The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decisions that the claim is accepted in relation only to three incidents of harassment and bullying as identified by Review Office and that they are not entitled to benefits in relation to this claim. A videoconference hearing took place on September 22, 2025 to consider the worker's appeal.

Issue

1. Should the claim accepted for an accident occurring February 3, 2014 include incidents of harassment/bullying other than those identified by the WCB in their February 8, 2022 decision? 

2. Is the worker entitled to benefits in relation to the February 3, 2014 accident?

Decision

1. The claim accepted for an accident occurring February 3, 2014 includes an additional incident of harassment/bullying that was not identified in the WCB's February 8, 2022 decision. 

2. The worker is not entitled to benefits in relation to the February 3, 2014 accident.

Background

On April 16, 2021, the worker provided the WCB with a Worker Incident Report outlining a psychological injury which they reported was the result of the employer's failure to accommodate them, the employer's discrimination against them based on disability, and harassment by other employees of the employer, beginning on February 3, 2014. The worker reported that their claim is supported by the findings of an employer investigation initiated in 2018 and completed in 2020.

On April 23, 2021, the worker advised the WCB that their claim related to a series of incidents beginning early in 2014, leading to their leaving work on January 5, 2016. The worker stated they received disability benefits through the employer's insurance provider. The worker noted they were diagnosed with depression in 1997, but always had good performance appraisals and received awards from the employer. The worker also stated that they took time off work in 2013 to address work-related stress but returned to work in early 2014 with restrictions outlined by their physician. Soon after, the employer gave them duties outside their restrictions, and as a result, their health deteriorated, and they were diagnosed with anxiety disorder. By late 2015, the worker stated they had severe burn out and anxiety and required time off work. After their disability insurance application was denied, the worker learned the insurer received information from the employer advising that the worker struggled with their duties and their staff was afraid of them. The worker disputed this, noting a positive performance review two months before going off work, and stated this information was part of the reason why their application for insurance was denied. The worker also described requesting a third-party health assessment in 2016 which their director approved but never arranged, despite the worker's follow-up. The worker also described that in 2017, the employer advised them to resign or retire from their position, and when the worker advised they needed more information before deciding, the request for further time off was refused. The worker confirmed they filed a grievance against the employer that led to a third-party investigation, completed in 2020, which determined three of the worker's harassment allegations were founded. In January 2021, the employer requested the grievance be held in abeyance for mediation to take place, which occurred in April 2021.

On May 6, 2021, the WCB received information from the treating psychiatrist, including a copy of the October 6, 2016 referral letter from the treating family physician to the psychiatrist and a December 1, 2016 report from the psychiatrist to the worker's treating family physician. The reporting noted the worker attended a short-term assessment and treatment program between March 22, 2018 and May 7, 2018, on the referral of their family physician, in consultation with the psychiatrist. On May 27, 2021, the WCB received a further report from the treating psychiatrist.

In the Employer Injury Report provided to the WCB on June 17, 2021, the employer noted the worker advised on April 22, 2021 that they were filing a WCB claim. The employer referenced a meeting between the worker, the employer and the employer's local health and safety committee on May 28, 2021, during which the worker provided information regarding the various incidents to the employer. The employer also noted a third-party investigation found that two directors of the employer harassed the worker, but found other allegations were not harassment.

The WCB received a narrative report from the treating family physician on June 27, 2021 outlining their treatment of the worker since 1997, when the worker was diagnosed with depression, which was chronic but stable with medication. The physician reported that in 2013, the worker experienced a severe bout of depression requiring a short leave of absence from October 2013 to January 2014, at which time the worker returned to work on specific workplace accommodations. The physician concluded the workplace contributed to the worker's psychological injury because the employer failed to provide the worker with a safe workplace that accommodated their needs and contributed to the worker's ongoing mental distress through workplace harassment by the worker's superiors and isolating the worker by advising their staff not to have contact with them.

The WCB received a copy of the final level grievance reply which concluded that the actions of the employer's management did not result in the worker's disability or their taking leave without pay, nor that there was any discrimination on the grounds of the worker's disability.

On October 28, 2021, the WCB received a narrative report from the treating psychologist who reported they saw the worker for 19 sessions between December 2015 and September 2016 and during that time, the worker reported symptoms of depression and anxiety, including low mood, tearfulness, lack of energy, difficulty sleeping and increased feelings of hopelessness regarding their employment situation.

The employer provided a copy of the final harassment investigation report to the WCB, and the worker provided summaries of the final reports, which concluded the worker was subjected to harassment, as defined by the employer’s policies, by their directors on three occasions.

On December 15, 2021, the WCB advised the worker that the claim was not acceptable as it determined the incidents described were excluded from the definition of accident as employment related matters. On December 21, 2021, the worker requested Review Office reconsider the WCB’s decision. On February 8, 2022, Review Office overturned the WCB’s decision and determined the worker’s claim was acceptable, based on three specific incidents that met the definition of harassment.

At the WCB's request, the worker attended a virtual call-in examination on June 15, 2022 with a WCB psychiatric consultant. On examining the worker, the psychiatric consultant concluded that their clinical presentation and reported symptoms were consistent with the diagnoses of major depressive disorder and generalized anxiety disorder, but did not meet the criteria for diagnosis of post-traumatic stress disorder. The WCB consultant also noted the worker's pre-existing diagnosis of depression, and that the worker experienced a worsening of symptoms each time their treatment provider attempted to decrease their antidepressant medication. The psychiatric consultant concluded this represented “…the chronic and relapsing remitting nature of an individual’s [m]ajor depressive [d]isorder.” The psychiatric consultant found the worker may have experienced a temporary worsening of their pre- and co-existing mental health symptoms during the incidents identified by Review Office as constituting harassment but found that "…these symptoms are comprehensively accounted for by pre-existing history of depression, a change in course of depression to the worse with excessive alcohol use, and comorbid mixed personality traits.”

On July 7, 2022, the WCB advised the worker they were not entitled to any wage loss or medical aid benefits arising out of the workplace accident as they did not sustain a loss of earning capacity because of those incidents. On December 1, 2022, the worker requested Review Office reconsider the WCB’s decision as to benefit entitlement. Review Office determined on February 22, 2023 that the worker was not entitled to benefits. The worker’s representative filed an appeal on May 31, 2024 in relation to the Review Office decisions of February 8, 2022 and February 22, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker is employed by a federal government agency or department and therefore this claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee is entitled to compensation if they sustain personal injury by an accident arising out of and in the course of their employment. An accident is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba receives compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of 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 decides 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 employment related matters including discipline, promotion, demotion and transfer are excluded from the definition of accident.

Worker's Position

The worker appeared in the hearing represented by a worker advisor and provided evidence through answers to questions posed to them by their representative and by members of the appeal panel, as detailed in the hearing transcript. The worker advisor outlined the worker's position through their oral submissions and through a written submission provided to the panel in advance of the hearing.

The worker advisor raised a preliminary question as to the panel's jurisdiction to consider whether other incidents described and contained in the worker's claim file amount to incidents of bullying and harassment that ought to be accepted within the worker's accident claim. The worker advisor submitted that as the decision of Review Office contains findings that indicate it considered and rejected the additional incidents and events outlined in the worker's submissions and in the claim file documents, the panel has jurisdiction to make different findings in relation to those incidents and events.

The worker's position is that the evidence supports a finding that the worker was subjected to additional instances of harassment in the workplace, including name calling, psychological manipulation and coercion and exclusion from meetings, which their directors knew or ought to have known the worker would find offensive. These other instances of harassment should be included in the claim as part of the compensable accident.

The worker's position in respect of the question of benefits is that they are entitled to wage loss and medical aid benefits in relation to their psychological injury as the evidence, in particular that of their treating care providers, support a causal relationship between the incidents of harassment the comprise the accident and the worker's loss of earning capacity and need for psychological, medical and psychiatric treatment.

Employer’s Position

The employer did not take part in the worker’s appeal.

Analysis

The worker's appeal arises from the 2022 Review Office decision that the worker's claim is acceptable and the 2023 Review Office decision that the worker is not entitled to benefits in relation to their claim. Although Review Office decided in the worker's favour in the 2022 decision, it found that only three of the incidents reported by the worker amount to harassment, and the worker now seeks to expand the scope of the incidents that comprise the compensable accident in this claim. The second question in this appeal considers if the worker is entitled to benefits as a result of the injury caused by the accident. The panel considered each question in turn, as detailed below.

The panel considered the preliminary question raised by the worker advisor as to whether the panel has jurisdiction to consider if other incidents described and contained in the worker's claim file amount to incidents of bullying and harassment that ought to be accepted within the worker's accident claim. On hearing and reviewing the submissions in relation to this question, the panel determined that based on the findings contained in the Review Office decision of February 8th, 2022, we can consider whether there are other incidents of harassment that should be considered as part of the compensable accident in this claim.

Should other incidents be included in the compensable accident? 

The worker's claim and submissions outline various incidents that the worker states fall within the definition of accident and should be considered as part of the compensable accident in this claim. These are detailed in the file materials as well as in the worker's testimony and submissions from the hearing and will not be repeated in full in these reasons. These incidents as described by the worker are summarized as follows:

1. Name calling: The worker described that they were referred to as "the pest from the West" by their directors which caused the worker to feel belittled, devalued and humiliated. 

2. Undermining authority: The worker described that their director would question their assertions that they were unable to take on or complete a requested task and would do so in front of other staff members. Further the director would speak negatively about the worker in front of others and would challenge the worker's perception of overwork. The worker also described being asked by a director to make a virtual presentation to other leaders on a topic the worker was not comfortable speaking about and then, after the worker began speaking, the director took over the presentation when the worker outlined their disagreement with the director's approach to the topic, causing the worker to be so frustrated they walked out of the presentation. The worker described a director asking them to reassign their staff member to another role and that when the worker said they would not do so until a later date, the director contacted the staff member directly to reassign them. 

3. Exclusion from meetings: The worker described that they were excluded from meetings of subordinate staff including those reporting to the worker, where process changes were outlined that would affect the worker's own staff, undermining the worker's authority over their own staff.

In addition to considering the worker's testimony as to these events, the panel also reviewed the statements by the worker's colleagues and superiors as outlined in the independent investigation report provided by the employer.

As required by the Policy, when there is an allegation of an accident causing a psychological injury, the panel must first decide whether any of the incidents described amount to an accident under the Act. The Policy sets out that an event need not be objectively serious to be an accident but 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 panel considered the evidence in relation to each of these incidents and is satisfied 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 worker's position is that they were subjected to a "sustained pattern of bullying and harassment which included name calling, belittling, psychological manipulation and abuse of power" by their managers. The panel therefore also 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”. We noted 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 find them useful in interpreting the Policy provisions and have considered their application to the evidence here.

In relation to the allegation of name calling, there is evidence from one of the worker's staff members to support the worker's allegation as described above. While it is unclear when this first occurred, the panel accepts that it did happen during the period after the worker's January 2014 return to work and their December 2015 leave and that when the worker became aware of it, they found it offensive. The panel noted that although name calling was not part of the independent investigation into allegations of harassment of the worker, it is described in that report. We further find that the director knew or ought to have known such name calling would be offensive to the worker. Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the name calling by the worker's director was a wilful and intentional act, and that this action is not excluded from the definition of accident as an employment related matter or the daily pressures and stressors of work. We therefore find that this name calling should also be considered as part of the compensable accident in this claim.

In relation to the allegation of undermining the worker's authority, described by the worker advisor as psychological manipulation and coercion, the evidence does not support a finding that the incidents described by the worker amount to wilful and intentional acts undertaken with malice or bad faith. We note for example the worker's description of an incident when their concerns were questioned or disputed in the presence of senior staff from outside the worker's department, and that the staff member confirmed to the investigator that this occurred. There is evidence that this was a workplace challenged by a heavy workload and characterized by change. In this context, the panel finds that it is reasonable that management might respond to the worker's concerns about their ability to complete assignments or manage their workload by pushing back with questions. While such a conversation might better have taken place in a more private context, the panel is not satisfied based on the available evidence that this event amounts to psychological manipulation or coercion, such that we could find there is any malice or bad faith. We accept that the director likely did question the worker's perceptions and beliefs as to the extent of their workload but find that this falls squarely within the category of the daily pressures or stressors of work that do not give rise to a compensable claim. The other examples offered by the worker include situations where the worker refused an assignment or seemed to be contradicting their director and as a result, the director took actions which the worker found offensive. While the worker's reaction may have been called for, as detailed in the Psychological Injuries Policy dealing with a difficult, demanding or unpleasant supervisor is an example of a situation of burnout or stress which is excluded from the definition of an accident under the Act. Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that these incidents do not fall within the definition of accident.

The panel also considered the worker's allegation that their exclusion from certain staff meetings undermined their authority over their own staff. The panel noted the worker's testimony that the meetings were intended to allow staff across the country to discuss matters related to their responsibilities and that these meetings were coordinated by a director with authority to direct these staff in relation to specific projects. The worker also confirmed that generally these meetings were not attended by others in the worker's position, although some were invited to attend to address specific issues on occasion. The worker also stated their concern that they had to obtain information about the meetings from their own staff and that in one meeting, while reviewing a process that the worker did not plan to implement in their office, the director stated the worker did not have authority to make that decision. While the panel acknowledges that the worker may have felt excluded from these meetings, the evidence confirms the worker was not part of the staff group required to attend the meetings and that the manager running the meetings had authority to direct the worker's staff in relation to certain activities as discussed in the meetings. Considering the totality of evidence about these meetings, we find there is no evidence that the worker's exclusion amounts to a wilful and intentional act that the director knew or ought to have known would be offensive or objectionable to the worker. Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that these actions do not fall within the definition of accident.

The panel therefore is satisfied that the incident or incidents of name calling constitute a wilful and intentional act that falls within the definition of accident and should be considered and included as part of the worker's compensable accident. Therefore, the panel grants the worker's appeal on this question, in part.

Is the worker entitled to benefits in relation to the compensable accident? 

The second question under appeal relates to the worker's entitlement to benefits in relation to the psychological injury they sustained as a result of the workplace accident, including the events and incidents previously accepted by the WCB in support of the claim and the additional incident or incidents of name calling as outlined above. For the worker's appeal on this question to succeed, the panel would have to find that because of the compensable accident, the worker needed treatment for their psychological injury or sustained a loss earning capacity because of that injury.

The panel reviewed the available medical reporting from the treating family physician, psychiatrist, assessing psychiatrist and psychologist. The panel noted the absence of any contemporaneous medical reporting to support the worker's position that the events comprising the compensable accident in this claim caused them to require medical attention or to experience a loss of earning capacity beginning in December 2015. In fact, the earliest medical reporting in relation to this claim is from October 2016, nearly one year after the worker went on leave from their employment. In October 2016, the treating family physician referred the worker for psychiatric assessment, noting in the referral letter that the worker, who had chronic refractory depression, was off work since January 2016 because they were unable to deal with "people, telephone or emails" and could not perform their job duties and had been hiding in their office prior to their leave, "completely unable to deal with people". The physician noted that the worker was treated with medication and psychology, which "does not seem to be effective anymore." Notably, the referral letter makes no mention of any specific workplace concerns about the worker's directors or any workplace harassment.

The panel also reviewed the December 1, 2016 report in response from the treating psychiatrist, who assessed the worker in November 2016. The psychiatrist outlined that the worker was unable to work due to depression, in relation to which the worker had sought psychological treatment since December 2015. The psychiatrist also noted the worker's history of depression, treated over some 20 years, and that in the previous year, the worker was "feeling worse in December with some improvement in March, although not to baseline, and worsening of symptoms since April, after a bad experience during a [medical procedure]." The panel noted the psychiatrist makes no mention of any incidents of workplace harassment nor the worker's concerns with management, nor do they comment as to the worker experiencing any panic attacks. The psychiatrist offered a diagnosis of "Persistent Depressive Disorder, with overlapping major depressive episodes", the most recent beginning in December 2015 and worsening in spring 2016 and proposes medication adjustments and psychotherapy.

The panel considered the May 8, 2018 psychiatric report, arising out of the worker's partial hospitalization that spring, which described the worker's long history of depression and alcohol overuse resulting in a referral for diagnostic clarification. The assessing psychiatrist noted the worker's reported history of depression throughout their adult life and their report of daily alcohol consumption. The psychiatrist recorded that the worker began to receive therapy in late 2015 and that until going off work in December 2015, the worker was "always able to function at work despite being depressed or having regular panic attacks". The psychiatrist noted the worker reported "going on stress leave after several cutbacks and layoffs in [their] workplace" and that the worker found it "very distressing" when they later learned that performance issues were noted in their file but never brought to their attention." The psychiatrist noted that the worker's "…worsening of mental health symptoms has coincided with going off work, as this was a form of coping" for the worker, who indicated they would like to return to work eventually but worried "about the stress levels associated with it." The psychiatrist provided diagnoses of persistent depressive disorder and substance use disorder. The panel noted the psychiatrist makes no mention of any incidents of workplace harassment as a cause of the worker's depression, although noting that being off work coincided with worsening of symptoms and that the worker was distressed upon later discovering the discrepancy in relation to their performance reviews.

The worker submitted the panel should give significant weight to the narrative report from the treating family physician, dated June 27, 2021. In this report, the physician advocated for the worker to receive WCB benefits, providing extensive comments based only on the worker's description of the workplace events. The physician noted the worker's longstanding history of depression dating to 1997 which the worker was able to manage with medication while maintaining a successful career and that in 2013, the worker experienced a "more severe bout of depression which required a leave of absence from [their] work for a short period Oct 2013-Jan 2014". The panel noted the physician offers various opinions that are not based on medical or clinical findings within the expertise of a family physician, and as such, we give little weight to the conclusions drawn in this report by the family physician as to the matters outside their expertise, particularly as relates to the nature of the workplace events as perceived by the worker.

The panel also reviewed and considered the October 18, 2021 report from the psychologist who treated the worker from December 2015 until September 2016. In that report, the psychologist outlines that the worker reported their managers began harassing and bullying the worker after the return to work in 2014, that the worker had a difference of opinion with one manager as to the worker's role and that the same manager was "countermanding" the worker's decisions to the worker's staff. The psychologist reported the worker began having panic attacks at work, was crying at work and felt powerless to change the situation and went on leave in December 2015. The psychologist reported the worker's anxiety increased when the worker had to navigate interactions with insurance companies and systems, especially when the worker learned of the reported performance issues through seeking disclosure of the insurance claim file. The psychologist also outlined their diagnoses of "Major Depressive Disorder, Recurrent, Moderate without Psychotic Features" and generalized anxiety disorder. The panel noted the treating psychologist stated the worker's pre-existing depression was successfully managed with medication prior to the increased workplace issues, but also outlined that the worker had a significant mental health episode in late 2013 which included psychiatric and medical treatment and resulted in a 3-month break from work. Given that this treatment relationship began just as the worker was going on leave, it offers some insight to the panel as to the worker's experience and symptoms at that time, but we note the psychologist did not outline any treatment plan or recommend that the worker take time off work as a result of their psychological symptoms. Rather, it appears from this report that these were the worker's own decisions made without any medical or other recommendations.

The worker's representative submitted that the panel should prefer the opinions offered by the worker's treatment providers over that provided by the WCB psychiatric advisor in June 2022. The panel noted that the WCB psychiatric advisor undertook a virtual examination of the worker and reviewed the file documents including the medical reporting to date. The psychiatric advisor confirmed the worker's clinical presentation and reported symptoms were consistent with the diagnoses of major depressive disorder and generalized anxiety disorder and noted the worker's history of relapsing depressive symptoms with medication discontinuation is illustrative of "the chronic and relapsing remitting nature of an individual's Major depressive Disorder." The advisor also noted the 2018 diagnosis of substance use disorder, and highlighted that "excessive alcohol use, and "substance use disorder"…not only can result in a depressive disorder on its own, but also can change the course and prognosis of the pre-existing and at times well managed depressive disorder." The WCB psychiatric advisor concluded that the worker's current symptoms were "…comprehensively accounted for by pre-existing history of depression, a change in course of depression to the worse with excessive alcohol use, and comorbid mixed personality traits" but allowed that the worker could have experienced a temporary worsening of their pre-existing and co-existing mental health symptoms when receiving an email from their manager in early 2014 and when reading the managers' comments to the disability insurer in 2016 regarding their performance issues. The panel noted the psychiatric advisor did not address the question of the extent of the worker's disability arising out of the workplace incidents as they found that the worker's psychological condition was comprehensively explained by and related to their pre-existing and co-existing conditions.

The medical reporting in relation to the worker's psychological condition does not provide an evidentiary basis upon which to find that the worker sustained a loss of earning capacity as a result of the workplace incidents which comprise the compensable accident in this case, nor that the worker required medical aid as a result of the accident. There is evidence the worker has a pre-existing psychological condition for which they received ongoing medical treatment, and which was chronic and would remit and relapse from time to time, as is evident both before and after the compensable incidents occurred. Further, there is evidence that the worker determined in December 2015 to take time off work without any medical recommendation that they do so and there are no treatment recommendations from the worker's care providers at that time to support any need for medical aid.

Based on the totality of the evidence before the panel, and applying the standard of a balance of probabilities, we are satisfied that the worker is not entitled to benefits in relation to the compensable accident. Therefore, we deny the worker's appeal on this question.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of October, 2025