Decision #40/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on January 27, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On January 17, 2019, the employer reported to the WCB that the worker suffered a psychological injury as the result of an incident on December 21, 2018. The employer noted that the worker was interviewing a client who was "…displaying behavior consistent with a mental health episode" and became aggressive, which led the worker to feel unsafe. It was further noted that the worker suffered immediate symptoms of stress, including shaking, ruminating about the event, lack of concentration and poor sleep.
On January 18, 2019, the worker provided further details of the December 21, 2018 incident to the WCB. The worker also advised that on January 8, 2019, when he returned to the interview room where the incident occurred, he saw some damage to a projector and a poster, which he reported to his supervisor. In a further discussion with the WCB on January 23, 2019, the worker advised that his discovery of the damage to the room caused him to feel re-traumatized by the incident. The worker reported he had trouble focusing and noted he felt angry, shaky and confused after the workplace accident.
On February 14, 2019, the worker provided the WCB with contact information for a number of co-workers, including co-workers who interacted with him immediately following the incident. On March 1, 2019, the WCB interviewed one of the co-workers, who recalled the worker appeared "…noticeably in shock" after the incident on December 21, 2018. The co-worker further advised that she contacted the worker a few weeks after the incident to see how he was, and the worker advised he was "…still feeling pretty shaken up over the matter."
On March 5, 2019, the WCB interviewed a second co-worker, who noted the worker was visibly shaken following the incident and advised that the client who was involved in the incident was known to have significant mental illness. The co-worker added that the worker would not have been used to dealing with clients with mental health issues.
On March 6, 2019, WCB's Compensation Services advised the worker that his claim for a psychological injury was not acceptable. Compensation Services noted that the information gathered indicated the worker was relating the development of psychological difficulties to the interview he conducted with the client on December 21, 2018. Compensation Services noted that daily pressures or stressors of work and dealing with difficult, demanding or unpleasant clients do not meet the definition of an accident under the legislation and WCB policy, as there is "…no chance event, no wilful and intentional act and no traumatic event."
On July 18, 2019, the worker's union representative provided a July 3, 2019 report from the worker's treating psychologist and requested that Compensation Services reconsider their March 6, 2019 decision. The psychologist noted that the worker reported "…increased anxiety, insomnia, irritability, hypervigilance following a stressful workplace incident in December 2018." The psychologist reported that the results of her assessment of the worker were suggestive of a diagnosis of "Other Stressor and Trauma Related Disorder (Subthreshold PTSD)." The psychologist further noted that the worker reported "…occasional but distressing incidences of intrusion, avoidance, negative cognition and mood, and predominant hyperarousal," and opined that "The level of distress and impairment [the worker] is currently experiencing appears to be a result of cumulative stressful workplace experiences and exacerbated by a stressful workplace event in December 2018." On September 10, 2019, Compensation Services advised the worker that the new information had been reviewed but there would be no change to their March 6, 2019 decision.
On October 22, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decision. On December 9, 2019, Review Office noted that the worker was now claiming a cumulative injury and that the workplace incident had exacerbated pre-existing work-related issues, and returned the worker's file to Compensation Services for further investigations. The WCB obtained further information, including information from the employer regarding the damage to the interview room or projector and chart notes from the worker's family physician. On March 17, 2020, Compensation Services advised the worker that the further information had been reviewed but there was no change to the earlier decisions and the claim remained disallowed.
By letter dated May 29, 2020, the worker's union representative requested that Review Office reconsider Compensation Services' March 17, 2020 decision. The worker's representative submitted that the workplace injury was the result of an acute reaction to a traumatic event and reaffirmed that the claim should be accepted as an acute incident.
On July 9, 2020, Review Office determined that the worker's claim was not acceptable. Review Office noted the worker stated he was fearful of the client he was interviewing as the client was psychologically unwell. Review Office found, however, that the client's actions were not wilful or intentional, and the client made no threats or actions of violence against the worker. Review Office determined that the worker's emotional state supported he was struggling to deal with difficult clients, which was causing him distress, but that this reaction was specifically excluded under the legislation from being considered an injury arising out of and in the course of employment.
On July 24, 2020, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Applicable Legislation and Policy
As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of his employment or is disabled by reason of an industrial disease due to the nature of the employment is entitled to compensation.
"Accident" is defined in section 2 of the GECA to include "…a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."
Pursuant to subsection 4(2) of the GECA, a federal government employee in Manitoba is entitled to receive compensation at the same rate and under the same conditions as are provided under The Workers Compensation Act of Manitoba (the "Act").
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors. "Accident" is defined in subsection 1(1) of the Act as:
…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.
"Occupational disease" is defined in subsection 1(1) as:
…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.
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 specifically excludes from coverage psychological injuries that occur because of burn-out or the daily pressure or stressors of work 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.
The worker was represented by a union representative, and the worker and his union representative made a joint presentation to the panel.
The worker's position was that the December 21, 2018 workplace incident was a traumatic event which resulted in a unique and significant injury and fit within the definition of an accident under the legislation.
The worker described the December 21, 2018 incident in detail, the circumstances surrounding the incident, the context or environment in which it occurred, and the effect it had on him.
The worker's representative outlined their concerns with the WCB's decision, and why they believed this should be a compensable injury. The representative submitted that the WCB focused on the lack of a threat to the worker as opposed to the risk associated with his position and the situation itself. It was submitted that in the worker's position, threats are often much less subtle and rarely overt. At the time of the incident, the worker was dealing with all sorts of verbal and non-verbal cues and communications from different sources, which factored into a reasonable fear for his own safety.
The worker's representative submitted that the definitions in the legislation need to be more broadly interpreted and applied, particularly in the circumstances of this case. It was submitted that this was not a normal situation, and that proper consideration should be given to the client's case history which the worker was well aware of, the unique and unexpected nature of the client's behaviour, and the worker's inability to manage the situation in spite of his training and previous experience, all of which contributed to the perceived threat to the worker's safety and to the injury he suffered as a result.
The worker's representative submitted that the WCB relied too heavily on the worker having sought psychological care in the months prior to the incident, as opposed to all the incidences and interactions that contributed to his mindset and led to him feeling as he did. The representative noted that the workplace encourages such things as check-ups for mental well-being, and for workers to seek out help where they feel they want or need it. He submitted that there are challenges with the job and good support systems and programs in place in the workplace to deal with such challenges, but that the December 21, 2018 incident was "above and beyond." The worker was managing to perform the type of work he did up until December 21, 2018, but the incident that day was clearly the trigger for his injury.
The worker's representative submitted that insufficient weight was placed on the statements from the witnesses, who clearly said they noticed something different about the worker immediately after the accident and how he was not only psychologically, but also physically, impacted by his interaction with the client.
The worker's representative submitted that inadequate weight was also placed on the medical opinion from the treating psychologist, who clearly outlined that the December 21, 2018 incident was the leading cause of the worker's injury.
The employer was represented by an Associate Assistant Director of the department.
The employer's representative advised that he was not advancing a position in respect of this appeal, but was there to answer any questions the panel might have.
The issue on this appeal is claim acceptability. For the worker's appeal to be successful, 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. For the reasons that follow, the panel is unable to make that finding.
The worker's representative confirmed at the hearing that the worker's claim was specific to the December 21, 2018 incident, as opposed to a cumulative claim. The representative submitted that there were a number of factors which contributed to the worker's mindset, including past incidents where people performing the same work had been attacked and injured, but the December 21, 2018 incident was the trigger, and without that incident, there would have been no claim.
The worker confirmed the details of the incident in his presentation at the hearing. The panel accepts that the December 21, 2018 incident occurred as described, and that this was generally consistent with the information on file.
Based on our review and consideration of all of the information and submissions which are before us, the panel is satisfied that the evidence shows the worker was affected by the events of December 21, 2018. The panel is unable to find, however, that the incident meets the definition of an accident under the Act or the GECA.
In arriving at our conclusion, the panel acknowledges that the worker works in a difficult work environment, performing a job which can be very stressful at times.
With respect to the December 21, 2018 incident, the worker described how he had understood that the client he was to meet with was stable and compliant with his medications. As the interview progressed, however, the client was not responding to questions, became agitated and distracted and appeared to be hallucinating. The worker tried using various techniques to calm the worker, but these were not successful, and the worker eventually decided that he needed to leave the room. The worker has indicated that although he had been doing this work for several years, he had not been faced with such a situation before.
The panel is satisfied that the evidence does not support a finding of an accident as a result of a chance or fortuitous event occasioned by a physical or natural cause.
The panel is unable to find that the client's behaviour toward the worker during the December 21, 2018 interview was a "wilful and intentional act" by someone other than the worker. The Administrative Guidelines to the 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 panel notes that while the worker indicated the client was experiencing serious and very concerning mental health issues and the worker feared for his safety, the evidence does not indicate that there were overt threats, physical interactions or acts of violence against the worker. The worker said he had difficulty leaving the room, as the client had insisted that the interview proceed. The worker managed to leave, however, and was not detained by the client. The worker's representative acknowledged at the hearing that the client "did not clearly come out and threaten [the worker's] life, his health, his wellness."
The panel accepts that the client was difficult to deal with and exhibiting very unusual and concerning behaviour. The panel is not satisfied, however, that he was violent or exhibiting malice or bad faith towards the worker.
The panel is further unable to accept the worker's position that what he experienced on December 21, 2018 was an "acute reaction to a traumatic event." The panel notes that the Administrative Guidelines to the Policy clarify 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, and that such events will typically be deeply disturbing or distressing to the worker.
The panel is not satisfied that the evidence establishes that the event was capable of causing serious physical or psychological harm consistent with the acute reaction or deeply disturbing or distressing to the worker. The panel notes that the evidence indicates the worker's hands were shaking when he was in the interview room and when he left, and that he spent at least an hour after that talking to others and debriefing. He indicated that he felt significant stress and confusion for the next few days. The evidence indicates that the worker was able to continue working following the incident.
The worker further indicated that he felt re-traumatized when he went back to the interview room at work on January 8, 2019, and noticed that the lens on the projector had been scratched and a poster in the room had been damaged. While the worker assumed that the client had caused that damage, there is a lack of evidence to prove that assumption.
Based on the evidence which is before the panel and on a balance of probabilities, the panel finds that the evidence does not support the worker's position that he suffered a psychological condition as the result of an occupational exposure to an acute traumatic event in the workplace.
The panel acknowledges that the worker was affected by the workplace incident, but is not satisfied, based on the evidence and on a balance of probabilities, that the worker suffered an injury as a result of that incident. Overall, the panel finds that the incident which the worker is relying on in support of his claim involved the type of stress which is specifically excluded from coverage under the Act and the Policy.
The panel therefore finds that the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of March, 2021