The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable for incidents occurring in his workplace. A hearing was held on April 8, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 2, 2009, the worker filed a claim with the WCB for harassment/stress that he attributed to incidents that occurred at his workplace. The worker stated:

• his employer had been aware of his situation for months and it was not dealt with in a timely manner.
• he splashed some paint on the walkway and he was reprimanded for doing so. He was taken to the office and was yelled and screamed at in front of the mechanical supervisor.
• he hurt his back in January while operating a bobcat. When he returned to work, his superintendent screamed and used abusive language because he had a time loss accident.
• about 8 to 9 months ago, one of the guys had a problem with him. They gave him a nickname and made posters with his nickname on them. They also placed his nickname onto a company truck that was in town for repairs.
• he was expected to work long hours of overtime and he was getting too old for that. The company did not like it when he told them that he could not do it.
• the abuse had been ongoing for months and it was taking its toll on him.
• he had a 45 minute tape as proof that he was being abused at work.
• he got into a dispute with an acquaintance which resulted in police involvement.

On January 6, 2010, the employer's representative stated that the worker claimed he had been harassed by co-workers and had been called names. In April 2009, the worker filed a harassment complaint and two employees were later disciplined. The employer indicated that the situation was resolved as far as they were concerned. The representative noted that the worker had been involved in a few domestic disputes over the last few years. The employer was of the position that the worker's present situation was the result of his domestic difficulties and not the result of a workplace incident and therefore his claim should be denied.

The employer's representative submitted a stress/harassment report dated December 23, 2009 written by a manager. The manager stated:

• the incident referred to by the worker in which some employees were calling him unprofessional names had been dealt with by the Human Resources Superintendent.
• he had a conversation with the worker following his last lost time accident and he explained to him that it was unfortunate that he did not take advantage of their modified work program. The worker had participated in modified work on several occasions in the past and he knew that modified work was available to him but he chose not to accept. He had numerous conversations with the worker and felt they got along very well.
• two supervisors were unhappy with the worker in a painting assignment he was given. The worker was to paint a hand rail and he intentionally slopped paint from one end of the walkway to the other in protest of the painting assignment.
• he did not have knowledge of the 45 minute tape referred to by the worker.
• the worker did not work any longer hours than the other employees and overtime was voluntary.
• his opinion was that the worker's recent stress situation started when he was involved in a domestic dispute which involved the police.
• the worker's stress level significantly increased when he was later involved in another domestic dispute that again involved the police.

On April 29, 2010, the worker submitted a 9 page report to the WCB outlining his account of the incidents that occurred at work.

On July 8, 2010, the WCB case manager noted to the file that the worker's EAP counselor said she was not going to release any information to the WCB as all the meetings she had with the worker were related to personal issues that were not work-related.

Medical information on file consisted of a report from a counselor dated September 3, 2010. The counselor stated that the worker was seeking supportive counsel for the purpose of relationship issues and that the worker did make one or two references to his workplace.

On September 10, 2010, the WCB determined that the worker's claim was not compensable as the worker's need for counseling and time loss from work was related to non-employment personal issues. On September 29, 2010, the worker appealed the decision to Review Office. On December 10, 2010, the worker provided the WCB with a letter from his EAP counselor to a probations officer.

On February 8, 2011, Review Office determined that the worker's claim was not acceptable. Review Office indicated that there was no clinical diagnosis involved in the claim and there was no physician authorizing time loss for the worker to be off work. The claim therefore did not qualify in the area of the most basic needs regarding circumstances that would allow the WCB adjudication staff to issue wage loss benefits. The worker also did not have support of the EAP counselor with regard to submitting his claim.

Review Office indicated that the WCB was not able to properly investigate the situation as the worker clearly indicated on numerous occasions that the WCB was not to have access to personal information on the EAP counselor's file.

Review Office indicated that complaints about interactions between the worker, his supervisors and co-workers are viewed as employer/employee relations, and employer/employee relations are not normally covered unless something very significant occurs such as a physical assault. Not getting along with other people was not deemed to be a compensable matter and the WCB system would generally not have any involvement in such an issue. On May 19, 2011, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

On January 18, 2012, the worker advised the Appeal Commission that he was unable to attend the January 31, 2012 scheduled hearing.

On November 8, 2013, the worker submitted a new appeal application and a hearing was held at the Appeal Commission on April 8, 2014.

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 the information he provided the WCB regarding the workplace incidents was more than adequate to prove harassment. The statements given by the EAP counselor were untrue along with a cover-up by other employees. It was submitted that the situation at work led to work-related incidents which in turn caused family troubles. The harassment at work got to such a state that the worker could not attend work at all and the worker was seeking compensation for his vacation and sick days taken as a result of the stressful workplace.

The Employer’s Position

The employer was represented by a claims supervisor and a human resources manager. The employer advised was that it was committed to provide a safe and respectful work environment for all employees. The employer's records indicated that there were two complaints of harassment filed by the worker in March 2008 and April 2009. Both were investigated and appropriate action was taken. The only medical evidence contained on the file was from the EAP counselor with limited information. It was submitted that there was no objective or subjective medical evidence to support that the worker was unfit for work due to stress at any time during the period April 2008 to November 2009. The employer's position was therefore that the claim should not be accepted.

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

In order to establish an acceptable WCB claim, there must be medical or similar evidence of a disability arising from a compensable incident or condition. In the present case, there is no report from a physician or psychologist providing a diagnosis or opinion that the worker's psychological status was impairing his ability to work. The worker's evidence was that from 2007 to 2009 he was prescribed an anti-anxiety medication, but a prescription alone is not sufficient to establish disability. The medical documentation on file is limited to the reports from the counselor who simply confirmed that the worker had been attending and receiving supportive counseling and advice on coping strategies. This information is not sufficient to establish that the worker has suffered a disabling personal injury by accident.

Even if it were established that the worker has suffered a personal injury, we find that the provoking incidents at work do not constitute an accident arising out of and in the course of the employment within the meaning of the Act.

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 given careful consideration to the worker's employment situation and the events described by the worker. There was no single acute traumatic event but rather the problem was a cumulative series of distressful interactions with not just one but several other employees. While it is clear that the workplace had become very stressful for the worker, we do not find that the incidents complained of are of the type which would give rise to a WCB claim. The nature of the matters complained of are related to performance and conduct issues, and interpersonal relationships with other employees. The worker described a closed and unfriendly environment when he was transferred in from another location. Unfortunately, a difficult workplace alone is not sufficient to constitute an accident under the Act.

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. We also find that there is insufficient evidence that the worker has suffered a personal injury. As a result, we find 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 15th day of May, 2014