WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190104
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
HEARING: Hearing in Writing
HEARD by: K. MacMillan, Appeals Resolution Officer
DATED: July 26, 2019
ISSUE
The worker is objecting to the Case Manager’s December 14, 2018 decision to deny initial entitlement to mental stress as both Chronic Mental Stress (CMS) and Traumatic Mental Stress (TMS).
BACKGROUND
On January 9, 2018, this now 40-year old Canada Border Services Agency Targeting Officer was facing a bulletin board and texting a colleague during her scheduled shift. A United States Customs Border and Protection officer (US CBP officer) who was at the Canadian location on contract approached her from behind and whispered a comment into her ear to the effect of “Can you keep a secret? You Canadian girls like to keep it real tight.” The worker walked away. There were no witnesses.
The worker reported the incident to the employer on February 1, 2018. In late April 2018, the worker became aware that the US CBP officer’s contract had been extended until the end of July 2018. The worker lost time on April 23, 2018 and returned to regular duties on April 24, 2018. The employer states that the US CBP officer left the workplace “definitively” on June 5, 2018. First medical attention took place on June 7, 2018. The worker’s physician provided the diagnosis of adjustment disorder with mixed mood. A referral to a psychologist was made on July 10, 2018.
AUTHORITY
The following Operational Policies apply:
15-02-02 Accident in the Course of Employment
15-03-02 Traumatic Mental Stress
15-03-14 Chronic Mental Stress
ANALYSIS
I find that initial entitlement to mental stress is not in order. In reaching this determination, I have paid particular attention to the worker’s submissions dated January 1st, 7th, and 16th, 2019. My reasons for this finding are outlined below.
Was the worker in the course of employment?
I accept that the worker was in the course of employment at the time of the incident on January 9, 2018.
Policy 15-02-02 sets out the necessary criteria for confirming that an accident occurred in the course of employment. Specifically, policy directs decision-makers to consider the criteria of place, time, and activity when determining whether a personal injury by accident occurred in the course of employment.
There is general agreement that the criteria of time and place are met by virtue of the incident taking place in the employee’s lunchroom (kitchen) during the worker’s scheduled shift. Turning to the criterion of ‘activity’, Policy 15-02-02 outlines that the personal injury by accident generally will be viewed as occurring in the course of employment if the worker was engaged in an activity reasonably incidental to (related to) the employment. Policy clarifies that engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment.
In my view, the fact that the worker was facing the union bulletin board while texting information to a colleague does not represent a situation where she removed herself from the course of employment. Instead, I accept that the duration of such a brief personal activity is sufficient to establish that the worker was in the course of her employment at the time of the US CBP officer’s comment. Thus, I will now turn to the question of if the policy criteria for entitlement to TMS are established.
Traumatic Mental Stress
I am not persuaded that the policy requirements for traumatic mental stress are met.
Policy 15-03-02 outlines that entitlement to benefits for TMS may be in order if there is an appropriately diagnosed mental stress injury caused by one or more traumatic events arising out of and in the course of employment. However, I must also keep in mind that Policy 15-03-02 clearly states that there is no entitlement to benefits for TMS caused by decisions or actions by the employer relating to the employment including changing the work to be performed, working hours, or productivity expectations.
The worker presents that she was sexually harassed at work and hesitantly reported the incident to management. The worker states that the employer took the harasser’s side and did nothing except let him know that she had made a complaint against him. The worker further states that the US CBP officer presented an intimidating attitude towards her after she had made the complaint.
The worker further submits that her “breaking point” was when her manager let her know that the US CBP officer’s contract had been extended to July 2018. The worker argues that no steps were taken to restore the well-being of the workplace. Instead, the worker states that nothing was done and that other employees were subsequently victimized by the same offender. In the view of the worker, other harassment cases were handled swiftly while hers was ignored and the officer was given an extension. According to the case record, there was an incident involving the US CBP officer at some point in the end of May 2018 regarding office furniture that resulted in a further investigation.
What was the worker’s initial reaction to the incident of January 9, 2018?
It is my opinion that the evidence supports there to have been a single, inappropriate and unwanted comment that took place on January 9, 2018. I also find that there is insufficient evidence that this comment represents a traumatic event.
Policy 15-03-02 defines the term ‘workplace harassment’ in part as a course of vexatious comment or conduct against a worker, including bullying that is known or ought to reasonably be known to be unwelcome. In assessing the evidence, I observe that both the employer’s Form 7 and the worker’s Form 6 both describe the comment as involving “Canadian girls keep it tight” or something to that effect. Moreover, I note that a letter from the employer to the worker’s doctor dated October 15, 2018 describes a workplace incident in January 2018 involving an individual who had an “inappropriate interaction” with the worker. Therefore, I accept that there was an inappropriate comment that ought to have been known to be unwelcome.
The worker describes the US CBP officer as a large, physically imposing man who cornered her as he approached her from behind. The worker indicates that the US CBP officer is very intimidating to her and that she was nervous about how he would react to her reporting the incident. The worker describes the incident as being pinned between the US CBP officer and the wall. The case record indicates that the worker walked away after the initial comment.
Still, I must consider that the worker informed her employer that she did not think that she would need the US CBP officer to be fired. The worker’s written submissions confirm that despite the initial harassment she felt comfortable returning to work at the time. The worker outlines that from the date of February 1, 2018 until May 2018 she worked in the same physical area as the US CBP officer. A written submission from the worker also states that she declined to be moved to a different location as she had already dealt with sitting close to the US CBP officer for three months after reporting the incident.
In assessing the medical documentation, I note that the physician’s Health Professional’s Report for Occupational Mental Stress states that first medical treatment took place on June 7, 2018. I observe that this date is after the US CBP officer left the workplace. I also note that the report documents the date of onset of symptoms/signs as being May 1, 2018. I observe that May 1, 2018 is after the date that the worker became aware that the US CBP officer’s contract had been extended into July 2018.
For these reasons, I find that there is insufficient evidence that the inappropriate and unwanted comment made to the worker on January 9, 2018 represents an objectively traumatic event as required by policy. Therefore, I find that the comment was not vexatious and does not represent workplace harassment. I will now consider if entitlement is in order as a cumulative effect.
Is there evidence of a cumulative effect?
In my view, there is insufficient evidence of a cumulative effect that falls within the requirements of Policy 15-03-02.
The worker argues that she never would have thought that management would offer the US CBP officer an extension. It is suggested that the worker was to be “made whole” in the original meeting by management ensuring that this would never happen again and that the US CBP officer could finish his original assignment and then go home.
Policy 15-03-02 outlines that over time some workers may be exposed to multiple traumatic events due to the nature of certain occupations. Policy states that there is recognition that each traumatic event may affect a worker psychologically even if the worker does not show the effects until the most recent event. When considering entitlement for the cumulative effect, decision-makers are to rely on clinical and other information supporting that multiple traumatic events led to the worker’s current psychological state. Policy 15-03-02 confirms that a final reaction to a series of traumatic events is considered to be the cumulative effect.
I acknowledge the worker’s detailed description of being the victim of intimidating behaviour after reporting the incident of January 9, 2018. The worker states that the cumulative effect resulted in her current state. Briefly, the worker describes the US CBP officer’s behaviour as including “menacing looks” in the workplace and hallway, as well as his continued unnecessary and unwanted physical presence in her immediate workplace where he had no work-related business. The worker describes leaving her work area as she was uncomfortable with the US CBP officer’s presence. The worker states that she went directly to the supervisors to report that she was uncomfortable each time she left.
The worker confirms that she missed time involving unspecified dates of lost time between February 2018 and April 2018. The worker states that the US CBP officer’s presence made her extremely nervous and caused her to be in a state of hypervigilance at all times while at work. The worker details multiple examples of co-worker’s experiencing harassment or victimization from the US CBP officer both before and after January 9, 2018.
On the other hand, I must consider that Policy 15-03-02 states that in all cases, the events must be objectively traumatic. Policy also clarifies that the worker must have suffered or witnessed the work-related traumatic event(s) first hand, or heard the work-related traumatic event(s) first hand through direct contact with the traumatized individual(s). Policy 15-03-02 provides the example of speaking with the victim(s) on the radio or telephone as the traumatic event(s) is/are occurring.
Thus, I find that only the comment of January 9, 2018 is to be considered as there is insufficient evidence that the US CBP officer made any further inappropriate comments to the worker or positioned himself within her personal space. I further find that the worker did not directly experience or hear the work-related trauma that she describes as being directed towards other co-workers. Therefore, my review must be limited to what the worker experienced first-hand.
In my opinion, the worker’s description of the menacing looks and the US CBP officer being in her area are not objectively traumatic. I note that Policy 15-03-02 requires the events to be clearly and precisely identifiable. Policy states that the events must be generally accepted as being traumatic.
Policy 15-03-02 lists examples of possible traumatic events as including being the object of workplace harassment that includes the escalation of verbal abuse into traumatic physical abuse, or being the object of workplace harassment that includes being placed in lift-threatening or potentially life-threatening situation (e.g. tampering with safety equipment or causing the worker to do something dangerous). In my view, neither the US CBP officer’s menacing looks towards the worker nor being in her area are objectively traumatic as I find that there is insufficient evidence of verbal or physical threats, or that the worker was placed in a potentially life-threatening situation.
Finally, I am not persuaded that the employer’s actions were egregious or abusive. Policy 15-03-02 outlines that there is no entitlement to traumatic mental stress caused by an employer’s decisions or actions that are part of the employment function. However, policy highlights that worker’s may be entitled to benefits for traumatic mental stress due to an employer’s decisions or actions that are not part of the employment function such as conduct that a reasonable person would perceive as egregious or abusive.
The worker presents the argument that management had a duty to properly follow directive documents but did not. The worker states that management failed to keep their employees safe. Again, the worker submits that the employer’s inaction resulted in the confirmed victimization by the US CBP officer of at least four female employees and at least one male employee. Nevertheless, I find that such examples are not factors within the entitlement decision before me for the reasons described above.
I acknowledge the worker’s position that the employer ignored her complaints for months while other cases were addressed differently. I also recognize the worker’s submission that the employer treated her differently than other employees. The worker states that it is no secret that management is not fond of her personally and that as a union steward she has had some heated encounters with management. I have also considered the example provided by the worker that she was treated differently after a medical procedure than another co-worker who had underwent the same surgical procedure.
As previously discussed, I find that there is insufficient evidence that the US CBP officer made any further inappropriate comments to the worker after January 9, 2018. I also have considered that the worker initially informed the employer that she was comfortable returning to work. Thus, I find it reasonable that the employer did not offer the worker modified duties or to separate the worker from the US CBP officer. Moreover, I note that the worker describes declining the employer’s later offer of modified work as she had already had to sit close to the US CBP officer for three months and “had dealt with that”.
Additionally, I appreciate the worker’s position that every ‘solution’ presented to her by management was punitive. The worker indicates that she did not wish to be ostracized by her friends and colleagues because management was unwilling to move the US CBP officer who did not even work for the government of Canada. The worker also describes a job offer that would result in less pay as she would have missed weekend and evening shift premiums, overtime, and eleven statutory holidays compared to her typical shift work. The worker notes that the offered job was farther from her house and involved more expensive parking.
Notwithstanding, I find the employer’s attempts to address the worker’s reporting of the incident dated January 9, 2018 were neither egregious nor abusive. For example, I find that the extension of the US CBP’s contract is considered an ‘employer’s decision’ as defined within Policy 15-03-02 as it was an action that was part of the employment function. Therefore, I find that the employer’s decision to extend the US CBP’s contract does not constitute harassment or conduct that a reasonable person would perceive as egregious or abusive. Further, it is my view that the incidents involving other employees cited by the worker, including how the employer dealt with them, have no bearing on her specific case.
Rather, I find that how the employer addressed these other situations falls within the scope of decisions or actions relating to employment. For this reason, I accept that the employer’s actions were part of the employment function and do not provide the basis for entitlement to traumatic mental stress.
In summary, I find that there is insufficient evidence that the inappropriate comment of January 9, 2018 was objectively traumatic. I further find that there is insufficient evidence of a cumulative effect of traumatic mental stress as defined by Policy 15-03-02. As a result, I find that entitlement to traumatic mental stress is not appropriate.
Chronic Mental Stress
In my opinion, entitlement to chronic mental stress under Policy 15-03-14 is not in order as a substantial work-related stressor is not evident.
Policy 15-03-14 confirms that a worker is not entitled to benefits for chronic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including the working conditions. As discussed above, I find that the employer’s actions did not represent conduct that a reasonable person would perceive as egregious or abusive.
I am aware that Policy 15-03-14 states that a claim for chronic mental stress is distinct from a claim for traumatic mental stress. Entitlement to chronic mental stress requires there to be an appropriately diagnosed mental stress injury that is caused by a substantial work-related stressor arising out of and in the course of employment. It must be shown on a balance of probabilities that the substantial work-related stressor was the predominant cause of an appropriately diagnosed mental stress injury. The term ‘predominant cause’ means that the substantial work-related stressor is the primary or main cause of the mental stress injury.
Policy 15-03-14 defines the term ‘substantial work-related stressor’ in part as a work-related stressor that is excessive in intensity and or duration in comparison with the normal pressures and tensions experienced by workers in similar circumstance. Policy 15-03-14 states that workplace harassment will generally be considered a substantial work-related stressor. Nonetheless, I note that Policies 15-03-02 and 15-03-14 contain the same definition of ‘workplace harassment’.
For the above-noted reasons, I am not persuaded that the inappropriate and unwanted comment made to the worker on January 9, 2018, nor the subsequent menacing looks, meets the Workplace Safety and Insurance Board (WSIB) policy definition of workplace harassment. I am further not persuaded that the employer’s actions were egregious or abusive. Thus, I find that a substantial work-related stressor is not evident. Accordingly, it is my view that entitlement to chronic mental stress, including as a cumulative effect, is not appropriate.
CONCLUSION
I conclude that initial entitlement for mental stress is not in order.
There is no entitlement to Traumatic Mental Stress (TMS) under Policy 15-03-02.
Entitlement to Chronic Mental Stress (CMS) under Policy 15-03-14 is not appropriate.
The worker’s objection is denied.
DATED: July 26, 2019
K. MacMillan
Appeals Resolution Officer
Appeals Services Division