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 for a psychological injury is not acceptable. A hearing was held on June 25, 2024 to consider the worker's appeal.

Issue

Whether or not the worker’s claim for a psychological injury is acceptable.

Decision

The worker’s claim for a psychological injury is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on October 17, 2023, reporting they sustained a psychological injury at work on July 27, 2023, which was reported to the employer on August 2, 2023. The worker described incidents where they were verbally and physically assaulted by co-workers, exposed to cigarette smoke when they had asthma and had weapons drawn on them by customers. The worker noted that nothing had been done about the incidents and as a result, they developed anxiety and worried about their safety while at work. On August 2, 2023, the worker advised that they reported another incident to their supervisor and their employment was terminated. The employer provided an Employer Injury Report to the WCB on October 25, 2023. In the letter attached to the Report, the employer noted an incident on July 27, 2023 was not reported to the employer, and detailed incidents on July 20, 2023 and August 1, 2023 that led to the termination of the worker's employment.

On November 17, 2023, the worker provided the WCB with copies of emails that had been sent to the employer, among other parties, setting out details of incidents that had occurred and providing the worker's versions of the events. On the same date, the WCB contacted the worker to discuss the claim. The WCB noted the July 20, 2023 incident as reported by the employer, with the worker noting they had been dealing with a difficult customer and when they went to speak to other co-workers to get assistance, they felt the co-workers were angry with them asking for help and felt they got "animated" towards their co-workers, which resulted in a written disciplinary action by the employer. With respect to the August 1, 2023 incident reported by the employer, the worker advised they were not aware of the incident. The worker described reporting instances of being assaulted by a co-worker to their supervisor but felt that nothing was done about it. The worker provided the name and contact information for a former co-worker who they believed stopped working for the employer due to similar issues. The worker also mentioned that other staff members were smoking cigarettes inside the workplace which was causing them issues as they had asthma. Further, the worker noted that as a result, they felt they did not want to go into work for approximately a year as they would be yelled at or assaulted. The worker noted "…it's a nightmare…" and felt the events were traumatic. Since their employment had been terminated on August 2, 2023, the worker noted they were consuming alcohol more often, having difficulty sleeping and had feelings of hopelessness. The WCB provided the worker with contact information for community support services and advised the worker further information would be gathered.

The WCB spoke with the worker’s former co-worker on November 22, 2023. The co-worker confirmed they had worked with the worker for approximately 5 or 6 years and that they had witnessed an incident between the worker and another co-worker, which the worker had described as an assault. The former co-worker equated the interaction between the worker and the co-worker as “stupid things that went on and men are stupid”. With respect to the smoking, the former co-worker noted that some of their co-workers had been smoking on the jobsite and they stopped going in that area as they did not like the smell.

A Doctor’s First Report was received by the WCB on December 12, 2023 for the worker’s appointment with their treating nurse practitioner on September 6, 2023. The nurse practitioner noted the worker’s complaints of poor mental health and emotional dysregulation related to the loss of their job, stress and trauma from being sexually assaulted by a co-worker and respiratory issues from being exposed to second-hand smoke while at work which affected the worker’s pre-existing asthma. The treating nursing practitioner found the worker was anxious and tangential, and intermittently angry and irritable and diagnosed the worker with an acute stress disorder. Antidepressant medication and counselling were recommended. At a follow-up virtual appointment on December 20, 2023, the nurse practitioner indicated ongoing stress and emotional dysregulation.

The WCB contacted the employer on January 2, 2024 to gather further information and spoke with the worker’s manager. The manager confirmed the worker had been terminated due to performance issues, including issues between the worker and other co-workers, with some co-workers requesting not to work with the worker due to incidents they had with them. The manager noted the employer had several meetings with the worker to discuss their behaviour at work. In addition, it was noted the worker’s attendance was also an issue. With respect to the incidents the worker was describing as sexual assault, the manager advised the WCB the incidents occurred before they had worked for the employer, but their understanding was the worker and the co-worker would perform those actions to each other. The employer provided the WCB with copies of incident reports for the August 1, 2023 incident completed by the worker’s co-workers and describing the worker verbally assaulting them. On January 8, 2024, the WCB spoke with the employer’s general manager who advised the worker had not reported being sexually assaulted by a co-worker, that they were known to be “…bugging each other…”. The general manager noted approximately 3 or 4 years ago, the co-worker would tap the worker with an umbrella, and the worker would do the same to the co-worker. The general manager advised that they spoke with the offending co-worker and the co-worker stopped this behaviour.

The WCB advised the worker, by way of a formal decision letter on January 9, 2024, that their claim for a psychological injury was not acceptable. The WCB had determined the worker’s psychological difficulties were related to daily pressures of work and life, which were not accidents as defined by the WCB’s regulations and policies and as such, their claim was not acceptable. The worker requested reconsideration of the WCB’s decision to the Review Office on January 15, 2024. The worker noted disagreement with the WCB’s decision, advising they had made complaints to the employer about their working conditions, including safety issues due to the location of their job site and had made complaints about harassment from other co-workers, including the incidents they described as sexual assault by a co-worker. As well, the worker noted they were very busy and at times, co-workers made complaints as they could not do those duties quickly enough. On January 17, 2024, the worker provided the Review Office with contact information for another former co-worker.

Review Office determined on February 22, 2024, the worker’s claim for a psychological injury was not acceptable. Review Office found many of the worker’s complaints involving incidents that occurred over the 8 years they were working for the employer were unsubstantiated, with the dates, times and people involved not mentioned and the worker did not file any reports on those incidents. Review Office further found other incidents referenced by the worker involving a co-worker assaulting them was reported by the employer to be incidents that occurred between the worker and the co-worker. Review Office determined those actions to be in poor taste but were not found to be intimidating or demeaning, nor was the worker singled out by those actions. Review Office further determined the worker’s termination and reaction to that termination led to a stress reaction however, did not meet the definition of an accident under the WCB’s regulations or policies.

The worker filed an appeal with the Appeal Commission on March 18, 2024 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 the relevant information was forwarded to the interested parties for comment. The employer provided a response to the panel, which contained information regarding legal claims related to the worker. The panel is of the view that the employer’s response was not properly in reply to the medical information received and therefore the employer’s response was not considered by the panel members.

On November 28, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 in effect on the date of the accident apply.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident arising out of and in the course of employment. The Act defines “accident” 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.

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 are peculiar to or characteristic of a particular trade or occupation, or are peculiar to the particular employment, or 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. Further, Section 1(1.1) of the Act excludes from the definition of 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 Section 4(1) 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 Injury Claims ("the Psychological Injury Policy"). The Psychological Injury 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 Psychological Injury Policy provides that compensable, stand-alone psychological injuries can be caused by:

• a chance event occasioned by a physical or natural cause; or 

• an event or condition, or cumulation of events or conditions, related to the worker's work or workplace.

The Psychological Injury 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.

Worker’s Position

The worker appeared in the hearing on their own behalf and provided an oral submission to the panel in support of their appeal. The worker also provided testimony in the form of responses to questions posed by members of the appeal panel.

The worker’s position is that as a result of the conditions of employment, including mistreatment by co-workers and sexual harassment by a co-worker that occurred at work, the worker experienced stress, and they needed to take time off work.

The worker described being screamed at by a co-worker during their shift on July 27, 2023, described an incident where a co-worker used an object to touch them inappropriately on their private parts, and described various instances of mistreatment by co-workers while at work. The worker also indicated that they were exposed to cigarette smoke while working.

The worker’s evidence was that they felt “psychologically messed up” and that their reputation has been destroyed. The worker stated that they had anxiety as a result and could not get out of bed. The worker submits that they were a hardworking employee and states that the behaviour of their co-workers was unacceptable.

Employer’s Position

The employer appeared in the hearing on their own behalf and provided an oral submission to the panel in support of their appeal. The employer answered questions posed by members of the appeal panel.

The employer’s position is that the claim should not be accepted, and the decision of the Review Office should be upheld.

The employer’s evidence is that the worker was given warnings for their verbal confrontations with co-workers and as a result was eventually let go from their position. The employer submits that the worker did not report any psychological injury to them and states that the complaints from the worker are a result of being terminated from their position. The employer acknowledges that the worker’s position can be stressful but submits that the worker did not suffer an injury at work.

Analysis

The question on appeal is whether the worker’s claim for a psychological injury is acceptable. For the worker’s appeal to succeed, the panel would have to determine the worker sustained a psychological injury as a result of an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal is denied.

The panel is not satisfied that the circumstances described by the worker regarding mistreatment by co-workers (specifically being yelled at by co-workers and complaints being made about the worker by co-workers) amount to an accident under the Act. The panel notes that the Psychological Injuries Policy specifically excludes daily pressures and stresses of work. The panel is of the view that the difficulties the worker experienced as a result of unpleasantness of co-workers and due to complaints from co-workers are circumstances that fall within the parameter of the ordinary pressures and stresses of work, and as such are not considered to be an accident under the Act.

The panel does however find that the inappropriate touching by a co-worker as described by the worker and confirmed by the employer was a chance event occasioned by a physical or natural cause arising out of and in the course of employment as defined under the act. However, for the panel to determine this behaviour is an accident under the Act, the panel must next determine whether the worker suffered an injury.

Based on a review of the medical information provided, the panel has been unable to determine that the worker has suffered an injury. The panel acknowledges that the medical evidence indicates that the worker was anxious, irritable and under stress, however there is no medical evidence from that period that supports the worker’s symptoms were related to the inappropriate touching the worker experienced at work, nor is there evidence that supports any findings in relation to worsening of any pre-existing psychological injury.

The panel finds, based on the evidence before it and on the standard of a balance of probabilities, that there is no medical evidence to support the worker’s claim for a psychological injury as a result of an accident arising out of and in the course of their employment. As such, the worker’s claim cannot be accepted and the worker’s appeal is denied.

The panel acknowledges that the worker has raised the issue of inhalation of cigarette smoke but notes that the issue before it relates only to psychological injury and therefore the panel will not comment on whether the worker suffered personal injury from smoke in their place of employment.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of January, 2025