Decision #153/15 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the WorkersCompensation Board ("WCB") to deny his claim for psychologicalinjuries related to events occurring in the workplace which led to himdiscontinuing work in December 2013.  A hearing was held on November 16, 2015to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In August 2014, the worker filed a claim with the WCB for a psychological injury that he related to events occurring in the workplace which caused him to leave work on December 24, 2013.

On September 3, 2014, a WCB adjudicator contacted the worker to discuss his claim. The worker advised that he and his co-worker had been best friends for 12 years. During the first week of June 2013, they went overseas on work business when he learned of his co-worker's wrongdoings. When they returned home he reported his friend's wrongdoings to supervisors. The supervisors then told the co-worker of what was reported by the worker and nothing was done. Neither he or his co-worker were removed from the office. The worker stated that his co-worker called him names and questioned why he reported him. He and his co-worker argued about it for four hours. His co-worker later made false accusations against him and also threatened him. Nothing ever got done with his report and it trashed his credibility. The worker stated that he was two years from retirement.

The worker reported that he started to feel sick in late October and that he went for counseling. On December 24 he booked off sick and was referred to a psychologist. The worker stated that he was torn apart from having to report his friend but he was suppose to have high ethical standards and credibility. These events damaged his career path. The worker indicated that he filed a grievance and was in contact with his union and legal counsel.

By e-mail correspondence dated September 26, 2014, the employer's representative opposed the acceptance of the claim as it was felt that the claim did not satisfy legislation or policy. The representative stated:

  • The worker first raised a concern with the employer on October 19, 2013. He indicated that the college offered him a further two years but that he was not prepared to accept their offer due to the fact that the working conditions are unhealthy, unethical, possibly illegal and there is a disregard for his integrity, credibility and well-being.
  • The worker expressed concern that in May 2013 a co-worker received or bid on a contract with a related agency, via a private company.
  • The co-worker became aware of the worker's complaint and became livid with the worker and began to degrade him.
  • In August 2013, the co-worker informed his supervisors at the college that the related agency had signed a contract with him.
  • On August 30, 2013, the management determined that any conflict would be negated if the co-worker were to be moved to a different building from the worker, but could remain with the college as he was to retire on December 13, 2013. Both the worker and co-worker were informed at the same time.
  • On September 23, 2013, the worker met with his supervisor to express dissatisfaction with the decision and gave an ultimatum that he would terminate his secondment.
  • He said that the co-worker continued to make disparaging comments and spread rumors about the worker.
  • On December 3, 2013, after being advised by his employer that his secondment would not be extended beyond January 10, 2014, the worker requested that the employer reconsider this decision as "The working conditions have improved drastically" and he would now be prepared to stay at the college with the employer's approval.
  • The worker was advised that the employer would not extend the secondment.

Medical information consists of reports from the worker's treating physician, a psychologist and a psychiatrist.

In a WCB decision dated December 1, 2014, the worker was advised that his claim for compensation was not acceptable. The decision stated:

The nature of the matters brought forward by you are not of the type which give rise to an acceptable WCB claim. The reporting of a situation which you determined to be unethical and possibly illegal and the response to the situation by your employer would not satisfy the definition of an accident as defined by the Workers Compensation Act.

Also, your departure from work effective December 24, 2013, occurred after you reported that the working conditions had improved drastically. In the opinion of Compensation Services, your departure from work on December 24, 2013, and your subsequent time loss have not been established to be related to an accident as defined by the Workers Compensation Act. As such your claim for compensation has been denied.

On January 22, 2015, the worker attended the WCB offices to provide detailed information regarding the interactions he had with his partner as well as employer personnel regarding the workplace events which took him off work in December 2013.

Between February and early April 2015, file records contain e-mail correspondence from the worker and the employer's representative. On April 15, 2015, the WCB advised the worker and the employer that after review of the additional information, no change would be made to the earlier decision to deny the worker's claim.

On April 15, 2015, the worker wrote Review Office as he disagreed with the decision to deny his claim. A copy of the file was then provided to the employer and their submission to Review Office is dated May 29, 2015. On June 2015, the worker provided his final submission to Review Office.

On June 12, 2015, Review Office found insufficient evidence to support that the worker sustained an "accident" as defined in The Workers Compensation Act (the "Act"). Review Office referred to file evidence to support the following findings:

  • the worker did not agree with management's approach to dealing with the conflict between him and the co-worker. The evidence did not substantiate that there were threats or harassment in the workplace. Review Office found that the stressors related to the management of the conflict between the worker and the co-worker do not meet the definition of an accident as described in the Act or board policy.
  • the time when the worker sought medical attention and discontinued work was consistent with his disapproval of his secondment ending and resulting in moving back to Winnipeg. Transfers and other employment related matters are excluded from the definition of accident.
  • the breakdown of the personal friendship between the worker and the co-worker is not compensable and does not meet the definition of an accident.
  • the worker described numerous occasions where the co-worker was harassing him and that this continued for months. Review Office did not find the evidence to support this.
  • regarding the January 22, 2015 meeting with the adjudicator, Review Office found the information provided by the worker at this meeting was similar to what was previously documented. Review Office indicated that it did not find there was any new information to support that the worker sustained an accident as defined in the Act.

On June 17, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

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

(a) a willful and intentional act that is not the act of the worker;

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

The definition of “occupational disease” in the Act is as follows:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than as an acute reaction to a traumatic event.

With respect to injuries arising from employment related matters, the Act contains the following limitation:

Restriction on definition of "accident"

1(1.1) The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, (the "Policy") sets out guidelines applicable to claims for psychological injuries. The effective date is November 1, 2012, for all claims regardless of accident date.

The relevant portions of the Policy are as follows:

Accident

The definition of accident in The Workers Compensation Act (WCA) has various components. A psychological injury can be caused by:

· a chance event

· a willful and intentional act; or

· the injury can be an occupational disease (an acute reaction to a traumatic event)

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically.
…

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no willful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident

Worker's Position

The worker was self-represented.

The worker explained the facts surrounding his claim. He advised that he was seconded to an agency to serve as a teacher at a college outside the Province of Manitoba. He said that his co-worker, who was also his best friend, received permission to start a business and provide services to the agency. The worker believed that it was inappropriate and illegal for the co-worker to operate the business and provide services to the agency. The worker opposed the awarding of the contract to the co-worker and advised the college and agency. The co-worker was awarded the contract. This caused a fallout between the worker and his co-worker.

The worker said that his office was in a remote stand-alone building on the campus. After the incident, the co-worker was not to attend at the building. The worker said that he was concerned the co-worker had a gun in the building or on the campus. He said that the co-worker continued to attend at the premises. This led to a four hour long argument. He commented that:

Four hours of abuse and almost getting to the point where we went toe to toe out in the field, two occasions.

The worker indicated, that in hindsight, he should have resolved the issue physically.

The worker referred to other incidents where he met the co-worker and they exchanged words. The worker provided examples of the co worker's conduct towards him:

So there was passing in the college, walking back and forth, picking up assignments, flipped the finger, yelling at me that I’m a loser. Way to backstab your

best friend. Way to become, way to go hero, I had all kinds of stuff going on.

Threaten me, you should be dead for what you’ve done, dah-dah-dah. Anyway, all kinds but mostly in passing for those weeks.

The worker described his employment situation as a boys club. He said that

...He was my best friend. We were both in it. We were, we were very, very

close. And he started making rumors, and I got alienated. I can’t prove it, but I’m going to tell you, because I couldn’t defend myself and say what had happened because I had been sworn to secrecy, because I trusted the [agency] were trying to do the right thing, I kept my mouth shut and I stayed away.

The worker said that rather than remove the co-worker, the agency rewarded him. He also advised that after one meeting with his co-worker, the co-worker alleged that he had threatened him, which resulted in the worker being removed from the college.

With respect to the suggestion that his illness was related to his mother's passing, the worker said that it had nothing to do with this.

The worker said that:

The workplace environment that the [agency] created has left me with a huge psychological disorder, disability. I have a real hard time right now being in public places I tell you. I stick to myself because of what happened. And they burnt, my credibility and career.

The worker referred to medical evidence in support of his claim. He saw his family physician who referred him to a psychologist.

The worker disagreed with the employer's categorization of the co-worker's conduct as a conflict of interest, he said that it was a crime.

In response to the employer's suggestion that the worker was angry about the employer's position to end the secondment, the worker said:

Wrong. I did not want to be there. I had already quit on September 29th. When Winnipeg told me November they weren’t, I wasn’t staying, I had already quit. It’s a moot point. I had no intention of ever having anything to do with the [related agency] ever again, ever. So it’s wrong.

Employer's Position

The employer was represented by its compensation coordinator. He provided a written submission and an oral summary.

He noted that there appeared to be no disagreement that worker's co-worker, while on secondment to the college, bid on a contract with an agency related to the college. This occurred around late May or early June 2013, which is when the worker became aware of the situation. He said it would appear that the co-worker received confirmation that he was the successful bidder sometime in August 2013.

The representative said that the worker appropriately considered this to be a conflict of interest, and duly reported this to the college executive. He noted that the worker, with the support of a senior official, requested that the co-worker's contract be terminated immediately due to the conflict of interest. It appeared that the college executive agreed that there was, in fact, a conflict of interest at hand, but decided that they would mitigate the consequences of same, given, that the co-worker was scheduled to retire effective December 13, 2013. The worker expressed disagreement with the college's action regarding the co-worker.

The employer's representative said that the worker, at least initially, appeared to have accepted the position taken by the college executive. He noted that his position changed during the latter part of September 2013 when the worker gave notices that he would, at the end of 30 days, be terminating his employment relationship with the college. He noted that arrangements were subsequently made to move the co-worker to a different building to perform various duties until his scheduled retirement on December 13, 2013. There were some further issues regarding the relocation and the co-worker's property on the premises where the worker had his office.

The employer representative suggested that there appeared to be two distinct sets of circumstances which appear to have at least, in part, contributed to the worker's psychological difficulties.

  1. The first situation revolves around the worker's inability to accept management’s decisions as they relate to the co-worker's conflict of interest.

  1. The second situation arises from the employer's decision to terminate the worker's secondment and return him to duty in Winnipeg. Despite the worker's request for reconsideration of this decision, he was advised that there would be no change.

The employer representative noted that shortly thereafter, and with the co-worker no longer in the picture, the worker sought medical attention, discontinued work, and has never returned to work. He noted that the worker attributed his situation to the college, two related agencies and his employer.

The employer representative submitted that following a review of the evidence on file, it would seem apparent that the worker's perception of negligent agencies encompassed those that did not agree with his various recommendations, demands, or support his claim with the Workers Compensation Board.

The employer representative submitted that neither circumstance would satisfy the prerequisite of subsection 1(1) of Act. Nor would they survive the application of subsection 1(1.1) of the Act or Board policy 44.05.30.

In closing, the employer representative submitted that:

In fact, in our opinion, sections 1(1), or 1(1.1) and the Board policy relative to psychological adjudication of claims, would rule out any validity of this claim. So, again, we would call upon the panel to confirm the decisions of both Review Office and primary adjudication.

Analysis

The panel notes that the worker appears to have high ethical standards and expectations that his co-workers and supervisors share these standards. The worker's reactions to the events appear to be closely tied to his disappointment that, in his opinion, others did not share his view.

The worker claims to be suffering from a psychological injury that is due to his employment. He has identified specific events that occurred in the workplace which have resulted in his illness. For the worker's claim to be accepted, the panel must find that he was injured in an accident arising out and in the course of his employment. The panel was not able to make this finding for the reasons that follow.

The panel has considered the various events that were identified by and discussed with the worker. The panel generally accepts the worker's evidence regarding the various events. However, the panel finds that the events and the consequential injury do not meet the definition of accident set out in the Act and policies of the WCB. We reach this conclusion after careful consideration of the events and the medical evidence of his treating medical professionals.

The worker had numerous complaints about the management of the conflict of interest situation. He disagreed with the manner that the college, related agencies and their senior management dealt with his complaint. He was also concerned with the conduct of the co-worker. The worker found these situations stressful. He referred to various actions and inactions which angered him:

· he was angry with the co-worker for obtaining a letter of reference from him under false pretenses

· he felt harassed, threatened and abused by his co-worker after the co-worker found out that the worker had attempted to prevent the college and/or the related agency from entering a contract for services with the co-worker.

· he was disappointed and angry with his supervisor who initially supported his position and later told the worker that the matter of the co-worker was not his business.

· he was disappointed with the senior management of the college and related agencies who approved the contract with the co-worker, refused to dismiss the co-worker and failed to support the worker.

· he was angry with the employer for not providing sufficient support and for refusing to allow a further secondment.

The worker provided evidence about multiple confrontations with the co-worker. The worker said that they argued often; the co-worker would give him the finger, the co-worker engaged in name calling, such as calling the worker a liar, and the co-worker spread rumors about him, degraded him and threatened him.

With respect to the threats, the worker said it was verbal intimidation, not physical intimidation. He was asked whether he was physically intimidated by the co-worker:

Q .... Was this gentleman physically intimidating to you?

A No.

Q Was it verbal intimidation?

A Yes.

Q Okay, because you mention you were, you wished you had, well, you were talking about --

A Well, I always had the gun thing in my head, but I know what, I never, I never, never thought about it. I had no, I didn’t think I could, I know I could handle it myself with this guy.

Q And, but he wasn’t physically intimidating to you?

A Might have been a black belt. I never thought, he was my friend. I never thought of him that way, but I really, to be honest, I wasn’t afraid of him, physically, physically. Yes.

In his presentation, the worker mentioned that the co-worker had a gun on the campus. He was asked "was it ever any part of a heated discussion that he had made reference to it?" The worker advised that it was not.

The panel concludes that the worker was not intimidated by the co-worker and is not able to find that these confrontations amount to harassment for the purposes of claim acceptance.

The worker also advised that after one confrontation with the co-worker, the co-worker alleged that he had threatened him. This resulted in the worker receiving a no contact and communications order.

In reply to questions from the panel, the worker acknowledged that things went downhill after his superior, who had supported him in his request to remove the co-worker, told him that the co-worker was no longer his concern. In the hearing, the worker described being made to look like a fool or idiot, in reaction to the employer's response to his concerns. He left the panel with the view that he was both disappointed and embarrassed by the employer's ultimate lack of support which he felt undermined his credibility.

The panel has considered the various events and actions dealing with the co-worker and the response by the college, related agencies, and senior management, and finds these do not fall within the definition of accident but rather under the non-compensable psychological injuries provision of WCB Policy 44.05.30.

The employer's representative suggested that the worker was angry with the employer over the issue of the extension of the secondment agreement. It was suggested that the worker's need for medical treatment arose because of his reaction to the refusal of this employer to agree to an extension. The worker denied that he wanted to extend the agreement. When asked about his statements in the file which indicate that he wanted the secondment agreement to be extended, he responded that "I said to you, I lied to them so they would stop doing things to me. I wanted them to think that I wasn’t going to push this matter anymore."

To the extent that the worker's medical condition, is related to the issue of the employer's refusal to allow an extension of the worker's secondment, the panel finds that that it is not an accident. Subsection 1(1.1) specifically excludes any change in respect of the employment of a worker including transfer.

Finally, the panel considered the medical evidence on the file. On a balance of probabilities, the panel is satisfied that there is not sufficient medical support for the proposition that the worker's difficulties at work are the result of an accident as defined by the Act. In particular, the panel notes that the following healthcare providers evidence does not support a finding that the worker sustained an accident as defined by the Act:

· physician report dated October 27, 2014 - seen on November 14, 2013 for complaints of work-related stress and depression on December 13, 2013 - met diagnostic criteria for mild depression

· seen on February 11, 2014 with improvement - recommended return to work under modified duties.

· psychologist report dated May 1, 2014 - opines that the worker experienced an acute situational state of distress. Notes major issues remain his sense of trust in people and the institution he worked for.

· psychologist report dated October 6, 2014 - progress report - no diagnosis provided- notes it would not appear to be advisable for him to return to his former type of work as there is still a significant amount of residual anxiety attached to the negative experience.

· psychiatrist report dated November 11, 2014 - consultation letter - psychiatrist notes the worker started having depressive symptoms about last August 2013 - screened for anxiety disorder and may have mild sub threshold symptoms of post traumatic stress disorder secondary to what has transpired over the last year, but otherwise, does not have any major anxiety disorder. Noted that current stressors are ongoing difficulties with related agency, over the last year lost best friend who he reported to authorities, lost other friends who have sided with co-worker, and death of mother.

Regarding his current condition, the worker said that he was much better. He acknowledged that he has an issue with trust and has anxiety.

While the evidence suggests the worker's attitude towards his work is causing him distress, depression and anxiety, it does not provide evidence of an accident.

Considering the evidence as a whole, the panel is of the view that the worker's situation is that of burn-out and stress from a demanding job and workplace strife, rather than as a result of an accident arising out of and in the course of employment. The immediate evidence surrounding the worker's exit from the workplace all suggests that employment related matters were the cause of his psychological condition and loss of earning capacity. We therefore find that the claim is not acceptable.

The panel was also unable to find evidence of an acute reaction to a traumatic event and as such, the worker's claim cannot, on a balance of probabilities, be accepted on this basis.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of December, 2015

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