The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the decision of the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on November 21, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on March 24, 2023 describing a psychological injury sustained at work on April 1, 2018 and reported to the employer on January 1, 2019. The worker described being "…targeted and bullied and harassed" by managers, as a result of which they began calling in sick and developed rashes on their skin in 2018. The worker reported using sick leave in 2020 and outlined the medical treatment and medications prescribed.

The employer provided an Employer Injury Report to the WCB noting no record of an injury or incident involving the worker on or around April 1, 2018.

On March 29, 2023, the WCB contacted the treating psychiatrist who advised they were no longer treating the worker and had not treated the worker between 2018 and 2020. The psychiatrist confirmed they began treating the worker on May 1, 2021 and that they had no contact with them since July 2022. The psychiatrist further advised that although they spoke with the worker about their work, that was not what they were treating the worker for.

The WCB received a report from the treating family physician on April 21, 2023, which indicated the worker initially reported symptoms of anxiety on April 12, 2019, noting their frustration with their supervisor and that they felt singled out for criticism. The physician reported that the worker felt they could not effectively communicate with their supervisor, which led to distress and anxiety that affected their mood, sleep, appetite and confidence, and as a result, the worker requested a break from work to help them cope. The treating physician recorded that the worker was “…irritable, mildly agitated, sad, angry and frustrated” and noted the worker’s thoughts related to their workplace situation. The physician reported that the worker had situational anxiety and noted at that time they did not prescribe medication but recommended counselling. The physician further noted the worker sought counselling through the employer’s assistance program and they referred the worker to an outpatient psychiatry program. The physician’s report included a copy of that referral and the consultation report from the psychiatrist dated May 11, 2021. The physician further noted the worker’s attempt to return to work was unsuccessful as they developed worsening anxiety symptoms and that the worker remained off work.

In their consultation report of May 11, 2021, the psychiatrist noted they virtually assessed the worker on that date, with an entrance complaint of panic attacks. The worker reported having problems with one of their managers in 2019 and described feeling bullied and abused by management. The psychiatrist noted the worker stated that when they spoke up about these issues at work, they got into trouble, and that they took a leave of absence in 2020. The psychiatrist also noted the worker’s description of two recent incidents when their anxiety increased, leading them to attend a local emergency room. Based on the information and history provided by the worker, the psychiatrist noted their diagnostic impression of panic attacks, rule out panic disorder and subsyndromal post-traumatic stress disorder, and recommended ongoing therapy, such as cognitive behaviour therapy, and psychoeducation on the features of panic attacks, and other treatment options.

When the WCB spoke with the worker on May 10, 2023, the worker described incidents of being “targeted and bullied and harassed” by a manager, and that after they reported the manager’s conduct, there were multiple managers targeting them. The worker advised they began calling in sick and developing skin rashes in approximately 2018 and took medical leave in 2020. The worker provided details of specific incidents to the WCB when they felt they were being harassed. The WCB advised the worker that issues relating to difficulties with coworkers and supervisors do not fall within the definition of an accident under the WCB policy, but further investigation was required.

On July 10, 2023 and August 30, 2023, the worker provided additional information to the WCB, including copies of emails between the worker and the employer and copies of correspondence between the worker and their union. The correspondence from the worker’s union indicated they were not aware of complaints made by the worker while employed with the employer.

By letter of September 27, 2023, the WCB advised the worker that it determined the claim was not acceptable as the psychological difficulties described by the worker related to their employment and the incidents reported did not establish an accident as defined in the legislation and WCB policies.

On October 5, 2023, the worker requested Review Office reconsider the WCB’s decision, submitting that the prolonged incidents of harassment, bullying and intimidation by senior management caused them to experience psychological damage that required medical care and treatment. On January 11, 2024, Review Office determined the worker’s claim was not acceptable.

On June 13, 2024, the WCB advised the worker that Review Office would reconsider the September 27, 2023 decision of the WCB. On July 25, 2024, Review Office determined the worker’s claim was not acceptable. The worker filed an appeal with the Appeal Commission on August 1, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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 provisions of the Act and the WCB policies in effect at the time of the accident are relevant.

The Act sets out the definition of an accident in s 1(1) as “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….

The Act defines 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 this does not include an ordinary disease of life or stress, other than an acute reaction to a traumatic event. Section 1(1.1) of the Act also excludes from the definition of accident any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

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

The WCB established Policy 44.05.30 Adjudication of Psychological Injuries (the “Policy”) to outline how the WCB will decide claims for psychological injury. The Policy in effect as of the date of accident confirms that a psychological injury claim is decided in the same way as claims for physical injuries. First, the WCB determines whether there was an accident arising out of and in the course of employment and then, if so, whether the worker sustained an injury, and if so, whether the injury was caused by the accident. The Policy specifically outlines the exclusion of psychological injuries because of burn-out or the daily pressures or stressors of work because those pressures or stressors do not fall within the definition of accident, as there is no chance event, no wilful and intentional act, and no traumatic event. The Policy also sets out that “Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.”

Worker’s Position

The worker appeared in the hearing on their own behalf and made an oral submission to the panel in support of their appeal. The worker also relied upon written material submitted to the Appeal Commission in advance of the hearing date.

The worker’s position is that the claim should be accepted as the evidence, including the medical reporting and the information the worker provided to the WCB confirms that as a result of a series of events which the worker described as harassing behaviour by their immediate manager and other managerial staff of the employer, beginning in 2016 and continuing through 2020, which culminated in the worker taking sick leave and resigning from their employment, the worker sustained a psychological injury.

The worker provided further detail and answered the questions of panel members in relation to the specific incidents outlined in their Impact Statement submitted on November 1, 2024, which they submit demonstrate what they described as unfair treatment by management and incompetence of their direct manager. The worker submitted that the pattern of behaviour by other employees of the employer directed toward the worker amounts to bullying and harassment, which caused them to develop anxiety, depression and panic attacks as well as subsyndromal post-traumatic stress disorder, as detailed in the psychiatric consultation report of May 11, 2021. The worker submitted that no single incident of those described amounts to an accident, but the totality of the reported events amount to an accident that caused injury to the worker.

The worker also submitted that the WCB, including the Review Office, failed to consider their medical history and treatment provided by their primary care physician and through the employer’s assistance program, noting as well that the WCB decision-makers did not appear to have any healthcare background or medical training.

Employer’s Position

The employer did not participate in the worker’s appeal.

Analysis

The question on appeal relates to whether the worker’s claim that they sustained a psychological injury as a result of harassment by senior managers in the workplace is acceptable. For the worker’s appeal to succeed, the panel would have to determine the worker was injured 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.

As required by the Policy, when there is an allegation of an accident causing a psychological injury, the panel must first determine whether any of the incidents described amount to an accident under the provisions of the Act. The Policy confirms that any change in respect of employment, such as promotion, transfer, demotion, lay-off or termination cannot be found to be an accident.

The worker’s claim arose from a series of incidents detailed in the documents the worker provided to the WCB, including their own notes, various emails and correspondence obtained by the worker. The panel reviewed the information provided by the worker in relation to these workplace events and incidents which the worker alleges amount to an accident that caused injury to them. The details are set out in the file materials as well as in the worker’s testimony in the appeal hearing and will not be fully repeated here, but are summarized as follows:

• 2016 incident at work when the worker made some errors and then challenged the manager’s assertion that they could safely work, resulting in a meeting with the human resources manager and the worker’s union representative, leading to a verbal warning to the worker; 

• 2018 incident where the manager spoke to the worker about an error made, but the worker advised they were not working when the error was made, and they felt blamed and targeted by the manager as a result; 

• 2018 incident at work when the worker felt unsafe to function during a shift after working ten consecutive shifts and the worker threatened to go home if the manager made them function in that capacity, and the manager called human resources about the situation; 

• 2019 incident when the manager told the worker and two co-workers that if they failed to perform certain duties “I will see you in HR”; 

• 2019 incident when the human resources manager called the worker about reporting to work while the worker was away on vacation previously approved but not recorded by their manager; 

• 2019 concerns regarding payment for the worker’s sick leave, which concerns were addressed through involvement of the worker’s union in 2019; 

• 2019 incident when the worker requested their manager to assist and the manager agreed to do so but then did not show up, resulting in the worker reporting the incident which led to a meeting with a union representative, the manager’s manager and the human resources manager; 

• Audit by the worker’s professional regulator which the worker believes was instigated by the senior management; 

• 2019 incident where another co-worker was brought to tears by comments made by the worker’s manager, resulting in a 2019 complaint by the worker to the manager’s supervisor about the manager’s actions, the worker’s follow up with their union representative and a query to the applicable professional regulator; and 

• 2020 incident when the worker was called to their manager’s office with another co-worker and the manager threatened the worker by saying “I don’t know where you came from but you better be careful because I am watching you.”

The panel reviewed the evidence in relation to each of the events or incidents described in the worker’s submissions and we are satisfied that the evidence does not support a finding that there was any event that could amount to a chance event occasioned by a physical cause, as described in s 1(1) of the definition of accident in the Act.

The panel then considered whether any of the incidents or events meet the definition of accident as set out in s 1(1)(a) of the Act, as “…a wilful and intentional act that is not the act of the worker” as the worker asserted. The panel noted that the Administrative Guidelines to the Policy explain that “A wilful and intentional act is one which involves malice or bad faith. Malice or bad faith will be found when the person committing the act knew, or a reasonable person would know that the act was offensive or objectionable to the worker.” The Guidelines also set out that in harassment claims “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 the relevant evidence that is available.” While these Guidelines do not bind the appeal panel, we noted the worker relied on these provisions in their submission and as such, considered their application to the evidence here.

The panel considered whether the totality of the evidence supports the worker’s position that their manager, the manager’s manager and the human resources manager undertook wilful and intentional acts with malice or bad faith, which they knew the worker would find offensive or objectionable or that a reasonable person would find to be offensive or objectionable. The panel reviewed the evidence in relation to the specific events described by the worker and finds that even if each of these incidents occurred exactly as the worker described, there is no evidence of malice or bad faith or that the actions of the various managers were such that a reasonable person would know the actions would be offensive or objectionable to the worker. The worker acknowledged in the hearing that they cannot say if there was or was not malice or bad faith as the WCB did not seek out further information from the employer. However, the panel noted that while the employer did not itself provide any detail in respect of these incidents, some of the documents the worker relied upon were produced by other employees of the employer and confirm the detail, including the timing and nature of those incidents from the employer’s perspective.

The panel finds that a number of the incidents or events the worker described fall squarely within the category of labour relations and note that this is confirmed by the involvement of the worker’s union in addressing some of the concerns raised. We further find that the worker’s perception that the various members of management were acting alone or in concert to harass the worker in the workplace is not borne out by the evidence; rather, the evidence points to a finding that in most cases their actions were directly responsive to the worker’s actions and comments, or directed to the staff more broadly or to other individuals, or amount at most to flawed judgement or decision-making in the context of a busy work environment. We further find that the worker’s perception of the incompetence of their manager is not equivalent to harassment but is an employment related matter outside the jurisdiction of this panel and excluded from the definition of an accident.

The panel also considered whether there is any evidence to support a finding that the worker sustained injury as a result of an occupational disease arising out of and in the course of employment which excludes an ordinary disease of life or stress but includes an acute reaction to a traumatic event. While the worker referenced their diagnosis of subsyndromal post-traumatic stress disorder, we find that there is no evidence before the panel of any traumatic workplace event that could account for such a diagnosis in terms of an “acute reaction to a traumatic event.”

Therefore, having reviewed the totality of the evidence submitted in support of the worker’s claim, the panel is not able to find that the incidents and events, whether considered individually or cumulatively amount to an accident as defined in the Act. Having determined there was not an accident, the panel was not required to and did not make any determination as to whether there is a causal relationship between the worker’s psychological condition and the incidents and experiences at work.

Based on the evidence before the panel, and applying the standard of a balance of probabilities, the panel is satisfied that the claim is not acceptable. The worker’s appeal is denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of December, 2024