The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that his psychological condition was not related to work events that occurred in March 2011. A hearing was held on April 24, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 18, 2011 the worker filed a claim with the WCB for an "anxiety" condition that he believed was due to work events that occurred in March 2011. The worker described the work-related events as follows:

I told on a co-worker as he was smoking dope underground. The co-worker threatened me and a few other co-workers, saying he was going to harm me and other co-workers. He also phoned me at work and made threatening phone calls to me at work. There was also an incident at the mine were there was a blast and the above co-worker (that I told on) did not tell me and my other co-workers that a blast was going to happen.

The worker advised the WCB that he was off work due to anxiety, panic attacks and tension headaches.

The Employer Injury Report signed on July 19, 2011 indicated that they had no history of the worker reporting a stress or anxiety condition on March 4, 2011.

On July 18, 2011, the worker provided the WCB with a written statement dated March 22, 2011 of the events that occurred at work between December 2010 and March 2011. The worker indicated that he felt harassed, threatened, unsafe and nervous while working with a co-worker [the respondent] who admitted to smoking dope while underground. In particular, the worker described the events that occurred when he was riding with the respondent in a tram car and the events that occurred from a blast that went off in a loading pocket which he felt the respondent knew was going to happen but didn't warn him about. The worker indicated that the blast caused ringing in his ears as he did not have time to put in his ear plugs.

On July 20, 2011, a WCB adjudicator advised the worker that the WCB did not accept claims for anxiety. The worker stated that his anxiety was caused by threats and actions taken by the respondent. The worker indicated that the respondent would threaten and use profanity when he spoke to him over the phone and that he used company equipment to scare him and his other two co-workers. With respect to the blasting incident, the worker was asked if the respondent knew where he was at the time of the blast and he replied that he was sure that he did. The worker said the blast was loud and unexpected.

On July 28, 2011, the employer's safety coordinator stated that the worker filed complaints against the company for the incident on the man car, claiming that the transport of material was done incorrectly. The representative indicated that they have rules of no more than half throttle when operating the loci. He was sure that the respondent would not risk going off the track with the loci but there was really no way to tell. The representative indicated that the worker said someone was smoking drugs while at work and that everyone was tested for drugs right away and that all the tests came back negative. He heard that the worker and the respondent were once friends and drove to work together but at some point had a falling out and were no longer getting along. He said the worker never mentioned that any threats were made to him by the respondent.

On November 29, 2011, the worker called the WCB to advise that 8 men at his work got fired over a drug issue. He said the man who lit the blast which affected him had been fired because he was tested positive for drug use.

On January 4, 2012, the worker advised the WCB that he used to ride to work with the respondent but then the respondent was doing drugs on the way to work. He then commuted with other workers because of it and when the respondent found out, he would start playing tricks with them on the road as he knew he was in the truck. This occurred on March 4, 2011.

In early February 2012, the WCB adjudicator arranged a conference call in order to speak with the respondent, two co-workers, the mine captain and the safety representative regarding the worker's perspective on the train incident, the blast incident and the driving to work incident. The following information was documented:

Train incident:

• the respondent confirmed that he drove the tram but did not think he was going fast. He did not recall slamming on the brakes on purpose. He went for a drug test and he passed. He suspected that the worker had told his boss that he was doing drugs. He had no negative history with the worker and thought they were friends. They had a disagreement over the cost for a ride so he quit giving him rides. He confirmed that he called the worker a rat.

• another co-worker stated that the respondent was not experienced in driving the tram. He could not recall if the respondent sounded the horn but he left suddenly and he stumbled a bit and hit his arm, but not to the point where he had to make a claim. He did not get the feeling that the respondent did it on purpose. He did not feel threatened by the respondent.

• the safety coordinator advised that when the worker told him of the drug use, they all underwent drug tests the same day and they all came out negative.

Blast incident:

• the coworker said they were working in an area of the mine and a blast went off in a different area. They were startled but it was not a dangerous situation. The respondent was guarding the area that he was supposed to and they were in a different area. The respondent as such did not have a responsibility to warn them.

• another co-worker said there were three guards at that time and they were blasting in the loading pocket, they were working 150 feet away in a different area.

Driving to work incident:

• the respondent said he was not driving any differently than he normally drove.

• third co-worker thought that the respondent drove recklessly but he himself drove fast. He agreed with the respondent and another co-worker regarding the train incident.

• the safety coordinator commented on road conditions. He said the last 35 kms was a gravel road and it was rough driving. He indicated that he might drive slower but the workers who are more experienced in driving the roads drive faster and it may seem reckless.

• another co-worker indicated that the worker was going through some personal issues at the time and so he was stressed.

On February 14, 2012, the worker was advised of the WCB's decision that no responsibility would be accepted for his claim. The decision letter stated:

In the opinion of Rehabilitation and Compensation Services, we have been unable to establish a relationship between your psychological difficulties and the work related events as described to us. More specifically, we have not been able to establish that your psychological difficulties were brought about by willful and intentional actions of your coworker. As such, we are unable to accept your claim.

In a submission to Review Office dated September 6, 2012, a worker advisor outlined the worker's position that the worker developed anxiety and post traumatic stress disorder as a result of harassment in the workplace from a fellow worker and felt that his life was in danger. The worker was also of the opinion that his claim was not properly investigated as the witnesses were interviewed over the phone in a common location with their supervisor present. It was the worker's belief that due to fear of job security they did not provide supportive information.

On October 19, 2012, Review Office determined that the worker's claim was not acceptable. In making its decision, Review Office made reference to the information on file from the respondent and the employer. It found that the respondent denied any intentional actions to induce fear or threat to the worker but did agree that they were once friends and due to disagreements were no longer. The other co-workers could not identify any intentional or direct threat by the respondent to the worker. It found that the respondent followed the correct procedures with respect to the underground blast. It noted that the worker made complaint of physical symptoms following the blast, however a claim had not been filed with respect to a physical injury and would not be involved in the adjudication of the claim.

Review Office indicated that it could not confirm or identify any direct threat to the worker that would be out of the norm for the general working conditions he was accustomed to. The general stressful working conditions of mining or working underground with the inherent dangers thereof are not considered compensable and any psychological condition believed related was subsequently not considered an injury "arising out of and in the course of employment."

Review Office stated that the accusations against the worker's coworker have not been proven and any situations or incidence involving the worker and the co-worker have not been shown on a balance of probabilities to be intentional and were not likely to have caused the worker severe physical or mental harm.

On October 26, 2012, the worker appealed the decision made by Review Office and an oral hearing was requested. Prior to arranging a hearing, the Appeal Commission arranged for the WCB's Special Investigation Unit to obtain sworn statements from the identified witnesses regarding their involvement/knowledge of the three incidents that took place in the workplace on or around March 4, 2011 which the worker felt was the cause of his psychological condition. The statements were subsequently obtained and were placed on file and a hearing was held on April 24, 2013 to consider the worker's appeal.

Reasons

Applicable Legislation

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

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 4(1) 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;

Subsection 1(1.1) of the Act restricts the definition of “accident” by stating the definition: “does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.”

Thus, the definition of “accident” provides three general ways in which it may be found that an accident has occurred. A claim may be adjudicated as an accident (in the more traditional sense) under parts (a) and (b) of the definition, or as an occupational disease under part (c) of the definition.

If a claim is adjudicated as an accident under part (c) of the “accident” definition, it must satisfy the definition of “occupational disease” set out 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 as an acute reaction to a traumatic event.

Worker's Position

The worker represented himself at the hearing. He explained the reason for his appeal and why he feels that his claim is acceptable. He answered questions from the panel.

The worker advised that he commenced working for the employer in 2005. He was hired as a "shaft person in the mine, which means looking after the cage, which is called an elevator in some places, and wherever the elevator goes I inspect that shaft to make sure it’s safe for the men to go and, and go down." He said that he inspected the shaft weekly. He described himself as very safety-minded.

At the time of the incidents, the worker was "rehabbing" an abandoned mine shaft. He worked with a crew of three other men, two of whom were not experienced miners. He said an issue developed between him and the experienced co-worker (the respondent) when he reported that he suspected the respondent was using drugs at work.

He said that a few weeks after he reported the respondent to the employer, several incidents occurred which he felt placed his life in danger. The first incident he referred to was that the respondent drove the loci (train) dangerously when he and the other crew members were on it. He said that the respondent "…would slam on the brakes…and he would scare us and he’d drive really fast. Those things, those little trains can move at a very fast speed when you have it full gear. …And that vehicle, if it derails, you’ve only got four feet on each side and if it derails you’re hitting a solid rock rail, solid rock and, and, and you could die." He also said that the respondent used the engine to push the car carrying the workers which is dangerous and illegal.

The worker said the respondent also tried to intimidate him. He said that "I had a hard time every day to go to work thinking this guy is out to get me and there is something that he may do to make it look like an accident that I was a dead man."

The second incident which concerned the worker was the respondent playing "dangerous games" on the road to and from work. He said that he used to ride to work with the respondent but started riding with another co-worker. One day the respondent drove recklessly, speeding up and slowing down and not allowing the worker to pass him.

Another incident concerned a blast at the mine. He said he and a co-worker were working in the back in a sump area when a blast occurred. The respondent was the guard and should have warned them that the blast was taking place. He also said that the charge was too big, used four sticks instead of one, and that the respondent knew this. The worker said that he suffered a head and hearing injury, and his co-worker suffered a concussion from the blast. He said that he and the co-worker could have been seriously injured due to the failure to warn them and the use of a larger charge. The worker said that he complained to the supervisors but they said guards were in the right place and declined to take any action.

The worker said that "This guy terrorized me psychologically to a point where I could not go back to work fearing what the next, what the next incident was going to be for my life."

The worker described his medical condition and treatment. He advised that he has not been able to work since he left this worksite. He said a psychologist has diagnosed him with post traumatic stress disorder from the incidents that happened at work. The worker advised that he had ringing in his ears after the blast which lasted for about three days. He said that he continues to have headaches from the blast. The headaches cause his vision to be blurry.

In support of his appeal the worker provided letters from two co-workers, one of whom continues to be employed at the mine.

The worker acknowledged that drug tests were taken after he complained and that he was told the results were negative. The worker said this is because the workers used flush kits which hide or flush the drug from the sample.

When asked about comments in the sworn statements provided by his co-workers regarding the tram ride, he discounted the co-worker's evidence. He noted they were inexperienced and said that "They don’t know anything about those vehicles."

Regarding the blast incident, the worker acknowledged they were advised there would be a blast and knew the location of the blast but were not warned about when it did happen. He also acknowledged that he and his co-worker were working outside the blast area. When asked whether the respondent was in danger during the blast, the worker responded that "he was actually in just as much danger as I was." He also said that the respondent "must have been frightened because, because he knew that we were, we were all frightened about it." The worker advised that he continued to work after the blast.

The worker confirmed that a different co-worker was responsible for selecting and detonating the blast, but he believes that the respondent knew it was a bigger charge than usual. The worker was asked why he thinks that the respondent knew that the co-worker was using a bigger sized powder or charge. He responded "Because when we, when we were frightened, [respondent] laughed, that’s, that’s my assumption why he, why he knew."

The worker confirmed that the driving incident took place on a provincial road. He said that the respondent would not allow his co-worker, who was driving, to pass. The worker said that he thought the respondent did this because he knew the worker was in the car. The worker said that his co-worker spoke to the respondent about the incident but that he did not speak to the respondent.

In closing, the worker said that he put his life on the line for his co-workers and got the worst of it. He said that the co-workers were afraid to say anything because they were on probation.

Employer's Position

The employer did not participate in the hearing.

Analysis

Before addressing the issue, the panel notes that the worker expressed concern about the WCB's investigation of this claim. In this case, the case manager had interviewed five witnesses by way of a telephone conference call organized by the employer. Included in the group of witnesses was the respondent about whom allegations of harassment were made, co-workers who were witnesses to the alleged harassment and management representatives who dealt with the allegations. The witnesses were assembled in the same room and were questioned over a speaker phone. The panel considers this to be an inappropriate method to obtain information from multiple witnesses. The panel, accordingly, asked the WCB to obtain signed individual statements from each witness. The WCB's Special Investigation Unit obtained the witness statements which were used by the panel.

At the time of filing his claim, the worker indicated the area of injury to be "anxiety." A January 25, 2013 report from the treating psychologist provides a diagnosis of "work related Post-Traumatic Stress Disorder ("PTSD")." The worker asserts that his PTSD condition is caused by his employment and specifically three incidents that occurred at or through work. The worker advised that all the incidents involved his interaction with a specific co-worker (the respondent) who he felt was attempting to harass him and injure or kill him. He said the motive for the respondent's action was that he had reported the respondent for using drugs at the worksite.

The issue before the panel is whether the worker’s claim is acceptable. In order for the appeal to be successful, the panel must find on a balance of probabilities, that the worker's psychological condition arose out of and in the course of his employment. The panel was not able to make this finding. The panel carefully considered each of the incidents identified by the worker.

Driving Incident

The worker was concerned that the respondent harassed him when driving to and from work. He advised that he participated in a carpool with another co-worker and that when he and the other co-worker were driving, the respondent was driving in front of their vehicle and would slow down and refuse to allow them to pass. The panel notes that the co-worker who was driving the car described the incidents as unnecessary and childish, and that the actions increased the risk of travel. The worker was not driving the vehicle during this incident. The other co-worker (the driver) said that this occurred for a few days but ended with a handshake between him and the respondent.

The panel considered the actions by the respondent and finds that these actions did not occur in the workplace and did not arise out of or in the course of employment. The actions occurred on public roads away from the workplace and do not fall within the Act.

Train Incident

Another incident that concerned the worker involved the respondent's conduct in driving a small train used at the worksite to haul staff and equipment. He said that the respondent was driving the train on one occasion when he and two other co-workers required transportation to another area. He said that the respondent failed to give appropriate notice that the train was leaving, resulting in an injury to one of the other co-workers. He also said that the respondent purposely drove recklessly by stopping suddenly and accelerating quickly, and pushing the man car (unit for transporting staff) contrary to government rules which require that such a unit be pulled not pushed.

At the panel's request, the mine supervisor and two co-workers who were with the worker on the train were interviewed about the incident. One of the co-workers said that it was not the respondent's regular job and that he was "riding a little rough, like he was a little tough on the go and stop…". He acknowledged being slightly injured when the train commenced. He said the respondent might have taken off before he was seated and that he banged his elbow. The other co-worker could not remember an incident where the respondent operated the train, although he was aware that the respondent has operated it.

The mine supervisor advised that the worker complained about the way the respondent drove the train but that the other passengers did not complain. The safety training supervisor was interviewed. He advised that the train is fairly smooth. He said that if the brake is jammed the train will lurch. He said that the respondent is an experienced driver.

The panel finds that the evidence does not support the worker's position that the respondent, in driving the train, purposely attempted to scare or injure the worker and accompanying co-workers. The panel notes in particular that the worker was already seated when the train started abruptly, and was not at risk, compared to another co-worker who had yet to sit down. As well, all workers on the train, including the respondent driver, were equally at risk of injury while the train was being operated.

Blasting Incident

The final incident identified by the worker involved blasting in a pocket near where he and a co-worker were working. The worker said that the respondent was a guard and that it was his duty to warn them when the charge was to be detonated. He said that the respondent purposely failed to warn them and put their lives at risk. The worker also alleged that a bigger than needed charge was used. He said that the respondent knew this and still failed to notify them. He advised the panel that he feels the respondent was involved in having a bigger charge used.

The co-worker who was with the worker at the time of the blast was interviewed about the blast. He said that to him the blast "wasn't as big a deal as [worker] had made it out to be." He said they were working far away from the "pocket" (the area) where the blast took place. He said it was not normal to be notified when the blast is going to happen but that "we were given notice before we'd gone down underground that they were gonna have to blast in the pocket." The co-worker said that when they left their work area they saw the respondent who was surprised to see them because he didn't know they were there. The co-worker advised that he provided a written report on the blast.

The safety training supervisor was interviewed about the blast. He stated that the area was guarded off, the whole area was secured and was ventilated. He said there was no concussion in the blast.

The second guard was interviewed. He stated:

"Well one time we were blasting in the loading pocket and [worker] got all excited about ah, letting it go, but he was so far away from it, I don't know why he freaked out. He got kinda excited, but it seems it was in no harm's way by any means. We had it guarded, everything was done by the book. And he, just that he was in a place where he didn't hear that we were gonna be doing a small blast and then he got excited."

The second guard said the worker was in no danger, and would have been moved if he was in danger. He also advised that he assumed the worker knew that the worker there would be blasting.

The panel finds the evidence does not support the worker's allegation that he and his co-worker were endangered by the respondent's failure to notify them of the blast. The evidence does not establish a bigger charge was used or that the respondent participated in the decision to use a bigger charge. The overwhelming evidence suggests that the blast was done in accordance with correct procedures. The panel notes that the worker said that the respondent was in a more dangerous spot during the blast than the worker was. This raises the question of why the respondent would place himself in greater danger than the worker, if his intent was to harass or endanger the worker.

Conclusion

The worker's perception articulated in the hearing was that these various incidents were directed at him to intimidate and injure him. However, the panel looked at the individual incidents and is not able to conclude there was direct harassment addressed at him in the workplace nor was there an acute traumatic event. The worker's allegations were not supported by the evidence.

The panel notes that the worker has referenced a physical injury arising from the blasting incident but has not filed a claim for this injury. It remains open for the worker to file such a claim.

The worker's claim is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of May, 2013