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 November 15, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On August 13, 2022, the worker submitted a Worker Incident Report to the WCB reporting a psychology injury that occurred at work on July 29, 2022. The worker described “Concerns about damaging gossip going around to co workers” and noted they reported the incident to the employer on July 30, 2022.

The WCB contacted the worker on September 13, 2022 to discuss their claim. The worker described their coworkers discussing details of the worker’s personal life but would not provide specifics to the WCB adjudicator. The worker further advised another coworker had let them know other coworkers were speaking about the worker when they were not at work as well. The worker noted that when they brought up the matter with the general manager, who was a family relation, their employment was terminated. The worker provided names of coworkers who were witnesses to the incidents. The worker further advised the WCB they were previously diagnosed with post-traumatic stress disorder (PTSD) as the result of a motor vehicle accident in 2019 and continued to be seen by a counsellor related to that diagnosis.

A further Worker Incident Report was provided to the WCB on September 15, 2022 with the worker describing:

I was bullied psychologically by another employee in which appalling gossip was being spread around the workplace. I confronted the manager about this issue and my job was terminated for coming forward in which I believe is a very discriminatory action against myself for doing the right thing by exercising my workers (sic) rights.

The WCB again spoke with the worker on September 23, 2022. The worker again advised their coworkers, in particular, one coworker who was also a family member, had been spreading untrue stories about them. The worker also advised they had spoken with the manager who spoke with the other coworkers about the incidents. The worker noted they attended for medical treatment on August 2, 2022 and was placed off work for two weeks. It was also noted the worker had a history of psychological difficulties related to a non-compensable motor vehicle accident and other incidents and had been diagnosed with PTSD.

On October 7, 2022, the WCB spoke with the general manager. The general manager confirmed they were a family relation of the worker’s. Further, the general manager advised they had spoken with the coworker who the worker had accused of spreading untrue stories about the worker. The coworker advised the general manager they had not talked about the worker with any other coworkers. The general manager did tell the WCB the coworker acted in their place at times when they were not available and queried whether the worker had an issue with the coworker being in charge at times. On November 14, 2022, the WCB spoke with the manager who advised they were not aware of any rumours about the worker. Further, the manager advised they had not spoken to the worker’s coworkers about the issues as the worker had already advised the WCB. On the same date, the WCB provided the worker with a decision letter to advise their claim was not acceptable as the evidence did not established they sustained an injury arising out of or in the course of their employment. A Doctor First Report was received by the WCB on October 27, 2022 for the worker’s appointment on October 26, 2022. The treating physician recorded the worker’s reporting of being stressed due to a coworker spreading damaging gossip about them unrelated to work and provided a diagnosis of PTSD flared up due to coworker related stress. The physician noted pre-existing PTSD symptoms and anxiety disorder for the worker.

The worker requested reconsideration of the WCB’s decision to Review Office on November 8, 2022. In their submission, the worker noted the belief their claim had not been investigated thoroughly as their medical records had not been reviewed and the WCB had only spoken to the employer. On November 22, 2022, Review Office determined the worker’s claim was not acceptable. Review Office found the evidence gathered from the employer, in particular, the general manager, did not support the comments made by the coworker were willful or intentional and noted the worker and the coworker had a personal relationship outside of their employment. Review Office further found the circumstances of the claim did not meet the definition of an accident under the WCB policies or regulations. It was noted the worker sought medical treatment for PTSD in October 2022 with their treating physician opining the worker’s pre-existing PTSD was flared up, however, as it had been determined the worker’s claim did not meet the definition of an accident, Review Office could not account for the worker’s PTSD difficulties.

The worker filed an appeal with the Appeal Commission on February 21, 2023 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 February 14, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The panel considered these sections and policies.

The Act sets out the definition of an accident in Section 1(1) as follows:

"accident", subject to subsection (1.1), includes

(a) a chance event occasioned by a physical or natural cause,

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

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

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

The WCB Board of Directors has established a policy relating to the adjudication of psychological injuries, Policy 44.05.30 (the “Policy”). The Policy describes the approach the WCB uses when deciding whether workers are entitled to compensation for psychological injuries that do not arise as a consequence of a physical injury.

The Policy provides that psychological injuries must meet the Act's basic criteria to be compensable. These are: (1) there was an accident; (2) the worker suffered an injury; and (3) the injury was caused by the accident. The term "accident" is defined in the Act and is set out above.

The Policy states that events that produce mental stress (such as the daily pressures of work and life) and events and actions between an employer and worker (such as discipline, transfer, demotion, etc.) are not accidents under the Act.

Psychological injuries resulting from a voluntary personal relationship that originated in a workplace is not compensable. While the personal relationship may have originated in the workplace, the relationship itself, and the events occurring within the relationship, are not related to the work.

WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-X Policy”) outlines that the WCB will not provide benefits for disablement resulting solely from the effect of a worker’s pre-existing condition as such a condition does not fall within the definition of personal injury by accident arising out of and in the course of employment.

Section 27(1) of the Act provides that the board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

The worker represented himself at the hearing. He made an oral submission outlining his position and answered questions posed to him by members of the appeal panel.

The worker’s evidence was that his co-workers’ behaviours and gestures towards him caused him to feel humiliated and alienated. He stated that he felt shamed and powerless. The worker felt there was no confidentiality or trust in the workplace and that he could not return to work. The worker provided evidence that when he couldn’t return to work, he gave a letter to his coworker to provide to his employer. He stated that the letter explained that he felt unsafe at work. He also saw a doctor to express these concerns.

The worker's position is that as a result of verbal harassment that occurred at work, the worker experienced psychological injury. The workplace accident both caused injury and aggravated the worker's pre-existing psychological condition of anxiety and depression. As a result of the injury, the worker was unable to continue to work and sought medical attention for psychological symptoms. The worker submits that his claim ought to be accepted as he suffered an injury at work as a result of an event arising out of, and in the course of, employment.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury as a result of an accident arising out of and in the course of employment. The panel is able to make that finding.

The first question for the panel to determine is whether there was an accident arising out of and in the course of employment. If there was no accident, then the claim must be denied. If there is an accident, then the second question for the panel to consider is whether the worker was injured as a result of the accident.

Was there an accident arising out of and in the course of employment?

The panel considered the definition of an accident under the Act. The panel accepts that the acts described by the worker happened as he described them. The panel finds that the unwanted behaviour of the coworkers toward the worker was a wilful and intentional act that is not the act of the worker.

Furthermore, accidents must “arise out of and in the course of employment” in order to be compensable. There is an exception to this. Accidents arising out of personal events or actions over which the employer has no control are generally not compensable. The panel considered whether the fact that the coworker was a relative of the worker meant that the employer had no control over the actions that occurred. The unwanted behaviour was happening during work hours, at the place of employment and while the worker was performing work duties. Simply because the worker and the coworker are relatives does not absolve the employer from ensuring the worker felt safe at his place of employment. The panel found that the employer did have control over the events and actions that occurred at his business, especially given the evidence that the worker told the employer that the unwanted behaviour was occurring and the employer did not address it in a meaningful way.

Was the worker injured as a result of the accident?

The panel must consider whether the worker was injured and more specifically, whether there was a psychological injury arising out of the accident. The panel finds that the medical evidence on file confirms that the worker was injured.

The panel took into consideration the chart notes from the worker’s physician which detailed the worker’s concerns and noted symptoms of anxiety and depression. The worker obtained a sick note following the incident and the panel accepts the evidence from the worker that he wrote a letter to his employer expressing his concerns. The panel also acknowledges that the worker has a pre-existing anxiety disorder following an incident several years prior. The panel finds that the worker's pre-existing condition created a heightened susceptibility of the worker to experience further psychological injury.

The panel finds, on a balance of probabilities, that the worker did experience a psychological injury as a result of the accident of July 29, 2022. The injury occurred in the context of the worker's pre-existing conditions of anxiety and depression. In making this finding, the panel makes no determination as to the specific psychological diagnosis attributable to the accident of July 29, 2022.

The panel determines that the worker was injured as a result of an accident arising out of and in the course of his employment, on July 29, 2022. The claim is therefore acceptable and the appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of April, 2024