Worker v. Employer, 2021 CanLII 65112

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20210001

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer (Not Participating)

HEARING: January 26, 2021 via Video Conference

HEARD by: Stephen Crisostomo, Appeals Resolution Officer

DATED: February 4, 2021

ISSUES

The worker objects to the Case Manager’s decision dated July 19, 2019, which:

1. Denied entitlement for Traumatic Mental Stress (TMS).

2. Denied entitlement for Chronic Mental Stress (CMS).

BACKGROUND

On March 22, 2019, the worker, a then 34-year-old Carpenter, completed the Worker’s Report of Injury (Form 6) and indicated the employer began a campaign of bullying when they found out that he was supporting a unionization attempt of the employer and tensions came to a head on March 21, 2019. The worker stated that following mentioning a safety violation on March 21, 2019, he ended up being threatened by the Project Manager/Owner and shoved and yelled at by a co-worker. As a result of the safety violation, and the incident with the co-worker and Project Manager, the worker contacted both the Ministry of Labour (MOL) and the police. The worker indicated that he sought medical attention on March 22, 2019 and was off work as of March 22, 2019.

There is no Employer’s Report of Injury (Form 7) contained in the file; however, on April 3, 2019 the Case Manager spoke to Project Manager/Owner and obtained the following information:

• XXXX is not his legal name.
• The worker was trying to unionize the job site and some workers did not like that. It caused a source of conflict in the workplace.
• Things heated up on March 21, 2019 and profanities were used. There was no physical contact, no shoving and no threats made by anyone.

The worker sought medical attention on March 22, 2019. The Health Professional’s Report (Form 8) dated March 22, 2019 completed by Dr. Wolnik, Family Doctor, diagnosed the worker with anxiety due to workplace bulling followed by threats and an assault on March 21, 2019.

The Form 8 completed by Dr. Bedard, Family Doctor, on April 2, 2019, diagnosed the worker with posttraumatic stress disorder (PTSD) related to an assault by a co-worker and threats by the owner on March 21, 2019.

Entitlement for TMS and CMS was reviewed in July of 2019. Based on the review, the Case Manager denied entitlement to both TMS and CMS on the basis he was unable to confirm that there was any actual or threat of death or serious harm made against the worker and that the incident on March 21, 2019 was not egregious or abusive in nature. This decision was communicated on July 19, 2019.

The worker was seen by Dr. Federici, Psychologist, on October 7, 2019 and October 19, 2019 for a clinical assessment. Based on the assessment, Dr. Federici noted the worker experienced trauma and some PTSD symptoms prior to 2019; however, he met the full diagnostic criteria as a result of the March 21, 2019 incident at the employer.

Based on new information submitted to the file, the July 19, 2019 decision was reconsidered and upheld on December 3, 2019.

The worker objected to the July 19, 2019 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker Representative’s Position

The worker’s representative submits:

• The series of events as document in the file and testified to by the worker amount to workplace harassment.
• The March 21, 2019 incident was traumatic, as the worker was subject to threats of physical violence against himself and his family.
• The evidence in the file shows that on March 21, 2019 the worker’s co-worker was aggressive as seen in text messages between to the worker and the employer. The co-worker was suspended following the incident.
• The incident on March 21, 2019 was beyond the normal activities that occur on a construction site.
• The worker’s psychological condition could have resulted from the cumulative effects from events since 2012.
• The worker’s diagnosed PTSD resulted from the March 21, 2019 incident.

Worker’s Testimony

The worker testified to the following related to the issues before me:

• In 2012, he was working in construction. One day, there was a mechanical failure with a crane and a form narrowly missed him. He wanted to file a Near Miss Report but was told to shut up and keep working. One to two days later, he had an increase in anxiety due to the mechanical failure and had to leave work. This incident was not reported to the Workplace Safety and Insurance Board (WSIB).
• From 2014 to 2017, he worked in the construction industry in another province, where he had another near miss incident, when a bag of concrete fell and just missed hitting him.
• In November of 2018, he started working for the employer. The employer was not very good with health and safety measures. There was broken equipment, communication barriers and employees lacked training at the worksite.
• While trying to bring a Union to the worksite, he reported a co-worker threatened to let the air of his tires and another time he was yelled at. He indicated that on several occasions he was told not to come to work and/or was asked to leave early, which he felt was due to trying to getting the Union into the worksite.
• On March 21, 2019, his co-worker T was using a Zoom Boom and was lifting a heavy load over another worker’s head. He asked for proof of co-worker T’s licence to operate the machine and co-worker T became aggressive and said that the Project Manager/Owner had his licence and that he should talk to the Project Manager/Owner. He called the Project Manager/Owner, who showed up 20 minutes later. The Project Manager/Owner aggressively approached him and asked, “Why are you doing this?” The Project/Manager was puffing his chest out, as he aggressively approached him. He felt the Project Manager/Owner was trying to intimidate him. He wanted to file a Near Miss Report but the Project Manager/Owner refused and said maybe at the end of day. Soon after, co-worker T approached them and came in between himself and the Project Manager/Owner. Co-worker T shoved/pushed him a few times and poked his finger into his chest. Co-worker T was also yelling at him in English and a foreign language. Co-worker T called him a “women-man” and other words in a foreign language, which he believes translated to “fucking bitch”; however, he is not sure what was fully said by co-worker T. He felt intimidated by co-worker T who is six feet tall, wide and muscular, with a military background. He stated he is five feet seven inches tall. While this was happening for several minutes, the Project Manager/Owner was standing back, smiling and allowing this to happen. He indicated that he did not yell, push or swear at co-worker T. The MOL was called in front of the Project Manager/Owner and that is when the Project Manager/Owner told him that there was going to be consequence for his actions. He asked the Project Manager/Owner what was meant by the statement, but the Project Manager/Owner did not clarify. He felt that based on what was going on, that the Project Manager/Owner’s comment was a threat against him.
• There was no physical contact between the Project Manager/Owner and himself. The physical contact came from co-worker T, who pushed him and poked him with his finger into his chest.
• Following the incident with co-worker T and the Project Manager/Owner, he became scared for his life as he felt the Project Manager/Owner and some co-workers at the worksite were “mob like” people. He spoke to the Safety Officer after the incident, who asked if he was okay and indicated that the incident “looked intense”.
• He reported the March 21, 2019 incident to both the MOL and the police.
• On March 22, 2019, he was going to go to work but ended up going to see a doctor for his symptoms. He felt unsafe, had heightened anxiety and his heart was beating very fast.
• He was told by the Project Manager/Owner via text message that co-worker T was suspended on March 22, 2019 due to his actions on March 21, 2019.
• For safety, he installed cameras at his home that weekend, as he was scared that something may come out of the March 21, 2019 incident.
• He was off work until February of 2020, when he returned to work and performed rural internet installation. He remains employed in this field of work; however, is off work due to COVID-19 restrictions.
• He still has ongoing psychological issues from the March 21, 2019 incident. Even though he did deal with anxiety issues in the past, the March 21, 2019 caused something to “snap and brake”.
• He explained that at times on a construction site there could be heated interactions but not to the level of the March 21, 2019 incident. This type of action is not acceptable in the workplace.

AUTHORITY

Operational Policies:

15-03-02 Traumatic Mental Stress

15-03-14 Chronic Mental Stress

ANALYSIS

I have carefully considered all of the available information, the worker’s testimony and the relevant operational policies in reaching this decision.

A review of the file reveals:

• The worker provided a summary of events that occurred from January 2019 to March 21, 2019.
• The March 22, 2019 Police Service General Report noted that on March 21, 2019 at approximately 7:28 pm the worker was contacted in regards to an assault, which occurred at work on March 21, 2019. The worker explained that there was tension in the workplace as they were attempting to bring in the Union and the owner was not happy. The worker also explained that on March 21, 2019, he wanted to file a Near Miss Report; however, the employer refused and that he contacted the MOL. The Project Manager/Owner attended the site and told the worker “there would be consequence to his action”, which the worker took as a threat. The co-worker pushed him during this altercation. No charges were pursued by the worker.
• The MOL report dated March 27, 2019 noted that they were investigating a report from the worker being involved in a workplace violence incident with a co-worker and that an argument occurred over the co-worker using a piece of equipment he was not licenced to operate.
• Text messages between the worker and the Project Manager/Owner dated March 22, 2019 shows that the co-worker was suspended for what occurred on March 21, 2019 and that the Project Manager/Owner spoke to the co-worker about his action. The Project Manager/Owner confirmed that he did not threaten the worker and apologized if the worker took what he said as a threat. The Project Manager/Owner advised that he could not interact with the co-worker while he “was being aggressive” on March 19, 2019, but they did talk later.
• The Case Manager spoke to the Project Manager/Owner on April 3, 2019 who confirmed that things got heated and profanities were used on March 21, 2019, but no physical contact, shoving or threats were made by the co-worker or himself.
• A Workplace Safety and Insurance Board (WSIB) Investigator interviewed another co-worker (B) who advised that co-worker T and the worker were exchanging words back and forth for a couple of minutes. The co-worker (B) did not see any violence and did not hear any threats. After the incident, the worker spoke to the co-worker (B) and told him that he was poked in the chest by co-the co-worker T.
• The worker sought medical attention on March 22, 2019. The Health Professional’s (Form 8) dated March 22, 2019 diagnosed the worker with anxiety due to workplace bulling followed by threats and an assault on March 21, 2019.
• The worker was seen by Dr. Wolnik, Dr. Bedard and Dr. Federici between March 22, 2019 and October 7, 2019. The worker was diagnosed by Dr. Wolnik with anxiety, while Dr. Bedard and Dr. Federici both diagnosed the worker with PTSD.

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:

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 that on April 2, 2019 and October 7, 2019, the worker was diagnosed with PTSD by Dr. Bedard and Dr. Federici related to the March 21, 2019 incident. As the worker was diagnosed with PTSD related to the March 21, 2019 incident, I find the worker meets the threshold requirement of a diagnosed DSM mental disorder in relation to the March 21, 2019 incident

The worker submitted a claim for TMS and mentioned a series of events that occurred between 2012 and March 21, 2019. The first event occurred in 2012, when a near miss incident occurred at work involving a crane. Other incidents occurred while employed with the employer including but not limited to: two co-workers jokingly threatened to “let the air out of his tires”, the worker being sent home early from work, the worker told not to report to work and the employer telling other worker’s that the worker does not know how to build a bulk head. Based on my review of the events from 2012 to March 20, 2019, I find no evidence of a traumatic event, as I find the events reported by the worker 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.

With respect to the March 21, 2019 incident, while I acknowledge the worker felt threatened and was frightened at the time of the March 21, 2019 incident, his response needs to be weighed against an objective, not subjective, assessment of the event. I do not doubt the genuineness of the worker’s reaction to the events that occurred on March 21, 2019, but his reaction is not the standard by which an objectively traumatic event is judged. While the worker may have had a strong reaction to the event, that does not make it an objectively traumatic one. The standard needed to achieve TMS entitlement requires some magnitude of severity that can be objectively seen as being traumatic and that traumatic events include physical violence or threats of physical violence, and life threatening or potentially life threatening situations.

I accepted that during the March 21, 2019 incident, the worker was likely told by the Project Manager/Owner that there would be consequences to his actions; however, while the worker felt this implied a threat of harm, I find the statement does not amount to a death threat or a threat of physical violence. With respect the worker’s interaction with co-worker T, I find no evidence of an actual threat of death or harm was made by co-worker T. While I accept the worker was likely poked in the chest by co-worker T during the incident, I find no corroborating evidence that the worker was pushed during the altercation, as there is conflicting information contained in the file that pushing was involved during the March 21, 2019 altercation. Thus, I find the altercation between the worker and co-worker T did not involve physical violence.

Based on my assessment of the evidence related to the March 21, 2019 incident, 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 met in his claim. 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 with PTSD by Dr. Bedard and Dr. Federici, I find the threshold requirement of having a diagnosed DSM mental disorder has been met.

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.

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.

Based on the evidence in the file, including the statements provided by the worker, the Project Manager, the co-workers interviewed along with the MOL and police reports contained in the file, I find the March 21, 2019 incident has been confirmed through the available evidence.

A review of the March 21, 2019 incident reveals:

• While the worker was talking to the Project Manager/Owner, they were approached by co-worker T who was being aggressive, as testified to by the worker and confirmed by text message from the Project Manager/Owner.
• The encounter was heated and profanities were used.
• The worker was poked in the chest by co-worker T as evidence by the worker’s reporting to a co-worker immediately after the incident.
• The altercation was at least a couple of minutes in length.
• During the altercation, the Project Manager/Owner stated he was uncomfortable interacting with co-worker T, as he was being aggressive and decided to speak to co-worker T after the altercation, as evidenced by the Project Manager/Owner’s text message dated March 22, 2019.
• Co-worker T was suspended for his action on March 21, 2019.

Based on the information contained in the file including the worker’s sworn testimony, I accept that co-worker T used profanities during the altercation on March 21, 2019, which were offensive to the worker. I also accept the worker was poked in the chest by co-worker T during the altercation. In my analysis of the available evidence, I am satisfied that the actions of co-worker T during the March 21, 2019 altercation amount to workplace harassment, as I find co-worker T’s comments towards the worker were vexatious and his conduct towards the worker was known or ought to be known as unwelcoming. While I understand that there may be disputes on a worksite and that some of those disputes may get heated, based on co-worker T’s aggressiveness on March 21, 2019, which even made the Project Manager/Owner not want to intervene, the profanities he used, the poking of his finger into the worker’s chest, and the duration and intensity of the altercation, I find the altercation was well beyond a normal interpersonal conflict and/or activities that occur on a construction site, and that co-worker T’s actions amount to workplace harassment. In addition to the above, I am satisfied that a reasonable person would perceived co-worker T’s conduct on March 21, 2019, as being extremely egregious, and it was this egregious behaviour that was likely the cause of the employer suspending him.

Based on my assessment of the available evidence, I accept that following the incident on March 21, 2019, the worker became scared for his life as he felt the statement from the Project Manager/Owner related to consequences, and the actions and aggressiveness by co-worker T were intimating and could have implied future dangers.

Noting the worker was diagnosed with PTSD related to the March 21, 2019 incident, I find the worker’s PTSD arose out of and in the course of his employment and that, the March 21, 2019 incident was the predominant cause of his 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.

CONCLUSION

Based on the evidence outlined in this decision, I conclude:

1. The worker is not entitled to WSIB benefits for Traumatic Mental Stress.
2. Entitlement for posttraumatic stress disorder under the Chronic Mental Stress policy is allowed.

The worker’s objection is allowed.

DATED February 4, 2021

S. Crisostomo Appeals Resolution Officer Appeals Services