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 was not acceptable as the evidence did not establish that she suffered personal injury by an accident arising out of and in the course of employment. A file review was held on October 31, 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 "stress" with an accident date of November 21, 2012. The worker stated:

There has been nothing but a disrespectful workplace. I am being ostracized. This is due to a new section head that just came on board since 2011. This has escalated with section head as well as business manager. The union has become involved as well.

The employer's accident report stated that a respectful workplace investigation was being conducted by their human resources department.

A doctor's first report showed that the worker attended for treatment on November 21, 2012 complaining of insomnia, tearfulness, fatigue, poor concentration and poor memory which she attributed to stress in the workplace. The physician's diagnosis was acute adjustment reaction and the worker was referred to a psychologist.

On November 27, 2012, a WCB adjudicator documented a telephone conversation he had with the worker regarding specific events that occurred in the workplace beginning March 12, 2012 which the worker believed were the cause of her stress condition. The worker stated that changes in her work hours had been made and she experienced repercussions over expressing her opinions. The worker stated that she was being shunned at work.

On February 26, 2013, the employer's representative advised the WCB that the information they obtained from the union concerned internal processes such as change in work time, staff staggering breaks, etc. There were issues with personality conflicts between the worker and a manager, and role clarity but there was no harassment/bullying. The representative indicated that they were bringing in someone externally to help deal with the issues as there were concerns and complaints from both parties, but no harassment/bullying.

In a decision dated February 26, 2013, the worker was advised that the WCB was unable to accept her claim for symptoms of stress which she related to a disrespectful workplace. The adjudicator stated:

You advised there was a new Section Head to the Department and he was making changes in the area regarding work hours, sick time and vacation days. You felt he was disrespectful to the secretaries and courteous to the nurses as he would ask the nurses how their weekend was and only say good morning to the secretaries. You advised he came out of his office, threw a file on your desk and slapped your arm.

Information received from your employer confirms there were some changes in the workplace regarding work hours, lunch and coffee breaks and a schedule for staff. It was noted that you and your co-worker did not think these changes were necessary. Your employer advised that you did report this individual put paper on your desk and slapped you. Management spoke with this individual and it was noted that he tapped you, to get your attention and once it was brought to his attention that this upset you, he apologized as he did not mean any harm or disrespect. Your employer advised they are bringing in an external party to help deal with the issues around personality conflict and role clarity.

Based on the above findings, the worker was advised that her claim for compensation did not meet the requirements of a stress claim as outlined under The Workers Compensation Act (the "Act").

On March 22, 2013, the worker appealed the above decision to Review Office. The worker stated in part:

…I am currently off work due solely to the stressful environment imposed by the Section Head's repetitive intimidation, manipulating, bullying behavior which has affected my well-being. This has been as a result of the chronic traumatic experiences I have encountered. Personal harassment/bullying can manifest itself in different forms and I feel the constant wearing down of one by an authority figure, both Section Head and Business Manager, to myself and co-worker is yet another example of such along with the many encounters I have endured. [The employer] has a very clear policy on bullying and harassment within the workplace which I declare has occurred in this situation. I along with my co-worker attempted to bring forth our concerns as well as the disrespectful workplace issues to the Business Manager …and HR representative …but to no avail. In hindsight, the disclosure of issues we were experiencing only exacerbated the fearful and stressful environment within the office setting by the Section Head.

A submission made to Review Office by the employer's advocate dated May 10, 2013 indicated that they supported the adjudicator's decision that there was no evidence of an injury arising out of and in the course of employment as defined under the Act.

On May 24, 2013, Review Office confirmed that the worker's claim was not acceptable. Review Office stated that there were many incidents and interactions between the worker and the Section Head regarding a variety of issues. Although the worker felt that the transfer to another office was a punitive action, there was insufficient evidence on file to support this was a punitive measure.

Review Office stated that it was unable to establish that the incidents and interactions were accidents. Review Office considered the evidence on file did not link the worker's condition to a specific traumatic event but rather to accumulated stress in the workplace. It found that this was excluded as an occupational disease by section 1(1) of the Act. On May 30, 2013, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (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;

The definition of “occupational disease” as contained in the Act 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.

With respect to injuries arising from employment related matters, the Act contains the following limitation:

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 44.05.30, 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.

The Worker’s Position

The worker was self-represented in the appeal. The worker submitted that she was suffering from post traumatic stress syndrome as a result of complex work-related issues which included bullying, harassment, unprofessional behaviour by a manager, and finally: "… being removed from my office to be relocated to another building entirely to perform unrealistic expectations of my everyday duties in addition to performing additional duties for yet another party." The worker was a longstanding employee of over 28 years. She submitted that her position had encompassed many changes and challenges throughout the years which she had embraced fully and positively. At the current time, she was off work solely due to the stressful destabilizing environment imposed by a manager's repetitive intimidation and manipulating bullying behaviour which had affected the worker's well-being. The worker indicated that personal harassment and bullying can manifest itself in different forms and she felt that the constant wearing down by an authority figure (i.e. the manager) was evident in her situation. It was therefore submitted that the WCB should accept her claim.

The Employer’s Position

The employer was represented by an advocate. The employer's position was that the worker's stress claim was not compensable. The issues raised by the worker were related to disagreements with a new manager in her department about changes to hours of work and such issues as the need to stagger lunch breaks and coffee breaks. It was submitted that most of the worker's difficulties were due to performance issues, disagreement with changes in procedures from the new manager, and difficult interpersonal relationships in the workplace. These were issues which did not fall within the parameters for a compensable injury under the Act and WCB Policy. As the worker's psychological condition was in the nature of workplace stress, personality conflict and burnout, it was not covered by workers compensation benefits. The worker's claim was therefore not acceptable.

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 has suffered a personal injury by accident arising out of and in the course of the employment within the meaning of subsection 1(1) of the Act. We must find that her psychological injury was caused by either a chance event, a willful and intentional act, or an occupational disease (an acute reaction to a traumatic event.) On a balance of probabilities, we are not able to make that finding.

The Policy specifically addresses the issue of psychological injuries which occur as a result of burn-out or the daily pressures or stressors of work. These types of injuries will not give rise to a compensable claim. On a similar note, subsection 1(1.1) of the Act specifically excludes discipline, promotion, demotion, transfer or other employment related matters from the definition of accident.

The panel has carefully considered the worker's employment situation as described in the documentation on the WCB file. It is clear that from the worker's perspective, the workplace had become extremely dysfunctional and her employment situation was causing her significant distress. Even though she had been successfully employed there for over 29 years, the incompatibility between the worker and her new manager created conflict in a workplace where she had previously been able to function. This ultimately caused the worker to suffer psychological symptoms for which she sought medical attention and which resulted in her missing time from work.

The worker submits that the manager's treatment towards her amounted to bullying and harassment. The panel accepts that in certain circumstances, a pattern of either personal or sexual harassment may constitute an “accident” within the meaning of the Act. That finding may be made where there is willful and intentional conduct on the part of a third party which causes injury to the worker. In the present situation, however, we do not find that this is the case. The panel does not feel there was a pattern of intentional conduct on the part of the manager sufficient to constitute harassment which would qualify as an accident under the Act. The incidents identified by the worker were virtually all related to disagreement on office procedures, manner of job performance, and management style. We note that the conduct complained of did not involve berating or criticism regarding issues unrelated to work and job performance.

There was one specific occasion where the manager made physical contact with the worker on her arm. The contact has been variably characterized as a "slap" and a "tap", depending on the perspective. The file indicates that this was an isolated incident which never occurred again. The evidence is conflicting as to whether or not the manager apologized for his actions. As the physical contact was a single incident and entailed minimal force, the conduct does not constitute a pattern and we do not view it as amounting to harassment.

Overall, the panel finds on a balance of probabilities that the stressful workplace situation was akin to the types of employment related matters which are specifically excluded from coverage under the Act and the Policy. Further, the manager's conduct complained of by the worker did not amount to harassment sufficient to constitute an accident under the Act. Accordingly, we must conclude that the worker's claim for compensation is not acceptable.

The worker's appeal is 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 4th day of December, 2013