Decision #126/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim was not acceptable. A videoconference hearing was held on November 1, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On April 8, 2021, the worker provided a Worker Incident Report to the WCB reporting a psychological injury that occurred at work on March 26, 2021; however, the worker's description of the incident was not included in that Report. On April 15, 2021, the WCB received medical information related to the worker's claim from a walk-in clinic physician who assessed the worker in a telephone appointment on April 1, 2021. The physician’s chart notes indicated the worker's report of recent stress and "not eating or sleeping due to altercation at work" and that the worker received a three-day unpaid suspension for leaving work without advising the employer. The worker reported their supervisor used profanity and inappropriate language in speaking to them and that they felt they had no support from the human resources department or management. The worker advised the walk-in clinic physician they were unable to eat without vomiting and could not concentrate or focus on anything. The clinic physician offered a diagnosis of stress and anxiety and recommended the worker remain off work until they could see their family physician.
The worker saw their family physician on April 5, 2021 reporting severe headaches and anxiety. The physician referred the worker for a CT scan on the same date, which revealed normal findings, and noted the worker had appropriate affect, grooming, and speech. The physician provided a diagnosis of work-related anxiety and recommended the worker remain off work until April 25, 2021.
On April 16, 2021, the worker provided the WCB with a detailed list of previous incidents they had experienced with their supervisor, along with a report of the March 26, 2021 incident. When the WCB contacted the worker on the same date to discuss their claim, the worker advised that they had issues with their immediate supervisor and confirmed the details of the workplace incident. The worker noted they left work early on the day of the incident because they were upset, but that they had contacted their human resources person to advise them that they were leaving. The worker also confirmed their supervisor had not physically or verbally threatened them.
On April 16, 2021, the WCB advised the worker that their claim was not acceptable. The WCB noted that the worker's difficulties with their supervisor and difficulties arising from matters related to employment are not compensable under the WCB's policies and as such, the claim was denied.
The employer provided the Employer's Incident Report to the WCB on April 19, 2021, along with their detailed report of the incident and events thereafter. The employer reported the human resources manager received a text from another worker referencing the worker's supervisor speaking inappropriately to the worker. Both the human resources manager and the worker's manager attempted to speak with the worker regarding the incident on March 26, 2021; however, the worker had already left and did not respond to text messages until three hours later. At that time, they agreed to discuss the incident on March 29, 2021. The employer’s report set out that the worker had not reported any previous issues with the supervisor and had provided the employer with their incident report. The human resources manager noted that the worker was sent home on an unpaid three-day suspension due to other employment-related issues.
The worker requested reconsideration of the WCB's decision to Review Office on May 5, 2021, noting the WCB had not considered all the incidents the worker had reported with regarding their supervisor and providing additional information regarding a previous employment history with their manager. On June 7, 2021, Review Office returned the worker's file to the WCB's Compensation Services for further investigation.
The WCB contacted the worker, the employer and a coworker to obtain further details. On June 28, 2021, the employer provided a copy of the text message exchange with the worker on March 26, 2021 and the incident report/letter the worker had written to the employer. On August 18, 2021, the worker provided details regarding their previous employment history with their manager while they both worked for a different employer. On August 30, 2021, the WCB spoke with the worker's coworker who was present when the March 26, 2021 incident occurred. The coworker confirmed the worker's description of the profanity and inappropriate language of the supervisor directed at both workers and provided the WCB with further details of other incidents involving the supervisor.
On August 30, 2021, the WCB advised the worker that the claim was not acceptable. The WCB noted that further investigation had been conducted, but that the definition of an accident arising out of or in the course of employment does not include employment-related issues such as discipline. Further, the WCB noted psychological issues that occur as a result of daily pressures or stresses of work are excluded from the definition of an accident under the WCB's policies.
On September 9, 2021, the worker again requested that Review Office reconsider the WCB's decision that the claim was not acceptable. The worker argued the WCB had not considered all of the incidents that had occurred and noted their treating healthcare providers supported the worker should remain off work due to their difficulties. On November 10, 2021, the employer's representative provided a submission in support of the WCB's decision, noting the employer's investigation into the March 26, 2021 incident found the worker's description of the event "…was not consistent with other evidence."
In the decision dated November 12, 2021, Review Office determined the worker's claim was not acceptable. Although Review Office acknowledged the worker found their dealings with their supervisor to be stressful, WCB's policies do not include dealing with an unpleasant or difficult supervisor within the definition of an accident. Further, Review Office found the evidence did not support the worker's claim they were singled out or targeted by their supervisor on March 26, 2021 and further, that the meeting of March 29, 2021 which resulted in the unpaid suspension also did not meet the definition of an accident under the WCB policies.
The worker's representative filed an appeal with the Appeal Commission on January 5, 2022. A hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect at the time of the accident are relevant.
The Act sets out the definition of an accident in s 1(1) 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….
The Act defines an occupational disease as including a disease arising out of and in the course of employment and that results from causes and conditions that trigger post-traumatic stress disorder but does not include an ordinary disease of life or stress, other than an acute reaction to a traumatic event. Section 1.1 sets out that the definition of "accident" in s 1(1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
The WCB has established Policy 44.05.30, Adjudication of Psychological Injuries (the “Psychological Injury Policy”) to outline how claims for psychological injury will be adjudicated. This policy sets out that such claims 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 Psychological Injury Policy specifically excludes from coverage psychological injuries that occur because of burn-out or the daily pressures 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. Further, matters of discipline, promotion, demotion, transfer, or other employment related matters are also specifically excluded from the definition of accident.
The worker appeared in the hearing with a representative who made an oral submission on behalf of the worker and relied upon a written submission provided in advance of the hearing. The worker provided testimony through answers to questions posed to them by members of the appeal panel. The worker’s mother was present in the hearing as an observer and support to the worker.
The worker’s position, as outlined by their representative, is that the claim is acceptable because the evidence confirms the worker sustained a psychological injury as a result of the employer’s intentional harassment of the worker that arose out of and in the course of the worker’s employment.
The representative outlined the background to the worker’s claim, noting that the worker had previously made a workplace harassment complaint against an individual while in another workplace. When the worker was hired by this employer, that individual was not working there, but the individual’s spouse was the employer’s human resources manager. Several months after the worker began working with the employer, a new manager was hired, who was the individual against whom the worker had previously made their complaint in the other workplace. The worker’s representative indicated that the worker felt they would experience retaliation in the workplace under this new management. The representative noted that shortly afterward, in the worker’s first performance evaluation in October 2020, the new manager brought forward the issues from the prior workplace, but the human resources manager indicated this was not relevant to the present employment. This discussion, the representative indicated, caused the worker to feel harassed and intimidated. The worker’s representative submitted that this is an example of the employer failing to comply with its own obligations and responsibilities under its workplace harassment policy in dealing with the worker and their manager, and that the human resources manager was in a conflict of interest given their personal relationship with the manager.
The worker’s representative stated that the worker excused themself from work on March 26, 2021, after an incident in which the direct supervisor spoke to the worker in an inappropriate manner using hostile language while providing instructions to the worker. The worker’s representative noted that this supervisor had a history of bullying-type behaviour and was known to be volatile. As a result of this incident, the worker left work soon afterward because they felt ill and contacted their physician’s office for an appointment, which was booked for April 5, 2021.
The worker’s representative also provided information to the panel regarding the worker’s meeting with the manager and human resources manager on March 29, 2021 to discuss the incident of March 26, 2021. Although the worker made a complaint as to their supervisor’s behaviour, the employer issued a three-day suspension to the worker for leaving work without authorization. The worker’s representative submitted that the worker was unaware of the incident of October 23, 2020 referenced by the employer in the meeting of March 29, 2021 as a prior example of the worker leaving work without approval. The worker believes that this disciplinary action was taken in retaliation for the worker’s complaint and the representative noted that the employer failed to properly follow its own policies in relation to the worker’s complaint.
The worker’s representative also provided information the panel as to the Workplace Safety and Health investigation into workplace harassment subsequently conducted based upon the worker’s complaints.
In answering questions posed by members of the appeal panel, the worker testified that the actions by the manager and supervisor amounted to verbal abuse and hostility, but there were no threats of physical violence. The worker further testified that their prior employment where the difficulties with their manager took place ended in 2016 and that they were employed elsewhere until beginning work with this employer in April 2020.
The worker confirmed that they sought treatment from their family physician who referred the worker to a mental health nurse. The worker also sought treatment, virtually, from an out-of-province registered clinical social worker who provided the diagnoses of adjustment disorder with anxiety and other specified trauma and stressor-related disorder, as outlined in the October 25, 2022 submissions containing the social worker’s various narrative reports. The worker described to the panel their symptoms in April 2021 and afterward, of not sleeping or eating resulting in a loss of some 50 pounds.
The worker’s representative clarified in response to questions from the appeal panel that the worker’s position is that the “accident” causing injury in this case is the pattern of wilful, intentional behaviour by the employer toward the worker, and not the disciplinary action of March 29, 2021. The worker indicated that their primary difficulties were not with the supervisor who was verbally abusive on March 26, 2021 but with the manager and human resources manager who the worker believes were acting in concert, maliciously and with bad faith, to cause harm to the worker.
In sum, the worker’s representative submitted that as a result of the employer’s ongoing bullying, harassment, intimidation and retaliation directed toward the worker and the employer’s failure to take appropriate action to prevent that behaviour, the worker developed a psychological injury. Therefore, the worker’s claim should be accepted.
The employer was represented in the hearing by its human resources manager and by legal counsel who made an oral submission on behalf of the employer. The employer’s counsel also relied upon a written submission provided to the panel in advance of the hearing. The employer’s human resources manager provided testimony through answers to questions posed by members of the appeal panel.
The employer’s position, as outlined in the submissions of its counsel, is that as a result of the worker’s unauthorised departure from work on March 26, 2021, the employer issued a three-day suspension to the worker, noting that the worker accepted this disciplinary action and admitted to the employer on March 29, 2021 that they should have spoken with the human resources manager prior to leaving the workplace on March 26, 2021. The employer’s counsel further noted that the worker’s description of the events of March 26, 2021 were not confirmed by the employer’s investigation of what took place, and noted the text messaging evidence confirms that the worker did not respond to the human resources manager’s query as to where they were until some 2.5 hours after the message was sent, at which time it was agreed that the employer and worker would discuss the matter on March 29, 2021.
With respect to the worker’s allegations regarding a negative work environment leading up to the March 26, 2021 incident, counsel noted that there were no prior complaints made by the worker with respect to the conduct of the supervisor and there is no evidence that the worker was bullied by or had any issues with the manager prior to that date. Further, counsel noted that the employer fully cooperated with the Workplace Safety and Health investigation arising from the worker’s complaints and that there were no findings arising from that investigation to confirm that the employer had harassed the worker.
Further, the employer’s counsel submitted that the events between the manager and the worker that took place in the context of the previous employment with another employer are not relevant to this claim, noting their understanding that the settlement of that issue included a confidentiality agreement.
In respect of the worker’s claim of psychological injury resulting from the employer’s actions, counsel for the employer noted that the proposed diagnosis of post-traumatic stress disorder (“PTSD”) as offered by the worker’s family physician on November 30, 2021 is not consistent with the diagnoses proposed by the treating clinical social worker in October 2021. Further, there is no evidence that the worker was exposed to any traumatic event of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder, and as such the diagnosis does not meet the requirements under the Act for the presumption to apply.
The employer’s counsel stated that the employer disputes the worker’s allegations that the employer harassed, targeted, or otherwise acted with malice or bad faith towards the worker. Rather, the evidence supports a finding that the employer’s actions in relation to the worker and their employment were respectful and consistent with the role of an employer. Further, the worker’s allegations against the employer amount to no more than dealing with allegedly unpleasant supervisors or managers and disciplinary action that the worker did not agree with. Both the Act and the WCB's Psychological Injuries Policy are clear that such matters do not constitute accidents as defined by the Act and therefore do not give rise to a compensable claim.
The employer’s position is that the evidence does not support the worker’s allegations that they experienced workplace harassment nor that the employer provided a toxic workplace environment. Further, the evidence does not support that the employer willfully and intentionally acted with malice to cause harm to the worker. Further, stress is excluded from the definition of occupational disease as an accident, and there is no evidence to support that the worker sustained an acute reaction to a traumatic event. As such, the worker’s claim is not acceptable, their appeal should be dismissed, and the decision of the Review Office upheld.
The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to find that the worker sustained a psychological injury as a result of an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore, the claim is not acceptable, and the worker’s appeal is denied.
The panel considered firstly whether there is evidence of an accident. The Act defines an "accident" as a chance event occasioned by a physical or natural cause that includes a wilful and intentional act by someone other than the worker or an occupational disease. The Act defines occupational disease as including a disease arising out of and in the course of employment that results from causes and conditions that trigger post-traumatic stress disorder but not including an ordinary disease of life or stress, other than an acute reaction to a traumatic event, and the definition further excludes any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.
The worker asserts that they sustained psychological injury as a result of a number of occurrences in the workplace which they experienced as bullying and harassment and attributed to the wilful and malicious actions of the employer through its employees, directed toward the worker. In their submission, the worker’s representative pointed to an incident in late October 2020 when the worker left work early without appropriate authorization and the employer subsequently discussed this with the worker. The worker’s representative further pointed to the events of March 26, 2021 when the worker stated they were verbally abused by a supervisor and the worker left work as a result, feeling ill, and the subsequent communications and disciplinary action by the employer resulting in the worker receiving a three-day suspension beginning March 29, 2021. The worker’s representative also referenced the employer’s subsequent communications and attempts at communication with the worker regarding their medical leave as further evidence of the employer’s harassment of the worker. The panel noted that the written submissions on behalf of the worker also include extensive background information about the worker’s previous relationship with their manager and the resulting labour relations processes, as well as information relating to a Workplace Safety and Health investigation conducted based on the worker’s complaints against this employer, arising from the same events.
The panel considered the worker’s position that they sustained a psychological injury as a result of the wilful and intentional acts of the employer. The panel noted that the Administrative Guidelines to the Psychological Injuries Policy provide that “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.” The Guidelines also set out that in relation to claims arising from harassment, “There are often no witnesses to the acts that give rise to harassment-type claims and there is not usually documentary or other evidence. Because of this, the WCB will make determinations of credibility and plausibility to determine if the act occurred. It will make findings of facts based upon all of the relevant evidence that is available.” Such a finding therefore requires more than mere belief or conjecture to sustain it; rather, the totality of the evidence must support it.
In this claim, the worker’s representative referred in their oral submission to the employer’s “contradictory” statements surrounding the worker’s discipline history as being wilfully and intentionally jeopardizing the worker’s health. The worker’s representative further stated their belief that the manager and human resources manager of the employer acted in concert to create a workplace environment that would cause harm to the worker. The worker also relied upon evidence contained in statements made by other employees with respect to the weakness of management and the treatment of the worker by their direct supervisor, and referenced the employer’s policy on workplace harassment, noting specifically the employer’s responsibility to address reports of disruptive workplace conduct that do not amount to harassment under that policy and to take corrective or disciplinary action as appropriate. The worker alleges that the employer did not comply with its own obligations in relation to the worker’s complaints about their supervisor and noted this is a further example of the employer’s wilful and intentional behaviour that caused psychological harm to the worker.
The employer disputed that the incidents the worker described occurred at all or as the worker alleged and referenced its own investigation findings as included in the written submission of October 25, 2022.
The panel acknowledges that there are relational issues between the worker and the employer that appear to have manifested as a lack of trust as between the parties. The worker perceived that the employer intentionally took certain actions or did not take other actions so as to cause stress to the worker, whereas the employer did not perceive its actions as having any such effect.
As noted above, all of the relevant evidence must be considered in making a finding that the worker has been injured as a result of a wilful and intentional act involving malice or bad faith. In this case, on the basis of the evidence before us, the panel is not able to make a finding that the employer wilfully and intentionally, with malice or bad faith, created a workplace environment designed to be hostile to the worker and to cause them psychological harm. Although the worker believes that the employer wilfully and intentionally caused harm to the worker by failing to comply with its workplace policies, this is conjecture on behalf of the worker, unsupported by the evidence.
The panel also considered whether the evidence supports a finding that the worker sustained an injury, as the definition of accident also requires a finding that the worker is injured as a result of the event or incident giving rise to the claim. The worker here claimed they sustained a psychological injury; therefore, the panel reviewed the medical reporting as to the nature of the worker’s injury or diagnosis. The panel noted that although the worker indicated that they left work on March 26, 2021 due to feeling unwell, they did not seek any medical attention until a number of days later, upon the conclusion of the suspension period. The first medical report relates to the worker’s virtual attendance at a walk-in clinic on April 1, 2021 in which the worker reported feeling “Stressed recently; not eating or sleeping due to altercation at work.” The attending physician offered a diagnosis of “Stress. Anxiety. GERD.” On April 5, 2021 the worker sought care from their own physician who offered a diagnosis of “work related anxiety” based upon the worker’s report of severe headaches and severe anxiety and normal neurological findings from a CT scan taken the same day. The panel also noted that the physician’s chart notes of that appointment outline the worker’s report of feeling “really stressed out. Bad headaches. Hasn’t been eating or drinking” and the worker felt they had “lost some faith” in their work establishment. The physician recommended the worker contact their employee assistance plan and take two weeks off work and noted the worker declined both a mental health referral and medications.
The worker testified to participating in therapy, remotely, with a clinical social worker from another province. The panel reviewed the reports from the clinical social worker as contained in the worker’s October 25, 2022 written submission. Following two virtual sessions with the worker on April 7 and 12, 2021, the social worker offered a diagnosis of “Adjustment Disorder with Anxiety” that “arose in response to a reported workplace injury in which [the worker] was the victim of workplace bullying and harassment.” The social worker noted a favourable prognosis with treatment in the form of individual psychotherapy with a cognitive behavioural therapy and mindfulness focus and recommended the worker seek treatment in Manitoba and continue to engage with their family physician for pharmacological interventions in relation to their anxiety. In the report of October 29, 2021 in support of the worker’s disability insurance claim, the social worker noted providing services to the worker in April 2021 and again in October 2021 to provide “diagnostic support and treatment recommendations.” The social worker confirmed their April 2021 diagnosis and noted the worker’s report of increased symptoms over the previous three months including panic attacks, social anxiety and early signs of agoraphobia. In a further report of October 18, 2022, the social worker provided an additional diagnosis of “Other Specified Trauma and Stressor-Related Disorder” noting that “ongoing workplace-initiated harassment following [the worker’s] departure from active duties also led to a marked increase in [their] symptom presentation, to include mild to moderate dissociation, panic attacks, social anxiety and signs of agoraphobia.”
In the hearing, the worker confirmed to the panel that the only other medical care sought in relation to this claim was from another general practice physician, whose reports of November and December 2021 were provided with the worker’s October 25, 2022 submission to the Appeal Commission. The panel noted that the physician indicated in their November 30, 2021 note that the worker was undergoing cognitive behavioral therapy from a psychotherapist “for PTSD”. In the December 20, 2021 note, the physician indicated only that the worker has been in their care since November 4, 2021 and is “currently undergoing rehabilitation therapy.” No objective findings are provided in either note. The panel gives little weight to these medical notes given the absence of any objective findings or diagnostic information and the fact that physician was not involved until many months following the alleged workplace events.
Based upon the medical reporting, the panel does not find that the evidence supports that the worker sustained a compensable injury as a result of any workplace-related event. The panel accepts that the worker presented for treatment of headaches, anxiety and stress shortly after their disciplinary suspension on March 29, 2021. While other psychological diagnoses are offered by the clinical social worker, the panel gives less weight to the social worker’s opinions, noting they did not have the benefit of assessing the worker in person as did the worker’s treating physician and that the worker did not follow up or take any action based upon their treatment recommendations until necessary to support their disability insurance claim.
The panel noted that the worker attributed their anxiety and stress, with headaches to the various workplace circumstances and events outlined above. The panel considered however that the WCB’s Psychological Injuries policy excludes from compensation psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work. We find that this exclusion applies to the worker’s claim in that the worker’s diagnoses of stress and anxiety arose out of the pressures and stressors of their work. As such, the panel is not able to find that the worker’s anxiety and stress are a compensable psychological injury.
The panel further finds that the evidence does not support that the worker sustained injury from an occupational disease, as defined by the Act. There is no evidence here that the worker was exposed to any traumatic event. There is evidence that the worker was subjected to workplace stresses, including disciplinary action, resulting from relational issues between the worker and the employer, which led to the three-day suspension beginning on March 29, 2021. The panel noted that the Act clearly excludes any changes in respect of the employment of a worker from the definition of an accident. The Psychological Injuries Policy elaborates upon this exclusion, setting out that “Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.” Therefore, the panel finds that the disciplinary and relational issues raised by the worker in their claim do not fall within the definition of an accident. Therefore, we are satisfied that the evidence does not support findings of accident by occupational disease.
On reviewing the totality of the evidence before us, and on the standard of a balance of probabilities, the panel is not satisfied that any of the events, occurrences, or incidents, either
separately or taken together, amount to an accident as defined by the Act. Therefore, the worker’s claim is not acceptable and the appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of December, 2022