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 videoconference hearing was held on March 31, 2025 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 September 5, 2023 to report they sustained a psychological injury at work on December 14, 2022. The worker detailed incidents where they had noted concerns to their managers and had not received support for those concerns and included an instance where a manager had accused them of not properly caring for a resident in front of 5 coworkers. In addition, the worker indicated that since their workplace had joined with another workplace, their workload had increased with a noted increase in paperwork and more residents in treatment. The worker further indicated that they had spoken with their union and in July 2023 had a meeting with their union, the employer's human resources representatives and their managers to request some tasks be delegated to other coworkers. The worker advised there was no response to the request. The worker noted they had been off work since August 24, 2023.

The employer submitted an Employer's Accident Report to the WCB on September 7, 2023. The Report noted that the worker advised their director on September 5, 2023 that their treating healthcare provider had placed them off work due to work related stress. In the notes section, the employer indicated that the worker had reported to them by email that their claim was due to "…an increased workload and ongoing issues at work that are accumulating stress on myself. It is not a specific day or time of the incident but rather an accumulation of issues that I have been trying to manage with for some time." It was noted the worker had called in sick on August 24, 2023, August 25, 2023, and August 28, 2023 and provided the employer with a sick note on August 28, 2023 indicating they were to be off work until September 24, 2023. The worker advised the employer they would be filing a WCB claim. The employer noted they were not always able to cover the worker's time away which resulted in the worker feeling as though they had to "catch up" when they returned from time away.

On September 12, 2023, the worker again submitted a Worker Incident Report and included a handwritten summary of the incidents described in the Report. The worker noted incidents that left them feeling unsupported by their supervisors and managers and further noted they felt overwhelmed by their increased workload, which included new tasks that they felt were not manageable. On September 13, 2023, the WCB spoke with the worker and advised they would refer to the worker to a psychologist.

The treating psychologist provided the WCB with a report on October 12, 2023. The psychologist noted a two-hour initial assessment took place on October 6, 2023. The report indicated that the worker experienced "…heightened levels of stress related to ongoing stressors at work that have persisted over the last year and a half." It was noted by the worker that when they started with the employer in March 2020, they found their position to be busy and stressful but approximately 1.5 years ago, a change in management resulted in changes in policies and procedures significantly adding to the stressful and busy environment. The worker also reported to the psychologist, in the spring of 2023, that the employer doubled the number of residents accepted into its facility, which resulted in the worker experiencing a significant amount of pressure to ensure the residents were safe and increased the worker's tasks and amount of responsibility the worker was asked to manage daily.

The treating psychologist also noted the worker's concerns of their excessive responsibilities and concerns regarding resident safety were reported to their supervisors and union representatives and the worker’s perception was that those concerns were dismissed. The psychologist further noted the worker's reporting that the workplace stress negatively impacted their mood, and they felt more irritable than usual. As well, the worker reported difficulties with sleep, struggles with self-care and anxiety. The worker reported feeling less anxious since they had been off work and noted that they attempted to cope with their difficulties by not thinking of and/or discussing work since they had been off. In addition, the worker reported they spent less time with friends, who were mostly coworkers and colleagues, to avoid talking about work as they reported that to be an emotional topic.

The treating psychologist provided a diagnosis of Adjustment Disorder, unspecified for the worker, which developed "…in direct response to workplace stressors, being an excessive workload that persisted over a prolonged period of time." The psychologist recommended ongoing treatment including cognitive behavior therapy and mindfulness-based approaches. In addition, it was recommended the worker remain off work with a further assessment on when the worker could return to work to be completed after further treatment.

The WCB requested further information regarding the worker's claim from the employer, who responded on November 3, 2023. The employer confirmed the worker started employment on January 20, 2010, and in their current position on March 9, 2020. The employer noted the worker started in their newly created position during the COVID-19 pandemic and had been advised at the time that their duties would change over time as the employer determined the best use of their position.

After the screening requirements of the pandemic ended, the worker's duties changed to include other duties they had not previously performed. It was further noted that when the employer's workplace merged with another workplace, additional documents were required to be completed but were noted to be standard documentation that would be completed by other workers in the same position. It was noted by the employer that all of their workers' job duties have changed over the past 3 to 4 years, not just this worker's duties. The employer also noted that the worker was the only one responsible for completing the new documentation and indicated while the documentation may be a new process, the procedure of gathering information from residents was one that was always done, and the addition of the new documentation was just to put that information in writing.

The employer could not estimate how much additional time was required by the worker to complete the documentation. When asked about the number of residents doubling as noted by the worker, the employer advised prior to the COVID-19 pandemic, their facility had placements for 20 residents that could be increased to 24. During the pandemic, due to the requirement for social distancing, the number of residents was decreased to 15 and on May 10, 2023, when the social distancing mandate ended, the resident number returned to the pre-pandemic level of 20.

With respect to the worker's reporting of being the only staff to handle crisis situations, the employer noted that while the worker may have had to manage crisis situations on their own, there was normally a supervisor and other staff available to assist. It was noted that when the worker was away, attempts were made by the employer to have staff replace them however, there were times when they were unable to have someone in place and as a result some work would "pile up" while the worker was away. It was also noted that the worker was never mandated to work overtime but had stayed late or worked through their breaks due to incidents occurring. The employer further noted that as a result of the meeting with the worker, their union representative and their human resources department in December 2022 and June 2023, the employer agreed to and was successful in hiring casual staff to assist and some of the worker’s tasks were delegated to other coworkers. The employer also noted they had covered the worker's job duties since their absence and noted the worker's replacement found the duties to be steady but not overwhelming and had suggested ways to streamline the job duties, with two of the suggestions being implemented by the employer.

On November 21, 2023, the worker contacted the WCB to discuss their claim. The worker advised they had taken a new position with the employer with similar job duties but in a different location. The position was a temporary position for 1 year, with the plan for the worker to return to their original position after that time. On November 27, 2023, the worker provided the WCB with a functional abilities form from their treating family physician indicating the worker was fit for regular duties as of that date.

The WCB contacted the worker on December 4, 2023 to discuss their claim. The WCB advised the worker their claim was not acceptable as it did not fall under the WCB's policy of excessive workload. The worker argued it was more than the workload, their difficulties developed due to disrespectful behavior, which caused them mental distress. The worker advised the WCB they had filed a disrespectful workplace complaint against the employer. The WCB followed up the conversation with the worker by email and requested further information regarding the incidents where the worker felt they were being treated disrespectfully by the employer. On the same date, the worker responded, providing further details and noting their complaint also dealt with their overall feeling of being "…left alone with no clinical supervision or managers that engaged in conversation…about client concerns." The worker also noted the cumulative effect of having 25 high needs residents and feeling their safety needs were solely the worker’s responsibility and not having supervisors or managers who would respond to their concerns, was challenging and taxing on them. On December 11, 2023, the worker's representative provided the WCB with a copy of the worker's Respectful Workplace complaint.

The WCB advised the worker on December 11, 2023 that their claim was not acceptable. The WCB further advised that they had reviewed the worker's claim for a psychological injury due to an increased workload and determined that while the worker's job duties had changed, a psychological injury caused by a traumatic event or a cumulative series of traumatic events had not been established.

The worker's representative requested reconsideration of the WCB's decision to the Review Office on December 20, 2023. The representative noted the information provided by the worker with respect to their increased workload was correct and added the transition by the employer to merge with another employer created an increase in duties for the worker. Also, the worker's representative noted that while the worker's position was newly created and the job duties were subject to change, there was another coworker in a similar position that the WCB did not speak with to determine the nature of the increase in their duties. The representative also noted that the worker's coworkers were not interviewed to determine their roles and level of ability to assist the worker when needed. On January 22, 2024, the employer's representative submitted a response in support of the WCB's decision, a copy of which was provided to the worker and their representative.

The Review Office found on February 26, 2024 that the worker's claim was not acceptable. The Review Office determined that as the employer was able to fill the worker's position with casual staff and redistribution of duties, this supported the finding that the worker's workload was not excessive, over a prolonged period of time and did not meet the criteria of a traumatic event under the WCB's policies.

The worker's representative filed an appeal with the Appeal Commission on December 19, 2024, and a hearing was arranged. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 29, 2025, the appeal panel met further to discuss the case and render its final decision on 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. The provisions of the Act in effect at the time of the accident are relevant.

What constitutes an accident is defined in subsection 1(1) of the Act, 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 definition of accident confirms that an acute reaction to a traumatic event and PTSD both constitute personal injuries under the Act.

The Act provides that the board shall pay compensation to a worker that has been injured by an accident arising out of and in the course of employment.

The WCB established Policy 44.05.30, Adjudication of Psychological Injuries (the “Psychological Injuries Policy”) to outline how the WCB will decide claims for psychological injury. The Psychological Injuries Policy confirms that such claims will be decided in the same way as claims for physical injuries. The WCB will first determine whether there has been an accident arising out of and in the course of employment and if so, whether the worker has suffered an injury, and if so, whether the injury was caused by the accident. The Psychological Injuries Policy specifically excludes psychological injuries that occur because of burn-out or the daily pressures or stressors of work because the daily pressures or stressors of work do not fall within any part of the definition of accident, as there is no chance event, no wilful and intentional act, and no traumatic event.

The Psychological Injuries Policy was recently updated, and the newest version applies to claims with accident dates on or after May 1, 2023. Psychological injuries may be caused by a traumatic event, or cumulative series of traumatic events, related to a worker’s work or workplace and the WCB considers a traumatic event to include workload over a prolonged period of time that is excessive or unusual in intensity.

The Psychological Injuries Policy provides that determining whether excessive workload constitutes a traumatic event involves both a subjective and objective analysis. Specifically, the WCB considers the worker’s subjective statements and responses to the workload and must also determine that the workload is significantly different from the worker’s or their coworkers’ usual workload, and of sufficient intensity and duration, that a reasonable person in the worker’s situation might be expected to suffer an injury.

Worker’s Position

The worker was present at the hearing, represented by an advocate from their union. The worker’s representative made an oral submission and also relied on their past written submissions. The worker provided evidence by way of answering questions posed by their representative and members of the appeal panel.

The worker’s position is that the decision of the Review Office should be overturned due to the failure to recognize the medical evidence of excessive workload causing psychological injury, and the failure to interview the worker in a similar position as the injured worker.

The worker described a demanding workload, with tasks and responsibilities increasing drastically over time due to more residents and more demands with the merger of the employer with another employer. The worker’s evidence is that they were the only worker in their position at this job location, and they were therefore responsible for all the residents with various levels of acuity. The worker described the challenges they faced with managing residents’ medical care. The worker indicated that they relied on outside medical providers to assist, but that there was limited communication with those medical providers and the worker often was not made aware of recommended treatment or medications prescribed.

The worker indicated their duties involved assessment of new clients, often with various conditions and significant health issues. The worker stated that each new client would be a minimum of two hours of work, which resulted in 8 to 14 hours of work on intake days to fit into a 7.5-hour shift. The worker also described daily tasks and duties, such as medication administration, ongoing assessments of clients in program, phone consultations with doctors and pharmacies and medication and CPR training for staff. The worker described in detail crisis management that occurred with a client, which required the worker to take as long as needed to ensure the client was safe and stable.

The worker’s evidence is that the number of clients increased after COVID-19, increasing the total number of clients by nine. The worker advised the panel that they already felt like they were “drowning with a caseload of 15 clients and couldn’t imagine having an increase of 9 more clients.” The worker’s position is that this was a very high number of clients for one worker to care for and indicated that it was not safe for the clients, for the workplace or for the worker.

The worker also indicated the challenges they faced with the merger of the employer with another employer. The worker advised there were continual changes in the workplace and they were required to learn new methods and procedures. The worker’s duties evolved to include doing assessments over the phone with potential clients interested in the program. The worker also had to start doing occurrence reports for any medication errors by other staff members. The worker advised that there were a vast number of occurrence reports per year.

The worker argues that the WCB did not complete a fair comparison of other co-workers, and did not speak to their coworker at a similar workplace. The worker states that the co-worker took stress leave due to the excessive workload and stress with this role.

The worker is seeking a finding that their claim is acceptable.

Employer’s Position

The employer was represented by an advocate who made an oral submission to the panel. The employer’s representative also answered questions posed by members of the appeal panel.

The position of the employer is that the evidence does not support that an acceptable accident occurred in this case.

The employer states that the worker’s workload was neither excessive nor unusual in its intensity or duration when compared with the worker or the worker’s co-workers’ usual workload.

The employer acknowledged that there are not enough resources in the worker’s industry to adequately deal with the demands. However, the employer notes that while individuals in this industry work extremely hard, often in stressful environments, this does not in and of itself result in an acceptable claim.

The employer states that there was no specific workplace accident or traumatic event to cause the worker’s psychological difficulties. The worker has mainly felt overworked but that this is not of the nature to warrant compensation by WCB.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained an injury 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 not granted. The worker’s claim is not acceptable.

In reviewing the file and hearing the worker's evidence, the panel acknowledges that the worker’s work duties were stressful and that the worker was overworked. This appears to have been acknowledged by the employer in their eventual response to address the worker’s complaints. The panel also understands that the worker regrettably experienced psychological difficulties, including heightened levels of stress, emotional overwhelm and other symptoms.

The panel considered the subjective statements of the worker regarding their workload. The position was a new position, which is noted in the job interview questions provided by the employer, and there was a period of time when the definitive job tasks and requirements were being determined by the worker themselves. Based on the worker’s evidence and their response to the workload, the panel accepts that the worker perceived the workload to be excessive, and the evidence supports that the workload was excessive in nature. However, when the objective evidence is considered, particularly in relation to the workload experienced by a comparable worker in a similar role, the panel finds that the workload did not rise to the level of traumatic event as described by the Psychological Injuries Policy.

The panel also considered the worker’s argument that the WCB did not seek information from a worker in a similar position to the injured worker (the “coworker”). The panel agrees that the WCB ought to have interviewed the coworker and not simply relied upon the information from the employer in this regard. After reviewing the additional information sought by this panel and received in relation to this coworker, the panel concludes that the worker and the coworker held similar positions and had comparable workload experiences. While it is accepted by the panel that the work was very difficult, the panel is of the view that the worker’s workload was not significantly different from that of the coworker. Therefore, the results of an objective analysis of the workload demonstrate that the intensity and duration was not significantly different from the worker’s or their coworkers’ usual workload.

This panel is bound by the policies established by the WCB, and in this instance, the worker needs to be more than overworked, an acute reaction to a traumatic event is required.

The panel finds, on a balance of probabilities, that the worker’s injuries are not considered to be an acute reaction to a traumatic event as defined by the Psychological Injuries Policy, and therefore do not meet the definition of an “accident” under the Act. The worker’s appeal is therefore denied.

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 2nd day of September, 2025