Decision #142/06 - Type: Workers Compensation

Preamble

While in the course of her employment, the worker received threats of harm which she states caused her to fear for her safety and ultimately stop working. The worker filed a claim with the Workers Compensation Board (WCB) but the claim was not accepted as the WCB found that the worker was suffering from non-compensable stress. The worker appealed the WCB decision to the Appeal Commission.

An Appeal Panel hearing was held on August 8, 2006, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 2, 2003, the worker who was employed by a federal government agency filed a claim with the WCB for work-related “post traumatic stress disorder” which she described as follows:

“On or about mid to late November/2000 – threatened over telephone at work. On or about early May/2001 – verbally threatened at workplace.”

The worker indicated that her last day of work was September 5, 2002. The worker explained that she did not immediately report the incidents to her employer until October 22, 2002 as “fear prevented me from pursuing. Did inform CSIS at the time of Nov. incident and now still updating them – confidentially – also now contacted city police.”

Medical information consisted of a report from a registered clinical psychologist dated November 26, 2002. She noted that the worker “reported that approximately two years ago as part of her job, she began keeping notes on regularities (sic) that she discovered in the books. After an official audit of the books several months ago and subsequent media coverage, she began receiving threats from supervisors and co-workers in the workplace.” Following the assessment, the psychologist diagnosed the worker with DSM-IV criteria for “Post Traumatic Stress Disorder and Major Depressive Disorder, Single Episode, Severe Without Psychotic Features”.

Information on file confirms that the worker’s union complained about the inappropriate behavior on the part of employer representatives and clients directed towards the worker. The worker perceived her role as a witness in departmental investigations had put her health and safety at risk. The worker indicated that she was suffering from significant anxiety and felt fearful for her physical safety.

On January 13, 2003, the worker advised her WCB case manager that the threats she received over the telephone in November 2000 and in the workplace in May 2001 were against her life. The worker indicated that she continued working but used sick credits to miss work and by September 2002, she could no longer continue working. The police had told her that nothing could be done unless the person uttering the threats actually did something.

On February 6, 2003, the worker told her WCB case manager that she reported the threat made in November 2000 to the employer’s chief safety officer. The May 2001 threat was made in the workplace by a co-worker but she did not report it as she feared for her safety. A senior employee was terminated as a result of the audit investigation and he made threats to her after he was terminated. These threats were separate from the threats made in November 2000 and May 2001.

The WCB received a letter dated March 7, 2003 from the employer’s Director of Safety, Emergency and Security Management Division. This letter outlined information concerning the worker’s reporting of the two incidents of November 2000 and May 2001 to the employer and to the police as well as specific details/particulars surrounding the actual threats that had been made to the worker.

In a decision dated April 2, 2003, Rehabilitation and Compensation Services outlined its position that there was insufficient evidence to support the worker’s contention that her current difficulties and time loss effective September 6, 2002 were directly related to the threats that were made in November 2000 and May 2001. The letter stated, in part, “As the threats were not immediately reported to your employer we have been unable to confirm the relationship between the threats and the internal investigation that was conducted.”

On September 11, 2003, the worker’s union representative appealed the decision to Review Office and made reference to a letter on file from a psychologist dated November 26, 2002. The union believed that the letter confirmed a relationship between the two threats made on the worker’s life and her diagnosed condition of “DSM-IV criteria for Post Traumatic Stress Disorder and Major Depressive Disorder, Single Episode, Severe Without Psychotic Features.”

The WCB Review Office referred the file back to Rehabilitation and Compensation Services to gather additional information.

On January 26, 2004, a WCB psychiatric consultant reviewed the file information and stated, in part,

“…a substantial weighting of a psychiatric diagnosis is based on a person’s subjective presentation – that is, how upset they are, as well as any uncorroborated information they report. In this case, there is substantial lack of clarity in the objective material to such an extent that one cannot say with any degree of accuracy that the clt’s [claimant’s] mental health difficulties or their specific diagnosis in any way, related to her workplace.”

Rehabilitation and Compensation Services determined there was insufficient evidence to support that the worker’s time loss beginning September 6, 2002 was related to the threats that she received in November 2000 or May 2001. It was also of the view that the incident which occurred in April or May 2002 and the prolonged harassment which the worker attributed to her supervisor, some managers and co-workers, did not meet the WCB’s criteria for stress. On November 26, 2004, the union representative appealed the decision to Review Office.

Review Office confirmed on March 16, 2005, that the claim was not acceptable. Review Office’s position was that the evidence did not establish that the worker suffered a personal injury arising out of and in the course of her employment. Review Office indicated that no responsibility can be accepted where the worker’s psychological condition was attributable to cumulative stress over a period of time. Review Office’s opinion was that the worker’s psychological condition was the result of several events occurring over a period of approximately two years, rather than one specific and identifiable traumatic event of brief duration.

On April 14, 2005, the union representative appealed Review Office’s decision and requested an oral hearing. On September 7, 2005 an oral hearing took place to consider the union representative’s appeal.

Following the hearing and after discussion of the case on September 7 and September 14, 2005, the appeal panel asked the Chief Appeal Commissioner to refer the case to the WCB for further investigation, pursuant to subsection 60.8(3) of The Workers Compensation Act (the WCA). The WCB was asked to address the argument and additional information presented by the union representative on the acceptance of gradual onset stress under the Government Employees Compensation Act (GECA) rather than under the WCA under which the claim had been adjudicated. The Panel noted that this argument and information was not before the WCB’s Review Office at the time of their March 16, 2005 decision.

On October 5, 2005, an adjudicator II with Rehabilitation and Compensation Services determined that the claim did not meet the criteria for stress under the WCA or GECA. On October 7, 2005, the union representative asked Review Office to reconsider the October 5, 2005 decision.

On February 20, 2006, Review Office determined from the weight of evidence that the claim was not acceptable. Review Office found that the worker had a stress condition that would be considered a cumulative stress condition and that the whole of the evidence did not establish that an accident, as defined under GECA, the Government Employees Compensation Regulations (GECR) and WCB policy 44.20.60 did occur, ‘arising out of and in the course of employment’. On March 6, 2006, the union representative appealed Review Office’s decision and an oral hearing was arranged.

Reasons

Applicable Legislation

The worker is employed by the federal government and her claim is therefore adjudicated under the GECA and related regulations. Under the GECA, a worker who suffers a personal injury by accident or who is disabled by an industrial disease is entitled to compensation. Which provision is applicable to a specific case depends on the facts of the case. For example, where the events giving rise to the injury meet the requirements of an accident, the claim can be adjudicated as an “accident” without the need to consider if the worker was “disabled by reason of an industrial disease.” Where the requirements of an accident have not been met, it may be necessary, depending on the facts, to consider whether the worker was “disabled by reason of an industrial disease”.

The GECA incorporates many provisions of the WCA. In adjudicating GECA claims, the question frequently arises as what provisions of the provincial legislation are incorporated in the GECA and are applicable to the claim.

The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical cause.” The GECA defines industrial disease as meaning “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…”. The WCA contains a definition of occupational disease but excludes stress, except as an acute reaction to a traumatic event.

The WCB at both the primary level and the Review Office considered the worker’s claim under the industrial disease provisions of the GECA and applied the occupational disease provisions of the WCA. They did not consider the claim under the accident provisions of the GECA. The WCB found that the WCA stress exclusion was incorporated into the GECA. The WCB also found that the worker suffered gradual onset stress and that such stress was not compensable as an occupational disease under the WCA and therefore not acceptable under the GECA.

Worker’s Position

The worker was represented by a union representative who made a submission on her behalf. The worker answered questions posed by the panel.

The worker’s representative submitted that the worker suffered from post traumatic stress disorder (PTSD) and that her claim is acceptable under the GECA. He submitted further that her claim is acceptable under the GECA, regardless of whether it is found to be gradual onset stress rather than PTSD. He argued that the provincial (WCA) restrictions on the acceptance of stress claims is not applicable to GECA cases. He referred to Canada (Royal Canadian Mounted Police) v. Rees, 2015 NLCA 15 (CanLII), as authority for this position.

Regarding the worker’s medical condition, the representative reviewed a letter dated July 26, 2006 from a psychiatrist who serves as Clinical Director of the employer’s Critical Incident Stress Management Service. The psychiatrist noted that the worker was exposed to work related threats but continued to work. He also noted that the threats were of a significant nature and that she had reported the threats. He opined that the threats would fulfill Criteria A for a diagnosis of PTSD. He noted that although initially she did not develop symptoms so severe as to interfere with her capacity to work, the severity did increase over time.

The psychiatrist advised that he had reviewed the initial psychological assessment that was done in 2002 and subsequent follow up treatment and correspondence. He advised that “I believe that Dr. [psychologist]’s report (November 26, 2002) and follow up reports were quite clear with the diagnoses, namely Post Traumatic Stress Disorder and Major Depressive Disorder. I agree with her opinion that both these disorders arose as a result of the workplace stressors, including the threats…”.

The psychiatrist also expressed the opinion that PTSD and depression do not have to occur immediately following an exposure to traumatic stressors. He stated that “Denying [the worker’s] WCB claim simply because the symptoms did not develop acutely after the threats goes against all the scientific evidence in regards to the evolution of PTSD symptomatology.”

The worker’s representative read excerpts from the transcript of the worker’s meeting with the police where she described the threats that were made. These included:

-an incident on November 2, 2000 when a third party threatened that certain well known gangs might harm her and her family members if she provided information.

-an incident in May 2001 when a co-worker threatened the worker.

-an incident in April or May 2002 when her superior called her into his office, shut the door and advised her that he knew who had been interviewed for the audit (the worker had been assured this information would be confidential).

-an incident involving a phone call to her home by her former superior who had been removed from his position.

The representative noted that the worker advised the police that she was concerned for her safety.

The worker answered questions regarding her job duties and her work environment. She indicated that she became the primary contact person for her department with respect to an audit that had been commenced. While performing these duties the worker received the noted threats. She also advised that as a result of her work on the audit, she felt she was treated badly at work. She stated that she was referred to as a “rat” by co-workers. She also felt that her superior interfered with her performance of her duties. She advised that she had filed a harassment complaint but that no action had been taken on the complaint. She indicated that before this assignment she was happy in her job and felt that she was very good at her work.

The worker advised that she tried to continue working but was unable to do so. She stated that she began to break down and cry at work and took sick time to avoid dealing with certain people. The worker advised she got to the point that she could no longer work at her position.

Employer’s Position

The employer was represented by its Regional Director, Human Resources and the Director, Accountability. The Regional Director, Human Resources acted as the primary representative. The employer representatives advised that the employer had no position on the issue of whether the worker’s claim is acceptable.

The representative provided clarification of some of the information referred to by the worker’s representative. He advised that the employer has made several attempts to accommodate a return to work by the worker, including relocation. The representative noted that the psychiatrist referred to by the worker’s representative is not employed by the employer. He noted that the psychiatrist’s comments were based upon a file review.

The representative advised that although there have been complaints about harassment, workplace harassment has not been established. In answer to a question, the representative acknowledged that a complaint had been made and that the investigation has not proceeded.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. For the appeal to succeed the panel must find that the worker was injured by accident or disabled by an industrial disease. The panel did find that the worker was injured by accident and that the claim is therefore acceptable.

The panel notes that the WCB did not consider whether the worker’s claim was compensable as an accident. The panel has considered the GECA definition of accident and finds that the worker was injured by accident as provided in the GECA.

The panel finds that the worker was assigned to assist with an external audit of her department. In performing these duties the worker reported information regarding possible inappropriate activities and conduct to the auditor.

The panel also finds that the worker’s role in the audit was known to persons who benefited from the inappropriate activities. This occurred notwithstanding the worker’s understanding that information was being provided in confidence.

The panel accepts the worker’s evidence that she received various threats including a threat that gangs would harm her and her family. The panel also accepts the worker’s evidence she took the threats seriously and feared for her well-being and her family’s well-being. The panel finds that the threats arose directly from the performance of the worker’s employment duties.

The panel also finds that the worker was harassed and intimidated by a superior. Although the employer had not completed its investigation into the worker’s allegations of harassment, the panel accepts the worker’s evidence regarding the conduct of her superior.

The panel acknowledges there are differing diagnoses of the worker’s condition. However, the panel notes the worker’s treating psychologist diagnosed the worker’s condition as PTSD and major depressive disorder and a psychiatrist working with the employer’s Critical Incident Stress Management Service has agreed with this diagnosis.

The panel finds that the worker’s psychological conditions arose as a result of the willful and intentional acts of others and concludes that in accordance with subsection 4(1) (a) of the GECA, the worker has been caused personal injury by accident arising out of and in the course of her employment.

In determining this appeal, the panel has not found it necessary to consider whether the WCA restrictions on acceptance of stress claims is applicable to claims filed under the GECA, as this claim is accepted as an accident under the GECA.

Accordingly, the panel finds that the worker’s psychological condition is compensable as the condition is a result of an accident arising out of and in the course of her employment.

The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 21st day of September, 2006

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