Decision #85/22 - 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 April 13, 2022 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 August 27, 2020, reporting he sustained a psychological injury on August 16, 2020. The worker related the injury to working long hours and stress from the employer. The worker also described an incident late in the evening of August 16, 2020, when the employer attended at the worker's residence and terminated his employment, and the police were called. The worker noted he had initially reported his injury in another province.
On August 27, 2020, the WCB contacted the worker to clarify where he had reported his claim. The worker advised that he had filed a claim in another province, but that his claim had been disallowed. The worker said he was told he had to file his claim in Manitoba, as he worked 75% of the time in Manitoba. The WCB also asked that the worker obtain and forward a copy of the police report for the August 16, 2020 incident with his employer.
The WCB received a Doctor First Report with respect to the worker's appointment with a family physician on August 17, 2020. The physician noted in that Report that the worker was complaining of "having symptoms related to stress at work. Unable to sleep, feeling burnt out, and tired all the time, lots of irritability, feels dull headache more frequently, unable to focus at work, getting forgetful, loss of appetite, lots of heartburn, indigestion due to stress and lack of sleep." The physician reported the worker "looks anxious and stressed," and diagnosed him with acute work related stress. The physician prescribed medication and recommended two weeks' time off from work.
On September 1, 2020, the WCB received a copy of the worker's claim file from the other province's WCB. Information in that file showed that the worker filed a report on August 17, 2020 reporting a mental health injury due to long work days and not being paid overtime. The worker also reported the employer attended at the worker's residence on August 16, 2020 and refused to leave, and the police were called. It was noted on that claim that on August 18, 2020, the employer had advised the other province's WCB that they were in the process of terminating the worker and had attended at the worker's residence to get the equipment they had provided to the worker back, but the worker refused to return the equipment and both the employer and the worker called the police. An investigation was conducted, and on August 24, 2020, it was determined that the worker's claim in that province was denied, as the worker would have to file a claim with the WCB in Manitoba.
By letter dated September 14, 2020, the employer advised the WCB that they could not complete an Employer Injury Report as no injury had been reported to them by the worker. The employer indicated the worker's last day of work with the employer was August 14, 2020, at which time they decided to terminate his employment. The employer advised they had hired a replacement for the worker, who was to start on August 17, 2020, and as the worker had indicated the earliest he could meet with the employer was August 17, 2020, the employer attended at the worker's residence on August 16, 2020 to inform the worker his employment was terminated and request the return of their equipment.
The worker provided the WCB with copies of email and text conversations between him and the employer, along with a copy of the Record of Employment he received from the employer. The WCB also received progress reports from the worker's treating family physician with respect to follow-up appointments on September 1, 2020 and October 1, 2020. In the report of the September 1 visit, the physician noted that the worker reported he was "Not feeling better, lots of fear and worries, flashback of incident (with employer) happened 2 weeks ago, lots of stress, unable to concentrate, very disturbed at night," and that she was referring him to a mental health worker. In the October 1 report, the treating physician indicated the worker reported he was feeling better, was sleeping well and his mood was better. The physician advised that the worker was willing and able to go to work as of that date.
Between October 2020 and October 2021, the WCB collected further detailed information from the worker as well as limited information from the employer. The WCB also sent numerous requests to the law enforcement agency for a copy of the police report from the evening of August 16, 2020. A copy of that report was never received by the WCB.
On October 6, 2021, the WCB advised the worker that his claim was not acceptable. The WCB noted the worker had reported work-related stress which did not meet the criteria of an accident as defined by The Workers Compensation Act (the "Act"). The WCB further noted there were differing accounts of the August 16, 2020 incident and the incident could not be substantiated.
On October 21, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker noted he was off work for six weeks due to the psychological injury he sustained as a result of the employer's actions on August 16, 2020 and he believed his claim should be accepted.
On December 13, 2021, Review Office determined that the worker's claim was not acceptable. Review Office noted that the worker's initial claim was filed due to long hours at work and stress related to work, matters which are specifically excluded under the Act and WCB policies and are not compensable. Review Office further found that the worker's claim that he was traumatized as a result of the August 16, 2020 incident where the employer attended his residence to provide him with a notice of termination of his employment and to obtain their equipment would be considered a termination or lay-off and was not compensable under the Act and WCB policies.
On January 7, 2022, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for April 13, 2022.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On June 8, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations made under the Act, and policies established by the WCB's Board of Directors. As the date of injury is identified as August 16, 2020, the applicable legislation is the Act as it existed at that time.
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, 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.
"Occupational disease" is also defined, in part, 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; or
(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 1(1.1) of the Act provides the following restriction on the definition of "accident":
1(1.1) 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 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 are to 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.
Examples or illustrations of the kinds of events that the WCB considers to be acute reactions to a traumatic event are set out in Administrative Guidelines to the Policy, in part, 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.
The worker was self-represented. The worker made an oral presentation at the hearing, and responded to questions from the panel.
The worker's position was that he suffered a psychological injury which was caused by his employer at his workplace/home as a result of his work and during his employment, and his claim is acceptable.
The worker submitted that he had never said his injury was because of his general working conditions. He said he did not make an appointment to see a doctor until Monday, August 17, 2020 in the morning, by which time the incident at his residence had already taken place.
The worker stated that his employer showed up at his residence around 10:00 p.m. on Sunday, August 16, 2020, "hammering on my door and hollering." The worker said the employer traumatized his family, and he had to use the door to push him out of the doorway of his house and called the police. The employer then backed out and parked at the end of his driveway, blocking it, and remained there for about two hours. The worker said he looked out several times to see his employer was still there, and went out a couple of times and told the employer to "get the hell out of here." He said the employer had no reasonable reason to drive a five-hour round trip to show up on his doorstep at that time on Sunday night when he had made arrangements to meet with him the next day. The worker submitted that it made no sense, and he was just really worried and really scared for his family, noting that the employer was on his doorstep, threatening his family and this "…created an extremely dangerous situation for all of us."
The worker said he was initially going to see the doctor on Monday, August 17, 2020 with respect to his working conditions and hours, but by the time things had ended on Sunday night, that was only a small part of the issue. The worker said that when he saw the doctor on August 17, about half of the conversation was about the hours he had been working, while the other half was about the incident the previous night.
The worker said that for the next couple of weeks after that, any noise would wake him up. He said he was worried, his partner was a mess, and he put extra locks on the doors and installed security lights. When he went back to the doctor on September 1, 2020, she said he was suffering from PTS. The worker said that if the WCB was unclear as to the doctor's diagnosis or whether she had diagnosed him with PTS, they should have sought clarification from the doctor or asked him to get such clarification.
The worker submitted that he was off work for six weeks as a result of his workplace injury. He said that the whole issue of the long hours he had been working and overtime for which he had not been paid might have been an underlying part of the reason he had to take the first two weeks off, but did not form any part of the reason he had to take the next month off. The worker submitted that the incident the night of August 16, 2020 caused PTS, that his injury was caused by the work and the employer, and that this was a compensable injury.
The employer did not participate in the appeal.
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 personal injury by accident arising out of and in the course of his employment. Based on our review of all of the evidence which is before us, on file and as presented at the hearing as well as subsequent to the hearing in response to a request from the panel, the panel is unable to make that finding.
The panel notes that the focus of the worker's appeal and presentation at the hearing was on the events of August 16, 2020. The evidence indicates that there was a confrontation between the worker and his employer around 10:00 p.m. on Sunday, August 16, 2020, when the employer attended at the worker's residence unexpectedly, provided him with a notice of termination of his employment and requested the return of their equipment. The worker's evidence that he used or had to use the door to push the employer out of his house is further undisputed.
The panel accepts that the circumstances where the employer attended unexpectedly at the worker's residence would be stressful and upsetting. The panel is not satisfied, however, that the evidence supports that the worker suffered an injury or accident as defined under the Act and Policy as a result of that event.
Information provided close in time to the date of accident indicated that the worker's claim was originally related to stress, long hours of work and burn-out. In the memorandum of a conversation on August 25, 2020 between the worker and the WCB in the other province where the worker originally filed his claim, it was reported that:
[The worker] indicated his claim is not about the incident that happened in the evening of August 16, 2020. It is about all the stress he felt from June 3rd onward, the high expectation, the long hours, how he was spoken to and texts and emails, entered orders, phone calls, made arrangements for pick ups and such where the drivers travelled to etc.
The Doctor First Report with respect to the worker's attendance on August 17, 2020 also notes the worker's description of the incident or injury as "work related stress, for couple of weeks." There is no reference in that report to the August 16, 2020 event. While the physician's chart notes from that attendance obtained subsequent to the hearing indicate the worker "Also mentioned anxiety related to work and relation with employer, yesterday his employer were (sic) at his door and some argument happened and he had to involve cops," the panel is satisfied that the evidence indicates that the basis for his seeking medical attention at that time was the ongoing work related stress which was identified in the Doctor First Report.
At the hearing, the worker noted that when he went back to see his doctor more than two weeks later, on September 1, 2020, his doctor said he was suffering with PTS. The worker stated that the physician said this was PTS or post-traumatic stress, and did not call it PTSD. The panel notes there is no reference to "PTSD" or "PTS" in the Doctor First Report or progress reports from his treating physician. Each of those reports refers to a diagnosis of "acute work related stress," with the physician advising by October 1, 2020 that the worker had recovered and he was able to go to work. Copies of the treating family physician's chart notes from August 17 to October 1, 2020 obtained subsequent to the hearing similarly identify the diagnosis as work-related stress and make no reference to "PTSD" or "PTS". The panel is unable to find that the worker was diagnosed with PTSD or "PTS".
As indicated above, the definition of accident and occupational disease under the Act excludes "stress, other than an acute reaction to a traumatic event." Based on the evidence which is before us, the panel is unable to find that the worker suffered an acute reaction to a traumatic event as a result of the August 16, 2020 event.
At the hearing, the worker described how the event on August 16, 2020 traumatized him and his family, how he felt threatened, that his family was in danger and he was really worried and scared. The worker further indicated that he thought the employer was irrational and unpredictable and he did not know what the employer would do.
The panel acknowledges the worker's evidence in this regard, but is of the view that the information on file and the worker's description of the incident suggest that he was more engaged in the confrontation with his employer and angry, than fearful.
In particular, the panel notes that information on file includes a number of text messages the worker sent to the employer following the event on August 16, 2020, while the employer "was sitting at the end of my lane…" The texts of the various messages include:
Hey cops will be soon. Get yourself a good lawyer your going to need one. I'm going sue you for damages…
Showing up at 1030 on a Sunday night to Terminate after you where asked to provide WCB forms so I can apply for stress leave cause by your behavior. Just how stupid are you? Labor board is going to have a heyday with you a******.
Was just going to be labor board. Going to be much more now. Now be coming after you for damages as well as damages for creating the situation for my [family]…
The worker confirmed at the hearing that he had sent those texts, noting he just wanted the employer to be gone. In the panel's view, those messages are confrontational and inconsistent with the worker's position that he felt threatened and afraid for himself and his family. The panel would have expected that someone who felt threatened by another would not want to antagonize that other person or do anything that might escalate the situation further.
The panel finds that the comments in the worker's last text of the evening seem especially at odds with his stated fear for himself and his family, with the worker texting "Where'd you go? The cops are coming. I'm going charge you with trespassing and home invasion." The panel would not expect a person to send such a message to someone he perceived to be irrational and a threat to himself and his family.
When it was put to the worker at the hearing that it seemed odd someone would send such a message to a person if they were worried about the person's motivations, the worker responded:
Well, I don't know…I was angry and I wanted him the hell out of there. I was worried about him, I wanted him off the end of my property because he's still terrifying my family…I just wanted him gone.
In conclusion, the panel finds that the evidence establishes, on a balance of probabilities, that the worker's symptoms and issues did not arise out of and in the course of employment but were predominantly due to employment-related matters, to burn-out and to the daily pressures and stressors of work, all of which are expressly excluded from the definition of accident under the Act and Policy and are non-compensable.
The panel therefore finds, on a balance of probabilities, that the worker did not suffer personal injury by accident arising out of and in the course of his employment, and the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of July, 2022