WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190092
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (participating)
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: H. Shaw, Appeals Resolution Officer
DATED: July 31, 2019
ISSUES
The worker is objecting to the denial of entitlement for Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS), in the Case Manager decision of December 11, 2018.
BACKGROUND
The worker was employed doing maintenance for city parks and recreation facilities. She started as a casual part-time employee in 1982 and was hired full-time in 1996.
In March 2005 she filed a claim for TMS arising from an incident on January 14, 2002, alleging she was physically and verbally attacked by hockey user-groups at the arena where she was working. She was 42 years old at the time of that incident. In addition to the specific incident on January 14, 2002, the worker also claimed that she experienced systemic sexual harassment by co-workers and management, and that her attempts to report problems to the employer were ridiculed or ignored.
No action was initially taken on the claim because the worker had not filed the required election form. The election form was submitted in March 2008, but at that time it was overlooked by the operating area until a request for file access was received in 2014.
In a decision dated April 24, 2015, initial entitlement was denied for TMS because there was no confirmation that her personal safety was in question as a result of the incident on January 14, 2002.
The case was reviewed by an Appeals Resolution Officer (ARO) on December 29, 2015 and the denial of TMS was confirmed. The ARO found that the evidence did not support that the worker’s psychological symptoms were due to a sudden and unexpected traumatic event.
The worker appealed the ARO decision to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). In February 2018 the case was sent back to the WSIB for further review, noting a change in the TMS policy and the introduction of a new CMS policy in January 2018.
In the decision of December 11, 2018, the Case Manager confirmed the denial of TMS under the new policy and also denied entitlement for CMS. The denial was confirmed in the reconsideration decision dated April 9, 2019.
AUTHORITY
Operational Policy
15-03-02 Traumatic Mental Stress, published October 12, 2004
15-03-02 Traumatic Mental Stress, published January 2, 2018
15-03-14 Chronic Mental Stress, published January 2, 2018
ANALYSIS
The worker representative provided an Appeal Readiness Form dated March 18, 2019. They are objecting to the denial of traumatic or chronic mental stress. It is their position that the worker sustained a mental stress injury arising out of an unexpected and objectively traumatic event in January 2002, which was perpetuated by workplace sexual harassment.
The employer provided a Respondent Form dated June 24, 2019 and supports the denial of entitlement.
Traumatic Mental Stress
I find there is no entitlement for TMS under the current policy, as the criteria have not been met. My reasons are explained below.
When entitlement was initially considered in 2015, an older version of the TMS policy was still in effect. Under that policy, a worker was entitled to benefits for traumatic mental stress that was an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. The event had to be clearly and precisely identifiable, objectively traumatic and unexpected in the normal or daily course of the worker’s employment or work environment. Sudden and unexpected traumatic events included:
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
being the object of harassment that includes physical violence or threats of physical violence
being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation.
That policy considered an acute reaction to be immediate if it occurred within four weeks of the traumatic event. An acute reaction was said to be delayed if it occurred more than four weeks after the traumatic event. In the case of a delayed onset, the evidence had to be clear and convincing that the onset was due to a sudden and unexpected traumatic event, which arose out of and in the course of the employment.
The ARO decision of December 29, 2015 found the criteria was not met for entitlement for TMS, noting the medical evidence suggested the worker experienced stress and anxiety resulting from a stressful work environment and not specifically as an acute reaction to the incident on January 14, 2002.
Under the current TMS policy, entitlement is no longer limited to an acute reaction to a sudden and unexpected traumatic event. A worker will generally be entitled to benefits for traumatic mental stress if an appropriately diagnosed mental stress injury is caused by one or more traumatic events arising out of and in the course of the worker’s employment. In most cases a traumatic event will be sudden and unexpected. In all cases, the events must be clearly and precisely identifiable and objectively traumatic. This means that the events can be established by the WSIB through information or knowledge of the events provided by co-workers, supervisory staff, or others, and are generally accepted as being traumatic. The list of included traumatic events remains the same as in the previous policy. The WSIB decision-maker must be satisfied, on a balance of probabilities that the traumatic events, or the cumulative effect of a series of traumatic events, caused or significantly contributed to the mental stress injury.
The worker reported an incident involving hockey user-groups on January 14, 2002 at the arena where she worked. According to handwritten notes from the worker, she left a voicemail message for her district manager on the night the incident occurred. She told the district manager that two fathers from the minor hockey group followed her outside that evening, shouting sexually explicit insults. Based on the worker’s note, the voicemail did not identify any physically aggressive behaviour in the incident of January 14, 2002. The worker’s notes also indicated that she had reported in a voicemail on December 17, 2001, that the conduct and language of some user-groups was becoming increasingly belligerent and argumentative and had escalated into retaliatory behaviours like trashing dressing rooms and breaking fixtures. She asked for official backup from the employer because she did not want it to escalate into physical attacks.
A subsequent investigation by the employer revealed there was much more to the story that the worker did not initially disclose. An internal e-mail from the district manager dated January 18, 2002 noted the worker had started working as a facility operator at the arena in August 2001. The e-mail indicated that on January 14, 2002, there was a problem getting the ice ready for the start of a 6:00 pm hockey game and it didn’t start until 6:10 pm. It was scheduled to end at 7:20 pm and at that time the worker sounded the bell to have the teams leave the ice. There were three minutes left in the game. Discussions took place among the teams and they decided to let the game finish, meaning the next game would start late. The worker did not agree with the minor hockey officials and she continued to ring the bell. She proceeded to turn out all the lights in the arena while the game was still being played. She then turned the stand lights back on. The game stopped and the teams left the ice. The worker then flooded the ice in half-darkness with the Zamboni headlights on. According to the e-mail, the incident infuriated the coaches, players and over 100 spectators and the district manager received several telephone calls and e-mails from spectators and officials regarding the incident and safety concerns.
The district manager’s e-mail also confirmed the worker reported being verbally abused by two parents in the January 14, 2002 incident. In addition to verbal abuse by two parents, the e-mail indicated the worker said she was also approached by a minor hockey official in the Zamboni room, who wanted to know her name. She asked him to leave the restricted area. She also heard comments from other parents including “you’re going to be sued”, “it’s back to Wendy’s flipping hamburgers for you” and “what’s the matter, your girlfriend didn’t give you any today.” He indicated he told her that this abuse was totally unacceptable and that she shouldn’t have to be subjected to this type of language. He told her he would be following up with Human Resources. He went to the facility on January 16, 2002 and could not find broken fixtures. He said that when he spoke to the worker on January 18, 2002, she said she left the arena about 10 minutes later than usual that night, with no further incidents.
In later documents that described the events of January 14, 2002, the worker claimed the actions of the hockey group were more threatening. In her initial voicemail to the district manager on the night of the incident, the worker said she was followed outside by two fathers who verbally insulted her. When she completed the Worker’s Report of Injury (Form 6) more than three years later in March 2005, she claimed she was followed outside by a group shouting verbal abuse. She also claimed she was physically swarmed in an arena hallway. On the Form 6 she claimed she was aggressively confronted inside the Zamboni room, but in the voicemail message to the district manager, she said a hockey official followed her into the Zamboni room and asked for her name.
On her Form 6, the worker alleged that her previous request to management for support was ignored, but this is inconsistent with the e-mail from the district manager just a few days after the incident. The e-mail acknowledged that about a week before Christmas, the worker had approached him with concerns that minor hockey teams were not leaving the ice on time. She also mentioned that a group of adult renters on Wednesday nights were putting beer on ice in her office sink and smoking in the dressing rooms. According to the e-mail, he told her he would contact minor hockey officials and he asked her to give him a written report about the adult group so he could follow up with them. He indicated the worker did not submit the requested written report. He also noted that he had raised the issue of delays with a minor hockey official and was told there had been a number of complaints about ice conditions in the arena.
After considering the different descriptions of the January 14, 2002 incident, I find the descriptions of the incident provided by the worker and the district manager within the first few days are likely more accurate, because they captured the events when memories were still fresh and had not been distorted by time.
In addition to establishing that a traumatic event occurred, the TMS policy also requires that an appropriately diagnosed mental stress injury is caused by the traumatic event. Following the incident on January 14, 2002, the worker was off on medical leave but there was no diagnosed mental stress injury at that time. A note from the worker’s doctor dated January 28, 2002 indicated she would be off work for medical reasons until February 4, 2002, but no diagnosis was provided. A similar note was provided on February 4, 2002, extending her medical leave, but there was still no diagnosed mental stress injury. The medical evidence does not establish a diagnosed mental stress injury until the worker sought treatment from a psychologist in February 2003.
The ARO decision of December 29, 2015 found that the medical reports on file appeared to support the worker experienced stress and anxiety resulting from a stressful work environment and not specifically to any sudden and unexpected traumatic event, noting a report from the worker’s family doctor dated May 9, 2003. The decision also determined that an independent psychiatric assessment dated August 7, 2003 provided details about harassment, intimidation and lack of understanding from co-workers and management but there was no mention of an acute reaction to an incident on January 14, 2002.
In summary, I am not satisfied that the standard of proof and causation has been met in this case to establish TMS arising from the incident on January 14, 2002. Although there was abusive language used by the hockey groups, there is no substantiated evidence that there were threats of physical violence made against the worker or that she was placed in a potentially life-threatening situation. I find the incident was not objectively traumatic. The balance of the evidence also does not establish that a diagnosed mental stress injury was caused by the incident on January 14, 2002.
The worker has also claimed she experienced general harassment and sexual harassment in the workplace. Harassment can be considered under the TMS policy if it includes physical violence or threats of physical violence and/or being placed in a life-threatening or potentially life-threatening situation. The TMS policy accepts entitlement for a cumulative effect when there is a series of traumatic events.
Because the alleged harassment did not include physical violence or threats of physical violence or being placed in a life-threatening or potentially life-threatening situation, I find the criteria are not met to consider the harassment under the TMS policy and I will instead address it under the CMS policy.
Chronic Mental Stress
I also find the criteria have not been met for entitlement under the CMS policy, for reasons that will be explained.
According to operational policy 15-03-14, a claim for chronic mental stress is distinct from a claim for traumatic mental stress. A worker will generally be entitled to benefits for CMS if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment. A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. Workplace harassment will generally be considered a substantial work-related stressor. Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
An independent psychiatric assessment on August 7, 2003 diagnosed the worker with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, as did an independent psychiatric assessment prepared for a disability insurer on February 11, 2005. A psychiatric report dated July 27, 2005, prepared for the Sexual Assault Support Centre diagnosed Major Depressive Disorder and Post Traumatic Stress Disorder.
Throughout the claim file, the worker has claimed she experienced various forms of harassment in the workplace, which I will describe below.
Exposure to pornographic material
On the Form 6, the worker reported that at that time, she was the only woman hired as permanent full-time to work in outside operations and she was usually the only woman working at any particular location. She claimed there was repeated exposure to pervasive displays of pornography.
There is an internal employer memo on file dated December 14, 2000, regarding a complaint of workplace harassment and discrimination raised by the worker. She was upset about some material she had been exposed to in a couple of work sites, including Sunshine Girl pictures in the staff room at an arena and in the Zamboni room and a Sports Illustrated desk calendar on one of the Lead Hand’s desks at the parks garage and in the pool technician’s office. According to the memo, the worker was assured that management would do everything in its power to ensure she was not exposed to offensive material in the workplace. A memo was sent out to all staff with a copy of the Workplace Harassment and Discrimination Policy.
According to an internal e-mail dated June 30, 2003 from the district manager of xxx, the worker reported another incident in November 2002. On November 6, 2002 she was assigned to a truck and in the truck she found two men’s magazines, Maxim and Gear. She immediately reported it to her supervisor, who took possession of the magazines. She followed up with a complaint to Human Rights & Employment Equity (HREE). A chronology of events from HREE confirmed the worker met with a HREE manager on November 18, 2002 and reported her concerns, including stacks of inappropriate magazines in the staff room at a city garage and in the back seat of some city vehicles. The worker also identified language on a job poster that wasn’t gender neutral. The district manager was told to take action on the incident, including posting information about harassment in the workplace, meeting with staff to reiterate the need for fairness and equity, performing routine inspections of vehicles and the depot and setting up training sessions for supervisors. All steps were reportedly taken and the final training session took place in April 2003. The district manager indicated he met with the worker during that winter to advise her of the process they were following to address her concerns. The HREE manager indicated she spoke to the worker on December 5, 2002 and the worker was pleased with the actions taken by management.
The worker representative argued that I should use the definition of harassment and sexual harassment from the Occupational Health and Safety Act and from the Human Rights Code. I have considered the definitions provided in her submission and find they are consistent with the definition of harassment in the CMS policy: a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
Based on that definition of harassment, offensive behaviour is not enough to meet the definition unless the person knew or ought reasonably to have known that the comment or conduct was unwelcome. This suggests an element of intent needs to be present. In my view, thoughtless and insensitive behaviour by co-workers would not rise to the level of harassment unless they continued with their behaviour after they had been informed of its offensive nature. If their behaviour continued after the employer took remedial steps, then I believe it could be determined that they ought to have known their behaviour was unwelcome.
It was the worker’s evidence that she was one of only very few women who worked in a predominantly male workforce at the employer. I find it reasonable that the men she worked with were accustomed to having men’s magazines at their work sites and did not consider the impact it would have on female co-workers because they did not encounter the situation very often.
Although the worker’s statements suggested the presence of sexually inappropriate magazines and other material was systemic and long-standing, the evidence shows only two complaints raised by the worker to the employer in two years. In both instances the evidence indicates the employer took decisive action to inform their staff of the problem and to stop the behaviour. There is no corroborating evidence to suggest the behaviour continued after the employer took steps to remedy the problem. Although the worker reported two incidents, they were two years apart. Given the passage of time and the possibility of staff turnover, I find it reasonable that some staff may have needed a reminder of the employer’s Harassment and Discrimination Policy.
In summary, although the presence of men’s magazines and other inappropriate material was offensive, I find it was not harassment because the evidence does not establish that co-workers knew or ought reasonably to have known the conduct to be unwelcome and the employer took appropriate steps to correct the problem once it was reported.
Physical and Sexual Harassment by Co-workers
I am unable to establish that the worker was physically and sexually harassed by co-workers.
On the Form 6, completed in March 2005, the worker alleged she experienced systemic and recurrent physical and sexual harassment by male co-workers, including grabbing her, blocking her path of travel, bumping into her on the stairs, following her into designated women’s locker, shower and washrooms, and persistent verbal harassment, including sexually explicit language and derogatory comments about women and alternative lifestyles, including her own.
According to various medical reports, the worker has alleged other episodes of harassment as well. In the independent psychiatric assessment of August 7, 2003 she reported that a number of her co-worker’s spoke about shooting at their wives with airguns and how to hit their girlfriends without leaving marks.
Additional information was provided in a report from The Sexual Assault Support Centre dated November 29, 2004. The report indicated the worker first went to the centre on March 2, 2004. She reported that workplace harassment had been going on for over five years. She claimed that male co-workers at times brought guns to the workplace, spoke about abusing their wives, frequently used the women’s bathrooms/showers and walked in on her when she was in there. She claimed that when she complained, she was ignored, transferred, demoted, threatened, given menial jobs and disciplined. She felt that her every move was scrutinized by the employer and that she was held to a higher standard than others. She claimed that when she reported, there was retaliation and her personal safety equipment was tampered with. The worker also believed she was targeted because of her sexual orientation.
In the employer’s submission of September 28, 2018, the employer argued that the predominant cause of the worker’s mental stress originated from the high frequency of interpersonal conflicts she had with colleagues and members of the public and that she played a part in escalating those conflicts. According to the CMS policy, interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict amounts to workplace harassment, or results in conduct that a reasonable person would perceive as egregious or abusive.
The employer documented an incident on May 17, 2002. The worker and a co-worker were planting shrubs in front of a sports complex. The worker parked the truck in a way that blocked one of the handicap access ramps into the building. A woman with a stroller left the building and found the ramp blocked. The woman used an alternate ramp but while doing so made a comment that the truck shouldn’t have been parked on the driveway. The worker reportedly became belligerent and got into a shouting match with the woman. The details were confirmed by a female co-worker in a written statement dated May 30, 2002. The worker apparently said to the woman using the ramp “Why don’t you come over here and say that again.” The female colleague noted that the worker seemed to be easily angered and it made her uncomfortable. A disciplinary letter was issued to the worker on June 10, 2002. In response, the worker was relocated to the tree nursery where she would not have as much contact with members of the public.
According to an internal e-mail dated June 30, 2003 from a district manager, once the worker obtained full-time employment status, he perceived that her demeanour began to change. She became aggressive and uncooperative when dealing with supervisors and co-workers. He identified an incident in April 2003. He received a complaint from a supervisor that the worker had refused an order to report to the small engine shop to help clean while her truck was being repaired. Instead of performing the assigned tasks, the district manager claimed she spent four hours in the women’s change room, but refused to discuss her behaviour.
The employer has also provided written statements from co-workers, indicating that on several occasions the worker instigated verbally abusive confrontations with co-workers and at times became physically aggressive.
A written statement from a co-worker dated July 9, 2003 documented an incident where the worker became verbally and physically abusive when her lunch box was left in the back of a truck that was locked in a garage. The next morning she was reportedly angry with the co-worker. He was on his way to a meeting so he didn’t stop to address it, as he did not know the reason for her anger. He claimed she attacked him after the meeting and tried to choke him with her hands around his neck. He told her to never touch him again and she told him she was angry about her lunch pail being locked in the truck. The co-worker said the incident was reported immediately to the superintendent.
On July 9, 2003 a different co-worker provided a written statement about an incident that allegedly occurred in October or November 2001 when he was working with the worker. It was the day after the incident described above. They were putting up rink boards for an outdoor rink. Another co-worker asked him for a ride to the corner store so he could buy lunch. They went to the store and returned in approximately 20 minutes. He saw the worker walking across the park to the vehicle that was assigned to him that day. She looked angry so he locked the doors and rolled the windows three quarters up. She stepped up on the runner board and hammered on the window, swearing at him. She accused him of taking the truck, claiming he was aware she needed the truck at noon to attend a course offered by the city. He informed her that no one in management had informed him that she needed the truck at noon. He said he would remove his personal belongings and let her have the truck. He claimed she was very aggressive and insisted he “get out now”. He noted her language was abusive and swearing. The incident was reported immediately to their supervisor.
A written statement from another co-worker dated July 10, 2003 documented an incident that happened when they were planting trees. The worker was driving the dump truck that day. The co-worker providing the statement and another co-worker attempted to provide directions to where they were planting. The worker apparently did not like being given directions. She got out of the truck, and started shouting at the co-workers, calling them names and swearing at them. She got back in the truck and proceeded her own way. The co-worker claimed the worker was angry the rest of the morning, swore at them for various reasons and would not reply when spoken to. The co-worker noted the worker was moody and difficult to work with any time she worked with her after that incident.
I have considered the worker’s allegations and the information provided by the employer and find I have two very different narratives regarding the worker’s interactions with co-workers, supervisors and customers. The worker claims she has repeatedly been the victim of workplace harassment and the employer claims that she has a pattern of aggressive behaviour and instigates interpersonal conflict.
After considering both positions, I find the employer’s position more persuasive. The worker’s allegations of harassment by co-workers are not supported by corroborating evidence, whereas the employer has provided written statements from several of her co-workers who claim they witnessed aggressive behaviour by the worker. The report from The Sexual Assault Support Centre claimed they were putting together a large document summarizing all of the instances of harassment in a chronology of events, but that evidence is not before me. According to the employer, the worker was given many opportunities to report the issues of harassment, yet did not do so.
The evidence also suggests the worker was selective about the facts she presented. According to the notes she provided about the voice mail message she left for her manager after the incident on January 14, 2002, she informed him of the actions of the minor hockey group but omitted information about her decision to turn off the lights in the arena.
There is medical evidence also suggesting the worker tended to be selective about the information she provided. In the independent psychiatric assessment dated August 7, 2003, the worker claimed she believed no action was taken regarding her complaint of pornographic material in the workplace, but this is contrary to information provided by the employer. The employer provided detailed information of a specific action plan that was put in place, as described earlier in this decision. According to the employer, the worker was kept informed of the actions the employer was taking to address her concerns.
In another independent psychiatric assessment prepared for a disability insurer on February 11, 2005, the psychiatrist indicated that although he found the worker a credible informant, he also had the impression her account might have been selective, “in terms of overlooking her own contribution to making more difficult processes of mediation”. The impression was based, in part, from her having discontinued her relationship with two previous family physicians because she found them not supportive enough of her position. He noted some contributing personality traits and stated the following:
“While she should not be expected to permit, or make allowances for offensive behaviour, the evolution of the conflict she reported raises the possibility that she might have some difficulty in displaying the flexibility needed to maintain smooth interpersonal and vocational relationships. Her own self-description as pig headed like her father, might perhaps be translated into an interpersonal style in which obstinacy, or poorly modulated assertiveness, might lead to conflict.”
The balance of the evidence suggests the worker had a pattern of getting involved in heated interpersonal conflicts with various co-workers, supervisors and with members of the public; conflicts she often instigated or escalated.
According to the CMS policy, in order to consider entitlement for chronic mental stress, the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress. This means that the event(s) can be confirmed by the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others.
I find the evidence does not support the worker’s claim regarding the alleged incidents of harassment. According to the employer, the worker did not file any complaints or grievances about the behaviour of co-workers or other staff, other than the presence of sexually inappropriate magazines and other material. The worker has been unable to provide names or dates of the alleged incidents.
In summary, I am unable to confirm the worker’s allegations of harassment and sexual harassment by co-workers.
Actions by Management
I also find the actions taken by management were not harassment.
The worker claimed she went to management and her union for support with harassment by co-workers and issues with customers, but she felt her complaints were ignored, belittled and misrepresented. She also asserted there was ongoing retaliation by the employer in response to her complaints of harassment and other health and safety complaints, including demotions, disciplinary action, pay cuts, transfers, shift changes, social isolation, exclusion, failure to provide necessary training, being assigned to use unsafe equipment and being given demeaning assignments.
I am not satisfied that the worker’s position that the employer failed to take action on her complaints is supported by the evidence. In addition to the actions taken to address her complaints of pornography in the workplace, the employer also provided information about actions taken in response to the incident on January 14, 2002. A letter dated July 11, 2002 from the District Manager of Program Properties indicated that management asked minor hockey to reinforce proper behaviour with their parents and coaches regarding their use of abusive language. Regarding users having alcohol at the arena, the worker was asked to provide her manager with the permit number so they could identify the offending client. The worker did not provide the requested information.
Many of the issues the worker repeatedly refers to as harassment were normal employment decisions in my view. The CMS policy is clear 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 a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
According to the employer, after the worker refused her assigned work duties in April 2003, the employer considered assigning her to assist with data input. She was asked to consider the offer, but she went off on medical leave without responding to the offer, claiming her work conditions were unsuitable. A meeting with HREE was scheduled for July 3, 2003 to provide the worker an opportunity to discuss any issues she had with her work conditions. Instead of agreeing to meet, her doctor provided a note that she was fit to return to work. On August 6, 2003 a meeting took place with HREE and the worker but was stopped by HREE shortly after it started because the worker brought a lawyer with her and didn’t inform HREE that she intended to do so. According to the HREE report, the worker spoke of old allegations that the employer had already addressed. When asked about new concerns, the worker claimed that management was all bad and encouraged inappropriate behaviour, but no new specific concerns were raised.
If the worker had demonstrated compelling evidence that the employer’s employment decisions were discriminatory or were made to punish her for her complaints and grievances, I would agree that it could amount to workplace harassment, but I find that evidence to be lacking. The evidence provided by the employer establishes that they took reasonable steps to address the worker’s complaints of inappropriate material in the workplace, once the worker reported it, and the other complaints are not supported by corroborating evidence. The evidence also shows that her various moves and transfers were in response to the need for medical accommodations or in response to disciplinary action against the worker and the need to minimize her contact with the public.
I find there is no entitlement for CMS arising from decisions or actions of the employer relating to the worker’s employment and there is no evidence of harassment by the employer or by managers.
Incident of January 14, 2002
I have already indicated that the incident on January 14, 2002 did not meet the criteria for entitlement under the TMS policy. I also find it does not result in entitlement under the CMS policy because I am not satisfied, on a balance of probabilities, that it was the predominant cause of a mental stress injury.
The CMS policy requires that in all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor arose out of and in the course of the worker’s employment, and was the predominant cause of an appropriately diagnosed mental stress injury. As described in the TMS portion of the decision, the worker was off on medical leave from January 2002 to approximately April 2002 but there was no diagnosed mental stress injury at that time.
Furthermore, as described previously, the worker was already demonstrating abusive and aggressive behaviour toward co-workers before the incident on January 14, 2002. According to a chronology of events from HREE, several attempts were made to have the worker discuss the incident at the arena, but she refused to meet or co-operate with the investigation. Noting her reluctance to discuss the incident, her prior episodes of confrontations with co-workers, and her tendency to be selective about the information she disclosed, I find it likely that the worker’s actions contributed to the confrontations that occurred that evening.
The worker representative argued that the worker sustained a mental stress injury arising out of the incident in January 2002, which was perpetuated by workplace sexual harassment, but I find the evidence does not support the worker’s position. The evidence suggests the worker was having problems with interpersonal conflicts in the workplace before and after the incident in January 2002, with co-worker’s accusing her of aggressive and abusive behaviour. The psychiatric report of February 11, 2005 described an interpersonal style, characterized by obstinacy and poorly modulated assertiveness. We have only the worker’s direct account of the incident on January 14, 2002, but an e-mail dated June 30, 2003 from a district manager indicated that the worker got into a heated and profanity laced verbal confrontation with the league representatives in the arena, which suggests the possibility that it was a two-way exchange.
Furthermore, the medical evidence suggests that the predominant cause of her symptoms is her perception that she has been mistreated by co-workers and the employer; a perception that is not supported by corroborating evidence.
Noting the evidence does not support that the worker developed a mental stress injury caused by a substantial work-related stressor, I find entitlement for CMS is not in order.
CONCLUSION
I conclude there is no entitlement for Traumatic Mental Stress or Chronic Mental Stress.
The worker’s objection is denied.
DATED: July 31, 2019
Helen Shaw
Appeals Resolution Officer
Appeals Services Division