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 did not meet the definition of an accident. A hearing was held on August 31, 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 August 4, 2015 stating that he experienced stress at his workplace over interactions with employer representatives which prevented him from doing his job properly. The worker said the incidents had been ongoing for more than a year and that he had been "forced out of the job" and was "constructively dismissed" on July 20.

On August 10, 2015, the worker advised a WCB adjudicator that he had been bullied by several people at work and that he had email correspondence and contact information of people who would support his claim. On May 20, 2016, the worker provided the WCB with a summary of events that occurred in the workplace between January 5, 2009 and July 20, 2015. On June 8, 2016, the worker clarified that he was claiming he was bullied/harassed by his employer as a result of them forbidding him to follow building codes (legislation).

In a decision dated June 13, 2016, Compensation Services advised the worker that his claim for compensation was denied as the issues/incidents he had identified did not meet the definition of an accident as outlined under section 1(1) of The Workers Compensation Act or WCB Policy 44.05.30, Adjudication of Psychological Injuries. On October 17, 2016, the worker appealed the decision to Review Office. 

On October 19, 2016, Review Office determined it was premature to rule on the worker's appeal and the case was returned to Compensation Services so they could request and obtain medical information from the worker's family doctor and a treating psychologist concerning the worker's stress complaints/condition and revisit their decision.

On November 10, 2016, the treating psychologist provided the WCB with a summary regarding psychological services that were provided to the worker between July 25, 2014 and July 24, 2015.

On December 6, 2016, the family physician submitted a copy of his clinic notes and lab results to the WCB with a note stating that the worker was seen between November 2013 and August 2015 for stress related to his work.

In a further decision dated January 9, 2017, Compensation Services advised the worker that following their review of the new medical information, they were still of the opinion that there was insufficient evidence to establish that his claim met the definition of an accident. On January 30, 2017, the worker appealed the case manager's decision to Review Office.

On February 15, 2017, Review Office determined that the worker's claim was not acceptable as it found that the incidents reported by the worker fell under the category of regular workplace operations and not harassment in the workplace.

Review Office acknowledged that the worker experienced stress but also said there was no evidence of malice or bad faith nor was there intent to cause harm. The evidence did not support that the actions of the employer were wilful and intentional. Review Office found that under the WCB Act and policy, the circumstances described by the worker did not meet the definition of an accident. On March 10, 2017, 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 WCB's 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 reads 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 the 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.

"Occupational disease" is defined 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; 

(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.

With respect to injuries arising from employment related matters, subsection 1(1.1) of the Act provides 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 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 wilful and intentional act; or 

• the injury can be an occupational disease (an acute reaction to a traumatic event or post traumatic stress disorder).

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 wilful 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 at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that the employer wilfully and intentionally bullied and harassed him to the point where he suffered psychological injury and had to leave his job.

At the outset of his presentation, the worker referred to the 21-page summary of events in the workplace between January 5, 2009 and July 20, 2015 which he had provided to the WCB on May 2016 and is on file. The worker stated that throughout the period of time that he worked for the employer, he was mistreated and pressured to ignore the law as per the building code. The employer made life so difficult for him that he could not work there anymore.

The worker said that he was caught between a rock and a hard place, where he was required to enforce the code but his employer was telling him that he was not to do so. He said that it got to the point where he sought medical advice, and eventually the advice of a psychologist, who helped him immensely for approximately two years. In the end, however, he had no choice but to resign for the sake of his mental and physical health.

The worker submitted that the employer was essentially asking him to break the law, which he would not do. This put a lot of stress on him, and in his view, qualified as an accident under the Act. It may have taken from 4½ to 5 years to happen, but it was an accident. It was caused purposely, and orchestrated so that in the end, he would be made to resign.

In conclusion, the worker submitted that asking any worker to break the law is putting undue stress on them. He said that this was basically his whole premise in this case. The employer was asking him to break the law on their behalf, and because he would not do so, they made life as difficult as they could for him and forced him to leave. The worker said that it was not an easy decision to leave, but he walked away with his self-esteem and integrity, knowing he had done nothing wrong.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the claim is acceptable. 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 his employment within the meaning of subsection 1(1) of the Act. The panel is unable to make that finding, for the reasons that follow.

The worker has a claim for a stress-related injury.

The Policy specifically addresses the issue of psychological injuries which occur as a result of burn-out or the daily pressures or stressors of work. These types of injuries will not give rise to a compensable claim. In a similar vein, subsection 1(1.1) of the Act, and the Policy, specifically exclude discipline, promotion, demotion, transfer or other employment-related matters from the definition of accident.

The worker has relied on the ongoing treatment of him by the employer or a series of events over the course of his employment as the cause of his psychological condition and loss of earning capacity. The worker has argued, in particular, that he was bullied and pressured to ignore the building codes which he was required by law to enforce, and in effect, to break the law, which he would not do.

The panel has carefully considered the worker's employment situation as described in the information on file and at the hearing. The panel is unable to find, based on the evidence, that the acts of the employer or representatives of the employer which the worker has relied on were wilful or intentional within the meaning of the Act.

The panel notes that the worker argued that comments or decisions from the employer and employer representatives with respect to the interpretation and application of the building code were self-serving and directed towards their own business or personal interests. In the panel's view, the evidence indicates that these issues or actions by employer representatives were based more on the politics or culture of the workplace, and were not aimed specifically at the worker. The panel is satisfied that such disagreements with respect to workplace procedures and the flexibility that may or may not be allowed in application of the building code from jurisdiction to jurisdiction do not fall within the definition of an accident under the Act.

The panel considered the worker's position that the employer made his life so difficult that he had no choice but to resign and his characterization of that resignation as a "constructive dismissal." The panel is satisfied that the worker's resignation or the termination of his employment was an employment-related matter which does not fall within the definition of an accident under the Act.

In this regard, the worker indicated at the hearing that other employees were also being pressured or badgered by the employer, and probably had a similar story to his, but he chose to push forward with this. The worker further commented while he was employed by the employer, they went through 14 people in an office that typically employed about 4 to 5 people over a period of 4½ years, and that this included 6 managers. In the panel's view, this evidence suggests that the worker was not singled out or targeted, but instead suggests a broader organizational culture issue which would be more consistent with burn-out or the daily pressures or stressors of work.

The worker has not identified or relied on any particular event as the basis for his claim. Based on our review of the information before us, the panel was 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.

Overall, the panel finds, on a balance of probabilities, that the matters or issues which the worker is relying on in support of his claim involved the types of daily stressors or employment-related matters which are specifically excluded from coverage under the Act and the Policy.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment within the meaning of subsection 1(1) of the Act. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer

A.
Finkel, Commissioner

M. Payette,
Commissioner

Recording
Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of October, 2017