. Ms. Rdiagnosed him with prSD ..

. • Despite counseling, he has continued to deteriorate m ntally and

emotionally. .

• Prio[tothe mass cull onApril 21 and 23,2010, he did not have any signs of PTSD or dissociativesymploms.

The chart notes from the worker'=- family physioian, Dr. p. in ¢atec! that the worker was seen on May 27,2010, complaining of poor app . e, inability to

. cope, poor memory and concentration, agitation, anger and opelessness after the mass culling. They do not contain any indication of PTS and/or dissociative symptoms prior toApril2f 2010 ..

rnaOctober 3, 2010 clinical assessment, Dr. M,a psycholo st, noted that the worker complained of panic attacks, nightmares, steeps dist rbarice, anger,

. irritability and depressed mood since culling approximately 1 0 dogs. When first

seen by Dr. M, the worker became so distressedwheh d ing the events that

it was necessary to stop and begin a series of calming and 9 unding activities,

Dr. M noted tha~ in addition to the symptoms of PTSD, the rkerexhibHed

dissociative symptoms.

Dr. M provided a diagnosis of PTSD with dissociative symp ms. Dr. M concluded that It was -highly probable" that the dog cull was esponsible for the

worker's symptoms and condition. .

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1 paraphrase the worker's solicitors' submissions 35 follows:

.. The worker suffered an acute reaction to a sudden,u expected and traumatic event which gave rise to the diagnosed PT 0 condition with dissociative symptoms.

_, . The claimis not based on the cull itself; rather. it is ba ed on the events which occurred during the cull, specifically the accide 81 wounding of some of the dogs, the near misses, and what occurre thereafter.

• It does not matter that tile worker had eutnanized dog before without suffering such a reaction. In this case, the culling res Ited m a number Of). , .

. events that were unexpected and sudden. Additionall • the "mass-cull" Ii,

was unique in its size, not only in respect of the worke s experiEmce, but '

in all of Canada.

• While Board policy indicates that a mental stress inju manifesting as a result of a series of cumulative rnernat stress jnjurle~ ver time IS not

• c'

compensable, in this case, the incidents during the cU I oCCurred'close enough in time to eaeh cther that they should be cons dered asilJgle event. In the alternative. the final incident where the orker was' attacked by the wounded male dog and eventually dispatched ith a knife was of

.as sufficient magnitude in and Of itself to, ha.ve trigg the worker's

condition. '

Reasons and Decision

'Mental stress claims are dealt with onder section 5.1 of the ct which provides ,that a worker is entitled to compensation fQrmental stress 0 Iy it the following

conditions are met: '

• The mental stre$$ i$j an ;:icute reaction to a sudden and u expected traumatic

event arising out of and in the course of the worker's loyment

• The mental stress is diagnosed by a physician or psycho ist as a mental or.

physical condition that isdescnbed in the most recent erican Psychiatric

Association's Diagnostic and Statistical MEltlu~1 of Mental Disorders (the "DSMII) at the time of the diagnosis, and;

• The mental stress is not caused by a decfsion of the wo er's employer relating to the wof1(ers employment, including a decision 0 change the work to be performed or the working condition$) to diseipUne t 'worker or to terminate the worker~ employment.

The policies relating to this review are found in Rehabilitatio Claims Manual, Volume II (ILRSCfIIf). The board of directors changes to the policies on compensation for personal injury Chapter 3 of the ,RSCM; however, these new policies only apply tO,claims for njuries, mental stress or acciden~s that occur on or after July 1, '2010. Since the workers injury occurred before July 1, 2010, the previous Chapter 3 polici apply to this . ' review;

The policy with respect to mental stress. claims is set out in alicy item #13.30, of the RSCM, MentaJ Stress. The policy provides that there is tw'o step test. '

1. There must be an acute reaction to a sudden and un xpected traumatic

event. '

2. The sudden and unexpected traumatic event must ali e out of and in the

course of ehlployment. '

The policy notes that an acute reaction is one which comes crisis quickly;

typically it is immediate and identifiable. The policy does no e however that the , acute reaction may be delayed. A traumatic event is an em tionally shocking event that is clearty and objectively identifiable and sudden I'd unexpected in the course of the workers empJoyment.

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Amendments (0 policy item #13.30 were approved by the 80 rd of Directors on July 14, 2009 (and made effective to all decisions, including ppellate decisions, on or after April 30, 2009). The amendments included the a dition ofa definition at a "traumatic" event as an emotionally shocking event and efetion of thl;.!i requirement for me-event to be generally accepted as traum tic. The effect of

this dele1ion is that an adjudication of whether a reasonable rson would have

considered the event to be traumatic is no longer needed.

The only evidence before me with respect to what occurred n April 21 and 23, 2010 is that set out in the claim file and the worker's sta1uto declaration.There . is no contradictory evidence before me; thus I accept the wo k.ers account of

what occurred without reservation.

Applying the two ,step test together, I find that there was a dden and unexpected traumatic event arising out of the worker's empl yment. I find that I do not need to decide whether all of the incidents which oc rred on April 21 and 23, 2010 were close enough together in time that they shoul be considered a single event I am satisfied that the final incident described y the worker, where he was attacked by the wounded male dog on April 23. 201 was ~oth unexpected and traumatic. Notwithstanding the absence of hysical injury tolhe worker, the drcumstance where the worker found himself on his back, fighting off a wounded sled dog and eventually dispatching it with a ko" I was emotionally shocking such as to constitute a sudden and traumatic even within the provisions of the new policy item #13.30.

I also find that the worker had an acute reaction to the accid nt. Although it is not clear exactly when the workers PTSD symptoms first m nifested. th~y were documented by Ms. R in her April 28, 2010 chart notes. As oted in policy Hem . #13.30. the reaction is typiru;llly immediate and id.entifiable. owever,in certain situations, the acute reaction may be delayed. In all cases, e ·evidence must establish that the acute reaction is (tJ.le to a sudden and un pected traumatic event that arose out of and in the course of employment.

Aithoughit-may-:not·havebeenimmediate,-I-e;ondlJde that th wo~er's reaction was acute, inthat it manifested within five days of the incide t.

In my view, the reports from Ms. R, Dr. P and Dr. M support hat the worker's psychological symptoms, diagnosed by Dr. M as PTSD with issociative symptoms, arose out of and in the course of the worker's e ployment on April. 23, 2010. Although I do note that the worker had ear1ier re ived counseling from Ms. R for stress arising out of an earlier culling. of five d g5, in this case. Dr. M has provided a diagnosis for the worker's psychological s mptorns separate and apart from his earlier symptoms. J accept Dr. M'ij; diagn sis and his cQnclusion that it resulted from the mass cull. I find that the orker has been diagnosed with a mental condition, specifically PTSD with.di ociative symptoms, described in the DSM and that this me~tal condit on is an acute

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reaction to a sudden and unexpected traumatic event which 201 O .: Accordingly, I allow the worker's request for review.

the worker sought reimbursement for costs incurred in prod cing evidence. specifically Dr. P'S chart notes and Dr. M's medical-legal rep rt

Board pOlicy #100.501 Expenses Incurred in Producing Ewd 1 authoriZes the

reimbursement of expenses involved in the production of evi ence in certain circumstances. I find that Dr. P's chart notes and Or. M's m ical-I¢galreport fall . . within the ambit of this policy. It appears reasonable for the rkerto have assumed that obtaining this evidence was necessary. The B ardistherefore directed to reimburse the worker for the cost of these medica opinions, lip to the rate specified in the Board's fee schedules, If no rate is specl ed, the worker should be reimbursed up to the rate that the Board would no ally pay for these

types of medical reports. ..

Conclusion

As a result of my review: I vary the decision of the Board dat August 3, 2010.

Allan Wotherspoon Review Officer Review Division

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