Decision #157/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 3, 1999, at the request legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 3, 1999.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On May 20, 1999, the claimant's employer submitted an Employer's Report of Injury or Occupational Disease form indicating the following:

"We (management) conducted a performance evaluation with the employee on April 15, 1999. On April 16, 1999, a.m. the employee phoned in sick. In the p.m., we received a faxed doctors note from the employee stating that she was unable to return to work for an indefinite period."

On May 28, 1999, an adjudicator from the Workers Compensation Board (WCB) wrote to the claimant to advise that the claim for compensation could not be accepted as it did not meet the requirements for a stress claim as outlined under the Workers Compensation Act (the Act). This decision was appealed by legal counsel, acting on behalf of the claimant.

In a sworn statement dated July 22, 1999, the claimant provided details regarding her job duties and submitted correspondence from her personnel file such as letters which were written by the employer and correspondence written by the claimant to her employer. With regard to the present claim, the claimant stated that she had been off work since April 16, 1999 due to stress that she felt was related to getting poor performance appraisals on December 24, 1998, and April 15, 1999.

The claimant stated that she first attended her doctor on April 16, 1999, regarding stress and that she told him what had happened over the past 4 months. She said she phoned in sick on April 16th because she was not feeling well and the doctor told her not to return to work. The claimant stated that she was a single parent with grown children whom she had always supported. There were occasions for brief periods when she was on small dosages of anti-depressants. There were no stresses outside of work that led to her condition.

Medical information received from the attending physician dated June 28, 1999, indicated that the claimant was seen on April 16, 1999 with work related stressors that had gradually occurred from January 1999. The diagnosis was major depression with adjustment disorder. The physician stated that the claimant was instructed to stay off work due to psychological symptoms that would not allow her to function in a high demanding environment.

On July 29, 1999, the WCB's Rehabilitation and Compensation Services confirmed that the claim for WCB benefits was not acceptable. It was determined by the adjudicator that the information provided did not indicate a traumatic event had occurred. It appeared, however, that the claimant's difficulties were related to a change in respect of her employment which would not be compensable by the WCB based on the Act. On August 11, 1999, legal counsel for the claimant appealed the decision and the case was referred to Review Office.

On August 27, 1999, Review Office confirmed that the claim was not acceptable and particularly referred to Section 1(1.1) of the Act. Review Office stated that section 1(1.1) clearly indicated that the definition of an accident did not include any change in respect of the employment of a worker. Review Office noted that on April 15, 1999, the claimant received a negative performance appraisal and then attended her physician the following day regarding her anxiety and state of mind. In the opinion of Review Office, the claimant's psychological conditions were not considered to be personal injury by an accident arising out of and in the course of employment, but rather stemmed from employer/employee relations which were not covered under the Act.

On September 14, 1999, legal counsel appealed Review Office's decision stating that the claimant's condition was a compensable injury as " it was an acute reaction to a traumatic event. The particular event in question was a poor performance review given to her, and her psychological condition is a direct result of that review." On November 3, 1999, an Appeal Panel hearing was held to determine whether or not the claim was acceptable.

Reasons

The issue in this appeal is whether or not the claim is acceptable. The relevant subsections of the Workers Compensation Act (the Act) are 1(1) which defines accident; the definition of an occupational disease under this section and subsection 1(1.1) which restricts the definition of accident.

Subsection 1(1) states:
Definitions
1(1)
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

  1. event arising out of, and in the course of, employment, or
  2. thing that is done and the doing of which arises out of, and in the course of employment, and

c. an occupational disease.

And as a result of which a worker is injured.

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

  1. peculiar to or characteristic of a particular trade or occupation; or
  2. peculiar to the particular employment;

    but does not include

  3. an ordinary disease of life; and
  4. stress, other than an acute reaction to a traumatic event.

Subsection 1(1.1) states:
Restriction on the definition of "accident"
1(1.1)
The definition of "accident" in subsection (1) does not include any change in respect of the employment of the worker, including promotion, transfer, demotion, lay-off or termination.

Relevant WCB policy in this appeal is Section 44.20, Disease/General. In the Policy Statement, Part 2, Definitions Relevant to Occupational Disease we note in part:

d. "acute reaction to a traumatic event"

    Referring to stress, an acute reaction is a reaction that creates a condition in the worker that is clearly discrete from the condition previous to the event. The traumatic event is an identifiable physical or psychological occurrence, occurs within an identifiable time frame that is normally of brief duration, is not a series of minor occurrences, and is capable of causing serious physical or psychological harm consistent with the acute reaction.

In this appeal we reviewed all the evidence on file and given at the hearing and find that the evidence supports a finding, on a balance of probabilities, that the claim is not acceptable.

This claim was brought forward on the basis that the claimant developed a stress condition which she attributes to difficulties within her office environment. Ultimately, the claimant received a poor performance appraisal on April 15, 1999 from her supervisor that the claimant alleges constituted a traumatic event which precipitated an acute stress reaction. We note that the claimant immediately sought medical attention and has not worked since April 16, 1999.

We note from the file that the claimant has a past history of stress for which she has been prescribed medication and which appears to pre-date the commencement of her employment with the employer of record. In this regard we note the specific wording of the policy which states, "that an acute reaction is one which is clearly discrete from the condition previous to the event." We also note the legislation and policies governing the WCB which specifically speak to when a condition of stress would be considered compensable. In particular, we find that subsection 1(1.1) of the legislation, which outlines the restrictions to the definition of accident, would bar this claim.

The weight of the evidence, on a balance of probabilities, supports a finding that the claim is not compensable. We find that the claimant has a stress condition that would be considered a cumulative stress condition and as such does not meet the criteria of the legislation and policy relating to the acceptance of such a condition.

The legislation is clear that a compensable accident entitling a worker to benefits does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination. In our view this section would clearly include the receipt of a poor performance appraisal.

We find that the claimant's psychological symptoms would not constitute personal injury by accident arising out of and in the course of employment, and that they may have occurred in part as a result of labour relations issues.

In determining whether this claim would be acceptable, we also reviewed the provisions of WCB policy, Section 44.20.60, Psychological Conditions. It is our view that the provisions of this policy would not apply in this case. Although the policy is not exclusive it is apparent from the wording that the policy relates to psychological conditions resulting from serious or life-threatening events (emphasis ours). In our opinion the circumstances of this claim are such that this policy does not apply. Therefore we find that the claim is not acceptable and the claimant's appeal is denied.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of November, 1999

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