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 for a psychological injury was not acceptable. A hearing was held on February 27, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for Post Traumatic Stress Disorder ("PTSD") which she attributed to her involvement in a quasi-judicial Proceeding (the "Proceeding") and events which occurred shortly after. The worker had been employed as a case worker at the time.

Information obtained from the employer suggested that as a result of her involvement in the Proceeding the worker was experiencing psychological and emotional distress and a lack of confidence in her ability to perform her roles and responsibilities. The employer indicated that it had contracted a therapist to provide counselling to staff members who were experiencing anxiety and distress as a result of their involvement in the Proceeding. The employer noted that the worker started a graduated return to work after about one month off but remained unable to return to her regular case management role. The employer acknowledged it erred in not submitting the employer claim, although it was well aware of the incident and was actively working on supporting the worker's return to work. The employer stated it did not readily identify this matter as a workplace incident.

Subsequently, the worker spoke with the WCB and provided details regarding the events that occurred when she was a witness at the Proceeding and what occurred in the aftermath. The worker indicated that she was stressed because of the outcome of the case in which she had been involved. She had been questioned repeatedly by lawyers who were looking for someone to blame. She had also been chased by media. The whole experience was very upsetting.

The worker indicated that she attempted to perform her regular job duties shortly after being a witness in the Proceeding but this was unsuccessful. She had a client tell her she was terrible, that they knew who she was and did not want to work with her. This was devastating to the worker. She felt she could not handle her job emotionally and went off work on sick leave. The worker later returned to work about one month later but did not return to her regular position. The worker attributed her present difficulties and inability to work solely to the Proceeding and what she had to go through for her job.

The WCB accepted the worker's claim for compensation and benefits were paid to the worker.

Medical information was obtained from the worker's treating physician, the counselor and a psychologist. The information confirmed that the worker was suffering from a psychological condition.

Following receipt and review of transcripts related to the Proceeding, the WCB reversed its decision to accept the worker's claim. In a letter dated June 7, 2013, the worker was advised that based on review of the facts, the WCB was unable to establish that her claim for a psychological condition was acceptable. The WCB's position was that the worker's involvement in the Proceeding was to provide information to investigators. The adjudicator wrote: "While we recognize this was stressful for you, it is our position you were there to provide information regarding employment related matters. Employment related matters are specifically excluded from the definition of an accident. Therefore your claim has been denied."

On July 4, 2013, the worker's union representative appealed the decision to Review Office.

On September 16, 2013, Review Office confirmed that the worker's claim was not acceptable. Review Office acknowledged that the evidence strongly supported that the worker suffered emotional difficulties in relation to the Proceeding. It did not dispute that the worker's involvement resulted in a psychological injury. It was noted, however, that according to The Workers Compensation Act (the "Act") and WCB policy 44.05.30, Adjudication of Psychological Injuries (the "Policy") to find that the worker suffered personal injury by accident, it must be determined that there was a chance event, a wilful and intentional act or an occupational disease. Review Office was not able to make this finding.

Review Office did not accept that the Proceeding was a "chance event." The circumstances surrounding the Proceeding were both planned and tightly controlled and would not constitute an accident in the conventional sense.

Similarly, Review Office rejected that the Proceeding was a wilful and intentional act. While the worker may have found the events to be "offensive or objectionable", there was no evidence to conclude that the Proceeding was called out of malice or bad faith. Vigorous questioning was neither malice nor bad faith.

Review Office was also unable to conclude that the worker's illness qualified as an occupational disease as it was unable to conclude that the Proceeding was a "traumatic event." In making this finding, Review Office relied on a portion of the Policy which states:

Any event that qualifies as an occupational disease will also qualify as a chance event or will be a wilful and intentional act. As such, it will not usually be necessary to use this part of the definition.

Review Office reasoned that while an event might be traumatic for a particular individual, it would not be a traumatic event within the meaning of the Act unless it was either a chance event caused by a physical or natural cause or a wilful and intentional act. It felt that the Proceeding would be neither of these things. As such Review Office found that the Proceeding was not a "traumatic event" within the meaning of the Act.

On September 25, 2013, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on February 27, 2014. At the hearing, the worker's union representative challenged the validity of the Policy. This was the first time this argument had been raised.

Following the hearing, the appeal panel asked the interested parties to provide written submissions regarding the validity of the Policy. The WCB was also invited to provide a position statement. On September 29, 2014, the panel met further to discuss the case and render its decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by 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 wilful 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.

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 validity of the Policy is challenged by the worker in this case. Specifically, the worker takes issue with the portion of the Policy which provides as follows:

Claims for psychological injuries cannot arise under the part of the definition of accident that refers to any (i) event arising out of and in the course of employment or (ii) thing that is done and the doing of which arises out of and in the course of employment. That part of the definition applies to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries and so on.

The Worker’s Position

The worker was assisted at the hearing by a union representative. It was submitted that the worker's diagnosis of PTSD was directly related to her employment, specifically, her involvement in the Proceeding and a disturbing telephone call from a client that occurred subsequent to the Proceeding.

At the hearing, the worker's position was that her involvement in the Proceeding and the subsequent phone call constituted an accident in accordance with subsection 1(1) of the Act on the basis that:

• there were two wilful and intentional acts that were not the act of the worker. Both of these events arose out of and in the course of the worker's employment and resulted in the worker sustaining personal injury;
• further, that the worker sustained an occupational disease in that she had an acute reaction to traumatic events. The Proceeding and the telephone call both represented traumatic events for the worker and while she previously had been able to attend work on a regular and recurring basis, after these events she became unable to report for work and sought appropriate medical care.

In subsequent written material, the worker's position was expanded to contend that the facts in this appeal also constituted an accident under subclause (b)(i), that is, an event arising out of and in the course of employment. It was submitted that both the outcome of the worker's case file giving rise to the Proceeding and the Proceeding itself were "events arising out of, and in the course of the employment" for the worker. Additionally, the case file involved criminal acts which constituted a wilful and intentional act under clause (a).

The Policy was referenced and it was submitted that the Policy was in conflict with the Act and was therefore in part invalid. The basis for the challenge to the validity or "vires" of the Policy was set out in greater detail in subsequent written submissions. The worker's position was outlined as follows:

• The Appeal Commission has the jurisdiction to consider the validity of WCB policies. While s.60.8(6) of the Act does state that the Commission is "bound by the policies of the Board of Directors," it was submitted that the Appeal Commission must nonetheless fulfill its adjudicative role by determining whether an "accident" occurred and whether an injury has arisen out of or in the course of employment. Pursuant to s.60(4), the Appeal Commission must also consider a matter upon the real merits and justice of the case, and is not bound by strict legal precedent. If a WCB policy is inconsistent with the Act, following the policy would prevent correct adjudication under the Act. For that reason, the Appeal Commission must adjudicate a claim before it without reference to those portions of a policy that are inconsistent with the Act. Otherwise, the Appeal Commission will have failed to properly determine whether the particular injury or death in respect of which compensation is claimed was caused by an "accident" under the Act.
• The Policy was inconsistent with the Act and ought to be disregarded to the extent of the inconsistency. It was submitted that the Policy was inconsistent to the extent that it modified the definition of "accident" for psychological injuries. It foreclosed consideration of whether an "event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment" caused a psychological injury.
• The Policy on its face was discriminatory contrary to The Human Rights Code (the "Code"). It was submitted that the Policy required differential treatment of physical and psychological injuries because the definition of "accident" is limited when claims for psychological injuries are being considered. Such differential treatment was clearly inappropriate and amounted to altering the legislation in relation to a particular type of claim. It is discriminatory to provide differential treatment with respect to any service on the basis of mental disability unless, according to section 13(1) of the Code, bona fide and reasonable cause exists for the discrimination. As the WCB provided no bona fide or reasonable cause for the discrimination, the Policy amounted to a violation of the Code and should be disregarded in adjudicating the worker's claim.

The Employer’s Position

The employer was represented by its WCB coordinator, a human resource manager and an employer advocate. Reference was made to various provisions contained in the Policy and the employer's position was that the claim did not meet the criteria set out in the Policy. Specifically, there had not been an accident arising out of and in the course of employment and the worker had not suffered an injury arising out of a work-related accident. The Proceeding in which the worker was involved was not a chance event caused by a physical or natural cause. The circumstances surrounding its occurrence were both planned and tightly controlled, and would not constitute an accident in the conventional sense.

Similarly, the calling and conduct of the Proceeding was not wilful and intentional and there was no malice involved. While there was vigorous questioning of all of the witnesses, this would not constitute malice or bad faith. The intent of the Proceeding was not to find blame and there were no findings of misconduct. No one was disciplined or demoted as a result of the Proceeding.

Finally, it was submitted that the illness was not an occupational disease. It was acknowledged that while the Proceeding would cause some stress, it was submitted that the stress associated with participating in the Proceeding did not meet the test of a traumatic event within the meaning of the Act.

In its subsequent written submissions, the employer confirmed its position that the claim did not meet the definition of an accident as required by the Act. As such, the claim should not be accepted based on its merits, regardless of the panel's final decision relating to jurisdiction and whether the Policy was consistent with the Act. Furthermore, it was submitted that the Appeal Commission is bound by the policies of the Board of Directors and did not have in and of itself have the jurisdiction to consider whether the Policy is discriminatory under human rights legislation.

In response to the worker's written submission, the employer's position was that the Policy was consistent with the Act and that the panel was bound by its provisions. If the panel were to determine that a policy was inconsistent with the Act, it would be incumbent on the panel to refer the issue to the Board of Directors which has the mandate for initiating, reviewing and considering changes in policy.

With respect to the worker's challenge to the section of the Policy which indicated that a psychological claim could not arise under clause (b) of the definition of "accident," the employer's position was that this part of the definition applied to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries, etc. Although this section of the Policy may suggest a different way of adjudicating psychological claims, it was submitted that it was not discriminatory. Different types of claims are adjudicated in different ways. The Policy and administrative guidelines were meant to reflect the intent of the Act, and different adjudicative procedures reflected the differences in the nature of the conditions and circumstances which contributed to them.

Further, reference was made to WCB Policy 44.05 regarding interpretation of the phrase "arising out of and in the course of employment" and it was submitted that attending and giving testimony at the Proceeding, while required by the employment, did not involve a hazard causing injury.

Finally, regarding the worker's submission that the Policy was discriminatory under the Code, the employer's position was that this issue had not been previously addressed at the WCB administrative level and therefore could not be addressed by the appeal panel.

Overall, the employer's position was that the claim was not acceptable as there had not been an accident arising out of and in the course of employment and the worker had not suffered an injury arising out of a work-related accident as required by the Act. The Proceeding was not a chance event. It was pre-planned and the guidelines on the purpose were communicated well before the Proceeding started. The Proceeding was also not a wilful and intentional act involving malice or bad faith. Finally, the Proceeding was not a traumatic event by definition, although it may be have been stressful for the worker and many other participants who were involved.

The WCB's Position

After the hearing, the panel invited the WCB to provide a position statement regarding the challenge to the validity of the Policy. The WCB provided the following positions:

• Regarding the preliminary issue of whether the vires of the Policy was properly before the Appeal Commission, the WCB's position was that the vires was not properly before the panel because the issue was an abstract question of law which the Appeal Commission should not entertain. It was submitted that the challenged portion of the Policy (clause (b)) articulated the long-standing interpretation of the Act that the compensation system does not cover psychological illness that occurs as a result of the day to day stress of doing one's job (referred to in the submission as "burn-out"). As the worker did not allege that her psychological injury was the result of burn-out, the issue of whether or not clause (b) was ultra vires lacked the factual underpinning, and was therefore moot and/or hypothetical.
• A second preliminary issue was whether the Appeal Commission had the jurisdiction to consider the vires of a policy of the WCB in light of subsection 60.8(6) of the Act which stated that: "The appeal commission is bound by the policies of the Board of Directors." The WCB's position was that the Appeal Commission did have the jurisdiction for two reasons. First, the Appeal Commission was required to properly apply the Act, regulations and policies of the Board. If a policy was inconsistent with the Act, the Appeal Commission must comply with the Act, and any policy was subordinate to it. Secondly, the Act provided that the WCB - and by corollary, the Appeal Commission - had the exclusive jurisdiction to determine all matters arising under the Act. This was coupled by a strong privative clause. When the essential character of a dispute was entitlement to compensation, the Appeal Commission had the exclusive jurisdiction to hear the matter, even when human rights issues are raised. Finally, it was submitted that the standard of review to be applied by the Appeal Commission to the WCB's policy should be a deferential approach and a policy should only be found to be ultra vires and/or contrary to the Code in circumstances where no reasonable interpretation of the Policy would make it intra vires and/or compliant with the Code.
• On the substantive issue, the WCB acknowledged that the WCB, by policy, could neither expand nor contract that which was provided by the Act. The WCB could, however, articulate its preferred interpretation of the Act. This was what the WCB had done with respect to burn out in the Policy. It was noted that subsection (b) portion of the definition of accident was added in 1959. Prior to that, the Act read as follows: ""accident" means a fortuitous event occasioned by a physical or natural cause and includes a wilful and intentional act not being the act of the injured workman." It was submitted that clause (b) was added in recognition of the fact that workers suffered injuries directly as a result of work processes that could not be described as fortuitous (or chance) events or wilful and intentional acts. Hernias were an example of such injuries. The lifting of a heavy item was not itself either a chance event or wilful and intentional act but that injury could be linked to the work process. It was these types of injuries that clause (b) was intended to capture. It was submitted that articulating that meaning in a policy was not changing the definition. It was explaining the meaning of a relatively convoluted definition.
• On the issue of discrimination, the WCB's position was that there was no differential treatment, much less discrimination, between workers with physical injuries and workers with psychological injuries in the Act or Policy. It was submitted that the physical injuries that were captured by clause (b) were caused by the actual work process - such as lifting heavy items, hunching over machines etc. Burn-out would not be caused by the work process itself. The work process, co-workers and/or supervisors could all be entirely benign. Nevertheless, over time, workers could become unable to cope with the work environment. It was not the work process that caused this condition but rather the manner in which the worker reacts to stress. The difference was that with stress, the work process did not cause the injury. It was the work itself (and not the work process) which caused stress, both positive and negative, which may overwhelm the worker such that the worker could no longer do the job. It was submitted that this was not the same thing as a work process that caused an injury.

Overall, the WCB submitted that the challenge to the Policy should be dismissed on the basis that it was not properly before the Appeal Commission. Alternatively, the challenge to the Policy should be dismissed because the Policy did not discriminate against workers with stand alone psychological injuries.

Analysis

Jurisdiction

As a preliminary matter, the panel must consider the scope of its jurisdiction and whether our jurisdiction includes the capacity to determine the validity of a policy passed by the WCB Board of Directors. While it is well established law that an administrative tribunal such as the Appeal Commission has the authority to interpret its enabling legislation, some question arises regarding our ability to consider the validity of WCB Policy given that subsection 60.8(6) of the Act provides: "The appeal commission is bound by the policies of the Board of Directors."

Does this mean that the panel is bound to apply the Policy, regardless of any concerns we may have as to whether or not it complies with the provisions of the Act?

In the panel's view, this cannot be the case. The Act is our governing statute and any policy passed by the WCB Board of Directors is subordinate to the Act. If we determine that a WCB

policy is inconsistent with the provisions of the Act, the Act must prevail and the panel must comply with that which is set out in the Act. We accept the worker's submission that the Appeal Commission's adjudicative function includes the obligation to consider whether a WCB policy is contrary to the Act, as our role is to ensure that claims adjudication is consistent with the Act, regulations and policies. If the panel was to refuse to undertake that consideration, we would improperly be declining our jurisdiction.

We also accept the worker's submission that in the event that we determine that applying WCB policy would prevent correct adjudication under the Act, the panel must adjudicate the claim before it without reference to those portions of a policy that are inconsistent with the Act.

Finally, we acknowledge the WCB's position regarding standard of review and we agree that a WCB policy should only be found to be ultra vires and/or contrary to the Act in circumstances where no reasonable interpretation of the policy would make it intra vires and/or compliant with the Act or other statutory legislation.

Claim acceptability

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 able to make that finding.

The panel recognizes that the issue of entitlement to workers compensation benefits for psychological stress claims is a complex and developing area in many Canadian jurisdictions. In the course of the submissions, the panel was referred to a number of cases from other provinces where claims for psychological injury were considered. We note that some of these cases deal with chronic onset stress. This is different from the worker in this appeal who has a psychological diagnosis which is attributable to a fairly discrete and identifiable event.

The worker's diagnosis is PTSD and Major Depressive Disorder. The report of the family physician dated February 9, 2013 indicated that the worker had symptoms of PTSD and that the worker developed these symptoms as a result of the trauma of testifying at the Proceeding. A psychiatrist's report dated March 13, 2013 confirmed that the worker's diagnosis was PTSD and Major Depressive Disorder and that when the worker was seen on that date, her Major Depressive Disorder had improved significantly.

The treating counselor's report of February 22, 2013 indicated that the worker began attending therapy shortly after appearing as a witness and that she attended as a result of emotional difficulties she was experiencing in regard to her work on a particular case, and later attendance and testimony at the Proceeding. The worker reported no history of mental illness.

At the hearing, the worker described the onset of her condition as being related to the Proceeding. When asked what she considered the sentinel event to be, she responded it was the Proceeding. She stated that while the outcome of her case file certainly played a role, she was able to continue to cope. Once the Proceeding actually took place, she was no longer able to cope. When experiencing flashbacks, she indicated that her flashbacks were of the Proceeding and the experience of testifying.

On a balance of probabilities, the panel finds that the onset of the worker's disabling psychological condition was in the period immediately following the Proceeding and that it was a direct result of her involvement in the Proceeding. We view the worker's diagnosis as an acute condition of sudden onset, which we distinguish from a condition of chronic stress or "burn-out."

Having established that the worker has suffered a personal (psychological) injury, the question then becomes whether or not the injury was caused by an "accident" within the meaning of the Act. As outlined earlier, the definition of "accident" set out in the Act is as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful 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 Policy states that the definition of "accident" has various components and that a psychological injury can be caused by:

• a chance event;
• a wilful and intentional act; or
• the injury can be an occupational disease (acute reaction to a traumatic event).
  

The Policy specifically excludes consideration of a psychological injury under clause (b)(i) and (b)(ii) of the definition on the basis that clause (b) of the definition applies to repetitive strain injuries such as carpal tunnel syndrome and musculoskeletal injuries.

The position statement submitted by the WCB provided the following legislative history regarding the definition of "accident":

The clause (b) portion of the definition of accident was added in 1959. Prior to that, the Act read as follows:

"accident" means a fortuitous event occasioned by a physical or natural cause and includes a wilful and intention (sic) act not being the act of the injured workman.

"Industrial disease" was separately defined by reference to a schedule listing specific diseases.

Clause (b) was added in recognition of the fact that workers suffered injuries directly as a result of work processes that could not be described as fortuitous (or chance) events or wilful and intentional acts. Hernias are an example of such an injury. The lifting of a heavy item is not itself either a chance event or a wilful and intentional act but that injury can be linked to the work process.

It is these types of injuries that the clause (b) definition was intended to capture. Articulating that meaning in a policy is not changing the definition. It is explaining the meaning of a relatively convoluted definition.

The position submitted on behalf of the worker was that she was entitled to have her claim considered under not only clause (a) wilful and intentional act and clause (c) occupational disease, but also under clause (b). It was acknowledged that (b)(ii) was used to deal with claims such a repetitive strain injuries but it was disputed that (b)(i) was used to adjudicate non-specific claims of that nature. It was submitted that if the Policy did not modify the definition of "accident" for psychological claims, the facts of the worker's case would constitute an accident under (b)(i), that is, an event arising out of and in the course of employment.

The panel agrees with the worker's position. In our view, a proper consideration of whether or not the definition of "accident" has been met requires the panel to consider all of the clauses (a), (b) and (c).

With respect to clause (a), the panel finds that this clause is not applicable. Clause (a) provides that an accident may be "a wilful and intentional act that is not the act of the worker." The Administrative Guidelines attached to the Policy provide that: "Acts such as assault, robbery, hostage-taking, riots, threats and harassment will be considered under the wilful and intentional act part of the definition." While the case file giving rise to the Proceeding involved criminal acts committed by others, this was not what caused the worker's psychological injury. Similarly, we do not accept the worker's position that the disturbing telephone call and/or the Proceeding in and of itself constituted a wilful and intentional act. We therefore find that clause (a) is not applicable.

With respect to clause (c), occupational disease, the panel also finds that this clause is not applicable. The definition of "occupational disease" refers to disease resulting from causes and conditions peculiar to or characteristic of a particular trade or occupation or peculiar to a particular employment. In the panel's view, an occupational disease is meant to refer to a disorder which results from the nature of the work. Traditionally, this would refer to conditions like work induced cancers or silicosis. We do not view the acute psychological condition suffered by the worker after being involved in the Proceeding as being a disease of this nature.

The panel notes that the definition of "occupational disease" continues on to specifically exclude "stress." In the panel's view, this was meant to exclude the "burn-out" situations addressed in the WCB position statement.

The exclusion of "stress" then goes on to create an exception to the exclusion in situations where the stress is "an acute reaction to a traumatic event." This type of stress can form the basis of an accident. The Administrative Guidelines attached to the Policy provide that:

Any event that qualifies as an occupational disease will also qualify as a chance event or will be a wilful and intentional act. As such, it will not usually be necessary to use this part of the definition.

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 it may not be able to determine the specific event or events that caused the injury.

In the present case, the panel finds that there was no traumatic event. While the Proceeding was exceptional and extraordinary, the panel finds that it was not traumatic in the sense that it was not a shocking or violent event. It was a controlled, orderly and pre-planned procedure.

At this juncture, we note the comments in the WCB position statement regarding the definition of accident as being "a relatively convoluted definition." The panel is in complete agreement with this observation. The definition is complex and its intention is not easily discerned. In our view, it is difficult to understand why the exception to the stress exclusion falls under the occupational disease portion of the definition. We must, however, nevertheless apply the Act as written.

After eliminating clauses (a) and (c), the panel is then left with clause (b) of the definition. If the direction set out in the Policy were to be followed, the panel would not apply any part of clause (b) but rather would limit its consideration to whether or not there has been a chance event occasioned by a physical or natural cause. This wording is taken from the opening stem of the definition of "accident" which precedes the clauses where the more specific instances of the"accident" are enumerated. We do not agree with this method of interpretation and we find that it is contrary to and cannot be reconciled with the provisions of the Act.

It is not clear why the consideration must be limited to a "chance event" described in the opening stem of the definition as opposed to "an event arising out of, and in the course of, employment" as set out in clause (b)(i). It would seem that the requirement to find a "chance event" is a heavier onus as the adjective "chance" suggests an element of randomness or that the event was unplanned or unexpected. This is clearly not the situation in the present case where the Proceeding was a very tightly controlled and scheduled process. There was nothing "chance" or "fortuitous" about the event.

It is interesting to refer back to the history of the definition of "accident" as provided by the WCB in its submission. Clause (b) was added in recognition of the fact that workers may suffer injuries directly as a result of work processes. The example given was that of lifting a heavy item which causes a hernia.

In our opinion, the Policy errs in stating that a claim for psychological injury cannot arise under clause (b) as that part of the definition applies to repetitive strain injuries. While this may be possible with respect to subclause (b)(ii), we do not think it is applicable to subclause (b)(i). Referring back to the example of a hernia resulting from a single lift, this would not be an injury resulting from the cumulative effects of repetition, but would be an injury resulting from a single work-related event. We are of the view that entitlement for a psychological injury should also be considered using the same criteria. There should be coverage if the injury is found to have resulted from an event arising out of and in the course of employment. There should not be the heavier onus of finding that the event was "chance."

To the extent that the Policy prevents consideration of whether the worker's claim may be considered an accident under subclause (b)(i), we find that it is invalid and we must proceed with our consideration of the claim without regard to the direction set out in the Policy. Our analysis will be governed by the provisions of the Act, which are paramount over the Policy.

On a balance of probabilities, the panel finds that the worker's involvement in the Proceeding constitutes an accident as it was an event arising out of and in the course of employment within the meaning of subclause 1(1)(b)(i) of the Act. The worker's involvement in the Proceeding was a work obligation and was clearly a requirement of and solely related to her employment.

When considering the individual merits and justice of this case, the panel notes that these were extraordinary events and not a normal part of the worker's everyday duties. We are not in this case dealing with the daily pressures or stressors of work. While her regular duties may have required the worker to testify in court on occasion, this was completely different in nature.

The Proceeding was a very highly charged affair dealing with very serious matters of wide ranging impact and was subject to extreme scrutiny by the media. In recognition of the enormity of the events, special measures were put in place by the employer for its staff, including access to counseling and the provision of time off work. The preparation and build up to the Proceeding occurred over an extended period of time of more than a year. There was very public and personal exposure to the worker as a result of her work-related involvement in the case file. Prior to the Proceeding, the worker was able to cope and effectively function in the workplace. The panel accepts that her claim for benefits for loss of earning capacity and her need for medical aid subsequent to her testifying was predominantly attributable to her involvement in the Proceeding.

The panel has given consideration to subsection 1(1.1) of the Act which excludes from the definition of accident: "any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination." We find that subsection 1(1.1) has no application to the present situation as the Proceeding was not in any way a disciplinary review of the worker's job performance. There is no evidence that the worker was in any jeopardy of being transferred, demoted, laid-off or terminated as a result of her involvement in the Proceeding.

Overall, the panel finds on a balance of probabilities that that the worker's involvement in the Proceeding was an accident within the meaning of the Act, and that as a result of the accident the worker suffered a psychological injury. We therefore find that the worker has an acceptable claim.

Other issues

In the context of the worker's challenge to the validity of the Policy, a few other collateral issues were raised in the written submissions.

The first collateral issue was the question of mootness. It was submitted by the WCB that the challenge to the Policy was moot on the grounds that the worker's claim was not for "burn-out" and the challenged portions of the Policy articulated the long-standing interpretation of the Act that the compensation system does not cover psychological illness that occurs as a result of the day-to-day stress of doing one's job. While the panel agrees that the within decision does not in any way deal with a claim for "burn-out," for the reasons set out above, the panel finds that clause (b) is not limited to claims for "burn-out." The issue is therefore not moot.

The second collateral issue concerned whether or not the Policy was discriminatory contrary to the Code. Given the panel's decision that the challenged portions of the Policy are contrary to the Act and therefore invalid, it is not necessary for us to embark on a consideration of whether or not the Policy is discriminatory contrary to the Code. We also note that we do not have the proper record upon which to make such a determination. We therefore decline to address this particular issue.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of November, 2014