The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on January 25, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on January 5, 2016 for a "psychological" condition that he related to his job duties as a loss prevention officer.  The worker described the incident as follows:

Employer spoke to me about 2 weeks prior to Dec 11th about apprehending, they said this was their bread and butter.  Then they said we would talk again in 2 weeks time.  Then after that time they sent me a text that they were terminating me as per the discussion 2 weeks prior.

In the months prior I had some bad experiences with female and male apprehensions where I was thrown to the ground, kicked, and threatened and had knives pulled on me.  Then I started to have 2nd thoughts about approaching people.  I am not a large man and so would hesitate.  I didn't want to get physically hurt.  I was fine with preventions.  Store favors prevention but employers favor apprehension. 

I would come home from work about 9 or 10 pm.  I would sit down and start thinking about what was happening.  My moodiness would come about and would have to use substance to sleep.  Was having trouble sleeping.  I saw the doctor and addressed my concerns, drinking, moodiness.  He suggested to exercise and to see him again in about a month or so.

On January 19, 2016, the employer advised the WCB that the worker did not report any stressful event(s).  The worker was let go because he could not fulfil his job duties.  He was placed on probation and was "let go" on December 11, 2015.

File records show that WCB adjudication staff spoke with the worker on a number of occasions to discuss the events that occurred which led to his filing of a WCB claim.  The employer was also contacted to gather additional information regarding the worker's termination from employment and whether or not the worker made complaints about specific workplace events that may have led to his medical condition diagnosed as post-traumatic stress disorder (PTSD).

On April 28, 2016, a WCB psychology consultant noted in a memo to file that she discussed the claim with adjudicative staff and supervisors from ODU (occupational disease unit).  The consultant stated:

There is a diagnosis of PTSD on file but the support for this diagnosis is not available.  It is necessary for the diagnosis of PTSD that Criterion A be met, that is, that the individual has been "exposed to actual or threatened death, serious injury, or sexual violence."  It was reported that the worker was terminated from his job and that, approximately one month later, he made a WCB claim for psychological reasons and mentioned that he thought that he had PTSD.  He was asked at that time if he recalled any traumatic events and he indicated that he did not, and did not mention any in his initial contact.  At a later time, in April, he did mention such events to a psychologist…by her report of April 21, 2016.  Reportedly, all apprehensions by loss prevention officers are documented and that there is no evidence to file that, as the worker recently reported, he had experienced someone pulling a knife on him and "lots of physical contact."  There is concern given the inconsistency of reporting and the lack of substantiation about the events that are reported to have occurred.

If such events did not occur, then Criterion A is not met and there is no diagnosis of PTSD.  If there is evidence that the worker was exposed to "actual or threatened death, serious injury, or sexual violence" then Criterion A would appear to have been met.  If Criterion A is determined to have been met, then I would be happy to consult again with respect to the presence of PTSD symptoms and whether or not further assessment and, if appropriate treatment recommendations, might be required.

On May 6, 2016, the WCB denied the worker's claim as it was unable to confirm that an accident occurred as defined by The Workers Compensation Act (the "Act") or that the events described by the worker met the criteria for his claim to be considered under the presumptive legislation for PTSD.

On June 30, 2016, a worker advisor appealed the May 6, 2016 decision to Review Office on the worker's behalf.  The worker advisor submitted that the diagnosis of PTSD had been made after January 1, 2016 by a physician and a psychologist and there was no evidence to rebut that the employment was not the dominant cause for this injury.  Therefore, the worker's claim should be accepted under the presumption legislation.

On October 5, 2016, Review Office determined that the claim was not acceptable under subsections 1(1) or 4(5.8) of the Act and that the criteria outlined in the DSM 5 for PTSD had not been met.  Review Office placed weight on the following evidence in making its decision:

• The employer could not locate any reports to substantiate the worker was exposed to incidents of threatened death or serious injury.
• The loss prevention office for the grocery store also stated they could not locate any reports to confirm the worker was threatened.
• Evidence from the treating psychologist who stated "No actual physical violence occurred towards him" and the treating psychiatrist that "No actual violence occurred but he had several episodes that made him very afraid."
• The opinion of the WCB psychology consultant dated April 28, 2016.

On October 11, 2016, 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 Act, regulations and policies of the WCB's Board of Directors.

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.

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;

This appeal deals with a claim for PTSD. The Act defines PTSD and provides for a presumption under certain circumstances. Relevant provisions of the Act include:

Definitions 1(1):

"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;

  (b) peculiar to the particular employment; or

  (b.1) that trigger post-traumatic stress disorder;

but does not include

  (c) an ordinary disease of life; and

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

"post-traumatic stress disorder" means Post-traumatic Stress Disorder as that condition is described in the Diagnostic and Statistical Manual of Mental Disorders

Subsection 4(5.8):

Presumption re post-traumatic stress disorder

4(5.8) If a worker

(a) is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder; and

(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist;

The post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.

In addition, the WCB Board of Directors has established board Policy 44.05.30, Adjudication of Psychological Injuries, which provides guidance in adjudicating psychological conditions, including PTSD.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from his representative and the panel.

The worker's representative submitted that:

It is our position that [worker's] claim does satisfy 4(5.8) of the act regarding presumption. This subsection of the act states that the trigger for PTSD are traumatic events, and that there must be a diagnosis of post-traumatic stress disorder made by a physician or a psychologist.

The worker's representative submitted that the worker:

…was exposed to traumatic events that were willful and intentional acts by someone other than the worker. These events were actual events of aggression that included threats of death. He was diagnosed with PTSD by a clinical psychologist which is connected to his employment. There is no evidence on which to counter the diagnosis of PTSD was related to any other factors.

The events relied upon as triggering the worker's condition occurred when he worked as a loss prevention officer and was assigned to certain large retail outlets. The worker advised that there were many times where he was threatened to have a "head bashed in" or had knives pulled on him by people who he apprehended.

The worker advisor referred to two specific incidents; a woman he caught stealing pulled a kitchen knife on him, and another where a man stealing a steak pulled "a shiv" on him. She also noted that often groups of kids or teens would be ready to punch him as he was outnumbered. She said there were times he had cuts on his hands from apprehensions, not from the knives, but from the people he was apprehending.

The worker's representative noted that the worker's employer confirmed on January 29, 2016 that the reason for his termination of employment was that he was no longer able to perform the job function of a prevention officer.

The worker equated his job to:

the police officer, and the difference being, like you have a licence to arrest people, but you don’t have the badge as a police officer, you don’t have the uniform. You don’t have the mace or any other thing that if a person gets out of control. You’re doing the work of a police officer, but you’re just a civilian.

The worker's representative noted that the worker saw a clinical psychologist who reported that she conducted a clinical investigation and concluded that her findings support the diagnosis of PTSD, mild depression and panic disorder.

The worker's representative noted that the worker reported to the adjudicator that he experienced nightmares and the work events would replay as they had happened that day, which eventually wore on him to the point that he could not perform his job to the expectations of the employer.

The worker's representative submitted that the presumption applies and that the worker's claim is acceptable under the administrative guidelines under board policy 44.05.30, Adjudication of Psychological Injuries, under the subtitle of presumption regarding post-traumatic stress disorder.

Regarding his job, the worker explained that he worked approximately 20 hours per week and was assigned to various locations throughout the city. Some of the locations were in less desirable areas. Some locations had cells to hold offenders and on occasion he would have to handcuff an offender to a chair.

When asked by the panel whether his concern was about the job generally or about a couple of incidents in particular that he felt led to his PTSD, the worker responded:

The job in, every day, the everyday experiences of the job in general.

The worker explained:

What happened was, it wore down on me after a while because I was there a year and a half. It wore down on me, and that’s why I couldn’t do the job of apprehensions. I could do an excellent job at preventions, which is you get the merchandise and you let the person go, or the person leaves and leaves the merchandise. I was good at my job in that respect, but the apprehensions, you physically have to arrest the person.

The worker advised that he disagreed with the practice of apprehending all offenders. He provided examples where he did not feel apprehension was appropriate.

The worker referred to the specific incidents involving weapons. Regarding the incident where a knife was pulled, the worker advised that he followed the offenders out of the store, they got into a vehicle and that:

The man was driving and the woman was in the passenger seat, and I grabbed the door. And when I opened the door she pulled out a knife, like, one of those big kitchen knives, it was like that. And she said, I’ll fucking kill you, like that, so I just let her go.

Regarding the incident with the shiv, the worker advised that the offender pulled out the shiv (small knife) but then put it back in his pocket and dropped the stolen property.

The worker indicated that he had to fill in forms in situations where there was an apprehension or where there was a weapon or physical violence involved. The worker was concerned that the reports were not available.

In response to a question about whether it was the specific incidents that was the issue, the worker replied:

It’s, like I say, it wore me down. It wore me down that, I mean, some days were great, when, you know, and you would make an apprehension, maybe a kid stealing chocolate bars or some lady stealing hamburgers or whatever the case, and it happened often, almost like two to three times a week. I’ll say that there’s always someone with $200.00 or $300.00 or $400.00 or $500.00 worth of merchandise that they’re trying to get out the door. A lot of times it’s just the small things, but it’s still, you know, you get abuse from women, you get abuse from kids, like, the whole thing, because they’re thieves and they just don’t want to get caught, for one thing…It wore on me. And it wore on me, and then when they said, look… you can’t do the job.

In closing the worker's representative submitted that:

As we have presented today, it remains our position that this claim is acceptable under subsection 4(5.8) of presumption of The Workers Compensation Act, and under the board Policy 44.05.30, the adjudication of psychological injuries.

Under the presumption factor for post-traumatic stress disorder, it states that the events that trigger PTSD will be a chance event, as well as it states that The Workers Compensation Act provides that the PTSD is presumed to be an occupational disease as the dominate cause of the worker’s employment, unless the contrary is proven.

It remains our position that there were events, and the WCB has provided absolutely no evidence to support the contrary. It also concludes that there must be evidence demonstrating on a balance of probabilities that the worker’s employment is not the dominate cause of the occupational disease for the presumption to be rebutted.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker appealed the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment.

The worker's position is that he suffers from PTSD and that his claim is acceptable pursuant to the statutory presumption in Subsection 4(5.8) of the Act. The panel has considered the statutory provision, the applicable Board policy and the facts of this case and finds that the worker's claim does not fall within the statutory presumption. The panel further finds that the worker did not sustain personal injury due to an accident arising out of and in the course of his employment.

In accordance with the Act, for the presumption to apply, the worker must be exposed to a traumatic event or events specified as a trigger for PTSD under the Diagnostic and Statistical Manual of Mental Disorders (the Manual). The Manual specifies that the worker must have been exposed "…to actual or threatened death, serious injury, or sexual violence…" In this case the worker must have directly experienced the traumatic event.

The panel has considered the events described by the worker and finds that the specific events noted by the worker were not dangerous/life threatening traumatic events as envisioned in the Manual. The events were uncomfortable but the worker did not leave the panel with the view that he was in danger or felt in danger as a result of the events.

When he described the incident with the woman and the kitchen knife, he noted that she was sitting in the car and she simply showed him the knife so he let go of the door and she drove away. The worker was outside the vehicle and was not under a direct threat of attack. The panel notes that this incident occurred early in his time with this employer and that he did not report an emotional reaction to the event until he was dismissed from his position.

His description of the incident with the shiv was similar. The person pulled out the knife, looked down at it, then put it away, dropped the goods and left. The worker did not relate feeling that he was in danger.

The panel's view of these events is reinforced by the fact that the worker did not refer to specific events when he was first contacted by the WCB. In a memo, dated January 6, 2016, a WCB staff person noted that:

He started having symptoms 6 months ago however there was no specific incident that took place to cause his symptoms to arise.

The worker said there have been various incidents where the worker has been shoved, and attacked which has caused him to be nervous to apprehend larger people…

The worker stated that he believes he has PTSD.  There is no specific incident that sticks out to him.  Just his experience in general with apprehending people.

The panel also notes that in response to questions about the cause of his condition at the hearing, the worker provided general answers. For example, the worker was asked by the panel whether his concern was about the job generally or about a couple of incidents in particular that he felt led to his PTSD, the worker responded:

The job in, every day, the everyday experiences of the job in general.

When asked about being scratched by the people he was apprehending, he said his concern was about disease that he might contact. He did not identify fear of the contact itself.

The panel also notes that the worker only spoke about specific events when he was asked about them.

Based upon the evidence in the file and the evidence provided at the hearing, the panel finds that the incidents which the worker identified are not traumatic events as contemplated in DSM 5. Given this specific finding, the panel finds further that the worker's claim does not meet the statutory presumption for PTSD cases and is not acceptable under the policy.

The panel also notes the treating psychologist stated that "no actual physical violence occurred towards him." This contradicts the position advanced by the worker's representative.

The panel finds that the worker's concern was more related to the job and the aspects of the job that he did not like than a concern about traumatic events. The worker appeared to have a different view about how to perform the job than his employer. The worker favoured prevention while the employer favoured apprehensions. The worker and employer had discussed this difference, and it is the panel's view that the worker felt a poor fit to the job, and in particular the apprehension part, and it was the job rather than specific events that led to his departure in December 2015.

The worker's representative also noted that the worker was diagnosed with a panic disorder. She submitted that this condition is also a psychological injury directly related to his employment on which this claim can also be accepted. The panel notes this condition has not been adjudicated by the WCB.

As noted above, the panel finds that the worker did not sustain an injury by accident arising out of and in the course of his employment.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of March, 2017