Decision #193/06 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s claim for benefits is acceptable under The Workers Compensation Act (the Act). The worker applied to the Workers Compensation Board (WCB) for benefits for an injury caused by stress related to work environment and harassment in the workplace. The WCB found that the claim was not acceptable under the Act and denied benefits. The worker appealed to the Appeal Commission.
A file review was held on October 23, 2006, at the request of an advocate, acting on behalf of the worker.
Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In early December 2004, the worker filed a claim with the WCB.
Upon speaking with her WCB case manager on December 1, 2004, the worker stated that she has worked as a health care aide for 13 months and had been performing the same duties within that time period. She related her stress to her supervisor harassing her at work. It started when her supervisor called her at home to discuss her work performance. He yelled at her over the phone and told her to either resign or terminate her employment. The worker declined both suggestions. The worker advised that a grievance was filed for wrongful dismissal but the grievance was denied. At a later meeting, it was decided that she would get her job back with some restrictions but she did not agree with the restrictions. The worker advised that all of this caused a build up of stress. An advocate who accompanied the worker stated that the employer was trying to make his client resign and felt that this was a racial issue. The advocate stated that a co-worker had physically grabbed and shook the worker and the employer did nothing about it. The worker did not seek medical treatment after the incident and continued working. The worker provided the case manager with correspondence for consideration, some of which was written by the worker to her employer and union as well as the Manitoba Human Rights Commission.
In a letter dated December 6, 2004, the employer advised the WCB case manager that the worker made no report to the employer regarding any incident that occurred at work.
In a decision dated December 9, 2004, the WCB case manager denied the claim for compensation. His rationale was that the worker’s difficulties were not related to one specific incident occurring at work but several separate incidents that created stress. It was felt that the majority of the worker’s stress was related to concerns and enquiries she had with her employer regarding wrongful dismissal from her job and there were a number of labor and performance issues identified. The case manager concluded that the worker’s situation did not meet the requirements of a stress claim as outlined under the Act.
On December 22, 2004, an advocate, acting on behalf of the worker, appealed the decision to deny the claim. The advocate submitted that the case manager wrongly applied subsection 1(1) of the Act, specifically section (d). He stated that a qualified medical doctor diagnosed the worker as suffering from depression and work related stress, which were accumulated acute reactions to traumatic work place incidents which have been well documented and are a subject of an appeal under The Human Rights Code of Manitoba (the Code). He submitted that the worker suffered racial discrimination at work and that its psychological impact was devastating and disabling and that it invariably produced post traumatic stress.
On January 18, 2005, in response to the advocate’s submission, the case manager noted that an accumulation of acute reactions to traumatic workplace incidents did not satisfy subsection 1(1) of WCB policy 44.20.60, which suggested that stress was not an occupational disease as defined under the Act except as an acute reaction to a specific traumatic event. He noted that subsection 1(1.1) of the Act placed a restriction on the definition of ‘accident’ which indicated that an accident did not include any change in respect of the employment of a worker. This involved labour and performance issues and may include circumstances surrounding promotions, demotions, lay-offs, terminations or stress related to daily work activities. Based on the file evidence, he concluded that the worker’s psychological difficulties are a result of an accumulation of stress over time involving a number of labour and performance issues. As such, the worker’s situation did not meet the requirements of a stress claim as outlined under the Act.
The case was considered by Review Office on February 3, 2005. Review Office agreed with the case manager’s opinion outlined on December 9, 2004 and January 18, 2005.
On November 28, 2005, the worker’s advocate provided Review Office with a medical report from a psychiatrist dated November 10, 2005. He felt that the opinion expressed by the psychiatrist satisfied the compensable conditions of policy 44.20.60 on psychological conditions. The advocate asked that the report be reviewed by an appropriate WCB medical advisor and should there be a disagreement between the two doctors, a Medical Review Panel should be convened.
In a response dated December 12, 2005, Review Office noted that its previous decision of February 3, 2005 was not based on medical opinion and thus it would not be consulting the WCB’s medical division. It stated in its decision that the worker’s situation was indicative of an accumulation of ongoing stressors occurring in the workplace revolving around her interaction with a multitude of individuals. While the scenario brought anxiety to the worker, the scenario was not one deemed compensable by the WCB according to current legislation and policy. On April 10, 2006, the advocate appealed Review Office’s decision and a file review was arranged.
Reasons
Worker’s Position
This appeal proceeded by review rather than oral hearing at the request of the worker’s representative. The appeal was commenced by an Appeal of Claims Decision form dated April 10, 2006. Attachment 1 to the form set out the worker’s reasons for the appeal. Also in support of the appeal the worker’s representative made a written submission dated October 5, 2006. In addition, the panel had the worker’s complete claim file before it.
In the October 5, 2006 submission, the worker’s representative disagreed with the issue before the panel which he considered was “narrow and restrictive.” He submitted that the issue must reflect the worker’s allegations. He alleged that the decision of Review Office was influenced and motivated by arbitrary discriminatory conduct of the WCB staff on the basis of mental status and aboriginal ancestry.
The worker’s representative submitted that the opinion of the worker’s psychiatrist was not given proper weight and was misinterpreted by the case manager. He also submitted that emotional trauma and hospitalization resulted from the environment created by the employer and the worker’s union. The worker’s representative also referred to jurisprudence and legal opinion regarding the jurisdiction of administrative tribunals to deal with human rights issues.
Employer’s Position
The employer was represented by legal counsel who provided a written submission to the panel dated October 16, 2006. The employer’s counsel agreed with the characterization of the issue as set by the Registrar being whether or not the claim is acceptable. With respect to the allegation regarding the conduct of WCB staff, the employer’s counsel submitted there was no evidence of discrimination. He submitted that the Review Office correctly interpreted the Act and WCB policy. He also submitted that the Review Office correctly found that the psychiatrist’s evidence was not relevant to the issue.
The employer’s counsel noted the worker’s representative’s reference to jurisdiction of the Appeal Commission and concluded that human rights issues do not apply in this case as the decision was made upon legislation and board policy.
Analysis
The worker’s representative has disagreed with the definition of the issue. The panel finds that the issue is properly set out and is within its jurisdiction to decide. The panel notes that the worker applied for benefits from the WCB, the claim was not accepted by the WCB and the worker has appealed the decision not to accept the claim. Acceptance of the worker’s claim is the fundamental issue before the panel.
The worker’s representative has referred to the Appeal Commission’s jurisdiction to apply the Code. The panel notes that any power to apply the Code arises when making determinations under the Act. The panel finds that the assertion that WCB staff are biased is not a determination under the Act.
As noted, 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 which can include an occupational disease. The panel did not make this determination.
With respect to an accident, for the claim to be acceptable as an accident, the claim must satisfy the requirements of subsection 1(1) which defines accident as follows:
"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
(c) an occupational disease,
and as a result of which a worker is injured;
Subsection 1(1.1) of the Act, is germane to this consideration. It provides:
The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.
The panel finds that there was a variety of incidents and exchanges arising from the worker’s interactions with co-workers, union and employer. The panel is unable to characterize these incidents and exchanges as accidents. In other words, the panel cannot conclude that the worker had an accident as required by the Act. The panel also notes that some incidents relate to changes in respect of the worker’s employment, such as termination, and are expressly excluded under subsection 1(1.1) as being accidents.
A claim can be accepted as an accident if it meets the definition of occupational disease as set out in subsection 1(1) as follows:
"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event
The panel notes that the worker’s accident report signed on December 1, 2004, identifies the area of injury as “stress”. It describes the accident as “stress related to work environment and harassment, threats and physical assaults by employer and coworkers.” The panel has reviewed the evidence and finds that the evidence does not link her condition to a specific traumatic event but rather to accumulated stress in the workplace. Such a condition is excluded as an occupational disease by the provision noted above.
The panel also notes that the worker has not been diagnosed with post traumatic stress disorder (PTSD). The diagnosis provided by the worker’s psychiatrist in his report of November 10, 2005 is adjustment disorder with mixed anxiety and depressed mood, chronic.
Finally, in determining whether this claim would be acceptable, the panel also reviewed the provisions of WCB policy, Section 44.20.60, Psychological Conditions. The panel notes that the policy applies to psychological conditions which result from an accident arising out of and in the course of employment. In this case the panel found there was not an accident and the policy is not applicable. The panel also notes that the policy provides that for claims after January 1, 1992, stress is not an occupational disease except as an acute reaction to a traumatic event.
The panel finds that the claim is not acceptable and the worker's appeal is denied.
The panel notes the advice of the worker’s representative that the worker has filed a complaint against her employer and union with the Manitoba Human Rights Tribunal.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of December, 2006