Worker v. Employer, 2019 CanLII 26563

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20190067

OBJECTING PARTY: Worker

RESPONDENT: Employer (not participating)

HEARING: Oral Hearing on Thursday February 28, 2019

HEARD by: Kelly Gordon, Appeals Resolution Officer

DATED: March 7, 2019

ISSUE

The worker is objecting to the Case Manager’s (CM) decision dated June 19, 2018 and the reconsideration decision dated October 11, 2018 that denied entitlement to Chronic Mental Stress (CMS).

PRELIMINARY ISSUE

During the worker’s testimony, the worker requested the ARO provide a decision under the Human Rights Code. I informed the worker I am unable to provide a violation of human rights decision in this appeal. I advised the worker to review page 15 and 16 of the Appeals Services Division Practice and Procedures Guide for direction on how to pursue this issue. Following a discussion, the worker understood this appeal will only address the CM’s June 19, 2018 decision that denied entitlement to CMS.

BACKGROUND

On March 6, 2018, the worker submitted a Worker’s Report of Injury, Form 6 stating he is constantly harassed and bullied by his supervisor. The worker reported his employment started with the employer on October 16, 2017, and his direct supervisor has been harassing and bullying him since November 2017. As a result of the undue distress caused by the supervisor, the worker stated he developed a psychological condition.

The worker sought medical attention on February 12, 2018. As stated in a prescription note on file, the doctor determined the worker was totally disabled and unable to work. The doctor related the worker’s condition to work-related stress.

The CM reviewed the information on file and in the decision dated June 19, 2018, the CM determined the evidence supported the worker’s stress reaction was a result of actions and decisions made by the employer about the worker’s job. As mental stress that is caused by the employer’s actions or decisions related to the worker’s employment is not covered by the WSIB, the CM denied entitlement to CMS in this claim.

The worker submitted further information to file and requested a reconsideration of the June 19, 2018 decision. The CM reviewed the new information; however, in the reconsideration decision dated October 11, 2018, the CM upheld the decision to deny entitlement to CMS.

The worker submitted the Appeal Readiness Form (ARF) dated November 15, 2018 confirming his objection to the denial of CMS entitlement.

The worker’s objection to the denial of CMS entitlement forms the basis of this appeal.

AUTHORITY

Operational Policy:

15-03-14 Chronic Mental Stress (dated January 2, 2018)

ANALYSIS

Having considered all of the evidence, I find the worker is not entitled to CMS. In arriving at this decision, I have considered the information in the claim file, the worker’s testimony, as well as the appropriate Operational Policy.

During the worker’s testimony, the worker confirmed he relates his mental stress condition to be a result of the treatment he received from his supervisor. The worker is requesting entitlement to CMS as the worker finds all criteria in Policy 15-03-14 have been met.

The worker testified that although the supervisor never yelled at him, screamed at him, or swore at him, for approximately four (4) months the supervisor spoke to the worker in a demeaning and belittling manner. The worker stated he felt he was constantly being harassed and felt his supervisor was bullying him while at work.

In my review of the information on file, I note the worker was hired on October 16, 2017 as a customer service representative (CSR). The worker testified his job duties require him to address emails, answer phone calls and conduct audits.

The worker testified that although the supervisor found faults with his work, he was only provided with two (2) days of training and was then put on the floor to work on his own. The worker stated he had to learn as he went. The worker also testified that although there were no production quotas in his job, he was expected to have all audits for the week completed on Tuesdays.

The worker testified he was called into a meeting on February 8, 2018. In attendance were the worker’s supervisor and the operations manager. During the meeting, the worker was provided with a memo that stated the worker was not a team player, was not taking enough calls, and the worker needs to improve on audits. The worker was to have a follow up meeting a week later to see if the worker was improving on the areas identified in the meeting. The worker stated he felt this meeting was leading to him being disciplined.

Following the meeting, the worker felt mentally stressed and sought medical attention with a psychiatrist on February 12, 2018. The psychiatrist advised the worker to take time off of work due to the work-related stress. The worker went off of work on February 12, 2018.

The worker testified that he saw the same psychiatrist for non-work-related reasons two (2) to three (3) years prior to the visit on February 12, 2018. The worker confirmed he was not seeing the psychiatrist for non-work-related reasons immediately prior to February 12, 2018.

The worker testified that although he did ask the psychiatrist to submit a Health Professional’s Report of Injury, Form 8, the doctor did not do so. The worker also testified that although he underwent a full assessment, the psychiatrist was asking too much money for the report, and the worker could not afford to pay for it. The worker stated this is why the psychological assessment is not on file.

In my review of the information on file, I note memorandum two (2) dated March 27, 2018. In this memorandum the worker advised the CM that the interactions with his direct supervisor were the cause of the worker’s psychological condition. In the same memorandum, the CM asked the worker to describe the events that he felt caused the psychological condition. The worker reported the following:

The worker stated he had two (2) days of training, and was then placed on the floor to deal with emails and take calls.
Since starting the job, the worker stated his direct supervisor made comments such as: “the work is not done properly” and “the worker is making mistakes”.
The worker stated his direct supervisor made derogatory comments such as “you’re not a good learner”, and “you’re not able to fulfill duties”.
The worker reported feeling under constant pressure on a daily basis.
In the first week of February 2018, the supervisor disciplined the worker in the form of a memo stating the worker was not a team player, and not doing things according to the requirements.
The worker went to the psychiatrist a couple of days after the disciplinary meeting, and the psychiatrist recommended the worker lay-off work because of the issues and stress at work.
The worker stated his direct supervisor was intimidating, bullying and that her tone of voice was authoritative, and disrespectful. The worker felt the supervisor spoke to him in an inhumane way. As an example, the worker stated the supervisor made comments such as: “no you cannot do this,” “no you can’t do that,” “why are you doing this?”
The worker confirmed the supervisor never yelled at him and had never sworn at him.

I have also reviewed the medical information on file, and note only a prescription note from Dr. Panjwani, Psychiatrist dated February 12, 2018. The note states the following:

“The worker was seen by me today. It is my clinical opinion that he is presently totally disabled to perform his own occupation as a result of work-related stress.”

In reviewing entitlement to CMS, I refer to Policy 15-03-14, which states that 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 that arises out of and in the course of the worker’s employment. Furthermore, the substantial work-related stressor must be the predominant cause of an appropriately diagnosed mental stress injury.

In summary, the following conditions must be met in order for entitlement to be granted for CMS:

the worker must have experienced one or more substantial work-related stressors
the work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury, and
a regulated health professional has provided a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (DSM)

Diagnosis

In this case, the only medical information on file is a prescription note from Dr. Panjawani. This note states the worker has work-related stress. As a complete psychological assessment with a DSM diagnosis has not been submitted to file, I am unable to find the medical evidence supports an appropriately diagnosed mental stress injury. As such, the policy criteria pertaining to the mental stress diagnosis has not been met.

The policy defines a substantial work-related stressor as being:

…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.

The policy goes on to state that 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 policy defines workplace harassment as follows:

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.

Finally, the policy states there is no entitlement for chronic mental stress caused by an employer’s decisions or actions that are part of the employment function, such as:

terminations
demotions
transfers
discipline
changes in working hours, or
changes in productivity expectations.

However, workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as workplace harassment, or conduct that a reasonable person would perceive as egregious or abusive.

In this case, although the worker has provided various examples of perceived harassment, intimidation and bullying since the start of his employment, the key question is whether these incidents constitute substantial work-related stressors.

It is important to reiterate that a work-related stressor is considered “significant” when it is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment. Interpersonal conflicts between workers and their supervisors are generally considered to be a typical feature of normal employment unless it results in harassment, or results in conduct that a reasonable person would perceive as egregious or abusive.

The worker argues the employer did not provide him with enough training and as a result this affected his job performance. The worker also testified that it was his job performance that resulted in the treatment received by his supervisor. The worker confirmed that although the supervisor did not yell or swear at him, the supervisor spoke to him in a belittling and derogatory manner. The worker also viewed a meeting held with the operations manager and the supervisor to be a form of harassment.

While I appreciate the worker’s feelings as a result of the treatment received by the supervisor, I do not agree the treatment received meets the definition of a substantial work-related stressor as stated in Policy 15-03-14. Although I acknowledge that it can be difficult and frustrating for any worker to start a new position without proper training and assistance, the fact the worker believes the training and support he received was inadequate does not amount to a significant work-related stressor.

The key concern for the worker was the way he was spoken to by the supervisor. The worker found this to support he was bullied and harassed. I find, however, the worker’s interactions with the supervisor, albeit unpleasant, fall within the domain of ordinary management/worker interactions in a work environment. It is not unexpected that there will be disagreement, tension and conflict between workers and supervisors. It is also not unexpected that a supervisor may talk in a negative manner when addressing job performance issues or job expectations. Not all interpersonal conflict that is rude or thoughtless will be considered a significant work-related stressor unless there is an element of threat or abuse. In this case, the worker testified the supervisor never threatened him and the supervisor was not abusive. The worker only noted the supervisor spoke to the worker in a demeaning manner. Based on the worker’s testimony, I am unable to find sufficient evidence to support the supervisor engaged in targeted harassment or abuse to the worker.

I acknowledge the worker strongly believes the treatment from the supervisor constitutes harassment, and bullying behaviour. However, from an objective standpoint, there needs to be some element of threat or abuse in the employers conduct, or in the interactions with the supervisor to rise to the level of harassment or bullying. The evidence in this case has not led me to such a conclusion.

For the reasons stated above, I find the evidence does not support a substantial work-related stressor in this case.

As outlined above, I have concluded the evidence does not support an appropriately diagnosed mental stress injury based on the DSM. I have also concluded the evidence does not support a substantial work-related stressor. As a result, the predominant cause criteria as outlined in Policy 15-03-14 cannot be established.

In summary, I do not find the evidence supports a mental stress injury that meets the criteria outlined in Policy 15-03-14. As such, I find the worker does not have entitlement to CMS in this claim.

CONCLUSION

I find the worker does not have entitlement to CMS.

The worker’s objection is denied.

DATED: March 7, 2019

Kelly Gordon

Appeals Resolution Officer

Appeals Services Division