Decision #25/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on February 2, 2021 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 March 1, 2019 indicating they suffered a psychological injury as a result of an incident at work on January 18, 2019. On the Report, the worker noted an investigation took place on January 18, 2019 by the employer that resulted in the worker being terminated on February 28, 2019 and caused the worker stress.
On March 20, 2019, a WCB adjudicator contacted the worker to discuss their claim and gather further information. The worker confirmed to the adjudicator the cause of their stress was a workplace investigation for personal conduct at work and termination. The WCB advised the worker on the same date their claim was not acceptable as psychological injuries as a result of the daily pressures or stressors of work do not meet the definition of an accident under the WCB’s legislation.
The worker requested reconsideration of the WCB’s decision to Review Office on December 2, 2019. After submitting their request, the worker provided the WCB with copies of reports from their various treating healthcare providers.
Review Office found on January 21, 2020, the worker’s claim was not acceptable. Review Office acknowledged the worker experienced stress related to their employment, however, found the stress the worker developed was a result of employment related matters and did not meet the definition of an accident.
The worker filed an appeal with the Appeal Commission on January 23, 2020. A videoconference hearing was arranged for February 2, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
WCB Policy 44.05.30 Adjudication of Psychological Injuries states:
Claims for psychological injuries will be adjudicated in the same way as claims for physical injuries. The WCB will determine whether:
• there has been an accident arising out of and in the course of employment;
• the worker has suffered an injury; and
• the injury was caused by the accident.
The definition of accident in the 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.
Some events will be accidents under more than one part of the definition. The WCB will start by looking at the beginning of the definition. If it does not find an accident at the beginning of the definition, it will continue until it either finds an accident or finds that there was no accident under any part of the definition.
Claims for psychological injuries cannot arise under the part of the definition of accident that refers to 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. That part of the definition applies to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries and so on.
Presumption Regarding Post-Traumatic Stress Disorder (PTSD)
Subsection 4(5.8) of the Act creates a rebuttable legislative presumption that may apply when a worker is exposed to a traumatic event or events and later receives a diagnosis of PTSD as described under the most recent version of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.
For claims involving PTSD, as with other psychological injuries, the WCB will consider whether there is an accident under any part of the definition. In the majority of cases, an event(s) that triggers PTSD will be a chance event caused by a physical or natural cause, a wilful and intentional act by someone other than the worker, or a "traumatic event" as that term is used in the definition of occupational disease. The WCB will most often consider a claim under the presumption when the necessary causal connection between the worker's employment and the injury is not clear.
In such cases, the Act provides that the PTSD is presumed to be an occupational disease the dominant cause of which is the worker's employment unless the contrary is proven. If there is evidence demonstrating on a balance of probabilities that the worker's employment is not the dominant cause of the occupational disease, the presumption will be rebutted. For the presumption to apply, the diagnosis must be made on or after January 1, 2016 by a physician or psychologist.
The WCB will next determine whether the worker suffered an injury as a result of the accident. People can react differently to the same situation. Not every worker who experiences the same event will suffer a psychological injury.
Like physical injuries, psychological injuries range in severity from minor to major. A specific diagnosis is not necessary in order for a psychological injury to be compensable, except under the legislative presumption regarding PTSD. The severity of the injury is a factor to consider in determining the benefits payable. It does not determine whether the claim is compensable.
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.
Psychological injuries that occur as a result of voluntary personal relationships or their breakdown will not usually give rise to a compensable claim, even if both parties are in the same workplace or met in, or as a result of, that workplace because these matters arise out of the personal relationship, not out of the employment.
As a preliminary matter, at the commencement of the hearing, the chair noted that, in their written submission to the Appeal Commission, the worker alleged bias on the part of the panel. The chair invited the worker to address this issue before proceeding with the hearing and to advise if the worker objected to the panel hearing the appeal. The worker confirmed that the hearing should proceed.
In the Worker Incident Report, the worker stated they suffered a psychological injury as a result of an incident at work on January 18, 2019, noting an investigation by the employer which took place on January 18, 2019 resulted in the worker being terminated, which caused the worker stress.
In an email to the WCB dated December 3, 2019, the worker referred to an accident that occurred on January 18, 2019 and referred to the employer’s conduct in handling discipline as being abusive and threatening. In email communications to WCB from the worker, the January 18, 2019 incident was referenced, stating that the worker’s stress was caused by the conduct of the employer in response to an incident with a co-worker. In a statement dated February 17, 2020, the worker stated that their claim followed from a threatening and traumatic incident which occurred at the workplace on January 18, 2019 and that the appeal was to determine whether the incident on January 18, 2019 qualifies as an accident.
In a statement dated December 29, 2020, the worker stated that a psychological injury was sustained on January 13, 2019, which was the worker’s actual last day on the job.
At the hearing, the worker advised the panel that the date on which they claim the psychological injury occurred was January 13, 2019, arising from the conduct of a co-worker which caused them stress.
The worker's employer did not participate in the hearing.
An incident occurred on January 13, 2019 whereby the worker placed a sticker on another employee which resulted in the other employee making a complaint to the employer. The worker described the interaction with the other employee as a “nothing” incident and felt the complaint was retaliatory. The employer conducted an investigation which concluded on January 18, 2019. The worker went on medical leave from January 21, 2019 to February 21, 2019 and was terminated by the employer on February 28, 2019, for job abandonment.
As noted above, the worker’s submissions alternately pointed to the conduct of the other employee and the conduct of the employer in dealing with the complaint of the other employee as the basis for the worker’s claim of psychological injury. However, at the hearing the worker confirmed to the panel that the claim related to the conduct of the other employee in making a complaint to the employer regarding the worker which caused the psychological injury.
The panel questioned the worker regarding the circumstances surrounding the incident with the other employee. The worker stated that there had been no other incidents with the other employee. While the worker felt there was animosity between them, the worker had not complained to the employer about their conduct. The worker felt the other employee was “out to get me”, but the worker provided no explanation or supporting evidence about the other employee’s actions, other than making a complaint to the employer on January 13, 2019, which would establish the foundation for a psychological injury. The worker stated that the other employee left the workplace while the worker was on leave so the worker could have returned to the workplace following the worker’s leave and “it would have been no big deal”.
More importantly, no medical evidence was provided which would support that the worker suffered a psychological injury as a result of this interaction with a co-worker. No medical report was provided wherein post traumatic stress disorder was diagnosed.
When questioned, the worker indicated that they “really don’t want to say anything” and they “just kinda want a decision, then I can appeal that decision”. Clearly, the worker was unwilling to discuss the circumstances surrounding the incident which the worker claimed resulted in a psychological injury.
Due to the lack of supporting evidence, particularly medical evidence, the panel could find no support for the claim that the worker sustained a psychological injury related to the January 13, 2019, incident with a co-worker. As a consequence, the claim is not acceptable.
K. Gilson, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of February, 2021