Decision #96/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on September 3, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on June 15, 2017 reporting a psychological injury sustained at work on May 15, 2015. The worker indicated on the Report that some of his co-workers made belittling comments to him regarding his work ethic and ability to perform his job duties. As a result, the worker claimed his blood pressure went up, he had difficulty sleeping, and he developed anxiety and headaches that required medical treatment. The worker further noted that he discussed his concerns with the employer's human resources department in October 2016.
The WCB met with the worker on July 12, 2017 to discuss his claim. The worker confirmed that the co-workers’ actions he described as “bullying” had been ongoing for approximately 2 years, from May 2015 to September 2016. The worker also provided details of a specific incident with a co-worker that occurred on September 29, 2016. He reported that on September 30, 2016, his supervisor came to the worksite and advised the worker he should seek medication attention, as based on a report the worker was “…unbalanced, delusional and hallucinating” it was thought he might have had a stroke. The supervisor advised that a doctor’s note would have to be provided before he could return to work. The worker reported this was the last day he worked for the employer. He also reported that he attended a meeting at the employer’s office on October 3, 2016 with representatives of the employer and his union but he was not aware of the outcome of that meeting. The worker confirmed that he had been working seasonally for the employer since 2002 and that other stressors in his life at that time included finances and his spouse’s health concerns.
The worker provided the WCB with a package of materials for review, including his notes regarding incidents that occurred between himself and coworkers, statements from co-workers and his son regarding the September 30, 2016 incident, and letters from legal counsel for both the worker and the employer. These materials also included a May 16, 2017 referral to a psychologist from his treating family physician, in which the family physician noted the worker had a “Long history of workplace stressors. Has not had employment from September 2016” and that the worker was seeking endorsement for stress leave. The document indicated suspicion of clinical depression and that the worker was under medical management for same.
On August 15, 2017, the WCB discussed the worker’s claim with the employer’s human resources (“HR”) manager. The HR manager advised that on October 2, 2016 the worker reported to her his concerns about how he was being treated by some of his co-workers but was vague, did not provide details about the treatment and suggested that she speak to those co-workers. The HR manager advised she interviewed the co-workers the following day and confirmed that they provided statements regarding the September 30, 2016 incident. The WCB requested the employer provide a report setting out the information and on September 11, 2017, the HR manager provided the WCB with a copy of letter dated April 5, 2017 to the worker’s union representative along with her notes on the discussions that took place in October 2016 regarding the worker’s complaint.
Between September 2017 and January 2018, the WCB attempted to gather further information from the worker’s family physician and union representative. On January 31, 2018, the WCB spoke with both the worker’s union representative and legal counsel for the union. Information was requested from the legal counsel and was received on March 13, 2018.
On July 3, 2018, the WCB spoke with one of the worker’s co-workers who had provided a statement to the worker’s union representative. The co-worker could not provide specific details regarding other co-workers and their treatment of the worker but noted her belief that the worker was “…mistreated on the job site by the [supervisor].” The co-worker stated that she drove the worker from the jobsite on September 30, 2016 and noted he “…seemed fine to her” that day.
The WCB made a further attempt on July 13, 2018 to obtain information from the worker’s treating family physician.
On August 15, 2018, the worker was advised that his claim was not acceptable. The WCB noted that several attempts were made to obtain medical information from the worker’s family physician but, as that information had not been received, it could not establish that the worker sustained an injury as defined by the Act.
On September 24, 2018, the worker submitted a chronology of the events along with copies of the co-worker statements he previously provided to the WCB for reconsideration of the decision to deny his claim.
On December 5, 2018, the WCB advised the worker that the information submitted was reviewed but as no new information had been provided there would be no change to the decision that his claim was not acceptable.
The worker requested reconsideration of the WCB’s decision to Review Office on December 10, 2018. Along with his request, the worker provided a handwritten submission and requested further investigation into his claim. On January 24, 2019, Review Office determined that the worker’s claim was not acceptable. Based on the information in the worker’s file, Review Office found the worker stopped working in September 2016 due to an employment-related matter and further, that the events that led up to the incident did not meet the definition of an accident under the Act. Further, Review Office found the worker delayed in filing a claim with the WCB, as he indicated his psychological issues began approximately in May 2015 but did not file a claim until June 2017, which made gathering evidence and investigating the claim more difficult.
A WCB medical advisor, at the request of the WCB, contacted the worker’s treating family physician on April 24, 2019 to request chart notes from the physician’s treatment of the worker. These were provided on May 3, 2019. The worker’s file including the chart notes was reviewed by a WCB psychological consultant on June 20, 2019. The consultant noted the treating physician provided chart notes and a brief summary of the worker’s treatment from January 2017 to October 2017. The worker was noted to present on January 10, 2017 as being “…distressed in relation to being fired from work…” and “…harassed by a coworker/supervisor”. The physician queried a diagnosis of an adjustment disorder with depression. The WCB psychological consultant provided a summary of the chart notes and concluded that while there was some information to support that the worker was experiencing an Adjustment Disorder with depressed mood and anxiety between March 2017 and October 19, 2017, there was “…no medical documentation to support the presence of any psychiatric diagnosis after October 19, 2017.” The WCB consultant further noted that the stressors that appeared to relate to the worker’s symptoms in 2017 “...were several significant life stressors, as well as anger and frustration related to the past actions of coworkers and the results of mediation.”
On July 31, 2019, the WCB advised the worker the medical information was reviewed but did not support a finding that he sustained an accident as defined in the WCB legislation and therefore the claim was not accepted.
On August 27, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. He noted the lack of medical evidence prior to 2017 but referred to medical evidence that did support his psychological injury began in 2015. He provided copies of statements from coworkers. On August 28, 2019, Review Office requested a narrative report from the worker’s treating family physician and after receiving a written authorization from the worker, on November 12, 2019, the physician provided Review Office with chart notes from 1998 to 2016. The chart notes from January 20, 2015 to November 15, 2016 were provided to a WCB medical advisor on November 25, 2019. The medical advisor reviewed the documents and found no reference to harassment in the workplace or psychological difficulties noted.
On November 27, 2019, Review Office determined the worker’s claim was not acceptable. The worker filed an appeal with the Appeal Commission on May 5, 2020. A teleconference hearing was arranged and took place on September 3, 2020.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) 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,
(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;
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work.
The WCB has established Policy 44.05.30 Adjudication of Psychological Injuries (the “Policy”) to provide guidance on how it will determine whether a psychological injury or illness arose out of employment. The Policy sets out that such a claim will be assessed in the same way as a physical injury claim. First, the WCB will determine whether there has been an accident arising out of and in the course of employment. Then it will consider if the worker has suffered an injury and whether the injury was caused by the accident.
The Policy outlines the definition of accident in the Act and states that a psychological injury can be caused by a chance event, a wilful and intentional act or the injury can be an occupational disease (including an acute reaction to a traumatic event or post traumatic stress disorder). Any of these events can injure a worker physically but also can injure a worker psychologically without injuring the worker physically. The Policy specifies that 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 as 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. Further, the Policy excludes discipline, promotion, demotion, transfer or other employment related matters from the definition of accident.
The worker appeared in the hearing on his own behalf. He made an oral submission outlining his position and answered questions posed to him by members of the appeal panel.
The worker’s position is that as a result of harassment and bullying by his colleagues and directed toward the worker, that took place in the workplace leading up to and on September 30, 2016, he suffered injury including sleep disturbance, shock and emotional damage. The worker believes that his psychological injury is the direct result of the events that took place in the workplace and that WCB should therefore accept his claim. The worker outlined to the panel his belief that there was not a sufficient investigation into his allegations of harassment and bullying in the workplace. He described feeling guilt over what happened and its impact on his whole family. He described his condition as increasingly debilitating sickness and stated he is still in a “black hole” today as a result of the workplace harassment experienced and the failures of those who were to be supporting him in investigation of his concerns.
On questioning by members of the panel the worker described in greater detail the events of September 30, 2016 and the days following. He noted that he felt fine on September 30, 2016, having worked on site all week, and that no one had asked him any questions about his health until the point when he was told to leave work to seek medical attention. The worker confirmed that he provided information to the employer, at its head office, a few days later and suggested that there should be an investigation into the bullying and harassment he experienced.
On questioning as to the nature of harassing treatment experienced, the worker described being told by his supervisor that he didn’t know how to do his job properly. He described observing conversations among coworkers who made “smirky, snide remarks” that he took to be about him. He said he was belittled about his ability to do his job by a number of coworkers and his supervisor over the 2015 and 2016 seasons.
After leaving work on September 30, 2016, the worker described himself initially in shock over what had happened, and later as physically, mentally and emotionally broken. He noted that the stress and pressure from this situation was a burden upon him.
In closing the worker reiterated his desire that an investigation into his allegations would take place and that it would address why he was targeted.
The employer did not participate in the appeal.
In order to find that the claim is acceptable, the panel must determine both that there was an accident in the workplace, as defined by the Act and that the worker was injured as a result. For the reasons that follow, the panel was not able to makes such findings.
The panel noted that the worker did not make a claim to the WCB until June 6, 2017, and at that time related the injury to events that occurred during the summer and early fall of 2016. As noted by the Review Office, such a delay in bringing his claim only adds to the difficulty in the investigation and adjudication of his claim.
The file reveals that the WCB did make efforts in the investigation of this claim. While the worker’s position is that inadequate investigation has taken place, a review of the file documents reveals that the WCB made persistent efforts to obtain medical reports from the worker’s treating physician, obtained information from the worker and his union, the employer and the worker’s colleague, as well as from legal counsel both for the union and the employer.
In considering whether there was an accident as defined by the Act and in accordance with the Policy, the panel must consider whether the evidence supports a finding that there was a chance event, a wilful and intentional act or an occupational disease, including an acute reaction to a traumatic event or post traumatic stress disorder.
Here there is no evidence of any chance event occasioned by a physical or natural cause. There is no evidence of any discrete traumatic event capable of causing serious physical or psychological harm. The worker’s position is that the course of bullying and harassment he perceived himself to be subjected to over the course of the 2015 through 2016 reflects wilful and intentional behaviour on the part of the employer and the coworkers.
The panel considered the worker’s evidence as to the specific behaviours he said he was subjected to, as well as the evidence on file from his colleagues and the employer. While this sort of workplace banter may be considered as poor or even bad behaviour, we do not find any evidence to support that it meets the definition of a wilful and intentional act done with malice or bad faith. At most, the panel finds that the worker was poorly treated by his colleagues in the workplace during the specified period.
The panel also considered the evidence relating directly to the worker’s claim that he incurred a psychological injury as a result of the workplace harassment and bullying he was subjected to.
A review of the medical chart notes from the worker’s treating family physician during the period of 2015 through 2016 indicate the worker did reference his work from time to time, but the notes do not reveal any complaints regarding the worker’s mental health or workplace concerns, as confirmed by the WCB medical advisor in an opinion dated November 25, 2019. The medical reporting does confirm that the worker experienced symptoms of depression in January 2017. At that time he presented to his family doctor as distressed in relation to losing his job. In a subsequent visit to his doctor on March 22, 2017, the worker requested he be placed on stress leave, and at that time attributed his condition to workplace stressors as well as his spouse’s severe illness, financial strain and concern for his adult children. The worker’s physician documented that the worker on June 13, 2017 expressed frustration and attributed his anxiety and increasing insomnia to a labour mediation process that had just occurred.
The WCB psychological consultant who reviewed the worker’s file on June 20, 2019, concluded that while there was some information to support the diagnosis of an Adjustment Disorder with depressed mood and anxiety between March 2017 and October 19, 2017, there was “…no medical documentation to support the presence of any psychiatric diagnosis after October 19, 2017.” The WCB consultant also noted that the stressors that appeared to relate to the worker’s symptoms in 2017 “...were several significant life stressors, as well as anger and frustration related to the past actions of coworkers and the results of mediation.”
The Policy, in describing what is required to establish a psychological injury arising out of a workplace accident, specifically excludes psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work as “...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.” Further, the Policy goes on to state that matters of discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.
Here the evidence on file and outlined in the worker’s testimony suggests that the cause of the worker’s psychological condition cannot be related to a workplace accident, as outlined above, but rather relates to the worker’s response to the combination of poor treatment by colleagues and the other significant stressors in his life during this same period including the serious illness of his spouse as well as financial and family stressors.
In sum, the totality of evidence on file and provided by the worker does not establish, on the standard of a balance of probabilities, that there was an accident arising out of and in the course of the worker’s employment. Therefore, the claim is not acceptable.
The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of September, 2020