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 is not acceptable. A hearing was held on June 13, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker submitted a claim to the WCB on June 24, 2016 for a psychological injury, with an incident date of June 13, 2016.

The worker saw a family physician on June 13, 2016, and reported "having panic attacks at work, home and in public situations. Feels for her safety." The physician diagnosed her with "Post traumatic stress disorder / generalized anxiety disorder" and recommended that she be off work for three weeks, and reassessed in one week.

On June 29, 2016, the family physician provided her with a sickness certificate to be off work to July 31, 2016.

On May 11, June 23 and July 7, 2016, the worker saw a clinical psychologist. The clinical psychologist provided the WCB with a report dated July 7, 2016, in which he stated that his overall opinion was that the worker was suffering from a "Specified Other Trauma and Stressor Related Disorder, with post-traumatic symptoms."

The WCB conducted an investigation into the worker's claim, including interviewing the worker's co-workers, supervisors and union representatives.

On August 10, 2016, Compensation Services advised the worker that her claim was not acceptable. Compensation Services stated that they could not establish that a workplace injury occurred. They acknowledged that the worker felt stress at work, but could not confirm any incidents of harassment as described by the worker. Compensation Services noted that the worker's issues with accommodations provided by her employer were standard employer practices and were not compensable.

On August 29, 2016, a worker advisor acting on behalf of the worker requested that Review Office reconsider Compensation Services' decision. The worker advisor submitted that the main trigger for the worker's psychological condition was that she felt unsafe at work as she could not run or protect herself due to ongoing back difficulties from a previous WCB claim. The worker advisor noted that the clinical psychologist had stated in his July 7, 2016 report that events concerning issues with her co-workers and a pre-existing feeling of vulnerability contributed to the onset of the worker's psychological condition, but the main stressor was an incident involving a death in August 2015.

On October 28, 2016, Review Office advised the worker that her claim was not acceptable. Review Office referred to a 13-page letter from the worker which summarized her work history and difficulties, and indicated that she had struggled with several co-workers, supervisors and employer policies. Review Office noted that when the worker first filed her claim, her largest concern and source of stress was related to previous WCB claims and her disagreement with decisions to end her benefits on previous WCB claims. This caused the worker concern for financial security and resulted in a high amount of stress.

Review Office stated that beginning with the report from the clinical psychologist, the worker noted she had a form of "vicarious trauma" with respect to the August 2015 death of a client. The worker was not working when this occurred and had no part in dealing with the incident.

It was noted that in her submission, the worker had summarized a few other violent incidents that had occurred throughout her career. She also detailed incidents of harassment by co-workers, including an incident where a co-worker slapped her on the back, causing a flare-up of her back pain, and this caused the worker to go into a state of "heightened arousal" and increased her stress. Review Office noted from the worker's reporting, that each time her stress was spoken about, more information on harassment from co-workers or violent incidents were being associated with her stress. When the worker first reported her stress as work-related, however, the major contributing factors had to do with dealing with a difficult co-worker, stress from voluntarily taking a job re-location, ongoing non-compensable physical ailments, decisions made by the WCB on past claims, and the worker's concerns regarding financial security.

Review Office acknowledged the worker's initial reporting regarding the major causes of stress, but found that these were not covered by the legislation. Review Office further noted that the worker's reported fear for her safety when working with clients was not substantiated as being the result of incidents arising out of and in the course of employment but was due to her discomfort working in this environment. Review Office found that the worker's stress was not considered "arising out of and in the course of employment" and her claim was not acceptable.

On November 22 and November 24, 2016, the worker submitted further information to the WCB. On December 6, 2016, Review Office advised the worker that while the information provided was more detailed than what was already on her claim, there was no new information to warrant a change to the October 28, 2016 decision.

On September 29, 2017, an advocate acting on behalf of the worker provided additional medical information, including a September 7, 2017 report from a second clinical psychologist, and requested that Review Office reconsider their October 28, 2016 decision. By letter dated October 4, 2017, Review Office acknowledged the additional information received from the worker's advocate, but advised that no new information had been provided to warrant further consideration.

On October 13, 2017, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy As the worker was employed by a federal government agency or department, her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. 

The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.” 

Under the GECA industrial disease "means any disease in respect of which compensation is payable under the law of the province where the employee is usually employed…" 

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act ("the Act"). 

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

"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:

"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" is defined as:

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

Subsection 1(1.1) of the Act provides the following restriction on the 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) of the Act provides as follows:

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 WCB's Board of Directors has established WCB Policy 44.05.30, Adjudication of Psychological Injuries (the "Policy"), the purpose of which is to explain the way that claims for psychological injuries, including PTSD, will be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.

The Policy provides, in part, as follows:

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 assisted by a worker advocate, who made a presentation on her behalf. The worker responded to questions from the worker advocate and the panel.

The worker's position was that she suffered a psychological injury arising out of and in the course of her employment, and is entitled to compensation under the Act.

It was submitted that the worker is employed in a highly dangerous environment which can lead to PTSD. On May 17, 2011, the worker suffered a compensable back injury and was off work for almost one year. She returned to work with ongoing back restrictions, but felt physically vulnerable when working with clients due to her physical restrictions. The worker re-injured her back on January 4, 2016, when a co-worker came up and slapped her on the back. This triggered her ongoing feelings of being unsafe and vulnerable in the workplace.

It was submitted that on June 6, 2016, the worker was reassigned to a different position, which caused her anxiety to increase even more. She suffered from recurring dreams and was unable to sleep. She would have regular panic attacks with nausea and felt like she was having a heart attack. Her emotional state and anxiety increased to the point that she had been off work since June 2016.

It was submitted that the worker's involvement in a compensable accident which injured her back was a traumatic event in accordance with the requirements for PTSD as outlined in the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"). The worker thought she could deal with this as she had other incidents in the past, but her symptoms of vulnerability increased. It was submitted that the re-injury to her back triggered her feelings of vulnerability and she suffered from recurring feelings and symptoms, including horrific dreams of the incident involving the death of a client and of being chased and unable to run, and she would burst into tears for no reason.

The worker's advocate referred to internet sites and other sources, including several articles relating to the nature and development of PTSD and the high prevalence of PTSD in different occupations, in particular that of the worker. She submitted that the panel must accept that the worker is experiencing a compensable injury as a result of her workplace and that she is experiencing psychological difficulties.

It was submitted that the worker's healthcare providers have provided medical information which supports her claim for a psychological injury/PTSD. The worker's advocate quoted at some length from reports provided by the worker's original treating psychologist and her family physician. She also referred to a report from a second treating psychologist dated September 7, 2017, in which the psychologist stated that "Diagnostically, at the time of [the worker's] current treatment course she endorses symptoms consistent with a diagnosis of PTSD."

In conclusion, it was submitted that the worker's claim for PTSD should be accepted and the worker should be entitled to any and all compensation payable under the Act.

Employer's Position

The employer was represented by a senior staff member and a labour relations advisor.

The employer's position was that they agreed with the WCB's decision. The employer's representative noted that they did not intend to minimize what the worker was experiencing or minimize or take away from anything her healthcare providers had identified or diagnosed. They agreed with the WCB, however, that the worker's claim was not acceptable as a workplace injury. The representative indicated that the purpose of their attending the hearing was essentially to assist the panel by answering questions, if required.

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 psychological injury by accident arising out of and in the course of her employment. For the reasons that follow, the panel is unable to make that finding.

Based on our review of all of the evidence and submissions, on file and as presented at the hearing, the panel is satisfied that the worker's primary focus was not on events that would trigger PTSD, PTSD-like symptoms or a psychological injury caused by a traumatic event, but on issues relating to labour relations matters, stress and financial concerns, which are excluded under the Act.

While the worker identified certain details related to her job when she initially advanced her claim, she referred on subsequent occasions to additional events or circumstances which she believed contributed to her injury. The panel carefully reviewed each of these events or circumstances with her in the course of the hearing.

The panel finds that the worker essentially acknowledged in her evidence at the hearing that she had no difficulties doing her job prior to her original 2011 back injury. The worker stated that prior to her 2011 injury, "I could deal with these things without a difficulty because…I felt supported, I felt like I had my team there, and I felt physically able…" She noted that there were "a number of different things that happened, but you take that as part of your job," but that after 2011 it was different. The panel is satisfied that the worker was able to fully handle her job without any psychological injuries for several years up until 2011.

The panel accepts that the worker believed that she was more vulnerable in the work environment after 2011 due to ongoing medical problems with her back. While the panel recognizes the worker's feelings and concerns in this regard, we are unable to find that they meet the criteria for a traumatic event or psychological injury under the Act.

The panel notes that the events which the worker identified included potentially traumatic events. The panel accepts that this list includes events which were referred to by the clinical psychologist in his July 7, 2016 report to the WCB. Based on the worker's presentation at the hearing, however, the panel finds that these events would have had a minimal impact on the worker's overall psychological condition.

With respect to her back injury in 2011, the worker acknowledged that she had been hit on the back by a door at that time and had felt that this was a relatively innocuous incident; that it was not like she had been hit by a hammer.

With respect to feelings of vulnerability and the death of a client in 2015, the panel noted that the worker did not focus on this incident at the hearing. Evidence on file had indicated, moreover, that the worker did not witness or have any involvement with that incident. The worker further indicated at the hearing that while she knew the client, she did not have a close relationship with him, and that for her, it was not so much about the client as she felt empathy for those who had had to deal with the situation.

In response to a question as to what she considered to be the triggering event for her psychological injury, the worker said that it was hard to say because there were equal incidents that happened. When asked about the top three events, the worker said that she felt that her 2011 back injury was the overall start of everything. She went on from there to refer to an incident where she had asked for help to do her job and the manager had emailed the whole area and told everyone to do their job, with the result that everyone was mad at her and she ended up being off work for six weeks after that; the incident in January 2016 where a co-worker had slapped her on the back and she had started getting migraines after that; and when she was reassigned in June 2016 and ended up with panic attacks. The worker further added that "it's all triggers." She said that she felt that she was being set up to fail and described the situation as being like a constructive dismissal.

In the panel's view, the evidence shows that the worker was more traumatized by the workplace itself, than by any particular incidents.

The panel is further unable to place significant weight on the psychologists' opinions suggesting that the worker had a trauma-induced psychological condition, and is unable to find that the worker suffered from PTSD as that condition is described in the DSM-5, given our findings above, and other information on file and acquired at the hearing. 

In addition to the reports from two clinical psychologists on file, the worker advised that she had been seeing a third clinical psychologist and submitted a copy of a report from that third psychologist dated May 31, 2018 at the hearing.

The panel notes that we had much more information before us, and we find that the worker's history and focus as indicated in those reports differ from what was presented at the hearing. The evidence showed that none of the three clinical psychologists had the WCB file information available to them or the report of the other psychologists, that the opinions provided were based only on the worker's history as provided to them, without consideration of the collected evidence.

The panel acknowledges the original clinical psychologist's diagnosis of Specified Other Trauma and Stressor Related Disorder, with post-traumatic symptoms, and that traumatic events which are identified in his July 7, 2016 report are in play. Based on the evidence that is before us, however, the panel finds that those events had a minimal impact on the worker and do not meet the definition of an accident under the Act.

In conclusion, the panel finds that the worker's issues were primarily related to labour relations matters, stressful work relations with supervisors and co-workers, complaints of harassment and financial concerns, which do not fall within the scope of the Act.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a psychological injury by accident arising out of and in the course of her employment. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of August, 2018