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 was not acceptable. A hearing was held on May 25, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On October 23, 2014, the worker filed a claim with the WCB for an incident that occurred at work on September 4, 2014. The worker stated:

I had gone into work this day to get paperwork filled out so that I could be reimbursed for certain hours. I was speaking to my assistant manager…about the reimbursement. She did not understand me and called me into her office. When I got into her office, she was quite worked up. We ended up getting into an altercation. As I went to leave her office, she grabbed my arm and held me away from her. She claims I was holding onto her but I didn't touch her. I was seated the whole time. She was standing between me and the closed door. Since the incident, my doctor has diagnosed me with an anxiety disorder.

In a report to the WCB dated January 20, 2015, the treating physician reported that the worker was seen on September 8, 2014. The worker reported that on September 5, 2014, she handed the assistant manager a photocopy of an original receipt and the assistant manager denied she had seen the original receipt. The worker said she then tried to grab the photocopied receipt from the assistant manager and the manager grabbed her arm and told her she would throw her out. When seen for treatment on September 8, 2014, the worker was petrified of going back to work. She had sleep disturbance and her appetite was poor. The physician noted the worker appeared disheveled during the examination. There was a small amount of bruising on her right forearm and the volar aspect of her right forearm was tender to palpation. The worker reported pain on elevating her right upper extremity. The worker was diagnosed with generalized anxiety disorder (GAD) and sprain of the right upper extremity. The physician also noted that the worker had a similar episode of GAD in May of 2014.

On December 15, 2014, a clinical psychologist reported that the worker was experiencing work-related trauma and Depression.

File records show that a WCB adjudicator contacted the worker, the assistant manager, witnesses and other employer representatives to discuss the events that occurred on September 5, 2014.

On December 3, 2014, the worker was advised that her claim for compensation was denied based on the following rationale:

You have submitted a claim to the WCB on October 23, 2014 for stress. You provided information outlining the cause of your stress and the events leading up to your leave from work on September 5, 2014. Information gathered indicates that you relate the development of stress to an argument and altercation that took place between yourself and the Assistant Manager in relation to reimbursement for medical documentation and receipts.

You advised that you came into the store on September 5, 2014 to meet with the Store Manager regarding medical documentation and reimbursement for some receipts. You advised that the Store Manager was not available and you ended up meeting with the Assistant Manager. During the meeting you stated that the Assistant Manager became upset with you because she did not know what you were talking about and requested you come up to the Manager's office to discuss matters in private. You advised that an argument ensued over the request for reimbursement which ended with the Assistant Manager grabbing your arm. Following this you advised that you ran out of the office and vacated the store. You confirmed that no threats of harm were made against you.

Your employer confirmed your employment history and provided information relating to the events that led up to your recent leave from work. Statements were also gathered from the Assistant Manager and the witnesses who were nearby in the lunchroom at the time of your meeting in the Manager's office.

Information gathered confirms you met with the Assistant Manager on September 5, 2014 regarding medical documentation and reimbursement for receipts. It was provided that you had been upset and disruptive at customer service prior to your meeting in the Manager's office with the Assistant Manager. It was also confirmed that you were upset during this meeting. In a report provided by your employer, the Assistant Manager grabbed your wrist in self-defense because you had jumped to your feet and advanced towards her, she believed you were going to strike her. In the initial incident investigation meeting, at your home, you also advised your employer that the Assistant Manager grabbed your wrist stating that "I guess she thought I would assault her"…

As conflicting information surrounding the meeting was received, along with the amount of time that had passed, the adjudicator must make findings of credibility and plausibility in order to render an adjudicative decision. As there is no prior history of difficulties or conflict between you and this co-worker and no witnesses to the meeting that took place, it is our opinion that we cannot establish that a threat occurred.

On December 22, 2014, the worker wrote Review Office stating that she disagreed with the decision to deny her claim. On February 12, 2015, the employer's representative requested that Review Office uphold the adjudicator's decision of December 3, 2014.

On February 23, 2015, a Review Officer recorded that he spoke with the worker's father and it was their position that given the worker was physically at work and was invited to be there by the manager, the definition of accident had been met.

On February 23, 2015, Review Office considered the circumstances of the incident that occurred on September 5, 2014 and concluded that the claim for compensation was not acceptable.

Review Office concluded that the worker was at work and in the course of her employment on September 5, but that it was clear the worker acted in a manner that was outside of her normal employment expectations, therefore severing the employment connection. Review Office noted that witness reports on file supported that the worker was the aggressor and that the assistant manager's actions did not constitute a "wilful and intentional" act as defined in the Act's definition of accident. The evidence showed that the worker removed herself from her employment and created her own hazard when she became verbally and physically aggressive with her manager. Review Office concluded that the worker's actions could not be considered to be arising out of her employment and that the Act's definition of accident was not met. On September 27, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing that was held on May 25, 2017, the appeal panel requested additional medical information as well as information from a third party insurer. The additional information was later received and was forwarded to the interested parties for comment. On September 19, 2017, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.

"Accident" is defined in subsection 1(1) of the Act 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.

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, Arising Out of and in the Course of Employment, provides information on the interpretation of the phrase arising out of and in the course of employment, and states, in part:

Generally, an injury or illness is said to have "arisen out of employment " if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

WCB Policy 44.05.20, General Premises, serves as a framework for claims when the issue of "premises" arises, and provides as follows with respect to personal hazards:

7. Personal Hazards

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by:

⃰ a hazard of the premises; or

⃰ an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, 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.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

Worker's Position

The worker was represented by a worker advisor and was accompanied at the hearing by her parents. The worker provided a written submission in advance of the hearing. The worker advisor made a presentation to the panel on the worker's behalf, and the worker responded to questions from the panel.

The worker's position was that the claim is acceptable, as the worker sustained a physical and psychological injury from a chance event that arose both out of and in the course of employment.

The worker advisor noted that the worker sustained bruising and tenderness on her right forearm as a result of the accident, and was diagnosed with a sprain. The evidence supported that she also sustained an acute psychological injury that required medical treatment and time away from work. She was referred to a psychologist, who diagnosed her with PTSD and recommended cognitive behavioural therapy.

It was submitted that the worker was in the course of her employment at the time of the accident. The store manager had invited her to attend at work to be reimbursed for medical receipts. The accident occurred within the time of employment based on her manager's open-ended invitation and in a location the worker could reasonably be by virtue of her superior's request that they continue their conversation in the manager's office. The accident also happened while they were discussing an incidental employment matter.

The worker advisor submitted that the injuries also arose out of employment. He noted that the worker was obliged to speak with her superior in an upstairs office, isolated from her co-workers and the public, and submitted that these circumstances likely contributed substantially to the accident that occurred.

The worker advisor stated that they did not agree that the worker removed herself from employment by attempting to retrieve her receipts from her superior in the manner she did. The evidence indicated that the discussion had escalated on both sides. It was submitted that the assistant manager's conduct, as reported to the WCB, fell within the scope of the WCB's psychological injury policy as an act that involved malice or bad faith. It was submitted that regardless of the characterization of the attempt by the worker to retrieve her receipts, claim acceptance could still be granted on the basis of an acute psychological injury resulting from the assistant manager's actions.

Employer's Position

The employer was represented by an advocate and by its HR Manager. The employer provided a written submission in advance of the hearing.

The employer's position was that the claim is not acceptable, as the incident did not arise out of and in the course of employment.

The advocate noted that the worker was meeting with the employer with respect to medical receipts for an unrelated non-compensable claim. While the worker had been advised that she could come in and talk about these receipts, there was no guarantee they would be paid for by the employer.

The advocate stated that there was no dispute that there was an incident, an altercation. The worker was also in the place of her employment. The advocate noted, however, that WCB Policy 44.05.20, the general premises policy, provides that an injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. In the employer's view, that was exactly what happened in this instance. The discussion with respect to the medical notes concerned an unrelated injury on the worker's own time, on her own terms, and had nothing to do with her activities as a supervisor in the workplace.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker suffered a personal injury by accident arising out of and in the course of employment. For the reasons that follow, the panel is unable to make that finding. Based on the evidence, the panel is satisfied that the incidents on September 5, 2014 "occurred in the course of employment." The worker had been invited to attend, and attended, the workplace that day and meet with the manager with respect to being reimbursed for various receipts. The evidence indicates that it was not uncommon for employees to come in with their receipts on their day off, and that the employer accepted this as being incidental to employment. The panel accepts that the forms and receipts were sufficiently related the employment.

The panel is unable to find, however, that the worker suffered an "injury" under the Act, or that the incident arose out of the worker's employment.

The panel is satisfied, based on the evidence, that the worker had significant pre-existing psychological issues. She had been participating in a graduated return to work program following an absence from work due to stress. She was not yet back to working on a full-time basis, although she was preparing to do so.

The panel finds that the worker arrived at the workplace on the date of the incident in an already anxious state, due to her pre-existing condition. While the worker's anxiety and stress increased as she continued to interact with others, and in particular with the assistant manager, the panel is satisfied that this increase in her stress was due more to her pre-existing condition.

The panel further finds that the altercation between the worker and the assistant manager on that date was an employment-related matter and is specifically excluded from the definition of an "accident" under the Act. The panel is unable to find, based on the evidence which is before us, that the actions of the assistant manager were wilful or intentional or that they resulted in an injury to the worker.

Based on the foregoing, the panel finds that the worker did not suffer a personal injury by accident arising out of and in the course of her employment on September 5, 2014. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 10th day of November, 2017