The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his psychological condition was not a personal injury by accident and therefore his claim for compensation was not acceptable. A hearing was held on September 25, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In September 2011, the worker filed a claim with the WCB for depression and anxiety symptoms that he related to an allegation made against him at work by a client in residence.

Information submitted by the employer's human resources manager dated October 5, 2011 stated that allegations were made against the worker on December 31, 2010 by one of their clients. The worker was suspended from employment pending the outcome of an investigation by a government agency.

On September 28, 2011, the worker advised a WCB adjudicator that his supervisor called him in on December 31, 2010 to tell him that a client had made an allegation against him. The client had been in the residence for about one week and apparently reported the allegation to a staff member. The worker said he did not know anything about the allegation other than it was of a sexual nature. He was not given any further details. After informing him of the allegation, his supervisor advised him that he had to leave. He had not worked since. The worker noted that the situation left him stressed and suffering from anxiety. The worker indicated that he experienced a suspected transient ischemic attack in August 2010 while at work and a further incident this spring. He could not remember the date or month this occurred; however, he felt the recent incident may be related to the stress of the investigation/allegation. The worker indicated that he used up his sick time and holiday time. He also received EI sick benefits however they were about to run out.

On October 6, 2011, the WCB adjudicator requested additional information from the employer. In a response dated October 12, 2011, the employer indicated that they were unable to provide specific details of the alleged incident. When a client discloses information regarding an incident, the procedures were to remove the employee from the workplace until an investigation is completed. The employer noted that allegations had previously been brought forward against the worker in June 2008. As per protocol, the worker was removed from the workplace and after a nine month investigation, he was re-instated.

On October 13, 2011, the worker's treating physician reported that the worker was treated on April 6, May 9, June 9, July 7, July 25, September 8, and October 6, 2011. The physician felt there had been a work related event that had not been addressed by the investigation process in a timely manner. The physician noted the worker has a severe, deep and profound depression and has had subsequent health events which may be related to the original event.

On March 6, 2012, the worker advised the WCB that he denied involvement in any inappropriate behavior/action which led to the allegation made against him. He noted that the investigation by the government agency dated November 7, 2011 stated: "The investigation into the allegation presented as (sic) been completed; based on the information gathered, the outcome is deemed to be inconclusive." The worker noted that once he received a medical clearance to go back to work his employer refused to allow him to return to work.

On April 26, 2012, the worker was advised that the WCB was not able to accept responsibility for his claim. The letter stated: "It is the opinion of Rehabilitation & Compensation Services that the allegation made against you does not constitute an accident. The WCB does not deny that you were experiencing stress however; we find that a situation where an allegation is made and subsequently investigated as per protocol does not meet the definition of an accident as defined in Section 1(1) of the Act. As such, your claim for compensation has been denied."

In an undated submission to Review Office, the worker outlined his position that his claim meets the definition of an "accident" and an "occupational disease" as defined in subsection 1(1) of The Workers Compensation Act (the "Act").

On July 8, 2012, Review Office provided rationale to support the following determinations:

• That the worker's psychological condition diagnosed as anxiety and depression was not caused by an accident arising out of and in the course of his employment;
• That the claim did not meet subsection 1(1)(a) of the Act;
• That the claim did not meet the requirements of a "chance event";
• That the worker's psychological distress did not arise in direct response to an "event";
• That the claim did not meet subsection 1(1)(b)(ii) and/or (c) of the definition of accident.

On July 16, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on September 25, 2012.

Following the hearing, the appeal panel invited the worker to submit further information relating to the government agency's report dated November 7, 2011.

On October 7, 2012, the worker responded to the appeal panel and declined to provide a copy of the report. On October 16, 2012, the panel met to further discuss the case.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides 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;

Restriction on definition of "accident"

1(1.1) 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.

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. The Worker Appeal of Claims Decision form indicated that the worker strongly disagreed with the WCB's decision in this matter. It was submitted that there was an accident which was a willful and intentional act that was not the act of the worker. The situation of having a false allegation being made against him while on the job was a traumatic event and the worker's psychological injury was an acute reaction to that incident. It was submitted that the stress, anxiety and depression which the worker had suffered was a direct response to an "event" that happened to him at his work place while on shift, while on duty. The worker questioned how one could not suffer from an acute reaction to this type of traumatic event.

Analysis:

The issue before the panel is whether or not the worker’s claim for benefits arising from his psychological condition is acceptable. In order for the appeal to be successful, the panel must find that the worker’s psychological condition was caused by accident arising out of and in the course of the employment. On a balance of probabilities, we are not able to make that finding.

This appeal involved very unique circumstances and it was difficult to identify what constituted the "accident." The worker's submission was that it was the act of being informed of the allegations against him which caused him to suffer a psychological injury. He characterized his stress, depression and anxiety as an "acute reaction to a traumatic event," with the traumatic event being the delivery or communication of the false allegation against him.

Based on the information before us, the panel is unable to determine whether or not the allegation is false. We were not provided with a copy of the investigation report by the government agency, and indeed, we do not even know what was alleged against the worker. When asked by the panel about the nature of the allegation, the worker disclosed only that the allegation was made against him by a female client, that it concerned alleged actions on the part of the worker which took place away from the workplace sometime within the previous six months, and that it had nothing to do with the performance of his duties at the place of employment. The worker was adamant that there was absolutely no substance to the allegations.

In arriving at our decision, the panel is not making any determination regarding the validity of the allegation made against the worker. We do not have enough information to make that determination, but more importantly, we do not feel such determination is necessary in order for us to make a decision regarding entitlement to benefits. Regardless of whether or not the allegation was true or false, the panel finds that it was not the actual delivery of the information regarding the allegation which caused the worker's psychological state, but rather the process associated with the subsequent investigation which was the cause of the psychological distress.

In reviewing the medical reports, the evidence does not support the finding of an acute reaction to the event of being informed of the allegation. The worker did not seek medical treatment from his family physician until April 6, 2011. The family physician's report of October 13, 2011 describes a history of the worker's psychological condition as being more related to process and employment relations than an acute reaction to an event. The physician's report states:

A work related event occurred December 10, 2010 (sic) that has not been addressed by the investigation process in a timely manner. Respective of an employee, I feel his work place has not dealt with this vulnerability of his job in a reasonable fashion. A more supportive work environment is need (sic) to respect employee's (sic). This process needs to be addressed to support employee's (sic) in future events. The nature of this job creates its own environment.

There is evidence on the file that the worker attended counseling services, but this did not commence until January 27, 2011 and again, the counseling is described as: "in relation to your report of the distress that you experienced from being off work since December 2010 due to a work related situation" (emphasis added).

Subsection 1(1.1) of the Act provides that the definition of "accident" does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination. In the panel's opinion, the events which caused the worker's psychological condition were labour relations matters similar to promotion/transfer/demotion/lay-off/ termination and therefore are excluded from the definition of accident. The allegation made against the worker arose from alleged activity which occurred outside of work and the effect of the allegation was to bring into question the worker's fitness or qualification to work for the employer. The worker was placed on immediate suspension and was told: "this should be over in a couple of days." In fact, the subsequent investigation took months to complete. As the delay increased, so did the worker's distress. He kept calling the parties involved in the investigation to determine the status of the matter, but was unable to get any answers. Ultimately, a report was not produced until November 7, 2011.

In the panel's opinion, the evidence as a whole indicates that the worker's reaction was in response to the change in his employment and the prolonged investigation, rather than from the actual delivery of the news of the allegation. The cause of his psychological condition was a labour relations issue which is specifically excluded from the definition of accident contained in the Act. As such, we have no choice but to conclude that the worker is not entitled to compensation benefits for his psychological condition.

For the foregoing reasons, the panel finds that the claim is not acceptable. The worker's appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 15th day of November, 2012