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 February 13, 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 for "stress" that he related to specific events that occurred in the workplace starting May 18, 2015. The worker described his worksite as being unsafe and that he spoke with a night safety man who agreed with him. The next day he called Workplace Safety and Health ("WS&H") and later took videos of the area he was at on May 18 and other unsafe practices. He said WS&H sent his video to his employer and he was called into the office on May 23 and was suspended for four days. The worker said he went to a doctor as his blood pressure was up, he couldn't sleep and he felt sick to his stomach. He couldn't function at work between May 18 and 23. He said people are afraid to come forward with complaints and that he was told by his union that they want to terminate his employment.

On June 3 and 4, 2015, the employer and the worker answered questions posed by the WCB adjudicator to verify the information that was outlined in the Worker Incident Report.

On June 8, 2015, the worker was advised that the WCB was unable to accept responsibility for his claim as it was felt that an "accident" as defined by The Workers Compensation Act (the Act) had not been established. The adjudicator noted that the information provided by the employer was that the worker had been suspended for the unsafe practice of taking a video while operating a work vehicle, which was against their policies. The employer said they obtained the video he took from a Facebook site, the nature of which was derogatory. This was the second reason why he was suspended. The employer advised that WS&H had established that they operated in a safe manner. The adjudicator concluded that the employer had provided a reasonable explanation as to why the worker was suspended. The definition of an accident does not include employment related matters such as suspension or termination.

On July 6, 2015, the worker spoke with his adjudicator to provide new information concerning his claim.

In a further decision dated July 7, 2015, the adjudicator confirmed the decision to disallow the worker's claim. The adjudicator considered the worker's information that his employer was lying about the information they previously provided the WCB. The worker felt that his suspension from his job was a result of him reporting safety violations to WS&H and he felt he was harassed. The adjudicator noted that subsection 1(1.1) of the Act places a restriction on the definition of an accident which indicated that an accident did not include general terms of employment or any change in respect of the employment of a worker including promotion, transfer, demotion, layoff or termination. WCB Policy 44.05.30, Adjudication of Psychological Injuries, further clarifies that discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

The worker provided the WCB with investigation findings by WS&H. In a decision dated October 13, 2015, the worker was advised that the new information had been considered and that no change would be made to the previous WCB decision.

On June 23, 2016, the WCB advised the worker that the new information he submitted had been reviewed and that no change would be made to the decisions dated June 8, July 7 and October 13, 3015.

In a medical report dated June 24, 2016, the treating psychiatrist advised that the worker was under treatment for depression associated with chronic post-traumatic stress disorder that was related to the incident at his worksite in May 2015.

The worker submitted a medical report dated July 20, 2016 which outlined a diagnosis of post-traumatic stress disorder (PTSD). On July 26, 2016, the WCB adjudicator advised the worker that based on the information provided, the WCB was unable to find that he was exposed to a traumatic event or events specified in the most recent version of the Diagnostic and Statistical Manual of Mental Disorders as a trigger for PTSD.

On August 18, 2016, the claim was considered by Review Office at the worker's request and it confirmed that the claim was not acceptable. Review Office concluded that the file evidence did not substantiate that the worker was exposed to "actual or threatened death" on May 18, 2015.

Review Office opined that the psychiatrist's findings were based solely on the worker's recent/current perceptions, which had been affected by what had transpired since May 18, 2015. The worker did not see the psychiatrist until February 1, 2016 well after the event in question. Review Office accepted the psychiatrist's observations that the worker was a "relatively poor historian when it came to talking about his psychiatric complaints."

Review Office did not accept the PTSD diagnosis and did not consider the worker's current symptoms to be related to the specific event on May 18, 2015. The interaction between the worker and his employer is what Review Office felt was the cause of the worker's stress and anxiety. Review Office found little evidence to support maltreatment or harassment on the part of the employer that caused an injury. It stated that depression was not considered an occupational disease.

On September 20, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on February 13, 2017.

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.  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 1(1.1) of the Act also provides for a restriction on the definition of accident:

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.

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.  

The panel notes that subsection 4(5.8) became effective on proclamation, which occurred January 1, 2016.  

In addition, the WCB Board has established board Policy 44.05.30, Adjudication of Psychological Injuries, which provides guidance in adjudicating psychological conditions, including PTSD.  Amongst other provisions, this policy provides that "For the presumption to apply, the diagnosis must be made on or after January 1, 2016 by a physician or psychologist."  

The worker is appealing the WCB Review Office decision that his claim is not acceptable.  

Worker's Position  

The worker was represented by a worker advisor.  The worker and the worker advisor made submissions to the panel.  

The worker advisor asked the panel to consider that:  

• the event that took place on May 18, 2015 constitutes an accident within the meaning of the Act by way of a chance event occasioned by a physical or natural cause, for which the worker sustained a psychological injury.
• there appears to be no dispute that the incident involving undetonated explosives reported by the worker occurred.
• any safety determination made about this incident by another agency, for instance, Workplace Safety & Health, should have no bearing on whether this claim is or is not accepted.
• a worker’s perception of a confirmed chance event is a predominant factor to consider in  the adjudication of a psychological injury claim.
• the administrative guidelines accompanying this policy state, for chance events caused by a physical or natural cause, the WCB will not determine whether the event was traumatic. It will only determine whether the event happened and whether that event is a chance event.
• a psychiatrist, wrote an extensive letter on July 20, 2016, in which he identifies the diagnosis of now chronic PTSD and noted, in part, as far as the DSM 5 is concerned, the worker experienced the traumatic event of being in the vicinity of an explosive site, and knowing the potential consequences of something going wrong, the knowledge has been completely frightening for him.
• even though the blast did not take place, the potential existed and with his knowledge that was a very frightful experience for him.
• the worker’s perception of the event, regardless of how others may have been affected, and whether or not proper safety protocols were followed, is a critical factor to consider in determining if the PTSD criteria are met.
• more weight should be attached to the consulting psychiatrist's opinion. 
• the attending physician noted that the worker appeared to be stressed and it was recommended that he take time off work because of this.
• the September 30, 2015 narrative report from another psychiatrist noted that things had been going well for the worker until May 2015 when he observed unsafe work practices. He diagnosed the worker as presenting with a stressor-related disorder with some anxiety symptoms.
• as time passed, multiple factors contributed to the worker’s medical condition.
• it is not necessary to determine the dominant cause of the worker’s psychological injury, but the panel may do so on the basis that the May 18, 2015 incident was a factor in the worker’s medical presentation.
• the psychological injury policy states that with the exception of the legislative presumption regarding PTSD, a specific diagnosis is not required for a psychological injury to be compensable.

The worker's representative said that:

…whether Workplace Safety & Health or any other potential agency were to have found that, the circumstances of that incident were or were not unsafe, I don’t believe that that really changes the scenario we’re dealing with because…it’s what the worker’s perception of that incident was at that time.

Regarding the opinion of the treating psychiatrist, the worker's representative noted that his interpretation is that there has to be a real perceived fear of what could have happened, and that satisfies the criteria.

The worker's representative also stated that the panel could, if looking specifically at stress, consider an acute reaction to a traumatic event.

The worker told the panel that the incidents that happened at work "literally scared the hell out of me" and "I felt my life was in danger even before I blew the whistle on the 18th, but that one was the final straw."  He said that he saw a worker "looking to see if there was still unexploded explosives underneath that pile of rubble.  And I just, I couldn’t believe that they would do that with us guys in the trucks that close to that stuff."  He said that "that was the straw that broke the camel’s back. I was already aware of incidents that had happened up there."

The worker advised that the employer has attempted to discredit him for reporting the incidents that he saw at the site.

The worker stated:    

I firmly believe today and back then that I could have died up there that day, and it scared me. And when I talk about it, it scares me, it makes my heart race and it makes me sweat.  And it definitely has traumatized me.

The worker advised that he saw a physician shortly after leaving the site.  He said that he was given a prescription for sleeping medication.  He saw a mental health worker who arranged for him to see the first psychiatrist.  He did not think this psychiatrist understood him.  He was then referred to a second psychiatrist. 

When asked whether he is working at this time the worker replied that he hasn't worked.  He explained that:

       I can’t work anywhere with all this stuff going on, it consumes my whole life

The worker further advised that:

…I’ve had this hearing in front of me now, dealing with that for the last three or four months, trying to get stuff ready and -- I’m not a lawyer.  I’m not a, it’s like I said, I’m not into this kind of stuff.  It’s been very difficult, it consumes every waking hour of my days. Anybody that’s never gone through it doesn’t understand, I feel like a dummy when I’m trying to explain it to people even, it just, it puts you in a different  place, I guess is one way to put it.

Regarding the development of the symptoms, the worker said that he felt threatened that he was a target for standing up against the employer.  He said that anyone who stands up gets fired or demoted.

The worker said that he feared for his safety when he went to sleep while at the camp.  He was afraid of being assaulted.     

In closing, the worker's representative submitted that:

And so in his mind he was truly at risk of serious harm and potentially other coworkers as well, and I think that is a predominate factor in deciding this case.

Employer's Position

The employer was represented by its claims manager.  The employer's labour relations officer attended for part of the hearing.

The claims manager advised that the worker was hired as a haul truck driver. 

"On May 18, 2015 he stated he witnessed an unsafe handling of explosive. He advised he is a licensed blaster, yet he was not hired in the position by [employer]. As such, he was not part of the blasting planning meetings or activities. [He] broadcast over a two-way radio system that…the pit needed to be immediately evacuated.  He made reference to hot war holes, broadcast statements which include, live hot powder in the muck pile."

She advised that the type of explosives used by the employer are non-electric blast initiation systems and liquid emulsions, which are non-volatile and can only be initiated with a primer, unlike blasting caps which heat up. She noted the worker reported the incident to WSH and that "WSH found that at no time there was any unsafe hazards present in regards to our drill and blast activities performed."

She submitted that as WS&H found no hazard, there was no event that jeopardized the worker's life on May 18, and therefore there was no event arising out of or incurring in the course of employment.

In answer to a question from the panel, the claims manager advised that WS&H never made any adverse findings against the employer regarding the incident that the worker complained about.

Analysis

The worker is appealing the WCB's decision that his claim is not acceptable.  As noted in the background, the WCB has determined that the worker's claim is not acceptable as an occupational disease (acute reaction to a traumatic event) or as PTSD.  The WCB found that the worker's condition arose out of a change in respect to his employment, the termination of his employment, and is expressly excluded under the definition of accident under Subsection 1(1.1).

For the worker's appeal to be approved, the panel must find that the worker suffered an injury as a result of an accident arising out of and in the course of his employment.   The panel was not able to make this decision.

The worker's position is that he suffers for 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 provisions of the Act, including statutory provision, the applicable WCB policy and the facts of this case and finds that the worker's claim is not acceptable as the worker did not suffer an injury as a result of 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…"  Pursuant to subsection A(1.) and (2) of the DSM, the worker must directly experience the traumatic event(s) or witness the events in person.

The panel has considered the events described by the worker and the information on file regarding the events.  The panel notes the worker's and employer's evidence, given at the hearing, was that WS&H did not find that a dangerous situation existed.  The panel accepts this evidence and finds that the dangerous situation described by the worker did not occur.

The panel accepts the worker's position that he felt in danger at the worksite; however, the panel finds that this position must be based on reasonable evidence of the danger.  In this case, there is no confirmation that a dangerous condition existed or situation occurred.  There is only the worker's belief that the situation was dangerous.  The panel finds that the worker's belief is not based upon a firm factual foundation.  Accordingly, the panel finds that the worker does not meet the requirements of the DSM.

Regarding an acute reaction to a traumatic event, in the absence of such an event, the worker's claim is not substantiated and that the definition of "accident" has not been established, on a

balance of probabilities.  The panel finds further that the worker did not sustain personal injury due to an accident arising out of and in the course of his employment. 

In addition to the finding noted above, the panel had some concern about the cause of the worker's condition.  It was initially noted by the first psychiatrist whom he saw on September 30, 2015 that the worker's presentation is suggestive of a stressor related disorder with some anxiety. The physiatrist commented that:

"Objectively he came across as irritable and anxious.  There was no evidence of psychosis. He reported no suicidal or homicidal thinking.  His cognition was grossly intact and he displayed a good degree of insight." 

The treating psychiatrist initially provided a diagnosis of Axis I: Adjustment Disorder with Symptoms of Depression and Anxiety and Axis IV Stress related to his work related situation with symptoms of Depression and Anxiety.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 27th day of March, 2017