The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 7, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being August 14, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The claimant submitted a stress claim on June 24, 2001 relative to his employment as a firefighter. The accident date was recorded as April 27, 2001. In a letter attached with his application for benefits, the claimant stated the following:

"I work for the [name] Fire Dept. which runs a dual service, fire and ambulance. Unfortunately we are only staffed to run a single service (5 personnel). I have worked there for the last 26 years and have attended fires with fatalities before, and while they were disturbing I have always managed to deal with the emotional stress of my job. However our last fire with two fatalities has affected me to the point where I am unable to return to work.

On the night of Feb. 28/March 01 the [name] Fire Dept. was called to a fire on [name] street. A father and his two year old son were trapped in the upstairs bedroom. The Fire Dept. entered the burning structure and brought out the two year old boy first and then went back in and brought out his father. Unfortunately, due to a lack of proper minimum manning, the son was left in a snowbank for a number of minutes without proper resuscitation efforts. When the father was brought out, both were placed in the [name] ambulance for the trip into the [name] Hospital with only one attendant to work on both bodies, again because of lack of proper manning. Nurses at [name] Hospital were astonished to find only one attendant working on two bodies. Needless to say the two casualties were pronounced dead. Two firefighters were also injured in the rescue attempt, one with respiratory distress and the other in extreme shock. Unfortunately there was no one to attend to their medical needs and they were transported into [name] Hospital in an ambulance with NO attendant.

The thought of the two year old being left in a snowbank without proper medical attention and the thought of having to work on two bodies in the back of our ambulance bothered me severely and I had trouble sleeping and in fact still do. I also feared for my own safety because of the lack of proper medical attention due to the refusal of the [name] to properly man the fire and ambulance to their own standards. I made an appointment to see Dr. [name] to help me with this."

A report from a psychiatrist dated July 26, 2001, noted that the claimant was first seen on April 2, 2001 at the request of his family physician. He was also assessed on April 30, May 30 and July 23, 2001. The claimant had no pre-existing psychiatric history. The diagnoses rendered were major depressive episode and moderate to severe stress relating to his job. The psychiatrist noted that the claimant had "some stress at work in that there is a manpower shortage issue there. The crews are under staffed. There was an incident on February 28/March 1st, 2001 where two civilians had passed away from a fire and two firefighters were also injured. Mr. [the claimant] stated that this gave him the realization that it was not safe to work there, and this was a traumatic episode for him. He stated that he had previously handled fatalities on the job but this recent episode and the present lack of staffing have caused concerns for him." The psychiatrist further stated, "It appears that the lack of manpower at his place of employment had lead to the incident of February 28/March 1, 2001, which then seemed to initiate his depressive symptoms."

In an August 3, 2001 decision, primary adjudication determined that the information provided by the claimant did not indicate that a traumatic event occurred and that this situation did not meet the requirements of a stress claim as outlined under the Workers Compensation Act (the Act). Section 1(1.1) of the Act which defines "accident" was quoted in the decision. On August 24, 2001, the claimant appealed this decision to Review Office.

On September 7, 2001, Review Office confirmed that the claim for compensation was not acceptable and quoted Section 4(1), 1(1) and 1(1.1) of the Act as well as WCB policies 44.20 and 44.20.60. Review Office took note of the following evidence:

• the claimant was not involved in the fire on February 28/March 1st but heard about it later through his co-workers;
  
  
• the claimant worked for a month before seeking psychological treatment;
  
  
• the claimant continued to work for another month and on April 27, 2001 management advised the fire-fighters that after having been staffed at a staff of 7, it was being reduced once again to a staff of 5. The claimant then became extremely angry and left work. He saw a psychiatrist on April 30, 2001 and remained off work.

Review Office was of the opinion that in order for the claim to be compensable, there would have to be significant evidence to demonstrate that the reason the claimant was off work and under psychological treatment was as a result of the deaths of the two civilians. Review Office did not feel that this was the case.

Review Office was satisfied the evidence lead to a conclusion that the employer/employee relationship in the work environment as outlined by the claimant was the primary foundation and background behind his understandable need for psychological assessment and treatment. Review Office did not feel that this scenario met the criteria outlined in WCB legislation and policy and thus found that the claim was not acceptable. In December 2001, a worker advisor appealed Review Office's decision and an oral hearing took place on February 7, 2002.

Following the hearing and discussion of the case, the Appeal Panel requested that the claimant be assessed by an independent psychiatrist. This assessment took place on May 9, 2002 and the report dated June 26, 2002 was forwarded to the interested parties for comment.

On July 10, 2002, the claimant called the Appeal Commission and requested additional time to prepare his submission to the Panel. The claimant's request for an extension of time to prepare his submission was granted by the Panel. On August 14, 2002, the Panel met again to discuss the case and took into consideration the claimant's submission dated July 31, 2002.

Reasons

The eligibility for compensation benefits by federal employees is governed by the Government Employees Compensation Act (GECA) and the Government Employees Compensation Regulations (GECR) which are both administered by agreement in Manitoba by the Workers Compensation Board (WCB). In the GECA, an accident is defined as “a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

According to Section 4(1) of the GECA, compensation shall be payable to

(a) an employee who

(i) is caused personal injury by an accident arising out of and

in the course of his employment, or

(ii) is disabled by reason of an industrial disease due to the nature of the employment.

The GECR provide that, “an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time of the disease was contracted ...[is] entitled to receive compensation at the same rate as [he/she] would be entitled to receive under the Government Employees Compensation Act if the disease were an industrial disease ...”.

According to Section 2 of the GECA, industrial disease means:

“any disease in respect of which compensation is payable under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen”.

Subsection 1(1) of the Workers Compensation Act of Manitoba (WCA) defines an occupational disease as:

“In this Act, “accident” means 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

(iii) an occupational disease.

And as a result of which a worker is injured.

In 1993, the Board of Directors of the WCB instituted policy 44.05.10 in order to clarify and/or to expand the definition of accident contained in the GECA. This particular policy provides:

“The following principles will apply when interpreting GECA. The definition of ‘accident’ in the GECA will be given a broad interpretation. Therefore:

1. The phrases ‘personal injury by an accident’ will be interpreted to mean ‘personal injury by accident’.

2. The interpretation of ‘accident’ will encompass both accidental cause and accidental result. That is, the injury itself may be considered the ‘accident’.

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion, will be considered an ‘accident’.”

As the background notes indicate, the claimant contends that he sustained an accident arising out of and in the course of his employment, which resulted in a psychological condition or state that prevented him from performing his duties as a firefighter. In order to better understand and appreciate the claimant’s fitness and situation, we requested that he undergo an independent medical assessment by a psychiatrist. The claimant was subsequently interviewed on May 9^th, 2002.

In arriving at our decision, we attached considerable weight to the opinion provided by the independent medical examiner. In particular, we found the following extracts from the seven-page opinion to be extremely relevant:

“There was no evidence of Shneiderian symptoms. He outlined a history of the staffing problems in the workplace, logically, succinctly and in chronological order with reference to dates and quotes from reports. There was evidence of deep feeling and frustration as he expressed opinions about what he feels to be an unreasonable and untenable staffing situation. ‘A five man crew to do a seven man job – two ambulance attendants, four firefighters (a two-man crew and a two-man back-up crew, plus supervisor)’. He feels his beliefs about this are confirmed and validated by the official reports.

When speaking of the fire which occurred the nights of February 28^th-March 1^st he was able to relate the events in a matter of fact way until he began to speak of the baby being left in the snowdrift. At that point he became tearful. Throughout the interview there was a wide range of appropriate affect expressed – humour, exasperation and tears on the one above noted occasion. There was no evidence of true depressive ideation (negative view of the world and the future) and no suicidal ideation. His concerns and psychological distress were directly focused on the under-staffing which in his view leads to unsafe working conditions which he feels puts the firefighters at a risk he is not willing to assume. It is not only fear for his safety but also fear for the safety of the public he is tasked to protect.”

“At this time I can find no evidence for current depressive symptoms. This man has had a psychological reaction to the workplace stresses (under-staffing). When symptoms or behaviors of a response to an identifiable stressor occur within three months of the onset of the stressors and are significant, i.e., (1) have distress that is in excess of what would be expected from exposure to the stressor or (2) there is significant impairment in social and/or occupational functioning, the diagnosis, according to DSM-III, is Adjustment Disorder.”

“In my opinion (and he agrees) he is not impaired from working as a firefighter in a situation which he perceives to be safe, minimum staffing. This would be a five-man crew if only firefighting; a seven-man crew if it were firefighting/ambulance combined. In my opinion he is not impaired cognitively or emotionally to a degree that would impair him from working in other settings.”

“Mr. [the claimant] is not impaired from working as a firefighter. However, he would not or could not return to working in a five-man crew as he perceives this to be unreasonable, unsafe and as something which is not a reasonable expectation.”

It should be noted that compensation under GECA “shall be determined by the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen employed by persons other than Her Majesty.” In this regard, the Appeal Commission is bound by the policies of the WCB’s Board of Directors as same may relate to the specifics of this case. Part A.(3) of policy 44.20.60 deals with psychological conditions resulting from accidents occurring on or after January 1, 1992 and states as follows: “Stress is not an occupational disease as defined under The Workers Compensation Act, except as an acute reaction to a traumatic event.”

We find the claim is not acceptable. There is insufficient evidence to establish that an accident, as defined under the GECA, the GECR, the WCA and/or WCB policy 44.20.60, did in fact occur as a result of events occurring on the evening of February 28^th/March 1^st, 2001, as asserted. As well, it is also noteworthy to mention the fact that the claimant did not actually attend the fire in question, but rather heard about what happened the day after from his co-workers. We find based on the weight of evidence that the claimant’s psychological condition resulted, on a balance of probabilities, from a generalized reaction to his work environment being the perceived understaffing problems as opposed to the tragic events surrounding the fire. Accordingly, the claim is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of September, 2002