The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on July 6, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The WCB received a Worker Incident Report on July 29, 2021, reporting the worker sustained a psychological injury as the result of an incident that occurred at work on January 14, 2021. The worker described an altercation with their supervisor in which the supervisor was:

…abusive to me and cornered me in certain areas without me having any escapes. There were verbal attacks and hand gestures made towards me. I would go into fight or flight. I would go into a fog and lose vision and hearing. I figured he was going to strike or punch me. After I came to he walked away, put his hand up and yelled out. My coworkers are witnesses to this, can't disclose names at this time.

The worker noted they attended for medical treatment with their family physician on January 14, 2021 and were referred to a psychologist. They further noted they were seen by a psychologist on June 9, 2021 but could not provide details. The worker advised they were off work from January 14, 2021.

On July 30, 2021, the WCB received a copy of a Doctor First Report, along with a chart note, for the worker's telephone appointment with their treating family physician on January 14, 2021. The physician noted the worker's report that they were not doing well and feeling unsafe at work due to the actions of their supervisor. The worker noted feeling threatened and an inability to sleep and concentrate. The physician indicated "workplace issues with altercation with supervisor" and diagnosed adjustment disorder with anxiety due to perceived threat for safety, providing a sick note for 4 weeks.

On July 30, 2021 the WCB received a June 9, 2021 visit report from a psychiatrist who assessed the worker. The psychiatrist recorded the worker's report of a series of incidents beginning in July 2020 when a supervisor embarrassed the worker in front of other coworkers, with the worker describing experiencing "…a moment of freezing” that caused them to develop “…acute anxiety, brain fog and essentially experienced dissociative anxiety." The worker further described being stalked by a former supervisor over an 8 month period and in January 2021, an altercation with another supervisor that "…had a profound effect on [the worker] to the point… [they] experienced the same kind of dissociative anxiety accompanied by brief amnesia of the event followed by a panic attack." The psychiatrist noted the worker left work after the incident and had not returned and the worker reported since that time, they did not feel safe returning to work, has had intermittent nightmares about work and difficulty getting out of bed or leaving the house. On assessing the worker, the psychiatrist stated the worker presented with "…6 months of intense anxiety, re-experiencing symptoms, avoidance and functional impairment as a result of a workplace stressor. [Their] symptoms have persisted much longer than expected and are clearly in excess of what one would expect given the nature of the inciting stressor. [The worker] has also developed overvalued paranoid beliefs…" The psychiatrist provided a diagnosis of PTSD (post-traumatic stress disorder) and recommended a change in the dosage of medication. When the WCB contacted the worker on August 13, 2021, the worker provided details of an incident on August 17, 2020 with a supervisor (“Supervisor 1”) who berated them in front of coworkers; an incident in January 2021 where they were speaking to their supervisor (“Supervisor 2”) and requested a medical form when the supervisor "went ballistic" and started asking private medical questions; and the incident on January 14, 2021 where the worker described the supervisor approaching them while they were speaking with a coworker about a chair and started yelling. The worker stated that during this exchange, they felt cornered and that they couldn't get away from the situation physically due to where they were standing and felt like they were going to be attacked. The worker further noted there were witnesses to these incidents. The worker described symptoms of sleep disturbance with nightmares, feeling anxious, feeling like they're being watched so they don't open windows or blinds and scared to answer the phone and feeling very jumpy. The worker advised they were not functioning well, crying all the time, felt very depressed and having panic attacks.

On August 18, 2021, the employer submitted the Employer's Accident Report to the WCB indicating that after it learned of the worker's claim on August 16, 2021, the employer contacted the worker on August 17, 2021 for more information. The worker provided the employer with details regarding an incident that occurred on August 17, 2020, not previously reported to the employer, in which the worker attempted to have a discussion with Supervisor 1 that resulted in Supervisor 1 yelling at the worker. The employer also noted the worker was interviewed and investigated in August 2020 for disciplinary reasons and placed on a 5-day suspension by way of a letter on August 21, 2020. The employer advised in their report that they spoke with Supervisor 1 on August 17, 2021 and confirmed an incident took place with the worker but could not confirm the date.

On August 23, 2021, the employer provided the WCB with Supervisor 2's version of the January 14, 2021 event. Supervisor 2 indicated the worker's behavior towards a coworker was inappropriate and that the coworker reported to Supervisor 2 that the worker spoke to them in a rude manner with a raised voice. Supervisor 2 reported they spoke to the worker about their behavior, voices were raised during the discussion and the worker was provided with a union shop steward at their request. Supervisor 2 further noted the worker worked one more shift after the incident then went off work.

At the WCB’s request, the employer provided contact information for witnesses. The first witness (“Witness 1”), contacted by the WCB on September 8, 2021, advised they witnessed the worker and Supervisor 2 speaking to each other with raised voices on January 14, 2021 but did not hear exactly what was said. On September 9, 2021, the WCB spoke with the coworker (“Witness 2”) who was working with the worker on January 14, 2021. Witness 2 advised they had not previously worked with the worker and that they were allowed to sit while performing their job duties as an accommodation. Witness 2 indicated that on January 14, 2021, they cleaned and sanitized their chair and placed it in their work area, and then left to gather their work materials. On returning, Witness 2 noted the chair was moved to the worker's work area. Witness 2 advised they approached the worker and asked for the return of the chair, but the worker responded negatively. Witness 2 then went to Supervisor 2 for advice on how to proceed, and Supervisor 2 approached the worker to return the chair to Witness 2. A disagreement ensued, the worker requesting a union shop steward and Supervisor 2 left the area. Witness 2 did not know what happened after that. Another witness (“Witness 3”) was contacted on September 9, 2021 who advised there was an issue between Supervisor 2 and the worker regarding a chair but they did not know what the issue was. Witness 3 heard Supervisor 2 speaking to the worker with a raised voice. The WCB spoke with another witness (“Witness 4”) on September 16, 2021, who advised they were aware of the January 2021 incident regarding a medical form, noting the worker had spoken with them after the incident and was upset Supervisor 2 had asked about their private medical information. Regarding the January 14, 2021 incident with the chair, Witness 4 advised they did not know the circumstances of the incident but recalled the worker "…broke down in tears afterward" and they recommended the worker speak to a union shop steward about the incident. Witness 4 further advised of other issues they had noticed with Supervisor 2, unrelated to the worker. The WCB also spoke with another coworker (“Witness 5”) regarding the August 2020 incident. Witness 5 recalled Supervisor 1 coming out of their cubicle and speaking loudly to the worker, who responded in a loud voice with the whole incident lasting less than 5 minutes. Witness 5 felt the incident could have been handled differently by Supervisor 1, but noted they did not recall either person having any aggressive body language towards the other during the incident.

The WCB advised the worker in a decision letter dated October 5, 2021 that their claim was not acceptable, as the WCB determined the incidents described by the worker were employment-related matters, which are excluded from the definition of an accident by the WCB's policies or regulations. The WCB also noted issues related to the worker's job duties and performance were excluded from the definition of an accident.

The worker provided a detailed submission to Review Office on September 6, 2022 and requested reconsideration of the WCB's decision. The worker detailed the incidents between themselves and their supervisors and provided letters from their treating healthcare providers noting their diagnosis of PTSD and the requirement for time off work. The worker also provided copies of emails from other coworkers with details of their interactions with Supervisor 2 from the January 14, 2021 incident. On December 8, 2022, Review Office determined the worker's claim was not acceptable, as the incidents described in the evidence were labour relations matters and therefore did not fall within the definition of an accident arising out of or in the course of the worker's employment. Further, Review Office found the evidence did not support the incidents described were willful and intentional acts involving malice or bad faith.

The worker filed an appeal with the Appeal Commission on March 23, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy 

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 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 s 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." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the 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 defines accident in s 1(1) as “a chance event occasioned by a physical or natural cause” that 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…. 

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(1.1) excludes from the definition of an accident any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

The Act provides that a worker is entitled to benefits under s 4(1) when it is established that a worker has been injured as a result of an accident at work.

The WCB has established Policy 44.05.30 Adjudication of Psychological Injuries (the “Policy”) to outline how the WCB will decide claims for psychological injury. The Policy confirms that such claims will be decided in the same way as claims for physical injuries. The WCB will first determine whether there has been an accident arising out of and in the course of employment and if so, whether the worker has suffered an injury, and if so, whether the injury was caused by the accident. The Psychological Injury Policy specifically excludes psychological injuries that occur because of burn-out or the daily pressures or stressors of work because the daily pressures or stressors of work do not fall within any part of the definition of accident, as there is no chance event, no wilful and intentional act, and no traumatic event.

Worker’s Position 

The worker appeared in the hearing and made an oral submission on their own behalf, and was supported by union representatives. The worker provided evidence through their oral submissions and in answering the questions put to them by the appeal panel.

The worker’s position is that they developed a psychological injury with symptoms including nightmares, fear of going out from their home, panic attacks, feeling frozen and weighed down because of the incidents in the workplace between August 2020 and January 2021. The worker noted that their condition has been treated with medication and counselling.

In their submission, the worker outlined the details of three incidents in the workplace which they believe to have caused their psychological injury. The worker described an incident in August 2020 when they tried to speak with Supervisor 1 who was at that time in conversation with another person. The worker described Supervisor 1 as responding to the worker’s request by yelling at them and stated that they felt confused and scared by Supervisor 1’s anger, loud voice, and violent mannerisms, so they respectfully left the area. Soon afterward, Supervisor 1 came over to where the worker was located, grunting and with a combative stance, and called over the other workers, shouting that the worker thinks they are more important than the cleaning lady. The worker stated that they were scared and humiliated by this incident.

The worker described another incident when they asked Supervisor 2 for a medical form and Supervisor 2 responded by jumping out of their chair and demanding the worker’s medical information. The worker stated that they felt scared by this response and told their union shop steward about it afterward.

The worker described a third incident in which they took a chair from Witness 2’s station. Supervisor 2 came to the worker’s station and took the chair back, slamming the chair down and almost hitting the worker, while yelling at the worker. The worker stated that they argued with Supervisor 2 about Witness 2’s need for the chair. The worker stated that they felt scared by the violent nature of Supervisor 2’s response and shaken by their anger toward the worker. The worker described Supervisor 2’s big eyes and creepy smile, and that Supervisor 2 was yelling and laughing at them.

The worker stated that during these incidents they feared for their life and would go into a fog or daze, and freeze. The worker stated that they later experienced violent nightmares about the Supervisor 1 and used alcohol to calm themself. The worker described staying in their basement and not going out except for groceries. The worker described having panic attacks when they think about going anywhere and feeling weighed down.

The worker confirmed seeking medical attention from their physician, counselling, and psychiatric treatment as a result. The worker confirmed that they obtained a doctor’s note on January 19, 2021 authorizing them to remain away from work, after a telephone appointment with their family physician the same day. The worker stated that they used sick days immediately before that. The worker described feeling scared about contracting Covid-19 at work and that they did not feel their social distance boundaries were being respected.

On questioning by members of the appeal panel, the worker stated they returned to their job on September 29, 2022, but still required medication at that time to control their nightmares and address anxiety.

In response to questions from panel members, the worker confirmed there were no other incidents or events between August 2020 and January 2021, but stated that every day they had to be at work with Supervisor 1, they felt scared. The worker confirmed that in August 2021 they were disciplined at work in relation to their performance of job duties, after and unrelated to the described cleaning lady incident.

Employer’s Position

The employer was represented in the hearing by legal counsel who made an oral submission to the panel and relied upon a written submission provided to the Appeal Commission on June 27, 2023.

The employer’s position is that the evidence does not support the worker’s claim that they sustained a psychological injury due to an accident arising out of and in the course of employment, and specifically does not support that the incidents in the workplace described by the worker amount to an accident resulting in an injury. Therefore, the worker’s claim should not be accepted.

The employer’s representative outlined a chronology of workplace events including the three incidents described by the worker as well as workplace disciplinary actions taken against the worker during the same period, from August 2020 to January 2021. The employer’s representative noted as background that the worker was disciplined in August 2020 in relation to their carrying out of their job duties, around the same time as the worker stated the first incident occurred. In October 2020 the worker was again disciplined, and in November 2020 the worker was removed from their position and placed in another role.

The employer’s representative noted that the request for a medical form is common in the workplace and the response from Supervisor 2 as described by the worker is unusual and unexpected given how frequently such requests are received by management. The representative further noted the absence of any witnesses to this incident.

The employer’s representative noted that the worker did not seek any medical attention until January 19, 2021. The representative outlined that the employer’s process is that when there is no obvious accident in the workplace causing an injury, as was the case here, the employer first recommends that an injured or ill worker apply for short term disability insurance, which the worker did.

The employer’s representative pointed out that the September 9, 2021 memorandum of the WCB conversation with Witness 2 confirms that Witness 2 sought assistance from Supervisor 2 in dealing with the worker, and that the worker was arguing and also raising their voice in the conversation with Supervisor 2.

The employer’s representative submitted that the three incidents described by the worker all amounted to the supervisors acting or intervening respectfully, professionally and in good faith to resolve any conflict that arose and that there is no evidence to the contrary.

The employer’s representative further noted that the worker’s claim was made too late and outside the 6-month timeframe required by the Act. The representative noted that the worker made their claim only after their application for short term disability benefits was denied.

The employer’s position is that the panel should uphold the decision of the Review Office that the worker’s claim is not acceptable.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the appeal to succeed, the panel would have to determine that the worker sustained injury as a result of an accident arising out of and in the course of their employment. As outlined in the reasons that follow, the panel was not able to make such a finding and therefore, the worker’s appeal is denied.

The panel considered that the definition of accident under the GECA of “a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause" aligns with the definition of accident under the Act in terms of a chance event occasioned by a physical or natural cause, including a wilful and intentional act of a third party. The GECA provides that compensation shall be paid to an employee who is caused personal injury by an accident arising out of and in the course of his employment. As the worker claims a psychological injury, the panel also considered the Policy, which requires that, the panel must determine whether any of the incidents described amount to an accident under the provisions of the Act and then, if so, consider whether there is evidence of psychological injury resulting from any such accident. The panel noted that the Policy explicitly sets out that an event or incident need not be objectively serious to be an accident. The panel also noted that the Policy outlines that “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 Policy confirms that daily pressures 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.”

The panel reviewed the worker’s claim of July 29, 2021 in relation to an incident with Supervisor 2 at work on January 14, 2021, in which the worker alleged that Supervisor 2 was abusive to the worker and cornered them in areas without any escape, including verbal attacks and use of hand gestures. The worker claimed they responded by going into “fight or flight” and in a fog, losing vision and hearing. On August 5, 2021, the worker provided further information to the WCB describing another incident on August 17, 2020 in which Supervisor 1 aggressively berated the worker in front of their colleagues after the worker interrupted a conversation the supervisor was having with a “cleaning lady” (the “August incident”). The worker further described an incident in early January 2021 when the worker asked Supervisor 2 for a medical form in relation to Covid-19 and Supervisor 2 “went ballistic” in response and asked the worker multiple questions about their private medical condition (the “form incident”). The worker further outlined the details of the January 14, 2021 incident in which Supervisor 2 yelled at the worker about a chair that the worker was talking about with a colleague (the “chair incident”).

The employer’s Accident Report outlined its August 2021 investigation findings in relation to the August 2020 incident. Of note, the employer included a description of the incident from Supervisor 1, who described the worker interrupting their conversation with a cleaning lady and stated that they pointed this out to the worker, at which point the worker stated that “I am an employee and she is just a cleaning lady”. Supervisor 1 indicated they responded to this by saying “You are despicable, get out of my cubical” at which point the worker left and began relaying to other colleagues, loudly, what Supervisor 1 said to them. Supervisor 1 said they went to where the worker was located and asked the worker if they explained why this happened and the worker claimed that Supervisor 1 was harassing them. Supervisor 1 said they walked away soon after. The panel noted that Witness 5 said of this incident that they felt that Supervisor 1 could have handled it better but noted that both the worker and Supervisor 1 were speaking with raised voices and that the entire incident lasted only a few minutes.

The employer also provided evidence to the WCB in an email dated August 23, 2021 outlining the response from Supervisor 2 to the chair incident described by the worker. Supervisor 2 stated that the worker was not simply speaking to Witness 2 about a chair but was rude to them, had pulled the chair away from them, and was speaking to them with a raised voice. Supervisor 2 stated that they became involved after Witness 2 came to them describing the worker’s rude behaviour toward them. Supervisor 2 followed up by talking with the worker to confirm that Witness 2 had the right to use that chair, and when the worker responded with questions and accusations of unfairness, Supervisor 2 raised their voice to the worker, telling them that they were wrong in their assumptions and that their behaviour was inappropriate and would not be tolerated. Supervisor 2 described this incident as verbal coaching and reprimanding of the worker. The witnesses to this event, including Witness 1 and Witness 3 confirmed that both the worker and Supervisor 2 were speaking with raised voices. Witness 2 confirmed the incident occurred as described by Supervisor 2.

In relation to the form incident, Witness 4 confirmed to the WCB that the worker was upset by the incident but note they were not present during this event. Witness 4 further noted that Supervisor 2 can be aggressive and demanding with everyone and is lacking in “people skills.” The panel noted that there is no evidence from anyone other than the worker and Supervisor 2 as to this conversation.

The panel also considered the medical reporting and evidence on file. We noted that the treating family physician offered a diagnosis of adjustment disorder with anxiety due to perceived threat for safety on January 19, 2021 after a telephone appointment with the worker in which the worker reported feeling unsafe at work due to Covid-19 and reported being “yelled and screamed at by people at work”. The family physician provided a sick note for 4 weeks of “stress leave” and referred the worker for a psychiatric assessment, which took place on June 9, 2021. The assessing psychiatrist’s report of the same date outlies the worker’s report of a series of incidents at work beginning in July 2020 when the worker was embarrassed by a supervisor in front of the “entire staff” and developed a moment of freezing, acute anxiety, and brain fog. The worker further alleged they were stalked by a supervisor over an 8-month period, and then in January 2021, “there was an unprovoked, extremely tense interaction with a different supervisor who started yelling at [the worker] and berating [them].” The panel noted that the assessing psychiatrist noted no prior psychiatric history, but that the worker also had a history of chronic pain and was taking various medications including one for anxiety and two opioid-based medications. The psychiatrist concluded that the worker:

“…presents with 6 months of intense anxiety, re-experiencing symptoms, avoidance and functional impairment as a result of a workplace stressor. [The worker’s] symptoms have persisted much longer than expected and are clearly in excess of what one would expect given the nature of the inciting stressor. [The worker] has also developed overvalued paranoid beliefs and is self-medicating with increasing amounts of alcohol.”

The panel noted that the “inciting” incidents as described to the psychiatrist in June 2021 are categorized by the psychiatrist as workplace stressors, and further, that these descriptions do not align with the evidence provided by the worker to the treating physician in January 2021, to the WCB in the worker’s August 2021 claim, nor with the worker’s evidence provided later and in the hearing. The panel accepts that the worker believes that the events occurred as they have recounted to various people on different occasions, but the evidence before the panel as a whole does not fully support the worker’s descriptions of those events. Where there are discrepancies between the recollections of the worker and the witnesses present, the panel prefers and gives greater weight to the descriptions of the third party witnesses.

The panel acknowledges and accepts the evidence that the worker has developed a psychological condition which they relate to the workplace events described, and which their care providers accepted as being related to those events as reported by the worker; however, as noted, the worker’s reports of these incidents are not fully supported by the evidence from the witnesses present. As such, the opinions of the treating care providers as to the causal relationship between the worker’s psychological condition and the workplace events, are given less weight.

While there is some evidence that the worker’s supervisors demonstrated less than exemplary behaviour toward the worker, the panel is unable to find that this behaviour amounts to wilful and intentional actions with malicious intent. As such, this behaviour does not meet that component of the definition of an accident. Furthermore, the panel is satisfied that none of the events described, even if they occurred exactly as the worker has alleged, would amount to a chance or fortuitous event occasioned by a physical or natural cause. As such, the panel finds that the evidence does not support that there was any accident. On weighing the totality of the evidence before us, and on the standard of a balance of probabilities, the panel is not satisfied that the worker’s psychological injury was sustained as a result of an accident arising out of and in the course of their employment. We find that the evidence does not support that any of the incidents described by the worker, including the August incident, the form incident and the chair incident amount to an accident as defined by the Act, in that the evidence does not establish that there was a chance event, or wilful and intentional act by another person that caused the worker to sustain a psychological injury.

On the standard of a balance of probabilities, the panel is unable 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. Therefore, the worker’s claim is not acceptable, and the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of August, 2023