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 took place on November 13, 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 on November 29, 2023 with the WCB reporting a psychological injury as a result of being "…intensely insulted and threatened…" by a coworker at work on October 29, 2023. The worker described experiencing a "strong and deep emotional and psychological shock" and noted they lost mental and physical control of their body. In a handwritten letter submitted with the Report, the worker indicated the incident took place at work on August 29, 2023 and detailed other incidents that took place on September 5, 2023 and September 11, 2023. The worker noted the coworker referred to in the Report was their spouse and a further incident took place on September 14, 2023 when they left their family for their personal safety. The worker reported that on November 4, 2023, they were taken to a crisis response unit and were hospitalized due to their emotional and psychological stress. With the Report, the worker also submitted a November 15, 2023 note from the treating psychiatrist confirming the worker was admitted to hospital on November 4, 2023 and discharged on November 15, 2023.

The WCB received the hospital admission records on January 4, 2024, outlining the details of the worker’s admission to the crisis unit on November 4, 2023 and subsequent treatment until their discharge on November 15, 2023. A note from the treating psychiatrist dated November 20, 2023 placed the worker off work for three months, and another note of the same date outlined that the worker was admitted to hospital “…due to concerns that stemmed from an incident in the workplace that has caused ongoing distress and functional limitations” with a diagnosis of adjustment disorder.

When the WCB contacted the worker on December 13, 2023, the worker confirmed that on August 29, 2023, they were insulted and threatened by their coworker, who is their spouse, and a third party, who was with the spouse, while at work. The worker further confirmed they were threatened again by their spouse on September 5, 2023, who advised them not to tell anyone of the August 29, 2023 incident, and that on September 11, 2023, the worker advised their employer of the incident, at which time the employer changed their work hours so they would not be working with their spouse and directed that the third party was not allowed at the worksite. The worker described being unable to sleep or eat for three days after the incident and that they could not concentrate or think straight. The worker advised the WCB they sought treatment from their family physician in the first week of September and were referred to a psychiatrist, and that on November 4, 2023, they sought treatment at a crisis centre and were transferred to another hospital. The WCB advised the worker that further investigation would be required, and the next day, the worker provided a handwritten statement describing the August 29, 2023 incident and the events that followed.

On January 5, 2024, the WCB advised the worker that the claim was not acceptable. The worker attended the WCB on February 7, 2024 to provide further information and discuss their claim with the adjudicator. The worker confirmed they felt threatened by comments made by their spouse regarding their religious and cultural background and that there was no physical contact between themselves and their spouse or the third party. The worker indicated they did not feel traumatized by the August 29, 2023 incident but the incident hurt them greatly and they feel their spouse took advantage of them knowing they were hurt by it. The written statement provided by the worker outlined their belief the coworker’s actions were related to workplace safety and health issues, refusal of the coworker to follow the employer’s policies and code of conduct and their coworker’s involvement of a stranger in a workplace issue. The worker also submitted a November 2, 2023 letter from the employer, directed to the worker, advising that the concerns about the coworker’s behaviour were addressed by management.

On February 22, 2024, the WCB adjudicator spoke with the employer who confirmed as a result of an investigation, disciplinary action may have been taken by the employer against the coworker; however, the details could not be shared with the WCB or to the worker, and noting the worker did not seem happy with the outcome. The employer again noted the worker was having difficulty with the incident as it involved their spouse, and the worker advised them they likely would not have reported the incident if it was another coworker. The WCB asked the employer if they were aware of any derogatory comments made by the coworker to the worker and the employer advised they were not aware of any such comments.

On February 22, 2024, the WCB advised the worker that after reviewing the additional information, there was no change to the earlier decision their claim was not acceptable.

On March 12, 2024, the worker requested Review Office reconsider the WCB’s decision, noting their belief the WCB did not consider the “severity and gravity” of the August 29, 2023 incident and that they were still suffering the effects on their health. Further, the worker noted their belief that the employer did not adequately investigate the incident or take their safety concerns regarding the incident seriously, and did not speak to any of the witnesses.

On April 3, 2024 Review Office determined the worker’s claim was not acceptable. The worker filed an appeal with the Appeal Commission on May 13, 2024 and a hearing took place. After the hearing, the appeal panel requested additional information, and when the information was received, provided it to the interested parties for comment. On January 28, 2025, the appeal panel met to discuss and determine the issue 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.

Section 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Section 4(5) of the Act provides that when an accident arises out of employment, it is presumed that it arose in the course of employment, unless the contrary is proven, and that when an accident arises in the course of employment, it is presumed that it arose out of employment, unless the contrary is proven.

The Act defines “accident” in s 1(1) as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or 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 the worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event. The Act sets out in s 1(1.1) that the definition of accident does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination, nor an event or condition, or a combination of events or conditions, that results in mental stress unless the mental stress is an acute reaction to a traumatic event.

The WCB also established Policy 44.05.30, Adjudication of Psychological Injury Claims (the “Psychological Injury Policy”) to outline how claims relating to psychological injury will be determined. This policy confirms that a claim of an accident resulting in a psychological injury must fall within the statutory definition of an accident and must arise out of and in the course of employment. The policy defines traumatic events as including “events involving direct exposure to actual or threatened violence or harm at a specific time and place.” The policy sets out that “Determining compensability for injuries caused by harassment and bullying involves both a subjective and objective analysis. To be compensable, the instances of harassment or bullying must be of sufficient severity that a reasonable person would suffer an injury.” Harassment and bullying claims may involve either a single event or a cumulative series of events. The policy defines harassment as objectionable conduct that creates a risk to the health of a worker; or severe conduct that adversely affects the worker’s psychological or physical well being, and defines bullying as conduct that is intended to, or should reasonably have been known would intimidate, demean, or humiliate, or isolate an individual or result in an individual’s loss of dignity.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor and with assistance from a translator. The worker advisor relied on a written submission provided in advance of the hearing and provided additional oral submissions in the hearing, and a further written submission upon review of the additional information requested by the appeal panel following the hearing. The worker offered testimony through answering questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the evidence supports a finding that the worker sustained a psychological injury as a result of a “…wilful and intentional act that is not the act of the worker” while in the course of their work. The worker’s position is that the presumption in s 4(5) of the Act applies to establish this injury also arose out of the worker’s employment, and that as the evidence does not establish that the injury did not arise out of their employment, as such the panel must find that there was an accident and therefore the worker’s claim is acceptable.

The worker advisor submitted that the Act does not exclude workplace injury claims for accidents caused by or involving family members. Further, the worker advisor submitted that the incidents described in the worker’s evidence amount to harassment or conduct that a reasonable person would perceive as egregious or abusive, and meet the criteria set out in the Psychological Injuries Policy as being of sufficient severity that a reasonable person would suffer an injury. The worker’s position is that the evidence establishes that the conduct of the coworker and third party were not employment related or incidental to employment but amount to harassment and/or bullying.

Further, the worker advisor submitted that medical reporting establishes that, but for the work activities or exposures, the worker’s injury would not have occurred and therefore the claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

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

The worker’s claim arises out of events that occurred at work on August 29, 2023. The evidence in relation to those events arises out of the worker’s testimony and their written reports, although the panel noted the employer confirmed that the events occurred on August 29, 2023, and advised the worker’s treatment provider in November 2023 that the worker “…walked in on [the co-worker] being given a hand and neck massage by another [person]. [The worker] wants them to be punished and specifically asked that [the coworker] apologize in person to everyone.” The worker also reported that the coworker and the third party made insulting remarks and threats toward them afterwards, which they described to the employer as screaming and yelling. In the hearing, the worker described that they felt humiliated by the comments and that the coworker’s words were very painful. The worker also described that the third party initially tried to explain and then threatened to smash the worker’s face.

The panel first considered whether the evidence establishes on a balance of probabilities that the reported events amount to an accident as defined in the Act. The panel noted that the Act excludes from the definition of accident a non-traumatic event that produces mental stress, and that the Psychological Injuries Policy defines trauma as involving direct exposure to actual or threatened violence or harm at a specific time and place. We are satisfied that the evidence does not support a finding that the worker experienced a traumatic event, as defined, when they found the coworker in the storage room in a compromising position with the third party, as described, although the panel accepts that this was an emotionally charged circumstance given that the coworker is the worker’s spouse. Further, we find that the evidence does not support that the worker experienced trauma, as defined, when the coworker and the third party spoke to them immediately afterwards, in that while the comments may have been derogatory and according to the worker, threatening, the evidence does not confirm that there were threats of violence or harm at a specific time and place as the Policy requires. As such, the panel is satisfied these events do not fit the definition of trauma, and to the extent that these incidents caused mental stress to the worker, the incidents are captured by this statutory exclusion from the definition of accident.

The panel also considered that both the medical reporting and the employer’s reporting to the WCB indicate that the worker was dissatisfied with how the employer managed this situation, in terms of the employer’s actions against the coworker. The panel noted that the employer did not advise the worker or the WCB of the exact nature of any disciplinary or other actions taken against the coworker, and as such the panel is not able to confirm whether the worker’s dissatisfaction with those actions is based on the reality of the situation or their own speculation as to what occurred. Regardless, the panel accepts that the worker believed the employer could have done more to address the situation and that they felt the employer did not “respect” their feelings and concerns as raised. Based on the evidence, the panel finds that the worker’s reaction to the employer’s response to these specific events is a matter excluded from the definition of an accident under s 1(1.1)(a), falling within the scope of “any change in respect of the employment of a worker.”

The panel also considered whether the evidence establishes that the worker was subjected to harassment or bullying in the workplace, which falls within the definition of accident as “a wilful and intentional act that is not the act of the worker.” The worker advisor submitted that the actions of the coworker and the third party, and in particular, their comments to the worker following the worker’s discovery of them in the storage closet, were derogatory and abusive and amount to harassment, and also amount to bullying as threats were made against the worker by both the coworker and the third party. In reviewing the evidence as to statements made, the panel noted that the only evidence is that of the worker, whose statements over time are inconsistent in relation to who said what and when it was said. As noted above, these events were emotionally charged given the spousal relationship between the worker and the coworker. Further, the worker’s initial notes of these events appear to have only been made several weeks later, around the time they first reported their safety and security concerns to the employer, but their additional notes are dated from several months later, after their hospital admission. The panel gives greater weight to the evidence created nearest the date of the event and provided to the employer at that time, which do not confirm the making of any threats toward the worker and do not reference that there were any witnesses to this incident. The panel also noted there are no witness statements in evidence to confirm the worker’s report.

Having reviewed and considered the totality of the evidence in relation to the comments and statements of the coworker and third party, the panel is satisfied on a balance of probabilities that the worker was not subjected to harassment or bullying, and as such, the evidence does not establish that there was an accident based on any wilful and intentional act that is not the act of the worker.

As the panel determined the worker’s claim does not amount to an accident as defined in the Act, the panel has not addressed the worker’s submissions relating to the causal relationship between the worker’s job activities and their psychological injury.

On the basis of the evidence before the panel and on the standard of a balance of probabilities, we find that the claim is not acceptable as we cannot establish that there was any accident as defined in the Act. Therefore, the worker’s claim is not acceptable.

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 7th day of February, 2025