The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “WCA”), regulations and policies of the Board of Directors.

As the worker was employed by a federal government agency or department, his claim is therefore adjudicated under the GECA. The GECA provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

Subsection 4(1) of the GECA states:

4(1) Subject to this Act, compensation shall be paid to

(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment; or

(ii) is disabled by reason of an industrial disease due to the nature of the employment; ….

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.

The definition of accident under the GECA is:

“accident” includes a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.

The definition of industrial disease under the GECA is:

“industrial disease” means 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 and the dependants of deceased workmen.

Thus, for claims relating to federal employees in Manitoba, the GECA adopts the definition of “industrial disease” as it appears in the WCA. The disease for which compensation is payable under the WCA is termed “occupational disease” rather than “industrial disease”, but the difference in terms is of no consequence. The definition of “occupational disease” as contained in the WCA is 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 as an acute reaction to a traumatic event.

WCB Policy 44.20.60 deals with claims involving psychological conditions. 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 exposure to harmful chemicals at the worksite.

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

2. Accidents prior to January 1, 1992: Stress or psychological conditions said to be a result of a non-specific event or events and, therefore, cumulative in nature are considered to be chronic stress, and in the absence of a specific identifiable compensable event or events are to be adjudicated on the individual merits and circumstances of the case.

3. Accidents on or after January 1, 1992: Stress is not an occupational disease as defined under The Workers Compensation Act, except as an acute reaction to a traumatic event.

Worker’s Position:

The worker was self-represented at the hearing. He submitted that his psychological condition was precipitated by a precise workplace incident. There were two major incidents which he experienced while working in Manitoba, but the worker admitted that while the first incident was horrifying, it was not life threatening. The lock-in incident, however, was clearly threatening and there was a real possibility that he could have been killed. This left an impact on the worker which changed him. Prior to the incidents, he was a good worker with no problems with his employer. After the lock-in incident, the employer/employee relationship deteriorated and the worker submitted that this was part and parcel of what transpired that evening. The worker felt that he had been betrayed by an employer who locked him in and left him stranded in a life threatening situation. The way the incident had been handled by the employer caused him to start thinking differently and led to his psychological illness.

At the hearing, it was noted by the panel that on appeal in Ontario, the WSIB had approved compensation benefits for the worker from January 1998 onwards. The worker was asked what he was seeking in this appeal. The worker indicated that he was seeking wage loss benefits for the period of time extending from January 1982 to September 1984. He acknowledged that there would be offset for the income that he did actually earn during that period of time, but stated that he earned far less than what he was earning with the accident employer. The worker was also seeking a possible assessment for noneconomic loss, but was informed by the panel that no such benefits are payable under the workers compensation legislation in Manitoba.

Analysis

The issue before the panel is whether or not the claim is acceptable. In order for the appeal to be successful, the panel must find that the worker is entitled to compensation pursuant to subsection 4(1) of the GECA because either

(a) he was caused personal injury by accident as per subsection 4(1)(a)(i); or

(b) he was disabled by reason of an industrial disease as per subsection 4(1)(a)(ii).

Based on the evidence before us, the panel is unable to find that the worker suffered a personal injury by accident or a disability directly resulting from industrial (occupational) disease, which would entitle him to compensation for the period January 1982 to September 1984.

The panel was troubled by the long lapse in time between the events in Manitoba during the late 1970's and the worker's need to go off work in 1995 due to his psychological difficulties. There was almost 20 years between his experiencing of the traumatic workplace incidents and the onset of his disablement. At the hearing, the panel asked the worker about what he did during those intervening years.

As to his work history, the worker remained employed in the same position until January 1982. This means that he continued to work and function in the same workplace for approximately three years after the incidents. His evidence was that he became immersed in the subculture of the workplace, spending not only his working hours, but also many of his off duty hours socializing and drinking with his work colleagues. The worker felt that this behaviour was destructive, and it led, in part, to the dissolution of his first marriage. They were separated in April 1980. The worker later developed a relationship with a co-worker, who is now his wife. When she relocated to the Maritimes in August 1982 to pursue a new career, he followed her there. At the time, he had already left his job and was not otherwise employed. The worker's evidence was that he had come to hate working for the employer; he dreaded going to work and began to have disciplinary issues at work. In January 1982 he left and took a course to obtain his real estate broker license. Given the poor market at the time, this career was not particularly successful. He began to spend less time as a real estate agent and more of his time at home providing childcare and writing short stories. He therefore felt that he had nothing to lose by moving east with his then girlfriend.

After he relocated, the worker worked in the insurance field for a few different companies. The worker described this time as a good time in his life. He was not successful at selling insurance and financially it was a disaster, but he made some good friends in the insurance field, some of whom he still has today. In mid 1984, he was unemployed and his employment insurance benefits had run out. He approached his former employer with a study proposal and while this was not approved, the worker was offered a job in another position. The worker accepted the offer and worked for the employer in the Maritimes for approximately one year. After a brief hiatus, the worker moved to Ontario in late 1985 and took another position with the employer. He continued to work for the employer in various locations until January 1995, when he first took leave from work because of his psychological status.

The worker was asked about his medical and psychological status during those intervening years, with particular focus on the January 1982 to September 1984 period. It is notable that the medical reports do not contain a diagnosis of PTSD until 1998. The worker provided the panel with a list of medical services he received in Manitoba during the period January 1972 to December 1982. There were two entries for "neurotic disorders," with the dates being September 22, 1981 and March 2, 1982. The worker's evidence was that he saw a general practitioner for these attendances with complaints of severe headaches and neck pain induced by stress. He was having nightmares and difficulty sleeping. The doctor told the worker to leave his employment, suggested psychological counseling and prescribed an anxiety medication. The worker developed a reliance on this medication which continued until late 1982. After that time, he stopped taking the drug, and did not take any other types of medication. The worker never sought psychological counseling as he was deterred by the stigma. The first time he sought counseling was when he moved to the Maritimes. This counseling was along the lines of marital counseling and was described by the worker as being very superficial. It would appear from the medical reports that the worker did not receive treatment for a psychological condition until 1995.

When asked about the frequency of nightmares, the worker indicated that at times, they were occurring nightly. They started after he discovered the body, and intensified after the lock-in incident. The worker indicated that they made it difficult for him to function during the day, since his sleep would be interrupted. While he still worked for the employer, he would have the nightmares three to four times per week. After he left and moved to the Maritimes, the nightmares diminished. His excessive use of alcohol also diminished after he relocated in the east.

With respect to flashbacks, the first incident the worker could identify was in January 1985, although he indicated that there may have been previous incidents.

After reviewing the evidence as a whole, the panel is unable to satisfy itself on a balance of probabilities that during the period January 1982 to September 1984, the worker suffered from a disabling psychological condition which directly resulted from the serious incidents which occurred while he was working in Manitoba in the late 1970's.

The panel accepts that the two identified events of the lock-in and the discovery of the attacked body were traumatic life-threatening events which could potentially give rise to a compensable psychological condition; however we do not see a connection between the experiencing of the events and a disability during the relevant time. Most notably, we do not see evidence of disability in the 1980's, either medically or functionally.

The only evidence of medical treatment is the record of two visits to his general practitioner in September 1981 and March 1982. This would be at least two years after the events occurred so it is difficult to relate these attendances to the trauma from the workplace incidents. The file also reflects a number of other issues in the worker's life at that time which the panel views as more proximate stressors, including labour relation issues, the use of alcohol and marriage breakdown. The panel notes that aside from the identified attendances, there were numerous other visits to doctors for various medical conditions. It would therefore appear that the worker was in relatively regular contact with medical practitioners during that time, without treatment for psychological symptoms otherwise being provided.

While the workplace events were no doubt disturbing to the worker and caused him distress in the form of nightmares and recurring thoughts, the panel is not convinced that the worker developed a disabling psychological condition as a direct result of this distress. He continued his employment at the same workplace for approximately two to three years, after which time he moved to another province and pursued alternate careers. Although the worker was never particularly successful at these other endeavors, the panel did not sense that this was due to a reduced ability to function as a result of his psychological state. In other areas of his life, the worker achieved success and was able to establish several new interpersonal relationships. In the panel's opinion, this suggests that the worker was not functionally disabled by his symptoms.

Throughout the 1980's it would appear that the worker did exhibit some of the characteristics of PTSD, but the panel finds that these symptoms did not amount to a psychological condition for which compensation may be paid. There is no evidence that the worker sought medical assistance for a psychological condition until the 1990's when he was ultimately diagnosed with PTSD. Although the worker identified the events from the 1970's as being the most significant events in his history, the file reflects that there were multiple other stressors and issues facing the worker during his employment in the 1990's in Ontario, which no doubt contributed to his diagnosis and which were more proximate to his disablement.

Overall, given the long delay between the onset of disability and the traumatic events in Manitoba, the lack of a PTSD diagnosis until 1998, and the many years of effective functioning in between, the panel finds on a balance of probabilities that the worker does not have an acceptable claim for benefits for the period January 1982 to September 1984. The worker's appeal is therefore dismissed.