The Appeal CommissionThe Workers Compensation Act of Manitoba

On January 28, 2008, the worker filed a claim with the WCB for “anxiety”, that he related to a work event that occurred on April 17, 1999. The worker indicated:

I was called to the office for something that my manager [name] thought I did. My manager started to yell at me and I turned to leave. My hand was on the door and the manager slapped my hand off the door and told me to sit down or he would terminate me. He kept me in the office for an additional 20 minutes and continued yelling at me. Since that date, the combination of the specific incident as listed above and the regular abuse since has caused me emotional problems.

The worker indicated that he was diagnosed with an anxiety disorder and adjustment disorder. He stated that he called the police on the day of the assault but the police did not take any action. He consulted a lawyer for legal action against the manager but elected not to proceed because of the associated costs. In April 2007, he resigned his employment at the recommendation of the company and his union.

On January 29, 2008, the worker provided a WCB adjudicator with the following information:

• In 1999, his manager reprimanded him because he thought he closed his work station. Later that day, he called the police but they did not write a report or take action because he did not sustain any injury. The worker then contacted the union and was told that what the manager did was inappropriate and for him to call them if he did it again. The worker then spoke with a lawyer and was advised not to pursue the case because it would cost him $3000.00.

• He had been the target of ongoing abuse from his supervisors and managers ever since. He was transferred to another work location where, a few years later, a division manager accused him of being a thief. His said his mother was also very sick which had contributed to his stress.

• The worker advised that he had not worked since June 2006 and did not claim WCB right away because he continued to work or was able to receive benefits from other agencies (ie. Blue Cross and EI).

• The “straw that broke the camel’s back” was when a customer who looked under 25 years old came into the store to purchase cigarettes. The worker would not sell the customer cigarettes as he had no ID. He then called his supervisor and was told to go on a coffee break. The worker was outside smoking and the customer came up to him like he was going to hit him so he went back inside and was not able to work afterwards.

The adjudicator noted that the worker was very vague in providing many of the details related to stress because he felt he had had to repeat the stories so many times.

A letter received from the employer’s director of human resources, dated February 4, 2008, stated that any and all allegations of unfair treatment that the worker has raised with the company had been investigated and were found to be unsubstantiated. The director noted that the worker filed numerous grievances which were withdrawn by the worker and his union. He stated that the worker had filed two Human Rights complaints against the employer with respect to the very same issues he was raising with the WCB. One had already been dismissed and it was fully expected that the second complaint would also be dismissed. The worker also filed a civil lawsuit against the employer which was later dismissed in its entirety. The employer said it was evident that the worker was trying to file a claim with the WCB after having been unsuccessful in all other venues. It was indicated that any anxiety issues experienced by the worker were not in any way associated with the workplace but were rather his own personal issues.

The worker spoke with a WCB adjudicator again on April 1, 2008 and he provided the following additional information:

The worker in this case asserts that he has suffered an accident or a series of accidents at work, in particular, that he has suffered a psychological injury, which he describes on his accident report as "anxiety."

Legislation:

In considering any appeal, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

As noted above, the worker is claiming for anxiety related to mental and physical abuse suffered on the job, or essentially, a psychological injury. The following sections of the Act and Workers Compensation Board Policy are relevant to this claim.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

Subsection 1(1) provides specific definitions of what qualifies as an accident. In particular, it provides:

"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;

A claim can also be accepted as an accident if it meets the definition of occupational disease, which is defined 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

Subsection 1(1.1) of the Act, is particularly relevant to the nature of the claim filed by the worker, as it qualifies or limits the definition of an accident in cases of psychological injury. In particular, it states that an accident does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

WCB Policy 44.20.60, Psychological Conditions, provides additional clarification of the types of psychological conditions that would meet the definition of an accident, 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 exposure to harmful chemicals at the worksite.

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

The worker's position:

The worker was self-represented at the hearing, with his son present for support. From his presentation and through questions asked by the panel, the worker advised that there were three primary incidents at the workplace over the years that were responsible for his developing stress or an anxiety disorder and which led to his ultimate decision to quit his job in 2006. He indicated that he wanted the panel to accept his claim, after which he would be seeking wage loss benefits. The worker clarified at the hearing that while his notice of appeal referred to back and shin injuries as well as psychological injuries, his appeal was only regarding his psychological injuries.

The worker focused on three incidents that he felt were responsible for the development of his psychological difficulties.

The first incident involved an April 1999 event, where the worker states that a manager disciplined or yelled at the worker for more than 20 minutes while he was in the manager's office, and eventually the manager slapped his hand as he was attempting to leave the office. The worker's evidence is that he continued to work continuously for the employer for over five years after the incident, and did not seek any medical or psychological treatment immediately following the event. On questioning, the worker confirmed that he had filed a grievance for that incident with the help of his union, which was ultimately withdrawn. The worker has also sought remedies under other legislation and through other venues, but has not been successful to date.

The second of the incidents described by the worker was less clear. With the assistance of questions by the panel, the worker described a number of incidents, with the exact dates of the incidents difficult to determine: an accusation by the employer that the worker was a thief (double scanning of a rewards program); being disciplined for leaving his post; and for being told that he could not use the phone at work for personal affairs. The worker advised, in response to questions from the panel, that he did receive suspensions from work for some of these incidents. He did file grievances for those incidents with the assistance of his union. The grievances were unsuccessful or withdrawn, and the suspensions were upheld.

The third incident occurred in mid-2006, shortly before the worker left his employment. The worker described an incident where he asked a customer buying cigarettes for identification, to which the customer responded angrily. The worker later saw the same customer outside when he went out for a break. The worker’s evidence is unclear as to whether there was a confrontation outside, in particular whether the customer actually swung and hit the worker or whether the worker was fearful of this actually happening. The worker describes this incident as “the last straw” following which he left his job.

The worker states that his attending physician and treating psychiatrist both support that his emotional difficulties are causally related to his experiences at the workplace.

The employer's position

An advocate and a representative of the employer provided the employer's position on this matter. The advocate indicated that the company had investigated every one of the incidents alleged by the worker and had found no basis for the worker's complaints, and that the grievances filed by the worker over these alleged incidents had similarly failed to corroborate or substantiate the worker's complaints or find fault with the co-workers, managers or the employer. They also pointed to the worker's continuity of employment, his failure to seek medical attention as indications that the incidents were not significant and would not have caused the type of long term difficulties claimed by the worker.

The advocate further submitted that the incidents themselves fell into the category of employment-related or discipline-related matters, and clearly fell within the "stress" exemptions noted in the Act for these types of incidents, and as such were not compensable.

Analysis:

It is apparent from the worker' evidence and his presentation at the hearing that he is claiming he has a work-related psychological injury which was caused by his interactions with managers, customers and co-workers. For the worker to be successful in his appeal, we would have to find on a balance of probabilities that the worker had an accident, as defined in the legislation and policies noted above. After a careful review of all the evidence on the file and the presentations made at the hearing, the panel was unable to make this finding. Our reasons follow.

In the panel's view, the ability of the WCB -- or this panel -- to accept claims for psychological injuries or anxiety or stress is limited by legislation and WCB policy. Broadly speaking, under the definitions noted above, the worker must have suffered an acute reaction to a traumatic event or a very significant psychological condition, which is similar to those listed in WCB Policy 44.20.60. Moreover, subsection 1(1.1) of the Act specifically restricts the definition of accident to exclude claims that arise out of employment or labour relation issues such as promotions, transfers, demotions, layoffs, terminations, and the like.

In assessing the three incidents as individually or collectively meeting the definition of accident, the panel notes the following:

· The worker’s attending physician provided a narrative report dated March 26, 2008, in which he notes that he saw the worker 45 times between 1995 and 2007, and indicates that the worker suffers from chronic depression with paranoid personality traits. He indicates that the worker “has complained of chronic fatigue, lack of energy, for sleeping and ongoing stress – related to his work. Most of these complaints he says can be traced to his problems with his supervisors and co-workers...” The attending physician notes that the worker had been referred to various psychiatrists for treatment and medications. The panel observes that the physician refers to a chronic diagnosis that is not pinned to any specific incident or event, and precedes the first incident described by the worker as having taken place in 1999. There is also no specific mention of the final incident in 2006, or indications of a change in condition at that time. As such, the panel does not find support for an acute reaction to a traumatic event from the attending physician’s report, but rather, support for a chronic psychological condition that may have in fact preceded the first reported incident.

· The worker’s treating psychiatrist had also provided reports (to a third party insurer) in 2005 and 2006, asserting that the worker’s problems arise from the workplace. The psychiatrist refers to similar incidents to those described by the worker at the hearing, in particular, the accusations and the suspensions given to the worker. The panel notes, however, that there is no indication that the psychiatrist was aware of the outcomes of various investigations undertaken or grievances filed, which diminishes the weight of the psychiatrist’s opinions that the employer was fully responsible for what happened, or indeed the severity of the incidents that the psychiatrist describes. In any event, the psychiatrist’s descriptions of the incidents corroborates the panel’s view that the stressors faced by the worker specifically relate to labour relation matters, and fall within the exceptions set out in the Act. Again, the panel notes that the psychiatrist describes the worker’s fears as being “real” and thus not truly paranoid. In the panel’s view, the psychiatrist does not appear to be aware of the many grievances and civil actions taken by the worker, none of which have validated his version of the facts. The psychiatrist’s description (repeated at the hearing) of the worker being suspended from work because of another worker’s threats is, simply, not logical, and does not appear to have been tested by the psychiatrist.

· In the panel's view, the term “adjustment disorder” may be a valid DSM-IV psychiatric diagnosis, as asserted by the worker's treating psychiatrist. However, the presence of a DSM-IV diagnosis does not automatically make that diagnosis compensable. In particular, the panel notes that the Act's term "stress" is not a formal DSM-IV medical condition, and finds the diagnosis of an anxiety disorder or an adjustment disorder to be a parallel or equivalent DSM-IV diagnosis, and subject to the "stress" limitations in the Act and WCB Policy noted above.

· Dealing specifically with the first incident in 1999, the panel notes that this involved a disciplinary matter in a manager’s office. The worker continued to work for many years after the first incident at the same location, and no significant change in his psychiatric condition was noted by any of his treating physicians at that time. He did not seek immediate medical attention for the incident, for either the physical or mental consequences of the incident. As well, joint investigations undertaken by the employer and by the union on behalf of the worker in respect of the grievance failed to identify a significant incident, and the grievance filed by the worker was in fact withdrawn. In the panel’s view, the evidence does not support on a balance of probabilities that the worker suffered an acute reaction to a traumatic event, or a major psychological injury as defined in the WCB Policy regarding psychological conditions. Any reaction that the worker might have suffered came from a labour relations matter and is, in any event, excluded from coverage as an accident under the Act.

· As for the second incident(s) described above by the worker, these relate to employer “accusations” and resulting suspensions from the workplace. The panel finds on a balance of probabilities that these incidents clearly fall within the ambit of labour relations matters in which the worker’s union fully participated. The panel finds that these incidents and any psychological difficulties (variously described as adjustment disorders, stress, or anxiety disorders) resulting from the incidents are specifically excluded from coverage under subsection 1(1.1) of the Act.

· As for the worker’s third incident in mid-2006, the panel notes that information provided by the worker in a human rights complaint submitted to the file suggests that the worker had chronic depression since 2005 with an additional diagnosis of adjustment disorder in January 2006. The worker’s physician had already restricted the worker to modified hours, at six hours per day. The panel notes that in the worker's first conversation with the WCB on January 29, 2008 about this incident, there was no physical altercation with the customer outside the store, and the worker did not describe even a conversation or an argument with that customer. As noted, the worker did leave his employment within days of that incident, but there is no parallel medical evidence to suggest that the worker suffered a post-traumatic stress disorder or similar condition that would suggest that the worker suffered an "acute reaction to a traumatic event" as required under the Act and the WCB Policy. Accordingly, the panel finds on a balance of probabilities that the worker did not suffer an accident arising out of and in the course of his employment at that time.