The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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 April 5, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On October 3, 2017, the worker filed a Worker Incident Report to report a psychological injury they sustained while at work on March 23, 2016. The worker described their supervisor “…yelling at me because he asked me to do the work by hand, but I can’t do it since I have injury (sic).” The worker further described having eye difficulties, which they sought treatment for and were advised the difficulties were due to “…stress and migraine.” They further provided they had been later diagnosed with anxiety. Submitted with the Worker Incident Report was a copy of a September 18, 2017 report from the worker’s treating psychologist and the worker’s chronology of the events. The worker provided a further summary of their injury and treatment, including treatment for a previous WCB claim, to the WCB on October 4, 2017.

The WCB contacted the worker on October 12, 2017 to discuss their claim. The worker clarified the incident occurred on March 17, 2016, not March 23, 2016 as first reported. The worker further advised after they reported the incident, their supervisor apologized to them for yelling. The WCB advised the worker that while they may have felt the incident was stressful, dealing with a difficult or unpleasant manager or co-worker did not meet the definition of an accident under The Workers Compensation Act ("the Act"). The worker then spoke to the WCB to state their belief the return to work program they had been participating in due to their previous WCB claim required them to return before they had healed from that claim. The WCB again advised the worker that employment related matters did not meet the definition of an accident pursuant to the Act. The worker was advised their claim would not be accepted, which was followed by a formal letter on the same date.

The worker submitted additional information to the WCB on October 20, 2017, including internet articles related to workplace bullying. On July 19, 2018, the worker provided a further report from their treating psychologist, undated, opining the worker was suffering from “…acute on chronic anxiety/depression…” and indicating the worker was unable to work due to ongoing depression and anxiety. Also included was a January 15, 2018 description of their working conditions and a copy of the earlier October 20, 2017 submission. All documentation was provided to Review Office in order to request reconsideration of the WCB’s earlier decision to deny their claim. The worker also provided copies of reports dated June 7, 2016, August 30, 2017 and August 9, 2018 regarding medical treatment they had sought for their eye difficulties. The medical reports opined the worker may have been suffering from migraine headaches, which resulted in “eye flashes”. The worker advised the migraines they suffered were the result of stress in the workplace. On September 5, 2018, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was provided to the worker on the same date. The worker provided a further response on September 11, 2018, providing additional articles on the internet on workplace bullying.

Review Office upheld the WCB’s decision the worker’s claim was not acceptable on September 13, 2018. Review Office accepted the evidence on file supported the worker’s psychological difficulties were due to employment related issues such as difficult managers or coworkers. Such employment related issues were specifically excluded under the Act and as such, the worker’s claim was not acceptable.

On September 3, 2021, the worker submitted additional information and re-stated their chronology of the events and their treatment and requested Review Office reconsider the earlier decision. On the same date, Review Office advised the information had been reviewed; however, as no new evidence in support of their claim had been provided, Review Office would not reconsider the September 13, 2018 decision.

The worker filed an appeal with the Appeal Commission on December 15, 2021. A videoconference hearing was arranged for April 5, 2022.

Reasons

Applicable Legislation

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

The Act in effect on the date of accident is applicable.

Subsection 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.

"Accident" is defined in subsection 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.

Subsection 1(1.1) of the Act restricts the definition of accident:

The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

The archived version of WCB Policy 44.05.30, Adjudication of Psychological Injuries, ("the Policy") applies to this claim. The Policy provides that a compensable claim for a psychological injury can arise as an injury by itself with no physical injury or as a result of a physical injury. The policy deals with claims for psychological injuries arising as an injury by itself with no physical injury. The Policy explains these types of psychological injuries are adjudicated in the same way as physical injuries.

The Policy provides:

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 willful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

Worker’s Position

The worker represented themselves and provided a number of written submissions in advance of the appeal. The worker made an oral presentation at the hearing conducted by videoconference and responded to questions from the panel with the assistance of an interpreter.

The worker’s position was that their psychological injury was a result of an accident caused by verbal abuse and harassment at their workplace. The worker provided opinions from medical professionals that supported the claims of injuries related to the workplace incident.

The worker submitted that their symptoms of PTSD, migraines, vision issues, stress and depression was the outcome of a workplace incident that took place on March 17, 2016. Documents citing historical references and outcomes of bullying and harassment were provided to show comparatives to the worker’s situation.

The worker submitted that the workplace incident constituted harassment and therefore qualified as a workplace accident. They positioned that an environment of bullying and long-term harassment was evident.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the claim is acceptable. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained an injury arising out of and in the course of their employment. The panel was unable to make that finding because of the following reasons.

The event in question revolved around a request by the worker’s supervisor to physically perform a lab experiment the worker felt they were not capable of performing. The worker stated:

“ …I can show you and help you to do experiments, but I cannot use the hand to do it since WCB restriction, some chemicals I cannot handle.”

“…anxiety disorder was due to the yelling and shouting by supervisor and laboratory manager.”

“…having eye problems, I was told it was due to stress.”

The panel accepts that the worker suffered from stress and anxiety as noted by medical reports, including the September 18, 2017 report of the worker's physician, which provided:

“ …social anxiety which appears to have been triggered by the behaviour of his supervisor and his colleagues and by the fear of having a panic attack while at work.”

While the panel accepts the worker suffered from stress and anxiety, the panel must determine whether there was an accident as defined by the Act and further, in accordance with the Policy, 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.

There is a lack of evidence of any chance event occasioned by a physical or natural cause or of any discrete traumatic event capable of causing serious physical or psychological harm. The worker’s position is that the bullying and harassment they perceived themselves to be subjected to shows wilful and intentional behaviour on the part of the employer.

The panel considered the worker’s evidence as to the specific behaviours they said they were subjected to, as well as the evidence on file. While this sort of workplace talk may be considered as poor or even bad behaviour, we do not find enough 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 in the workplace during the specified period.

The medical evidence on file does not support a psychological trauma from a singular event. The worker received an immediate apology from his supervisor. The panel notes that medical reports refer to coping with “day to day” anxiety that has existed for a considerable time frame, therefore a traumatic event could not be established.

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 in the workplace and other stressors in their life during this same period.

In conclusion, based on the totality of the evidence, the panel was unable to ascertain that a compensable psychological injury occurred. The panel accepts that the worker suffered from a non-compensable anxiety disorder. The WCB policy indicates that daily pressures or stressors of work will not give rise to a compensable claim.

Accordingly, on a balance of probabilities, the panel finds that the worker did not sustain an injury by accident arising out of and in the course their employment. The worker’s claim is not acceptable.

Therefore, the appeal is denied.

Panel Members

B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of May, 2022