Worker v. Employer, 2019 CanLII 39154

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20190070

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer (not participating)

ORAL HEARING: Toronto, Ontario - January 17, 2019

HEARD by: H. Mohamed, Appeals Resolution Officer

ADDITIONAL ATTENDEES: Interpreter Observers

DATED: February 25, 2019

ISSUES

The worker objects to the Case Manager’s (CM) decisions dated August 19, 2014, July 13, 2017, and June 20, 2018, which denied entitlement to Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS).

BACKGROUND

On June 1, 2014, this then 47-year-old housekeeper with a history of seizures, suffered three (3) seizures at work following a verbal confrontation with her supervisor regarding room assignments. The worker alleged that her supervisor yelled at her, locked her in a room, and refused to let her leave until she spoke to her. The worker was taken to a hospital, where she stayed for seven (7) days for observation purposes. The worker was hospitalized again a week later and underwent a psychiatric evaluation. She was diagnosed with a conversion disorder.

The employer investigated this incident and obtained written statements from co-workers. These were submitted to the Operating Area on June 25, 2014.

In a decision dated August 19, 2014, the CM concluded there was no evidence to support a sudden, unexpected and objectively traumatic event. The CM noted there was no threat made to the worker’s safety and the dispute concerned a work-related assignment. Accordingly, entitlement to TMS was denied.

In July 2017, the worker’s representative requested a reconsideration and submitted a psychological report from Dr. Baranowsky dated May 10, 2016. Dr. Baranowsky provided a diagnosis of conversion disorder, major depressive disorder, and post-traumatic stress disorder (PTSD). The CM reviewed this information; however, continued to deny entitlement to TMS as outlined in the reconsideration decision dated July 13, 2017. The worker representative objected to this decision and completed an Appeals Readiness Form on January 4, 2018.

On December 14, 2017, the provincial government passed additional amendments to the mental stress provisions of the Workplace Safety and Insurance Act, 1997. As a result, workers with work-related chronic mental stress that occurred on or after April 29, 2014, and who had not filed a claim with the WSIB for that mental stress before January 1, 2018, were eligible to do so. Accordingly, the worker’s claim was reopened and reconsidered to determine whether the criteria for CMS had been met.

In a decision dated June 20, 2018, the CM reiterated the worker did not meet the criteria for TMS. Furthermore, the CM concluded the worker did not meet the requirements for CMS because the dispute was related to her employment function and there was no evidence to suggest the supervisor’s behaviour was abusive or egregious.

Accordingly, the issue that needs to be determined in this appeal is whether the worker has entitlement for either TMS or CMS.

AUTHORITY

Workplace Safety and Insurance Act (WSIA), 1997

Operational Policies:

15-03-02 – Traumatic Mental Stress

15-03-14 – Chronic Mental Stress

ANALYSIS

For the reasons that follow, I find the worker has initial entitlement for CMS. In reaching this conclusion, I have considered the information in the claim file, the worker’s testimony, submissions made by the worker representative, and the appropriate Operational Policies. The employer chose not to participate in this appeal.

Assessment of the Evidence

Worker’s testimony

The worker testified, through a French Creole interpreter, that she was born in Haiti and came to Canada in August 2007. She said she speaks very little English and that her first language is French Creole. She found employment as a housekeeper with the employer in 2008 and continued to work with them until the date of the incident.

The worker testified that before June 1, 2014, she suffered from seizures which began around 2005. The worker said she was taking medications for her seizures and continues to do so to this day. The worker said she also has diabetes. The worker testified that none of these medical issues prevented her from performing her job duties as a housekeeper. She denied having any psychological problems before the work incident. The worker acknowledged she had seen her family physician a few weeks before the incident complaining of feeling unwell and described a funny feeling moving up from her feet to her head causing light-headedness and palpitations. The worker testified that she was feeling similar to how she had been feeling back in 2005 when the seizures first started. However, she was still able to work without any issues.

The worker explained that her job consisted of cleaning approximately 15-16 rooms per shift. She explained that suites were counted as two (2) rooms and that each floor of the hotel usually had one (1) suite.

The worker said she enjoyed her job and got along with everybody at work, including the individual who caused her mental stress injury (referred to as “supervisor K”). The worker explained that when supervisor K first started with the company, she wasn’t that bad. However, as time went on, she started giving all the housekeepers problems.

The worker testified that in the week before June 1, 2014, supervisor K had assigned her 15 rooms to clean instead of 14, and removed the suite from her list (which would have counted as two rooms). The worker said she questioned supervisor K about this, and was told it was a mistake with an assurance that it would not happen again. Supervisor K made the same mistake again on May 31, 2014 (the day before the incident). The worker said she tried to approach the supervisor to address this, but she had already left. The worker said she spoke to another supervisor and complained to her about what had happened. The worker said she intended to discuss the issue with supervisor K on Monday in the presence of someone from Human Resources (HR).

The worker said she went to work on Sunday, June 1, 2014. Before the start of her shift, there was a brief meeting where all the housekeepers received worksheets which outlined the rooms they were assigned for cleaning. The worker said she again noticed that supervisor K had made the same mistake and had assigned her an extra room and had taken away the suite. The worker said she confronted supervisor K as to why she kept doing this. The worker said supervisor K got angry and pointed her finger close to her face, and told her that she could do whatever she wanted. The worker said she told supervisor K not to point her finger, but this only made her angrier.

After the meeting ended, the worker said she went to her assigned floor and started working. A little while later, supervisor K sent a houseman asking her to come downstairs. The worker said she could hear the supervisor screaming through the houseman’s earpiece asking him to get the worker to come downstairs immediately. Based on the tone of her voice, the worker felt uncomfortable meeting with her alone and told the houseman to tell her that she would meet with her on Monday when a member of the management staff was present. The houseman left.

The worker said that supervisor K sent the houseman back to fetch her. The worker said she reiterated she would not meet with the supervisor by herself. This time, she heard the supervisor tell the houseman that if she did not want to come downstairs, then she should go home. The houseman left again.

The worker said she continued working and moved to the third room on the floor. While working in this room, supervisor K suddenly entered the room and looked extremely angry. Supervisor K was carrying a purse in her hand which she dropped to the floor and came straight at her. The worker said she was removing a comforter from the bed when supervisor K came towards her and pulled the comforter out of her hand. Since the worker was still holding onto the comforter, the worker said she was pulled closer towards her, and they were virtually face-to-face. The worker said she tried to duck underneath the comforter; however, the supervisor wrapped the comforter around her. All the while, the supervisor kept shouting “Talk! Talk!” in a very angry voice. The worker said she was afraid for her life.

The worker said she finally managed to get herself free and went towards the washroom. When asked why she decided to go towards the washroom and not towards the front door to get out of the room altogether, the worker said the washroom was closer and the supervisor was blocking her exit towards the front door. The worker said she intended to use a phone inside the washroom to call security. However, supervisor K followed behind very quickly and before she could close the door and lock it, the supervisor entered the washroom and closed the door behind her. The worker said supervisor K stood with her back against the door and with her hands behind her back. Since the supervisor was quite tall, she presented as an imposing figure and the worker felt she was going to attack her or push her head down the toilet. Supervisor K continued to shout at the worker saying “Talk! Talk!” The worker explained that she did not know what to do at this point and simply raised her hands in the air and started to shout “Help!” This startled the supervisor and she let go of the door behind her. The worker said she took this opportunity to get past her and went back into the room. She then proceeded towards the phone and contacted the front desk asking them to send up security. The worker said the supervisor asked her why she was calling the front desk; however, the worker refused to respond and insisted on the front desk to send up security.

The worker explained that instead of security, a front desk agent came upstairs. The worker said this man did not speak to the worker but simply signalled to supervisor K with his eyes as if to say “come on let’s go.” Supervisor K left with this man but took the worker’s room keys and worksheet with her. She told the worker as she was leaving that she wanted to see her in the office in 30 minutes.

The worker testified that she was in shock and felt that her life was in danger. She was even more afraid knowing that supervisor K had left with her master key (which allowed her access to all the rooms). This meant she could come back at any point in time, corner her again, and “finish me off.” During questioning the worker acknowledged that supervisor K had her own master key and did not require the worker’s key to enter any rooms. The worker said she contacted one of her co-workers and told her that if anything should happen to her, to let her family know that it was supervisor K that did it.

The worker said she left the room as she did not feel safe being there alone and walked towards the elevators. The worker said there was another hotel employee who worked in the restaurant who saw her and asked her what was wrong. The worker said she told him what happened and he was kind enough to help her to the elevators. The worker said she also told him that if anything should happen to her he should let everyone know that it was supervisor K that did it.

The worker said she went down to the 8th floor where one of her close co-worker’s (referred to as “EL”) was cleaning rooms. She told EL exactly what happened and both of them started to cry. EL told the worker that she could tell something serious had happened because her facial complexion had completely changed. EL then contacted another housekeeper (referred to as “EM”) to come down, because she felt the worker was not okay and wanted someone else to be there. While the worker was in the room explaining to EM what happened, supervisor K came into the room and as soon as the worker saw her, she passed out. The worker said she has no recollection of what happened after this point until she was in the hospital. The worker clarified on a number of occasions that the next thing she recalls was being in hospital and that her family were there.

The worker was asked whether she filed a police report against her supervisor. The worker testified that a police report was filed but she does not recall what transpired after that. As far as she knows, no charges were laid. She did confirm that her union filed a grievance on her behalf and she received a $20,000 settlement from her employer.

The worker said she spent two weeks in hospital but could not recall that period. Her family told her what happened. Following her discharge from hospital, she had difficulty walking and required a wheelchair to get around. The worker said she utilized a wheelchair for approximately 3 ½ years. However, her doctor recently told her that she needed to get out of the wheelchair and start walking. Consequently, she is now able to walk short distances with the assistance of her daughters. She is not able to stand by herself, she cannot go out alone, and she cannot cook any meals for her family. She said someone comes to help twice a week with the bathing, washing up, and garbage removal.

Medical Information

The emergency hospital reports for June 1, 2014, indicate the worker suffered three (3) generalized tonic-clonic seizures at work following a stressful encounter with her supervisor. Each seizure lasted a few minutes. The doctors noted the worker had a history of seizure disorder secondary to head trauma for which she was being followed by Dr. Majl. It was noted that the worker’s last seizure took place in February 2013. The worker also suffered from migraines, type II diabetes, and gastroesophageal reflux disease.

The worker underwent a psychiatric consultation with Dr. Walton on June 4, 2014. Dr. Walton noted the worker was admitted on June 1, 2014, secondary to seizures in the context of psychosocial stress (fight with the boss). Since her admission, the worker had odd jerking movements but testing showed no epileptiform activity. He noted there were no other psychiatric symptoms including psychosis, depression, anxiety or mania. On mental status examination, Dr. Walton noted the worker’s mood appeared tired and her affect was euthymic. There was no evidence of any perceptual abnormality; however, insight and judgment were poor. Dr. Walton concluded the recent seizures were likely precipitated by psychosocial stress; however, from a psychiatric perspective no intervention was needed.

Following her discharge from hospital on June 7, 2014, the worker went back to the hospital on June 18, 2014, based on the recommendation of her neurologist Dr. Majl. Apparently, he was concerned about her unsteady gait and wanted this investigated further. The worker was subsequently admitted and stayed in hospital from June 18, 2014 to June 24, 2014.

The inpatient consultation note dated June 18, 2014, noted the worker’s primary complaint was difficulty walking and weakness in her legs. The worker reported a lot of stressors at work and was very tearful during the examination. Dr. Otremba was unable to find any physical or neurological reasons to explain the weakness in the worker’s lower limbs. He concluded the worker was likely suffering from a functional neurological disorder and admitted her for assessment by neurological services. A consultation with a psychiatrist was also arranged.

The neurological report by Dr. Wennberg noted there were no abnormalities to explain the weakness in the worker’s legs. He felt the worker’s symptoms were likely psychological or non-organic in nature.

Dr. Walton again saw the worker on June 20, 2014. He noted that 11 days ago the worker had conflict with her boss at work and felt severely threatened, shocked and scared resulting in multiple seizures. Since all investigations were negative, the worker was discharged home. Since then, the worker had been having difficulty with ambulating and was referred back to the hospital. He noted the neurologist could not find an organic cause for her gait instability. He discussed posttraumatic symptoms with the worker and she agreed that she had been feeling scared since the incident. The worker also felt she needed to be near her family to feel safe. The worker was open to the idea that her legs got worse when she felt scared. He noted the worker denied any symptoms of depression. He concluded the unstable gait was likely related to the recent trauma at work when the patient felt threatened and attacked. He prescribed short-term use of benzodiazepine to reduce her anxiety and recommended physiotherapy to increase mobilization. He also recommended the worker not to work at the same time as her boss.

The June 24, 2014, discharge report noted the most responsible diagnosis was a conversion disorder. The worker was advised that the psychiatry team had referred her to the crisis clinic for outpatient follow-up who would contact her within 48 hours to arrange the first appointment.

The worker was seen by Dr. Gratzer, psychiatrist, at Hospital A on January 27, 2015. He also relayed the incident of June 1, 2014, noting the worker had a verbal altercation with the supervisor and that this supervisor was highly aggressive towards her and effectively attacked her. Since this incident, the worker had struggled and had been unable to work. The worker had difficulty walking and was utilizing a wheelchair. Dr. Gratzer noted the worker was physically upset even discussing the incident. The worker’s daughter indicated that her mother was getting worse from a psychological perspective, and for the last two weeks she was breaking out into inappropriate laughter for no particular reason. Dr. Gratzer concluded that he fundamentally agreed with the diagnosis provided by Hospital B (conversion disorder), and that given her cluster of symptoms he did not recommend any further workup. He felt there was a strong psychological overlay to her physical complaints.

The worker underwent an independent psychological assessment with Dr. Baranowsky on April 15, 2016. In her report dated May 10, 2016, Dr. Baranowsky noted that on June 1, 2014, there was a verbal confrontation between the worker and her supervisor. The worker explained that during this confrontation, the supervisor’s tone of voice and gestures made her fearful and intimidated. Later that morning, while she was cleaning her room, the supervisor entered the room, and locked the door behind her and started screaming at her. The worker remembered that at one point the supervisor took a pillow towards her. The worker felt the supervisor wanted to kill her. The worker reported feeling cornered, threatened and terrified. The worker said she remembered her supervisor yelling: “I’m not letting you go until you talk to me.” Eventually, the manager came into the room and left with the supervisor. The worker said she subsequently left the floor and went to a room being cleaned by a co-worker. As she was speaking with a co-worker, the supervisor entered the room. The worker was horrified, started shaking, fell on the floor, and lost consciousness. The worker said she had no recollection of events beyond this point until she was in hospital.

The worker reported that her legs were very weak and would shake all the time. The worker said she was unable to stand or walk. The worker reported experiencing severe headaches on a daily basis.

The worker also reported symptoms such as lack of sleep, intrusive disturbing thoughts and memories of the work incident, flashbacks of the incident, dissociative symptoms, functional tremor in her legs, feelings of fear and horror related to the incident, severe depression and anxiety, loss of interest in activities, trouble experiencing positive feelings, difficulty concentrating, severe guilt, and irritability. Based on the mental health examination as well as the psychological testing results, Dr. Baranowsky provided the following DSM diagnosis:

Axis I - Conversion Disorder, persistent with mixed symptoms (abnormal movement; attacks or seizures), with a psychological stressor; Major Depressive Disorder, severe, with psychotic features; Post-Traumatic Stress Disorder, chronic, complex, with dissociative symptoms

Axis II - Nil

Axis III - Epilepsy; Diabetes, type II;

Axis IV - Traumatic incidents at work; loss of independence; disability

Axis V - GAF (current) 35

Witness statements

I note there are witness statements on file which were provided by the employer following their internal investigation. Co-worker EL confirmed there had been a disagreement between supervisor K and the worker at the morning meeting regarding room allocation, with supervisor K pointing her finger at the worker. EL noted the worker spoke calmly while the supervisor did not. The worker subsequently called EL to tell her she would not go downstairs alone to meet the supervisor. Sometime later, the worker arrived at her room and burst out crying telling her that supervisor K had taken her paper and told her to go home. She reported that supervisor K was angry because she had not gone down to see her in housekeeping. EL called co-worker EM on the phone to come down and help calm the worker down. EM then arrived at the room and tried to calm the worker down. A little while later, supervisor K entered the room asking EL whether she needed soap. When the worker saw supervisor K, her face changed and she looked angry. Within minutes, the worker started having a seizure and security had to be called.

Co-worker “MA” confirmed there had been a verbal confrontation between the worker and supervisor K regarding a particular room at the morning meeting. The worker had told MA that she was going to HR on Monday regarding this issue. Later that morning, the houseman had spoken to MA looking for the worker because supervisor K wanted her to come downstairs. The worker told MA on the cell phone that she didn’t want to talk to supervisor K, and that if she came upstairs she wasn’t going to say anything to her. Sometime later, the worker called MA to tell her that supervisor K had taken her paper. The worker commented that she had never disrespected anyone. The worker said that she (the supervisor) held onto her pillow and that everywhere she went in the room, supervisor K was holding onto her. When she went into the washroom, supervisor K held onto the door. The worker remarked that if anything should happen to her, she should tell her husband and family that supervisor K had killed her.

EM’s statement also verified the verbal confrontation at the morning meeting where supervisor K pointed a finger at the worker, and the worker told her not to do that. Supervisor K said they would have to talk about this afterwards and everyone dispersed to their respective floors. EM noted that later that morning, EL called her and asked her to come to her room as the worker was in there crying. When EM arrived, the worker told her that supervisor K had taken her papers and had sent the houseman to tell her to go home. EM noted that she was trying to calm the worker down from crying. Supervisor K then came into the room, and the worker stopped talking. EM then said she was going to contact security to come to the room. When she hung up the phone, and went back to the worker, she noted that her eyes were all white and realized they needed to call an ambulance.

The employer did not provide a statement from supervisor K or the houseman.

Statements from the Worker

On the Worker’s Report of Injury (Form 6) dated June 11, 2014, the worker documented that she was continually harassed by her supervisor who locked her in a room and refused to let her leave. The worker said she panicked because she didn’t know what to do and it was unexpected. She said she felt sick and feared for her life. She called security for help because she had no way of leaving the room as the supervisor had blocked the doorway. The worker said that when security came she left and went downstairs to a co-worker. The worker noted “the supervisor followed me down there and started to yell and scream at me more that is when I passed out and started having seizures.” The worker also indicated that the supervisor refused to call 911. The worker reported that she suffers from symptoms of PTSD as a result of this incident. She noted that she cannot walk on her own and requires help. She also reported having uncontrollable full body tremors.

The worker provided a much more detailed written statement regarding the accident history on the undated Intent to Object (ITO) Form on file. The worker wrote that the supervisor sent the houseman on more than one occasion to ask her to come down to the office. The worker wrote that she told the houseman that she would not speak to the supervisor by herself without an HR person present. At around 11:00 AM supervisor K entered the room without knocking and immediately became verbally abusive towards her. The worker wrote she continued to ignore her which made the supervisor even angrier. The supervisor cornered her between the bed and the TV stand and became physically aggressive by grabbing the duvet cover from her hands. The worker said she let go of the duvet cover. She then took a pillow and started putting the pillowcase on when the supervisor once again aggressively grabbed the cover from her hands and demanded that she talk to her.

The worker indicated that at this point she was very scared and told the supervisor to stop. The supervisor, however, did not stop and began yelling and screaming at her saying that she would send her home if she doesn’t speak to her. The worker wanted to get away from the supervisor but she put her hand out towards her trying to push her, and the worker put both her hands up and told her to stop. The supervisor then ordered the worker to give her the assignment papers and room key. The worker placed these items on the TV stand and the supervisor grabbed them aggressively. At this point, the worker noted that she had managed to get away from the supervisor and went into the washroom because she was scared of her and wanted to get away. The supervisor followed her into the washroom and closed the door behind her. She would not let the worker leave, demanding that she talk to her. The worker indicated at this point she was in full panic mode and felt the supervisor was going to attack her. She thought about calling security from the phone in the washroom but decided against it because she was afraid the supervisor would put her head in the toilet. The worker noted that she kept telling the supervisor to let her go and put both her hands on top of her head. When the supervisor saw that she was so scared, she let her go. The worker then picked up the phone and called the front desk and asked security come up right away. During this entire time, the worker noted the supervisor was in the background with her hands on her hips yelling “why.” Shortly afterwards, the front desk agent entered the room and told the worker to calm down and come downstairs in 30 minutes to provide a statement. The supervisor stormed out of the room, leaving the worker and the agent by themselves.

The worker noted that she was left alone on the 10th floor by herself without her keys. Eventually a server was walking by and he helped her to the elevator. The worker noted telling the server that should anything happen to her he should let everyone know that it was the supervisor. The worker went down to the 8th floor where another co-worker EL was working, and told her what happened. EL called another co-worker, EM, to come down and help. The worker wrote the supervisor followed her onto the floor and continued to agitate and stir up trouble by yelling and screaming at her. This is when she blacked out and started having seizures. The worker documented that the supervisor asked EL and EM to exit the room, shut the guestroom door, and she was left alone in the room with the worker. The supervisor did not call 911 and instead hovered over her with no emotion just staring at her as she lay on the floor.

At the hearing the worker was asked whether she completed the Form 6 and the ITO. The worker confirmed she did not complete either Form, and could not recall whether it was one or both of her daughters who completed them or someone else. The worker reported having issues with memory and had only recently started to remember some things.

The worker was asked to explain why some of the details she described in her oral testimony had previously never been mentioned (e.g. the supervisor wrapping the duvet around her), and there were some details that she had previously mentioned on her ITO Form and Form 6 (e.g. the supervisor following her onto the 8th floor and continued to yell and scream at her until she fainted), which she did not talk about at the hearing. The worker said that as time has gone by more details have come back to her. She also said the information she provided at the hearing was exactly what happened to the best of her recollection. She could not confirm what was documented in the claim file or what her daughters may have written on the forms, but her testimony is her exact recollection of the event.

Submissions

The worker representative (WR) acknowledged that while some of the worker’s testimony was at odds with what she had previously reported on the Form 6 and the ITO Form, the “bones” of the incident had never changed and have remained consistent since the very beginning. The WR primarily focused her closing argument on the CMS policy, arguing that the incident of June 1, 2014, was a substantial work-related stressor, the actions of the supervisor would not form part of the employer’s function, and the June 1, 2014, incident was the predominant cause of her psychological symptoms.

The WR argued that the supervisor’s behaviour would be considered workplace harassment as defined under this policy. She agreed that the disagreement between the worker and her supervisor likely began as interpersonal conflict; however, the supervisor’s aggressive and bullying behaviour, changed the interpersonal conflict into harassment and bullying. She noted the witness statements confirmed that supervisor K was aggressive during the morning meeting and pointed her finger in the worker’s face. The WR argued that the supervisor coming to the worker’s room, screaming and yelling at her, and refusing to let her leave was an act of aggression that meets the definition under the CMS policy.

Finally, and most importantly, The WR argued that there was no statement on file from supervisor K, nor was any attempt made by the Operating Area to obtain a statement from her. The WR found it strange that the employer went to the trouble of obtaining witness statements from the relevant co-workers, but did not provide a statement from the supervisor or the houseman. Furthermore, the employer did not rebut the worker’s version of what occurred on that day. The WR also pointed out that the employer had every opportunity to participate in this hearing, but chose not to do so. As such, the WR requested that I draw a negative inference from the employer’s unwillingness to provide a statement from supervisor K and their lack of participation at the hearing. In the absence of any alternative evidence, the WR requested that I accept the worker’s testimony as being accurate.

Discussion and Reasoning

WSIB Policy 15-03-02 (Traumatic Mental Stress) and 15-03-14 (Chronic Mental Stress) states that for entitlement to be considered for either TMS or CMS, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

• acute stress disorder
• posttraumatic stress disorder
• adjustment disorder, or
• an anxiety or depressive disorder.

The worker was diagnosed with a conversion disorder by Dr. Walton who saw her at Hospital B. This diagnosis was also confirmed by Dr. Gratzer and Dr. Baranowsky who conducted follow-up assessments of the worker. Dr. Baranowsky also included a diagnosis of PTSD and major depressive disorder. According to medical literature, a conversion disorder involves a loss or change in sensory or motor function that is suggestive of a physical disorder but that is caused by psychological factors. Common signs and symptoms include paralysis, aphonia, seizures, disturbances of gait and coordination, blindness, tunnel vision, and anesthesia. The primary evidence for the psychological cause consists of a temporal relationship between symptom onset and psychological stressors.

As the worker has been formally diagnosed with a conversion disorder, she has met the threshold requirement of having a diagnosed DSM mental disorder. Since the medical criteria for mental stress has been met, I will first consider whether the worker has entitlement to traumatic mental stress.

Policy 15-03-02 (Traumatic Mental Stress) states that a worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s employment. A worker is not entitled to benefits for traumatic 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. In order to consider entitlement for mental stress related to one or more traumatic events, the WSIB decision-maker must identify that one or more traumatic events occurred. A traumatic event may be a result of a criminal act or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others. In most cases a traumatic event will be sudden and unexpected.

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.

The policy goes on to provide a list of examples that can be considered as traumatic events. These 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).

A common thread which runs through all the examples is actual violence, or the threat of physical violence, either to oneself or to others, where the person in question is a witness to such an incident. I note the policy requires that for a worker to have entitlement to benefits for TMS, the event must be “objectively traumatic” in the normal or daily course of a worker’s employment or work environment. For something to be considered “objectively traumatic,” the incident must rise to the level where a reasonable person would consider the circumstances to be traumatic in nature.

From the evidence before me, I accept there was a disagreement between the worker and her supervisor concerning room allocation. For the purpose of determining entitlement, it is not necessary to make any findings as to whether the worker’s concerns had any merit. What is relevant is that there was an argument between the worker and her supervisor during the morning meeting on June 1, 2014. Witness statements have corroborated this argument and have also confirmed that the supervisor pointed a finger at the worker and was the more aggressive of the two individuals. Once the meeting ended and everyone dispersed, the supervisor sent the houseman to find the worker and asked her to come down to further discuss the issue. The worker refused to go down despite repeated attempts by the houseman to get her. Eventually, the supervisor went upstairs to get the worker.

What transpired in the room between the supervisor and the worker is uncorroborated by any independent witnesses. In other words, no one knows what happened in that room except for the worker and supervisor K. According to the worker’s testimony, the supervisor was extremely aggressive towards her and kept shouting “Talk! Talk!” The worker said she refused to respond. According to the worker, the supervisor pulled a duvet cover from her and attempted to wrap it around her. She also grabbed a pillow from the worker. When the worker tried to get away by going into the washroom, the supervisor followed her and continued to shout at her. The worker was able to get out of the washroom and managed to phone security. When the front desk agent arrived supervisor K left with this agent, leaving the worker alone in the room. The worker subsequently went downstairs to a floor that was being cleaned by one of her co-workers and started to explain that the supervisor had taken her papers and had told her to go home. When the worker saw supervisor K enter EL’s room, she fainted and claimed to have no recollection after this point (even though the ITO seems to indicate that she was aware of what was happening).

The worker was specifically asked at the hearing whether supervisor K said anything threatening to her other than “Talk, Talk!” The worker said she did not. The worker also didn’t describe any physical violence towards her other than the supervisor grabbing the duvet out of her hands and wrapping it around her. Given that this last piece of information was never mentioned previously until the hearing, I did not accept this portion of the worker’s testimony. I prefer the more contemporaneous reporting that the supervisor grabbed the duvet and pillow from the worker’s hands in a forceful manner.

Having examined the evidence, I find that while the incident described by the worker can be characterized as inappropriate, it does not rise to the level of an “objectively” traumatic event as defined by policy. Similarly, while following the worker into the washroom and closing the door behind her can be seen as intimidating behaviour, a reasonable person would not see this as an “objectively traumatic” occurrence. There is no evidence to support the worker was physically touched, and she was able to exit the washroom eventually without being stopped. While the worker mentioned a few times that she thought the supervisor would “kill me,” the evidence does not suggest that supervisor K expressly or impliedly made a physical threat against the worker. I also note that a police report was filed, but no charges were ever laid against supervisor K.

Accordingly, I find the incident described by the worker would not fall within the definition of an objectively traumatic event. As such, the worker does not have entitlement under the TMS policy.

I will now consider whether the events described by the worker can be classified as a significant work-related stressor as defined under the Chronic Mental Stress Policy.

Policy 15-03-14 states that 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. Furthermore, the substantial work-related stressor must be the predominant cause of an appropriately diagnosed mental stress injury.

The policy notes 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.

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.

In summary, three conditions must be in place 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
• an appropriate regulated health professional has provided a diagnosis based on the DSM.

While I did not find the evidence sufficiently compelling to support entitlement for TMS given that the incident could not be characterized as being “objectively” traumatic, there is no requirement under the CMS policy that the substantial work-related stressor(s) be considered solely from an objective standpoint. In the case of substantial workplace stressor(s), the test is whether the stressor is excessive in intensity and/or duration in comparison to the normal pressures faced by workers in similar circumstances. The policy notes that workplace harassment is considered a substantial work-related stressor. In the case of interpersonal conflict, the test would be whether a reasonable person, in the same situation as the worker, would interpret the conduct as egregious or abusive. The question that needs to be addressed, therefore, is whether supervisor K’s behaviour towards the worker can be characterized as egregious or abusive? Alternatively, could the supervisor’s conduct be classified as workplace harassment or bullying?

Since the employer chose not to participate in this appeal, decided not to provide a statement from supervisor K, and made no attempt to refute the worker’s version of events as outlined in the case record, I am left with little alternative but to place significant weight on the worker’s testimony.

This is not to say that I accept everything the worker said during her testimony at face value. There were some inconsistencies in the worker’s testimony when compared to her own statements provided on the Form 6 and the ITO Form. For instance, there is no mention in any memoranda or report of the supervisor wrapping a duvet around the worker. Another example is that the worker said that supervisor K left once the security personnel arrived; however, on the ITO Form, the worker said that she (the worker) left with security and the supervisor stayed in the room. The worker also indicated that supervisor K refused to call 911, but none of the witness statements support this. Finally, on the Form 6 the worker reported that supervisor K followed her to EL’s room and continued to scream and yell at her causing her to pass out. Neither her testimony nor the witness statements support this.

Notwithstanding these variations, however, I found the majority of the worker’s testimony to be in harmony with the information contained in the file record. In my view, these variations do not amount to such a profound departure from the actual events that it warrants me dismissing the worker’s testimony altogether. I agree with the worker representative that the “bones” of the incident have remained relatively consistent. Accordingly, I have accepted the majority of the worker’s testimony as being credible and uncontradicted.

From my review of the evidence, I find supervisor K was likely frustrated with the worker’s refusal to come downstairs despite her repeated requests to meet with her. One could argue the worker was insubordinate to a certain degree by refusing to follow the orders of a direct superior. However, when considering the worker’s refusal within the context of the argument regarding room assignments, and noting the worker had complained to another supervisor the day before regarding supervisor K’s behaviour, I accept the worker’s testimony that she just did not want to engage with her supervisor and get into an argument. In any case, had supervisor K simply gone to the worker’s room and sent her home for insubordination, the worker’s claim for chronic mental stress would have no merit, regardless of whether the supervisor’s actions were justified. Under these circumstances, I would have agreed with the CM that such actions would fall within the umbrella of employers’ decision and actions related to employment function.

Instead, supervisor K used her authority and power to engage in egregious behaviour towards the worker. In this regard, I have accepted the worker’s testimony that supervisor K was aggressive towards her, pulled a duvet and pillow out of hands forcefully, followed her into the washroom while closing the door behind her, and refused to open it until she spoke with her. In my view, supervisor K’s actions were clearly intemperate and inappropriate, and while I am unable to find that it rose to the level of threatening behaviour, I am satisfied that it was egregious in the sense that I find it ought to be characterized as a wrongful or an improper use of her managerial authority. While yelling at a worker out of frustration might not be abusive, depending on the context, I struggle to see where a physically aggressive reaction by a supervisor borne out of frustration (pulling the duvet and pillowcase out of the worker’s hands) would not be viewed by a reasonable person as egregious or abusive. Here, I find the aggressive response of the supervisor in expressing her frustration is what constitutes conduct that a reasonable person would perceive as egregious or abusive.

Furthermore, I am particularly mindful that given the nature of this workplace, the worker would not be accustomed to experiencing aggressive conduct or behaviour in her day to day dealings with management and peers. The supervisor’s actions, therefore, would have been excessive in intensity to the worker. In that vein, I find supervisor K’s conduct constitutes a significant workplace stressor in the nature of bullying or harassment. I am satisfied that supervisor K ought to have known that following the worker into the washroom, closing the door, and preventing her from leaving would have been both shocking and intimidating to the worker. In my view, the supervisor’s behaviour would meet the definition of workplace harassment.

In conclusion, I find that supervisor K’s behaviour of aggressively pulling a duvet and pillow from the worker, following her into the washroom, and preventing her from leaving the washroom amounts to a substantial workplace stressor in the nature of abusive behaviour that crossed the line, such that her actions meet the policy definition of workplace harassment. Given the close temporal relationship between the diagnosis and the incident in question, I find the criteria for substantial work-related stressor has been met.

The next policy criterion is whether the work-related stressor is the predominant cause of the appropriately diagnosed mental stress injury. Policy 15-03-14 notes that 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.

The medical evidence on file confirms the worker developed a conversion disorder following her reaction to the stressful encounter with her supervisor on June 1, 2014. None of the medical reports provide an alternative explanation or cause for the worker’s conversion disorder. There is no evidence of any pre-accident psychological issues or trauma that would cause the worker to develop such a condition. While the evidence does support the worker suffered from pre-accident seizures, it is worth noting that the worker last suffered a seizure in February 2013 - nearly 16 months before this incident. Furthermore, all investigations were negative, confirming that her post-accident symptoms were not related to her seizures. Subsequent reports confirmed that the most likely diagnosis to explain all of the worker’s symptoms was a conversion disorder. Accordingly, I am satisfied that the substantial work-related stressor was the predominant cause of the worker’s diagnosed mental disorder.

As I have already indicated, the worker has met the final criterion given that she has been provided with a DSM diagnosis of conversion disorder by a regulated health care professional. In my view, this diagnosis of PTSD and major depressive disorder provided by Dr. Baranowsky is likely also the responsibility of this claim.

For these reasons, I find the worker has initial entitlement for chronic mental stress as a result of the abusive behaviour of her supervisor on June 1, 2014.

CONCLUSION

Based on the foregoing reasons, I conclude the worker has initial entitlement to chronic mental stress. The nature and duration of benefits that flows from this decision is remitted back to the Operating Area for further adjudication.

There is no entitlement for traumatic mental stress.

The worker’s appeal is allowed in part.

DATED: February 25, 2019

Mr. H. Mohamed Appeals Resolution Officer Appeals Services Division