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 did not meet the definition of an accident. A hearing was held on October 30, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In August 2013, the worker filed a claim with the WCB related to events occurring in the workplace starting August 26, 2006 until she went off work completely in August 2013. The worker provided the WCB with detailed information wherein she described being mocked, harassed and bullied by co-workers. The worker indicated that she filed complaints with human rights which reached the tribunal level in March of 2010. The worker noted that in January 2013, she was diagnosed with severe anxiety and post traumatic stress disorder ("PTSD") by her treating physician.

The Employer's Incident Report filed by the worker's supervisor indicated that the worker presented a doctor's note stating that she was unable to work for medical reasons and that the worker never disclosed an incident.

Information on the worker's claim consisted of medical reports from several physicians as well as memorandums and other documents related to e-mail and telephone conversations with the worker, employer and co-workers pertaining to the alleged workplace events.

In a decision dated January 13, 2014, the worker was advised that her claim for compensation was not acceptable as the WCB found that the nature of the events that took place in 2006 and 2012 did not meet the definition of an accident nor were the incidents considered a chance event, a traumatic event or met the definition of an occupational disease. While the events were considered to be disrespectful, they did not constitute harassment. The WCB also determined that the events did not involve willful and intentional acts to cause harm. The decision stated, in part:

...that in 2006 unflattering comments were made and that in March 2012 a conversation occurred which made reference to comments of a similar nature. Although the comments occurred and would be reviewed as disrespectful behavior they did not establish bullying or harassment. As such, it has not been established that the nature of the events are such that the definition of accident has been met and as such the claim has been denied.

On January 16, 2014, the worker provided the WCB with additional information for consideration. On January 17, 2014, the WCB advised the worker that the information did not provide a basis to change the decision to deny the claim. On January 17, 2014, the worker appealed the decision to Review Office.

On April 9, 2014, Review Office referred to medical and other information on file to support that the worker's claim for compensation was not acceptable. Review Office stated, in part:

The worker's work environment between 2006 and 2013 involved interactions with various coworkers, which included unflattering discussions, gossip and perceptions regarding her appearance. The worker's knowledge of the comments made brought about symptoms of stress and anxiety, as she considered the comments negative and malicious in nature.

The Review Office finds the worker became aware of negative comments made about her appearance through "word of mouth." By her own actions, she elected to seek out the specific details as to what was said. We find insufficient evidence the worker was the subject of malicious behavior with the intent to cause her emotional harm. The Review Office finds the circumstances for which she acquired the information, and the conduct of the co-workers in question, although inappropriate, does not constitute an accident within the meaning of legislation and Board policy.

The evidence shows the worker referenced an accumulation of workplace experiences and coworker interactions she felt caused a psychological injury. In considering the evidence as a whole, the Review Office determines that the accumulation of the workplace events between 2006 and 2013 does not meet the definition of an accident as defined in the Act.

On April 15, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the oral hearing held in October 2014, the appeal panel requested additional information from the worker's employer as well as medical information from two sources regarding the worker's counseling sessions from 2012 onwards. The requested information was later received and was forwarded to the interested parties for comment. On January 27, 2015, the panel met further to discuss the case and to 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.

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 assisted by a worker advisor in the appeal. The worker's position was that she had a psychological injury which was related to confirmed workplace events which constituted workplace harassment. The acts of co-workers fell under the definition of "accident" as a wilful and intentional act, and arose out of and while the worker was in the course of her employment. As the Act did not identify a definition of harassment, the worker advisor relied on the Human Rights Commission definition which stated that harassment is any behaviour that degrades, demeans, humiliates or embarrasses a person, and that a reasonable person should have known would be unwelcome. It was submitted that this definition of harassment was mirrored by the Policy. Under the administrative guidelines to the Policy, a wilful and intentional act was described as one which involves malice or bad faith. Malice or bad faith would be found when the person committing the act actually knew, or a reasonable person would know that the act was offensive or objectionable to the worker.

It was submitted that the evidence on file supported that the act complained of by the worker did happen and it was truly offensive and very objectionable to the worker, and any reasonable person would find the comments offensive, hurtful, degrading, humiliating, objectionable and very unwelcome. As such, the worker's claim was acceptable as a result of a wilful and intentional workplace act or acts, which resulted in a psychological injury which prevented the worker from returning to her place of employment. It was submitted that as a result of the initial offensive and hurtful comments from the events of 2006, that were brought forward again in 2012, the workplace incidents were directly responsible for the worker's psychological injury for which she was directed by her healthcare provider to leave her place of employment.

The Employer’s Position

The employer was represented by a labour relations technical consultant. The employer supported the original decision of the WCB for the reasons outlined in its April 9, 2014 correspondence to the worker. It was noted that the worker's diagnoses of depression and anxiety dated back as far as 1998, well prior to any workplace incidents. It was also noted that the current physician statements were all doctors who were seeing the worker well after the fact, and their diagnoses were based solely on the worker's version of events.

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 are not able to make that finding.

Although the workplace events have been at times been characterized by the worker as "years of harassment and abuse," and may have been perceived by the worker to have been so, there are essentially only two time periods where specific events in the workplace have been identified as being causative of the worker's disabling psychological symptoms.

The first was in 2006 when the worker became aware that a certain male co-worker was making derogatory comments about her appearance to his colleagues, suggesting she was unattractive and masculine in appearance. The comments were not directly communicated to the worker, but she became aware of them when one of the colleagues sent the worker an email informing her of the comments. The email outlined two specific instances where the male co-worker made comments of that nature. The worker filed a Human Rights complaint alleging sexual harassment and the matter was also investigated by the employer.

In 2008, the worker was moved to a different building location with the same employer. The second event occurred in March 2012 when a female co-worker who also had worked at the former location had a conversation with the worker during which the events of 2006 were discussed. The conversation revived the past experience for the worker and was extremely upsetting to her. The matter was reported to the employer and steps were taken to separate the worker from the co-worker. On March 12, 2012, the worker was prematurely moved back to her former work area. She was already scheduled to move back to this area after her term position ended, but this was not for another three weeks. In August 2013, the worker filed a grievance regarding the March 2012 events.

The panel acknowledges that the worker was the subject of offensive comments which were completely inappropriate and should not have been spoken in the workplace (or elsewhere, for that matter). We sympathize with her in that regard. While we accept that the worker was the subject of objectionable comments, we are not satisfied on a balance of probabilities that her disabling psychological condition which caused her to leave the workplace on August 7, 2013 was directly caused by either the 2006 incident or the revisiting of the comments in 2012.

In coming to this conclusion, the panel relied on the following:

• Following the 2006 incident, the worker was able to continue to function in the workplace. She remained at that location for almost another two years until she transferred to another building in July 2008 as a result of a lateral move. The move does not appear to have been prompted as a result of proximity to the male co-worker.
• Following the 2006 incident, the worker was able to actively participate in both the Human Rights investigation and an internal investigation by the employer.
• The worker continued to effectively function in the workplace after her move to the new location. The performance reports on file all consistently praise the worker as being a very competent team member whose work was always timely and accurate. Her organizational skills were characterized as "exceptional." The worker was easily able to transition into new roles and was reported in November 2009 to have been able to take on another co-worker's duties without requiring any training. In 2011, the worker was assessed as maintaining a positive and professional attitude at all times. She was stated as being diligent in attending to her learning needs and was enthusiastic about taking new courses that may benefit her both professionally and personally. There was no indication that the worker was in any way struggling to perform her duties in the workplace.
• In the worker's performance appraisal covering the period September 2011 to August 2012, the comments continued to praise the worker for her job performance. The worker was reported to have: "performed these tasks easily, displaying ambition, effective organizational skills and timeliness. As a result of her great ability to analyze information, clarify situations and identify solutions, she was asked to perform other related duties...."
• The worker signed the performance appraisal on October 29, 2012. The panel finds that as of that date, the worker was continuing to function effectively in the workplace. It is notable that this was almost eight months since the March 2012 events.
• A review of the worker's attendance record following the March 2012 events shows no unusual pattern of absences. In March 2012, in the immediate time period following the conversation, the worker only had one day of sick leave (uncertified) on March 23, 2012. From March 2012 to August 2013, the worker's attendance record shows that she took regular vacation leave and had periodic instances of sick leave. It is notable that the instances of sick leave were not escalating in the time period leading up to the worker's exit from the workplace on August 7, 2013. It is also notable that the absences to meet with a union representative/management outnumbered the sick leave absences in July 2013.
• The grievance document filed by the worker dated October 2013 contained a summary of performance assessments in the period leading up to August 7, 2013. It would appear that in April 2013, the worker requested a meeting with her team leader to clarify some work issues. The worker indicated that: "I left the meeting feeling like I was doing really well."
• Then on July 8, 2013, the worker was told by the team leader that her performance assessment for the period of October 2012 to August 2013 would probably be classified "does not meet." A number of communications then ensued as the worker wrote that she was devastated and confused as to the reason for her less favourable review.
• The record of Employee Assistance Program ("EAP") counseling appointments show that the worker attended on April 2, 2012, April 19, 2012, May 3, 2012, July 10, 2013, July 17, 2013 and July 24, 2013. This is consistent with a finding that the worker had been upset with the March 2012 events, but with some counseling was able to cope. It would appear that the performance review issue in July 2013 was a new trigger which caused the worker to seek further her EAP appointments.

Overall, given the lengthy time delay between the workplace events (both the 2006 incident and the revisiting of the comments in 2012) and the worker's loss of earning capacity commencing August 7, 2013, the panel is not convinced on a balance of probabilities that the workplace events were the cause of her disabling psychological condition. Given the proximity in timing, we think it is more likely that it was the performance appraisal issues which caused her to become absent from work. The evidence suggests that while the workplace events were distressing, the worker was able to continue to perform at a very high level in the workplace. It was only when her performance was being questioned that the worker sought out further EAP counseling and subsequently left the workplace.

The panel notes that the attending psychologist opined that the worker's current diagnosis of PTSD is related to experiencing years of harassment and abuse and that her current mental state is related to her abusive work situation which her employer knew about but allowed to continue. The panel does not accept the psychologist's opinion as it is based on the assumption that the worker was subjected to "years of harassment and abuse." The panel's findings do not support this assumption as there were only two incidents identified. There was no pattern of repeated objectionable remarks over an extended period of time. Further, the comments, while offensive, were never directly uttered at the worker. We find that while incredibly insensitive, there was no maliciousness or direct intent to harm the worker. In the panel's opinion, the assumption of "years of harassment and abuse" is not supported.

The panel also notes that the history provided by the worker to the psychologist denied previously experiencing anxiety and depression, other than performance anxiety related to high level sports competition. The panel feels that this history is inconsistent with the history provided by the family physician which referenced psychological difficulties dating back to 1998 and we therefore place less weight on the psychologist's conclusions.

It is therefore the panel's decision that the worker's claim is not acceptable as we find that the cause of the worker's current psychological condition was the work performance issues and not the workplace events. As noted earlier, subsection 1(1.1) of the Act specifically excludes from the definition of accident: " any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination." The panel is of the view that the exclusion applies in this case and that the worker's loss of earning capacity is directly attributable to her reaction to the less favourable performance review.

The panel acknowledges that the less favourable performance review was indirectly related to the 2012 events, in that the worker did not receive full marks in respect of reference checks. The worker was deducted 15% for the following reasons: "While the board recognized that you did not initiate the incident that led to your desk move there was no indication of the steps you took to maintain a positive working relationship with the other individual." While the 2012 events may have led to a deduction in the worker's reference checks, entitlement to WCB benefits requires that the workplace events be the direct cause of the personal injury. In the panel's opinion, it was the employment related matter, and not the offensive comments, which caused the worker to become disabled from working. As such, we find that the definition of accident is not met and that the worker does not have an acceptable claim.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 19th day of February, 2015