The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her psychological difficulties were not related to her work environment. A hearing was held on February 13, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 13, 2013, the worker filed a claim with the Workers Compensation Board ("WCB") for post-traumatic stress disorder ("PTSD") which she attributed to: "constant exposure, witnessing of violent events, causing bodily harm in an emergency situation." The worker reported that her psychological condition had been ongoing for 12 to 18 months and her symptoms included headaches and chest pains.

Medical information consists of reports from the family physician dated April 1 and 12, 2013 and a report from a psychologist dated March 11, 2013. Also on file is a hospital emergency report dated May 17, 2011 and results of an electrocardiograph.

On March 18, 2013, the worker provided the following information to a WCB adjudicator:

• she had been employed at her current job for approximately 8 years and began having symptoms about 12 to 18 months ago. The worker noted that she had quite a few bad calls where she would be crying all the time and at work. She would be emotionally and physically ill.

• there was nothing different or particularly stressful on the day she last worked. She was constantly exposed to traumatic and violent calls. Some of the calls were unforgettable and would not leave her.

• she did not have any non-employment stress such as financial or relationship issues.

• she was told by her family physician and psychologist that she would not be able to return to her current job but she was very hopeful and motivated to return to work.

• the accident employer was aware of her WCB claim.

In e-mail correspondence dated March 18, 2013, the employer's representative opposed acceptance of the claim and raised absenteeism and attendance issues concerning the worker. The employer submitted that the worker's medical problems were not shown to be attributable to the workplace.

On April 30, 2013, the worker provided the following information to her WCB adjudicator:

• on February 7, 2010, she was the primary dispatcher on a call. The call was about her son's close friend who hanged himself and passed away as a result. The worker could not recall whether she missed time from work right after this occurred but she was crying at work the following weeks.

• a few months later, she received a call of a similar nature as the one on February 7. She was the operator on that call and it was very traumatic for her.

• due to chest pains following these events, the worker attended the ER on May 17, 2011. She began to have trouble dealing with the trauma and began having suicidal thoughts.

• the worker felt it was a weakness and was embarrassed to say anything. She kept these things to herself. It was a pride thing.

• after the two incidents, other calls which would not have affected her before were now affecting her. After the first call she had a hard time keeping her composure.

• regarding the attendance meeting, the worker said she was involved in a motor vehicle accident and had a herniated disc. She was not concerned as she did not anticipate missing any more time. The meeting was not disciplinary, it was just information sharing.

On May 6, 2013, the worker told her WCB adjudicator that she was fully cooperative during the October 2012 meeting.

In a decision dated May 7, 2013, Rehabilitation and Compensation Services determined that the worker's claim for a psychological injury was not compensable. The decision stated:

Based on the information received, we have not been able to establish an accident as defined by Section 1(1) of the Workers Compensation Act. When your difficulties were reported to your employer, there was no mention of any specific traumatic events which caused you to go off work. The information from your treating psychologist outlines a stress as a result of your job duties in general. Although your job may be demanding and you may encounter unpleasant clients and situations, as described in WCB Policy 44.05.30, this does not give rise to a compensable accident as outlined in Section 1(1) of the Workers Compensation Act. Based on the results of our investigation, your claim for compensation has been denied.

On May 29, 2013, the worker's union representative provided medical information to support that the worker had been seeking medical treatment from her treating physician and the Employee Assistance Program ("EAP") since March 9, 2010 shortly after the first event on February 7, 2010. He contended that "the culmination of subsequent traumatic emergency calls has caused [the worker] a physiological injury to the extent that she is unable to perform the duties…based on the balance of probabilities, the experiences of many traumatic events in the workplace which occurred over a long period of time have caused a psychological injury to [the worker]. As such in our opinion the WCB Act and WCB Policy No. 44.05.30, Adjudication of Psychological injuries has been satisfied in this case."

In a decision dated August 15, 2013, Rehabilitation and Compensation Services advised that after reviewing the additional information, the WCB was unable to establish a recent traumatic event to account for the worker's departure from work. As such, there was no accepted claim.

On August 21, 2013, the union representative appealed the WCB's decision to deny the worker's claim to Review Office. On October 23, 2013, the employer's representative outlined their position to Review Office with respect to the worker's appeal. The union's final submission to Review Office is dated November 14, 2013.

On November 21, 2013, Review Office determined that the worker's claim for compensation was not acceptable. Review Office noted that although the treating psychiatrist was of the opinion that the worker's diagnosis was most in keeping with PTSD, this alone did not establish a causal connection to her work. Review Office stated that the worker struggled with panic attacks and symptoms of depression immediately following incidents at work, attributable to "burn-out stress" and her psychological reaction was not considered compensable. On December 5, 2013, the union appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional information which was forwarded to the interested parties for comment. On May 23, 2014, the panel met again to discuss the case and render its decision.

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 assisted by a union representative in the appeal. It was submitted that the experiences of many traumatic events in the workplace, which occurred over a long period of time, caused a psychological injury to the worker for which she ought to be entitled to compensation benefits. The worker had been seeking medical treatment from her treating physician, as well as through counseling, since March 9, 2010, shortly after the first event on February 7, 2010. The culmination of subsequent traumatic events caused the worker to sustain a psychological injury to the extent that she was unable to continue to work. Due to the constant and cumulative exposure to traumatic and violent calls, the worker finally sought medical attention on November 6, 2012 and remained out of that workplace.

It was submitted that there was medical evidence to support the worker's claim. A report dated May 16, 2013 from the family physician confirmed that the worker had discussed the February 7, 2010 incident with him on a visit on March 9, 2010 and he opined that: "[The worker] has panic attacks in my opinion associated with post-traumatic stress disorder related to her job...." On March 11, 2013, the worker attended a psychiatrist who stated: "It appears that this patient has been experiencing panic attacks and sinking into depression. It appears that the primary stressors relate to exposure to repeated traumatic events." He opined that traumatic experiences appeared to be the major etiological factor of the worker's psychiatric symptoms. In a subsequent report dated July 25, 2013, the psychiatrist indicated that the initial diagnosis was panic disorder, however her symptomatology was better characterized as Post-Traumatic Stress Disorder ("PTSD"). The psychiatrist continued to attribute this diagnosis to several traumatic experiences throughout the worker's employment.

The question of the worker's attendance record, performance review and other work issues was addressed and it was submitted that these were not of a serious nature such as to cause the worker to be off work and under the care of a psychiatrist. Any workplace issues were only secondary to the primary issue of the repeated traumatic calls as being the cause of the worker's PTSD. The medical reports on file did not support the position that the worker discontinued work because of burn out and/or job dissatisfaction.

Overall, it was submitted that the February 7, 2010 incident was the beginning of many traumatic calls handled by the worker. WCB policy supported that trauma could occur as a result of many events over a long period of time and that an acute reaction to the traumatic event is an occupational disease. The series of traumatic calls constituted the "chance event occasioned by a physical or natural cause" and the worker suffered the psychological condition as a result of those calls. It was therefore submitted that the worker had an acceptable claim.

The Employer’s Position

The employer was represented by its compensation coordinator. The employer's position was that the evidence did not establish a relationship between the psychological treatment the worker received commencing in November 6, 2012 and any workplace events. While the worker attributed her discontinuance of work to the event of February 7, 2010, her actual discontinuance of work coincided with her having received a letter from management indicating that she would be elevated to the next level of the employer's attendance management program, which it was submitted involved a disciplinary component.

The employer submitted that the first time the worker referenced a specific event that occurred on February 7, 2010 was during an April 30, 2013 conversation with the WCB. She did not mention the event when establishing her claim on March 13, 2013, and made no mention of it to her employer, attending physician, or psychiatrist. When reporting her claim to the WCB, the worker provided an accident date of January 1, 2012.

The employer disputed the extent to which the job duties exposed the worker to violent events and submitted that it was not constant. The employer also disputed the worker's assertion that she was crying at work, as she worked with several other people and this would not have gone unnoticed.

The employer noted a number of potential stressors affecting the worker, including a number of attendance management meetings, disputes with management, a long-standing dispute with a co-worker, a request for reimbursement for a $4,000 overpayment, and an incident that occurred in a parking lot at work. It was noted that the worker's attendance at a hospital for anxiety-related chest pains occurred one week following a performance related meeting that was held on May 9, 2011 to address errors that had been made by the worker in the handling of three separate incidents.

Overall, the employer's position was that the worker's discontinuance of work on November 6, 2012 related to burn-out or stress rather than as a consequence of specific work-related events. The panel was called upon to confirm the decision made by the WCB.

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 condition was caused by either a chance event, a willful and intentional act, or that it was an occupational disease (acute reaction to a traumatic event). On a balance of probabilities, we are not able to make that finding.

Claims for psychological injury are exceedingly difficult to decide. There are multiple background influences and events which make-up an individual's mental status and it is difficult to single out a specific causal factor. In this case, the panel finds that the evidence is not sufficient to satisfy us on a balance of probabilities that the worker's job duties, and specifically, the handling of traumatic calls, were the cause of her psychological condition. In coming to this decision, the panel placed weight on the following:


• At the hearing, the worker referred to the traumatic calls/events at work as having a slow cumulative effect on her which she did not recognize at the time. She characterized it as being a "frog in a pot." At the same time, the worker referred to the February 7, 2010 incident as being the sentinel event which was pivotal for her. While the panel acknowledges that the February 2010 event was distressing and had a significant impact on the worker (as any such sad and tragic event would have), we do not find that the record shows a proximate onset of PTSD type symptoms following that exposure. At an appointment with her family physician on March 9, 2010, while the physician recalled discussing the incident with the worker, the chart notes make no mention of any psychological symptoms at that time.
• The May 17, 2011 attendance at a hospital for anxiety-related chest pains was over fifteen months later and occurred in the same time frame as when the worker was being reviewed for performance issues at work, as indicated by letters dated May 31, 2011 and July 7, 2011.
• The EAP counseling notes from appointments on July 18, 2011, July 25, 2011 and September 20, 2011 do confirm that the worker contacted EAP because of intrusive thoughts and her inability to maintain boundaries with her work. The notes also, however, reference accumulation of life events, including end of life caregiving for a family member, children leaving home, a challenging relationship with her boss and ongoing problems with sleep and anxiety.
• The panel placed significant weight on the family physician's chart notes from November 6, 2012 (the worker's last day of work) wherein he notes: "Totally stressed with work, chest pain/headaches ... constant fight with manager, been to EAP ... enjoys work and can deal with issues of job" (emphasis added). In the panel's opinion, the chart notes are more indicative of workplace strife and employment related matters rather than reaction to specific traumatic events.
• At the hearing, other significant stressors affecting the worker's work life were identified. In addition to the performance issues being addressed in May 2011, there was a record of absenteeism dating back to 2008, a denied grievance on June 5, 2012 related to an erroneously paid salary increment which created an overpayment and a parking lot incident in June 2012.
• The June 2012 parking lot incident led to the worker filing a complaint alleging that a co-worker had intentionally tried to hit her with a car. This resulted in an investigation and a complaint being laid with law enforcement authorities. While at the hearing, the worker dismissed this incident as a "non-happening" and a "done deal," the panel would consider a situation of this magnitude to be a very significant stressor in a person's life.
• On October 26, 2012 the worker was involved in a meeting at which her attendance issues were discussed. The meeting ended prematurely as the conversation allegedly became argumentative. A letter from the employer to the worker dated November 5, 2012 summarized what occurred at the meeting and scheduled a new meeting date for November 19, 2012. At the hearing, the worker could not recall when she received the letter but the panel notes that the date of the letter coincides with the worker going off work as of the end of her last shift at 7:00 am on November 6, 2012. This would tend to support the finding that employment related matters were the primary cause for the worker's absence from work commencing as of that date.
• The psychiatrist's report of March 11, 2013 indicated that: "In any case, traumatic experiences appear to be the major etiological factor of her psychiatric symptoms." The panel notes, however, that in the report, the psychiatrist relied on information from the worker that her social history was unremarkable and that she did not have any other significant social stresses. After the hearing, the panel wrote to the psychiatrist and asked whether he was aware of the other interpersonal and workplace stressors/incidents. In a response dated March 20, 2014, the psychiatrist indicated he could not recall whether the incidents were specifically discussed during assessment and therapy sessions. He felt that the absenteeism was likely discussed but he could not recall the other events. The psychiatrist indicated that he had now discussed these issues with the worker and in his view, they were very secondary issues which did not affect the primary diagnosis of PTSD. He opined that the worker's symptoms of PTSD were primarily related to a limited number (5 to 10) of tragic calls. Although the psychiatrist reaffirms his opinion, given the fact that the worker's social history was significantly different than what was reported, the panel has concerns with the accuracy of the assumptions used by the psychiatrist to reach his opinion. It is notable that his initial diagnosis was that of a Panic Disorder. The panel also notes that the treatment with the psychiatrist only commenced five months after the worker had left the workplace and three years after what the worker describes as the sentinel event. A significant amount of time has passed and memories and perceptions often change over time and in hindsight. For these reasons, the panel places limited weight on the psychiatrist's opinion regarding etiology.



Overall, the panel is not satisfied on a balance of probabilities that traumatic events at work caused the worker to suffer a psychological injury. The Administrative Guidelines to the Policy outline situations which would be considered "burn out" or "stress" and therefore would not constitute an accident. The Guidelines state:

Burn-out/Stress (no accident)

Burn-out or stress can occur in a number of situations, such as when the worker has:

• performed a difficult or demanding job for a lengthy period of time;
• performed a boring or repetitive job for a lengthy period of time;
• a difficult, demanding or unpleasant supervisor;
• difficult or unpleasant co-workers and/or clients;
• been passed over for a promotion to which he or she believed he or she was entitled.

Claims based on these criteria are not compensable, as these circumstances do not give rise to an accident.

On the other hand, the panel acknowledges that under the heading "Acute reaction to a traumatic event," the Guidelines also state:

However, a claim may be considered as an occupational disease when a worker experiences a psychological injury after the last of many traumatic events which occurred over a long period of time. In that type of claim, the WCB may be satisfied that one or more of the events caused the psychological injury, but may not be able to determine the specific event or events that caused the injury.

Workers who may experience an acute reaction to a traumatic event include, for example, correctional officers, emergency services personnel, hospital workers or homecare workers. This list of workers is not intended to be comprehensive; these are examples of the kind of claims that may be considered as an occupational disease.

Considering the evidence as a whole, the panel is of the view that the worker's situation is more akin to burn-out and stress from a demanding job and workplace strife, rather than an occupational disease. The immediate evidence surrounding the worker's exit from the workplace all suggests that employment related matters were the cause of her psychological condition and loss of earning capacity. We therefore find that the claim 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 30th day of June, 2014