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 November 15, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On September 15, 2017, the employer filed an Incident Report with the WCB for a September 11, 2017 workplace incident involving the worker, which was described as follows:

Becam (sic) ill at facility and went to [name] Hospital seeking diagnosis and treatment. Awaiting test results, possible opiate exposure.

In a discussion with the WCB on September 19, 2017, the worker advised that nine hours into his shift on September 11, 2017, he began experiencing symptoms of nausea, light-headedness, no coordination, slow motor skills, very slow speech and very slow thought process. He went and saw the on-site nurse who advised he should attend a hospital. The employer arranged for him to attend the hospital and they had someone take him there. He provided a urine sample for testing and was released. He said he was advised there was no treatment and the drug just had to work its way out of his system. The worker stated that he was not 100% sure of his exposure but assumed it came from handling a resident's mail.

On September 20, 2017, the WCB was provided with the worker's test result indicating it was negative for all substances.

The worker advised the WCB that he returned to his work on September 25, 2017. The worker later advised that his return to work was unsuccessful and he had been off work since October 18, 2017. The worker stated that he was feeling very anxious and unsafe at work. On October 26, 2017, Compensation Services advised the worker that his claim had been accepted and wage loss benefits from September 12 to September 25, 2017 were approved.

The WCB referred the worker for psychological services. On November 2, 2017, the worker's psychologist provided the WCB with a report in which he opined:

From a diagnostic perspective, with regard to mental health symptoms, diagnostic possibilities include symptoms related to Panic Disorder and Major Depression that are secondary to his enduring symptoms related to Post-Traumatic Stress Disorder (PTSD). It is the writer's opinion that he does not meet full criteria for Panic Disorder and does not appear to experience difficulties with a personality disorder…

On November 20, 2017, the worker's file, including the psychologist's report, was reviewed by a WCB psychiatric advisor, who provided the following opinion:

The file was reviewed in its entirety. Despite there being numerous references to [the worker] being exposed to an opioid, there is no medical evidence of this. In addition, the drug screen was negative. I am unable to medically account for the symptoms that [the worker] described on September 11, 2017. As such, it is determined that there is no relationship between the difficulties described by [the worker] and the workplace. There is no documentation supporting the presence of a psychiatric diagnosis related to the described incident.

There is no indication for restrictions at work or for psychological treatment.

On November 20, 2017, Compensation Services advised the worker that they were unable to relate his current symptoms to his workplace injury of September 11, 2017. Compensation Services advised that they were of the opinion he had recovered from his acute reaction to the September 11, 2017 workplace incident. Compensation Services went on to state that "There is no psychiatric diagnosis provided that meets the DSM-5 criteria that would support that the current difficulties are related to the work place. The concerns noted of negative experiences in the workplace, mistrust, anger are not compensable under the policy of Adjudication of Psychological Injuries."

On January 8, 2018, the employer's representative requested that Review Office reconsider Compensation Services' October 26, 2017 decision to accept the worker's claim. The employer's representative submitted that there was no objective evidence that the worker suffered an accident or injury on September 11, 2017 or that any of his symptoms in and around that time or beyond had any direct relationship to his work. The employer's representative noted that the medical testing confirmed there was no evidence of exposure to an opiate or otherwise. The employer had provided documentation indicating that testing is done on mail intended for the residents, and the mail which the worker had come into contact with that day came back negative indicating there was no illegal substance in or on the mail.

On January 17, 2018, a worker advisor acting on behalf of the worker provided a submission to Review Office in response to the employer's appeal. The worker's representative provided copies of articles related to the exposure to and testing for opioids, and noted that while it was assumed that the worker came into contact with a drug from handling the mail, he could have been exposed to a substance anywhere or from anything in the facility. It was further noted that the worker's symptoms were serious enough for the employer to send him to emergency and the worker did not receive testing early enough to verify the cause of his symptoms. Further submissions were received from the employer's representative and the worker's representative, and shared with the parties.

On February 13, 2018, Review Office determined that the worker's claim was not acceptable and there was no entitlement to further wage loss benefits. Review Office stated that they were unable to confirm that the worker was exposed to drugs or a harmful substance while delivering mail. Review Office further noted that the hospital report from September 11, 2017 indicated that the worker currently felt well and that the worker's urine drug screen came back negative. Review Office concluded that while the worker perceived he had been in contact with a harmful substance at work, they were unable to substantiate that this occurred, and were therefore unable to accept that the worker was injured on September 11, 2017.

On March 6, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was received and was forwarded to the interested parties for comment. On March 6, 2019, the appeal panel met to discuss the case further 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 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.

"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.

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.

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 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.

"Acute reaction to a traumatic event" is described in Part C of the Administrative Guidelines to the Policy as follows:

Acute reaction to a traumatic event

An acute reaction to a traumatic event can be an occupational disease. "Acute" does not mean immediately after the event. Rather, acute refers to the severity of the reaction, whenever it occurs.

Board Policy 44.20, Disease/General describes the meaning of the term "traumatic event" as it is used in the statutory definition of occupational disease. It states that a traumatic event "is an identifiable physical or psychological occurrence, occurs in an identifiable time frame that is normally of brief duration, is not a series of minor occurrences, and is capable of causing serious physical or psychological harm consistent with the acute reaction." These events will typically be deeply disturbing or distressing to the worker.

Worker's Position

The worker was represented by a worker advisor who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative and the panel.

The worker's position was that he suffered physical and psychological injuries that arose out of and in the course of employment on September 11, 2017 and his claim is acceptable.

The worker's representative submitted that the evidence showed the worker injured himself while performing work duties or an activity incidental to employment. The worker was approximately nine hours into his scheduled 12-hour work shift, when he suddenly began experiencing multiple concerning symptoms that affected his mobility, thought processing and communication. He promptly sought assistance from the facility staff, including an on-site nurse, and was taken to a hospital emergency room by a co-worker shortly after that.

The representative submitted that written statements which they had provided in advance of the hearing independently corroborated the symptoms which the worker reported experiencing. The representative also referred to a published report which they had provided, regarding possible exposure of law enforcement personnel and medical responders to opioid drugs, and noted that symptomatic experience of those individuals was quite similar to and relevant to the worker's experience.

It was submitted that if the panel concurred that the worker was injured in the course of his employment, the presumption in subsection 4(5) of the Act applied. The panel would then be obliged to conclude that the worker's injuries, both his physiological symptoms and his psychological illness, arose out of his employment, unless the panel was satisfied that the available evidence rebutted that presumption. The worker referred to a previous Appeal Commission decision which applied the presumption in subsection 4(5) of the Act, and asked that the panel adjudicate the worker's case in the same manner.

The representative submitted that if the panel agreed with applying the presumption, the evidence does not rebut that the worker's injuries arose out of his employment on September 1, 2017. The representative submitted that no weight should be attached to the negative urine test result for several reasons, including that the hospital doctor had said that the urine screen might not show anything and the report itself indicates that the results are presumptive and unsuitable for employment or legal purposes.

The worker's representative submitted that this was not a case of a worker merely developing commonly experienced symptoms in the course of a work shift. He submitted that the worker works in a unique environment where it is common knowledge that illicit drugs are brought in by various means, and that despite the employer's efforts to combat this problem, drugs will continue to be an ongoing challenge.

Employer's Position

The employer was represented by its Workers Compensation Specialist and Assistant Superintendent of Operations. The employer's position was that the Review Office decision that the claim is not acceptable was appropriate, and that the worker's appeal should be dismissed.

The employer's representative noted that subsections 1(1) and 4(1) of the Act set out the circumstances where claims are accepted. In applying those provisions the WCB determines whether there has been an accident arising out of the employment; whether the worker has suffered an injury; and whether that injury was caused by the accident. The representative submitted that in this case, the only element that can be established is that the worker experienced some symptoms at work on September 11, 2017; there is no evidence he suffered an accident or injury of any kind on that date, or that any of his symptoms in or around that time were directly related to the work he was doing.

The representative submitted that the worker assumed he was exposed to fentanyl from handling the mail, but there was no actual evidence of that. The urine testing, which was a comprehensive screening, was not positive for fentanyl or other opiates. The facility where the worker works does screening of mail. The Assistant Superintendent of Operations described that process at the hearing. She noted that the mail which the worker was distributing in this case was not scanned through the scanner initially, but was gathered after the worker reported possible contamination and scanned, and the results were negative for all opiates.

It was further submitted that from the employer's perspective, nothing about the handling of the mail had a direct relationship to the symptoms the worker experienced, and the worker's assertion in this regard was speculative. In spite of that, the WCB initially accepted responsibility and paid benefits based on a stress reaction to exposure to opiates.

The representative noted that the WCB authorized four sessions for the worker with a clinical psychologist. The representative submitted that the psychologist's report relating to those sessions focused more on the overall issues and negative experiences the worker was having with the workplace, and there was little reference to having been exposed to fentanyl. The representative noted that under the Policy, a psychological injury as a result of daily pressures and stressors of work does not give rise to a compensable claim.

The employer's representative asked that the panel place significant weight on the WCB psychiatric advisor's opinion, which clearly establishes that there was no medical evidence of any kind to support that the worker was even exposed to something adverse in the workplace.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. The panel is able to make that finding.

Based on our review of all of the evidence on file and as presented at the hearing and on a balance of probabilities, the panel finds that the worker suffered a short-term psychological injury in the course of his employment on September 11, 2017.

The panel finds that the worker suffered an acute stress reaction to a traumatic event, being a perceived exposure to fentanyl. The panel finds that this is supported by the symptoms the worker reportedly experienced towards the end of his shift that day, as corroborated by on-site nurse's report and the evidence of co-workers, including:

• The report of the attending on-site nurse for that day, who noted that the worker appeared "unwell, dizzy, lack of coordination, pale, thought processes not clear, subjectively felt short of breath but looked okay" and that this "Came on and gradually got worse after searching mail this evening." The nurse went on to note "R/O [rule out] fentanyl exposure-sent to hospital."

• A statement from the co-worker who drove the worker to hospital and indicated that on the way, he noticed that the worker's "speech was slurred, he had trouble getting his words out, and he sat slumped forward in the passenger seat", and that when walking to the co-worker's vehicle and into the hospital, the worker "seemed unbalanced, slow moving, and cautious", which was "very unusual behavior for him."

The panel is satisfied that the worker reasonably believed at the time that he had been exposed to fentanyl. As indicated above, the nurse decided to send the worker to hospital to rule out fentanyl exposure. Arrangements were made to have someone drive him to the hospital. The worker stated at the hearing that the on-site nurse had further indicated that his pupils were "pinned", which he was told by the emergency room physician was a sign of opioid consumption or exposure. The worker said the emergency room physician also told him that he believed "this was an opioid exposure." While the worker reported that he was feeling better when he was at the hospital, the hospital records show a diagnosis of "possible opiate exposure" and a urine sample was taken to test for exposure to fentanyl and various other opioids.

The panel finds that the worker was working in an environment where there was a real possibility of such exposure occurring. The panel notes, for example, that evidence at the hearing showed that procedures were in place to screen mail, which had been further updated following the incident with the worker, and antidotes were available at certain locations at the facility.

While the panel recognizes that workplace stress is generally not covered under the Act and Policy, the panel is satisfied that in the particular circumstances of this case, the worker's believed or perceived workplace exposure to fentanyl constituted an acute reaction to a traumatic event which falls within the definition of an "accident" under the Act.

The panel is further of the view that such an injury was likely to be of short duration, while the worker's actual exposure was investigated.

In summary, based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a short-term psychological injury in the course of his employment on September 11, 2017. The worker's claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of April, 2019