The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she did not sustain an accident as defined in The Workers Compensation Act (the "Act") and therefore her claim for compensation was not acceptable. A hearing was held on November 8, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On March 21, 2016, the worker filed a claim with the WCB for a psychological injury that she related to her employment as a support worker. The worker reported:

I am feeling very stressed out and have told my manager and union. I work with a high risk client base. I work with people in distress. On call is not backing us in the workplace. Management dismisses our concerns in the workplace. I am afraid of the management I deal with.

The worker reported that her last day of work was on January 25, 2016, and the manager of client services was the person to whom she reported the incident.

The Employer Injury Report dated March 22, 2016, and signed by the manager of client services, indicated that no report of an injury was made.

In a letter to the WCB dated March 22, 2016, the manager of client services stated, in part, that they were surprised to receive a request for an "Employer Injury Report" for January 25, 2016.

He stated that no "Report of Injury" or "Employee Injury Report", either written or verbal, had been made to him or to any other member of their management or staff, on that day or in the time since.

The worker's claim file contains medical information from the treating practitioners as well as memos documenting information that the worker provided to the WCB regarding incidents that occurred in the workplace with a client and how it triggered memories of a prior assault. The worker reported that she made constant complaints about the client she was working with to the point that it became an issue and a conflict with her manager.

On May 3, 2016, Compensation Services advised the worker that the WCB was unable to accept responsibility for her current difficulties as being caused by an accident in the workplace. The letter stated:

…In June 2015, you advised that while working with a client to ensure he was following the…procedure, the client became irate and made a comment that upset you. You mentioned that you have been a victim of abuse in the past and this incident triggered past memories. On January 24, 2016, you indicated that your dog was hit by a vehicle and this was the final straw. You advised that you were in crisis and could not continue to work.

…In speaking with your employer they advised the reason you have not returned to work is due to personal matters with your dog. Your employer advised that the clients you work with are typically not cognitive of what they are saying or doing. Your employer indicated that nothing was reported in June 2015 regarding an irate client that upset you.

…issues relating to you (sic) job duties are considered employment-related matters, and are not included in the definition of an accident as defined by the Workers Compensation Act. Following our investigation, we are unable to confirm the June 2015 incident with the client occurred as stated.

Compensation Services is of the opinion that the incident on January 24, 2016 is not causally related to your employment and does not meet the criteria for the WCB's definition of an accident.

On November 14, 2016, a union representative acting on the worker's behalf, provided new information to the case manager for consideration. Included with the submission was a Notice of Injury to Employer dated April 29, 2016, which indicated that the incident with the client occurred on January 13, 2015, not June 2015. The union representative submitted that the worker's claim was acceptable because the evidence on file and the new evidence supported, on a balance of probabilities, that the worker sustained a psychological injury as a result of prior interactions with a client, who triggered a recurrence of her pre-existing post-traumatic stress disorder ("PTSD").

On November 18, 2016, case management asked a WCB psychological advisor to review the claim information and provide a medical opinion related to the worker's psychological condition.

In a response dated December 15, 2016, the WCB psychological advisor indicated that there was no evidence of a new psychological condition/diagnosis resulting from the incident with the client from January 2015. It was noted that the worker had a longstanding diagnosis of PTSD with dissociation reportedly associated with a lengthy history of childhood sexual abuse. The worker was being treated pharmacologically for mood difficulties prior to the workplace incident. There was no mention in reports that her PTSD was ever in full remission and she apparently continued to experience chronic PTSD. Therefore, the current PTSD diagnosis was not a new diagnosis.

The psychological advisor indicated that there was no consensus about a diagnosis of Generalized Anxiety Disorder and there was a past history of depression and anxiety symptoms. Based on file information, there was no new diagnosis associated with the incident of January 25, 2016.

The psychological advisor further indicated that based on reports on file, the worker experienced a trigger while at work. Individuals with a history of severe childhood sexual abuse, dissociation and chronic PTSD are vulnerable to increases in symptoms in response to stressors and triggers. The pre-existing PTSD would be the major, predominant factor affecting recovery.

On January 4, 2017, Compensation Services wrote the worker to advise that the information provided was not sufficient to overturn the original decision. Compensation Services stated:

The correspondence…dated November 14, 2016 notes that you continued to work after the incident from January 2015 until January 2016 when a personal incident occurred involving your dogs. The report further indicates that you were "able to carry on with work despite recurrent triggering episodes in the workplace and aggravated symptomology because of the emotional support provided to you by your dogs. Once this support was removed, you were no longer able to cope". No new diagnosis was provided in relation to the workplace incident from January 2015 and your employer would not be responsible for the incident involving your dogs in January 2016. As such, I am not able to establish a relationship between your difficulties and your employment and cannot accept any responsibility for time loss or medical costs.

On February 10, 2017, the worker's union representative appealed the decision of January 4, 2017 to Review Office.

On May 29, 2017, Review Office confirmed that the claim was not acceptable. Review Office noted that when the worker originally submitted her claim to the WCB, she did not relate her difficulties to a specific incident(s) with the client who "aggressively" took his belt off in response to being advised of the requirement to shower. It found that the worker filed the claim in relation to feeling stressed out, working with a high risk client base, people in distress and dealings with management. Review Office also noted that there were inconsistencies in reporting as to the date of the incident with the client.

Review Office concluded that the dominant cause for the worker's inability to cope with work was related to her pre-existing condition of PTSD and the loss/injury of her service dogs. On a balance of probabilities, Review Office was not able to establish that the worker was injured as a result of an incident occurring on January 13, 2015.

On May 31, 2017, the union representative 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 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.

"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.

WCB Policy 44.05.30, Adjudication of Psychological Injuries, sets out guidelines applicable to claims for psychological injuries. Relevant portions of this policy are as follows:

Accident

The definition of accident in The Workers Compensation Act…as 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. … Claims for psychological injuries cannot arise under the part of the definition of accident that refers to 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. That part of the definition applies to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries and so on.

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 union representative, who provided a written submission in advance of the hearing and made an oral submission to the panel. The worker responded to questions from her union representative and the panel.

The worker's position was that her claim is acceptable because the evidence supports, on a balance of probabilities, that she sustained a psychological injury as a result of a workplace accident.

The representative submitted that the incident which the worker experienced on January 13, 2015 was an accident within the meaning of the Act. As a victim of childhood abuse, the worker had lived much of her life with PTSD. In spite of her PTSD, the worker was managing her symptoms and performing in an occupation with high psychological demands prior to the incident. The actions of the client on January 13, however, caused an acute reaction and an aggravation or enhancement of her pre-existing condition. While the worker's initial report spoke generally of feeling stressed out at work because of high risk clientele and due to feeling unsupported in the workplace, those concerns were indicative of her underlying injury. It was submitted that within days of the event, the worker sought assistance from her employment counsellor and a therapist, both of whom reported how this incident had affected her, and that these reports were evidence of her injury.

The representative noted that the worker managed to continue working after the incident, but was not the same. She no longer felt safe at work, and fought to improve the working conditions so that she and her co-workers could feel safe again. She struggled with ongoing interactions and hostile behaviour from the individual whose actions had triggered her PTSD. The encounter with the aggressive client heightened her symptoms and impeded her ability to cope. When she reported the client's behaviour, the employer dismissed her concerns, which made her feel invalidated. When she sought improvements at work, her efforts were not supported by the employer. The employer failed to acknowledge or understand the impact the client's behaviour had on her. The worker felt that her employer was unsupportive and not understanding, which she found invalidating and prompted her to be more critical of the employer's approach to safety and trauma awareness in the workplace.

The representative submitted that the worker continued to work under tremendous stress, but was able to manage with the support she received from her three dogs. After the loss of two of her dogs in 2015, however, and the injury to her third dog on January 24, 2016, she was no longer able to continue her struggle in the workplace. She described the injury to the third dog as the final straw. The representative submitted that while the stress of her strained relations with the employer and the unfortunate accident involving her dog undoubtedly contributed to the onset of her disability in 2016, both stressors would have had a lesser effect had the workplace incident not activated her PTSD.

The representative submitted that the December 15, 2016 opinion of the WCB psychological advisor supports that the January 13, 2015 incident triggered an exacerbation of the worker's PTSD. The representative also noted that the worker had more recently been assessed by a psychiatrist, who concluded that the incident had a profound impact on the worker and caused a worsening of her PTSD. The representative submitted that this was probably the most compelling evidence that brings the deterioration in the worker's condition to a point and attributes it directly to that interaction with the client.

Employer's Position

The employer was represented by its executive director and the manager of client services.

The employer's representatives stated that the employer had never received an incident report with respect to the incident which the worker had mentioned, nor did they remember being told of the incident after it occurred. They submitted that there is always support from four other staff members to back up workers at the facility, and there is also a support team to debrief every incident.

The representative indicated that employer only acquired the facility in 2014 and they were working on functioning as a new division of the employer. Staff meetings were held every two weeks or monthly. They would discuss how to deal with challenging clients at those meetings, but in general terms only, and without reference to specific names or incidents. There was a staff meeting on January 16, 2015 where the incident may have been mentioned, but it would have been in general terms only. There was nothing in the minutes of that meeting referring to this client or incident.

The representatives indicated that they noticed a change in the worker's behaviour in July 2015, where there was an increase in client complaints relating to the worker. It was noted that this would appear to correspond with the loss of the worker's first dog. The manager said that he tried to talk to the worker and coach her at that time, but the worker indicated that nothing was wrong.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, 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.

The panel notes that the worker was able to continue working a full year following the January 13, 2015 incident. The evidence shows that the client who was involved in the incident on January 13, 2015 continued to be a client of the employer. The worker said that she tried to reduce her contact with him and avoid him as much as possible.

The panel notes that the evidence, both on file and at the hearing, indicates that the worker's challenges were largely focused on workplace and employer processes and issues, including workplace safety and health issues and the perceived lack of employer support. A major issue for the worker was that she found the employer's lack of support and understanding invalidating.

Challenges and stresses at the time also included a number of very significant life issues, including the loss of her two dogs, in June and December 2015, respectively. The worker said that she was absolutely devastated when the dogs died, and only then realized how much they had helped stabilize her. She also said that while she was visiting a friend out of province in December, her friend had confronted her and told her that her PTSD symptoms were out of control, which she only realized at that point. In addition, a new dog which she had got in December 2015, was seriously injured on January 24, 2016. According to the worker, that was the final straw and she did not go back to work after that.

The panel is unable to place much weight on the report from the psychiatrist dated November 7, 2016. The evidence shows that the worker saw the psychiatrist on one occasion only, on October 27, 2016, more than 20 months after the "triggering" incident of January 13, 2015. The purpose of that visit was described in the report as being for assessment and treatment recommendations regarding PTSD, and the worker's evidence was that she saw the psychiatrist because an insurance company needed information and a psychiatric evaluation regarding her medications.

The panel places significant weight on the opinion of the WCB psychological advisor who reviewed the information, assessments and opinions on file, and opined that there was no mention that the worker's PTSD was ever in full remission, that she apparently continued to experience chronic PTSD, and that the current diagnosis as given by the psychiatrist was not a new diagnosis. The advisor further opined that "Individuals with a history of severe childhood sexual abuse, dissociation and chronic PTSD are vulnerable to increases in symptoms in response to stressors and triggers."

The panel notes that in her evidence at the hearing, the worker described a number of triggers which she had prior to working for the employer, which included "tall men, not being heard in a situation where I express distress, situations where I do not feel I have support of authority figures." Other prominent triggers were referred to in the November 7, 2016 report from the psychiatrist as having been identified by the worker, including heat, humidity and people walking behind her and touching her. The worker agreed that these kinds of triggers are everyday environmental factors, and indicated that these are ongoing, longstanding triggers which continue to affect her now.

The worker further agreed in her evidence that her condition is present to varying degrees pretty much every day, and she is never down to zero, adding:

That's the differentiation between regular PTSD and complex, because mine is complex based on childhood trauma…It is chronic and its lifetime, but the functioning capabilities vary quite a bit. And it's often dependent on triggers, and so trigger management is a huge part of coping and finding ways to manage the triggers.

Based on the foregoing, the panel is satisfied, on a balance of probabilities, that the worker was symptomatic all the time, and that the "triggering incident" on January 13, 2015 did not change or clinically aggravate or enhance her PTSD.

Accordingly, 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 her employment. The worker's claim is therefore not acceptable.  

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 5th day of January, 2018