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 post traumatic stress disorder ("PTSD") was not acceptable. A hearing was held on October 27, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim in relation to events which occurred on February 14 and 17, 2012 is acceptable. The worker's claim for her psychological condition is not acceptable.

Decision: Unanimous

Background

In late January 2014, the worker filed a claim for PTSD which she related to incidents occurring in the workplace. The date of accident was recorded as February 14, 2012. The Employer's Accident Report dated February 5, 2014 indicated that they were protesting the claim.

In a letter dated January 28, 2014, the worker indicated that she had been assaulted on February 14 and 17, 2012 by a co-worker. She reported it to management and tried to work through the experience. The worker indicated that she was not able to get out of the department where the assaults occurred until she was awarded another position in a different department in the summer of 2012. Between November 2012 and January 2013 she was away from the office for knee surgery. While working in the new department she was harassed/assaulted by a different co-worker. In July 2013, she formally reported this to management and a union representative. An internal investigation took place and she was questioned for 9 hours over a two day period. The outcome was that no action was taken against the perpetrator. The worker indicated that she saw a physician that day and had been off work since due to emotional/mental stress. The worker indicated she applied for short term disability but her claim had been denied.

On February 3, 2014, the worker spoke with a WCB adjudicator and provided further details regarding the two events that occurred at the workplace which she felt caused her to go off work. The worker advised that she was the survivor of childhood abuse for which she had PTSD. Because of these instances at work, she was experiencing recurrent feelings of intense anxiety, nightmares and insomnia.

On February 5, 2014, the employer provided the WCB with a submission outlining the work incidents described by the worker. The employer's position was that the worker's symptoms did not arise in and out of her employment and that the available evidence appeared to conclude that her current symptoms were more likely related to her pre-existing non-occupational psychological condition.

In a decision dated February 28, 2014, the worker was advised that the WCB was unable to establish an accident arising out of and in the course of her employment as defined in The Workers Compensation Act (the "Act"). The decision noted that the WCB did not deny that the interactions may have occurred but it could not determine, on a balance of probabilities, that her difficulties were related to these interactions. The interactions were not witnessed, the worker was not threatened nor was it intended to cause her harm. The WCB noted that the worker had a significant pre-existing PTSD and that she went off work when there was a further investigation to be done regarding her statements. The WCB was therefore unable to establish a workplace injury and the conditions for an accident under section 1(1) of the Act had not been established.

On February 28, 2014, the worker's counselling therapist provided the WCB with a narrative report regarding her discussion with the worker regarding the incidents occurring at work in 2012 and 2013. On March 26, 2014, the WCB advised the worker that the therapist's report had been reviewed, however, no change would be made to the WCB decision of February 28, 2014.

The Worker Advisor appealed the WCB's decision to deny the worker's claim to Review Office on May 13, 2014. The worker advisor noted that the events described by the worker took place at her workstation during work hours. The file information supported that the worker had a longstanding pre-existing PTSD and the medical information supported that the events described by the worker triggered her pre-existing condition and she became very fearful and could not function in her work environment. It was the worker advisor's opinion that the evidence supported an injury occurred during the course of employment and that the claim should be accepted.

The worker commented on the information outlined by the WCB adjudicator in a January 30, 2014 memorandum. The worker noted that she had not been in counselling since she was 30 years of age when she sought counselling to deal with the childhood abuse. The worker said she was emotionally healthy until the workplace events occurred, triggering the PTSD symptoms.

In a submission to Review Office dated June 5, 2014, the employer requested that the case manager's decisions outlined on February 28 and March 26, 2014 be confirmed. The employer asked that the WCB give consideration to whether the worker's disability was caused by her work or by something else. Both the employer and the police department had investigated the worker's alleged complaints and both parties independent of each other were unable to substantiate the worker's complaints. It was submitted that on balance of probabilities, the evidence did not support that an accident occurred and the statutory requirements to allow the claim had not been satisfied.

On August 5, 2014, Review Office determined that the file evidence fell short of substantiating a willful and intentional act and therefore it could not establish an accident as defined in the Act. Review Office acknowledged that while the coworker's behaviors may have been perceived by the worker in a certain fashion, the investigations by the employer and the police did not substantiate the worker's allegations. Review Office placed weight on the fact that medical care was not sought until months after the described events and this made it difficult to correlate an injury with the described events. On September 3, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the 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.

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 Worker’s Position

The worker was self represented in the appeal and was accompanied by her counseling therapist and a co-worker/friend. The worker provided a detailed written submission which was read out at the hearing. The worker's overall position was that she sustained a psychological injury during the course of her employment. The worker had a long standing pre-existing PTSD condition which was re-triggered by events at work. She submitted that had her employer ensured her safety and not torn her character apart, she would still be working for the employer as an exemplary employee.

The Employer’s Position

The employer representative participated via teleconference. The employer's position was that pre-existing PTSD/anxiety were the most likely cause of the worker's psychological condition. It was submitted that there was insufficient evidence to establish that the worker was harassed or assaulted at work. The employer took the allegations seriously and investigated the worker's complaints. With respect to the February 2012 events, the matter was addressed and dealt with on an informal basis. The worker agreed that the resolution was satisfactory and there were no further issues with that co-worker. With respect to the 2013 events, while the second co-worker may have "creeped out" the worker, there was no threat or inappropriate touching. The worker never directly spoke to the co-worker to advise him that his behaviours were offensive. An investigation was conducted which did not confirm the allegations. It was submitted that while the behaviour may have been perceived by the worker to be harassment, a reasonable person would not know that the actions were offensive. The evidence did not establish an "accident" occurred. Not every act is wilful and intentional. There must also be malice or bad faith. This had not been established in this case.

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.

At the outset, the panel wishes to acknowledge the victimization the worker faced as a child and to commend her for being a survivor. We have empathy for her situation and admiration for her strength.

The worker's loss of earning capacity for which she has filed this claim commenced on September 12, 2013. According to the treating physician's report of January 31, 2014, the worker was first seen on September 12, 2013. On that date, she had PTSD and anxiety from multiple events during her childhood. Due to recent events which occurred at work, her symptoms of severe anxiety, insomnia, reliving of previous childhood traumatic experiences, and difficulty concentrating had worsened such that she was no longer able to work at her employment. As at the date of the report, the worker was still not fit for any type of work due to her severe symptoms of PTSD.

The counseling therapist provided a narrative report which was dated on March 7, 2014. The therapist indicated that she first met with the worker on September 18, 2013 at which time the worker presented with intense anxiety affecting all areas of functioning. The therapist's assessment identified that the two workplace events triggered a trauma response of shock, helplessness and intense fear with the threat of harm. In her opinion, while past abuse heightened the intensity of anxiety and signs of posttraumatic stress, the worker's prior relaxed state and optimal level of functioning prior to these events indicated that the work events were significant enough to trigger signs of posttraumatic stress.

Based on the medical reports, the panel finds that as of September 12, 2013, the worker was suffering from a psychological condition consisting of PTSD and anxiety symptoms which caused her to suffer a loss of earning capacity.

The question then becomes whether this psychological condition was causally related to an accident within the meaning of the Act.

The worker has identified two series of events which she feels constitutes sexual harassment. The first series of events occurred on February 14 and 17, 2012. The worker's evidence was that on February 14, 2012, she was working an overtime night shift with a male co-worker. During the night, the male co-worker came to her desk and touched her hand. The worker was startled and jerked her hand away. The male co-worker then stated: "I have no one at home, you're married. I just wanted to touch you." The worker felt embarrassed and avoided the co-worker for the rest of the shift.

On February 17, 2012, the worker was working another late shift. Near the end of her shift, the male co-worker approached the worker from behind and placed his hands on her neck and into the back of her shirt. The worker was horrified and spun around. The co-worker saw the expression on the worker's face and said: "My hands aren't that cold!" The worker finished what she was doing, then packed her things and headed for her car. She cried for one hour during her drive home. When she arrived home, her husband calmed her down and insisted that she report what happened. On her next shift, the worker reported the incident to her floor manager who spoke to the male co-worker. The manager asked whether the worker wanted an apology. Her response was: "NO, I want him to stay away from me."

The panel accepts that the combined events occurring on February 14, and 17, 2012 were willful and intentional acts on the part of the male co-worker and constituted an accident under subparagraph 1(1)(a) of the Act. The panel finds that there was bad faith on the part of the co-worker as he knew, or reasonably ought to have known, that physically touching the worker in the manner and verbal context that he did would be offensive or objectionable to her.

As the panel has found that an accident occurred, the worker has an acceptable claim in relation to the events of February 14 and 17, 2012. We do not find, however, that the psychological condition which caused the worker to leave work on September 12, 2013 was caused or contributed to by the February 2012 accident. Soon after the events in question, the worker applied for a new position with the employer. In March 2012, the worker started training for the new department. The panel finds that the events of February 2012 did not cause her to suffer any loss of earning capacity and she was able to successfully learn and carry out duties in the new department. The worker's success at her job continued and at the end of January 2013, she applied for another position in the same department and was awarded a permanent position, over other applicants with more service and seniority. The panel finds that while the February 2012 events were very upsetting to the worker at the time, she did not suffer any loss of earning capacity or long term psychological effects from the incident. The worker indicated that the matter was dealt with satisfactorily by the employer and she was able to continue in the workplace. She had no further interactions with the male co-worker.

The second series of events identified by the worker occurred primarily in 2013 when she moved to a new office in March 2013. The worker had become acquainted with another male co-worker when he trained her in March 2012 when she moved to the new department. The co-worker made comments which made the worker uncomfortable, but the worker did not say anything as she was new to the department. After the training was completed, the worker had little contact with the male co-worker and there were no issues.

In March 2013 the worker moved to a new office and was seated at a desk next to the second male co-worker. The worker felt that she was being harassed by the co-worker and identified the following incidents:

• The co-worker would constantly tell the worker stories about various topics including his childhood, his family relations, and birds having sex outside his kitchen window. The worker would act disinterested and try to ignore him but the co-worker was insistent on gaining her attention and would shake her chair from behind.
• The co-worker was often staring at her and would hold his open phone in her direction.
• The co-worker would tell the worker to tell other female co-workers to not talk at her desk for so long and accused the worker of wanting the other co-workers to be "her girlfriends."
• The co-worker commented on the fact that the worker wore a dress to work one day.
• The co-worker would comment on the worker's telephone conversations with her husband. Eventually, the worker would not answer her husband's calls to her while the co-worker was at his desk.
• As a means of avoiding interaction with the co-worker, the worker began using an MP3 player at work. The co-worker would shake the worker's chair and ask why she was not answering her husband's telephone calls.
• The co-worker noticed one day that the worker was driving a different vehicle and he asked her why this was the case.
• The worker was driving in to work one day when she saw the co-worker get off the bus and he started to run behind her car.

The worker's evidence was that another person in the office advised her that the co-worker had a history of stalking. The worker felt that management was aware of the co-worker's "dangerous behaviour" but continued to allow her to be victimized. She stated that progressively, from the time she was trained by the co-worker until the summer of 2013, the worker felt more uncomfortable, more vulnerable and it reached a point where she felt she was being stalked. The worker expressed her concerns to management and it was agreed that there would be a change in the seating plan. The worker was asked if she wanted to move to different desk but she did not want to as she had everything set up with her computer. The co-worker was then moved to another desk in the same general area.

Shortly thereafter, in mid-July 2013, the co-worker went on holidays. On August 6, 2013, the worker received an email from the worker which read as follows: "Hi [worker's name], could you please copy and paste or write down when my holidays go from since [wife] isn't believing me. Thanks, [co-worker's name]." The worker was very upset by this communication. On August 8, 2013, the worker drafted an email entitled "Workplace harassment" and sent it to seven recipients whom the worker felt would act on the alleged harassment. On August 9, 2013 the worker was advised by the director of the department that an investigation would proceed. On August 16, 2013, the worker was advised that an investigation would begin on August 22, 2013, two days after the co-worker returned from vacation.

On August 22, 2013, the investigation commenced. The worker's evidence was that she was questioned for over sihours and that the questioning was like an interrogation. The co-worker was only questioned for approximately 15 minutes that day and for about two hours the next morning. After lunch, the worker was shown the co-worker's rebuttal. The co-worker's position was that they were simply good friends.

The worker indicated that her head was spinning and that she moved from being afraid of the constant harassment/assault/stalking to being terrified of her employer. The worker felt that the employer belittled what she said, minimized what was happening to her and interrogated her as though she was the perpetrator.

On August 24, 2013, the worker made an appointment to see a doctor. The appointment was on September 12, 2013. The worker continued to work during the interim, but actively avoided the co-worker. She rarely went to the washroom and had trouble eating. She mostly stayed at her desk from the beginning to the end of each work day.

On September 11, 2013, the worker was called into an office by her manager and a union representative was present. The worker was advised that she was being given 10 demerits for not answering a telephone call. This was the first time she had been given demerits and receiving 60 is grounds for dismissal. The worker was shocked and noted that at no prior point in time had the quality of her work ever come into question. The worker felt that as the managers had mishandled the harassment situation, the response was to attempt to discredit the worker. She indicated that: "All day, I couldn't stop crying. The anxiety, the fear and terror was so strong, I was falling apart."

On September 12, 2013, the worker brought shopping bags with her and discreetly took out her personal belongings, one bag at a time. By 3:30 pm, she was in a panic and felt like she was running for her life to get to the clinic for her doctor appointment.

As noted earlier, the panel has great empathy for the worker. Unfortunately, we are unable to find that she has an acceptable claim for her psychological condition and loss of earning capacity commencing on September 13, 2013. In our view, the co-worker's actions which the worker felt amounted to harassment are not sufficient to satisfy the definition of "accident." In order to be considered a wilful and intentional act under subparagraph 1(1)(a), there must be some element of malice or bad faith. In our opinion, while the worker found the co-worker's actions to be alarming and sinister, the panel finds that they are open to interpretation and could conceivably be construed as being innocent in nature. The evidence is not sufficient to convince us that the actions constituted harassment.

The panel also finds that there is not sufficient evidence of an event or an occupational disease such as to qualify the 2013 situation as an "accident" under subparagraphs 1(1)(b) or 1(1)(c) of the Act.

More importantly, however, the panel finds that the evidence does not support a causal link between the worker's psychological condition/loss of earning capacity and the co-worker's actions. In the panel's opinion, it was the employer's response which was the cause of the worker's injury. After receiving the August 6, 2013 email from the co-worker, the worker was upset, but she was still able to fully function in the workplace for several weeks. She did not make a doctor appointment until August 24, 2013 which was after the investigation took place. It would appear that her symptoms became disabling on September 11, 2013 which was the day she was informed of the employer's intention to give her demerits. It was the employer's response and the worker's perceived lack of support which impacted her the most.

The definition of "accident" specifically excludes employment related matters which are described in subsection 1(1.1) as: "any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination." In the panel's opinion, the trigger for the worker's psychological condition was the employer's response and this falls into the subsection 1(1.1) restriction as an employment related matter. As such, we find that the definition of accident is not met with respect to the 2013 events and that the worker's claim for PTSD is not acceptable.

The worker's claim is therefore allowed in part.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of December, 2014