Decision #09/15 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim for compensation is acceptable. A hearing was held on December 8, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On September 6, 2011, the worker filed a Worker Incident Report claiming that he developed traumatic mental stress from a work-related incident that occurred on August 18, 2010. Included with the report was an incident report outlining the August 18, 2010 work events.

The Employer's Incident Report dated September 12, 2011 confirmed that an incident occurred in the workplace on August 8, 2010. The employer indicated that the worker took sick leave for his next two shifts and it was not clear whether it was related to the incident. The employer indicated that the worker was completely off work as of March 18, 2011.

On September 27, 2011 a WCB adjudicator spoke with the worker who indicated that he was fine prior to August 8, 2010. After August 8, 2010, he continued to do his job but was having difficulties at work. The worker noted that during his twenty-two years of employment he had seen a lot of trauma and that the incident seemed to place him over the top. He felt that the incident put him in serious danger and that he could have been hurt.

The worker stated that he began to miss time from work in March 2011. He was experiencing conscious flashbacks, a decreased interest in work and difficulty with sleeping. The worker said he spoke to his superintendent who suggested that he take some time off work. Otherwise, he did not speak to anyone about the difficulties he was having as he was not one to share things with his co-workers. The worker was asked why he did not attend a physician after the incident. The worker stated that he was the type of guy who only attended a doctor when he was physically sick. He did not know what to do and thought he could work through it himself. When he realized that his condition was getting worse, he then went to see a doctor.

On September 29, 2011, the WCB adjudicator spoke with the worker's superintendent who indicated that she had no knowledge that the worker had been having difficulties as a result of the incident. She noted that the worker's sick leave was not out of the norm and his manager did not notice any difficulties. She said the August 18, 2010 incident was an anomaly and not something that would normally happen in the workplace. She noted that the worker did work in a dangerous environment and the dynamics of feeling unsafe in this environment would be normal. In late February or early March 2011, she had spoken to the worker regarding a report that he improperly handled and the worker expressed some concerns with his work environment as a whole. She indicated that the worker was advised that he would be moved to a different location and on a different rotation and that the worker disagreed with the rationale for him being moved to a different area. She said the worker had not worked in the new staff placement area and in March 2011 he had gone off work.

In a medical report dated September 28, 2011, the treating physician noted that the worker had been seen for treatment during various periods between March 29 to September 28, 2011. The diagnoses were severe depression and post traumatic stress disorder ("PTSD").

In a decision dated October 7, 2011, the worker was advised that the WCB was unable to establish an accident arising out of and in the course of his employment and that his claim for stress had been denied. The adjudicator indicated that the August 18, 2010 event had been confirmed; however, the WCB was unable to confirm that he was having any difficulties related to the incident. The adjudicator noted that the worker continued to work his regular job duties and he did not seek medical attention nor did he inform his employer of any difficulties related to the work incident.

In December 2011, the worker's wife provided the WCB with a submission to support that her husband was still suffering from an illness derived from his exposure to the workplace event.

On January 4, 2012, the worker was advised that the information submitted in December 2011 including an updated psychiatry consult report had been reviewed and that no change would be made to the October 7, 2011 decision. The adjudicator remained of the opinion that the incident on August 18, 2010 did not meet the WCB's definition of an accident. She stated that the worker's perception of what could have happened in his work environment did not constitute an accident.

On January 26, 2012, the worker appealed the decision to deny his claim to Review Office. On March 5, 2012, the employer provided Review Office with their submission and indicated that they agreed with the WCB that the worker's claim was not acceptable.

On March 26, 2012, Review Office reversed the previous adjudication decision and determined that the worker had an "accident" on August 18, 2010 which resulted in a psychological injury. In making its decision, Review Office placed weight on the following evidence:

  • the worker was exposed to an incident on August 18, 2010 that impacted his safety at the workplace. This met the criteria of a "willful and intentional act that is not the act of the worker."
  • the worker's reported symptoms such as being unsafe while at work or having flashbacks of the incident were related to the workplace incident and his perception of what could have occurred to him at that time.
  • the worker indicated that the incident on August 18, 2010 seemed to put him over the top.
  • the worker's reasoning as to why he did not stop working sooner or file a claim with the WCB at an earlier date.
  • in November 2011 a psychiatrist diagnosed the worker with PTSD and major depressive disorder. The psychiatrist recorded information about the worker's incident at the workplace in which he was left in an unsecured environment and the worker's reaction to the situation. No other cause for the worker's diagnoses were noted.
  • the employer sent an e-mail to the worker on August 19, 2010 about the incident the day prior and stated "I know how stressful these events can be for staff" and "that we fully appreciate the seriousness of the situation..." These comments support the worker's report that the August incident was one of such that could affect his well being.
  • the weight of evidence surrounding the incident was more impactful to the worker than the workplace issues brought up by the employer in February/March 2011.

On March 14, 2013, the employer appealed Review Office's decision of March 26, 2012 to the Appeal Commission. The employer later cancelled the appeal and new appeal was filed with the Appeal Commission on January 21, 2014. A hearing was then held at the Appeal Commission on December 8, 2014.

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 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 Employer’s Position

The employer was represented by an advocate and a deputy superintendant, and two employer representatives were called as witnesses. The employer's position was that it was reasonable to conclude, on a balance of probabilities, that the worker's absence from work was due to workplace issues which did not fall within the definition of accident, as outlined in the Policy. It was submitted that in this case, there was no accident. The fire alarm incident on August 18, 2010 was essentially a situation which occurred from time to time in the facility and there was no physical injury, traumatic incident or threats made. It was not disputed that the worker had a psychological condition that was associated with stress, but the employer's position was that this condition was related to workplace issues that did not fall under the definition of accident, as outlined in the Policy. The facts and circumstances of this claim demonstrated that management's decision to change the worker's shift assignment and subsequent discussions and actions arising from that was the more proximate event that led to the worker's deteriorating health and his subsequent absence from work.

The Worker’s Position

The worker was assisted by a union representative at the hearing and his spouse was in attendance as a witness. It was submitted that the worker was involved in a traumatic workplace incident on August 18, 2010. Immediately after the incident, he missed two days from work, and then he returned to work and continued to work up until March 18, 2011. During the period after the event and leading up to his absence from the workplace, the worker was struggling a great deal due to the psychological effects of the incident. It was submitted that the worker had been employed by the employer for over twenty years and had never been subjected to any disciplinary action or negative performance reviews during his entire career. Prior to the traumatic incident, he was a highly functional individual who was also very active outside of work. After the incident, the worker, despite his struggles, continued to work. He hoped that in time his symptoms would go away and resolve on their own. When they did not and he continued to deteriorate, his wife intervened after observing his distressing behaviour.

It was submitted that while the matter of the shift change was an issue being discussed at the time the worker left work, there was no evidence to suggest the shift change was the cause for the worker's PTSD, depression or was the reason why he had to leave the workplace. The worker's diagnoses of PTSD and depression had been confirmed by numerous healthcare providers, and PTSD is a psychological condition which is caused by a specific sentinel event. In this case, the events of August 18, 2010 were the sentinel event. On that day, the worker believed that he was at significant risk and he was terrified. No other possible cause had been identified for the worker's PTSD nor was there any other possible diagnosis to account for the worker's constellation of symptoms. It was therefore submitted that the worker's ongoing loss of earning capacity was related to the specific incident and the panel was asked to uphold the WCB decision to accept the worker's claim.

Analysis

The issue before the panel is whether or not the claim is acceptable. In order for the employer's appeal to be successful, the panel must find that the worker did not suffer 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.

The panel accepts that the event on August 18, 2010 was a significant event which caused the worker to experience a real apprehension of danger. Although the worst case scenario fortunately did not transpire, the worker was nevertheless placed in an insecure and vulnerable position and the threat of harm was real. The seriousness of the situation was acknowledged by the employer's representative in an email shortly after the incident. In the panel's view, the fact that no actual physical harm occurred is not determinative.

The difficulty with this claim is the fact that the worker was able to continue to function in the workplace for over seven months after the incident without any indication to the employer of the difficulties he was experiencing. This raises some question as to the severity of the psychological injury which he suffered as a result of the incident and whether his eventual departure from work was due to the effects of a workplace accident, or whether there was some other stressor(s) which caused him to go off work as of March 18, 2011. Psychological injury claims are particularly difficult to adjudicate given the multi-factorial nature of a person's mental status.

On a balance of probabilities, the panel is satisfied that there is sufficient medical support for the proposition that the worker's departure from work on March 18, 2011 was attributable to the effects of a psychological injury he suffered as a result of the August 18, 2010 incident. In particular, the panel notes that the following healthcare providers all support findings of PTSD symptomatology:

  • The worker's family physician;
  • A psychiatrist who assessed the worker on November 10, 2011;
  • A treating clinical psychologist;
  • The WCB psychological consultant;
  • An independent psychiatrist who assessed the worker on October 21, 2013.

A diagnosis of PTSD requires that there be a history of exposure to a traumatic event involving death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence. The panel accepts that the August 18, 2010 incident constituted such type of traumatic event for the worker and was the cause of his symptomatology.

The panel acknowledges the employer's concerns that the timing of the worker's disablement from his psychological condition was coincident with the emergence of some scheduling and placement issues in the workplace. There is no doubt that these stressors contributed to the worker's psychological status, but the panel accepts that this was in the environment of a PTSD condition which was already only barely being managed by the worker. The worker had been able to function effectively in the workplace for over twenty years previous to the workplace incident. We accept that the PTSD caused by the August 18, 2010 incident was the main factor contributing to the worker's psychological condition.

The panel therefore finds that the worker has an acceptable claim for a psychological injury by accident arising out of and in the course of employment. The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of February, 2015

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