Decision #85/08 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s claim for injury is acceptable under The Workers Compensation Act (the Act). The Workers Compensation Board (WCB) and its Review Office determined that the worker’s claim for post traumatic stress disorder (PTSD) was not acceptable. The Review Office held that the claim did not meet the definition of accident set out in the Act as the evidence did not establish that the worker suffered an acute reaction to a specific event. The worker appealed this determination to the Appeal Commission and a hearing was held on February 7, 2008.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker’s job duties entail providing food services to a large group from a mobile facility. On August 23, 2003, the worker claimed that she worked 12 days in a row and had to deal with conflict and arguments stemming from people going over her head with matters that were her responsibility. She noted that the number of persons she was responsible to feed increased from 290 to 374 members. Her symptoms included heart racing and numbness in her neck and head. She was taken by ambulance to a hospital and was told by a specialist that she was suffering from a very bad anxiety attack due to stress.
On September 10, 2003, the worker advised a WCB adjudicator that over a 10 week period, there were many stressful incidents that occurred. She was exposed to sexual harassment. There were two homeless men found in her trailer who had just been released from jail. Security were called and she was very shaken up. She attended an internal specialist for non-work related problems and also attended him for stress. The worker advised the adjudicator that she was going to provide her with detailed accounts of the stress she was under as well as the names of witnesses and phone numbers. On January 7, 2004, the worker provided the WCB with details of the events that occurred leading up to August 23, 2003 along with the names of witnesses, etc.
The WCB adjudicator spoke with the worker on February 11, 2004 and asked her to clarify the incident concerning the two men that entered her work trailer. The worker said the trailer was a 21 foot long recreational vehicle that had been converted into a kitchen. She was in the trailer by herself and did not have the door locked when the two men entered. She felt very threatened as they kept coming closer and closer to her and she had no where to go. The man furthest away from her looked like he was going to harm her. She looked out the window and no one was about. She did not miss time from work over the incident nor did she see a doctor or psychologist. The incident had occurred early on in her contract/employment.
In a letter dated February 11, 2004, the worker was advised that the WCB was denying her claim as her situation did not meet the requirements of a stress claim as outlined under the Act. Subsections 4(1), 1(1) and 1(1.1) were referred to in the decision. The adjudicator indicated that the worker filed a claim for stress as a result of the difficulties she had been experiencing from being understaffed and overworked. The information the worker provided did not indicate a traumatic event occurred under the WCB’s guidelines.
On April 30, 2007, the worker appealed the adjudicator’s decision. She outlined her view that the incident in the trailer with the two men was a traumatic event. Included with her appeal was a report from her psychologist dated April 17, 2007.
In a letter dated June 7, 2007, the worker was advised that after a review of the claim and the new information she submitted, the WCB was unable to change the previous decision to deny her claim. WCB policies 44.20.65, section A(3) and 44.20 were referred to in the decision. The adjudicator stated that there were several events that led to the worker discontinuing work on August 23, 2003. The information that the worker provided did not indicate a traumatic event occurred.
At the request of Review Office, primary adjudication obtained additional medical information from two local hospitals that the worker attended for treatment. After a review of the additional information from the two hospital facilities, primary adjudication advised the worker on August 8, 2007 that there was no basis to change the prior decision to deny the claim. On September 24, 2007, the worker appealed to Review Office.
On October 11, 2007, Review Office determined that the worker’s claim was not acceptable as an accident as defined under subsection 1(1) of the Act had not been established. In making this determination, Review Office stated that the file evidence must show that the worker experienced an acute reaction to a specific event and that the diagnosis was directly related to that event and was not the result of a series of occurrences. It stated that the worker experienced many stressful situations due to being overworked and understaffed and there was insufficient evidence to support that the trailer incident in June 2003 was the cause for the worker’s collapse on August 23, 2003. The file evidence did not meet the WCB criteria for a stress claim. In November 2007, the worker disagreed with Review Office’s decision and filed an appeal with the Appeal Commission. An oral hearing was subsequently arranged.
Following the hearing, the appeal panel requested and received additional information from two of the worker’s treating pschologists. These reports were forwarded to the worker for comment.
Reasons
Applicable Legislation
The Appeal Commission and this panel are bound by the Act and by policies made by the Board of Directors of the WCB.
As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where a worker is injured by an accident arising out of and in the course of employment. For a 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;
Worker’s Position
The worker attended the hearing and explained her position to the panel. She answered questions asked by the panel. The employer did not participate in the hearing.
The worker explained that she was working by herself in her work trailer when two men entered the trailer. She said the trailer was located in a parking lot in the downtown area adjacent to, but somewhat isolated from other trailers that were part of the worksite. She said the trailer was narrow and there was only one exit from the trailer, which the men were blocking. One of the men told her that the other man had just been released from prison. She was very scared and feared that the men were going to hurt her. After several minutes the men left and shortly thereafter her daughter and security arrived. The incident happened in the mid afternoon and she worked the balance of the day, approximately six to eight hours more.
She acknowledged that she worked for seven weeks after the incident without missing any time and finally collapsed on August 23, 2003. She also acknowledged there were other stressful situations which occurred while she performed her duties. She advised that it was not uncommon to have conflict on the worksite and that she dealt with the conflict before and after the incident in the trailer.
She referred to a 23 page fax that she sent to the WCB identifying the various issues that arose at the worksite. However, she submitted that the incident with the two men in the trailer was the cause of her injury.
She advised that she has seen two psychologists who are supportive of her claim for post traumatic stress disorder.
The worker provided a written submission upon being provided with the copy of the psychologist’s notes. She stated that she knows that the incident with the men entering the trailer was the one event that caused her PTSD. She stated that “I know that because my nightmares are of the event and each and every decision I have made from the moment on, is made based on and because of the level of fear I live in each and every day.” She submitted that the other events that occurred after this incident are secondary in her life.
Analysis
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 found that the worker was injured by a workplace accident and that her claim is acceptable.
The panel is aware that the worker complained of several stressful events when she collapsed at work on August 23, 2003 and at the time that she filed her claim with the WCB. The panel finds that there were a variety of incidents and exchanges arising from the worker’s interactions with her 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 with respect to these incidents.
However, the panel finds, on a balance of probabilities, that the incident involving the two men who entered the trailer meets the definition of accident set out in the Act: a chance event occasioned by a physical or natural cause, specifically a willful and intentional act that is not the act of the worker, which resulted in the worker’s injury. In reaching this conclusion the panel places significant weight on the following:
· worker’s evidence surrounding the incident and her subsequent reaction to the incident.
· opinion of original treating psychologist in a report dated February 21, 2007 which notes a diagnosis of post traumatic stress arising from the incident.
· opinion of WCB psychology consultant in a memo dated March 26, 2007 provided with respect to a 2005 injury. The consultant offered a diagnosis of “Adjustment Disorder – Chronic that appears to have led into a Major Depressive Episode in the context of a history of earlier Post Traumatic Issues and apparent Cluster B traits.”
· opinion of current treating psychologist in a report dated February 19, 2008. The psychologist notes that the worker has been diagnosed with PTSD in relation to the incident in the trailer.
The panel notes that the worker was able to work after the incident and did not appear to develop symptoms until much later. The panel relies upon the opinions of the medical professionals that the worker does have PTSD as a result of the incident.
With respect to the collapse at work on August 23, 2003, the panel finds that the worker’s collapse was due to an accumulation of events. The panel recognizes that the extent to which the worker suffered a loss of earning capacity, as a result of the accident is complicated by many factors including the other stressful situations noted by the worker and her pre-existing psychological condition noted by the psychologists and makes no finding on the entitlement to wage loss benefits.
The panel finds that the worker’s claim is acceptable. The appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 18th day of July, 2008