WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190058
OBJECTING PARTY: Worker
REPRESENTED by: Self
RESPONDENT: Employer
REPRESENTED by: Self
HEARING: Hearing in Writing
HEARD by: M. Kimevski, Appeals Resolution Officer
DATED: March 4, 2019
ISSUE
The worker objects to the denial of entitlement for chronic mental stress (CMS) as outlined in the Case Manager’s decision of June 1, 2018.
BACKGROUND
The claim was established with a date of accident of March 19, 2018 for the worker, a Senior Information Service Technician, for claimed CMS related to tense and stressful communication with her manager and interactions with her colleagues.
The June 1, 2018 decision letter communicated that entitlement under the CMS policy was not in order. It was outlined that the issues identified by the worker relate to decisions by the employer that are part of the normal employment function and do not constitute a substantial work-related stressor. Further, interpersonal conflict is considered a typical feature of normal employment and is generally not considered to be a substantial work-related stressor. The decision was confirmed in a further letter dated September 7, 2018.
The case was referred to the Appeals Services Division for consideration of the outlined issue. The worker requested a hearing in writing to resolve the appeal; therefore, the decision was completed based on the information contained in the file.
AUTHORITY
Operational Policy 15-03-14 – Chronic Mental Stress
ANALYSIS
In reaching my conclusion I considered all of the available information in the context of the relevant operational policy and legislation. For reasons that will follow, I do not find in favour of the worker.
Positon of the objecting party
The worker submitted an Intent to Object Form (ITO) signed September 6, 2018 and I note the second page was completed by the worker’s physician, Dr. Baker who outlines that in the course of her employment the worker was exposed on several occasions to stressors not expected as part of her duties such as witnessing fist fights or sexual activity in a public place. The incidents and an unsupportive workplace environment caused her stress and an anxiety reaction. Her four year neglectful relationship with her manager has been a contributor but itself had never triggered her severe anxiety and panic attacks she began experiencing since March 8, 2018.
The worker also submitted in a letter of December 4, 2018 that the amount of change happening at the library is above normal and there is stress from having to deal with many incidences of unruly clients at the library which causes stress for many employees and these have escalated over the years. She indicated that while there is a security guard on duty for part of the day on weekdays, the security guard was also not supporting many employees during incidents. The worker denies stress at home.
Position of the respondent
The employer’s submission of November 23, 2018 indicates that the normal employment function of a library worker in a public work setting would include dealing with client/co-worker situations and behaviour that can be frustrating. Further, the actions of the manager were a part of the normal employment function in the course of day-to-day managerial duties and expectations.
The employer posits that the employee’s stress stems from her perceptions and reactions to interpersonal conflicts with clients and co-workers and that the employee’s stress from interpersonal conflicts at work is not considered to be a substantial work-related stressor. The employer also suggests the worker was dealing with stressful personal matters.
Assessment
I acknowledge the position of the parties; and upon consideration of the circumstances of this case, I find the worker’s claim for mental stress stems from issues that are considered part of the normal employment. Consequently, the requirements as set out in Policy 15-03-14 titled Chronic Mental Stress have not been met.
It is important to outline the requirements in Policy 15-03-14, which sets out the following in part,
Policy
A worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment.
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.
A worker will generally be entitled to benefits for chronic mental stress 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.
Substantial work-related stressor
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.
Interpersonal conflicts
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.
Standard of proof and causation
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.
For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury—as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.
Diagnostic requirements
Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM).
Employers’ decisions or actions relating to employment
There is no entitlement for CMS 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.
Therefore, in order to consider entitlement to 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 there must also be a diagnosis in accordance with the DSM. I find that this case does not meet all the requirements as outlined under the policy.
In this instance, the claim was established upon receipt of an Employer’s Report of Injury/Disease (Form 7) completed on March 21, 2018, which indicates that on March 19, 2018 while sitting with another employee, the worker wasn’t feeling well; she was emotionally distressed and felt sick, dizzy and had pain in her left arm.
In a statement obtained from the worker on March 27, 2018 she indicated she was at work and collapsed. She was setting up for a kindergarten group which she holds every Monday morning and she had been having pain in her neck and arms for a week and a half prior to the incident. She confirmed that she did not have a heart attack and cardiac issues were ruled out. She was being treated for emotional distress which she attributes to the workplace, which has been ongoing and building, but she did not wish to get into detail at that time. She was contacted again on May 1, 2018 and she reiterated feeling overwhelmed and stressed at work; emotionally not being supported by her employer and she referenced a toxic work environment. She elaborated that it was determined that she was having anxiety and panic attacks.
The worker provided more detail in her Worker’s Report of Injury/Disease (Form 6) and in a letter dated May 1, 2018. She refers to a four year ongoing neglectful relationship with her manager; and series of events which led to a switch going off in her mind. I summarized the main points as follows:
- Relationship with her manager:
o Communication between the worker and her manager has been very tense.
o The manager walks by her without acknowledging her presence.
o The worker is told her work ethic is excellent, but her relationship with co-workers is poor, but when she followed through on suggestions to improve her relationship with co-workers, her co-workers were surprised because there was no problem.
o Job reviews have been stressful. During her job review she was told that for all the excellent work she does, it does not make up for her toxic attitude, but the manager does not observe her in action and does not provide examples of a toxic attitude aside from one email.
o With all the events over the last four years the worker has lost confidence in her interaction with co-workers and she has become overly cautious.
- Lack of support:
o There has been less support for staff dealing with more incidents with the public; and while staff are encouraged to bring concerns to their manager, her manager is overwhelmed when she brings forward any concern.
o There is a fear when going into work about what she will encounter and what type of support she may or may not get.
o Clients have gone to the worker with reports of other clients damaging library facilities and being involved in sexual activities; however, when she brings this forward it is disregarded.
o People handle incidents differently; some turn a blind eye. The method they are supposed to use in the library is to give disruptive people a warning; and if the behaviour continues they are asked to leave; but then the next day they return and are disruptive again.
- March 2018:
o On March 8, 2018 there was an incident with three teens in a collaborative space where a girl was hanging off a cable in the ceiling and then jumped onto another’s lap and the worker gave them a warning. The worker was then told by a client that there was a party going on in the room with the teens so the worker asked the security guard to go talk to the three teens and the teens denied inappropriate activity. The worker felt the security guard didn’t believe her so she obtained some coaching on how to approach the security guard with her concerns. The security guard denied not believing the worker and said he was just verifying what the clients had said. The worker felt unsupported and drove home crying.
o Then on March 17, 2018 she heard the same teens had been back while she wasn’t there and there was another incident, which made her anxious. The worker told the Union President she felt emotionally distressed and she was told it was not the time to talk about it as they were on the desk. Later the same day while going by the collaborative rooms the worker saw one of the teens again, this time inappropriately touching a girl who was lying on the floor and she knocked on the window and reported it, but she didn’t learn of any investigation.
o Her anxiety was building and on March 19, 2018 she was setting up for her kindergarten program and while moving tables she felt light headed with arm pain. She talked to a colleague who got her husband to get her and she went to the hospital.
The employer outlined in a conversation on June 1, 2018 that the worker has issues with interpersonal communication and the worker’s manager has had to talk to the worker on occasion, for example during a performance review, she was given feedback on her interpersonal skills with co-workers and the feedback was not well received. The worker was not disciplined, they are in a unionized environment and the manager was providing performance management feedback as part of her managerial duties. With respect to the interaction with the security guard, to their knowledge there was nothing inappropriate about the security guard’s comments and the security guard is an employee of another company. The worker works in a public environment and employees are trained on what to expect and there are situations which involve judgement calls on what should be documented and reported.
I have carefully outlined and considered all aspects of the above outlined events and circumstances. While there is no dispute that they occurred at work, I find they stem from the normal employment function.
I acknowledge the worker is disappointed with her relationship with her manager; she doesn’t agree with feedback that has been provided to her through her performance review; and she feels unsupported by the employer for what she equates to a lack of action on events that occur at the library. However, the policy is explicit in stating that there is no entitlement for CMS caused by an employer’s decisions or actions that are part of the employment function and these are all decisions and actions experienced during the normal course of work. Additionally, there is nothing to suggest that the worker’s situation is different in comparison to the normal pressures and tensions experienced by others working at the library.
I cannot validate whether the employer’s assessment or actions are correct, but I considered the interpersonal relations between the worker and her manager as well as the worker’s interactions with co-workers within the context of the CMS policy and I find they qualify as typical features of normal employment and are not considered to be a substantial work-related stressor. I reviewed the example emails the worker provided, which appear to be dated March 5 and March 9, 2018 and I find no evidence of workplace harassment or conduct that would be considered egregious or abusive about the communication. I also considered the worker’s interaction with the security guard and again I note the worker was disappointed, but there is no indication of any behaviour that a reasonable person would perceive as egregious or abusive.
With respect to the incidents that the worker described as occurring at the library, the employer points out that the worker works in a public environment and employees are trained on what to expect and there are situations which involve judgement calls. While I certainly do not believe that incidents such as those described by the worker should be condoned, noting the nature of the work, the events are not considered to be a substantial work-related stressor. Again, they are not excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by other workers in similar circumstances.
Turning to the medical evidence, I note the Health Professional’s Report (Form 8) completed by Dr. Baker provided a diagnosis of anxiety and panic attacks. I also considered the additional information provided by Dr. Baker on the ITO. I note the relationship difficulties with the worker’s manager were downplayed and there is no new information supporting a substantial work-related stressor as defined by the policy. The worker is noted as seeking psychotherapy; however, there are no reports of file.
In conclusion, none of the events or circumstances described meets the criteria of a substantial work-related stressor. Consequently, it is not necessary to address the question of predominant cause. Therefore, the requirements as set out in the policy have not been met and entitlement to CMS is not in order.
CONCLUSION
The decision denying entitlement to chronic mental stress is confirmed.
The worker’s objection is denied.
DATED: March 4, 2019
M. Kimevski Appeals Resolution Officer Appeals Services Division