The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. The worker contended that the information used by the WCB had not been properly considered in a fair manner in regard to the applicable legislation. A hearing was held on June 19, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a psychological condition that she related to various events that occurred in the workplace starting May 23, 2012 onward. The worker stated:

A consistent deterioration of psychological functioning due to a variety of incidents causing vicarious trauma and post traumatic stress, anxiety and other symptoms identified through psychological interventions. Most recently a client suicide February 2012.

On June 29, 2012 a WCB adjudicator contacted the worker for additional information. The worker indicated that her job was "crisis driven" and that the suicide of one of her clients in February 2012 and the resulting investigations led to increased stress and the inability to manage at work. The worker described another case that caused her stress which occurred shortly after the February incident whereby a series of investigations took place. The worker noted that she was stressed out at work and was having anxiety and panic attacks, as well as sleeping difficulties.

The worker advised the case manager that she went to a mandatory training class in May 2012. She noted individuals in the training course were talking inappropriately and unacceptably and it was a toxic environment. The worker said she spoke with the training facilitator to intervene without any results. After completing the course assessment, the worker caught a flight home and reported the events to her supervisor. She indicated that she was reprimanded for leaving the course early and that her employer withdrew part of her job. The worker stated she was a good employee and found this to be very humiliating. The next day she went back to work to complete a report and has been unable to return to work since. She noted that everything over the last year had been an accumulation of stressful incidents and she felt overwhelmed and could no longer manage at work.

On July 26, 2012, the WCB adjudicator spoke with the worker's supervisor. The supervisor noted that the suicide which took place in February 2012 had a very big impact on the worker. After the suicide the employer provided "critical incident stress debriefing" and EAP counselling. She said she could tell that the worker was putting on a brave face but the worker was still functioning at work. She said a Board of Investigations ("BOI") hearing took place in regards to the suicide and that this was a stressful process. It was determined that the case had been handled properly by the worker and no formal disciplinary action or conversations were required.

On July 27, 2012, the WCB adjudicator outlined further information that she obtained from the worker's supervisor. She noted that the worker was aware that another BOI would be conducted on a different case. However, by the time the investigation was completed, the worker was already off work and the supervisor had not discussed the findings with the worker.

With regard to the mandatory training class in May 2012, the supervisor noted that she was told by the Regional Director that the worker left the training without authorization and upon return to work she was questioned about this. A formal meeting with human resources and the worker occurred on May 22, 2012. At this meeting the worker was given the opportunity to state what happened and why she left the training. The worker was advised that there would be an investigation into the fact that she left training without authorization. The worker was advised at the meeting that her telework project would be placed on hold pending the investigation. The worker indicated that she had already made arrangements for the telework job and had handed in her parking badge. A memo by the Area Director at the end of the day noted that the worker could continue with the telework project but the unauthorized departure from the training was not resolved.

On July 12, 2012, the worker's family physician advised the WCB that the worker was seen on June 12, 2012 regarding her stress leave. The worker was diagnosed with Acute Situation Reaction with depressed mood.

A report was received from a treating psychologist dated July 11, 2012. The diagnosis outlined was adjustment disorder with mixed anxiety and depressed mood.

On July 27, 2012, the worker was advised that the WCB was unable to establish an accident arising out of and in the course of her employment as defined by The Workers Compensation Act (the "WCA") or the Government Employees Compensation Act (the "GECA"). The adjudicator recognized that the worker worked in a stressful environment, however, she was able to continue performing her regular job duties since the suicide in February 2012 and she declined debriefings when a BOI was conducted. The adjudicator noted that the worker did not attend a physician during this time period and she did not go off work until she was advised that there would be an investigation into unauthorized leave from a training course. On August 23, 2012, the worker appealed the above decision to Review Office.

In its decision dated October 16, 2012, Review Office outlined the worker's position that she first sought help for her stress and feeling overwhelmed in March 2010. She was prescribed medications for her depressed state and was still taking the medication in May 2012. The worker felt her condition was the result of an accumulation of incidents over time and she wanted it noted that she was not offered nor did she decline EAP intervention following the BOI.

Review Office referred to the following file evidence in support that the worker's condition was not the result of a specific traumatic event but rather to accumulated stress in the workplace, which was excluded as an occupational disease by Section 1(1) of the WCA:

• The worker did not see a physician for stress until June 2012.
• The family physician reported that the worker previously had experienced stress in 2010 but did not indicate a work-related cause. She stated that the worker was angry at the system and the process that she had gone through.
• Information from the treating psychologist that the worker's negative emotional reactions and symptoms were a reaction to her workplace environment and the compounding and cumulative effects of the stressors.

On November 30, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by the WCA, regulations and policies of the Board of Directors.

As the worker was employed by a federal government agency or department, her 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 term used in the WCA is “occupational disease” rather than “industrial disease”, but the difference in the wording 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 44.05.30, Adjudication of Psychological Injuries, (the "Policy") sets out guidelines applicable to claims for psychological injuries. The effective date is November 1, 2012, for all claims regardless of accident date.

The relevant portions of the Policy are as follows:

Accident

The definition of accident in The Workers Compensation Act (WCA) has various components. A psychological injury can be caused by:

· a chance event

· a willful and intentional act; or

· the injury can be an occupational disease (an acute reaction to a traumatic event)

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically.

…

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no willful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

Worker’s Position:

The worker was assisted by a union representative at the hearing. It was submitted that the worker suffered an injury as a direct result of a traumatic workplace experience as required by the GECA and the WCA and policy. The traumatic incident was the death of a client of the worker. A client suicide was not a characteristic part of the worker's occupation and dealing with such an event was not a normal expectation of her work. The worker attempted to deal with the personal impact of the workplace event without seeking available assistance. In retrospect, seeking professional assistance may have been a better approach. Nevertheless, the fact remains that the worker did not address the personal impact of the tragedy in the most direct and expeditious manner. In suppressing a reaction to the circumstances, the worker over time aggravated her personal ability to recover. The events, in particular, the training incident which took place prior to the worker filing her claim and seeking professional help acted to highlight for the worker her failure to deal with the underlying cause of her personal problem, i.e. the psychological injury which had taken place as a direct result of the suicide. The worker's reaction to subsequent workplace events was unfortunate, but it was the result of the underlying problems which went back to the traumatic event which had not been fully and properly addressed.

It was submitted that the WCB incorrectly assumed that the training incident was the event that caused the accident. The WCB assumed a cause and effect relationship based on the relative proximity in timing. This was wrong. The actions that took place in relation to the training incident were more correctly characterized as a symptom of the accident and not the cause. The realization of the cause is clear in the psychologist's report and relates directly to the workplace. It was therefore submitted that the WCB's decision should be reversed and the claim accepted.

Employer’s Position:

The employer was represented by an associate district director and a labour relations advisor. The employer did not take a position on the issue under appeal but appeared at the hearing to be of assistance to the Commission in answering questions, if required.

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

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

On a balance of probabilities, we are not able to make such finding.

In the panel's opinion, the worker's description of events which ultimately led to her psychological condition depicts an unfortunate situation where the cumulation of work-related events led to her disability and it cannot be said that she suffered injury caused by an accident or industrial/occupational disease (i.e. an acute reaction to a traumatic event).

The worker identified the client suicide as the cause for her psychological condition. While we agree that the suicide was the starting point for a chain of events, we do not find that the worker suffered an acute psychological reaction in direct response to this event, nor can it be identified as the sole reason for the development of her subsequent disability. It would appear that there were many other factors related to the work environment which caused the worker distress and led to her disability, including personal misgivings about her management of the case, heavy workloads, the unsupportive work climate generally, the training incident, the unexpected response of her supervisor, and the manner in which her employer responded to and handled the training incident.

The report from the treating psychologist dated July 11, 2012 confirms a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. The psychologist states: "It quickly became clear that her negative emotional reactions and symptoms were to a large extent a reaction to her work place environment and the compounding and cumulative effects of these stressors." It is notable that although post traumatic stress reactions are reported, there is no diagnosis of Post-Traumatic Stress Disorder, which would be a psychological diagnosis directly referable to a traumatic event. In the panel's opinion, the worker's psychological condition was the result of burn-out and the daily pressures or stressors of work. This type of injury is specifically identified as non-compensable by the policy.

The panel is sympathetic to the worker's situation and we were impressed by her professionalism and dedication to her occupation. Unfortunately, however, we see her psychological condition to be in the nature of workplace stress/burnout and this is not a condition which is covered by workers compensation benefits. For these reasons, we must conclude that the worker's claim is not acceptable. The worker's appeal is therefore dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of August, 2013