APPEALS RESOLUTION OFFICER DECISION
DEcision number:
20210021
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEO CONFERENCE –July 5, 6, 9 & 15, 2021
HEARD by:
STEPHEN CRISOSTOMO, appeals resolution officer
ADDITIONAL ATTENDEES
EMPLOYER RESOURCE PERSON: ER
WITNESS 1: W1
WITNESS 2: W2
WITNESS 3: W3
WITNESS 4: W4
WITNESS 5: W5
WITNESS 6: W6
WITNESS 7: W7
WITNESS 8: W8
ISSUES
The worker objects to the decisions dated:
April 30, 2015, which denied entitlement for Traumatic Mental Stress (TMS);
June 21, 2018, which denied entitlement for Chronic Mental Stress (CMS);and,
October 19, 2017 and January 16, 2019, which denied entitlement for the reimbursement of the costs for Dr. Connell’s July 25, 2017 and October 31, 2018 psychiatric medical reports.
BACKGROUND
The worker completed the Worker’s Report of Injury (Form 6) dated November 11, 2014 and indicated in mid-October 2014, while at work they were screamed at by a staff member (referred to in this decision as RP) on the second floor and then followed to the first floor by the staff member, who continued their bullying behaviour. The worker reported that they were trapped in their office during the incident, while three other staff members looked on. The worker stated they reported the incident to the employer and immediately accessed the employer’s PACE program for support. They sought medical attention on October 23, 2014. At the time of the mid-October 2014 incident, the worker was a Supervisor in their early 50s.
The employer completed the Employer’s Report of Injury/Disease (Form 7) dated October 28, 2014 and indicated a co-worker was upset with a decision the worker made and started screaming and yelling at the worker in a staff’s workstation and then followed the worker to another area and started screaming again. The incident was upsetting to the worker and staff working in the area.
Dr. Arora, Family Doctor, completed the Health Professional’s Report (Form 8) dated December 23, 2014 and indicated in mid-October 2014, the worker was bullied and harassed by co-workers. Based on the assessment, the worker was diagnosed with posttraumatic stress disorder (PTSD).
Entitlement for TMS was reviewed in April of 2015. Based on the review, the Case Manager denied entitlement to TMS after determining the policy criteria for TMS were not met. This decision was communicated on April 30, 2015. The April 30, 2015 decision was reconsidered on October 10, 2017 and upheld.
Following the introduction of new legislation related to CMS, the worker claimed entitlement to CMS, which was reviewed in June of 2018. Based on the review, the Case Manager denied entitlement to CMS after determining the co-worker’s actions towards the worker on October 16, 2014 were not considered harassing, egregious or abusive behaviour. This decision was communicated on June 21, 2018.
The worker’s representative requested reimbursement of the costs for medical reports submitted by Dr. Connell, the worker’s treating Psychiatrist, dated July 25, 2017 (in the amount of $XXXX.XX) and October 31, 2018 (in the amount of $XXX.XX), which was reviewed. Based on the review, it was determined that the reports were not requested nor were they used in the adjudicative process in making a decision. Therefore, entitlement for the reimbursement of the costs for the medical reports was denied. These decisions were communicated on October 19, 2017 and January 16, 2019.
The worker objected to the decisions dated April 30, 2015, October 19, 2017, June 21, 2018 and January 16, 2019; however, they remained unchanged and as a result, the matters were referred to the Appeals Services Division for further consideration.
Worker Representative’s Position
The worker’s representative submits
- Prior to mid-October2014, the worker was able to function properly and they participated in the completion of a certificate program. They were able to tolerate workplace stressors. They had no mental health condition and/or diagnosed mental health condition. Subsequent to the incidents in mid-October 2014, the worker had difficulties functioning due to mental health issues.
- The worker witnessed an incident on in mid-August 2014, which involved vexatious comments and conduct from RP, which included clinching of a fist, waiving a mug in their hand and raising their arms. In mid-October 2014, RP again acted in a vexatious and egregious manner, which was witness by others and was known to be unwelcomed. The October 2014 incident was sudden, unexpected, identifiable and objectively traumatic. The October 2014 incident involved harassment and abuse of the worker, and the worker perceived the incident could have led to physical violence. Thus, the criteria for TMS entitlement has been met.
- The October 2014 incidents as confirmed by the worker and witnesses involved the worker being subjected to vexatious and egregious behaviour by RP, which was witnessed by others and resulted in the worker being diagnosed with a Diagnostic and Statistical Manual of Mental Disorders (DSM). The August 2014 incident along with the October 2014 incidents, were excessive in intensity and duration, and were the predominate cause of the worker’s diagnosed psychological conditions. Thus, the criteria for CMS entitlement has been met.
- The worker did not have access to the Ruby emergency line in their office as submitted by the employer’s representative.
- Dr. Connell’s reports provide information that is of value for the adjudication of the file, as Dr. Connell is the worker’s treating Psychiatrist. Thus, entitlement to the reimbursement of the cost of the reports should be granted.
Employer Representative’s Position
The employer’s representative submits:
The medical reports from Dr. Connell were not requested by the Workplace Safety and Insurance Board (WSIB) and were requested by the worker and/or their representative. It is important to note that the policy related to the payment of clinical assessments is specific and states the payment for the reports is made, if the information submitted is “necessary and/or useful for making a decision”. The representative noted there was other medical information from other healthcare professionals in the file prior to Dr. Connell submitting his reports. Even if entitlement is granted for Dr. Connell’s clinical assessments, then it should be in accordance with the WSIB fees schedule.
With respect to CMS entitlement, the CMS policy is effective January 1, 2018 and includes transitional provisions for accidents on or after April 29, 2014. Thus, entitlement cannot be provided related to incidents/accidents that occurred prior to April 29, 2014.
TMS has a high standard for entitlement and while the policy talks about harassment; there must be an element of physical violence, threat of physical violence or a life threatening or potential life-threatening situation, which the evidence from the worker and witnesses fails to establish. Thus, the threshold for entitlement TMS has not been met.
Weight should be placed on the Investigator’s investigation report, as the evidence in the report is contemporaneous evidence related to the October 2014 incidents and is relatively similar to the testimonies provided by the witnesses’ during the hearing.
The actions of RP on October 16, 2014 resulted in workplace harassment against the worker, and that RP’s actions and manners were not welcomed by the worker. The representative also accepts RP went overboard and the witnesses on the first floor were alarmed by RP’s actions.
Operational Policy related to CMS states “Workplace harassment will generally be considered a substantial work-related stressor” as such, it is not always the case that workplace harassment is considered a substantial work-related stressor. In this case, the evidence shows:
The incident in mid-October 2014, did not rise to the level where other employees felt it was necessary to use the Ruby emergency line;
o The working staff at the employer were provided training on how to deal with irate clients/customers;
- While the actions of RP were not normal, it is normal for staff in this department to deal with irate customers;
o The event was not excessive in duration; and,
After the incident, the worker actually approached RP to talk to them about things.
The fact that RP told the worker to call security could be interpreted in different ways. The representative offered the interpretation that RP could have told the worker to call security in manner in which they meant they did not want to leave, as they wanted to be heard.
The denial of CMS should be upheld.
Worker’s Testimony
The worker testified to the following related to the issues before me:
- They started with the employer in 1991 and became a Supervisor of a team in September of 2012.
- They recall that when they got the Supervisor position in 2012, some employees felt they lacked the skills and knowledge to perform the job. There were derogatory comments made towards them, which were insulting. The behaviour and attitude of some employees towards them was not good. They were sarcastic towards them and they felt like they were personal attacks. This continued into 2013 when they needed to hire for a new position(s) and some people that did not qualify for the job and blamed the worker for not getting the job. During this time, they also felt attacked by other employees who indicated that they wanted to “get rid of them”. They recalled on two occasions in 2014, that their office was “ransacked” and their personal belongings (books, picture frames, and vase) were moved and knocked to the floor. In 2014, they also overheard employees talking about what they would do to them.
- The events from 2012, were hard to deal with but they were able to manage the events and “kept tolerating it”.
- RP, who is unrelated to the worker, would tell them what was going on around the office. They recalled in mid-August 2014, RP came to them and told them how dare they pair them up with two colleagues for work. During the conversation, RP became like a “wild animal”. The worker tried to calm RP down but it did not work. W3 came over and RP yelled at them.
- In mid-October 2014, there was a discussion on the second floor related to a closure of a file. RP barged into the conversation and indicated the file was theirs. As they were doing this, their facial expression became intense and they had a cup in her hand. RP was saying “don’t talk to me, don’t fucking talk to me”, as they went off on a tirade, with their fist clinched and yelling. They felt RP was doing this to get attention. RP ended up leaving. Other employees witnessed this incident. They recalled being in shock about RP’s behaviour on the second floor. They felt confused and disoriented following the incident. They recalled saying, “what just happened” and told people on the first floor that they were screamed at by RP.
- Not long after the incident on the second floor, RP came to the first floor and barged into their office (which was approximately 8’ x 10’) screaming “I want to talk to you”. RP threw a file on a desk, which was nearby and had a cup in their hand. The worker recalled telling RP to “please leave”, which made RP act out worse. RP was swearing and moving their hands up and down, and back and forth. They were swinging their arm, while they held a cup, their teeth and fists were clinched. Based on RP’s actions, they felt it necessary to get up out of their chair and move to the back of their office, as they did not feel comfortable sitting, while RP was acting in this manner. They felt that they were going to be attacked at any moment and felt trapped in their office. RP told them to “call security” to remove RP and indicated that they could “write (RP) up”. They recalled RP’s jaw was clinched and that they grabbed the handle of their office door, as though they were coming into the office. They were not screaming back at RP; however, they pleaded for RP to leave, as they were frightened. They may have used a higher tone when asking RP to leave. RP eventually left. Security was not called. The incident on the first floor lasted approximately 15 minutes. Other employees witnessed this incident. They were not physically harmed and were not verbally threatened; however, they felt frightened, threatened and in danger, due to the possibility being physically attacked.
- After the incident in October 2014 on the first floor, they were shaking and crying. They reported the incident to their Manager. They also went around to their staff asking if they were okay. They approached RP; however, RP said something under their breath, so they left. The Manager completed a form for the incident, and they sought help from the employer’s PACE program. They subsequently sought medical attention.
- After the incident, they were not emotionally well and have never been themselves since. The event haunts them. They have sleepless nights.
- They have seen Dr. Jones, Psychologist, and Dr. Connell, Psychiatrist, for their psychological conditions.
- They have lost time from work and received Canadian Pension Plan (CPP) disability benefits for their psychological condition.
- They recalled the employer investigated several allegations in the workplace and the investigation was completed by the Investigator.
Testimony of W1
W1 testified to the following related to the issues before me:
They started with the employer in 2004 and still work for the employer.
In 2013, the worker became their Supervisor.
They recalled the workplace environment around 2013 was very tense and toxic. People were not happy, they were angry. There was a divide between the employees on the team.
There was animosity who got jobs and who did not.
They spoke to W3 about an incident that occurred at work, which they did not witness. W3 told them that RP was in a rage and looked like a big gorilla. RP’s arms were out and fists clinched. Their chest was puffed out. W3 advised her that they could not believe how RP was acting and that it was not normal for a person to behave in this manner.
Testimony of W2
W2 testified to the following related to the issues before me:
- They have been a Facilitator for about 7 to 8 years.
- While on the team, they felt there were no issues that directly involved them; however, the team was very toxic, adversarial and combative. There was a lot of arguing and complaining on the team.
- They disclosed that they sustained a traumatic brain injury a few years ago and have residual memory issues.
- They recalled in mid-October 2014, RP talked to them about closing a file, which led to an argument between the worker and RP on the second floor. It was a very stressful situation and they had anxiety related to the situation, as they were new to the team. The argument with the worker and RP was not long lasting. They never saw anything like this occur in a workplace or with the employer. It was shocking to observe what happened. It was a loud heated argument. They do not recall the exact words that were used.
- They stated that after the incident on the second floor, they were on the phone with W3, (who sits on the first floor) and they could hear loud voices on the phone.
- They recalled being interviewed by the Investigator, who investigated the incident.
Testimony of W3
W3 testified to the following related to the issues before me:
- In April of 2013, they worked for the employer and the work environment was very toxic. They recalled during an April 2013 team meeting, staff members were very disrespectful towards the worker. There was a petition that circulated to try to get rid of the worker. There was also anger about hiring, as some people felt the hiring was not fair.
- They recalled speaking to the Investigator about the investigation of the August 2014 incident.
- They recalled vividly that in mid-August 2014, RP walked by their work pod and said they better call the worker and tell them RP was on her way down to the first floor. W3 explained that at the time, they could tell RP was angry by her demeanour. W3 went down to the first floor about 10 minutes later, as they were worried about the worker. When they saw RP, they noticed RP was angry and yelling. They tried to reach out to RP to calm them and reached for the top-back of their shoulder. This is when RP spun around with their arms up and fists clinched. W3 recalled that she was almost hit (a near miss) by RP. RP yelled three time at them to “leave me alone”. They had to back up as RP had their arms twisted down with their fists clinched, yelling, and screaming. Their eyes were “bugged out” and their teeth were clinched.
- W3 explained that RP’s actions reminded them of an angry orangutan. It was a scary situation. She never had this happen to her before and felt it was not a normal reaction to things. They stressed this type of behaviour should not be tolerated in the workplace. They never had anyone yell at them at work before. They said they were scared, shocked and upset at what occurred. They were scared that “something” would happen to them and/or the worker, such as being yelled at, hit or have something thrown at them. The worker witnessed the incident that occurred.
- In mid-October 2014, W3 remembered RP yelling at the worker on the second floor. W3 was about five pods away. The worker tried to calm RP down. When W3 heard what was going on they stood-up and watched. RP had a mug in their hand.
Testimony of W4
W4 testified to the following related to the issues before me:
- W4 joined the program in 2014 and the worker was their Supervisor at that time.
- They could not recall the August 2014 incident.
- They explained that in mid-October 2014, something happened on the second floor that carried over to the first floor. RP confronted the worker on the first floor and was very angry and loud. RP was screaming, cursing and using profanities. RP was talking with their arms and going off in a rage. W4 recalled the worker asked RP to leave and explained that a normal person would be worried about their safety given RP’s actions. RP’s demeanour showed they were angry. W4 never saw that side of RP; they were very “crazy” and irate. W4 indicated that they would not leave the worker alone with RP, as RP’s behaviour was “not normal anger behaviour”. W4 could not see RP’s facial expression, as RP was at the doorway with their back towards W4. The worker asked RP to leave and to take it up in the Manager’s office.
- W4 is familiar with the Ruby emergency line; it is there for emergency situations. W4 thinks they may have told one of their co-workers to hit the Ruby line, as they did not feel safe with the way RP was behaving and the environment did not feel right. W4 said people should not be left alone in that type of situation.
- The October 2014, incident on the first floor was intense for about five minutes. They did not hear any verbal threats. RP was at the office door entrance, which was a small office. It was RP who told the worker to call security.
Testimony of W5
W5 testified to the following related to the issues before me:
In 2012 or 2013, the worker became their Supervisor
The work atmosphere was toxic. People were talking behind other people’s back. It was very tense.
In mid-October 2014, they were on the first floor when RP approached the worker’s office angry. W5 could tell RP was angry by the way they were walking. Based on where they sit, W5 could not see into the worker’s office or RP. They recalled the worker telling RP to “go take a walk” and RP saying, “Write me up” and “What do you think I am going to do? Hurt you.” It was definitely loud enough to hear, as there was screaming involved. It certainly grabbed your attention. RP raised their voice, but W5 was not sure if the worker raised theirs.
W5 did not feel afraid or that there were safety issues.
They recalled RP using the “F” word once. They do not believe there was threats issued by RP.
RP’s behaviour was not typical behaviour of a normal person.
Testimony of W6
W6 testified to the following related to the issues before me:
They started working for the worker in April or May 2014.
She recalled the mid-October 2014 incident, as they sat outside of the worker’s office and could see into the office. RP raised their voice and approached the worker. RP was frustrated and upset. They were louder than just a talking voice. RP’s actions caught W6’s attention along with other people around. RP was swearing, yelling “go ahead and call security” and was very upset. RP was possibly hand talking (waiving hands up and down). The worker had a calm voice during the incident.
W6 could not recall several aspects of the October 2014 incident. They thought there were three employees present. W6 stated they asked the worker if they were okay after the incident.
W6 felt awkward and just stayed at their desk. There was no act of violence or threats of violence. There may have been a file that was thrown down on a desk. The whole interaction was less than 30 minutes, but they could not recall the exact length of the interaction.
W6 did not think to use the Ruby line, as they were not concerned for their own safety.
The incident was very uncomfortable and not a normal thing to happen in a workplace with colleagues.
Testimony of W7
W7 testified to the following related to the issues before me:
The employer contracted them in 2013. They owned a feedback and coaching company at the time.
They delivered feedback related to a survey and provided coaching services to the employer and the worker.
They were not interviewed related to any workplace incidents.
Coaching is not a regulated profession in Ontario.
Testimony of W8
W8 testified to the following related to the issues before me:
They are an employment Lawyer, who have been practicing law for 16 years.
W8 was retained by the employer to investigate complaints of harassment in the workplace.
They explained the process of investigations and indicated that they performed many investigations over the course of his career.
To determine if harassment has occurred in the workplace, they use the company policy on harassment along with the Occupational Health and Safety Act.
W8’s investigation of the mid-October 2014 incident resulted in a finding that RP acted inappropriate by yelling and swearing in the workplace and that their actions amounted to workplace harassment. W8 also found that there was no threat or act of violence in October 2014 towards the worker.
There was no gap between the employer’s harassment policy and the Occupational Health and Safety Act, as the policy adopted the definition from the Occupational Health and Safety Act.
AUTHORITY
Section 33 (3) of the Workplace Safety and Insurance Act, 1997 (the Act).
Operational Policy Manual:
Published
15-03-02 Traumatic Mental Stress
15-03-14 Chronic Mental Stress
17-02-03 Payment of Clinical Assessments/Reports Request for Adjudication
October 12, 2004
January 2, 2018
January 3, 2007
ANALYSIS
I have carefully considered all of the available information, the testimonies of the worker and witnesses, and the relevant operational policies in reaching this decision.
1. TMS
I find the worker is not entitled to WSIB benefits for TMS. The reasons for my decision follow.
Operational Policy 15-03-02 states in part:
A worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s 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 (my emphasis added). 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.
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).
In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the traumatic event(s), or the cumulative effect of a series of traumatic events,
arose out of and in the course of the worker’s employment, and
caused, or significantly contributed to, an appropriately diagnosed mental stress injury.
Before any traumatic mental stress claim can be adjudicated, 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.
In most cases the WSIB will accept the claim for adjudication if an appropriate regulated health care professional provides the DSM diagnosis.
Operational Policy 15-03-02 is specific and states that before any TMS claim can be adjudicated; there must be a diagnosis in accordance with the DSM. A review of the medical information contained in the file reveals:
Dr. Arora completed the Health Professional’s Report (Form 8) dated December 23, 2014 and indicated on October 16, 2014, the worker was bullied and harassed by co-workers. Based on the assessment, the worker was diagnosed with posttraumatic stress disorder (PTSD).
The worker was assessed by Dr. Jones, Psychologist, on December 15, 2014 and was diagnosed with PTSD. Dr. Jones noted that although the worker had been able to cope with many years of cumulative discrimination and harassment in the workplace, they reached a point during the October 2014 incident, where their cognitive capacity appeared to become overwhelmed and they were no longer able to cope.
Dr. Jones completed the Service Canada Medical Report dated September 21, 2015 and diagnosed the worker with PTSD.
The worker was seen by Dr. Gerber, Psychiatrist, who completed a 45-page report; however, only pages 33 to 44 are contained in the file. It is unclear what the date of the report is; however, there is a hand written date on page 34 of the report that states November 3, 2016. Based on the assessment, the worker was diagnosed with PTSD, with the 2014 incident with RP being a major stressor, given the fact the worker felt so physically threatened. It was noted that this incident that was the “last straw that broke the camel’s back” emotionally for the worker.
The worker was assessed by Dr. Connell in January of 2017 and diagnosed with PTSD. Dr. Connell’s report dated October 31, 2018 noted the worker continued to be seen for her PTSD.
As the worker was diagnosed with PTSD related to the mid-October 2014 incident by Dr. Arora, Dr. Jones, Dr. Gerber, and Dr. Connell, I find the worker meets the threshold requirement of a diagnosed DSM mental disorder in relation to the mid-October 2014 incident.
The worker submitted a claim for TMS and mentioned a series of events that occurred between 2012 and mid-October 2014. Based on the reported events prior to mid-October 2014, I find no evidence of a traumatic event, as I find the incidents reported by the worker and witnesses did not involve a criminal act or a horrific accident. The events also did not involve any form of physical violence or threats of physical violence against the worker, a co-worker or a member of the worker’s family, or a life-threatening or potentially life-threatening situation. As such, I find the events were not objectively traumatic.
With respect to the mid-October 2014 incident, which I find is clearly and precisely identifiable based on the available evidence, I acknowledge the worker felt threatened and was frightened at the time of the incident based on the behaviour and physical demeanor of RP; however, the worker’s response needs to be weighed against an objective, not subjective assessment of the event(s). I do not doubt the genuineness of the worker’s reaction to the events that occurred in mid-October 2014, but the worker’s reaction is not the standard by which an objectively traumatic event is judged. While the worker may have had a strong reaction to the events, that does not make the events objectively traumatic. The standard needed to achieve TMS entitlement requires some magnitude of severity that can be objectively seen as being traumatic, which includes physical violence or threats of physical violence, or life threatening or potentially life threatening situations.
Based on my assessment of the evidence, I accept that RP demanded the worker to call security on them; however, the context of the demand is unknown, as this could be interpreted in different ways. In my assessment of the evidence, I find the statement does not amount to a death threat or a threat of physical violence. With respect the mid-October 2014 incidents on the second and first floor and the evidence provided by the worker and witnesses, I find no evidence that an actual threat of death or harm was made by RP or that the incidents involved any physical violence.
Based on my assessment of the evidence related to the events in mid-October 2014, I find no evidence of any workplace situation that included a specific threat of physical harm that was directed towards the worker or any situation where the worker’s life was threatened. There is also no evidence of any physical violence. As such, I find the standard for an objectively traumatic event as outlined in the TMS policy has not been met in this claim. Thus, the criteria for entitlement to TMS have not been met. Therefore, entitlement for TMS is denied.
2. CMS
I find the worker is entitled to WSIB benefits for CMS. The reasons for my decision follow.
Operational Policy 15-03-14 related to CMS state that for entitlement to be considered for CMS, there must be a diagnosis in accordance with the DSM which may include, but is not limited to,
- acute stress disorder
- posttraumatic stress disorder
- adjustment disorder, or
- an anxiety or depressive disorder.
As the worker was diagnosed with PTSD related to the October 16, 2014 incident, I find the worker meets the threshold requirement of a diagnosed DSM mental disorder in relation to the October 16, 2014 incident.
The Operational Policy 15-03-14 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.
The policy 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 (my emphasis added) .
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.
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 entitlement to CMS to be granted, there must be an appropriately diagnosed mental stress injury, which 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 defines a substantial work-related stressor as being “…excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. Workplace harassment will generally be considered a substantial work-related stressor.”
The policy 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.
I recognize that there is no dispute that the mid-October 2014 incidents that involved RP and the worker on the second and first floor occurred. Based on the information before me, I find the incidents in mid-October 2014 have been confirmed through the available evidence.
The evidence in the file shows that in mid-August 2014, RP was irritated and yelled at several people including W2, W3 and the worker. I accept that in mid-August 2014, the worker witnessed RP in an irritated mood, in which they snapped at W3, when W3 approached them during a discussion they were having with the worker.
The evidence related to the mid-October 2014 incidents reveals:
A discussion occurred in mid-October 2014 between RP and the worker, where RP raised their voice at the worker.
Following the October 2014 incident on the second floor, RP angrily charged toward the worker’s office on the first floor.
When RP got to the worker’s office, they stood at the doorway (the only entrance and exit point of the office) and were raising their voice, yelling, swearing (at least on one occasion) and talking with their arms (moving their arms up and down and/or side to side).
Despite the worker asking RP to leave, they refused to leave and RP told the worker to call security on them.
The incident on the first floor lasted anywhere between 5 and 30 minutes, as reported by the worker and witnesses.
I note the employer’s policy on Workplace Harassment Prevention dated August 1992 and revised on June 2014, states in part “unlawful discrimination and workplace harassment means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought to be known to be unwelcomed.”
I recognize that the Investigator’s investigation into the complaints filed by the worker against RP resulted in the finding that RP acted inappropriately in October 2014, by raising their voice at the worker during the initial discussion on the second floor. However, RP’s subsequent decision to charge into the worker’s office, yell and swear at them constitutes harassment as defined by the employer’s harassment policy. I also recognize that the employer’s representative accepts that the actions of RP in mid-October 2014 resulted in workplace harassment against the worker, and that RP’s actions and manners were not welcomed by the worker. Moreover, RP went overboard and the witnesses on the first floor were alarmed by their actions.
Based on the information contained in the file including the worker’s and witnesses’ sworn testimonies, I accept that RP acted inappropriately in mid-October 2014 during the interactions with the worker on the second and first floor. I also accept RP angrily charged the worker’s office on the first floor and went on to yell and swear at the worker. I accept that the outward behaviour of RP was aggressive, rude and inconsiderate. In my analysis of the available evidence, I am satisfied that the actions of RP in mid-October 2014 amounts to workplace harassment, as I find RP’s conduct against the worker is known to be unwelcomed in the workplace. This is evidenced by the testimonies of W4 and W5, who both indicated that based on RP’s actions, a normal person would be worried and/or that RP’s behaviour was not typical of a normal person.
I understand that there may be disputes at a workplace and that some of those disputes may get heated. However, based on RP’s demeanour and actions in mid-October 2014, which drew the attention of many co-worker’s in the vicinity of the incidents, RP’s yelling/screaming and swearing along with the duration and intensity of the incident, which was reported to be between 5 and 30 minutes, I find the mid-October 2014 incidents are well beyond a normal interpersonal conflict and/or activities that occur in a workplace and that RP’s conduct in mid-October 2014 was extremely egregious. As such, I find the conduct of RP in mid-October 2014 constitutes workplace harassment. Thus, I am in agreement with the employer representative’s submission that the actions of RP in mid-October 2014 resulted in workplace harassment against the worker.
The employer’s representative submits that Operational Policy 15-03-14 states “workplace harassment will generally be considered a substantial work-related stressor” and that in this case the workplace harassment did not amount to substantial work-related stressor for the worker for the following reasons:
The department in which the worker worked dealt with clients that could get frustrated and irritated and employees are given access to the Ruby line;
The working staff at the employer were provided training on how to deal with irate clients/customers;
The Ruby line was not used and security was called in mid-October 2014; and
The incident on the second floor involving RP was not excessive in duration.
I recognize the employer’s representative submits that in this case the workplace harassment against the worker was not a substantial work-related stressor; however, I do not agree. First, it is unclear what specific training the worker received when dealing with irate and frustrated customers. Second, the witnesses testified that RP’s actions were not typical and normal behaviour of a normal person and the behaviour was noted by W4 as “not normal anger behaviour”, meaning that RP’s behaviour was beyond a normal level of anger. Third, W4 testified to having a genuine concern for the worker’s safety, as they stated “I would not leave a worker alone” in that situation. Fourth, the duration of the incident was reported as being between 5 and 30 minutes, which even at the low point (if it was 5 minutes), would be excessive in duration, based on the intensity of the situation. Lastly, based on the incident, the worker became scared, shaky and very emotional, to the point they had to seek immediate help from the employer’s PACE program. As such, I find the workplace harassment on October 16, 2014, was a substantial work-related stressor for the worker, as I am satisfied that the incident was excessive in intensity and duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
Noting the worker was diagnosed with PTSD related to the mid-October 2014 incidents and that there is no evidence that the worker had any chronic mental illness prior to October 2014, I find the worker’s diagnosed PTSD arose out of and in the course of their employment and that the mid-October 2014 incidents involving RP, specifically the incident that occurred on the first floor was the predominant cause of the worker’s diagnosed PTSD. As such, I accept the worker meets the criteria for entitlement under the CMS policy. Thus, entitlement for PTSD under the CMS policy is allowed.
- Reimbursement of the costs for Dr. Connell’s July 25, 2017 report for $XXXX.XX and October 31, 2018 report for $XXX.XX.
I find the worker is entitled to the reimbursement of cost of Dr. Connell’s July 25, 2017 report in accordance with the WSIB’s established 2017 fee schedule for health professional reports. There is no entitlement for the reimbursement of the cost for Dr. Connell’s October 31, 2018 report. The reasons for my decision follow.
Operational Policy 17-02-03 states in part:
The WSIB pays for requested clinical assessments or reports used solely to adjudicate claims. These assessments/reports are considered benefit expenses.
The WSIB pays the costs of clinical assessments used to adjudicate claims. This includes payment for assessments used for health care or return-to-work purposes.
If the WSIB receives reports not specifically requested, payment is made only if the information submitted is necessary and/or useful for making a decision. If the report repeats information already on file or, if it contains information that is of no value to the adjudicative process, no payment is made.
I note that Dr. Connell’s July 25, 2017 and October 31, 2018 reports were not specifically request by the WSIB and were requested and submitted by the worker’s representative.
With respect to the July 25, 2017 medical report, I note the medical report is related the worker’s representative requesting a psychiatric opinion as to whether the worker meets the WSIB criteria in policy 15-03-02. The report provides a detailed background of the worker; the mid-October 2014 incidents, a summarization of the medical to the date along with the worker’s testing results related to the evaluation of PTSD. The report provides Dr. Connell’s psychiatric findings and opinion. While, I recognize that at the time of Dr. Connell’s July 25, 2017 report, there were medical opinions contained in the record from Dr. Arora (General Practitioner) and Dr. Jones (Psychologist), I find that Dr. Connell’s July 25, 2017 report was useful in making my decision and contributed to the better medical understanding of the worker’s psychological condition, noting that Dr. Connell was the worker’s treating Psychiatrist from January 24, 2017.
As Section 33 (3) of the Workplace Safety and Insurance Act states the Board may establish fee schedules for health care as it considers appropriate and there is a WSIB fees schedule for health professional reports, I find the worker is entitled to the reimbursement of the costs for Dr. Connells’ report dated July 25, 2017 based on the WSIB’s 2017 fee schedule for health professional reports.
Turning to Dr. Connell’s October 31, 2018 report, I note the medical report is related the worker’s representative requesting a psychiatric opinion as to whether the worker meets the WSIB criteria in policy 15-03-14. A review of the report failed to provide any useful information in determining entitlement in this claim, as the report is a summary of information already contained in the file and Dr. Connell’s solicited opinion related to the facts of the case and his interpretation of policy 15-03-14. Thus, I find the report is not necessary and/or useful in making my decision in this claim. As such, entitlement for the reimbursement of the cost of Dr. Connell’s October 31, 2018 report is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude:
Entitlement for Traumatic Mental Stress is denied.
Entitlement for posttraumatic stress disorder under the Chronic Mental Stress policy is allowed.
3. The worker is entitled to the reimbursement of the cost for Dr. Connell’s July 25, 2017 medical report, in accordance with the WSIB’s established 2017 fee schedule for health professional reports. Entitlement for the reimbursement of the cost of Dr. Connell’s October 31, 2018 report is denied
The worker’s objection is allowed in part.
DATED August 12, 2021
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division