Worker "J" v. Employer, 2015 CanLII 28626

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

decision number: 20150032

DECISION DATE: May 25, 2015

OBJECTING PARTY: Worker "J"

REPRESENTED by: Worker Representative

RESPONDENT: Employer (not participating)

HEARING: April 27, 2015, Toronto, Ontario

HEARD by: C. da Cunha, Appeals Resolution Officer

ADDITIONAL ATTENDEES: Worker's Mother, Observer MC, Observer SL, Union Observer

ISSUE

1. Initial entitlement under the Workplace Safety and Insurance Board's Traumatic Mental Stress (TMS) policy.

BACKGROUND

On April 7, 2014 at approximately 8:20 AM, the worker was standing at the southwest corner of J and M street, on her way to work at J and W street, when a former client, riding in a taxicab, rolled down the passenger window and angrily yelled at her numerous times. She was 37 years of age at the time and had worked with the employer as a caseworker for over 4 ½ years.

The worker developed mental health difficulties after the incident and stopped working as of April 9, 2014. She consulted her family physician, Dr. W, who diagnosed her with post-traumatic stress disorder (PTSD) and referred her to Dr. C, Psychiatrist.

After assessing the worker, Dr. C confirmed the PTSD diagnosis.

The Case Manager's (CM) Decisions

The CM obtained statements from the workplace parties and internal documents from the employer as well as a police report. On May 30, 2014, the CM denied initial entitlement to TMS on the basis that:

• The worker was not in the course of employment when the incident occurred;
• Proof of accident could not be established as there were no witnesses; and,
• The former client did not make a specific verbal threat.

The Worker's Position

In his closing at the oral hearing, the worker representative argued that:

• Proof of accident is clearly evident even without a witness to the incident;
• The worker was in the course of employment because the former client's verbal aggression and implied physical threat were grounded solely in work-related matters and arose out of their workplace relationship; and,
• The incident was sudden, unexpected and objectively traumatic because:
  • The worker was shocked to be suddenly confronted and verbally attacked so severely while on her way to work;
  • The former client uttered a thinly-veiled death threat against her;
  • An implied death threat is not a normal occurrence during the course of her employment; and,
  • The additional information about the former client provided to her by the police significantly worsened the trauma of the initial incident.

AUTHORITY

Operational Policies:

11-01-01: Adjudicative Process

15-02-01: Definition of an Accident

15-02-02: Accident in the Course of Employment

15-03-03: On/Off Employers' Premises

15-03-02: TMS

ASSESSMENT OF THE EVIDENCE

In arriving at my decision, I reviewed and considered the information in the case file, the worker's testimony, the worker representative's April 8, 2015 submission of Dr. C's March 3, 2015 report and the applicable policies.

Policy:

With respect to the matter before me, operational policy 15-03-02 is the determinative authority and it states, in part:

A worker is entitled to benefits for TMS that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.

A worker is not entitled to benefits for TMS that is a result of the employer's employment decisions or actions.

It further adds, in part:

Sudden and unexpected traumatic event

In order to consider entitlement for TMS, a decision-maker must identify that a sudden and unexpected traumatic event occurred. A traumatic event may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker's family member, or others.

Accident History:

Since the day of accident, the worker's description of the incident has evolved from one where the client simply angrily yelled at her because of his belief that she had issued a "no trespass" order against him to one where he threatened to kill her.

At 9:45 AM on April 7, 2014, approximately 1 ½ hours after the accident, the worker first reported the incident to a security officer at work. The security officer wrote the following, in part, on the Incident File Full Report:

At approximately 9:45 hrs Caseworker informed the writer that a trespassed male subject known to security as (redacted) swore at her from a taxicab outside a bus stop on the corner of J & W streets while on her way to the office. The subject used words to the effect of "Fucking bitch, you put a trespass on me." This phrase was repeated several times before the cab started moving in response to a green light.

The security officer summarized the incident as "Male subject swears at caseworker from a taxicab outside the office".

There is no indication in this initial document that the former client threatened the worker in any way.

The worker then reported the incident to her supervisor at 11:00 AM on the same day. A Workplace Violence and Threat Report completed by the supervisor notes the following, in part:

• At 11:00 a.m., "J", the worker informed (IP), that a trespass client, (redacted), MID 203832845, yelled at her while she was walking to work
• "J" stated she was stopped at a red light at 8:20 a.m. on the south/west corner of J and M streets waiting to cross the street
• "J" stated the client was a passenger in a taxi, cab company unknown, and rolled down the window and yelled at her, "you fucken bitch you put a trespass order on me"
• "J" stated the client repeated the same statement several times while the taxi drove past her
• "J" stated she waited at J and M streets 'because I felt threatened and wanted to see if client was going to the office or get out of the cab'
• "J" stated the taxi turned north on J street and then east on W street and the client did not get out of the taxi
• "J" stated an unidentified white male with a beard asked her if she as okay and how she knew the man

Up to this point, within 2 ½ hours of the incident, the first two incident reports are consistent with and corroborate each other. Notably, there is no suggestion in these documents that the former client directly or even suggestively threatened the physical integrity of the worker.

In the same report, the supervisor goes on to state the following, in part:

• At approximately 1:45 p.m., "J" informed KS, of a potential verbal threat; client said 'you fucken bitch I'm gonna...', but "J" did not hear what client said

Sometime between 1:45 PM and 3:00 PM, the documentary evidence shows that the worker sent an e-mail to management staff providing details of the incident, requesting a meeting to discuss the matter, outlining her concerns and making recommendations for the next courses of action. In her e-mail, the worker wrote the following in part:

On my way to work today (April 7/2014) and at 8:20 a.m. I was at the corner of M and J street (Street Stop). Client was in a Taxicab (at the same street stop) and screamed vulgar and threatening language towards this writer (several times). Client kept repeating: You put a Trespass Order on Me You Fucking Bitch I'm going to...(I didn't hear what the client said after this but I did hear the client repeat again: You put a Trespass Order on Me You Bitch etc...Client's voice kept escalating. Client looked visibly angry. This writer did not hear everything client said as this writer was taken off guard and was in shock as I was also thinking of an escape plan in the event the client got out of the Taxicab.

Approximately 5 ½ to 6 ½ hours after the incident, the accident history has evolved from one where a former client angrily swears at the worker to one where the former client angrily swears at the worker with undertones suggesting a potential physical threat.

At 5:13 P.M. on April 8, 2014, the worker reported the incident to the police. The police report outlines the following, in part:

The Complainant, "J", is a Caseworker for (company name and address). On Monday the 7th of April 2014 at 08:20 hours, while she was on her way to work she was at the corner of M and J Street. A Client who is known to her, (redacted), was in a Taxi Cab at the same street stop, screamed vulgar and threatening language towards her.

The Client stated, "You Put A Trespass Order on me You Fucking Bitch I'm Going To ....." The Complainant didn't hear what (redacted) said, but (redacted) repeated again, "You Put A Trespass Order On Me You Bitch etc..." (redacted) appeared to be visibly angry. Fearing for her safety the Complainant waited until the Taxi left the area before she entered her workplace.

The Complainant spoke to the Security Officer on On Duty and he advised her that the Client has tried to enter the building several times even though (redacted) has been previously Trespassed and (redacted) File transferred to (office location).

The Complainant does not wish to have any charges laid against the Client but is concerned for her safety and her colleagues in the workplace.

The details in the police report are consistent with the escalated accident history provided by the worker as of 1:45 P.M. on April 7, 2014.

On April 14, 2014, the worker significantly elevated the severity of the incident to one where the former client uttered a death threat against her. In the Health Professional's Report (Form 8) dated April 14, 2014, Dr. W provides the following accident history:

A client (ex-client) uttered death threats to her as she was walking on the street...

The documentary evidence subsequent to April 14, 2014 shows that the worker maintained to Dr. C that the former client threatened to kill her on April 7, 2014. However, at the oral hearing the worker testified that the former client yelled: "You F'n bitch! I'm going to ..." She did not confirm under oath that the former client uttered a death threat.

The worker went on to testify that on April 7, 2014 and April 8, 2014, the former client left so many messages for her and her supervisor that he filled up her voice mail service, preventing any further messages from being recorded. The messages were angry and offensive, accusing her of being a "sell-out".

The worker also testified that various members of the police force provided her with personal information about the former client, including that he was dangerous, had a criminal record, had three warrants out for his arrest, suffered from mental health issues and was not taking his medications. The police repeatedly warned her to be careful, to change her appearance when out in public and to change her travelling routes regularly to minimize her risk of exposure to the former client. This information and advice caused her to become more fearful, paranoid and housebound for months after the incident.

While I do not dispute that the accident history has genuinely evolved over time in the worker's mind to one where the former client uttered a death threat against her, the contemporaneous and well-documented evidence on file shows this not to be the case.

Furthermore, the worker's testimony regarding the voice mail messages and the information provided by the police is not corroborated by any documentary evidence on file. In fact, the first mention of these circumstances is recorded at the oral hearing, more than one year after the incident. I take negative inference from the fact that the worker did not obtain and submit documentary evidence to support her testimony in relation to these matters. She could easily have secured this evidence from her employer and the police.

Noting the above, I find that at approximately 8:20 A.M. on April 7, 2014 at the corner of J and M streets, the former client yelled and swore at the worker but did not directly or indirectly threaten or imply a threat against her physical integrity.

This is the accident history upon which initial entitlement must be determined.

Analysis:

Is Proof of Accident Evident?

Yes.

The incident occurred as evidenced by the detailed and timely reporting by the worker to the security officer, her employer and the police. She sought medical attention on April 9, 2014 and stopped working. The absence of a statement from, or details concerning, the man that witnessed the event does not negate the weight of these facts.

Was the Worker in the Course of Employment?

Yes.

While the time and place of the incident were outside of the worker's normal work hours and location (she worked in an office environment and started her shift at 8:30 A.M.), I find that the circumstances surrounding the incident placed her in the course of employment for the following reasons:

• The former client only knew her because of her occupation; and,
• The former client only confronted her because of her duties as a caseworker.
• Therefore, the confrontation was incidental to the worker's employment.

As long as the worker was walking in the public realm on her way to work and at all times before she entered her workplace premises, in the normal course of events and in the absence of an intervening event of material relevance, she would not be in the course of her employment; she would be "J", Private Citizen.

However, at the precise moment the former client interacted with her in relation to her work duties and responsibilities, she was thrust into the course of her employment because the activity of listening and being exposed to a verbally abusive former client was solely incidental and not out of keeping with her work duties. At that point she became "J", (job title).

Was there a Sudden and Unexpected Traumatic Event?

No.

Firstly, the worker was in the course of her employment when the incident occurred. Therefore, this question turns on the nature of her normal workplace environment.

The worker had performed her job for over 4 ½ years at the time of the incident. She testified that it was not unusual for her to deal with people who suffered from severe life circumstances, personality disorders and mental health conditions. Verbal abuse from her clients was a risk inherent in her job and something that had occurred previously and she had witnessed occurring to her co-workers. Profanity-laced, loud, verbally-abusive and derogatory outbursts from individuals would not be unexpected from the point of view of the worker's job.

The worker testified that a small percentage of her clients were "orange-file" clients. These people were identified as being violent or potentially aggressive and threatening. They had previously been verbally or physically violent and security procedures were put in place when dealing with them. She met with these clients in a special booth surrounded by plexiglass and with a security officer present. These clients had to call ahead of time to schedule an appointment. They could not just walk in to see her.

Secondly, the former client did not, at any time, threaten the worker's life or her physical integrity. The contemporaneous evidence immediately following the incident shows that the client was angry with the worker but did not threaten her.

Even if I accept the second accident history provided by the worker (i.e. "You put a Trespass Order on Me You Fucking Bitch I'm going to ... "), I am unable to conclude that it was objectively traumatic. The worker confirmed that she did not hear what the former client said afterwards. Any inference on her part about what he might have said or intended to say would be pure subjective speculation.

The worker's representative contended at the oral hearing that it would be reasonable to conclude that there was an implied threat to the worker by the former client. I agree. However, it would also be just as reasonable for one to subjectively conclude that he intended to say "...I'm going to get you fired! " or "...I'm going to report you to my MPP!" ... or "...I'm going to the papers with this!" etc. etc. etc.

In any event, the point is that any conclusion on what the former client intended to say is purely subjective depending on the individual recipient of the verbal abuse. The policy clearly does not allow entitlement as a result of a subjectively interpreted traumatic experience. The decision-maker must look at the mechanics of the incident and determine if it is traumatic during the normal course of employment. Objectively, noting what the former client actually said and taking into account the normal workplace environment, I find that the incident was not traumatic.

Finally, Dr. W's and Dr. C's reports show that a large factor in the worker's claim for TMS is her perception that her employer did not have proper practices and procedures in place to help her deal with and prevent further incidents in the future. However, TMS arising out of employment decisions and actions, or lack thereof, is not compensable under the WSIA.

In summary, while I acknowledge the difficult and offensive nature of the worker's experience with her former client, it was neither unexpected in her line of work nor objectively traumatic. Therefore, initial entitlement under the TMS policy is not in order.

CONCLUSION

Initial entitlement under the Workplace Safety and Insurance Board's Traumatic Mental Stress policy is not in order.

The worker's objection is denied.

DATED May 25, 2015.

C. da Cunha

Appeals Resolution Officer

Appeals Services Division