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 videoconference hearing was held on November 17, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On May 14, 2021, the worker submitted a Worker Incident Report to the WCB, reporting a psychological injury that occurred at work on April 2, 2016 and was reported to the employer in the fall of 2016. The worker provided a detailed submission with their Report that outlined several interactions involving a co-worker who was also a supervisor (the "supervisor"). The worker noted that they never really noticed the supervisor until they were in a vulnerable state in late 2015. Throughout the beginning of their career they had started to get to know other workers and used to talk to the supervisor a lot, particularly with respect to their financial situation. The supervisor would offer them advice and they became friends on social media.

The worker outlined that at the end of December 2015 the supervisor invited them to spend an evening with them, but they declined. The worker reported that an event took place outside of work with the worker and some co-workers in March 2016, and described an incident at that time involving themselves and the supervisor. The worker advised that on April 2, 2016, the supervisor asked to speak to them in their office to discuss the March 2016 incident. The worker noted the discussion left them feeling "…mortified, embarrassed and confused," and after that, the worker found the supervisor was making them feel uncomfortable and it felt intimidating.

The worker further indicated that in the fall of 2016, they were to be transferred to the area where the supervisor would have been their direct supervisor and they spoke with their unit manager to request the transfer not take place. The worker discussed the incidents with their manager, who provided them with information about sexual harassment and encouraged them to access their employee assistance program. On October 26, 2016, a mediation took place with the worker, the supervisor and management regarding the incidents and the worker's request not to work with the supervisor, and a summary of the mediation was emailed to the worker by one of the managers on October 28, 2016, which the worker noted "…was made to sound like it had been [the supervisor] who was the victim of 'rumours'."

The worker noted in the Report that other workers made attempts after that to keep them from having to work with the supervisor. Their situation was only formally investigated in 2020, after another co-worker came forward with a complaint regarding the supervisor. The worker noted that after they were able to substantiate the other person's claim, their claim was reopened for investigation and substantiated. The worker advised that due to an increase in their symptoms, they had to use sick time to miss work, particularly when their treating healthcare providers recommended they not work with the supervisor and the employer placed them off work.

On June 10, 2021, the WCB contacted the worker to discuss their claim. The worker confirmed the details in the Worker Incident Report and advised that they had sought medical treatment in 2017 due to sleep issues and began psychotherapy in October 2019. The worker further confirmed that after the internal investigation took place in 2020, they were advised they would not be required to work with the supervisor anymore, but in March 2021, they were advised they were being placed back into their former position where they would be working with the supervisor again. The worker indicated to the WCB that their treating healthcare provider submitted a note advising the worker should not be in the same environment as the supervisor and advised the employer of the worker's diagnosis of post-traumatic stress disorder. The employer placed the worker off work as of May 4, 2021 as they said they did not know if the work environment would trigger the worker's post-traumatic stress disorder. The worker advised that after further discussion, the employer placed the worker in a different work location with reduced hours. The worker also provided the WCB with contact information for other co-workers and witnesses.

On July 21, 2021, the WCB received a July 19, 2021 report from the worker's treating psychologist. The psychologist reported the worker was first seen in their office on October 9, 2019 as a self-referral for symptoms of depression and anxiety. The worker described their interactions with the supervisor to the psychologist and noted they continued to experience symptoms from those incidents. The treating psychologist opined the worker met the DSM-5 criteria for Major Depressive Disorder and Post-Traumatic Stress Disorder and noted the worker "…struggles with low mood and has significant anxiety since these events took place." The psychologist further noted the worker had previous symptoms of depression and anxiety related to issues that occurred during their childhood and the worker had reported "… a marked increase of symptoms…" since the incidents with the supervisor. Further treatment was recommended along with a recommendation the worker only work with certain residents or the employer support the worker in allowing them to work opposite shifts from the supervisor.

On August 9, 2021, the worker's treating family physician provided the WCB with a narrative report. The family physician noted the worker described "…repeated episodes of sexual harassment perpetrated against them…" by the supervisor. The physician further noted the worker had been diagnosed with post-traumatic stress disorder as a result of the harassment and had comorbid depressive symptoms. The physician summed up the report by stating the worker was allegedly suffering from harassment in their workplace, in a setting of previous physical and emotional abuse as a child, which resulted in depression and post-traumatic stress disorder. It was recommended the worker avoid working in the same environment as the supervisor and continue their present therapy.

On August 10, 2021, the employer provided the WCB with a redacted copy of their report of the internal investigation dated October 7, 2020. On August 17, 2021, the WCB spoke with the worker to gather further information as a result of reviewing the investigation report, and the worker agreed to provide a copy of the notes from the mediation that took place in 2016.

The WCB contacted and spoke with some of the worker's co-workers. The first conversation took place on September 10, 2021 with a former co-worker. The former co-worker noted that when they started with the employer, they had been warned by multiple staff about the supervisor and noted the supervisor was their direct supervisor on and off. They noted the supervisor made sexual comments to them, and they believed the supervisor was taking advantage of other workers.

The WCB spoke with a second co-worker on September 14, 2021. The co-worker advised they owned the house where the March 2016 incident took place and they had not witnessed anything occurring between the worker and the supervisor at that time. They noted they were aware the worker was uncomfortable with the supervisor after the incident.

The WCB spoke with one of the worker's managers on September 15, 2021, who advised they were aware of the worker's concerns about working with the supervisor. The manager noted the supervisor had issues with other workers, and the supervisor started picking up overtime shifts to coincide with the worker's regular shifts. The manager also noted they were aware of the mediation that took place with the worker and the supervisor in 2016 and felt it would have been a very intimidating situation for the worker. The manager further noted the worker would likely have been considered for promotion into supervisory positions had they not started to miss work and their behaviour not been affected.

The WCB spoke with a further co-worker on September 21, 2021. The co-worker advised they had not seen anything happen between the worker and the supervisor, but could tell the worker was having some kind of issue with the supervisor and had looked upset and distraught on several occasions over a few years.

On October 5, 2021, the WCB advised the worker that their claim was not acceptable. The WCB acknowledged the worker was experiencing stress at work related to issues with the supervisor, but noted those difficulties arose out of a voluntary personal relationship and offsite gathering, and a subsequent mediation would be considered an employment related matter and did not meet the WCB criteria for the definition of an accident.

On January 12, 2022, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative submitted the evidence confirmed the supervisor's behaviour was "offensive and objectionable" to the worker, particularly since the supervisor was the worker's supervisor, and resulted in the worker sustaining a psychological injury. On March 11, 2022, the employer provided a submission in support of the WCB's decision, and the worker's representative provided a response to that submission on March 24, 2022.

On March 30, 2022, Review Office upheld the WCB's decision and determined the worker's claim was not acceptable. Review Office found the evidence on file did not support the supervisor used humiliation, intimidation, threats or coercion to intentionally interfere with the worker and found the worker's psychological difficulties did not arise out of or in the course of their employment.

On July 27, 2022, the worker's union representative filed an appeal with the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 5, 2023, the appeal panel met further to discuss the case and render their final decision on the issue under appeal.

Reasons

Chairperson Harrison and Commissioner Peterson:

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect at the time of the accident are applicable.

Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.

What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(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 also defined in subsection 1(1) to include 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.

Subsection 1(1.1) of the Act restricts the definition of accident, providing that the definition does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

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

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 Policy specifically excludes psychological injuries that occur because of burn-out or the daily pressures or stressors of work, noting 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.

In the Administrative Guidelines to the Policy, it is noted that:

The definition of accident is broad. The kinds of events that the WCB considers to be chance events, wilful and intentional acts or acute reactions to a traumatic event as set out in these guidelines are examples or illustrations and are not intended to be comprehensive.

With respect to wilful and intentional acts, the Administrative Guidelines further state 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.

The WCB will use a two-step process with wilful and intentional act type claims: 

• it will first determine whether the act described by the worker happened; 

• if it is able to make this finding, it will then determine whether the act was "wilful and intentional".

Acts such as assault, robbery, hostage-taking, riots, threats and harassment will be considered under the wilful and intentional act part of the definition.

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.

The Administrative Guidelines also provide as follows with respect to personal relationships:

Personal relationships (not arising out of employment) 

While a voluntary personal relationship may have begun in the workplace, and the breakdown may have consequences in the workplace, neither event arises out of the employment. Even if the actions of one of the parties in the workplace fall within the definition of wilful and intentional act, any resulting injury will not usually be compensable because the incidents and the injury arose out of the personal relationship, not out of the employment.

Worker's Position

The worker was represented by their union's Workers Compensation Specialist who relied on a written submission they provided in advance of the hearing and made an oral submission to the panel. The worker provided testimony through answers to questions posed by their representative and by members of the panel.

The worker's position was that their claim is acceptable because the evidence supports they suffered a psychological injury as a result of the wilful and intentional actions of a former supervisor.

The worker's representative acknowledged that the worker had developed a friendly personal rapport with their former supervisor prior to the March 24, 2016 event. The representative further acknowledged, in part, that a personal invitation to get together outside work and discussions with respect to personal matters while at work would not constitute harassment. The representative submitted, however, that the worker's reports to the WCB suggest that the supervisor intended to have more than a platonic relationship with the worker, given various comments they made to the worker that began to make the worker feel uncomfortable.

The worker's representative indicated that they agreed that what happened between the worker and the former supervisor at an event outside of work on March 24, 2016 did not constitute an accident, and submitted that what happened that night was immaterial to the worker's claim. The representative submitted that what was important, and what caused the worker's psychological distress, was what the supervisor subsequently did, where they chose to confront the worker at work, in their office and while in a position of authority, with the door closed and the lights off, to speak about a very personal matter.

The representative submitted that the worker was taken aback, humiliated and intimidated by this experience. The worker told the supervisor they did not want a romantic relationship and asked them for space, and although the supervisor agreed to give them space, they did not do so. Rather, the supervisor went out of their way to make contact with the worker while they were at work, purposely talking to them whenever they would see them in the hall and making them feel more uncomfortable.

It was submitted that when the worker learned they would be reassigned to work directly with the same supervisor in the fall of 2016, they asked for a different position, and a "so-called" mediation was arranged by the employer but did not address the worker's concerns and further invalidated them. The representative submitted that while the origin of the conflict between the worker and the supervisor related to the incident outside work, mediation became necessary because it had become an issue at work. The representative submitted that the notation in the email summary of the mediation, where the supervisor acknowledged the worker's concerns and committed to keeping personal and work issues separate, recognized the legitimacy of the worker's experience.

The worker's representative submitted that the supervisor's behaviour as reported was inappropriate and unwanted, and on a balance of probabilities, wilful and intentional actions under the Policy. The representative submitted that the fact the supervisor continued to initiate unsolicited communication which was not required as a result of their work supports the supervisor acted with intent to cause the worker psychological harm. The representative suggested it was likely the supervisor's actions, while seemingly genuine initially, were actually done deliberately and to build trust, rapport and an emotional connection with the worker, and that the change in the supervisor's behaviour demonstrated their ultimate goal was to exploit the worker and the personal trust and friendship they had built.

The worker's representative disagreed with Review Office's view that the supervisor's behaviour could not be considered harassment due to the nature of the issue raised by the supervisor. The representative submitted that the fact the supervisor chose to discuss sensitive personal matters while at work and in a position of authority over the worker supported that the behaviour constituted harassment.

In their evidence at the hearing, the worker stated, with respect to their interaction with the supervisor after April 2, 2016, that the day after the supervisor spoke to them in their office, they went to tell the supervisor they did not want a romantic relationship and the supervisor agreed to give them space. Anytime after that, however, when walking in the hallway, the supervisor would say something, as though the supervisor knew they were uncomfortable. The worker said the worker was so uncomfortable they could not make eye contact with the supervisor. The worker said that from April 2016 through to the mediation in October 2016, they avoided the supervisor "like the plague." The worker said that when they were told they would be relocating to the unit where the supervisor would be their direct supervisor, they tried to talk their way out of it, and told their manager what had happened and why they were so uncomfortable.

With respect to the outcome of the mediation, the worker said they felt the employer swept their concerns under the rug. The worker noted that after the mediation, the managers knew the worker was uncomfortable working with the supervisor and would make sure they did not put them together if they could. The worker said they only worked with the supervisor a few times after that, but the situation was nerve-wracking as they did not know if or when this would happen. The worker indicated that in 2019, when another worker had a disturbing incident with the supervisor, the worker reached out to them and participated in the investigation, during which time the worker disclosed their experience, and the other worker's claim was substantiated.

It was submitted that the worker's evidence, in conjunction with the witness statements their colleagues provided, supported they endured wilful and intentional actions of a superior at work, which were unrelated to the performance of their work and intended to cause harm. The representative submitted that the worker developed a psychological injury as a direct result of the repeated and unwanted behaviour and comments by the supervisor.

The worker's representative submitted that the October 27, 2020 letter from the employer which the representative filed in advance of the hearing corroborated that the worker's complaint to the employer of harassment against the supervisor was substantiated.

The worker's representative submitted that the evidence supports that the supervisor's behaviour towards the worker while at work, and in a position of authority, was harassment as defined by the employer's policy. The representative further submitted that the supervisor's actions "were wilful and intentional," as the supervisor knew, or ought to have known, they were offensive and objectionable to the worker.

Finally, the worker's representative submitted that the August 9, 2021 report from the worker's family physician supports acceptance of the worker's claim, where the physician noted that the sexual harassment the worker suffered in the workplace from their supervisor resulted in depression and PTSD and recommended the worker avoid working in the same environment as the former supervisor and continue with therapy. It was submitted that the July 19, 2021 assessment report from the treating psychologist similarly supports the worker developed a psychological injury due to "interpersonal distress from interactions with [the supervisor] since December 2015."

In summary, the worker's representative submitted that the information the worker provided supports and demonstrates they had interactions with the supervisor at work which were not work related, and that this was not by their choice. The representative noted it was the supervisor who chose to interact with the worker on a personal level, and suggested the supervisor was grooming the worker to form a relationship and to exploit that relationship. The representative submitted that this may have started out as a friendly relationship, but was changed by the supervisor's actions and behaviour, which impacted and continues to impact the worker.

Employer's Position

The employer was represented by their WCB Coordinator, who made an oral submission at the hearing. The employer's position was that the worker's claim for a psychological injury which relates to actions of their former supervisor is not acceptable, as the information does not establish the worker's ongoing difficulties are the result of a workplace accident as defined in the Act.

The employer's representative submitted that it is not disputed that the worker and their supervisor had a history of a personal friendship which started in late 2014. The worker indicated they were friends on social media, the supervisor commented on an internet posting, and the supervisor invited the worker to spend an evening with them. The representative submitted that a personal invitation to get together outside of work and discussions with respect to personal matters at work do not constitute workplace harassment.

With respect to the event outside of work on March 24, 2016 where the supervisor was present, the representative noted that there are various descriptions and conflicting versions of what happened at that event, and the worker's representative acknowledged on the appeal that what transpired outside of work on March 24, 2016 did not constitute an accident.

The employer's representative argued that the subsequent discussion between the supervisor and the worker in the supervisor's office on April 2, 2016 was about the March 24, 2016 events, and related to a personal matter. The representative submitted that while the conversation may have made the worker feel uncomfortable, it did not constitute workplace harassment due to the context of what was discussed. The representative further submitted that there is no evidence the supervisor used their position as a supervisor to intentionally interfere with the worker or exploit them by use of humiliation, intimidation, threats or coercion.

The employer's representative further submitted that the change in the worker's relationship with the supervisor following the March 24, 2016 event was again a personal matter and not work related. The worker avoided the supervisor and worked opposite shifts from them following their April 2, 2016 discussion. In September 2016, when the worker was to be moved to a unit where the supervisor would be the worker's direct supervisor, the worker reported their concerns with the transfer and this resulted in a mediation meeting. The representative submitted that the difficulties and stress the worker claims resulted from the October 26, 2016 mediation do not meet the definition of an accident as they would be considered employment related matters and therefore excluded from the definition of an accident under subsection 1(1.1) of the Act and the Policy.

In conclusion, the employer's representative submitted that the worker's claim for a psychological injury is not acceptable, as the information establishes their situation and ongoing difficulties arose out of a voluntary personal relationship and an off-site event on March 24, 2016 and are not the result of a workplace accident as defined in subsection 1(1) of the Act. Based on the Act and the Policy, a voluntary personal relationship will not give rise to a compensable claim, whether the parties met in the workplace or as a result of the workplace, because such matters arise out of the personal relationship and not the employment.

The employer's representative therefore asked that the panel uphold Review Office's March 30, 2022 decision and find that the worker's claim is not acceptable.

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 a psychological injury as a result of an accident arising out of and in the course of their employment. For the reasons that follow, the majority is unable to make that finding.

The evidence shows that the worker had established a rapport/relationship with the supervisor prior to March 24, 2016. The worker described their relationship at the beginning as voluntary. The worker indicated that they would discuss outside of work stuff, such as banking, and they felt like an equal, but the worker always had it in the back of their mind that the supervisor was their supervisor. The worker indicated they would discuss things usually at the end of a shift or during lunch break, and most of their discussions were while at the workplace. The worker said they were comfortable when it was a platonic conversation, but more personal discussions made them uncomfortable. The worker also noted that they had been made aware of the supervisor's "reputation" and told to be careful around the supervisor.

The worker's representative confirmed at the hearing that they were relying on the April 2, 2016 incident in the supervisor's office as "the primary accident responsible for the injury." There is no dispute that the worker met with the supervisor in the supervisor's office on April 2, 2016 with the door closed and the lights off. The supervisor referred at that time to an event that had occurred at a social event outside of work on March 24, 2016, and a particular incident that the supervisor said had occurred at that event, and the worker said they did not remember that happening. The worker has indicated that the conversation made them feel "…mortified, embarrassed and confused."

The worker said that they later talked to three other people who were at the event and were told that nothing had happened. On April 3, 2016, the worker talked to the supervisor again and told them they respected them as a supervisor but did not want a romantic relationship and it made them feel uncomfortable. The worker said they also asked for space, and the supervisor said they would respect that, but did not do so.

The worker's representative noted that the supervisor brought a personal matter into the workplace. At the time, the worker had no idea why they were called in to talk with the supervisor, and "out of the blue" the supervisor said they were going to talk about something of a personal nature. The representative argued that the worker was not a voluntary participant in that conversation.

The majority is satisfied that a meeting with the supervisor in the supervisor's office with the door shut and the lights off was inappropriate. The majority is unable to find, however, that the incident, in terms of the discussion relating to an event outside the workplace and outside work hours, met the definition of an accident which arose out of and in the course of employment. The majority notes that the worker had indicated that most of their previous conversations with the supervisor, including personal conversations had taken place at work. The worker's evidence was that they felt "…mortified, embarrassed and confused." The majority is not satisfied that the evidence supports that the supervisor acted wilfully or intentionally, or in bad faith or with malice, in raising that incident.

The worker's representative has argued that even though the worker continued to work after that, they continued to suffer from the effects of the supervisor's actions. The majority notes that few details are provided in support of that argument.

The majority further notes that evidence on file with respect to the worker's claim consists largely of a written description of incident which the worker prepared in support of a co-worker's complaint against the supervisor in or around 2020, and their own recollection, as well as interviews of co-workers in September 2021. The majority notes that there is a lack of documentary evidence with respect to incidents at or around the time they occurred. The majority would have expected that if the worker was experiencing ongoing contact or incidents which caused them such concern as they have indicated, they would have documented them at the time.

The worker did indicate they avoided the supervisor like the plague. The worker also noted, however, that they felt singled out. Few or no details were provided as to what they were relying on in this regard. The worker did indicate that every time the supervisor would pass them in the hallway, the supervisor "made a note to say something to me, whether it be 'Hello, [name],' or whatever. And that's not common. Like, [they] didn't do that all the time before. So…it just felt like…[they] knew I was uncomfortable, so [they] just wanted to keep creating that uncomfortability." The majority is of the view that what is meant or intended by saying "Hello" or making similar comments is subject to interpretation and dependent on context, and while the worker said they found this uncomfortable, the majority is unable to attach much weight to such comments in the circumstances or to the worker's perception that this was happening more often.

It was noted that in the fall of 2016 when the worker learned that they were being transferred to a unit where the supervisor would be their direct supervisor, a mediation was arranged. It was argued that the communication to the worker summarizing the mediation at least recognized the legitimacy of the worker's experience. It was also noted that following the mediation on October 26, 2016, certain co-workers would arrange the schedule so the worker would not have to work with the supervisor. While this supports that the worker did not want to interact with the supervisor and that others were aware of this, the majority does not view this as establishing or confirming that an incident occurred as contemplated under the Act.

Information on file includes a redacted copy of the October 7, 2020 report of the employer's investigation into the Respectful Workplace Complaint that the supervisor engaged in disrespectful/harassment behaviour towards the worker and other workers. The worker advised at the hearing that the Description of Incident which they provided with respect to that investigation, as listed in that report, is the same as was attached to the Worker Incident Report in this claim. The majority notes that the worker's evidence as outlined in the investigation report is also very similar to what is outlined in the Description of Incident.

The worker's representative submitted a copy of an October 22, 2020 letter to the worker relating to Respectful Workplace Complaint in advance of the hearing and relied on that report as corroborating the worker's complaint. The majority acknowledges the October 27, 2020 letter, in which it is stated that the worker's complaint "had been completed and substantiated." The letter also indicates that "recommendations were made and will be followed up concerning this investigation." In the majority's view, it is unclear, based on the available information, precisely what was accepted with respect to that complaint, and on what basis.

Significant concerns were raised in the course of these proceedings with respect to the employer having provided only very limited information and not disclosed other information which would be relevant. The majority acknowledges those concerns, although we would expect that any recommendations which directly impacted the worker would have been communicated to them. In any event, the majority understands that the conclusions or findings of the investigation in those proceedings are not binding in the present proceedings, where claim acceptance is at issue, and the majority is therefore unable to attach weight to the October 27, 2020 letter.

Based on the foregoing, the majority of the panel is unable to find there has been an accident arising out of and in the course of employment.

Further, or in any event, the majority notes that for a claim to be acceptable under the Act, it must be established that the worker suffered an injury as a result of the accident. The majority has considered this factor and notes that even if there has been an accident arising out of and in the course of employment, we are unable to find that the worker suffered an injury, or if so, that the injury was caused by the accident.

In this regard, when reviewing the evidence on file at the time of the hearing, the panel found that there was a minimal amount of medical information with respect to the worker's psychological status or condition and the treatment they received. The worker had indicated that they had been seeing their family physician for treatment on an ongoing basis, and that they were prescribed medications in 2017 and 2018 which were intended to help them cope. Following the hearing, the panel therefore requested and received copies of chart notes from the worker's treating family physician from January 2016 forward.

In reviewing the family physician's chart notes, the majority noted that while there are references to psychological issues or symptoms, there are very few references to the workplace or workplace concerns. The first of the chart notes, dated January 14, 2016, thus refers to "upsetting developments in [their] life." Some of the subsequent chart notes refer to the workplace, but do not refer to issues at work or indicate the worker has concerns with work or the workplace. The October 21, 2016 chart notes thus report "same issues re anxiety, works in [workplace]/mood stable," and the November 27, 2017 chart notes indicate "works in [workplace] but enjoys it." The October 31, 2019 chart notes indicate the worker is now seeing a psychologist, but indicate "seeing a therapist… is a victim of childhood abuse." Again, there is no reference to the workplace in those reports.

The first reference by the family physician to a work issue and the supervisor is found in their March 23, 2021 chart notes, where it is noted under subjective findings: "symptoms of PTSD, related to co-worker and alleged sexual harassment." It is further noted that the worker appears in no distress and an exam was deferred. A diagnosis of "anxiety – related to work stressor as noted above" was provided.

The panel also requested and received copies of medical reports from the treating psychologist. Reports indicate the worker started seeing the psychologist on October 9, 2019, although it was with respect to another issue. In their November 18, 2019 report to the family physician, based on their first two sessions with the worker, the psychologist thus noted the worker had referred themselves to the psychologist "to treat symptoms of depression and anxiety" and the worker had described a history of abuse within her childhood.

The medical evidence provided further shows that the first time the worker spoke to the psychologist about workplace issues was in September 2020. It is thus noted in their April 21, 2021 report to the WCB that the worker reported they had experienced interpersonal distress from interactions with the supervisor since December 2015. It was noted that the worker had provided a detailed report of the events related to their claim to the WCB which was attached. The majority notes that this was the same report as was attached to the Worker Incident Report (with a few paragraphs added at the end as an update.) The report further indicated that the worker had reported an exacerbation of symptomology since 2016 when their distressing interactions with the supervisor began.

The majority notes that there is no dispute the worker has a pre-existing psychological condition. Although the worker indicated that they had been seeking treatment on an ongoing basis for their workplace issues or injury, this is not supported by the medical evidence which is before us, as indicated above. The majority is further of the view that had the worker been experiencing such significant psychological symptoms and concerns or increasing symptoms, as they have indicated, they would have been seeking medical treatment for those concerns much earlier, or if they did, that it would have been documented in the physician's chart notes. Based on the evidence, the majority is therefore unable to find, on a balance of probabilities, that the worker suffered a psychological injury as a result of a workplace accident.

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

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of August, 2023

Commissioner's Dissent

Commissioner Kernaghan's Dissent:

The foundation for this claim is the unwanted and inappropriate conduct of one of the worker's supervisor's towards the worker. Although the main focus of the claim surrounds a conversation that occurred at work on April 2, 2016, the compensable injury involved a number of interactions both before and after that date.

Whether some or all the events occurred at work is not relevant in the writer's opinion as they arose out of the worker's employment. Both the worker and the supervisor worked together. It is reasonable to conclude that, but for the common employment between these two individuals, they would likely not have any interaction between them.

The WCB policy pertaining to psychological injuries requires that in considering claim acceptance where there is an allegation of psychological injury, the panel must determine whether any of the incidents described amount to an accident under the provisions of the Act. The writer notes that the Policy explicitly sets out that an event need not be objectively serious to be an accident. The writer further notes that the definition of accident excludes any change in respect of employment.

The writer is satisfied that the evidence does not support a finding that there was any change in respect of the employment of the worker, including promotion, transfer, demotion, lay-off or termination, which changes are explicitly excluded from the statutory definition of an accident.

The worker’s claim arises out of a series of incidents described in detail in the documents provided to the WCB by the worker and the employer, including the worker’s own notes and investigation notes from the employer’s respectful workplace and harassment investigation, as well as other reports and documents on file. The writer reviewed the incidents involving the coworker and their supervisor. For the present purposes, the writer has focused on the more significant events which can be summarized as follows:

• The supervisor attempted to start a personal relationship with the worker initially under the pretext of providing the worker with support and advice with some personal problems the worker was dealing with.

• On April 2, 2016 the supervisor told the worker that the worker made sexual advances towards the supervisor during a social function in late March 2016, when the worker was intoxicated. Further, the supervisor made it evident to the worker that they wanted to pursue such a relationship with the worker. The worker's recollection is that she made no sexual advances to the supervisor.

• The worker's continued exposure of having to work with the supervisor despite their attempts, with the assistance of co-workers to avoid having to work with the supervisor. Despite the worker's efforts, they were still required to work with the supervisor on occasions.

• On April 9, 2016 the worker was confronted at a social event by the supervisor who asked why the worker would not speak to them. The worker's evidence was that they stated to the supervisor that "I don't feel comfortable talking to you." the worker further reported "After that, it felt that like [they] continued to single me out even more in an intimidating manner and purposely talk to me at work whenever I was in the vicinity."

• In the fall of 2016, the worker was advised they were being transferred to a department that would result in the worker being under direct supervision of the supervisor. The worker raised their concerns with the situation with a number of superiors which resulted in the worker being provided with information on sexual harassment. No further supports were provided by the employer.

• Also in the fall of 2016, the worker's supervisor made a complaint regarding the "gossip" that was circulating, which resulted in the employer initiating a mediation meeting between the worker and the supervisor. The worker stated: "During the meeting I felt so small and intimidated." The writer notes that the file notes do not reflect that the supervisor disclosed during mediation their belief that the worker had made sexual advances to them as they had advised the worker in the spring of that year.

The worker provided detailed information regarding the above noted events and how these events affected them. The writer further notes that the employer did not dispute the details of the events as described by the worker.

The employer conducted a respectful workplace and harassment investigation in 2020. The WCB requested a copy of that investigation which was provided. The writer notes that outside of the specific interview notes involving the worker, all other information was redacted by the employer.

The employer provided the worker a letter dated October 27, 2020 which stated, in part, "The investigation into your complaint has been completed and substantiated." However, at the hearing, the employer representative disputed the findings outlined in the October 27, 2020 correspondence but provided no evidence to support that assertion.

As such, the writer accepts the worker's description of these events which were consistently reported throughout the file.

Based on the evidence available, the writer is satisfied that the worker's supervisor undertook wilful and intentional acts that they knew, or a reasonable person would have known would be offensive or objectionable to the worker.

The writer notes that medical information contained on file stated that the worker met the DSM-5 criteria for Major Depressive Disorder and Post Traumatic Stress Disorder as a result of the worker's interactions with the worker's supervisor as well as "...lack of support [the worker] has felt..."

There is a lack of evidence provided either by the employer or WCB that disputes the medical diagnosis provided and the writer accepts the medical diagnosis as accurate.

The writer further notes that the psychological reports are based on the same information that is provided throughout the file and draw a direct link between the work events raised by the worker and the injury. As a result, the writer accepts that the worker experienced an injury as a result of the workplace events described.

For clarity, the writer is not of the view that all psychological injuries that occur as a result of relationships between individuals who work together are compensable.

The employer's representative has correctly pointed out that injuries caused by "voluntary personal relationships" are specifically excluded by the Policy. The employer's representative submitted that the panel should disallow this claim on that basis.

However, it is the writer's position that this situation that gave rise to this claim was not "voluntary", "personal", or a "relationship". Further, while the employer disputes the nature of the relationship between the worker and the supervisor, they chose to provide no contradictory evidence to challenge the worker's evidence. The writer notes that the worker's allegations and assertions were fully disclosed in the worker's submission, through their Union, to the Review Office, which the employer would have received a copy of. Given that the employer chose not to introduce any contradictory evidence to support their assertions, the writer draws an adverse inference from the employer's decision to not provide any evidence in this matter.

In these circumstances, it is the writer's position that the events were further exacerbated by the inherent imbalance of power between a worker and the supervisor. The supervisor has the ability to affect the working conditions of the worker. The worker was a relatively new employee compared to the supervisor who had been employed at the workplace for many years. In the writer's view, such an imbalance of power would reasonably contribute to the worker feeling less able to appropriately to deal with the situation and the supervisor attempted to take advantage of their position to coerce the worker into a relationship with them.

Based on the totality of the evidence available the writer is satisfied that a workplace injury occurred and that the worker's claim should be accepted.