WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150079
DECISION DATE:
February 20, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer
REPRESENTED by:
Employer Representative
HEARING:
February 2, 2015 – London, Ontario
HEARD by:
M. Kimevski, Appeals Resolution Officer
ADDITIONAL ATTENDEES:
Employer Resource
ISSUE
The worker requests entitlement for traumatic mental stress (TMS).
BACKGROUND
The claim was established with a date of accident of August 8, 2013 for this then (job title) who claims that her (job title) “S” sent her an inappropriate picture, text messages/comments and inappropriately touched her, causing her post-traumatic stress.
The Case Manager communicated in a letter dated November 6, 2013 that the behaviour of her superior would have been distressing and inappropriate but there was no evidence of a threat and entitlement to TMS was denied.
The decision was reconsidered and a letter dated January 13, 2014 indicated that the texting of the picture would be upsetting but is not considered objectively traumatic and there is no proof of any physical assault. Consequently, the denial of entitlement to TMS was confirmed.
The worker objected and the case was referred to the Appeals Services Division for further consideration. It was determined that an oral hearing was necessary to resolve the appeal.
AUTHORITY
Operational Policies
11-01-01 Adjudicative Process
11-01-02 Decision Making
15-03-02 Traumatic Mental Stress
EXHIBITS
The worker’s representative provided two decisions from the Workplace Safety & Insurance Appeals Tribunal (WSIAT), which were accepted and identified as follows:
Exhibit#1 Decision No. 2121/12
Exhibit#2 Decision No. 2411/07
ANALYSIS
In reaching my conclusion I considered all of the available information in the file, the relevant testimony provided and the arguments of the parties in the context of the relevant operational policy and legislation.
I find that the weight of evidence supports that the worker received a lewd picture on her cell phone; however, while the nature of the picture was without doubt inappropriate, I cannot qualify it to be objectively traumatic. There are also discrepancies surrounding what lead to the worker receiving the picture; the nature of the communications following receipt of the picture; as well as absence of any proof of an alleged touching incident that same night. The weight of evidence supports that the worker was also experiencing some non-compensable personal difficulties and the worker’s own behaviour on the night in question does not support that actions of one who was intimidated or fearful. Therefore, I find there is no entitlement pursuant to the TMS policy.
I considered all of the evidence which the worker claims led to the development of her psychological difficulties. I have summarized the details based on the file record and the worker’s testimony.
Testimony
August 8, 2013, was the worker’s first shift back from one month’s vacation. She was about 15 minutes early for her shift, which was to start at 23:00. She parked on the management side of the parking lot. S was standing in the doorway smoking and she asked S why he was there because it was unusual for second level management to be there at night. S said that he had missed her. She didn’t acknowledge it, wasn’t unusual to get comments. She has dealt with guys (in general) making comments to her. The worker said they discussed what needed to be done that night and she went in to get her work gear on.
She indicated that her cell phone number was programmed into the (job title)’s phone. Routinely she has to drive and the employer knew she kept her cell phone for safety purposes. (Job Title) would routinely call her on her cell phone.
She indicated that S did not have her number but he previously worked as a (job title). He had never used her number before. He got her number that night, this occurred during their work related discussion at the beginning. They talked about how things were going, it was known she was separated and he told her to text her number in case she needed anything like time off or whatever.
She started to work her shift and the next communication with S was when she was in the bullpen (a meeting area) waiting on a crew to finish their lunch to give them a ride back (redacted) and her phone went off and it was a picture of (redacted) and it was from S’s number. She was in shock and then it came through a second time. She just blankly said to the group that S sent her a picture of (redacted) and tossed her phone on the table. Someone said ‘it’s your golden ticket.” The worker said she could not believe it, she felt sick, and she went to the washroom crying because he has all the power with her job, he’s her boss. It came out of nowhere; there was no conversation, nothing leading up to it.
She then stated she just remembered that she did see S smoking out on the back patio and she had joked around. She had walked up behind him, didn’t touch him but (redacted). There were two co-workers there. They laughed and S asked what she was doing. The worker then said she thinks this occurred that the same night. It happened before the picture, it was before midnight, within the first hour. She wasn’t clear on when but then said it was within 15 minutes of her shift. She was just horsing around, clowning around, it was nothing sexual.
She does not agree with the two co-worker statements in the employer’s investigation which described her (redacted) S and even grabbing him by the hips. All the peopled in the employer’s investigation are her acquaintances, but with respect to the two involved in this incident she described one co-worker to be a liar and said she doesn’t know where the other one’s head was at.
She denied ever stating that the picture from S was her “get out of jail card.”
Later on in the night, S tried to contact her via radio (redacted) and she ignored it, then he called a second time and the (job title) asked S what he wanted and S said to tell the worker to meet him at the west end of (location). The worker said she was already heading down there and assumed he was just going to be there to safety blitz and take her radio away. She said it was the (redacted), which are well lit and there are surveillance cameras. She cannot recall if she called him or sent him a text and he responded that he was coming up behind her. She was out of her truck and she could hear him pulling up; he was very loud and boisterous and was talking on the radio or something. He said “hey baby come here.” The worker said he talked like that to other women as well. He told her “damn girl you always got to wear those jeans.” The worker didn’t say anything to S about the picture during this meeting because she was scared of him, he was big and muscular, she was intimidated by him, and she wanted to avoid him. She called the tower to find out what else they wanted her to do and got in her truck, S backed up and she went back to the tower.
Later on in the shift she was speaking with a co-worker who sits by her, about what had happened and showed him the text. The worker said that she and the co-worker had spoken many times about how intimidating S was and the co-worker told her she should go to the police but she didn’t want a target on her back. She trusted this co-worker. While she and the co-worker were talking, the worker was leaning forward with her chest to the cubicle wall, which was about shoulder height, when she heard someone on the stairs and it was S and as he walked by her he touched her butt, then she said he grabbed it. The worker later in testimony indicated S had patted her butt. The co-worker didn’t see anything because of the cubicle wall. The worker said she went to the washroom, got physically ill and threw up.
She got called again to do more work so she went. She was driving around. Then she received a text from S at 5:23am that said, “come see me and quit being scared,” to which she replied, “everybody’s afraid of you.” The worker said she told the co-worker again what happened and may have told people in the vehicle. The worker agreed she deleted her response in this email exchange from her phone (as noted in the employer’s investigation) but said she wasn’t being manipulative with what she saved or deleted.
After she finished her shift and went home she called her father and broke down. They discussed issues she had with other members of the management team in the past. Her father called the Union President. She made a medical appointment and sought help through the assistance program. She felt sick, had a panic attack. She called the (job title) to book her off sick.
S tried to call her and text her August 13, 2013 about her going after him for sexual harassment, but she never responded to him. Thinks there was a second text.
The worker denies the statements S provided in the employer’s investigation.
She sought medical attention with Dr. “O” her long term family physician. She saw and continues to see “MM” on a weekly basis; she started with him through the assistance program. She had previously been seeing “AT” for issues specific to her children over her separation. She saw Dr. “C” three times; Dr. C was forced into retirement end of October 2014. She also had an Independent Medical Exam through Great West and was then cut off in May 2014.
She denies ever experiencing panic attacks or other symptoms prior to August 2013.
She started to get strange phone calls, hang ups on her cell phone and at home from blocked numbers. Then started getting called a slut and whore and she thinks it was S because of a heavy southern accent. They would occur 2 – 3 times a night and then no calls for a couple of days. Her daughter even got called a slut when she answered the phone. The calls started the end of September 2013 and continued into 2014 until either February/March. The worker said she told her ex-husband, she was scared. She was scared S was there, she was hearing things, she had her kids in bed with her, thought he was coming to get her. Called the police and they told her to call the phone company.
She tried to return to work. Her first day had a meeting and the (job title) made an unnecessary comment about her sandals, which were just flat sandals. Couldn’t recall date of return to work, could be May 25, 2014. She was treated like garbage and was having anxiety. Her first night back there was note on her car about a petition to bring S back. She also saw it on a bullpen Facebook message. She felt like everybody was looking at her differently. They didn’t want to get in the truck with her. The guy with the petition would make comments at her and look at her so she confronted him one day in the bullpen and he told her “I’m not … talking to you.” She had no interaction with him again and then she got a letter from (the company) in August 2014 saying that she was harassing the guy, but no investigation was pursued.
The worker said throughout her career at (company name) she thought she had a good relationship with co-workers, they trusted her, and she helped others.
The worker indicated she had issues with other management persons as mentioned by
Dr. C. They were over what the worker described as other inappropriate events in the past, she had raised one of them with another (job title) who assisted her, but nothing was officially pursued. She said you just don’t want to be that girl, for the longest time she was the only woman out of about 140 people at (location).
- The worker confirmed that at the time of the August 2013 events, S had recently been promoted. She knew him, he was a (job title) she had worked with him a hand full of times. She would regularly go into the (job title)’s office maybe 5 - 7 times a night, whoever it was. When asked about concerns with S in the past, the worker said he was a hot head, there was one time she picked something up without work gloves and he screamed at her so bad. He was known for having a hot temper, he was big muscular guy. That was the only time he had directed any anger toward her. He didn’t hold himself in a professional way, he would call her and the other girls ‘baby’ and ‘sweet-heart’ but it was easily ignored. There was a rumour that S was on steroids. She had no outside contact with him and he had never threatened her.
Worker’s Position
The worker’s representative submitted that applying the facts to a legal test the worker had a personal injury arising out of and in the course of the employment. The mental stress is the personal injury resulting from the inappropriate conduct without the worker’s consent. There was an inappropriate and visually disturbing photo, sent to her out of the blue and there was touching. It is understood there is no evidence of the worker being touched but she testified under oath that this is what happened. These are unexpected events in the workplace.
It was indicated that they had previously submitted a lengthy document from the Human Rights Commission in which it is indicated that any unnecessary contact, including touching and sexual pictures are examples of sexual harassment.
It was argued that in considering the TMS policy the events are clearly identifiable and applying the average worker test, a person of average mental stability would perceive these events to be traumatic. It’s not a subjective event; this is an objectively traumatic event that occurred on August 9, 2013 and it was also clearly unexpected in the normal course of the employment.
With respect to accusations of the worker (redacted)/touching, the worker has vehemently denied these accusations as she did with the employer. Also when reading to her what S had stated occurred in the employer’s investigation, she vehemently denied those responses were accurate. She is under oath and has no reason to lie and it is submitted that whatever happened at that time, does not excuse the fact that she was sent the photos or was touched, this was not a consensual process.
Further the examples listed in the TMS policy are not exhaustive, they are not the only examples that can be considered, and they are inclusive. It doesn’t mean that something can’t be considered that is not listed in the policy. There does not need to be a threat of physical harm but the worker did state she was intimidated, she sent a text back and said she was afraid of him. Also she was getting phone calls, it is not known who was making the calls but she was getting them.
The WSIAT decisions, Exhibit#1 No. 2121/12 and Exhibit#2 No. 2411/07 were submitted and highlighted as jurisprudence to review and determine sexual harassment as an objective traumatic event and further support that board policy is inclusive not exhaustive.
In this case, the exposure was a photo, from her supervisor and she felt intimidated and felt he could hold her job accountable. She wasn’t comfortable talking to S about it (redacted). She testified there was a touching on her buttocks; considered sexual harassment and a physical threat.
In summary, the incidents of August 9, 2013 constituted sudden and unexpected traumatic events granting entitlement under the TMS policy and LOE benefits flowing from that decision. The worker attempted to return to work, but due to other events i.e. the petition and co-workers treating her differently she couldn’t continue in that environment.
Employer’s Position
The employer submitted that the WSIAT decisions are not binding and with respect to the TMS policy the requirements have not been met.
Although the worker says she was fearful, there was nothing objectively traumatic and the worker was an active participant. Prior to the photo being sent she was (redacted) and the co-workers described both parties participating in actions not considered appropriate by (the company).
It is agreed that the photo was sent to the worker and the picture was vulgar, but this was not traumatic, not life threating, nor did it pose any harm to the worker. In receiving the picture she showed the picture to others and it was indicated by a co-worker that the worker said it was her “get out of jail card.”
The worker testified she was fearful and was getting calls and claims she called the police but did not pursue any complaints, even when one of her children were involved. The worker also did not pursue other issues referenced pertaining to other senior personnel.
Further, it is submitted that it speaks volumes that her co-workers refused to get into a vehicle alone with her after she returned to work, because they were fearful of the individual submitting allegations.
The employer argued that there must be an acute reaction to a sudden and unexpected traumatic event and this case that did not occur. There was no traumatic event and it was suggested the worker had secondary gain issues.
Summary
It is important to outline the requirements in Policy 15-03-02, entitled Traumatic Mental Stress, which sets out the following in part,
Policy
A worker is entitled to benefits for traumatic mental stress 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 traumatic mental stress that is a result of the employer's employment decisions or actions.
Guidelines
Sudden and unexpected traumatic event
In order to consider entitlement for traumatic mental stress, 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.
In all cases, the event must arise out of and occur in the course of the employment, and be
clearly and precisely identifiable
objectively traumatic, and
unexpected in the normal or daily course of the worker’s employment or work environment.
This means that the event
can be established by the WSIB through information or knowledge of the event provided by co-workers, supervisory staff, or others, and
is generally accepted as being traumatic.
Sudden and unexpected traumatic events include
witnessing a fatality or a horrific accident
witnessing or being the object of an armed robbery
witnessing or being the object of a hostage-taking
being the object of physical violence
being the object of death threats
being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse)
being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).
The worker must have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) (e.g., speaking with the victim(s) on the radio or telephone as the traumatic event is occurring).
Acute reaction
An acute reaction is a significant or severe reaction by the worker to the work-related traumatic event that results in a psychiatric/psychological response. Such a response is generally identifiable and must result in an Axis I Diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
An acute reaction is said to be immediate if it occurs within four weeks of the traumatic event.
An acute reaction is said to be delayed if it occurs more than four weeks after the traumatic event. In the case of a delayed onset, the evidence must be clear and convincing that the onset is due to a sudden and unexpected traumatic event, which arose out of and in the course of the employment.
Workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits.
Cumulative effect
Due to the nature of their occupation, some workers, over a period of time, may be exposed to multiple, sudden and unexpected traumatic events resulting from criminal acts, harassment, or horrific accidents. If a worker has an acute reaction to the most recent unexpected traumatic event, entitlement may be in order even if the worker may experience these traumatic events as part of the employment and was able to tolerate the past traumatic events. A final reaction to a series of sudden and traumatic events is considered to be the cumulative effect.
The WSIB recognizes that each traumatic event in a series of events may affect a worker psychologically. This is true even if the worker does not show the effects until the most recent event. As a result, entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic (significant).
In considering entitlement for the cumulative effect, decision-makers will rely on clinical and other information supporting that multiple traumatic events led to the worker’s current psychological state. Also, there may be evidence showing that each event had some effect or life disruption on the worker, even if the worker was not functionally impaired by the effect or life disruption.
An employer's work-related decisions or actions
There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function, such as
terminations
demotions
transfers
discipline
changes in working hours, and
changes in productivity expectations.
However, workers are entitled to benefits for traumatic mental stress due to an employer's actions or decisions that are not part of the employment function, such as violence or threats of violence.
Diagnostic requirements
Immediate acute reaction
Where the acute reaction is immediate, the WSIB will accept the claim if an appropriately regulated health care professional confirms the worker is suffering from an Axis I diagnosis which may include but is not limited to
acute stress disorder
post-traumatic stress disorder
adjustment disorder, or
an anxiety or depressive disorder,
in accordance with the DSM-IV. The decision-maker may, at a later point, require an assessment by a psychiatrist or psychologist to confirm ongoing entitlement.
Delayed onset or onset due to cumulative effect
Where the acute reaction is delayed, or where the claim is based on the cumulative effect of multiple traumatic events, there must be an Axis I diagnosis in accordance with the DSM-IV by a psychiatrist or psychologist before the claim is adjudicated.
Therefore, in order to consider entitlement for TMS there must be an identifiable sudden and unexpected traumatic event that occurred. The policy indicates that sudden and unexpected traumatic events could include witnessing a fatality or a horrific accident, or harassment. The policy also requires that the event that is claimed to have caused the traumatic mental stress must be objectively traumatic. The policy further requires that there has been an acute reaction to the sudden and unexpected traumatic event. The policy also requires that there has been an acute reaction which results in a diagnosis in accordance with the DSM IV. Consequently, I do not find that this particular case meets the requirements as outlined under the policy.
In this instance, the primary problem lies in the fact that beyond the inappropriate picture being sent to the injured worker, there is no proof of the other events or circumstances that were described by the worker on the night in question. There is no corroborated evidence of S touching the worker. The worker did not report the incident to the police; therefore, there was no police investigation. The employer’s investigation concluded that the picture was sent by S to the worker, and S was no longer working there; however, the other allegations surrounding the touching or even the circumstances surrounding why or how that picture came to be sent were never proven. Furthermore, the employer’s investigation also concluded that the worker had engaged in appropriate behaviour herself.
There is insufficient evidence to establish that the worker was the subject of an assault and therefore there is no evidence to support that S intended to perform any malicious act. There is no evidence that the worker’s safety was compromised or any evidence of a threat. In fact, the worker confirmed that she knew S and had worked with him before. Furthermore, although the worker indicated in her testimony that she was intimidated by him, I find that her actions on that night did not support she feared S in any way. Although the worker denies the alleged (redacted) of S, she did acknowledge that she went up behind him and joked around mimicking (redacted). This in my view is not the actions that one would be comfortable carrying out if they were intimidated or feared the person. Further, S and two co-workers provided consistent statements supporting a different version of what the worker actually did to S. I also found the worker was unclear and inconsistent in recounting when this occurred and had there been any fear of S, I would not have expected the worker to joke with him in the manner in which she did.
The worker indicated that she was scared as a result of phone calls she was receiving from someone with a southern accent who she feared to be S. However, there is no verifiable information to support that such calls occurred and the worker has not provided a consistent account. In her testimony she indicated that the calls continued until February/March of 2014, but documentation submitted by the worker’s representative supports that the worker advised her insurer on May 5, 2014 she was still getting phone calls in the middle of the night, even though she changed her number. Had the calls been that concerning, not only would one have expected some sort of police or legal action, but I would expect the worker to know how long the calls continued.
There are discrepancies regarding why and how S had acquired the worker’s cell phone number. I note the worker indicated in her statement of August 16, 2013 that S ‘had’ her cell phone number because they need to be able to get a hold of her when she can’t be reached by radio. In the employer’s investigation the worker indicated that S had asked about her recent separation and S asked her to text him on his work phone so they would have each other’s contact information, should she need any support because of her personal situation. In her testimony the worker indicated that S ‘didn’t’ have her cell phone number, he got it that night when they talked about how things were going because of her recent separation, in case she needed time off etc. I find there are distinct differences in each version. Furthermore, S had indicated in the employer’s investigation that the discussion surrounding the exchange of the worker’s cell number began over unrelated personal discussions, which I will not detail; however, S claimed the worker sent him her personal cell phone number and asked for pictures, specifically the lewd photo.
There are also discrepancies with respect to how and when the worker shared the photo with her co-workers. The worker testified that when she received the lewd photo she was shocked and threw her phone down for others to see it. However, the worker indicated in the employer’s investigation that she received the photo at 1:47am and was with four co-workers at the time. When I reviewed the statements provided by those co-workers, I note one said he was approached at around 3:00am; the second also said it was around 3:00am; the third said it was roughly 4:30am; and the fourth said he didn’t know the time but it was out in the (redacted). Therefore, the worker has not been consistent in the retelling of the events.
I do not place any particular weight on any of the alleged comments/conversations subsequent to the lewd photo on the night in question as there is no evidence to corroborate what occurred. Further, with respect to text communications, the employer’s investigation indicates that the worker had deleted text messages from her phone, and the worker also confirmed the same, thereby making it impossible to confirm the nature of the exchange.
I note inconsistencies in the worker’s reporting with respect to the alleged touching incident. In the employer’s investigation she indicated that S walked by and touched her on the behind. On her Worker’s Report of Injury/Disease (Form 6) the worker indicated S grabbed her rear and when she looked back he winked. In her statement of August 16, 2013 the worker indicated S smacked her butt and the co-worker didn’t hear it because it was more of a soft tap than a smack. Then in her testimony the worker indicated S touched her, and then she said he grabbed and later said he patted her butt. Had the worker been affected by what she claims to be a physical assault, I would expect the worker to recall exactly what the physical contact was; instead she has provided various descriptions of the alleged touching incident and there is no evidence corroborating any version.
The medical information in this case is limited and highlights further issues. There is a Health Professional’s Report (Form 8) completed with a service date of August 15, 2013 indicating post-traumatic stress sexual assault and harassment. However, there are no specific details provided and the diagnosis is made on the basis that an assault occurred, which is undescribed and uncorroborated. Even the clinical notes provided by Dr. O provide no details, simply stating she was sexually assaulted and harassed.
I note also the Mental Health Outpatient Consult dated May 8, 2014 from Dr. C, which indicated that overall, he believed that the worker was probably giving an accurate account of her present circumstances. He refers to an ongoing lawsuit; her husband leaving her five months ago; and says it appears she has been victimized by a number of senior personnel at her workplace sending her sexually explicit pictures. Dr. C indicated the worker presented with an adjustment disorder to stress. It is interesting that the alleged touching incident is not mentioned and there is no particular reference to what occurred on the night of August 8/9, 2013. I do not find Dr. C’s report convincing with respect to the worker’s presentation and the report makes a general reference to her falling apart after receiving offensive messages, but the worker’s claim is not based on anything that occurred prior to the night in question, such prior events were never raised or investigated.
As outlined, based on the inconsistencies in the worker’s account of the events, I find that there is a lack of credible and reliable evidence establishing anything other than the fact that the worker received a lewd photo on her cell phone. I acknowledge the arguments of the worker’s representative, including the examples of sexual harassment cited by the Human Rights Commission. However, I do not find that receipt of the photo alone, particularly based on the circumstances of this case is considered an objectively traumatic event, and noting that I find much of the information to be unreliable, there is also doubt as to whether the photo was unexpected.
There was no evidence of intent to harm or any malice and while I note the worker repeatedly stated during her testimony that she was intimated by S, based on her actions on the night in question there is no evidence of any fear. There is also no evidence that S touched the worker in any manner. The worker was also dealing with personal non-compensable problems at the time of the alleged events. Further, the discrepancies and the available medical information do not in my view support that the worker had an acute reaction to the night in question. I also reviewed the WSIAT decisions referenced as exhibits and while they are not binding, I also find the circumstances are dissimilar.
In this case, the weight of the evidence indicates that the requirements outlined under the TMS policy have not been satisfied and initial entitlement to TMS is not in order.
CONCLUSION
Entitlement for traumatic mental stress is not in order.
The worker’s objection is denied.
DATED February 20, 2015
M. Kimevski
Appeals Resolution Officer
Appeals Services Division