WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190056
OBJECTING PARTY: Worker
REPRESENTED by: Self
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: January 14, 2019, Toronto, ON
HEARD by: D. Giannobile, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Worker Witness One Worker Witness Two
DATED: January 23, 2019
ISSUES
The worker objects to the denial of entitlement for Traumatic Mental Stress (TMS) as indicated in the Workplace Safety and Insurance Board’s (WSIB) decisions dated April 23, 2018 and May 28, 2018.
The worker objects to the denial of Chronic Mental Stress (CMS) as indicated in the WSIB’s decisions dated April 23, 2018 and May 28, 2018.
BACKGROUND
Briefly, the worker is a former mail sorter who claims she was the victim of a violent event on December 9, 2013 when a co-worker approached her workstation and slammed a tray of mail down beside her and swore at her. She reported the incident to her employer and sought medical attention for back pain and depression.
Entitlement for the lower back was denied in a Case Manager’s (CM) decision dated July 28, 2014. TMS was denied in a CM’s decision dated October 9, 2014. The denial for both conditions was confirmed in a prior Appeals Resolution Officer’s (ARO) decision dated March 31, 2015.
The worker appealed to the Workplace Safety and Insurance Appeal Tribunal (WSIAT) but they returned the matter to the WSIB to review TMS entitlement against the revised TMS policy. They also noted the worker claimed CMS entitlement related to her claims of an unsafe work environment and recommended the WSIB consider her entitlement under that policy as well.
The CM’s decision dated April 23, 2018 considered TMS entitlement against the revised policy but found no basis on which to change the decision. The same letter denied CMS entitlement because her conflicts in the workplace and lack of job promotion did not meet the standard for entitlement under the CMS policy.
A manager in the Mental Stress Injuries Program did a comprehensive review of the worker’s appeal following her submission of documents related to interactions with several co-workers, management and her union. His decision letter dated May 28, 2018 denied CMS entitlement because her complaints arose from disciplinary actions taken by her employer.
The worker objects to the denial of TMS and CMS entitlement and the matter is now with the Appeals Services Division for further consideration.
AUTHORITY
Relevant operational policies:
15-03-02 – Traumatic Mental Stress (TMS); revised January 2, 2018
15-03-14 – Chronic Mental Stress (CMS)
ANALYSIS
The worker provided oral testimony on her own behalf and under questioning from the employer’s representative and me. The witnesses provided oral testimony under questioning from the worker, employer’s representative and me.
I have fully considered the applicable policies and relevant evidence in reaching this decision. Having done so, I confirm the decision to deny TMS and CMS entitlement. My analysis follows.
The worker testified in great detail about her belief that the employer, union and co-workers all conspired to create a toxic and unsustainable work environment that ultimately led her to forced retirement at age 49. She believes the employer allowed her to be bullied and harassed because they wanted her out of the workplace. She testified their prime motivation for doing so was her longstanding back disability. She also believed that being a woman of Italian heritage contributed to the harassment directed at her. It was later explained by her witness that the postal station is in a small community with not a large presence of non-white residents. They did not consider Italians “white”.
She testified about the challenges she faced as the target and victim of bullying from her co-workers, many levels of management and an unsupportive union that she believed worked “in concert” with the employer to create an unhealthy workplace. She had many examples of occurrences to illustrate her position.
To start, she testified she has permanent restrictions for her lower back following a work injury in 2000. Her injury required she be allowed to use a chair at her workstation or sorting case. She testified about the difficulties she had trying to get the employer to comply with this precaution. A chair was not always available or it was in a state of disrepair that it provided no support. She had constant, continuing battles with her management for them to comply with getting her a proper chair. She filed two hazard reports about the condition of the chairs but nothing was done even though she felt it was a simple accommodation.
She often worked outside of her restrictions sorting mail from having to bend repeatedly, stand for prolonged periods or lift beyond her weight limit. Her immediate management was not supportive and often berated her. She described her superintendent as a “tyrant” who took great pleasure in making her cry.
She filed numerous grievances through her union about her treatment at work. She recalled asking the grievance officer one day about the status of her grievances and he asked her to come to the union office with him. She described it as a small, cramped office. Her shop steward accompanied her and witnessed the grievance officer fly off in a rage, swinging his arms and upset about being asked about the status of her grievances. She testified she felt imprisoned in that small office. It turned out that he had caused many of her grievances to become inactive.
The event was the subject of a larger investigation by VH, the Occupational Health and Safety “OHS” Manager for the employer. Mr. Hs report dated November 6, 2013 recommended the grievance officer remove himself from that position and take steps towards addressing his anger.
She testified witnessing the union president strangle a letter carrier on the shop floor followed by management calling a meeting telling employees not to talk about what happened. This made her feel she worked in an unsafe place.
She testified about the incident on December 9, 2013 when a co-worker slammed a tray beside her while in a rage. The worker thought she was going to be struck by the tray because of how violently her co-worker came at her and swung the tray down on a pile of mail right beside her. It sent mail flying. The co-worker was swearing and threatening her the whole time. She thought she would be struck in the face by the tray. She felt her legs go numb and thought her life was in danger.
The abuse did not stop after this event. The employer continued to ignore her restrictions and give her broken chairs. The employer also kept preventing her from bidding on other jobs within the company but others were not prevented from doing so. She felt this was a way for the employer to retaliate for her stress claim with the WSIB.
She also believed her car was targeted by the employer or co-workers. It was vandalized with tomato sauce and had the brakes tampered with while it sat in a parking lot across the street from the plant. A police report confirmed “mischief” had occurred but she acknowledged under my questioning that the police did not charge anyone from the employer with vandalizing her car.
She referred to the Record of Employment (ROE) issued by the employer that lists the reason for severance as “mandatory retirement” which she characterized as the employer forcing her out of her job which was their intent ever since she was injured in 2000.
She filed a police complaint against a member of the employer who continually emailed her about coming in for a meeting while she was off following the December 2013 event.
She then pointed to the medical reports on file, including an independent psychiatric assessment arranged by the employer, which in her view support her depression and stress are all related to the harassment, bullying and targeted behaviour in the workplace. She testified she continues to take anti-depressants including Cymbalta 90mg. She continues to see her psychiatrist, Dr. Sorios.
She confirmed that neither of her witnesses were present at the event on December 9, 2013 but were present at the meeting with the grievance officer when he raged at her about the status of her grievances.
She also spoke about a list the employer kept called a Frequently Injured Employee (FIE) list. Workers who had more than one injury were put on the list and, in her opinion, targeted by the employer. She believed management were financially rewarded if they could get workers on this list to quit their jobs. She pointed to a document in her claim dated March 27, 2008 from the president of the union to the Human Rights Commission making those allegations.
Under the employer’s questioning, she provided additional details about the December 9, 2013 incident. Her recollection was her co-worker almost hit her face when she swung the mail tray in her direction but then she forcefully slammed it down beside her into a “binnie” or large case containing mail. She again recalled the force sent mail flying.
The employer then asked the worker to address the employer’s letters to her dated December 11, 2013 and May 28, 2014 which contain details of the December 9, 2013 incident and an arbitration meeting where the worker had to address her allegations of violence and harassment in the workplace. The worker challenged the content of the letters and felt they were biased in the employer’s favour. She testified the meeting and interviews were done like an interrogation. She was not allowed to talk. She believed the letters were written in a way to discount her position.
She felt her union representative “handed her on a platter” to the employer at the arbitration that allowed them to force her retirement. She grieved the interview process.
I asked her why she felt she was singled out by the employer and she replied it was because she had a permanent injury. I asked if she was aware if other injured workers in the plant had similar experiences to her and she replied she did not know because she kept to herself.
The worker’s first witness indicated he is a letter carrier based out of the same depot as the worker. He was her shop steward in 2010 and 2011 and helped with a number of her grievances. He resigned the role in 2011. He recalled the worker being a good worker who kept to herself and was very quiet. He recalled she received a ‘Bravo” award from the employer to recognize her work ethic.
He testified the employer was well aware of the worker’s permanent back injury and precautions but noted that management treated injured or sick workers poorly. When the worker was asked about the personalities of certain managers or union representatives, he responded with negative characteristics. He said they were not approachable and acted like bullies. He confirmed members of the union were seen arriving at the union office in the morning bleary eyed from drinking.
He confirmed that a union leader attacked a letter carrier on the shop floor and then management asked no one to talk about it while they investigated it. He described some members of management, co-workers and union as malicious, tough, intimidating and rude.
He recalled the worker having to take her break at different times from her colleagues. She wasn’t allowed to leave her sorting case even though others were. She was micro-managed probably because her work was accommodated due to her injury and this likely caused frustration among the other workers in her area.
There was an incident he recalled when the worker used a fax machine to fax something work-related and was reprimanded for it. He testified he couldn’t believe she was reprimanded because employees were allowed to use it for work matters.
He recalled the incident with the grievance officer and confirmed he was present and witnessed him go into a rage when they asked him about the status of the worker’s grievances. They never finished the meeting. He did not feel the employer handled the worker’s grievances properly. He did acknowledge that he filed a lot of grievances for the worker and that many were due to performance measurement issues. He agreed that most of the conflicts on the floor were from work allocations.
He agreed with the worker’s statement that the work area is congested. He also confirmed the worker filed a complaint about violence in the workplace.
He believed the employer gave her broken chairs on purpose. One chair in particular sloped forward when you sat in it. He believed the employer would test the limits of their injured workers to see how much they could take. He confirmed the worker was followed into the washroom. She complained to him that she was scared to go to work because it was a “toxic environment”. He stated he would caution anyone about making a complaint about the employer because they would retaliate.
Under questioning from the employer, he confirmed knowledge of the FIE. The employer would address workers with multiple injuries in a meeting and log their injuries. His understanding was it was a way of the employer managing their injuries to prevent future occurrences.
He stated he is aware of others at the sorting plant with back injuries. He believes the employer has an easier time accommodating short-term injuries but not permanent ones. He could not recall any other cases where a worker was treated in the extreme manner the worker was. He has no idea why the worker was targeted as she was.
The worker’s second witness was also a shop steward when she transferred to another plant in 2010. The president of the union local asked her if she would be interested in the role and she accepted.
She testified the employer was aware of the worker’s precautions for her back. She also believed the employer looked to get rid of people with impairments. She had the same general opinion of the staff at the xxxx location as the first witness. Members of management, the union, health and safety and other workers were “not nice people”, aggressive and so on. She confirmed a union leader attacked a letter carrier on the floor and management later told everyone not to talk about it.
The worker was asked if she had knowledge that someone pushed the worker to the floor and she confirmed it occurred. She eventually resigned the steward position because she couldn’t deal with it anymore. The union does not support their members especially if they are injured. She read her witness statement dated November 4, 2012 and confirmed the contents of it.
She recalled the event in the grievance officer’s office when he dismissed the worker’s grievances and behaved aggressively in front of them. She witnessed him lose control in the union office. She confirmed seeing members of the union arriving at the union office in the morning impaired from drinking.
She recalled the worker was never given a proper chair to sit in. The employer ignored addressing something as easy as giving her a proper chair. She described the worker as very quiet and pleasant – “not like the others”. The employer demeaned her and she believed they told the union not to help her so that they could move towards getting rid of her.
She recalled the arbitration experience was “awful”. The worker could not introduce evidence but the employer could. There was no due process and the worker was not allowed to speak freely.
Her co-workers were not supportive of her and created a bad work environment by always yelling and verbally attacking her. They were prejudiced against her because she was Italian and they were not used to ethnicity in their shop or their small town. She believes the employer retaliated against her for filing a complaint with the Canadian Federal Labour Board.
She recalls the report from Mr. H acknowledged there were issues with violence in the workplace but none of his recommendations were ever implemented.
She has knowledge of the FIE list and stated “you were doomed if you were on the list”.
She could not recall if she witnessed the December 9, 2013 event because “there were so many”.
The employer asked about more details of the worker’s claim that she was pushed by a union representative and the witness testified she could not recall when it happened. The employer then recommended the matter not be considered in the final analysis because there is no evidence on file pertaining to it.
In her closing, the worker stated she was the subject of a violent and aggressive attack on December 9, 2013 where she feared for her life. She argued it should not be considered a normal part of work to be attacked like she was. She felt discriminated against and targeted by the employer and others at work because of her back disability. She believes the employer was incentivised to target her so she would quit her job. They forced her to work outside of her restrictions on a daily basis and never provided her the simple accommodation of a properly working chair.
Her file contains numerous documents about her complaints to the union, employer and regulators about the conditions at work but nothing was ever done. She was regularly taunted by her co-workers and sworn at. Her immediate co-workers were all a group of friends that targeted her and demeaned her culminating with the attack on December 9, 2013. This employer then used this event to force her into mandatory retirement.
She reiterated that the letters from her employer dated December 11, 2013 and May 28, 2014 are not accurate representations of what occurred in the respective investigations and are biased in the employer’s favour.
She argued that none of what she experienced, from the grievance officer’s rage to the behaviour of her co-workers towards her was normal. She witnessed two violent attacks at work. She argued all of this experience qualified her for entitlement under either TMS or CMS policy.
The employer’s representative argued that the scope of my decision is much narrower than the worker would like. They referenced the WSIB Manager’s May 28, 2018 letter denying TMS and CMS dismisses events in August 2002, October 2007 because there was no entitlement for TMS in those claims. He argued the decisions on CMS and TMS must only consider the events related to December 9, 2013 and what led to it.
They argued the worker’s version of events regarding the December 9, 2013 incident got more severe as time went on. They noted her initial statement in memorandum #1 which is closest in time to the event is less severe than her subsequent versions. They noted the employer’s letter dated December 11, 2013, two days after the event, suggested the worker engaged in inappropriate behaviour and conflicts about her work performance that led to the co-worker yelling at her and smashing a tray down beside her.
They referred to the employer’s May 28, 2014 letter and the worker’s testimony that the arbitration meeting was not conducted properly but they noted the worker’s shop steward (witness #2) was present and did not speak out as it being an unfair process at the time. They also found no reference in the report to an incident of violence. However, the letter lists a great deal of instances where they alleged the worker acted in an inappropriate manner against her co-workers leading to the event on December 9, 2013.
They then turned to the qualifying criteria contained in the CMS policy. They did not see evidence of a substantive work stressor. They acknowledged the worker experienced a co-worker aggressively yelling and slamming a tray down which they agreed was “unwanted” behaviour but not excessive in its intensity.
They believed the issues between the worker and her co-workers, union and management were interpersonal conflicts which the policy finds are typical of normal employment and would not entitle her to benefits under the CMS policy.
They then referred to the medical reports on file that reported depression going back to 2008 and others that diagnose stress from work but make no mention of the December 2013 event (ex., Dr. Challis report dated December 4, 2015). They noted this same report suggested that her responses to clinical measures were extreme and invalid for one measure and he cautioned about the conclusions that should be drawn from them.
They then referred to the qualifying criteria for TMS entitlement and to the list of traumatic events listed therein. They felt the worker’s event on December 9, 2013 did not qualify as a traumatic event as per that list. They noted the policy specifies that employer’s actions pertaining to terminations, suspensions, discipline and so on are not qualifiers for TMS entitlement.
They also spoke about the FIE program that the worker and witnesses testified to. They noted witness #1 referred to it as a tool the employer used to assist frequently injured workers and not for nefarious reasons. The letter the worker referenced in her testimony from the union to Human Rights was from 2008 and that none of the allegations of incentives for removing workers with disabilities was ever proven.
They argued her issues with her union and the members that were in it have no bearing on the events of December 9, 2013.
Having fully considered the entirety of evidence, I agree with the employer’s arguments that the worker’s claims to not meet the qualifying criteria for either CMS or TMS. My analysis for each follows.
TMS Entitlement
The updated TMS policy from January 2, 2018 eliminated the requirement that the worker have an “acute reaction” to an event and eliminated the need for the traumatic event to be “sudden and unexpected”.
It goes on to state:
In all cases, the event(s) must arise out of and occur in the course of the employment, and be
clearly and precisely identifiable, and
objectively traumatic.
This means that the event(s)
can be established by the WSIB through information or knowledge of the event(s) provided by co-workers, supervisory staff, or others, and
is/are generally accepted as being traumatic.
Traumatic events include, but are not limited to
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 (e.g., bomb threats or confronted with a weapon)
being the object of workplace harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse), and
being the object of workplace harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).
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), e.g., speaking with the victim(s) on the radio or telephone as the traumatic event(s) is/are occurring.
The prior ARO decision on TMS concluded the event on December 9, 2013 was not objectively traumatic. They wrote:
I do not find the event described by the worker to be objectively traumatic. This is not to say that the worker was not affected by the incident, but that the average person would not find this event traumatic.
The amended policy’s revision that the event no longer be “sudden and traumatic” does nothing to change my view of the ARO’s conclusion. There is still a requirement for the event to be precisely identifiable, which it is, and objectively traumatic. The prior ARO ruled the event on December 9, 2013 was not objectively traumatic so there should be no alteration to their conclusion on TMS entitlement.
I acknowledge the worker’s testimony that she felt threatened, was frightened and thought her life was in danger at the time but her responses need to be weighed against an objective, not subjective, assessment of the event. I do not doubt the genuineness of her reaction to the event but her reaction is not the standard by which an objectively traumatic event is judged.
I agree with the prior ARO’s assessment that, while the worker may have had a strong reaction to the event, that does not make it an objectively traumatic one. The standard needed to achieve TMS entitlement requires some magnitude of severity that can be objectively seen as being traumatic.
I agree with the employer’s position that her co-worker’s actions were certainly not welcomed and may have made her feel unsettled but I do not feel there is any evidence to suggest that the events of that day would have risen to the point of physical violence because there had been no similar events before December 9, 2013 to the degree described in the TMS policy. The conflict between workers, however, is well documented in the worker’s various letters to management and the employer’s responses to her grievances and arbitration hearing. There were clear interpersonal challenges present for many years prior to December 9, 2013.
I find the standard for an objectively traumatic event for TMS entitlement is not met for December 9, 2013. For that reason, I confirm the decision to deny that entitlement.
CMS Entitlement
The operational policy for CMS states in part:
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.
It goes on to state:
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.
And:
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.
The policy states:
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.
It defines a 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.
It also states:
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.
There is no doubt the worker and employer were at odds with each other for many years. Her WSIB claim is full of correspondence, emails, and memos depicting the strained relationship in great detail and the significant challenges that existed on the shop floor with her union, co-workers and management. I have no doubt these conflicts and her impression of a ‘toxic environment” were difficult for her to overcome.
However, the worker asks that I disregard the letters outlining the employer’s version of events because they are biased against her and not reflective of how meetings on December 11, 2013 and May 28, 2014 actually were. Her witnesses both agreed the employer was out to get her because she was disabled and that all levels of management and union behaved aggressively, in a threatening manner and were abusive. She testified her disability made her a target for abuse with which her witnesses agreed.
In viewing those two letters in detail, they contain a multitude of allegations against the worker about her conduct, work methods and her own behaviour towards co-workers. In the case of the December 11, 2013 letter, issued two days after the incident that created this claim, it lists 1.5 pages of allegations of inappropriate behaviour against the worker leading up to her co-worker slamming down a tray of mail next to her. It concludes with the suggestion that the worker’s work methods frustrated her co-worker to the point that she became enraged, swore and slammed down a tray of mail.
The point of raising the content of the letter is not to challenge the worker’s perception of what her work environment was like but rather to find balance in the positions of the worker and employer. It is unreasonable to dismiss the employer’s evidence outright without a good reason for doing so. I have no basis on which to find the contents of their letters misleading or biased against her. It is clear the employer had to address a significant personnel issue so they conducted a thorough investigation.
To that end, the overwhelming sense from reading both letters is that the meetings were to address work methods and the worker’s position that co-workers were rude to her. There is no requirement for me to determine the legitimacy of the worker’s complaints or those of her co-workers because they are not ones that would qualify the worker for entitlement under the CMS policy. They are interpersonal conflicts with allegations of misconduct made by both parties.
The worker’s claim that her car was vandalized by the employer was never proven by the xxxx police.
The worker’s claim that she was assaulted by a co-worker is not proven. She filed a claim for this alleged event on August 1, 2002 that was denied for having no proof. She then filed a claim in October 2007 related to an interaction with her supervisor who yelled at her about her production that was denied because it did not meet the criteria for TMS entitlement and she missed the time limit to object to it.
Her allegation that the employer had incentives to get injured workers off modified work and forced to quit is not proven. There is no evidence supporting her allegation other than a 2008 letter from her union suggesting this was the case but I cannot rely on that letter to come to such a conclusion. I agree with the employer that the FIE list was most likely a tool used by management to manage workers with multiple injuries. The worker’s first witness confirmed as much in his testimony at our hearing.
I noted the operating area’s decision of May 24, 2018 capably summarized the complaints she made for the H report and the fact that there were no true findings of harassment from her allegations.
The WSIB’s decision letter characterized her claim as containing evidence of a significant amount of interpersonal conflict in the workplace but no evidence of a conspiracy or collusion by her employer, union and co-workers to harass her. I agree with their analysis. Their conclusion is further supported by the fact that the employer indefinitely suspended the worker in May 2014 pending an investigation of even further allegations of inappropriate behaviour that occurred on May 12 and May 14, 2014 regarding a sorting chair. Those matters are beyond the scope of this decision to consider but they further illustrate the poor and likely irreparable relationship between the worker and employer.
Other allegations of inappropriate behaviour on May 9, 2014 and improper use of a fax machine were also summarized in the decision letter but are also beyond the scope of this decision to consider.
The balance of evidence does not weigh in the worker’s favour for CMS entitlement. I do not find that she was targeted for her injury or bullied in a manner that she described. She relied on instances of personal conflict with her co-workers, disputes with her employer and union about work methods, grievances and bidding for jobs. These are not issues that meet the standard for CMS entitlement. I agree with the May 28, 2018 decision maker’s characterization of them as employment disputes that were not egregious, abusive nor harassing.
For that reason, I deny the worker’s request for CMS entitlement.
CONCLUSION
Entitlement to TMS under the revised policy is denied.
Entitlement to CMS is denied.
The objection is denied.
DATED: January 23, 2019
D. Giannobile
Appeals Resolution Officer
Appeals Services Division