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 October 10, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on November 6, 2017 indicating that she experienced a psychological injury at work as a result of an assault by a resident that took place on July 13, 2017. In the report, the worker noted that there had been other incidents with this resident in the past, but that since this event, she has been depressed, had trouble sleeping and suffered from anxiety.

When the WCB contacted the worker on November 7, 2017 to discuss her claim, the worker confirmed the details described and that she was assaulted by a resident who had dementia. She noted that when she saw the resident again later on the day of the incident, she told the resident to stay away from her. The worker advised that on the day of the incident she mentioned it to a social worker on duty but did not mention it to anyone else as she was not comfortable discussing what happened. She also explained that she did not report it immediately to her employer as a workplace injury as she was not aware that this was something WCB could cover.

The worker indicated to WCB that she sought medical treatment from her family physician on July 19, 2017 but did not report the incident at that time as she did not feel comfortable disclosing this. The worker first spoke to her family physician about the incident and her related ongoing symptoms during an appointment in October 2017. She advised that July 13, 2017 was the last day she worked following the incident.

On November 8, 2017, the employer filed an Employer Injury Report with the WCB. The employer indicated that the worker's manager advised that the worker did not report the incident to them and that the worker was aware of the proper reporting procedure for incidents. The manager advised the employer that the resident was suffering from dementia and the specific behaviour exhibited was her way of communicating. The manager further noted that this particular workplace dealt with individuals with challenging behaviors, and staff working at the site were made aware of the potential behaviours of residents prior to applying. The employer indicated that the social worker told by the worker about the incident confirmed that the worker had spoken with her about the resident who grabbed her in a sexual manner. The social worker said the worker was advised to be firm with the resident and that the resident would stop if instructed to do so. The social worker confirmed that she then went to the work site and reminded other staff to assist in redirecting the resident's behaviour.

The employer advised that no enquiries about the worker's absences after July 13, 2017 were made until she had been away for some time as the worker was providing medical notes from her physician. The employer sent a medical assessment form to the worker's family physician on October 24, 2017 and received a response on November 3, 2017. The employer stated that they first became aware of the incident of July 13, 2017 at that time.

On November 22, 2017, the WCB received a copy of medical chart notes from the worker's family physician for the period of July through October 2017. Included was a copy of an October 18, 2017 referral to and the October 30, 2017 response from a psychiatric consultation service regarding the wait time for a referral, as well as copies of the sick notes for the worker and a copy of the medical assessment completed by the physician for the employer.

The WCB advised the worker on December 5, 2017 that her claim was not acceptable as a causal connection between her current difficulties and the incident of July 13, 2017 could not be established.

The worker's representative requested reconsideration of the WCB's decision to Review Office on March 20, 2018. Review Office returned the worker's claim to the WCB's Compensation Services on March 23, 2018 for further investigation.

The WCB obtained a report from a psychiatrist based on an assessment of the worker conducted May 16, 2018. The psychiatrist stated that the worker was suffering from Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD), Generalized Anxiety Disorder (GAD) and moderately treated Social Anxiety Disorder (SAD). Recommendations for medications were made to the worker's family physician.

The worker attended for a call-in examination with a WCB psychiatric consultant on December 4, 2018. The WCB psychiatric consultant concluded that the worker's symptoms were not medically accounted for in relation to the July 13, 2017 incident, noting the chart notes from the worker's family physician indicated that the worker had been receiving treatment for depression prior to July 13, 2017 and had been experiencing significant family stressors which would account for the current difficulties. The WCB psychiatric consultant also stated that the workplace incident of July 13, 2017 did not meet Criterion A of the Diagnostic and Statistical Manual, 5th Edition ("DSM V") for PTSD as the worker was aware of the resident's severe cognitive deficits and that the behavior was not meant in a harmful or sexual way. The WCB psychiatric consultant concluded that the worker did not have a psychiatric diagnosis in relation to the July 13, 2017 incident.

On February 7, 2019, the WCB advised the worker that there was no change to the decision that her claim was not acceptable.

On February 15, 2019, the worker's representative requested reconsideration of the WCB's decision to Review Office on the basis that the evidence supported that the worker suffered an acute reaction to a traumatic event. The worker's representative further submitted that the worker's claim should also be accepted under the PTSD presumption of the Act as the July 13, 2017 incident met the definition of trauma.

Review Office determined on April 4, 2019 that the worker's claim was not acceptable. While accepting that the resident involved in the incident with the worker did not fully understand and did not have the ability to control her actions due to her cognitive issues, Review Office concluded that a reasonable person would have believed that the resident's behaviour would be offensive or objectionable. But, Review Office also found that the worker was not injured as a result of the incident, noting that the worker advised the employer that she was experiencing depression and anxiety but did not relate it to her job duties. Further, the worker was seeking medical treatment for ongoing and increasing life stressors prior to the workplace incident on July 13, 2017. Accordingly, Review Office found that the worker's psychological symptoms were not causally related to her job duties and the claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on April 4, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Section 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 s 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.

WCB Policy 44.05.30, Adjudication of Psychological Injuries ("the Psychological Injuries Policy") 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…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.

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 WCB will accept responsibility for the full injurious result of the compensable injury.

Worker's Position

The worker was represented in the hearing by a worker advisor who provided a written submission at the hearing and made oral submissions as well. The worker responded to questions from her representative and the panel.

The worker's position, as outlined by the worker advisor, is that as a result of an assault that occurred at work, the worker experienced psychological injury. The workplace accident both caused injury and aggravated the worker's pre-existing psychological condition of anxiety and depression. As a result of the injury, the worker was unable to continue to work and sought medical attention for psychological symptoms.

The worker advisor acknowledged that the worker had a prior history of anxiety and depression but noted that she was not being treated for these conditions at the time of the workplace incident. Further, the worker advisor noted a pre-existing non-compensable condition can heighten a worker's susceptibility to new injury or to aggravation or enhancement of the existing condition, as contemplated by the Pre-Existing Conditions Policy of the WCB.

The worker advisor noted that the worker was able to work full-time and carry out her duties without restrictions or accommodation prior to the incident of July 13, 2017, and that this changed at the time of, and as a result of the assault that occurred on that day.

With respect to the issue of delay in reporting raised by the employer, the worker advisor noted that the worker did speak with a social worker at work on the day of the incident about what happened. The social worker's response to that notification, the worker advisor stated, was to downplay the significance of the event to the worker. Further, the worker advisor pointed out that it is not uncommon for victims of assault to delay in reporting, as confirmed here by the worker's psychiatrist in a report dated September 5, 2019.

The worker advisor also noted that the worker did seek medical attention within days after the incident, reporting symptoms that arose from the injury, although she did not report the cause of those symptoms to her physician at that time.

The worker advisor relied upon the provisions of the Psychological Injuries Policy defining traumatic events as events that are deeply disturbing or distressing to the worker that do not have to be objectively serious in order to qualify as an accident. The worker advisor said that the worker found the incident of July 13, 2017 sufficiently disturbing and distressing to result in the onset of her psychological symptoms.

The worker told the panel that the resident who assaulted her on July 13, 2017 had done so previously, as often as once a week, more or less, but that on that day it was different. Previous incidents did not affect or bother her because the resident had not previously touched her "private parts". She told the panel that after telling the social worker and a nurse about the incident, she finished her shift crying. The worker stated that she was uncomfortable with what happened and upset by her own reaction to it. She felt very angry and very upset, she said.

The worker confirmed that she was not comfortable in telling her doctor about what happened until several months later. She indicated that she did not even tell her husband about it at that time. When she finally told her doctor in October 2017, she did so because she was getting tired of crying and because she realized she wasn't getting better. The worker described breaking down in her doctor's office and asking him to get help for her.

The worker indicated she tried a number of treatments to address the symptoms including taking anti-depressant and anxiety medications, using sleep aids, participating in group therapy and seeking out individual counselling, but none were initially successful in addressing the symptoms that arose after the incident of July 13, 2017.

In response to the employer's comments that the worker's psychological issues were longstanding and the result of family stressors, the worker indicated that the family stresses of earlier in 2017 did not affect her ability to work, and that prior sick time taken was for issues unrelated to her mental health.

The worker's position, as summarized by the worker advisor, is that as a result of the workplace assault of July 13, 2017, she experienced psychological injury including PTSD, GAD and MDD, as outlined in the May 2018 and June 2019 psychiatric assessments.

Employer's Position

The employer was represented in the hearing by an advocate, accompanied by the employer's Chief Human Resource Officer and another human resource officer. The advocate submitted documentary evidence in advance of the hearing, which was shared with the worker, and made oral submissions. The employer representatives supported the advocate's submission and responded to questions from panel members.

The employer's position is that the evidence does not support that the worker was injured at work, but rather supports that the worker had a longstanding and pre-existing psychological condition that accounts for her absences from work since July 13, 2017 as well as before that date.

The employer's advocate noted the references in the file to the worker's prior experiences of anxiety and depression as well as the significant family stressors identified both prior to the workplace incident and thereafter. The advocate noted that the worker had prior prescriptions for anti-depressive and anxiety related medications, prescribed ongoing since 2013.

Further, the employer's advocate noted that the worker failed to tell her family physician about this incident when she attended for a previously scheduled appointment just six days later, despite the fact that this physician had previously been treating her for depression and anxiety.

The employer's advocate suggested that the resident's behaviours toward the worker were not sufficient to cause the worker to experience a traumatic reaction, and questioned how the reported symptoms of mistrust and social anxiety could arise from the incident reported.

The employer does not deny that the incident at work took place on July 13, 2017 as the worker reported, but suggested that no reasonable person would interpret the behaviour of the resident with dementia as intentionally harmful or malicious. The employer's advocate noted that subsequent to the incident, the worker told the social worker on staff about it and the social worker reminded the worker how to deal with this resident's behaviours as well as speaking to other staff and the floor manager about the incident. This was, the employer suggested, an ordinary workplace event, not capable of causing trauma or creating a psychological injury. The advocate noted that the employer has in place specialized training for all staff in this workplace to address the unique behaviours of its residents.

In sum, the employer's position, as outlined by its advocate, is that the incident of July 13, 2017 was not an intentional assault but an ordinary workplace event that was anticipated to occur. Further, it was not an accident because the resident was not capable of forming intention to carry out the behaviour and would not have understood the actions to be malicious or carried out in bad faith.

Further, even if the panel determines there was an accident, the evidence does not establish that an injury occurred. The incident itself would not account for a diagnosis of PTSD and the evidence does not support a finding of any enhancement or aggravation of the worker's pre-existing non-compensable psychological condition.

Analysis

The issue before the panel is whether the worker's claim is acceptable. 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. The panel is able to make that finding.

The first question for the panel to determine is whether there was an accident arising out of and in the course of employment. If there was no accident, there is no basis for the claim. The second question for the panel is whether the worker was injured as a result of the accident.

Was there an accident arising out of and in the course of employment?

In determining whether there was an accident, as defined by the Act, the panel must consider each part of the definition in turn. Was there a chance event occasioned by a physical or natural cause, including a wilful and intentional act that is not the act of the worker, or an occupational disease as a result of which the worker was injured?

The panel noted that the evidence does not support a finding of an accident as a result of a chance event occasioned by a physical or natural cause.

The panel considered whether the resident's unwanted behaviour toward the worker was a "wilful and intentional act" by someone other than the worker. The administrative guidelines to the Psychological Injuries Policy clarify that a wilful and intentional act is one which involves malice or bad faith, and that 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.

The Psychological Injuries Policy provides for a two-step process to determine if there was an accident as a result of a wilful and intentional act. First, determine whether the act described by the worker happened; and second, if it did happen, determine whether the act was "wilful and intentional".

In reviewing the events of July 13, 2017, the panel noted that the employer acknowledges the incident outlined by the worker did occur and that the worker informed another employee, a social worker, of what had occurred. The worker outlined the details of the incident in her initial report to the WCB as well as to treating professionals, and confirmed those details to the panel in the course of the hearing. The panel accepts that the act described by the worker happened as she described it.

Then, was the act described by the worker a wilful and intentional act? The employer's advocate suggested that because the resident who perpetrated the assault had dementia, the act undertaken by that resident could not be wilful and intentional. On questioning by the panel, the employer's advocate stated that the provision in the administrative guidelines to the Psychological Injuries Policy setting out that 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 requires that the person committing the act is capable of knowing and is a reasonable person.

The panel does not accept the employer's interpretation of this provision. While the perpetrator of this act may not have known or been capable of knowing that the act was offensive or objectionable to the worker, a reasonable person other than the perpetrator would have known that the act was offensive or objectionable to the worker.

The panel therefore finds, on a balance of probabilities, that the workplace incident of July 13, 2017 was an accident as a result of a wilful and intentional act, as defined by the Act.

Was the worker injured as a result of the accident?

The next question for the panel to consider in order to determine whether the claim is acceptable is whether the worker was injured as a result of the accident of July 13, 2017. More specifically, was there a psychological injury to the worker arising out of the workplace accident of July 13, 2017?

The Psychological Injuries Policy confirms that events can injure a worker psychologically without injuring the worker physically but excludes psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work.

In considering whether the worker experienced a psychological injury arising out of the accident of July 13, 2017, the panel considered the following: 

• The worker did not report the details of the accident to her treating physician until October 18, 2017, initially suggesting that the increase in anxiety and depression was related to her unrelated shoulder injury and then, to family stresses and concern about returning to work; 

• The worker's physician reported the worker's pre-existing history of recurrent chronic depression and anxiety, although chart notes indicate the worker was not consulting her doctor related to symptoms of depression and anxiety in the two months immediately prior to July 13, 2017; 

• In the months prior to July 13, 2017, the worker missed work on one occasion with a medical note, provided so that she could take time to attend to her children's needs following the death of their father, her long-estranged partner; 

• The chart notes and reports from the worker's treating physician after July 13, 2017 detail increasing symptoms of anxiety and depression, including difficulty sleeping, low mood, tearfulness, poor concentration and anxiety about returning to work; 

• Immediately prior to July 13, 2017, the worker was not taking any anti-depressant or anti-anxiety medication, and her most recent prescription for such medication was dated December 20, 2016 and never refilled. The worker's treating physician wrote a new prescription for anti-depressant medication on July 19, 2017. 

• Over the subsequent months, the worker's treating physician continued to adjust dosage and try different medications to address the worker's symptoms. 

• As the symptoms continued and worsened through the summer and into the fall of 2017, the worker's treating physician recognized the need for treatment in addition to prescribing medications, and referred the worker to counselling and ultimately for psychiatric assessment. 

• In a report dated April 23, 2018, the worker's treating physician outlined to the WCB that the worker met diagnostic criteria for major depressive disorder as well as numerous anxiety symptoms, and that psychiatric consultation was pending. 

• When the worker was finally seen for psychiatric assessment on May 16, 2018, she was diagnosed with post-traumatic stress disorder, major depressive disorder, generalized anxiety disorder and moderately treated social anxiety disorder. While the psychiatric resident does not make any explicit comments as to causality, it is noted in the patient history that the worker had limited prior psychiatric involvement and previously suffered from depression, in relapse for many years. Further, the resident noted that the current symptoms arose after the worker was "victim of a sexual molestation at work." 

• The worker was seen by a WCB psychiatric consultant at a call-in examination on December 4, 2018, who concluded that the worker's complaints of symptoms are not medically accounted for in relation to the accident of July 13, 2017, stating that the incident would not lead to an inability to be out in the general population or to trust people in general. The psychiatric consultant did allow that the worker described depressive symptoms and presented "…in a manner consistent with depression and irritability" but suggested that the medical chart notes suggested prior depressive symptoms and family stressors and shoulder pain as the cause. The WCB psychiatric consultant concluded there is no psychiatric diagnosis related to the incident of July 13, 2017. 

• Following a reassessment appointment on June 11, 2019 in the psychiatric clinic where she was first assessed on May 16, 2018, the assessing psychiatrist on September 5, 2019 reported that although the worker: 

"…reported a prior history of anxiety and depressive symptoms, following the assault, she experienced a worsening of these symptoms, as well as symptoms consistent with post-traumatic stress disorder. Therefore, it does seem, at least according to [the worker's] description, that her symptoms of post-traumatic stress disorder were precipitated by the assault. From the report, it seems [the worker's] symptoms of depression were in remission, and following the assault she experienced the new onset of a major depressive episode. She seems to have experienced chronic symptoms of anxiety, which worsened following the assault, therefore one would reasonably conclude that her symptoms were aggravated by the assault." 

• The worker attended for another psychiatric assessment on June 13, 2019 and in a report dated June 21, 2019, the psychiatrist indicated that based upon that assessment and the psychological measures, the worker met the criteria set out in DSM V for mild PTSD, moderate GAD and moderate MDD.

As noted above, the employer's advocate took the position that based upon the worker's history of anxiety and depression, it could not be established that the psychological injury was the result of an accident at work, but was rather a recurrence of the pre-existing condition. The panel was not persuaded by this argument.

The panel agrees with conclusion of the assessing psychiatrist set out in the report of September 5, 2019 that there was a worsening of the worker's pre-existing symptoms of depression and anxiety after the July 13, 2017 accident.

As argued by the worker advisor, the worker's pre-existing condition created a heightened susceptibility of the worker to experiencing further psychological injury. The worker told the panel that the accident of July 13, 2017 was very upsetting and distressing to her. The evidence supports that there was a change in the worker's symptoms after the accident, which resulted in her inability to continue working. Before the accident, the worker was able to work, even in context of the pre-existing condition, but afterward she was not. As well, the symptoms reported and treatment prescribed by the worker's treating physician changed after this event, and those symptoms worsened over time until the worker was able to access appropriate treatment.

The panel finds, on a balance of probabilities, that the worker did experience a psychological injury as a result of the accident of July 13, 2017. The injury occurred in the context of the worker's pre-existing conditions of anxiety and depression. In making this finding, the panel makes no determination as to the specific psychological diagnosis attributable to the accident of July 13, 2017 and therefore has not addressed the issue raised by the worker advisor as to the applicability of the PTSD presumption under the Act.

The panel determines that the worker was injured as a result of an accident arising out of and in the course of her employment, on July 13, 2017. The claim is therefore acceptable and the appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of November, 2019