Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20180033
Objecting Party: Worker
Represented By: Worker Adviser
Respondent: Employer (not participating)
Represented By: Lawyer
Hearing: April 3, 2018, London, Ontario
Heard By: Rose Calvert, Appeals Resolution Officer
Additional Attendees: Observer: worker’s spouse
Dated: April 16, 2018
ISSUE
The worker objects to the decision of the case manager (CM) dated August 22, 2011 which denied entitlement for traumatic mental stress (TMS).
BACKGROUND
On April 15, 2011, this then-43 year old medical administrative assistant reported a psychological injury which she attributed to abuse (physical and verbal) at the hands of her co-worker. The worker described that the co-worker, referred to herein as T, turned and said something to her with an angry tone before striking her right shoulder. The worker was off work from June 2011 until October 20, 2012.
Entitlement under the Traumatic Mental Stress policy was denied as the work issues and events described by the worker could not be corroborated and the occurrence did not meet the criteria for a sudden and unexpected traumatic event as defined by the policy.
The worker’s objection to the denial of entitlement to TMS is now before me.
AUTHORITY
Workplace Safety & Insurance Board Operational Policy Manual (OPM) documents:
15-03-02 – Traumatic Mental Stress
ANALYSIS
In reviewing this objection, I have had regard for the claim file information, relevant policy and legislation and for the arguments presented. Based on the information which is before me, I find that entitlement for TMS cannot be approved as the described events do not fulfil the required criteria as defined in policy 15-03-02, “Traumatic Mental Stress”.
The worker’s representative argued that the issue of entitlement revolves around harassment, bullying and abuse which the worker endured at the hands of a co-worker. The worker’s representative noted that while the evidence fails to provide any witness corroboration, the worker’s testimony establishes a pattern of abuse which ultimately contributed to her emotional response.
Policy 15-03-02, “Traumatic Mental Stress”, states that 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.
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.
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.
The worker testified that she began working as an administrative assistant in June 2005. She was assigned to work in emergency registration, patient registration, as file room clerk and switchboard operator. She testified that she got along well with all of her co-workers except for the ones that bullied her.
She described that issues began to emerge in 2007 when she was assigned to head up an audit into the patient registration files to ensure that the registration was done properly. She claimed that this did not bode well with her co-workers as she had less seniority and they did not appreciate the fact that she would be questioning the correctness of their work. The worker testified that the staff approached her questioning why she was selected to perform this function. Ultimately, the worker declined the position and the employer agreed to rotate the function among the fifteen staff. The worker did not describe any episodes of what would be considered harassment or abuse surrounding this issue.
She noted that she often found T’s demeanour to be difficult. She described that T was often quite curt with her in her responses. She claimed that “hostilities” developed between her and T between 2007 and 2009 but she did not describe what she perceived to be “hostilities”. She noted that T was responsible for scheduling staff and she felt that T was often unfair with the scheduling as she would be assigned to work more weekends than others. She recalled T stating at one point, “We keep trying to find mistakes that you’re making in registration but we can’t find any”. The worker perceived that her co-worker was purposely trying to find fault with her work. However, no issues were identified regarding her work performance and, as such, this would not constitute any form of harassment.
The worker was not able to recall why or when the bullying escalated. She recalled an incident in 2009 when the worker went to the back counter to register a patient. T allegedly came behind her, pulled her hair and said, “I’m doing that”. The worker testified that she was frazzled by the event. When questioned about the amount of force used to pull her hair (i.e. did she tug her hair or did she forcefully pull it), the worker was somewhat evasive. She noted that the incident was enough to have “moved her head” but she could not recall whether it was of such force that hair was actually pulled from her scalp. She noted that a patient was present at the time.
Immediately following this incident, the worker described that a patient (whose first language was not English) approached the desk and asked the worker to make a call on his behalf. She noted that T came over and yelled at him to, “Go use a pay phone”. The worker testified that after she returned from break, she approached T and told her, “Don’t ever pull my hair again and don’t interrupt me when I’m talking to a patient”. She noted that T was apologetic and repeated “I’m sorry” on more than one occasion. She testified that T’s demeanour appeared to be sincerely apologetic.
The worker allegedly reported the incident to her team leader but she did not require any medical attention, she did not submit any formal complaint of harassment or assault and there appeared to be no acute reaction to this event. The worker claimed that she cried on the way home from work after her hair was pulled and that she “feared” T but she did not file any formal complaint against her.
She noted that in general, there was significant “backstabbing” within their department. Others complained about T’s scheduling of their shifts. She approached her supervisor at least three times to complain about the scheduling before she noticed any change.
Between 2009 and 2011, the worker stated that T continued to be “gruff” towards her. She noted that several of the staff was stressed out about the workload. She testified that during this period, she was not assigned to work with T as they were on opposite shifts. However, she claimed that T would not complete her fair share of the work, leaving the worker to manage a significantly higher volume of work on the following shift. Other staff would comment about the amount of filing that was left for the worker to complete. She claimed that because she was so busy, she would often miss breaks and lunches. Occasionally they might send an additional staff member over to assist her for an hour.
With regard to the incident on April 15, 2011, the worker reported that a box of paper had been delivered to the wrong department. T confirmed that the box of paper should have been delivered to the front. The worker took it upon herself to retrieve a wheelchair so that they could place the box of paper on the chair and wheel it to the proper area. The worker lifted the box on her own. She claimed that when T observed her lifting the box, she said, “You…” and struck her in the shoulder. She claimed that initially she could not recall T’s words but now remembers her saying, “I need to take you home and fix you”.
The worker was questioned about T’s statement as the worker initially could not recall what T said to her. The worker claimed that she “blacked out the words” but later remembered them. When asked whether she believed that T was sincere about her threat, she replied that she did believe she would follow through on it. According to T’s statement, she tapped the worker on the shoulder to get her attention and then jokingly threatened to “kick her in the butt” when the worker lifted the box of paper without assistance.
When questioned, the worker confirmed that she did have shoulder issues prior to this incident and that T was aware of her issues. The worker also testified that when the co-worker (referred to herein as D) brought the boxes of paper into the room, T was watching her. D asked T why she was watching her and T responded, “If you don’t do it right (referring to the manner in which she transferred the boxes of paper), I’ll have to slap you”. When asked whether T’s response towards her may have been a reaction to her decision to lift the box of paper on her own (and that she was concerned for her safety), the worker replied that she did not find this to be a realistic explanation for the co-worker’s behaviour but she could offer no other explanation.
The worker claimed that she was struck with such force that it left bruises. She went to the washroom to apply a cold cloth. She noted that her co-worker, CC was only a few feet behind her and that the incident occurred in a relatively small room (possibly eight feet by eight feet). She did not cry out, she did not respond verbally (no “ouch”). She simply returned to her workstation after tending to her shoulder in the washroom. By that time, T had left the area. She said nothing to CC and CC said nothing to her. The worker suggested that as CC was at the switchboard at the time, she probably did not see the incident. However, she also testified that given the size of the room, she would have overheard T’s words. Yet, CC confirmed that she did not hear anything related to the incident.
She did not seek any medical attention as she claimed she was too embarrassed. She claimed she simply did not know what to do. She did not report the incident to the employer. In fact, it was not until her husband phoned in to speak with the employer on April 19, 2011 that the employer became aware. She continued to work. She eventually called her family physician due to ongoing shoulder pain but the physician’s office was undergoing reconstruction so she could not be seen until June 2, 2011 when she was authorized off work. The Health Professional’s First Report (Form 8) provided no findings regarding the shoulder and therefore the extent of the physical injury cannot be corroborated.
The worker continued working for another six weeks. She claimed that she managed her work but with fear for her safety. She did not recall if she interacted with T over the six weeks. I questioned the worker about T’s observation that she perceived the worker was purposely avoiding her and was not speaking with her. The worker claimed it was the other way around and that she would never avoid speaking with anyone.
She testified that after her husband contacted the employer, the entire department was called into a meeting with human resources and managers. All staff was advised that there would be zero tolerance for any hitting, slapping or punching. The worker reportedly broke down during this meeting as she knew they were talking about her. She perceived that her employer was putting her on the spot. She claimed that the meeting was a “free for all” and that she eventually left the meeting but was told to return. She noted that there were concerns raised by others in the group (“I don’t like working for some people”). She agreed that the department was highly dysfunctional.
The employer arranged for team building sessions but she did not attend as she was off work. She claimed that after the meeting, another co-worker (who I will refer to as “M”) said, “Better watch what you say or they may report you”. She claimed that following this departmental meeting, she was assisting M with some filing and that this co-worker allegedly put her hand out as if she was going to strike her. When asked to further clarify this incident, the worker described that she was pulling charts from a pile for processing and that M placed her hand above the worker’s. She could not describe what M intended by this action and whether it was her way of saying, “Stop” or “Don’t touch the files” or whether M intended it as a threat of a slap.
The worker described another incident after the meeting when she offered to process the physician’s mail for M but M declined. Another co-worker, R, responded “Just hit her”. Despite the fact that these incidents took place after the departmental meeting, the worker did not report them to anyone. The worker also described harassment at the hands of the HR supervisor who said to her, “Look at you; you can’t even stick up for yourself”.
The employer described that the worker was not able to get along with other members of the team, not just T. The worker claimed that this was not accurate. The employer stated that the worker would, at times, cry for no reason. The worker replied that she did experience episodes of crying but that this was usually in response to whatever situation she happened to encounter. For example, she claimed that at times no one would say hello to her. Otherwise, she denied having crying episodes for no reason at all as suggested by the employer.
The worker testified that her employment was eventually terminated in 2014 due to her inability to get along with others. The worker described an incident on June 30, 2014 involving one of the hospital physicians. He attended their department to pick up a phone call and stopped to chat with the staff. He asked the worker, “Do you know what a beavertail is?” He described that it was similar to the “punch buggy” game where you would punch someone in the arm if you saw a specific model of car on the road. He asked the worker what type of car she drove and then proceeded to punch her in the arm once.
She claimed that her shoulder swelled up significantly. She went home and her husband took her to hospital emergency where she was diagnosed with a soft tissue injury. The worker reported the incident to the police. She could not confirm whether any charges were laid against the physician, although given the fact that she heard nothing back from police regarding this incident, it is unlikely. The worker was subsequently terminated on October 2, 2014.
In his closing submission, the worker’s representative argued that the worker’s testimony established evidence of harassment and physical abuse in the work environment which ultimately contributed to the worker’s acute emotional response. However, I also noted that by late 2011, the worker was diagnosed with Graves’ disease, an immune system disorder that results in hyperthyroidism. This is compelling as this condition has the potential to produce symptoms of behavioural and personality changes including psychosis, mania, anxiety, agitation and depression. The worker’s Graves’ disease was described to be severe. Medical reports on file suggested that it would be difficult to differentiate symptoms caused by the work stressors versus those caused by the Graves’ disease.
The worker’s representative observed that many of the alleged witnesses claimed ignorance to the incidents she reported. The worker believed that this was due to the fact that they feared potential job loss. However, the worker described co-workers berating her even after the departmental meeting. In my view, the co-workers did not present as individuals who feared termination of employment due to their actions.
The worker’s representative submitted that while there is no witness corroboration, the worker’s testimony should be sufficient to support entitlement. However, the issue before me does not revolve primarily around the worker’s perception of the events which transpired in the workplace but whether the events can be established by the WSIB through information or knowledge of the event provided by co-workers, supervisory staff, or others. Moreover, the incident must be generally accepted as traumatic by the average observer.
The worker’s representative suggested that the employer decided not to participate in the appeal probably because their statements would not hold up. As such, he feels the employer’s statements should be given less weight. I do not agree. The incident occurred in 2011. The claim is well beyond the employer’s accident cost window and for this reason, they likely perceived no benefit in participating. This does not, in my view, connote the employer’s lack of transparency or an effort to evade getting at the truth.
The worker’s representative suggested that the witness statements should be disregarded as there were no signed affidavits from the witnesses and therefore there was no way of confirming whether they were accurate or credible. Again, I do not agree. With the exception of T’s statement, there would be no reason for any of the other co-workers to submit a false statement. Moreover, if the worker’s representative had concerns regarding the veracity of the witness statements, he had the opportunity to call the witnesses to the hearing via subpoena. He did not exercise this right.
The worker’s representative argued that there is a great deal of she said/she said in the facts and it is difficult to know who to believe. However, the issue is not merely one which relies on the credibility on one’s statement but whether the events described fulfil the criteria of an acute and traumatic event. In this case, I am not persuaded that the April 15, 2011 event would be viewed as objectively traumatic.
Clearly, the worker perceived that she was the object of physical violence (the hair pulling and the slapping incidents). The worker also described threats of physical violence in which she believed the threats to be serious and intended to purposefully cause her harm. However, the worker’s perception is not sufficient to establish entitlement. The witness noted that the accused co-worker had a tendency to touch an individual’s shoulder when approaching them. The employer noted that the worker had alleged several claims against herself and other staff members (not just T) between 2010 and 2014. Each time the worker’s accusations were fully investigated but there were no findings to substantiate the claims. The slapping incident was also investigated externally by the Ministry of Labour but no evidence was found to proceed with sanctions against fellow employees.
The co-worker, T, was described by many as abrasive and she often made off-the-cuff threatening remarks to other staff (as described by the worker in her testimony). However, there is no indication that any of the staff perceived the co-worker’s remarks as valid threats. The worker testified that T “picked on” everyone including patients. She described that T would be aggressive when wheeling around the cart and that her looks were mean. The worker believed that T had the intention to physically harm her.
However, with respect to the incidents described by the worker:
we have no corroboration from co-workers or supervisors;
the worker did not formally report the hair pulling incident nor did she seek medical attention;
we have no proof that the slapping incident in April 2011 resulting in significant bruising to the worker’s arm or shoulder as she claimed, and
the witness who was allegedly present in the eight foot by eight foot room saw and heard nothing. This is particularly compelling given the force of the strike described by the worker.
While uninvited physical contact of any nature should not be condoned, there is a perceived distinction between an individual tapping someone on the shoulder to get their attention and a forceful strike that is intended to cause bodily harm. I am not persuaded that the co-worker intended to cause the worker physical harm at the time of either the hair tugging incident or the shoulder “slapping” incident.
The employer noted that the worker had brought forward concerns over the past few years because of conflicts with her team and with one individual in particular. The worker testified to other perceived incidents of “assault” including a pen throwing incident and even an accusation (which the worker denied initiating) of being struck by her daughter-in-law who also worked at the hospital. Ultimately, the worker’s employment was terminated in 2014 due to her inability to get along with others. It appears that the worker’s efforts to proceed with assault charges against the emergency room physician culminated in a decision to end her employment.
In response to the April 2011 incident, management took the worker’s allegations seriously but ultimately found no evidence to impose any sanctions against T. While I acknowledge that the co-worker’s behaviours were inappropriate and clearly upsetting to the worker, they are not considered to be objectively traumatic for the purposes of the Board policy. The worker’s testimony would suggest that other co-workers found the environment to be stressful and dysfunctional. There were personality conflicts between the worker and co-worker and, while the worker suggested that this was an isolated situation, the employer’s statement suggested that the worker came forward with accusations against other co-workers over the years as well.
CONCLUSION
Having assessed the evidence which is before me, I find that the criteria for entitlement to TMS have not been met. The worker’s request for initial entitlement for TMS is denied.
The worker’s objection is therefore denied.
DATED April 16, 2018
R. Calvert
Appeals Resolution Officer
Appeals Services Division