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 teleconference hearing was held on July 29, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 27, 2019, the worker filed a Worker Incident Report with the WCB for a psychological injury, with an accident date of June 3, 2019. The worker reported that:

There have been multiple incidents with aggressive people, there has been potential with weapons. I’ve had a knife pulled on me in February 2019 and since then it's been a bit of a trigger for me. The calls happen more at night (aggressive/violent) so I’ve been struggling and feeling anxious on night shifts over potential calls we go to; on top of this there's the meth crisis; and there's been an escalation of violence towards [workers] all causing me to miss time off work.

The Employer's Incident Report filed June 26, 2019 indicated the worker had been off work since June 4, 2019 "…with anxiety, feelings of apprehension with coming in to work, not sleeping well prior to shift. Worried about potential violence in the workplace and feeling unsafe," and noted the worker felt more anxiety when working after dark.

The worker was referred by the employer to a psychologist, who saw her for an assessment on June 18, 2019. The psychologist diagnosed the worker with "…the beginning stages of PTSD [post-traumatic stress disorder]" and noted several factors which the worker mentioned as contributing to her stress, including the increase in violence she was experiencing at work, a period of several months where she was being evaluated and dealing with difficult cases, a lack of consistent placement and partnering due to school demands, and a lack of leisure and recreation activities. The psychologist made several suggestions "from the employer standpoint," including that the worker be provided with a regular shift and consistent partner to alleviate any additional stress and anxiety, and that regular counselling be proactively provided as a preventative measure, particularly while she completed her schooling.

The employer provided the WCB with a copy of an incident details report relating to an event which involved the worker and occurred on February 11, 2019. On July 5, 2019, a WCB adjudicator spoke with the worker, who confirmed the information contained in the incident details report. The worker further confirmed that she did not seek medical attention or miss any time from work prior to going off work on June 4, 2019.

On July 22, 2019, the WCB received a report from a clinical social worker/therapist, who advised that she had been treating the worker with EMDR (Eye Movement Desensitization Reprocessing), which was noted to be a specialized type of therapy recommended for patients with considerable symptoms of chronic stress and/or trauma. The therapist stated that her clinical impression was that the worker's symptoms were "…within small t trauma category associated with an accumulation of work risk/stress factors (unpredictability, limited safety on the job, exposure to dangerous contexts)."

A return to work capabilities document was completed by the worker's treating therapist on July 29, 2019. The therapist recommended a graduated return to work for the worker, preferably on day shifts "…to allow for controlled, gradual, lower risk, high visibility work setting to mitigate further psychological injury" and for the worker to be given a limited number of high risk calls initially, to be increased upon reassessment in three to six months.

On September 3, 2019, the worker's file was reviewed by a WCB psychological consultant, who noted the assessing psychologist's diagnosis of "the beginning stages of PTSD." The WCB psychological consultant opined that a DSM-5 (Diagnostic and Statistical Manual of Mental Disorders) diagnosis of PTSD is "…either present or not," and that this diagnosis was not supported by the evidence on the worker's file. The WCB psychological consultant reviewed the reported triggering incident of February 11, 2019, and noted that the incident would not meet the threshold Criterion A for the DSM-5 diagnosis of PTSD as the worker "….did not experience serious injury or threat of serious injury, and did not witness serious injury or death." The consultant also opined that it was impossible to determine if the worker's symptoms were indicative of the beginning stages of PTSD or another diagnosis, as it was more appropriate to address the symptoms as present.

The WCB psychological consultant further opined that after reviewing the reports from the assessing psychologist and the treating social worker/therapist, it appeared the worker was experiencing "significant stress" related to her employment demands and personal life, along with "significant anxiety" about possible violence/injury, particularly when working night shifts, which the worker perceived to be potentially more dangerous. The consultant opined that the restrictions which were supported by the worker's assessing psychologist appeared to be associated with "…work stress, difficulty managing multiple demands, and fear of encountering potentially violent situations…" On September 4, 2019, the WCB's Compensation Services advised the worker that they were unable to accept her claim as being caused by an accident in the workplace under subsection 1(1) of The Workers Compensation Act (the "Act").

By letter dated November 29, 2019, the worker's union representative provided a detailed submission, including copies of further incident reports, and requested that Compensation Services reconsider their September 4, 2019 decision. The representative submitted that the worker's claim should be accepted because the available evidence established that the worker developed a psychological injury as a result of a work-related accident. On December 20, 2019, Compensation Services advised the worker's representative that their decision remained unchanged. Compensation Services acknowledged that the February 11, 2019 incident was "traumatic in nature," but found no evidence the worker sustained a psychological injury as a result of an "accident."

By letter January 6, 2020, the worker's union representative requested that Review Office reconsider Compensation Services' decisions. The representative relied on their November 29, 2019 submission to Compensation Services, as well as additional argument as set out in their January 6 letter.

On March 6, 2020, Review Office determined that the worker's claim was not acceptable. Review Office acknowledged that a diagnosis was not required for the acceptance of a psychological injury, but was unable to establish a causal relationship between the precipitating event or events as they related to the eventual development of the worker's psychological issues.

Review Office also acknowledged the opinion of the WCB psychological consultant that the worker's stress was related to the demands of her job, concurrent schooling and parent/family responsibilities, with the worker experiencing significant anxiety over her perception that night shifts were more dangerous than day shifts. Review Office agreed with the consultant's opinion that the restrictions as documented appeared to be associated with work stress, the worker's difficulty managing multiple demands on her time, and her fear of encountering potentially violent situations. Review Office concluded that fear related to the possibility of confrontation or perceived injury is not an injury as defined by the WCB's legislation or policies.

On March 31, 2020, the worker's union representative appealed the Review Office decision to the Appeal Commission, and a teleconference hearing was arranged.

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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides 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 further 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.

Subsection 4(4) of the Act deals with the cause of an occupational disease, and provides:

4(4) Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

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.

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

Wilful and intentional act 

Not every act is a wilful and intentional 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.

An "acute reaction to a traumatic event" is also 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.

WCB 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 her union's Workers Compensation Specialist, who relied on a written submission which was provided in advance of the hearing. The worker's representative made an oral presentation summarizing their position at the hearing, and the worker responded to questions from her representative and from the panel.

The worker's position was that the evidence establishes, on a balance of probabilities, that she developed a psychological injury as a direct result of an accident as defined by the Act, and her claim should be accepted.

The worker's representative submitted that the specific incident on February 11, 2019, where the worker's client unexpectedly pulled out a knife, held it to her own throat and threatened to kill herself, was both a wilful and intentional act and a traumatic event which constituted an accident under the Act. The representative submitted that the fear which the worker subsequently reported, of being injured by violence, was a symptom caused by the acute psychological reaction or injury she experienced as a direct result of this incident.

The worker's representative submitted that the client's wilful and intentional threats of self-harm were sufficient to justify the acceptance of her claim. It was submitted that while the worker was not threatened with physical harm, the client knew, or a reasonable person would know, that her actions would have been objectionable to the worker.

The representative further submitted that the February 11, 2019 call was a traumatic event as defined by the Policy. While there was no indication of any risk of violence or injury initially, the circumstances changed unexpectedly. The representative submitted that the incident was capable of causing serious physical or psychological harm and was undoubtedly deeply disturbing or distressing to the worker.

It was submitted that Review Office failed to appreciate the gravity or traumatic nature of the incident. The representative stated that while neither the worker nor anyone else was physically harmed as a result of the incident, physical injury is not necessary to establish a psychological injury. The representative submitted that the evidence establishes that the worker did experience psychological harm as a result of the February 11, 2019 incident. Although the worker continued to work her regular duties, she reported that she became fearful of further violence and the potential for actual physical harm through her work. The representative submitted that the worker's reaction, including avoidance of the night shift, affected sleep and negative alterations in perceptions about her safety, all indicated an unrecognized psychological injury.

It was submitted that the reports from both the assessing psychologist and treating therapist support that the worker sustained a psychological injury as a result of her exposure to occupational trauma. The representative acknowledged that neither felt the worker's presentation met the threshold for a diagnosis of PTSD, but suggested that their reports documented symptoms which met most of the DSM-5 diagnostic criteria.

The worker's representative submitted that exposure to the threat of serious injury or death, as witnessed by the worker when her client, who was in mental distress, threatened suicide, is sufficient to meet the DSM-5 diagnostic criteria for PTSD. The representative submitted that in any event, neither the Act nor the Policy requires a diagnosis to establish the occurrence of an injury or the acceptability of a claim. The existence of symptoms and restrictions, as documented by a health care provider, which are severe enough to warrant medical or psychological intervention or cause a loss of earning capacity, is sufficient to confirm the occurrence of an injury.

The worker's representative submitted that the WCB psychological consultant grossly misconstrued the available evidence. The representative acknowledged that the worker has work and personal stressors, as everyone does, but submitted that the evidence shows she was capable of effectively managing these concerns prior to the call on February 11, 2019. The representative suggested that there is no evidence to support that her psychological difficulties were predominantly attributable to non-compensable factors.

In conclusion, the worker's representative submitted that the February 11, 2019 call was a sentinel event for the worker, as a result of which she developed symptoms and restrictions that became worse over time until they required professional treatment and impaired her capacity to effectively do her job as she had done for years before. The call affected the worker profoundly and changed her view of the world. She felt increasingly vulnerable and no longer felt safe at work. This change represents an acute reaction to unexpected trauma, which demonstrates that she sustained a psychological injury, and her claim should be accepted.

Employer's Position

The employer was represented by its Workers Compensation Coordinator, who made an oral submission at the hearing. The employer's position was that they agreed with the Compensation Services and Review Office decisions that the worker's claim is not acceptable.

The employer's advocate acknowledged that the worker experienced stress and anxiety while performing her job duties, but submitted that her psychological symptoms were founded more on her fear of possible confrontation or risk of being injured in the course of her duties. The advocate submitted that the evidence suggests that the worker's self-described symptoms of anxiety, paranoia, and fear of what might occur during her shift were associated more with the general nature of her job duties, her day to day work responsibilities and general work stressors, than with a specific incident or event. It was submitted that while the worker's representative said they were dealing with one specific incident on February 11, 2019 as the catalyst for the worker's issues, the evidence supports that it was more a question of general work stressors and a worker having issues "because their plate was pretty full," trying to manage full-time work doing a job that is relatively stressful, studying and family responsibilities.

The employer's advocate noted that several factors were listed in the assessing psychologist's report as contributing to stress and the worker's psychological issues, all of which fell within the non-compensable psychological injury section of the Policy. The psychologist suggested strategies for recovery, which were more centred on the daily stressors of the worker's job than on any specific accident. The therapist's July 22, 2019 report also mentioned a number of stressors even well before the February 11, 2019 incident, and characterized all the worker's symptoms as being in the small "t" trauma category.

In conclusion, the employer's advocate submitted that the worker's claim was not about a work-related injury, but about symptoms which related to the general stressors of her job, and the Act does not provide for acceptance of a claim on that basis.

Analysis

The issue before the panel is claim acceptability. 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 her employment. The panel is unable to make that finding.

The worker's representative has argued that the panel's focus should be on the February 11, 2019 incident, which in their view constituted a wilful and intentional act or traumatic event which resulted in an acute injury. The panel is unable to accept that argument.

The panel finds that the evidence establishes, on a balance of probabilities, that the worker's symptoms and issues were predominantly due to employment-related matters, to burn-out and the daily pressures and stressors of work, all of which are expressly excluded from the definition of "accident" under the Act and are non-compensable.

The panel notes that the worker's representative acknowledged in the course of the hearing that they were not relying on the PTSD presumption in the Act and were not asking the panel to consider it, as they did not believe it was applicable. The representative did indicate, however, that they believed the incident as experienced by the worker met the requirements of Criterion A of the DSM-5.

The panel is unable to find that the February 11, 2019 incident or event constituted a traumatic event within the meaning of the DSM-5 or an acute reaction to a traumatic event under the Act and Policy. The panel is not satisfied that the evidence establishes that the event, as reported, was capable of causing or caused serious physical or psychological harm or was deeply disturbing or distressing to the worker.

In arriving at that determination, the panel notes that the evidence shows that:

• The worker continued working following the February 11, 2019 incident, performing her regular duties, and did not seek medical assistance or miss any time from work until almost four months later, on June 4, 2019; 

• The worker referred in her June 27, 2019 Worker Incident Report to multiple incidents. While the worker referred to the February 11, 2019 incident, she described it as a "bit of a trigger" for her; 

• The worker also referred in her Worker Incident Report to concerns with respect to working night shifts, the "meth crisis" and the escalation of violence towards workers generally; 

• In her June 18, 2019 report, the assessing psychologist noted several factors which the worker identified as contributing to her stress, including employment-related issues such as inconsistent placement and partnering, as well as issues the worker was dealing with in her personal life. The assessing psychologist made suggestions to the employer relating to working conditions and employment matters; 

• In her July 22, 2019 report, the treating social worker/therapist opined that the worker's symptoms were associated with the accumulation of work risk/stress factors (unpredictability, limited safety on the job, exposure to dangerous contexts).

The panel is also unable to find that the client's actions on February 11, 2019 constituted a wilful or intentional act as contemplated under the Act and Policy. In addition to the information as reported and documented on file, the worker described the February 11, 2019 call in detail at the hearing. The panel accepts that the circumstances and the client's demeanour and actions on February 11, 2019 would have been stressful and upsetting, but is not satisfied that the client's actions involved malice or bad faith. The evidence shows that the client's act in pulling out the knife and putting it to her own throat was not directed towards the worker but towards herself.

The panel further finds that the evidence shows the worker was not threatened by the client at the time of the February 11, 2019 incident. Details which were set out in the employer's incident details report noted that the client had a knife on her and was suicidal, as she put the knife to her own throat and said she was going to kill herself, but that she did not threaten the worker at any time. In her initial conversation with the adjudicator on July 5, 2019, the worker confirmed the details in the incident details report and that the client never threatened to hurt her, but said she was still scared as there was a weapon around and she had to talk to the client to try to prevent her from cutting her own throat.

In addition, the panel is not satisfied, based on the evidence, that the worker suffered an injury as a result of the February 11, 2019 incident. In this regard, the panel notes that there is limited medical information on file and that no specific diagnosis has been provided. In response to questions from the panel, the worker's representative submitted that a diagnosis was not required. The representative suggested that the documented symptoms of anxiety, fear and vulnerability were indicative of a psychological injury and a consequence of the incident, and were what he would consider to be the compensable injury.

The panel acknowledges that the Policy provides that a diagnosis is not required except with respect to PTSD. As indicated above, the panel has previously found that the worker's symptoms were predominantly due to employment related matters, to the daily pressures and stressors of work which are excluded from the definition of an accident. The panel is unable to find that the symptoms as reported and relied upon by the worker establish that she suffered a compensable injury as a result of the February 11, 2019 incident.

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 her employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of September, 2020