The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of the Workers Compensation Board (“WCB”) Review Office decision denying her claim for psychological injury.

The worker filed a claim with the WCB indicating that she suffered an accumulation of stress, anxiety and severe depression as a result of verbal abuse and harassment at work by a co-worker occurring over a ten year period. The claim was denied by initial adjudication on the ground that stress is not covered as a compensable injury under The Workers Compensation Act (the “Act”) unless it results from “an acute reaction to a traumatic event”. The Review Office also held that the personality conflict between the workers did not meet the definition of a compensable accident under the Act.

The worker’s union representative appealed the Review Office’s decision to the Appeal Commission and a hearing took place on September 12, 2007. The panel discussed this case on several occasions subsequent to the hearing.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

Reasons

Background

The worker filed a claim on January 25, 2006 indicating that she suffered a stress injury on November 10, 2005. In the narrative portion of the claim, the worker related her stress to a history of harassment and verbal abuse inflicted by a co-worker on and off for 10 years. She indicated that the co-worker caused her to have anxiety attacks. The worker noted that she had been diagnosed by a psychiatrist as suffering from anxiety and severe depression requiring medication and counseling. The claim indicated that the worker stopped working on November 10, 2005.

A WCB adjudicator spoke to the worker on January 26, 2006. The notes on file respecting this conversation indicate that the worker stated that she suffered an anxiety attack in November 2005. The worker indicated that there was no specific incident that precipitated the anxiety attack, but that it was caused by an accumulation of stress attributed to working with one individual over the course of 10 years. The worker confirmed that she was never personally or sexually threatened by this co-worker. The adjudicator noted the offending conduct described by the worker as follows: “She stated that he is extremely hard to get along with, very difficult, harasses her on a daily basis, verbally abusive and does a lot of things when they are not there behind their backs. He will speak to her with his back turned.” The WCB adjudicator advised the worker that based on this information the claim did not meet the criteria for acceptance of stress claims.

The WCB adjudicator informed the worker in a letter dated January 26, 2006 that her claim for compensation did not meet the requirements of a stress claim as outlined under the Act. The adjudicator relied on the definition of an “occupational disease” found in subsection 1(1) of the Act, which specifically excludes “stress, other than an acute reaction to a traumatic event”. As the information provided by the worker did not indicate a specific traumatic event occurred, compensation was denied.

In response to the adjudicator’s decision denying her claim, the worker submitted a letter dated March 10, 2006 appealing the decision and providing additional information respecting her claim. In the letter, the worker explained that the harassing and abusive behaviour of one individual whom she had worked with since 1996 gradually brought her to the point of psychiatric breakdown. The following are the examples of offending behaviour listed by the worker in her letter:

The worker also indicated in her letter that she made a complaint regarding this behaviour and the co-worker was reprimanded, following which their relationship was very strained and it was obvious the co-worker resented and disliked her.

The worker further notes in her March 10, 2006 letter:

“In addition to the above, our Department has been undergoing a complete reorganization for almost 2 years. My title has been changed from Administrative Secretary to Extension Coordinator. The clerical duties are being phased out and will be changing but it is very unclear as to what the specific position description will be.”

The worker included a medical report from her psychiatrist dated February 23, 2006 stating that she was receiving treatment for major depression and that she was disabled from working due to this illness and would need to be off work for another six to nine months.

The Review Office reconsidered the worker’s claim and in its decision dated March 30, 2006, upheld the adjudicator’s decision denying the claim for compensation. The Review Office held that the relationship issues between the two co-workers did not meet the definition of an “accident” found in subsection 1(1) of the Act. The Review Office noted that stress is not an “occupational disease” except as an acute reaction to a traumatic event and the worker admitted there had been no traumatic event, but rather her claim was based on a decade of interacting with one individual. The Review Office also referred to the worker’s apparent stress as a result of the reorganization in her office and changes in her duties described in her March 10, 2006 letter. The Review Office pointed out that under subsection 1(1.1) of the Act “any change in respect of employment of a worker, including promotion, transfer, demotion, layoff or termination” is excluded from what may be considered a compensable accident under the Act.

A written submission dated May 10, 2007 from the worker’s union representative requested that the Review Office reconsider its decision in light of additional information. The submission indicated that the worker sought treatment from a community mental health worker on November 2, 2005 due to an incident that occurred at work involving inappropriate behavior by the offending co-worker. The submission also indicated that on November 10, 2005, the worker went to a hospital facility where she was treated for a severe anxiety attack and was diagnosed with major depression. The submission indicated that the anxiety attack was caused by the actions of the harassing co-worker earlier that day. No further details describing the co-worker’s actions on November 2 or November 10, 2005 were provided in the submission.

The submission also indicated that the worker felt that an investigation conducted by the employer of her complaints was inadequate. A report prepared by the employer dated August 10, 2006 provided details of the investigation conducted by the worker’s new manager respecting the history of lack of communication between the parties. The report indicated that numerous conversations were held with the worker from April 2005 to July 2006 and noted that the worker had difficulty in providing concrete examples of harassment.

The report also noted that in October 2005 the worker notified her manager that she would be seeing a doctor because of increasing stress, and at that time the worker did not pin-point her co-worker as the cause. The report states that the worker “recognized that there was a lot of stress because of reorganization and the resulting ambiguity and that she was very disappointed in not receiving an SAP position. She said she needed to work through things and would keep [the manager] informed about the doctor’s appointment.”

The following is the list of examples noted in the report of offending conduct expressed by the worker:

· She felt the co-worker controlled her day;

· Communication breakdown;

· Ambiguous roles – he would suggest things to shake her;

· Avoiding the conflict between them has worn her down;

· She can not see herself working with him anymore;

· He was getting other extension coordinators to change around her workstation while she was away (move a printer);

· He interrupts her, is sarcastic and rude;

· He is inconsiderate and quite outspoken;

· He phones her for phone numbers constantly because he has lost his list-feels it is intentional;

· He says things when others not around (she did not provide any specifics);

· She gave an example of a situation regarding some typing that he asked her to do…-office was very busy and there was some confusion with the new extension coordinator role; He had an envelope for the outgoing mail due 3:30 pm and she didn’t have a chance to take – he asked her if he was now responsible for his own mail;

· Situation some time ago where she asked co-worker “Hi, how are you? And he responded “I didn’t think you cared”;

· Ever since the former director met with him about concerns in the past, he’s been rude and resentful – she feels he gets her worried about things she doesn’t need to be;

· He would put his cell phone on call forward instead of to message;

· Felt that co-worker was disrespectful to women – would be careful around supervisors, but he was degrading to women. Manager asked for examples – worker could not think of anything concrete;

· He was sneaky and would have something needed as priority but just hand over at the last minute to make her rushed;

· A couple of years ago there was a crop survey that was important for her to rush and then was never used;

The report also notes that the worker refused to participate in pre-mediation or joint mediation with the co-worker. According to the report, the co-worker indicated that he was willing to and would like to participate in pre-mediation in order to improve their communication and working relationship.

The investigation report concluded that there was a personality conflict between the parties, but the examples of offending conduct provided by the worker were not sufficient to remove her co-worker from the workplace.

The submission from the union representative included a written response to the employer’s report prepared by the worker in which she provides some additional complaints regarding her co-worker’s conduct.

The submission also disclosed that in 1992 the worker had been diagnosed by her physician as having anxiety problems and had been referred for treatment to an anxiety disorder clinic at that time. In addition, medical reports from the worker’s treating psychiatrist dated June 8, 2006 and November 2, 2006 indicating that the worker was diagnosed as suffering from major depression with symptoms including panic attacks and anxiety were provided as well as a report dated April 23, 2007 from the community mental health worker.

The union representative argued that the harassing actions of the offending co-worker constituted an accident as defined under subsection 1(1) of the Act in that they were wilful and intentional acts or an event arising out of and in the course of employment. The representative submitted that pursuant to the WCB’s policy on pre-existing conditions, the worker had a pre-existing condition of anxiety that was aggravated by the workplace events on November 2 and November 10, 2005.

On June 26, 2007, the Review Office upheld its decision that the claim was not acceptable. It found no new evidence to indicate that on either November 2, 2005 or November 10, 2005, the worker suffered stress as a result of an ‘acute reaction to a traumatic event’. The Review Office was of the opinion that there was a personality conflict in the workplace and that this conflict did not meet the definition of an accident under the Act. The Review Office noted that since it found that there was no compensable accident contributing to the worker’s loss of earning capacity, the policy relating to pre-existing conditions did not apply.

In September 2007, the worker’s advocate provided the Appeal Commission with three sworn statements from individuals who had previously worked with the offending co-worker describing his character. Two of the individuals who provided statements were employed prior to the relevant time that the worker and her co-worker were employed together. Neither of these individuals witnessed the behaviour of the co-worker towards the worker in this claim. The third statement was from a casual employee who confirmed that she had witnessed the co-worker ignoring the worker in this claim; making a point of not saying good morning to her; and failing to acknowledge her presence.

Evidence at Hearing

At the hearing before the appeal panel, the worker, who was represented by her union representative, provided evidence. The worker’s current manager and a member of the employer’s human resource department appeared on behalf of the employer.

The worker testified regarding her history of employment as an administrative secretary with the same employer since 1996 providing support to 4 or 5 employees. The worker described ongoing problems over the following 10 year period with her co-worker, who served as her supervisor for the first 5 years, citing similar examples of behaviour as set out above. The worker explained that after the first 5 years she made a complaint regarding this individual and as a result the worker was assigned different supervisors over the next 5 years. However, the worker continued to work with the offending co-worker on a regular basis.

The worker testified as to what precipitated her anxiety attacks in November 2005. She explained that for about two weeks she was having a lot of difficult breathing and felt pain in her chest and that these attacks would occur in the morning on the way to work. On the morning of November 2, 2005, the worker explained that the pain was getting stronger and she couldn’t breathe. She left work at 10:30 a.m. and went to the hospital where she was advised by the physician on duty that she was having a panic attack. The worker attributed the attack to an accumulation of having worked with the offending co-worker for 10 years. The worker referred to the reorganization that was occurring in the department around this time that involved a change in her position from administrative secretary to an extension coordinator. The worker testified that her co-worker was intentionally trying to make her anxious regarding the uncertainty of her duties following the reorganization.

The worker testified that during the period from April to November 2005, the conduct of her co-worker remained essentially the same. The following testimony was given by the worker when asked to provide details of anything that transpired during that six month period that might have led to her panic attack on November 2, 2005.

“Q. It was my understanding that you indicated that when you obtained a new supervisor, when [the supervisor] came in April after the reorganization from April 1, 2006, sorry, 2005, to November 2005 when you stopped working, that things remained the same I think you said. And I wanted to know if you could give us more details of what transpired during that six-month period that caused you any kind of stress or anxiety or that might have led to your panic attacks on November 2^nd?

A. Trying to enforce the change in my duties was an issue at that time. It may seem like a very minor thing, but it was so repetitively done.

He was forced to use his cell phone and not the landline because they were switching over and getting the landlines all together, and repetitively he would call forward his cell phone to my phone and I would say, “[Co-worker], you can’t do that because if I’m not there it doesn’t go to my voice mail, it goes into nowhere land and what’s the client going to think?” And he would repeatedly phone in the morning and say, “I’m putting my phone on call forward to yours”.

It was a combination of that, plus all the other daily things, walking in, not saying good morning to me, asking everyone else out for coffee and not asking me. It was all the regular stuff plus the, him not being able to deal with my new duties.”

The worker’s current manager also provided evidence of what was transpiring at work during the period of April to November 2005 and the interaction between the worker and her co-worker.

The manager testified as follows:

“…In April I went around and these were all new staff that I had, so I had meetings and I sat down with each of them, and [the worker] at that first point had let me know that there was some longstanding issues between her and [the co-worker] and some concerns and some communication breakdown.

And so we talked about some of those. And so I did say, I talked about if her and myself and [the co-worker] should sit down and talk about what was going on, and she asked that we did not do that.

And she said that, you know, as I understand it, she said that things are somewhat under control right now. She’ll keep me posted, she’ll let me know if things happen where she need to address something and work though something. So we did that and I kept in touch with people in all the offices.

[The worker’s] exactly right, there was a lot of, there was a lot of ambiguity at the beginning right after our reorganization. The entire Department reorganized and so everybody had new titles, people were put into new positions. Our entire team was now working – we used to have a region, a larger region, and now we were working with four new offices.

And so there was lots of ambiguity around roles and people’s positions in that time, and basically the approach was trying to collectively, as a team, work through some of those things that none of us necessarily had lots of answers to right at the beginning.

And then in October, [the worker] let me know that she was starting to feel an increased sense of anxiety --

MS. DAY: Yes.

[THE MANAGER]: --about work, and so we spoke about that, and at that time in our conversation, at that moment in our conversation, I asked [the worker] if she wanted to share with me what sorts of things, and so she said that, you know, there was a combination of the reorganization, the ambiguity, the SAP position, that she was disappointed about not –

THE PRESIDING OFFICER: What was --

[THE MANAGER]: Sorry, the other position, S—yes, that was the title, SAP.

And at that point in time she said to me that she did not want to pinpoint that this increased anxiety might be as a direct result of [the co-worker] because there were lots of things going on, but she knew that she needed to take some time to feel well again and work through some of those sorts of things…”

Analysis

Subsection 4(1) of the Act provides that compensation is payable where “personal injury by accident arising out of and in the course of employment is caused to a worker”. Accident is defined in subsection 1(1) as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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 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 further restricts the definition of “accident” by providing that it “does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

Thus, in order for a worker to be eligible for compensation, the injury suffered by the worker, whether physical or psychological, must have been caused, on a balance of probabilities, by work-related factors other than factors relating to changes in the worker’s employment. In this case, the worker argued that the panic attacks that she suffered and which prevented her from working were caused by the harassing conduct of a co-worker.

After carefully considering all of the evidence, the panel is of the opinion that on a balance of probabilities the panic attacks were caused not by the conduct of the co-worker, but rather, by changes in the worker’s employment duties relating to the reorganization that was taking place during the six month period from April to November 2005. The panel has reached this conclusion for the following reasons.

The evidence indicated that the worker had been treated for anxiety problems in 1992 but had not had any anxiety attacks that were work-related during the 10 year period prior to her panic attacks in November 2005. The conduct of the offending co-worker was essentially the same and continued throughout this period and yet the worker did not seek any treatment or suffer anxiety attacks as a result of this conduct prior to November 2005. In addition, when negative comments were made by the co-worker, the worker testified that she always responded with comments of her own. There was no evidence of psychological breakdowns at work as a result of the co-worker’s conduct. This suggests that there was an ongoing personality conflict that the worker was able to handle without experiencing psychological injury.

We also note that the worker did not file any complaints against her co-worker for the five years during the time that he was no longer her direct supervisor, which suggests the co-worker’s conduct during this time, was not a significant concern. The worker also did not file a harassment complaint or grievance under the collective agreement. The worker refused to participate in any mediation under the employee assistance program that was offered to her. Again, this suggests to the panel that the worker did not view the co-worker’s conduct as a major factor causing a risk to her health.

The panel has also reviewed the list of complaints made by the worker throughout the file and during her testimony before the panel. In our opinion, the complaints indicate an interpersonal conflict between the worker and her co-worker, which did not amount to significant objectionable or abusive conduct that would reasonably create a risk to the health of this worker. In that sense, we would not categorize the co-worker’s conduct as amounting to harassment of the worker in this claim.

However, what was significantly different about the worker’s situation in 2005 was the reorganization that was taking place within her office and that resulted in her job changing from administrative secretary to extension coordinator. The evidence indicates that the worker herself referred to this reorganization as a factor leading to her stress and depression in her letter of March 10, 2006. The panel also notes that the worker did not pinpoint her co-worker as the cause of her anxiety in October 2005 and that when she met with her manager during this period, she expressed concerns about the ambiguity of her position and disappointment in not getting the SAP position. We note that the worker was offered an opportunity to meet with the co-worker and the manager to resolve their problems in April 2005, but she did not do so, which suggests to the panel that the worker did not view the conduct of her co-worker as the cause of her anxiety problems.

The panel also considered the medical evidence provided by the worker’s treating psychiatrist and the community mental health worker. Both the psychiatrist and mental health worker refer to the stressful workplace situation as a factor in the worker’s anxiety attacks and the conduct of the co-worker as precipitating her attacks. However, it is clear from the reports that they are relying on what the worker cited as the cause of her attacks and have not had the opportunity of considering the evidence of what was transpiring at work during the relevant period. We agree with the medical experts that the worker’s stressful work environment was a factor in her anxiety problems, but in our opinion, the reorganization of the office and not the conduct of the co-worker was the stressful work environment contributing to her anxiety.

The previous decisions of the WCB in this file have placed emphasis on the fact that the worker’s stress injury would not fall within the definition of an “occupational disease” which excludes “stress, other than an acute reaction to a traumatic event.” In this appeal, the worker’s advocate argued that the worker’s psychological injury was nevertheless compensable under the other definitions of accident relating to a willful and intentional act in subsection 1(1)(a) and any event arising out of and in the course of employment under subsection 1(1)(b) of the Act.

WCB Policy No. 44.20 and Policy 44.20.60 make it clear that a worker is entitled to have their claim adjudicated as an accident under subsections 1(1)(a) or (b), or as an occupational disease. If the claim is adjudicated as an accident that is not an occupational disease, WCB Policy 44.20.60 respecting Psychological Conditions comes into play. The worker advocate argued that under this policy the worker’s panic attacks may qualify for compensation notwithstanding that they were not an acute reaction to a traumatic event.

WCB Policy 44.20.60 provides as follows:

1. Where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.

This includes, but is not limited to psychological conditions incurred as a result of the following:

a) Organic brain damage from a traumatic compensable head injury.

b) A psychological reaction or condition which is a direct result of a serious compensable life-threatening, injury/event (serious in this context means an accident that threatens life or direct involvement in a life threatening incident or event).

c) Psychosis resulting from exposures to harmful chemicals at the worksite.

d) Psychosis resulting from the use of drugs used in the treatment of a compensable injury.

[Italics added]

Psychosis resulting from exposures to harmful chemicals at the worksite.In light of the panel’s finding that the worker’s psychological condition was caused by changes in her employment and is therefore precluded as a compensable work-related accident under subsection 1(1.1) of the Act, it is not necessary for the panel to consider whether the worker’s panic attacks amount to a psychological condition that would be covered under this policy. In the alternative, the panel would have had considerable difficulty equating the nature of the worker’s psychological diagnoses (anxiety and panic disorders) with the type of extreme psychological conditions envisioned in this policy.

Similarly, WCB Policy 44.10.20.10 relating to pre-existing conditions is not applicable to this claim given the panel’s finding that the worker’s psychological problems on a balance of probabilities, were not the result of a compensable accident.

Having concluded that the psychological problems that the worker suffered were, on a balance of probabilities, caused by factors relating to changes in her employment, the panel finds that the worker has not suffered a compensable accident. Therefore, the claim is not acceptable and the appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 6th day of November, 2007