Decision #09/19 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that his claims are not acceptable. A hearing was held on November 20, 2018 to consider the worker's appeals.
September 11, 2014 Accident - Whether or not the claim is acceptable;
April 25, 2016 Accident - Whether or not the claim is acceptable;
February 2, 2018 Accident - Whether or not the claim is acceptable.
September 11, 2014 Accident - The claim is not acceptable
April 25, 2016 Accident - The claim is not acceptable.
February 2, 2018 Accident - The claim is not acceptable.
September 11, 2014 Accident
The worker filed a Worker Incident Report with the WCB on September 30, 2014 for a psychological injury from an incident that occurred on September 11, 2014. The worker advised the WCB that he suffered "psychological damage and stress" due to being "maliciously accused of wrong doing" and subsequently transferred to a new job location.
The worker was seen at his family physician's office on September 30, 2014 who noted the worker's subjective complaints of: "Accused of incident at work, which was not then investigated, asked to leave and now finds he is in hostile work environment. He feels very anxious, has worsening of chronic insomnia, and is finding it difficult to cope." The worker's family physician's office provided the worker with a sick note to be off work from September 29, 2014 to October 27, 2014.
On November 26, 2014, the employer provided the WCB with information that there was no malicious intent with respect to the worker's transfer and that it was done for developmental purposes. The worker was being accommodated by the employer, at his request, but it was felt that the transfer was necessary to help the worker maintain and further develop his skills. It was further noted that one of the worker's supervisors had a conversation regarding the worker with another supervisor that was further inappropriately shared with a coworker. The employer noted that it was their opinion that the coworker's behavior was against their respectful workplace policy.
The WCB advised the worker on January 7, 2015 that his claim was not acceptable. The WCB advised the worker that employment related matters were excluded from the definition of an accident under the Act. It was determined that while the worker had been transferred on a frequent basis by his employer, it was done so based on an accommodation related to the worker's personal matters. The WCB confirmed that details of a conversation were provided to a coworker and then reported to the worker but the WCB was unable to establish that would constitute harassment in the workplace.
On February 1, 2016, the worker requested reconsideration of the WCB's decision to Review Office. The worker maintained that being "wrongfully and falsely accused of wrongdoing" was a "trigger" for his psychological injury and he was continuing to suffer the effects of the injury.
The employer provided a submission to the Review Office on March 29, 2016 in response to the worker's request for reconsideration and the worker responded to the submission on April 18, 2016. Copies of both submissions were shared with all the parties.
Review Office upheld the WCB's previous decision that the worker's claim was not acceptable on April 21, 2016. Review Office determined, on a balance of probabilities, that the definition of an accident, as set out in the Act, had not been met and therefore concluded the worker's claim was not acceptable.
On November 2, 2017, the worker submitted further information and once again, requested reconsideration of Review Office's April 21, 2016 decision. Submissions were again provided by the employer and the worker and shared with the parties. On January 5, 2018, Review Office confirmed their previous decision that the worker's claim was not acceptable. Review Office noted that stress related reactions from labour relation conflicts do not meet the criteria for compensable injures under the Act. Review Office did not find any evidence of threats or harassment in the workplace against the worker and determined that a psychological injury related to the worker's job duties was not supported.
The worker filed an appeal to the Appeal Commission on April 27, 2018.
April 25, 2016 Accident
The worker filed a report with the WCB on August 10, 2016 noting a "Psychological - PTSD" injury from an incident that occurred on June 2, 2016. The worker reported suffering "psychological damage from this injury because of fraud, negligence, and intentional infliction of emotional distress." related to a decision made on a different WCB claim the worker had. A second report was filed with the WCB on August 11, 2016, also noting a "Psychological - PTSD" injury from an incident that occurred on April 25, 2016. The worker reported that he was being "punished" by his employer for non-work related issues by being transferred to another work location.
On March 29, 2017, the WCB advised the worker that his claim was not acceptable. The WCB advised that disagreement and dissatisfaction with how a WCB claim is managed, and decisions made on a claim are not matters that could give rise to a compensable WCB claim. With respect to a change in work location, the worker was advised that no medical evidence was provided that supported a diagnosis of post-traumatic stress disorder (PTSD). A previous medical opinion from 2009 provided that the worker had "developed a significant degree of medical disability as a result of the stress and anxiety created by the legal issues that he is facing" but did not confirm a diagnosis of PTSD. The worker related his psychological injury to his being relocated to a different work location. The WCB advised that his employer determines the worker's location, and that would be considered an employment-related matter which was excluded under the Act.
The worker requested reconsideration of the WCB's decision to Review Office on November 2, 2017. The worker disagreed with the WCB's decision and noted that the relocation was a "trigger" of a traumatic event to the worker.
On January 17, 2018, Review Office upheld the WCB's decision that the worker's claim was not acceptable. Review Office noted that the worker's initial psychological injury claim was based on the management and decisions made on a different WCB claim. It was Review Office's opinion that compensation would not be provided for a worker's reaction to a decision made on a claim by the WCB. It was also found that the worker's interaction with his employer during a WCB claim would also not be considered compensable. Review Office found that the worker's other claim for a psychological injury involving a relocation was related to an employment issue and did not meet the definition of an accident pursuant to the Act.
The worker filed an appeal with the Appeal Commission on April 27, 2018.
February 2, 2018 Accident
The worker filed a Worker Incident Report with the WCB on February 6, 2018 for a PTSD Injury that occurred on February 2, 2018. The worker reported a stress-related injury that occurred after being provided with a notice from his employer of a disciplinary hearing related to the worker's personal legal matters.
The worker attended at his family physician's office on February 7, 2018 where he reported "Headaches, insomnia causing increased blood sugar and increasing blood pressure, anxiety and depression causing somatic symptoms" and was diagnosed with PTSD. The treating physician recommended medication, psychotherapy and that the worker remain off work for four weeks.
On March 21, 2018, the worker was advised by the WCB that his claim was not acceptable. The WCB advised the worker that the event of receiving a disciplinary letter did not meet the diagnostic criteria for PTSD. As well, it was noted that his employer sending him a letter did not constitute an accident as defined in the Act and falls under the exclusion of other employment related matters.
The worker requested reconsideration of the WCB's decision to Review Office on March 21, 2018. The worker disagreed with the decision and felt that his claim needed to be reviewed by someone with a medical background.
Review Office upheld the WCB's decision on May 29, 2018. Review Office found that the reason the employer conducted an investigation into the worker's personal actions which led to the disciplinary hearing did not constitute a willful or intentional act or an accident as defined by the Act. Those issues were related to labour relations matters and fell within the exclusions of the Act. A causal relationship between the worker's psychological issues and his job duties could not be established and accordingly, the worker's claim was not acceptable.
An oral hearing for all three claims was arranged for November 20, 2018.
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 by the WCB.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: "… where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
Subsection 1(1) of the Act provides a definition of "accident," "occupational disease" and "posttraumatic stress disorder" as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intentional act that is not the act of the worker,
(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" 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" means Posttraumatic Stress Disorder as that condition is described in the Diagnostic and Statistical Manual of Mental Disorders;
Subsection 1(1.1) places a restriction on the definition of the term "accident" to exclude any change in respect of the employment of the worker including a promotion, demotion, transfer and lay-off, among other things. Subsection 1(1.1) states:
Restriction on definition of "accident"
1(1.1) The definition of "accident" in subsection (1) does not include any change in respect of employment of a worker, including promotion, transfer, demotion, lay-off or termination.
Board policy 44.05.30, Adjudication of Psychological Injuries, (the "Policy") sets out guidelines applicable to claims for psychological injuries. The Policy provides in part:
A compensable claim for psychological injury can arise as an injury by itself with no physical injury or as a result of a physical injury.
Claims for psychological injuries will be adjudicated in the same way as claims for physical injuries. The WCB will determine whether:
• there has been an accident arising out of and in the course of employment;
• the worker has suffered an injury; and
• the injury was caused by the accident.
Although the Policy indicates that a psychological injury can be caused by a chance event, a willful and intentional act, or an occupational disease, psychological injuries that occur as a result of burn-out, the daily pressures or stresses of work or which arise from employment related matters such as workplace discipline, promotion, demotion, and transfer, are specifically excluded. The Policy states:
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 willful and intentional act and no traumatic event.
Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.
The worker was self-represented and participated in the hearing by teleconference.
It was the worker's position that all three of his claims should be accepted and the decisions of the Review Office overturned.
September 11, 2014 Accident
With respect to the first claim, the worker submitted that he suffered from pre-existing PTSD of which his employer was aware. Despite awareness of his pre-existing condition, the worker says that the employer maliciously accused him of wrongdoing and asked him to move to a different location without any investigation into whether the worker had, in fact, committed any wrongdoing. As a result of the employer's conduct, the worker says he suffered an exacerbation of his stress levels as well as further psychological damage and stress which was a trigger for his PTSD. In his view, this constituted a compensable claim.
April 25, 2016 Accident
With respect to the second claim, the worker submitted that he sustained a psychological injury related to the management of his left knee injury claim. He had sustained an initial injury which was accepted and benefits were paid. He sustained a further injury to his left leg which he related to his original injury. The worker submitted that the recurrence was wrongly disallowed by the WCB and the WCB's decision to deny the claim caused him psychological damage.
He further submitted that he was wrongfully discriminated against by his employer and once again transferred to another location when he ought not to have been. In his view, the transfer made him appear guilty of misconduct. The move was a 'trigger' to a related traumatic event and had the effect of altering the routine that he had created to deal with pre-existing PTSD. In his view, this too ought to constitute a compensable claim.
February 2, 2018 Accident
With respect to the third claim, the worker submitted that he suffered a further stress related injury as a result of the 'egregious abuses' by his employer in the form of harassment, defamation and violations of his privacy as a result of being served with a notice of a disciplinary hearing. The worker was of the opinion that, once again, he was being falsely accused of misconduct by his employer without any investigation or inquiry. The worker considers the employer's conduct in this regard to be a willful and intentional act which has caused him trauma, as well as depression, severe anxiety, gross insomnia, increased blood pressure, increased blood sugar levels, diarrhea, and a lack of focus. In his view, the claim should be acceptable.
The employer was represented by its workers compensation coordinator. It was the employer's position that none of the three claims were acceptable.
September 11, 2014 Accident
With respect to the first claim, the employer submits that the worker did not have a claim accepted by the WCB for a diagnosis of PTSD and that the worker's claim did not meet the definition of PTSD under the Policy. In order to meet the definition of PTSD, the worker must have been exposed to one or more traumatic events specified as a trigger for PTSD, including exposure to actual or threatened death, serious injury, or sexual violence. That was not the case in this case.
Further, while the employer acknowledges that a request was made to transfer the worker and comments were made about the worker by his employer and coworkers, the employer denies any malicious intent in its conduct. On the contrary, the employer states that it was, in fact, attempting to accommodate the worker's own request to be assigned to a station with a lower call volume.
The employer further submitted that the lack of malicious intent aside, the transfers and other employment related matters about which the worker complained were specifically excluded from the definition of an 'accident' as defined in the Act. Accordingly, the claim was not acceptable.
April 25, 2016 Accident
With respect to the second claim, the employer submitted that the worker's claim for psychological injuries arising out of the way in which his WCB claim for a recurrence of his left knee injury was handled by the WCB and the psychological injuries arising from his transfer to a new station did not meet the definition of "accident" as set out in the Act. Such claims, in fact, were specifically excluded under the definition in the Act.
Even if the claims were not specifically excluded, the employer submitted that it was not clear that the worker had an established diagnosis of PTSD by an appropriate healthcare professional and the weight of the medical evidence demonstrated that the worker's psychological difficulties were largely related to legal proceedings and a criminal conviction, all of which was occurring outside of the workplace. He did not, therefore, have a compensable claim for PTSD that could be accepted by the WCB.
February 2, 2018 Accident
With respect to the third claim, the employer supported the decision of the WCB and submitted that the claim is not acceptable. It was the employer's position that the receipt of a letter from the employer notifying the worker of a disciplinary hearing does not meet the definition of an accident under the Act. It does not matter whether the receipt of the notice of discipline is considered a stand alone accident causing personal injury or a trigger aggravating a pre-existing condition as, either way, the matter was a human resources/labour relations issue that was specifically excluded from the definition of accident under the Act and, hence, was not compensable.
The employer therefore submitted that the appeal should be dismissed.
The issue before the panel is claim acceptability. For any of the worker's appeals to be 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. For the reasons that follow, the panel is unable to make that finding.
Although the worker has been diagnosed as suffering a significant degree of medical disability as a result of stress and anxiety, the evidence discloses that that psychological condition was related to certain legal proceedings in which the worker was involved and which were unrelated to his employment. Based on our review of the available medical evidence, the worker did not have an established diagnosis of post-traumatic stress disorder ("PTSD") by an appropriate medical professional, including either a psychiatrist or psychologist, and the evidence did not establish that the worker met the requirements of a PTSD diagnosis as outlined in the Diagnostic and Statistical Manual of Mental Disorders. In order to meet the definition of PTSD, the worker must, among other criteria, have been exposed to one or more traumatic events specified as a trigger for PTSD, including exposure to actual or threatened death, serious injury, or sexual violence. There was no evidence that these criteria were present in this case.
Although all three claims involve events which the panel accepts were traumatic to the worker, the fact that an event is traumatic or troubling to a worker, alone, is insufficient to establish that it constitutes an 'accident.' In order to qualify as an accident, the event must be 'a chance event occasioned by a physical or natural cause' or an 'occupational disease' being an acute reaction to a traumatic event or post-traumatic stress disorder. Cases involving issues related to labour relations or employed related issues, including transfers and discipline, are specifically excluded from the definition of a compensable accident by virtue of Subsection 1(1.1).
In this case, all of the circumstances and events about which the worker complains are circumstances which are specifically excluded from the definition of 'accident' under the Act. More specifically, stress related to management of workplace conflict and discussions about any allegations made by the worker's captain that may have been repeated in the workplace do not meet the definition of 'accident' as set out in the Act and Policy. The panel does not find that there were threats or harassment in the workplace against the worker in relation to the management of the workplace conflict or the rumours which may have circulated.
Similarly, disagreement or unhappiness with the way in which a claim is handled by the WCB does not constitute a 'chance event' that gives rise to a compensable claim.
It is clear that the worker disagreed with the transfer to other employment activities by the employer. Although this may have been traumatic to the worker, once again, this does not constitute an 'accident' as defined in the Act as it falls within the restriction on the definition of accident set out in Subsection 1(1.1).
Finally, the employer's actions in delivering a notice of disciplinary hearing does not constitute an 'accident' as defined in the Act but is, instead, a non-compensable event that falls under the exclusion set out in the Act and Policy as an employment-related matter.
Based on a review of all of the evidence before us, the panel was unable to find evidence of an acute reaction to a traumatic event that is not excluded from the definition of 'accident' under the Act and Policy. Overall, the panel finds that the matters, events, and issues on which the worker relies in support of his claim involve the types of issues that fall within the non-compensable psychological injuries exclusion and are, therefore, specifically excluded from coverage under the Act and 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 and each of the claims are therefore not acceptable.
The worker's appeal is dismissed.
K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of January, 2019