The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The worker is entitled to wage loss benefits effective April 21, 2022; and 

2. The worker is entitled to medical aid benefits.

A teleconference hearing was held on July 5, 2023 to consider the employer's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits effective April 21, 2022; and 

2. Whether or not the worker is entitled to medical aid benefits.

Decision

1. The worker is entitled to wage loss benefits effective April 21, 2022; and 

2. The worker is entitled to medical aid benefits.

Background

The worker filed a Worker Incident Report with the WCB on April 26, 2022 reporting a head and psychological injury that occurred at work on March 25, 2022. The worker described being assaulted and struck on their head after attending a client’s residence.

On April 11, 2022, the worker attended for medical treatment with their family physician, with the physician providing their report to the WCB on May 2, 2022. The worker reported being attacked at work in March 2022 then a further incident approximately a week later when a random person approached the worker on the street and advised their life was in danger. Another week later, the worker was approached by a known gang member who indicated that they were surprised that the worker was still alive. The physician recorded the worker’s complaints of having “…no coping mechanisms and now stress piling up and getting overwhelmed. Unable to do typical work duties…”. The treating physician described the worker as “Well dressed and groomed, So-so eye contact…Normal thought content and speech” with no suicidal ideation. The physician further noted the worker had a history of chronic pain and “…a number of previous WCB claims in past…” as pre-existing factors affecting the worker’s recovery. The worker was diagnosed with “Adjustment Disorder and Contusion”. A note, dated April 21, 2022, was provided, placing the worker off work as of April 13, 2022 “until further notice” as it was noted the worker currently had poor functioning. A chart note from the worker’s appointment on April 21, 2022 was also provided on May 2, 2022 and indicated the worker’s symptoms of feeling stressed, poor sleep, low energy, very poor concentration and loss of appetite. The physician recorded the worker had “Poor eye contact; Scattered and anxious Affect, shaking at times” but normal thought content and speech and no suicidal ideation. A diagnosis of Major adjustment disorder to stressful situation was provided.

The WCB contacted the worker on May 2, 2022 to discuss their claim. The worker confirmed the March 25, 2022 incident and advised the WCB of two other incidents that occurred after where they were approached by individuals expressing their concern for the worker’s safety after which they felt threatened. The worker noted since that time, they have not been to the building where they were attacked and their symptoms include anxiety, paranoia and avoiding the downtown area. The WCB advised the worker they were awaiting receipt of the employer’s report. On May 16, 2022, the employer submitted an Employer Injury Report to the WCB. The employer noted the worker had not advised them of the incident on March 25, 2022 until a telephone call on March 31, 2022, after which the worker reported they were fine. The employer further noted the worker did not provide an exact date the incident occurred and advised there were no witnesses. The employer reported that on April 1, 2022, the worker contacted them to report they were approached by unknown individuals and noted a coworker witnessed the exchange. On April 3, 2022, the employer advised the worker contacted them to indicate they would not be attending at the two residences where the incidents occurred. The employer then indicated other occasions where the worker had not attended work. The employer noted the worker was provided with a discipline letter on April 12, 2022 due to job performance issues after which, the worker did not attend work due to weather conditions on April 13, 2022 and April 14, 2022. The employer contacted the worker by text message on April 18, 2022 as they had not heard from the worker and the worker advised they were seeking medical treatment. On April 22, 2022, the worker provided the employer with a copy of the doctor’s note placing them off work.

The worker contacted the WCB on May 17, 2022 to provide further details about their claim. The worker confirmed to the WCB there were no witnesses to the incident on March 25, 2022 but advised after the incident, they went to a coworker’s residence to discuss the incident. The coworker noted the worker was shaking and recommended the worker go home. The worker also advised the WCB of other incidents that occurred while they were at work. With respect to the April 1, 2022 incident, the worker noted they were cautioned to watch themselves by an unknown person and the following week, were approached by two individuals in a similar manner. The worker further confirmed they stopped working after April 12, 2022. The WCB spoke with the employer on May 17, 2022 to gather further information. The employer noted their concerns with the worker’s claim and confirmed the worker reported numerous personal issues outside of work and provided the WCB with copies of text and email messages sent to them by the worker. The employer advised they were first made aware of the March 25, 2022 incident on March 31, 2022, and the worker advised they were okay. No further discussions about the incident took place. The employer provided the WCB with contact information for the coworker the worker saw after the assault. Also on May 17, 2022, the WCB spoke with the coworker to discuss the March 25, 2022 incident. The coworker confirmed they met with the worker after the incident and that the worker was scared and appeared to be in shock. The coworker advised the worker appeared to be “pretty distraught” even after taking a break. The coworker also noted the worker’s position was quite stressful and further confirmed the worker had been dealing with personal issues outside of work.

On May 27, 2022, the worker’s claim was accepted by the WCB and the payment of various benefits commenced. On June 30, 2022, the worker’s claim was reallocated to a WCB case manager due to the length of time of the claim.

In a memorandum to file dated July 5, 2022, the worker’s WCB case manager sets out the timeline of the worker’s claim, noting the worker’s delay in reporting the incident to the employer and the police. In particular, the case manager made note of the delay in seeking medical treatment until the worker received a letter from the employer indicating performance issues, further noting the worker had not missed time from work until they received that letter. The WCB case manager determined the worker’s claim was acceptable for an incident that occurred on March 25, 2022 but was unable to relate the worker’s time loss and need for medical treatment to that incident. On the same date, the WCB provided the worker with a formal decision letter advising their claim had been accepted for a workplace accident that occurred on March 25, 2022 but they were not entitled to wage loss and medical aid benefits as the WCB was unable to relate the worker’s time loss from work and medical treatment to the workplace accident.

On January 3, 2023, the worker’s representative submitted information from the worker’s previous WCB claim for a psychological injury which occurred due to a stress reaction after discovering dead bodies while at work and requested the WCB reconsider the July 5, 2022 decision the worker was not entitled to wage loss and medical aid benefits. The representative provided the information indicated the worker had been exposed to multiple traumatic events while at work and as such, experienced an acute stress reaction and was entitled to further benefits. On January 9, 2023, the WCB advised the worker’s representative the information was reviewed but there would be no change to the earlier decision.

On January 12, 2023, the worker’s representative resubmitted the information from January 3, 2023 and requested reconsideration of the WCB’s decisions to Review Office. Review Office determined on March 9, 2023, the worker was entitled to wage loss benefits as of April 21, 2022 and was entitled to medical aid benefits. Review Office accepted the medical evidence on file the worker sustained an injury based on traumatic events that occurred on March 25, 2022, April 1, 2022 and April 8, 2022 and required medical aid as the result of same. Review Office found the worker was entitled to wage loss benefits as of April 21, 2022, the date they sought medical treatment with their family physician and time off work was recommended.

The employer filed an appeal with the Appeal Commission on March 21, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

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 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. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Subsection 27(1) of the Act sets out that a worker who is or may be entitled to compensation may be paid any medical aid the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Employer’s Position

The employer was self-represented in the hearing and made submissions as well as provided answers to questions posed by members of the Appeal Panel.

The employer’s position is that the worker should not be entitled to wage loss benefits for the periods in dispute because but for the worker’s non-compensable health condition that arose prior to the accident of March 25, 2022, the worker would not have suffered wage loss. As such the worker’s loss of earning capacity after April 21, 2022 relates to the worker’s non-compensable health condition rather than to the compensable workplace injury.

The employer noted that the worker had performance issues shortly after beginning their employment and it was clear early on that the worker had many stressors in their life. The employer questioned some of the details of the worker’s description of their employment and felt that some of the danger was exaggerated and questioned whether the worker had in fact found so many dead bodies given that it was not advised of seven (7) bodies found. With respect to the incidents in March and April 2022, the employer acknowledged that there was no evidence to contradict that these incidents did in fact occur, however, noted that there were no witnesses that were able to directly confirm the events as described.

It was the employer’s position that the worker may be exaggerating the stress that the March and April events caused them given that they did not report the March 25, 2022 incident to the employer until 5 days after the incident and they did not file a Police Report until approximately 10 days after the incident.

In sum, the employer’s position is that the worker was not entitled to wage loss benefits due to their pre-existing mental health condition, which is non-compensable, and as such the worker’s loss of earning capacity beyond April 21, 2022 is not causally related to the compensable workplace injury.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who made oral submissions on behalf of the worker and relied as well upon their prior written submissions to the Review Office. The worker provided testimony in the hearing through answers to questions posed by the members of the Appeal Panel.

The worker’s position as outlined by the worker advisor is that the evidence established that the worker’s employment was unsafe. They had found seven (7) dead bodies during the course of their employment, their life had been threatened on multiple occasions, including by known gang members, they had been assaulted while performing their duties and they had to deal with buildings which they cared for being burned down. The worker’s treating physician indicated that the worker met the criteria for Post Traumatic Stress Disorder (“PTSD”) and indicated that their current diagnosis was predominantly from their employment. The worker indicated that their employer had plans to terminate their employment when they could no longer perform all of their duties due to the stress they were under from the threats to their life. The worker indicated that the evidence established that they were assaulted on March 25, 2022 when they were collecting rent from a tenant. They were attacked by being hit three times in the head with the butt of a gun, after which they were able to escape. They indicated that one week later they were told by someone outside one of the buildings they cared for that their life was in danger. A week after that they were told by a known gang member that they were surprised that the worker was still alive. The worker indicated that the conversation regarding their life being in danger was witnessed by a co-worker and although the March 25, 2022 incident was not witnessed, the worker’s assistant was able to confirm that the worker was extremely upset about the assault and was in shock thereafter. The worker asked that the Review Office’s decision be upheld given that it accepted that the incidents of March and April 2022 led to personal injury and that that injury was caused at least in part by an accident which occurred during the worker’s employment.

The worker did not deny that there was a pre-existing condition that existed prior to the March and April incidents and states that the pre-existing condition was PTSD from finding many dead bodies in the course of their employment, as well as chronic pain from a previous motor vehicle accident. In addition, the worker noted that there was nothing in the medical evidence which suggested that the PTSD was from anything other than work related events. The worker noted that the Pre-existing Policy states that benefits are payable if the accident contributed to the worker’s injury. The worker also noted that a pre-existing condition may represent a weakness in a worker which causes them to be more likely than most to suffer an injury and it will usually result in a longer recovery period. The worker acknowledged that their lack of coping skills, due to the stress they were under could have created a situation whereby they were more affected by stressful events, including those events which arose outside of their employment.

Analysis

The issues for determination on this appeal relate to the worker’s entitlement to wage loss benefits after April 21, 2022 and the worker’s entitlement to medical aid benefits. The Panel considered each of the issues under appeal in turn as outlined in the reasons that follow.

Is the worker entitled to full wage loss benefits effective April 21, 2022?

For the employer’s appeal on this question to succeed the Panel would have to determine that the worker did not sustain a loss of earning capacity effective April 21, 2022 arising out of the compensable workplace injury. The Panel was unable to make such a finding for the reasons that follow.

The acceptability of this claim is not in dispute. The worker sustained an injury arising out of and in the course of employment. The worker reported the March 25, 2022 incident to the employer five days after the incident and to the WCB on April 26, 2022. The worker reported the April 1, 2022, incident to the employer that same day to inform the employer that they were approached by unknown individuals and noted a coworker witnessed the exchange.

The file evidence confirms that the worker first sought medical attention from their family physician on April 11, 2022, who provided a diagnosis of Major Adjustment Disorder to a stressful situation. There is no evidence on file that indicates that the worker was treated for anxiety prior to their employment with the accident employer. The subsequent medical evidence on file indicates that the worker was required to take time off of work due to their stress reaction that resulted from the trauma they experienced in March and April 2022, as well as the trauma outlined in the worker’s prior WCB claim. The Panel accepts that the worker did sustain a loss of earning capacity effective April 21, 2022 and that this loss of earning capacity was reasonable given the incidents they experienced in March and April 2022 combined with the pre-existing trauma of encountering multiple dead bodies.

The Review Office accepted that the worker was assaulted and/or threatened on March 25, 2022, threatened on April 1, 2022 and April 8, 2022. The Review Office also accepted that the worker experienced trauma on the job previously and that the worker’s stress reaction was, at least in part, related to their employment. The Panel acknowledges that the worker’s pre-existing condition may have caused them to be more susceptible to a stress reaction. However, the Pre-existing Policy indicates that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. In this appeal there is no need to determine whether the worker’s pre-existing condition was a compensable injury, as indicated by the worker, or a non-compensable injury, as indicated by the employer, because it is accepted that the worker’s loss of earning capacity was caused in part by a compensable injury. Accordingly, under the Pre-existing Policy, the WCB will accept responsibility for the full injurious result of the compensable injury.

As such, the Panel determines, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker continued to sustain a loss of earning capacity effective April 21, 2022 arising from the compensable workplace injury. Therefore, the worker is entitled to wage loss benefits effective April 21, 2022.

Is the worker entitled to medical aid benefits effective April 21, 2022?

The Panel determines, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker sustained an injury arising, at least in part, from a compensable workplace injury. Accordingly, the worker is entitled to medical aid benefits effective April 21, 2022.

The employer's appeal is dismissed.

Panel Members

N. Smith, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of August, 2023