The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits. A file review was held on February 6, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

The worker is not entitled to wage loss benefits.

Background

On May 20, 2024, the worker submitted a Worker Incident Report to the WCB reporting a psychological injury that occurred at work on March 28, 2024. The worker described witnessing a traumatic incident on March 28, 2024 that occurred in front of them and their supervisor. In addition, the worker made note of other traumatic incidents they experienced while working for the employer for the previous 4 years. The worker noted their treating physician believed they had post-traumatic stress disorder (PTSD) from their job and they had been placed on leave.

A Doctor First Report dated May 28, 2024 was received by the WCB. The report noted the date of incident as May 6, 2024 and the date of examination as May 15, 2024. The worker’s complaints were described as anxiety, worry, inability to control emotions, lack of sleep, inability to settle down and impulsivity. The treating family physician prescribed anti-anxiety medication and made a referral to a psychiatrist. The physician provided a diagnosis of anxiety and PTSD due to psychological trauma. On May 27, 2024, the WCB was provided with a copy of a sick note placing the worker off work as of May 15, 2024.

In a discussion with the WCB on May 27, 2024, the worker provided further details regarding the March 28, 2024 incident in addition to other traumatic incidents they experienced and their working conditions. In the description of the difficulties caused by the events experienced, the worker reported that they had looked up confidential information on individuals in the employer’s computer system to see if the individuals are close to them or their children. The worker noted that on May 14, 2024 they learned a complaint had been made against them for accessing confidential information and the employer was investigating the allegations. The worker also reported feelings of being rushed and in fight or flight mode in addition to paranoia, brain fog, forgetfulness, difficulty sleeping, irritability, mood swings and unsociability. They had seen their family physician on May 6, 2024 and been sent for bloodwork after the physician queried if the worker was depressed or had another condition. On May 15, 2024, they had a follow-up appointment where they were prescribed an anti-anxiety medication, referred for psychiatric treatment and placed off work indefinitely. The worker noted they had an appointment with the psychiatrist on June 18, 2024 and had registered for a cognitive behaviour therapy program, completing one session.

At a follow-up appointment on May 28, 2024, the worker’s family physician noted ongoing PTSD symptoms including flash backs and insomnia and recommended the worker remain off work, to be reassessed in one month.

The employer provided the WCB with an Employer’s Accident Report on June 3, 2024. The employer related the worker’s psychological injury to ongoing exposure to traumatic events. It was noted the worker had been placed on leave pending an investigation from May 14, 2024 to May 17, 2024, then was on sick leave from May 21, 2024 to May 28, 2024, and their employment was terminated for cause on May 29, 2024.

The worker provided the WCB on June 4, 2024 and June 5, 2024 with copies of emails between themselves, their union and the employer detailing issues the worker, along with their coworkers, had been facing over the previous 2 to 3 years related to increased workloads, safety issues and exposure to traumatic situations.

A June 4, 2024 narrative report from the worker’s treating family physician was received by the WCB on June 11, 2024. The report noted the worker was seen on May 15, 2024 and May 28, 2024. The worker reported to the physician they were asked to stop working after a complaint that they were accessing the employer’s computer system to look up information on people. The worker reported this complaint worsened their symptoms of anxiety and made them feel more anxious, angry and impulsive. The physician noted the worker looked very anxious, their thoughts were not organized and they had pressured speech. It was also noted the worker had previously been diagnosed with depression and generalized anxiety disorder, which was stable with medication, and had been referred for psychiatric treatment.

On June 14, 2024 the WCB received a narrative report from the worker’s primary care physician dated June 13, 2024 which indicated that the worker had discussed mental health struggles at their appointment on May 6, 2024.

On June 18, 2024, the WCB advised the worker their claim had been accepted for a psychological injury however, they were not entitled to wage loss benefits. The WCB determined the worker had missed time from work starting on May 14, 2024 due to a non-compensable issue and was terminated from their employment on May 29, 2024. As such, the WCB found the worker’s loss of earning capacity was related to their non-compensable workplace issues.

The worker requested reconsideration of the WCB’s decision to Review Office on June 23, 2024. In their submission, the worker provided a detailed chronology of the events leading up to their employment termination on May 29, 2024 and noted they were not aware they could have filed a WCB claim for the difficulties they were experiencing and as such, believed they should be entitled to wage loss benefits. On September 10, 2024, Review Office determined the worker was not entitled to wage loss benefits. Review Office found the worker did not file a WCB claim until after they were placed on leave by the employer pending an investigation on May 14, 2024 after which, they were placed on sick leave until their employment was terminated on May 29, 2024 for reasons not related to the WCB claim. Review Office further noted the worker had been cleared to return to work by their treating family physician on July 22, 2024 at which time they began new employment. Review Office found the evidence did not support the worker would have missed time from work if they had not been terminated from their position and as such, they were not entitled to wage loss benefits.

The worker filed an appeal with the Appeal Commission on October 28, 2024 and a hearing date was arranged, to proceed by videoconference. The format of the proceedings was later changed to a file review at the request of the worker.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

Subsection 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.

Accident is defined in s. 1(1) of the Act as follows:

1(1) In this Act,

"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;

Subsection 37(c) of the Act provides that:

Where, as the result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

… 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2)(a) of the Act provides that wage loss benefits are payable until the loss of earning capacity ends.

Worker’s Position

The worker has an accepted claim for a workplace injury. The worker appealed the WCB decision that they are not entitled to wage loss benefits in relation to the workplace injury.

The worker requested that the appeal take place by way of file review. The worker submitted a written statement in support of the appeal, which reiterated the severity of the traumatic events witnessed and experienced during the course of their employment.

The worker appeals the WCB and Review Office denial of wage loss benefits due to their finding that the worker’s wage loss was caused by non-compensable work issues. The worker’s position is that wage loss benefits should be paid because the worker was not aware they could have made a claim for psychological injury sooner. If they had done so, the worker argued, their wage loss would have been due to the compensable psychological injury, and not non-compensable work issues.

Employer’s Position

The employer was represented on the appeal by counsel who submitted written submissions. The employer did not take a position on the merits of the appeal. Their submission outlined the circumstances of the worker’s termination from employment. It also identified what the employer termed “misrepresentation” or “exaggeration” in the worker’s claims about the traumatic events the worker reported as occurring during the course of their employment. The submission did not deal specifically with the issue of wage loss.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits. For the worker’s appeal to be successful, the panel must find that the worker experienced a loss of wages due to a compensable workplace injury. For the reasons that follow, the panel is not able to make such a finding.

In determining the worker’s claim for wage loss benefits the panel has considered the timeline of the worker’s claim and the relevant surrounding circumstances.

The worker’s claim for psychological injury was submitted on May 20, 2024 and indicated that the incident which gave rise to the claim occurred on March 28, 2024.

The medical evidence closest in proximity to the worker’s claim is the report of their appointment with the primary care physician on May 6, 2024. The chart notes from the appointment reflected that it was a “regular periodic checkup”. There was no notation of work-related trauma or an inability to work. The worker’s physician subsequently provided a letter dated June 13, 2024 which indicated that the worker’s mental health was discussed at the May 6 appointment, but the letter made no reference to traumatic events in the workplace or an inability of the worker to perform their duties at that time.

The worker learned on May 14, 2024 that they were being placed on a leave of absence, with pay, pending the completion of an investigation into non-compensable work issues.

The next day, May 15, 2024, the worker again saw their physician. At that time, the doctor provided a note which indicated that the worker was not fit to return to work. The appointment notes from that date referred to the area of injury as “psychological trauma”.

The worker saw their doctor again on May 28, 2024. The appointment notes on that date identify a complicating factor impeding the worker’s progress as “recurrence of traumatic incidence. Last was two weeks ago.” The panel notes that the date two weeks prior to May 28, 2024 was May 14, 2024, the date on which the worker was placed on leave and informed of the investigation into non-compensable work issues.

Further information about the appointments of May 15 and May 28, 2024 was provided in the narrative letter from the worker’s primary physician dated June 4, 2024, which confirmed that the work issues discussed in the appointments were the worker’s non-compensable employment difficulties. The letter stated, “History provided by [the worker]: [They] said [they were] asked to stop working. [They are] being blamed of Looking [sic] people up while [they] should not do that.”

On May 29, 2024, the worker’s employment was terminated for cause.

After careful consideration of the evidence before it, the panel finds that the worker’s loss of wages occurred as a result of non-compensable work-related issues. The worker was removed from their duties for administrative purposes and not due to an accident and compensable injury as defined by the Act. Wage loss benefits are payable pursuant to Section 37 of the Act where the worker, as the result of an accident, suffers a loss of earning capacity. [emphasis added] That requirement has not been met in this case.

The panel notes that the worker first reported an inability to work on May 15, 2024, immediately after being advised on May 14, 2024 that they were being placed on paid leave pending an investigation into their conduct. The worker had not obtained a sick note from their primary care physician prior to that time. The panel finds it probable that the worker would have continued working and not suffered a loss of wages at the time of the claim but for the emergence of the non-compensable work-related issues which ultimately led to their termination.

The panel also notes that the medical evidence regarding the worker’s ability to work which is closest in time to the worker’s WCB claim does not reference the worker’s compensable injury. In fact, the chart notes and narrative letter relating to the physician appointments on May 15 and 28, 2024 specifically reference the worker’s non-compensable work-related issues.

The panel acknowledges that the worker’s employment duties resulted in exposure to traumatic incidents which led to the worker’s psychological injury. The worker’s accepted WCB claim is a reflection of the difficult situations which the worker experienced. However, the accepted claim cannot extend to wage loss benefits in these circumstances where the worker’s compensable injury did not result in loss of income.

On the evidence before the panel, and on the standard of a balance of probabilities, we are unable to find that the worker’s compensable workplace injury caused or contributed to the worker’s loss of wages. Therefore, the worker’s claim for wage loss benefits is not accepted and the appeal is denied.

Panel Members

M. Murray, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of March, 2025