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 is not acceptable. A hearing was held on August 14, 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 filed a Worker Incident Report with the WCB on February 23, 2017 for a psychological injury. The worker described three separate incidents that occurred at work, and were reported to his employer on February 16 or 17, 2017.

On March 9, 2017, a WCB adjudicator met with the worker to discuss his claim. The worker advised that he had started working for the employer in November 2015. He stated that from the start of his employment, some of the other workers would make comments to him, but he tolerated those comments and passed them off as jokes. In September 2016, however, the comments started getting worse. The worker provided further details with respect to the three incidents which were listed in his Incident Report. He noted that after he reported the incidents to his employer on February 17, 2017, he had a further discussion with Human Resources, and on February 19, 2017, they arranged to send him home. He advised that at a routine appointment with a doctor in September 2016, he requested a referral to a psychiatrist, but did not tell the doctor why he wanted the referral or that it was for work-related reasons.

On March 27, 2017, the WCB received a report from the worker's treating psychiatrist dated March 1, 2017. The psychiatrist advised that he had seen the worker on February 6 and 22 and March 3, 2017 and had diagnosed him with Major Depressive Disorder and work-related stress. He had also recommended that the worker stay off work for a period of four weeks, from February 27, 2017 to March 27, 2017, during which time he would be attending their clinic for treatment and ongoing support.

On May 26, 2017, following further discussions with the worker, interviews with some of his co-workers and a review of the formal respectful workplace investigation conducted by the employer, Compensation Services determined that the worker's claim was not acceptable. Compensation Services stated that in their view, issues related to his job duties were employment-related matters which are not included in the definition of an accident under The Workers Compensation Act (the "Act"), and issues related to difficult or unpleasant co-workers and managers are also excluded under the Act. Compensation Services determined that the situation which the worker described did not meet the WCB's definition of an accident.

On June 8, 2017, the worker asked that Review Office reconsider the Compensation Services decision. The worker stated that he felt he had been bullied at his workplace, and this had caused his depression and for him to be off work.

On June 27, 2017, Review Office determined that the worker's claim was not acceptable. Review Office found that the issue of difficult or unpleasant comments from the worker's co-workers would not be considered harassment. Review Office noted that the evidence showed that a formal investigation which had been conducted by the employer found no respectful workplace violation on the part of the co-workers. Review Office found that the evidence did not support that there was malice, bad faith or intent to cause harm. The issues which the worker was reporting did not meet the definition of an accident and were not compensable.

On October 16 and 26, 2017, a worker advisor acting on behalf of the worker discussed the worker's claim with the WCB. He indicated that the worker had related some experiences with harassment in September 2016 which he wanted the WCB to consider. The worker advisor requested that the WCB investigate and determine whether the worker's claim was acceptable pertaining to the incidents beginning in September 2016.

On October 31 and November 2, 2017, the WCB adjudicator spoke further with the worker regarding situations from September 2016 to January 2017.

On November 10, 2017, Compensation Services determined that they were unable to accept the worker's claim for a psychological injury due to harassment in the workplace in September 2016. Compensation Services found that the situation the worker described as occurring in September 2016 did not meet the WCB's definition of an accident.

On December 4, 2017, the worker advisor requested that Review Office revisit the worker's case with respect to additional workplace incidents described in a November 2, 2017 claim memo, in addition to any cumulative injury-effect caused by all of the described incidents on file. The worker advisor submitted that the interactions with the worker's co-workers, as described in the November 2, 2017 claim memo, involved malice and bad faith which was both offensive and objectionable to the worker. The worker advisor disagreed with the conclusion that the workplace incidents of January and February 2017 amounted to difficult or unpleasant comments from co-workers, and submitted that it was important to be mindful of not just the words used but also the manner in which the comments were expressed. It was submitted that the described incidents were not objectively minor or merely employment-related matters, but demonstrated "a pattern of unwarranted and unwanted comments toward the worker that caused him distress, culminating in a diagnosis of depression…"

On December 11, 2017, Review Office determined that the worker's claim was not acceptable. Based on the information provided, Review Office determined that the comments from the worker's co-workers would not be considered harassment. Review Office noted that there were no witnesses to confirm that the comments were made or that they were unwanted. Review Office did not find that the evidence supported the existence of the events which were reported as causative stressors or that there was malice, bad faith or intent to cause harm to the worker. Review Office found that the circumstances did not meet the definition of an accident under the Act and policy, and were not compensable.

On December 15, 2017, the worker advisor filed an appeal with the Appeal Commission and an oral hearing was arranged.

Reasons

The Appeal Commission and its panels are bound by 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.

"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 in subsection 1(1) 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 (the "Policy"), applies to claims for psychological injuries. Relevant portions of the Policy state as follows:

Accident

The definition of accident in The Workers Compensation Act 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.

The term a "wilful and intentional act" is defined in the Administrative Guidelines to the Policy as follows:

Wilful and intentional act 

Not every act is a wilful and intention act. A wilful and intentional act is one which involves malice or bad faith. Malice or bad faith will be found when the person committing the act actually knew, or a reasonable person would know that the act was offensive or objectionable to the worker.

Worker's Position

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

The worker's position was that the described workplace interactions/events qualify as a workplace "accident" that caused his psychological injury and his claim is acceptable.

The worker advisor noted that they stood by the evidentiary and policy arguments in their December 4, 2017 submission and requested that the panel attach weight to that submission.

The worker advisor submitted that the WCB essentially delegated their investigative responsibilities in this case to the employer by relying on information provided on behalf of the employees without verifying its authenticity. Further, it appeared that no written statements were taken from at least four individuals who were said to be directly involved in some of the described incidents and no attempt was made to contact those individuals. It was submitted that these missed opportunities affected the earlier adjudication of the worker's claim.

It was further submitted that the employer had a vested interest in the outcome of the case and was not objectively neutral. While the employer had concluded that there had been no violation of its respectful workplace policy, no documentation was supplied to demonstrate what that policy entailed. It was also submitted that the panel should view critically the documentation which the worker had provided in advance of the hearing demonstrating that the employer has a history of violating the Act by way of discriminatory acts towards employees. The documentation showed that the employer had been fined five times under section 19.1 of the Act in 2017, for discriminatory action and claim suppression. In the circumstances and given that the Policy describes how harassment-type claims are often decided by weighing credibility and plausibility due to lack of witnesses and documentary evidence, the worker advisor submitted that the worker's evidence should be preferred over that of the employer.

With respect to the worker's injury, it was submitted that beyond the medical reports on file where the diagnoses of Major Depressive Disorder and work-related stress are noted, group disability applications and the June 9, 2017 letter from the treating psychiatrist provided in advance of the hearing demonstrate that the worker has experienced long-term disability despite medication and psychotherapy, the latter of which has been provided on at least a bi-weekly basis. The worker advisor submitted that the severity of the worker's injury is indisputable.

In response to questions from the worker advisor, the worker reviewed the history of his employment with the employer, the incidents which had occurred, including ones which had been previously identified and others, how the incidents had affected him and the medical treatment he had received.

The worker advisor went on to submit that based on the available information on file, and the worker's evidence at the hearing, there was sufficient evidence to establish that the worker was harassed in the workplace and that harassment constituted a wilful and intentional act. The worker advisor submitted that it would be reasonable to find that the persons who were involved had malice and bad faith in making the comments which they did, and that the claim should be accepted.

Employer's Position

The employer was represented by two case managers. The employer provided a written submission in advance of the hearing and made an oral submission to the panel.

The employer's position was that there is no evidence that an "accident" occurred as defined in the Act, and the claim is not acceptable.

The employer's representative stated that the worker claimed to have suffered psychological injury as a result of bullying due to a series of events that took place in January and February 2017, and began as early as September 2016. The worker reported this to the employer on February 16, 2017 which prompted a full investigation by the employer. The representative noted that on completion of the investigation, it was determined in all cases that no respectful workplace violation had occurred.

The employer's representative provided a brief outline and commentary on each of the three incidents from January and February 2017 which had previously been identified, and a lunchroom incident which had reportedly occurred prior to those incidents.

In conclusion, it was submitted that there was no clear evidence of any malice or intent as described in the legislation, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to the successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment, or in other words, that his psychological injury was causally related to his job duties. The panel is not able to make those findings, for the reasons that follow.

The panel accepts that the worker has been diagnosed with a Major Depressive Disorder and stress. The panel is unable to find, however, that the worker's diagnoses are causally related to his job duties or to compensable hazards in the workplace.

The panel notes that the worker described various incidents from September 2016 forward where he felt bullied, harassed or insulted at work. In these circumstances, the question is whether the worker's psychological condition was caused by "a wilful and intentional act" which occurred at work.

The panel carefully reviewed and considered the evidence on file and as presented at the hearing with respect to each of the incidents or remarks which the worker identified. Based on our review of the evidence, the panel is unable to find that worker suffered an injury as a result of malice or bad faith or a wilful and intentional act that occurred at work.

The evidence shows that the worker was working at a remote work camp. The panel acknowledges that there are unique challenges in working at a remote work camp and that this was a frustrating work environment for the worker. The panel accepts the worker's description of his work environment as being isolated and unruly.

The worker referred to remarks made over the two-way radio which were insulting or critical of him and which he found to be particularly hurtful because they could be heard by a number of people. The employer acknowledged at the hearing that the use of language on the radio could have been more professional, but stated that kind of conduct is continuous, so occasionally workers have to be told to "rein it in." The panel accepts that a certain unruliness is not surprising at a remote construction site.

The panel is of the view that the evidence also indicates that there were certain misapprehensions or misunderstandings in the circumstances of this case, related to the general use of common colloquial expressions, which were interpreted in a literal manner by the worker. The evidence indicates, for example, that the worker was not particularly familiar with the culture at such a worksite and with various expressions which were more commonly used and usually considered to be non-offensive, and in the panel's view, not spoken with malice or bad faith.

The panel further notes that in two or three of the situations which were originally identified by the worker, it was unclear whether the person who was involved could have identified that it was the worker who was driving the vehicle in question. While the worker insisted that the speaker should have known that it was not him, the panel is unable to make such a finding after careful consideration of the location of the parties and lines of sight.

The panel attaches no weight to the documentation regarding section 19.1 breaches. The panel notes that the findings in those instances would be case specific and the panel has no information as to the facts or circumstances of those cases.

In the result, the panel finds, on a balance of probabilities, that the worker did not suffer an injury as a result of malice or bad faith or a wilful and intentional act that occurred at work. The panel further finds, on a balance of probabilities, that the worker's injury falls within the exceptions of the Act relating to stress, and is therefore not acceptable.

Based on the foregoing, the panel finds that the worker's psychological injury was not causally related to his job duties and that the worker did not sustain an injury by accident arising out of and in the course of his 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
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of October, 2018