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 videoconference hearing was held on July 19, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On March 12, 2021, the worker submitted a Worker Incident Report to the WCB reporting a psychological injury that occurred at work on March 11, 2021. The worker described several incidents in the Report, noting in part as follows:

Issues have been going on for a while. 

I noticed I can't handle the manipulation, the safety issues and the pornography. 

… 

I get sad at work and I go home and I'm angry, irritable, impatient, increased drinking alcohol. Depression, feel unwell, not sleeping, if I do sleep I have nightmares. Angry all the time. 

I feel sick and dizzy when responding to incidents that are happening at work…

The WCB received a March 11, 2021 Doctor First Report from the worker's family physician, which noted a diagnosis of stress. The physician recorded the worker was experiencing increased work-related stress and problems with harassment by co-workers at work. The physician noted the worker's report of poor sleep, no appetite, and being teary, that she could not continue with her current work position and needed counselling support, and queried whether this could be arranged through the employer's care plans.

On March 16, 2021, the WCB spoke to the worker about her claim. The worker explained that her claim was "based on an accumulation of stressors in her workplace," and provided further details of the incidents she described in her Worker Incident Report. When asked about her symptoms, the worker reported they "…have gotten worse and worse lately" and indicated she had bad dreams "…not necessarily about work, but also about herself in dangerous situations such as someone chasing her." The worker advised she had not had previous psychological difficulties and had not been diagnosed with depression or anxiety. The worker further indicated that she would be agreeable to the WCB referring her to a psychologist.

In a March 17, 2021 report, the worker's family physician noted the worker reported the stress was severe and she had been unable to go to work since March 11, 2021, and indicated that she was not capable of alternate or modified work.

On March 24, 2021, the Employer submitted an Employer's Incident Report to the WCB. The employer noted that the worker "…indicated that mutliple (sic) small incidents at work have caused her mental health/stress issues. Her physician has recommended that she take time away from work."

On May 5, 2021, the WCB received a report from the treating psychologist, who noted she had met with the worker for an initial appointment on April 14, 2021 and two additional appointments on April 19 and April 28, 2021. The psychologist noted the worker reported she began experiencing symptoms in November 2020 after three co-workers were terminated due to disciplinary issues. The psychologist noted the worker reported she began to experience difficulties "coping with culture of her workplace", including several matters or actions involving some of her co-workers, and that due to these issues she began to notice she was feeling "…angry all the time and her motivation to be at work was significantly reduced." The psychologist noted the worker had developed symptoms of Panic Disorder without Agoraphobia, including episodes of shortness of breath, increased heart rate, difficulties concentrating/ thinking, and sweating, and that the worker had reported these symptoms did not have a specific identified trigger and occurred both while at work and at home. The psychologist also noted the worker described some symptoms of trauma related to an incident at work, including occasional nightmares and intrusive thoughts about the incident, but that this did not appear to be the worker's primary concern.

The psychologist opined that diagnostically, the worker was presenting with symptoms of Panic Disorder without Agoraphobia, as well as some symptoms of an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to the workplace related stressors. She added that the worker might also be experiencing some subclinical symptoms of psychological trauma related to a suicide attempt she was called to respond to at work, but again noted that this did not appear to be her primary clinical concern at this time.

On May 12, 2021, the WCB advised the worker that her claim was not acceptable. The WCB found that the worker's difficulties were primarily related to employment-related matters and the claim was therefore not compensable through the WCB.

On May 22, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that she suffered from "severe panic attacks" which only occurred when she was getting ready for work, leaving her house for work, or in the parking lot at work prior to her shift. The worker described the attacks as being debilitating and leaving her "…gasping for air, sweating, heart racing, mind starts racing between work threats and my own health at the time, and they can last quite a while, approximately 20 minutes or more." The worker also noted she continued to suffer from those attacks and to require treatment and benefits.

On June 9, 2021, Review Office requested further information from the employer. On June 14, 2021, Review Office spoke with the worker, who confirmed she had not provided details of any specific incident when she initially filed her claim with the WCB or reported any mental health issues prior to filing her claim.

On June 21, 2021, the employer responded to the WCB's request for information by e-mail, confirming the worker had not reported mental health concerns or filed any internal reports related to any such concerns prior to submitting her claim to the WCB. The employer advised that the worker had contacted them on June 14, 2021 to discuss some of her issues and the incidents that had occurred, and provided the WCB with a copy of the e-mail the worker had sent them on that date. A copy of the employer's June 21, 2021 e-mail was provided to the worker the following day, and the worker responded to that e-mail on June 29, 2021.

On July 6, 2021, Review Office determined that the worker's claim was not acceptable. Review Office noted the information the worker provided when she first filed her claim related to increased work-related stress, problems with harassment, and the work environment in general. Review Office acknowledged there were significant differences in the weight of information the worker gave as to the cause of the decline in her mental health since the start of her claim. Review Office placed more weight on the information provided by the worker and treatment providers in close proximity to March 11, 2021 when she filed her claim and sought treatment. Review Office found that while the worker had been exposed to a traumatic event in early 2020, evidence of a psychological injury occurring at that time or a causal relationship to her current mental health status was speculative based on the claim information and medical documentation on file. Review Office concluded that the occupational/workplace environment and employment-related matters which the worker reported as having led to a decline in her mental health were matters of general stress and not compensable.

On March 16, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker is employed by a federal government agency or department, her 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 their 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 who is usually employed 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 "WCA").

The Appeal Commission and its panels are bound by the WCA, regulations and policies of the WCB's Board of Directors. The provisions of the WCA in effect as of the date of the worker's accident are applicable.

Subsection 4(1) of the WCA 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 WCA 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, 

(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 defined 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.

Subsection 1(1.1) of the WCA 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.

Subsection 4(4) of the WCA deals with the cause of 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.

Subsection 4(5.8) creates a rebuttable presumption with respect to post-traumatic stress disorder, and states:

4(5.8) If a worker 

(a) is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder; and 

(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist; 

the post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.

The Board of Directors has established WCB Policy 44.05.30, Adjudication of Psychological Injuries (the "Policy"), the stated purpose of which is to explain the way that claims for psychological injuries are to be adjudicated, and the reason some types of psychological injuries will not give rise to a compensable claim.

Under the heading of "Non-Compensable Psychological Injuries", the Policy provides, in part, as follows:

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 described in Part D of the Policy, "Administrative Guidelines", 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.

Worker's Position

The worker was represented by a worker advisor, who submitted additional documentation in advance of the hearing and made a presentation to the panel. The worker and her representative responded to questions from the panel.

The worker's position, as outlined by her representative, was that the trauma she faced on a regular basis at work caused a psychological injury to the worker and her claim should be acceptable.

The worker's representative submitted that the worker received a diagnosis of Posttraumatic Stress Disorder ("PTSD") and Adjustment Disorder with depressed mood after she was admitted to a hospital mental health program. The representative noted that in a letter of support dated March 14, 2022, provided in advance of the hearing, the treating psychiatrist outlined how the worker met the criteria of the Diagnostic and Statistical Manual of Mental Disorders, 5th edition ("DSM-5") for the diagnosis of PTSD. The psychiatrist attributed the worker's PTSD to the traumas the worker experienced at work, mentioning one specific incident related to a suicide she had to video record, but also mentioning many similar incidents which the worker had experienced over her career, and indicated the worker was unable to work as a result of that diagnosis. The representative submitted that the presumption under subsection 4(5.8) of the WCA with respect to PTSD should therefore apply.

The worker's representative submitted that more weight should be attached to the opinion of the treating psychiatrist than to the May 5, 2021 report from the psychologist. The representative submitted that as opposed to the psychiatrist who had assessed the worker over a period of days and treated her in follow-up, the psychologist only evaluated the worker for three out of four approved sessions and overstepped her role by appearing to adjudicate the claim instead of acting as a treating psychologist. The representative submitted that although multiple suicides and exposures to scenes involving death or serious injury were detailed on file, the psychologist did not examine any of these significant traumatic stressors as a contributing factor to the worker's symptoms, and her medical assessment was therefore highly speculative.

The worker's representative submitted that the WCB failed to consider that symptoms may not manifest themselves right away or that other symptoms which may manifest are actually attributable to the trauma. The representative submitted that other issues which the worker reported were not normal workplace stressors for her, but a symptom of her PTSD and adjustment disorder resulting from the trauma. The representative further submitted that these other factors were insufficient to rebut the PTSD presumption under the WCA.

The worker's representative further submitted that if the panel did not accept the PTSD diagnosis, the accident definition of a "wilful and intentional act" would apply. The representative submitted that the suicide the worker reported was a major event which seemed to have started the decline in the worker's mental health, and fell within the category of a wilful and intentional act. The representative noted the WCB restricted their adjudication to the items listed in the Incident Report. Only one of the many traumatic events the worker had witnessed was noted, and the WCB failed to consider whether the large amount of traumatic events or the totality of events the worker witnessed also contributed to her presentation.

In conclusion, the representative submitted that both the treating psychiatrist and the psychologist agreed that the worker was suffering symptoms and psychological injury from the trauma she witnessed at work and that she required medical aid in the form of trauma therapy. The representative submitted that the PTSD presumption or the accident definition of wilful and intentional act should apply. Regardless of other workplace issues or stressors, the definition of an accident was therefore met, and the worker's appeal should be granted.

Employer's Position

The employer did not participate in the appeal.

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 an injury as a result of an accident arising out of and in the course of her employment. The panel is unable to make that finding for the reasons that follow.

Based on our review of all of the evidence and submissions which are before us, on file and as presented at the hearing, the panel is satisfied that the worker's primary focus on this claim was on issues relating to employment or labour related matters, stress, harassment and the workplace environment in general, which are specifically excluded under the WCA.

The worker's representative relied on the March 14, 2022 report from the treating psychiatrist provided in advance of the hearing as providing a diagnosis of PTSD. The panel is unable to accept that diagnosis in relation to the facts and circumstances of this claim.

In this regard, the panel notes that the original focus of the claim was not on events which would trigger PTSD, PTSD-like symptoms or a psychological injury caused by a traumatic event, but on employment-related matters. The Worker Incident Report filed March 12, 2021, thus referred to issues of manipulation, safety issues and pornography, and provided further details with respect to those issues.

The worker did refer to certain traumatic incidents in her subsequent conversation with the WCB on March 16, 2021, but this appears to more with respect to safety issues, and the early reports on file generally continue to focus on the originally identified stressors and employment-related issues. The worker was assessed by the psychologist on three occasions, and while there was some reference to the suicide incident having been mentioned, the psychologist noted that this was not a primary concern at this time. The psychologist also noted that the worker had reported that her symptoms did not have a particular trigger.

While the worker's representative submitted at the appeal that the completed suicide was a major event that seemed to have started the decline in the worker's mental health, the panel is not satisfied that this is supported by the evidence on file. The evidence indicates that this suicide occurred in or around April 2020, the worker indicated her symptoms started in November 2020, and the claim which was filed on March 12, 2021 indicated an incident date of March 11, 2021.

In response to questions from the panel, the worker confirmed that it was a year before she said anything to anybody about the specific suicide incident in April 2020, and commented that she had indicated that she had attended "quite a few hangers" and that the "golden rule is we film until paramedics arrive."

In the circumstances, the panel is of the view that the cause or primary cause of the worker filing a claim and going off work was her non-compensable employment-related issues. The panel is satisfied that the focus of the worker's complaints remained the same up until the time Review Office denied the worker's appeal on July 6, 2021 and determined that the claim was unacceptable. After that, the essence of the complaints change, with the emphasis and reliance being placed on different facts and a different medical diagnosis.

The panel acknowledges the worker's representative's position that symptoms may not manifest themselves right away, but is unable to find on the facts that the worker's ongoing symptoms or diagnosis of PTSD are causally related to a psychological injury in this case. Further, the panel is not satisfied that there is sufficient clinical evidence to support a diagnosis of PTSD. The panel notes that the worker's representative acknowledged at the hearing that the treating psychiatrist did not explain how each of the specific DSM-5 criteria were satisfied. Based on his report, the psychiatrist also does not appear to have addressed or considered the original complaints or issues on the worker's claim as filed.

Similarly, the panel is unable to find that a claim based on a wilful and intentional act, as suggested by the worker's representative, is established based on the facts and circumstances of this case.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury as a result of an accident arising out of and in the course of her employment. The panel therefore finds that the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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 16th day of September, 2022