The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

As stated above, the issue before this panel is claim acceptability. Essentially it is for this panel to decide whether the worker suffered a workplace accident in accordance with subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”).

The determination of this issue in the context of this particular case hinges on credibility. Put simply, it is for this panel to decide whether the worker’s allegations are, on a balance of probabilities, believable. This is so because the worker alleges she was stabbed by a co-worker and the co-worker denies it.

After reviewing, comparing and weighing all of the evidence before us, this panel finds, on a balance of probabilities, that the stabbing incident did not take place on February 3, 2004 as alleged, and as a result that the worker did not suffer a workplace accident as contemplated by the above-referenced sections of the Act. Our reasons for this finding follow.

The Background

The worker has worked as a laboratory technologist for over 30 years. Her job consists in part in preparing tissue samples for analysis. To do this, several tools are used, and in particular, an approximately 4-5 inch dissecting needle with a three inch long needle. At the relevant time, the worker worked in the laboratory with a co-worker, her supervisor and a medical director. The co-worker worked part-time as an administrative assistant and since about November 2002, part-time as a technician. Since taking on this additional part-time work, the co-worker was training under the supervision of the worker.

It is no secret that the worker and the co-worker did not get along. There were frequent outbursts and a considerable amount of tension.

On the morning of February 3, 2004 a fine needle aspiration (“FNA”) needed to be processed. As the co-worker did her part-time technician work in the mornings, she began processing it and also worked at embedding some moulds into a tray. To do this latter work, she was stationed under a fume hood working with a dissecting needle. Shortly after 12 p.m. the worker approached her as she wanted to do her work under that same fume hood. The co-worker would not leave and an argument ensued. What happened during this argument is in dispute. A review of the evidence before this panel illustrates the degree to which that evidence is in dispute.

The WCB Claim and Investigation

On Thursday February 12, 2004 the worker filed a claim with the WCB for psychological injury arising out of an incident that she alleged occurred at work on Tuesday, February 3, 2004:

“At about 12:05 p.m. I came to the fume hood and told [the co-worker] that I would take over now and she should go for lunch. She refused to do so, she wanted to finish what she was doing. I told her I needed the fume hood now (because I had to stain some grids & continue on the FNA), after some screaming and ranting, she pushed me away “Get out of my way” while holding 2 dissecting needles, a pair of forceps and 1 or 2 pencils with the pointed ends toward my arm. One of the needles punctured my skin and drew blood. I told her “you stabbed me” she did not say anything about that, but continued raving and screaming, that she needed respect etc...No witnesses that I know of for sure, but the [medical director] might have overheard something while he was having lunch.”

In a conversation to the WCB case manager she explained further:

“She advised that she has not returned to work because she is afraid for her life. She feels that her co-worker is mentally disturbed and she cannot work with this individual any longer. She indicates that her co-worker deliberately pushed her and stabbed her with the needle. Her co-worker has been harassing her for a number of months and she cannot return to the workplace in that condition. She confirms that at the time of the needlestick injury, she did draw a little bit of blood…She admits that she did not follow any protocol because she figured that it was not a dirty needle and she was in too much shock to really even think about it. She did not show her supervisor at the time and maybe she should have. She did not follow-up with the doctor immediately because she was in too much shock. When she did show someone the needle entry point, it had healed over because she is a quick healer…”

The WCB case manager spoke to several people who might have some knowledge about this incident, including the employee relations manager, the co-worker and the supervisor.

The employee relations manager told the WCB case manager that she was still in the process of investigating the matter. She did offer however that the worker had been employed for 30 years and was well aware of needlestick injuries protocol which she did not follow in this instance. She advised that the worker “can speak her mind at times and is very opinionated”.

The co-worker’s version of the incident was as follows:

“She finds that [the worker] can be pushy and very opinionated. They have had their words and [the co-worker] does not like being treated the way that [the worker] treats her. Also, [the worker] holds grudges and doesn’t let things go.

…at around 12 Noon, [the worker] came up to her and told her it was time to leave. [The co-worker] told her she had about ten minutes more of work and if she would like, she could do something else around the area. She did have a [dissecting needle] in her hand…[The worker] was standing behind her and telling her to get out. She kept repeating to get out and was in her space. [The co-worker] turned around and nicely told her that she needs to move as she is in her way and she will clean up and get out of the way. [The co-worker] admits that she does use her hands to talk on a fair number of occasions and did have the [dissecting needle] in her hand. However, when [the worker] said “don’t poke me with that” or something along those lines, [the co-worker] put the [dissecting needle] into a beaker like she usually does. In the beaker there are other things like pencils, tweezers, and dissecting needles. At no time did she poke or stick [the worker] with a needle. In fact, she remembers saying that she would never stick her with the needle or do any sort of harm in the way. She eventually cleaned up and left and went into the lunchroom where [the medical director] was.”

The supervisor provided the following information:

“[The worker] is the type that holds onto a situation and continues to be angry and upset about even small little things. She makes a scene for every little thing that happens…[the co-worker] was a technician and not a technologist. However, she started taking on some of the duties that [the worker] did. [The worker] did not like the fact that a technician was doing a technologist’s work and she was constantly bullying and abusing [the co-worker] about everything. On the day in question (February 3, 2004) [the worker] was about to take lunch…[The co-worker] was still working in the area that [the worker] wanted to take her lunch in. It is a big enough area, but [the worker] demanded that she leave the work area. [The co-worker] is not the kind of person that backs down from [the worker] and she didn’t put up with her comments. She retaliated back and advised [the worker] that she would finish what she was doing and then get out of her way. [The worker] did not like what she had said and was in her face. [The co-worker] was using a fine needle at the time and was making hand gestures. She was just making hand gestures about the fact that she would finish her work and get out of her way. It was [the worker] that was demanding and being the aggressor. [The worker] was right up against [the co-worker] and gave her no room to move.

He overheard everything and it was no different than any other time that [the worker] was getting after [the co-worker]. She is very confrontational. He took it as just another confrontation that [the worker] was getting into, so he decided to go for his lunch…Prior to leaving for lunch, he never heard anything about [the co-worker] poking or stabbing [the worker] with a needle. They were just having a confrontation. When he returned from lunch, [the worker] immediately came up to him and casually mentioned that she was poked with a needle. She never even gave him an opportunity to ask exactly where she was poked or if he could see the wound because she went on venting about [the co-worker] and the fact that she is never to be in the area when she is having her lunch. She went on about other things for about five to ten minutes. She only mentioned briefly the one time at the beginning of the conversation that she was poked or stabbed with a needle…She made no suggestions that the alleged needle poke was bothering her. She showed no signs or symptoms. She was not holding the wound or medicating it. [The worker]…knows very well that if she gets poked with a needle she is to fill out an incident report. She did no such thing.”

The Medical Reports

The worker first sought medical treatment after the February 3, 2004 incident on February 9, 2004. She told her family physician that she had been deliberately pushed and stabbed with a dissecting needle and had bled. She complained of increased stress and insomnia. Her family physician could not see any signs of a puncture wound but did send the worker for HIV and Hepatitis C screening tests. She prescribed an anti-anxiety medication and counselling with employee assistance.

The worker saw the employee assistance counsellor on February 14, 2004 complaining of nightmares, being sick to her stomach at the thought of being in the same room as the co-worker and presenting in a very nervous and anxious manner. She underwent twenty-two sessions of therapy and was discharged in September 2005.

The family physician found that by the summer of 2004 the worker’s mood was good and she was willing to go back to work, though she was still very distressed at the thought of the incident and very frightened at the thought of having to work in the same room as the co-worker.

By January 2005 the worker’s symptoms regressed and she was referred to a psychiatrist as well as a neurologist. The neurologist examined the worker in April 2005 with respect to tremors the worker had been experiencing. He found the arm tremor to be “moderate with intention” and most likely related to stress and anxiety and possibly medication.

The psychiatrist saw the worker in February 2005. In an October 11, 2005 letter he opined that the worker was suffering from psychological sequelae due to her workplace trauma which he referred to as something similar to Post-Traumatic Stress Disorder with a delusional component to it. He added:

“…Her ongoing symptoms do appear to be directly related to the workplace incident and have left her incapacitated…Both [the occupational health doctor] and I believe there is more than adequate clinical evidence to indicate that the patient’s psychiatric condition is due to this workplace incident, whether it is real or delusionally believed…”

In a subsequent report dated July 31, 2006, the psychiatrist noted a diagnosis of Post-Traumatic Stress Disorder and panic disorder with work-related and other stresses including her absence from work, loss of income and the “questioning of the validity of the assault that occurred to her”. He added:

“The assault itself represents the major threat that has led to nightmares and other symptoms of Post-Traumatic Stress Disorder. The nature of the attacks has made her worried in the era of blood transmitted diseases such as AIDS, and of other further catastrophic health concerns.”

The Police Report

The worker also notified the police of the incident on Friday February 13, 2004. She told the police that dating back to June 2003 she was having problems with the co-worker’s work habits and as a result, had had some verbal conflicts with her. She spoke to her supervisor and a meeting was held to resolve the conflict. Since that date, the co-worker was showing hostilities towards the worker, which included yelling and screaming at her. She once again spoke to the supervisor and told him that she did not know how much longer she could put up with the co-worker’s behaviour. She added:

“On Tuesday, February 3, 2004 I was in the lab with [the co-worker]. I can’t say for sure if [the supervisor] or [the medical director] were in the lab or out for lunch…It was just after noon about 12:05 p.m. [The co-worker] was at the fume-hood. She was removing bubbles from embedded tissues and moulds. She goes for lunch between 12 – 1 p.m. I approached her and told her I needed to use the fume-hood to complete FNA and stain some grids. I told her it was her lunch time and to go for lunch. She refused and started telling me she wanted to finish her work. What she was doing was not important and could be finished by myself later in afternoon. I told her this and asked her again to go for lunch. She refused. I said “[Co-worker] please go for lunch”. I told her I had to get some work done.

She started yelling and screaming at me. “Just because I’m not your kind. I have just enough right to be in the fume-hood as you”. The yelling and screaming from her was escalating. I asked her again “[Co-worker] please go for lunch”. At this time she grabbed (2) non-sterile dissecting needles which had been exposed to human tissue and plastic along with a pair of needle point forceps and a pencil.

She grabbed these needles with her right hand. She turned around and at the same time she stabbed me in the upper left arm with one of those needles as she was yelling at me “To get out of her way”.

I felt the needle go into my arm. I shouted at her “You just stabbed me”. She didn’t even respond to my comment about being stabbed. She started screaming “I deserve respect, you don’t like changes, just because I’m not your kind”.

She just kept ranting and yelling like a mad-woman. I kept repeating to her to go for lunch. She finally left and went for lunch. After she left I checked my left arm. There was some blood on my arm. I cleaned it off with a Kim-wipe.

I was just in a state of shock. I couldn’t believe what had just happened. I just continued to work.

Around 1:00 p.m. [the supervisor] came back from lunch. He went into [the medical director’s] office. They were having some sort of closed door meeting. At 2:00 p.m. [the supervisor] came up to me at the fume-hood. He told me there was going to be a meeting with [the medical director]…He didn’t say what the meeting was about. At this time I told [the supervisor] that [the co-worker] had stabbed me with a needle at lunch time. I asked him if I should fill out a [sic] incident report. I was telling him I felt that she was unstable, I had concerns about my safety. All of a sudden [the co-worker] came out of I don’t know where in the lab. She started yelling saying I couldn’t talk about her behind her back. She was yelling at me. [The supervisor] did nothing. He walked away. I didn’t have any further contact with [the co-worker] after this. I was so upset I just went back to the fume-hood and finished my work.

When I got home I told my husband what had happened. He was very upset. My husband and my sister who was over visiting looked at my arm. There was a puncture hole in my arm. You know I was so shaken up and drained from all of this, I went and had a shower and later went to bed. I had looked at my arm after showering. I could see there was a little mark on my arm…”

The incident was investigated by the police who interviewed the employee relations manager, the supervisor and the co-worker. The supervisor related the ongoing labour difficulties between the worker and the co-worker. He added that he did not see the co-worker stab the worker nor did he believe that it happened. The co-worker brought the needle and the props that were used during the incident and denied poking or stabbing or bringing the needle into any contact with the complainant. Based on their investigation, the police advised the worker that it was closing its file.

The Employee Relations Officer’s Investigation

The employee relations officer also investigated the matter by interviewing the worker, the co-worker and the supervisor.

The interview notes indicate that the worker told her that shortly after noon on February 3, 2004 she asked the co-worker to leave the fume-hood because she needed to work there. The co-worker grabbed the dissecting needles, said “Get out of my way” and swung her arm out stabbing her in the upper left arm though she later added that she was not sure if the stabbing was intentional. The co-worker then began to yell at her for about 30 minutes, telling her how she needs and demands respect.

The co-worker told a different story. She said that the worker walked up to her briskly and told her it was lunch time and time for her to go. She used words like “get out, lunch time”, “your time is up, I’ll finish” and “out, out”. The co-worker responded by saying that she did not like the tone of her voice, she did not like the way she was being treated and she wanted to be treated with respect. She said this while seated in her chair turned directly to speak to the worker. She had the dissecting needle in her hand at that point but insisted that she placed it in a beaker under the fume hood after the worker asked her if she was going to poke her with it. When she later rose to leave the area, she had her hands raised in front of her with her palms out and told the worker to back off. The co-worker stated that at that point she might have touched the worker.

The supervisor told the employee relations officer that he had heard the beginning of the incident and recalled the worker telling the co-worker to get out and the co-worker telling the worker that she wanted to finish her work first. He did not however see the alleged attack.

Evidence at the Hearing

As indicated in the preamble, the worker testified at the hearing, as well as eight witnesses that were subpoenaed by the Appeal Commission.

The Worker’s Evidence

The worker testified that she enjoyed her job and took pride in doing it according to proper procedure. She described herself as not aggressive and not brave. She said that her son called her a “doormat” because people can walk all over her.

Conversely, she described the co-worker as extremely moody with screaming fits when she was upset. She explained that these outbursts happened whenever you spoke about children. She explained that in about May 2003 she noticed her co-worker becoming more confrontational with her, saying things like “I don’t like your tone of voice” or “You can’t talk to me like that”. She characterized these statements as verbal attacks. She also found that they were escalating in viciousness. She would “blow her top” often. Because of this, she did not want to get close to her and stayed away from her as much as possible. She offered that she thought that there was a change in the co-worker’s behaviour because she had begun to take holiday days to look after her grandson.

However, she also testified that she did have some difficulties with the way work was being done in the laboratory by the co-worker and the supervisor. She explained how the supervisor used to work in a laboratory with plant specimens using a procedure that took several weeks to accomplish whereas in the laboratory, they had to do it within 24 hours “so things had to be come speedily, accurately and very precisely”. She added:

“And then the [co-worker] came and I showed her the way to do it, but she decided that things could be done better differently, and the twenty odd years that I had experience with FNA didn’t count anymore and so she started doing things the way [the supervisor] wanted them to be done.”

She explained that incidents at work occurred because the co-worker did not do the work the way she taught her but also because she was sloppy, leaving plastic around and not cleaning up after herself.

When questioned whether any of these incidents were about personal matters unrelated to work, she testified:

“No, it was always work-related because either she didn’t put the specimens in the oven or she put them in the oven at the wrong temperature or the wrong time. And I wasn’t being picky. It was just important for the specimens to be polymerized at a certain temperature for a certain time. It was important for the specimens to be properly processed, properly dehydrated, properly fixed, properly cut, properly dissected into one millimetre cubes.

It was all those little things added up to the end results.”

She disputed that the supervisor ever witnessed the screaming incidents between herself and the co-worker; she said that he was never around when the co-worker verbally attacked her.

When questioned about the type of verbal attacks, she explained that the co-worker would raise her voice and get a very mean look to her with her mouthed screwed up, and come forward with her face and her arms constantly moving “like a person out of control”.

The worker testified about the events leading up to the incident as well as the incident itself. On direct examination by the worker advisor, the worker testified on direct examination that on February 3, 2004, an FNA came to the lab between 9 and 9:30 in the morning. Typically FNAs needed to be done by the end of the day. The co-worker was working on the FNA but the worker noticed that she was not doing it the way she had taught her to do. She was also becoming increasingly worried that the FNA would not be done by the end of the day as required:

“But as the morning went on, I saw that she wasn’t following the way I had taught her to do an FNA and I saw that it was getting later and later. So I took my lunch at 11:30 instead of 12:00…And about 12:00, five to 12:00, around that time, I came to the fume hood and I told [the co-worker] it was time for lunch…And she refused. She said, no, she wanted to finish the work, but it was my work to finish and not hers.

And because the FNA was only in alcohol and not even in half and half, I insisted that she got [sic] for lunch. I said, “[Co-worker], please go for lunch, [Co-worker], please go for lunch. Go for lunch, [co-worker]. Please go for lunch, [co-worker].

And she started to be really violent in her verbal attack on me, accusing me of being something like a blind man and not being one of her kind and I forget everything else, but she was screaming at me. And I kept telling her, “[co-worker], please go for lunch. Please go for lunch. Go for lunch, [co-worker]” and she didn’t.

She testified that during this time she was to the right of the co-worker and “a distance from her because she was unpredictable”. She also heard the back door of the laboratory close and speculated that the supervisor or medical director must have heard the altercation. She added:

“Finally at one point she grabbed the needles that were in a glass beaker in the fume hood…and said, “Get out of my way”, and then struck me in the shoulder.”

In giving this testimony, the worker demonstrated how the worker grabbed the items with her right hand and swung out, away from her body, with her right arm extended. She could not see exactly where she was hit; she only felt it. She later added however that “I went and I saw some blood and I grabbed a tissue and wiped it.”

She added:

“She finally went for lunch. I told her, “You stabbed me”. She didn’t acknowledge anything. She just left and went away…

I continued to do the work because the FNA was too slow…So there was a few steps that were delayed because she was following a different way than I had taught her to do, the things to do the FNA.”

After hearing testimony from the eight witnesses that were subpoenaed by the Appeal Commission with the worker present, the worker was questioned by the panel members on several points. She was asked in particular if and why she told the employee relations officer that the co-worker unintentionally poked her. She answered that she thought the co-worker intentionally wanted to push her away but perhaps did not realize that she had all of the instruments in her hand and did not actually mean to stab her.

She was also questioned about the “stabbing” or “poking incident”:

Q Okay. Now at the time that [the co-worker] did that, was she seated or standing?

A She was standing.

Q At what point did – when you came to her was she sitting?

A Yes, she was.

Q Then at what point in time did she stand up?

A She stood up at some point when I was telling her to go for lunch and I was pointing this way, “Go for lunch. [Co-worker] please go for lunch.” And she stood up at that time and came closer to me.

Q So she was facing you at some point in time?

A Yes.

Q And at what point in time did she grab the instruments?

A Just before she swung and told me to get out, “Get out of my way”…

Q You’re using your right hand and you’re lashing out from the inside of your body outward.

A Yes.

Q And she was facing you when she did that, okay.

A Well, kind of on the side.”

When asked how deep the needle went into her arm, she testified that she was not able to tell because she could not see it. When asked how long it took for the needle wound to heal she replied:

A A couple days.

Q Couple of days. And when it healed what did it look like? What changes did it go through?

A I don’t know, I couldn’t see it and I didn’t look in the mirror because it was over here and I just didn’t look in the mirror.”

When questioned about the sterility of the specimens the laboratory dealt with, she acknowledged that the specimens are fixed but alleged that several years ago the laboratory dealt with some Jakob Creutzfeldt disease specimens and that the dissecting needle used with those specimens had never been thrown out. She alleged that nothing could kill that prion.

She also attempted to explain some of the evidence provided earlier in the hearing by her husband, her son-in-law and her friend. She explained that the day after the incident she had initially booked that day off to drive her husband to the hospital where he was to have some surgery. Given her state she was unable to drive him and instead went to her son-in-law and daughter’s house. While she acknowledged that she normally baby-sits her grandchildren on that day, her daughter had taken the day off to stay home because she was supposed to drive her husband. She therefore stayed at their house. After his surgery, her husband picked her up and she left. She was unsure of what she did for the remainder of the day and in fact could not even recall having gone to her friend’s house for Spanish practice later that night.

The Family Witnesses

Three of the witnesses’ family members and a friend were subpoenaed by the Appeal Commission to testify as they had all previously sworn affidavits in support of the worker’s claim, swearing that they had seen a puncture wound in the worker’s upper left arm.

The worker’s sister testified that she was at the worker’s house on February 3, 2004 when the worker came home. She noticed that she looked “a little upset” . She asked her what was wrong and she was really agitated and said “I’ve just been stabbed”. She showed her arm. It looked like it was a “hole with a red mark around it”. She asked the worker why and the worker replied that she did not know why, then refused to talk about it further.

The worker’s sister also testified that the worker had talked to her on previous occasions about the co-worker and how difficult it was to train her “because she wanted to do it her way and not the way that it’s been done all the time, all the previous years”.

She explained that there had been a change in her sister. Previously she had been happy-go-lucky whereas since the incident she was shaky and not the same.

The worker’s son-in-law testified that he saw the worker the day after the incident when she came to his house in the morning to baby-sit his children. He found her to not be “in a right state”, that is flustered and sort of always “surprised”. She told him that she had been stabbed by her co-worker with a dirty dissecting needle and was very concerned that it could be contaminated with something that she would catch and be plagued with for the rest of her life. She showed him her left arm and he saw a scab wound approximately 4 inches down from her shoulder.

He also testified that he had heard about the co-worker from the worker prior to this incident. He stated that the worker had been having difficulties at work with the co-worker that stemmed from the dynamics at work that had changed since the co-worker’s duties changed from simply administrative duties to part-time administrative duties and part-time technician duties. The worker had told her son-in-law that she was training the co-worker and was frustrated by the way things were progressing.

Since the incident he has found her to be a changed person. She was not as spontaneous and her memory and confidence had suffered.

The worker’s friend testified that she saw the worker at her home on February 4, 2004 to practice Spanish lessons they had been taking together. The worker told her about her “stabbing” incident. She showed her arm and she saw a pinkish large needle wound approximately 3 to 4 inches down from her left shoulder.

The friend also found the worker’s demeanour to have changed after the alleged incident. She did however testify that the worker continued to go to Spanish classes and practice with her on Monday and Wednesday nights and well as to singing lessons on Tuesday nights.

The worker’s husband testified that on February 3, 2004 the worker came home after work at approximately 5 p.m. She looked like a ‘sick’ person or like someone who had been in a car accident. He asked her what had happened to which she replied “I’ve been stabbed”. “[My co-worker] stabbed me”. She then showed her left arm where he saw a reddish mark 2 to 4 inches down from her shoulder.

He testified that his wife told him that she needed to do an FNA and her co-worker would not leave the fume hood. She told the worker that she needed more practice. The worker continued to tell the co-worker to leave and at one point she grabbed some pencils and a dissecting needle and swung around and stabbed the worker. The worker told her husband that the supervisor had heard the confrontation and then had simply walked away. She did not see him again until she went home.

His wife had talked to him about her difficulties with the co-worker prior to this incident. She had explained how training the co-worker was not going well because she always wanted to do things her own way. She had also told him how her co-worker would blow her top for every little thing. She told him “She screams at me sometimes and shouts at me” but always seemed to do this when no one was around.

He also testified that his wife was afraid to go back to work as she thought that her co-worker might kill her. She was also afraid that she might have been infected with something from the dissecting needle. He thought that she had tried to call her doctor the next day but could not get an appointment. This was however also the day that he was in the hospital for several hours. His wife had not taken him as she told him she could not hear or see anything to do with a hospital. When he returned home several hours later he was sure that she was home.

The Medical Director

The medical director of the laboratory in which the worker worked and where the incident allegedly took place also testified. He did not have any specific recollection of having heard or witnessed any incident between the worker and the co-worker. He could not remember having any interaction with the worker on that day and testified that it was his usual practice to ask the supervisor to follow-up on any work that needed to be done rather than interact directly with the workers.

He only became involved with respect to the February 3, 2004 incident when the supervisor came to see him after lunch and told him there had been an incident and they needed to discuss it. Arrangements were made to talk about it the next day or the day after. He was not however aware of any of the particulars of the incident until he saw the worker the following Monday on February 9, 2004 when the worker told him that she had been poked in the arm by her co-worker.

The Co-Worker

The co-worker described the worker as meticulous in her work but also extremely critical of others to the point that she had the impression that she always seemed to hunt for mistakes. She found that she could not work like this and told her supervisor sometime before the incident. She advised that the supervisor agreed to have the worker’s supervisory duties removed.

The co-worker testified that on February 3, 2004 when she arrived at work, the worker confronted her with a tray of moulds telling her that they were put in the wrong order. The worker was quite angry and seemed to take great offence at this error.

For the rest of the morning, the worker and co-worker worked in different areas of the laboratory. The co-worker was working on both the FNA and embedding tissue samples which essentially consists in moving tissue samples which have been treated with gluteraldehyde, washed in water, then placed in alcohol and covered in plastic, into wells and de-bubbling them so that they can processed in an oven. She testified that the materials worked with in the laboratory were sterile and that there was no risk of infection from the materials as they do not work with live tissue.

At approximately 12 p.m. the worker approached the co-worker from the left and told her to “get out”. She replied “Well, I’m not finished here”. The worker replied “Out, out” in a sharp, dictatorial and commanding way and she replied “Well, it only might take me about ten minutes to finish this”. As she thought that the worker might have wanted to begin working on the FNA, since she seemed to prefer that type of work, she invited her to do so while she finished her embedding work but the worker continued to tell her to get out and began to crowd her physically. By this time the worker had moved behind the co-worker and was more toward her right. The co-worker testified that she did not understand why the worker was acting this way since it was only 12 p.m. and that was the time that the worker usually took her lunch.

At about that time the co-worker saw the supervisor walk by.

As the worker continued to tell her to “Get out, get out, get out” the co-worker replied “Okay, well, I’ll leave”, talking with the dissecting needle in her hand. The worker then said “Oh, don’t poke me with that thing”. The co-worker was clear that the worker used this choice of words and not the word “stab”. She was also clear that the worker did not cry out in pain.

The co-worker was somewhat taken aback by this comment. She replied “I’d never poke you with the thing. Here” and she put the dissecting needle in the beaker which contained a pencil, some tweezers, possibly another dissecting needle and other items, then immediately took it out - since the worker did not like the dissecting needles put in the beaker because she thought it would dull them – and said “And then I’ll even take it out of the beaker and put it where you like, right on the fume hood” because the worker liked it right beside the microscope. She then told the worker to “Get back” because she was still crowding her and could not even pull her chair back, and left.

The co-worker testified that she was surprised that the worker said anything about “poking” her as she did not make any motion towards the worker. She was also surprised that the worker could have expressed any fear of being poked since she was aggressing her by standing over her and physically crowding her.

After she left the fume hood, she left the laboratory and went to a meeting at around 12:20 p.m. She returned to work at around 1 p.m. and went immediately to her office in the back of the laboratory where she did her administrative duties in the afternoon. On her way there she noticed the supervisor talking to the worker who was at the fume hood. She testified that she overheard the worker talking to the supervisor, saying that she had poked her and “I want her out of there at 12:00”, “I want her out of there”. She then heard the supervisor respond “Well, oh, so she poked you, did she” to which the worker responded “Oh, yes”. The co-worker recalled having gone up to the two of them to try and clarify the situation as she was surprised that the worker was saying these things about her. However, as she approached, the supervisor told her that he was first talking to the worker about the episode and would talk to her later.

The Supervisor

The supervisor also testified. He explained that he had been the supervisor of the laboratory since April 1, 1993.

He described the worker as dominant and wanting control over everything; she had no hesitation telling people about something she did not like. She could also be moody on occasion. He described the co-worker as moody; one day she would be sweet as pie and the next, black.

He described the working relationship between the worker and co-worker as “strained”. He testified that the worker has “an abrasive manner and most people just give into it because they don’t want an emotional scene, so they…just give her her way”. He explained that the worker’s behaviour was not limited to the co-worker; it was directed at everyone she felt was not her equal. With the co-worker however, things were somewhat worse according to him because the worker felt that she was the co-worker’s supervisor and could “bully” her. He disputed that the worker was afraid of the co-worker. He explained that that would be out of keeping with her personality.

Incidents and flare-ups between the two of them occurred several times a week. The worker would use harsh words and a rude tone of voice that was very aggressive. He stated that whenever the worker “would get upset, she’d turn a bright red…and she’d start to shake…and it was…terrifying to look at. It was like intimidating.” He added that when she was angry, she would physically crowd you. He explained that these incidents were often over trivial matters. She would says things like “[Co-worker], come her, [co-worker], come see this” and point out her error. It was as if she was trying to get “on her case” all the time.

The co-worker did not accept the worker’s behaviour. She “would tell it right back” to the worker and say for example “I’m sick and tired of the way you treat me with lack of respect”. On occasion she too would raise her voice or gesticulate with her hands in anger. This seemed to inflame the worker.

He then testified about the February 3, 2004 incident. He explained that first thing in the morning, the co-worker was going to process an FNA herself and the worker was not happy with that so she went off to her own work area and sat there for the entire morning. Then “pretty much on the button 12:00, she came storming in and saying, ‘[Co-worker], okay, you’re done here, out of here. It’s time for you to leave’, like pretty, like loud enough that it caught my attention, but not screaming that someone down the hall could hear it…” From the tone of her voice he knew that there was going to be an argument. He came out of his office and moved adjacent to the co-worker’s work area where he witnessed a large part of the ensuing incident.

The co-worker responded “I’m not finished yet here. I’m still not finished. I’ve got to do – I’ll be just a few minutes. You work over here.” The worker said “Get out” in a much more hostile tone of voice and kept saying “Get out” and the co-worker kept saying “No, I’m not done yet. You can work over here”.

Though the co-worker was calm at first, she began to get more emotional to the point that she too became angry. To him her tone of voice indicated that she was not going to take much more of the worker’s antics.

At one point he did hear the worker tell the co-worker “You’d better not poke me with that thing”. He did not hear her say “You stabbed me with that” and he did not hear her scream out in pain. He did not recall the co-worker moving her arms around. He testified that the worker was to the right of and up against the co-worker who was facing forward.

This scene lasted 10 to 15 minutes and he finally heard that the co-worker was going to leave the fume hood where she was working and asked the worker to back off so that she could actually leave because the worker was right behind her blocking her way out.

It was at that point that he left the laboratory. He therefore did not actually see the co-worker get up from her chair and leave.

After lunch he went to see the medical director because he thought that this incident needed to be dealt with. Unfortunately the medical director was too busy to deal with it immediately. He therefore confronted the worker sometime after 1 p.m.

The supervisor testified that the worker did 99% of the talking. He stated:

“She just went on a tirade about [the co-worker], about criticizing [the co-worker] and saying – especially clear to me, she repeated about a dozen times, ‘I want her out of her by 12:00 every day’. She kept repeating it like a broken record, ‘I want her out of here every day by 12:00’, to the point that [the co-worker] could hear her.

And then [the co-worker] came around again to get mad and say, ‘I don’t appreciate you talking behind my back’, and everything and the I thought, okay, I’ve got the two of them tangling again and I says, ‘[Co-worker], I’m going to talk to you later by myself. Right now I’m talking to [the worker]. I’ll talk to you later…’

Then, I don’t know, [the worker] went into a long tirade, at least 10, 15 minutes with me and I thought it was probably good for her to vent all that out, so I just sort of listened.”

When asked if the worker mentioned anything about being stabbed or poked, he responded:

“She said, the very first statement was, “[The co-worker] poked me with that needle.” She said that once, but then she went into the ten-minute tirade and she never said it again. And just 99.9 percent of that conversation was the desperate need to not have [the co-worker] working there past 12:00.”

And when asked what he thought when she said that she had been poked, he replied:

“I thought because of the – it wasn’t like an accident or someone telling me about an accident or something where they’re describing an injury or something, like we often have, not often, but sometimes have. It was like along with a lot of other angry things that she said about [the co-worker] at the same time. Like a whole pile of angry things were said and that was just one statement.

So I didn’t think anything of it. It was like you don’t, you know, you don’t have time to meditate on each and every statement when somebody’s really angry and just suddenly explodes about someone and there’s like a hundred criticisms all at once. So there wasn’t any moment for me to reflect or meditate on that or think about it, because what she was then drilling into my head was how [the co-worker] had to be out of there every day by 1:00 [sic]. That was what she was drilling into my head…

I think that, my thought originally was that she was trying to get [the co-worker] into trouble. She was looking for something, desperately looking for something to get [the worker] in trouble and wouldn’t it be sweet it she could get like stabbed by [the co-worker] with a needle, because then she’d really get this person once and for all. That’s what, that’s I ultimately thought.”

He also testified that the worker did not fill out a green card though her past practice was to fill one out even for hazards that she thought could cause an accident.

The supervisor also testified that ultimately he ended up getting upset himself when he realized that the worker had made the co-worker leave to do some staining under the fume hood that could have been done elsewhere; the fume hood was not required.

He testified that for the remainder of the afternoon the worker sat quietly working. She did not look distraught nor was she shaking. In fact he seemed to recall her make small talk with cleaning personnel that had come to the laboratory that afternoon.

He eventually did talk to the co-worker either later that day but more probably the next day. He explained:

“Well, we went over the whole, not just that incident, but we went over her relationship with [the worker]. You see, that’s the thing, there wasn’t any talk about any poking or anything like that. That was a whole complete surprise to us on the following Monday.”

That following Monday was February 9, 2004. It was the day that the worker came in to see the medical director and give him a memorandum indicating that she had been attacked by the co-worker, could be in danger of being infected with infectious agents and dangerous chemicals. She also advised that she would be talking to her union and also possibly the police. He testified that he found this memorandum to be vexatious because the laboratory did not work with infectious agents. He clarified that the laboratory did not work with live tissue. All tissue that comes to the laboratory is previously fixed so that it is sterile when it comes to the laboratory. He explained that “you couldn’t ask for a more sterile needle”. He thought that the worker should have known this given her many years of experience working in the laboratory. He also found it extremely strange that the worker would wait an entire week before contacting the police if she had actually been stabbed. His conclusion was that the worker was trying to sensationalize the incident to get the co-worker fired.

The Employee Relations Manager

The employee relations manager at the time of the incident testified that she first became involved with the February 3, 2004 incident when she received a telephone call advising her about it on February 9, 2004. As part of her investigation, she spoke to the worker, the co-worker and the supervisor.

The employee relations officer talked to the worker on February 10, 2004. She recalled that the worker told her that on February 3, 3004 there was an urgent specimen that needed to be finished so she asked the co-worker to leave and go for lunch to which the co-worker had replied “No go away”. Her hands were flapping or flailing and she stabbed or poked her with the dissecting needle. Near the end of the conversation the worker added that she did not think that the co-worker’s actions were deliberate. The employee relations officer looked at the worker’s left arm but did not see any trace of a needle mark.

She then met with the co-worker who described the worker as the aggressor, telling her to “Get out” several times while she was fairly close behind her. She added that she turned in her swivel chair. She also remembered having several items in her hand as well as the dissecting needle but did not recall poking or otherwise injuring her.

The supervisor also met with the employee relations manager. He told her that he had heard the disagreement between the two but did not think much of it because they often had disagreements. The worker had come to see him a little bit later in the day on February 3, 2004 and mentioned in the middle of her 15 minute conversation that the co-worker had poked or stabbed her but spent the majority of the conversation ridiculing the co-worker.

Analysis

As mentioned in the introduction, to accept the worker’s appeal we must find on a balance of probabilities that she suffered an injury arising out of and in the course of employment in accordance with subsections 4(1) and 1(1) of the Act. We are unable to make that finding.

Subsections 4(1) and 1(1) of the Act provide that to be compensable, a worker must suffer personal injury arising out of and in the course of her employment. Subsection 1(1.1) clarifies that this definition of accident does not include any change in respect of employment of a worker. To be clear, the Act only compensates for injuries that arise out of and in the course of employment and not as a result of labour-related issues.

In weighing the evidence, we find that the worker’s psychological injury, as described in the medical reports, is more likely than not related to labour related issues as opposed to workers compensation issues.

The evidence is clear that the worker and co-worker had relational issues dating back to June or October 2003. Though the worker testified at the hearing that these issues were due to the co-worker’s personal issues with children, this evidence is not borne out by her other statements to the police, the WCB case manager or the employee relations manager. We therefore do not accept this characterization of the co-worker. Quite frankly it appeared to be an attempt to paint her co-worker as an unstable woman that would be capable of doing the alleged deed - stabbing her with a dissecting needle. We prefer the supervisor’s evidence on this point as it is more consistent with the worker’s own evidence and statements to others about the co-worker. This evidence is that the co-worker did not obey the worker. She did things her own way and held her ground when the worker admonished her. The worker found the co-worker’s attitude toward her work and the worker to be irritating. The worker’s own family members and friend acknowledged that this was what aggravated the worker. They testified that the worker often talked about the co-worker and how she was having problems with her not listening to her. This was all the more inflaming to her as she had 30 years of experience behind her while her co-worker, who had always been an administrative assistant and a technician, was only just beginning.

We also accept the supervisor’s evidence that the worker was aggressive at the workplace and more particularly so with respect to the co-worker. This evidence is supported by the employee relations manager and to some degree the co-worker who all indicated that the worker had a hard time letting go of things and kept harping on them. The worker herself testified that the work that she did was extremely important and it was of the utmost importance to do it her way, which was the right way. More telling however is the fact that prior to the February 3, 2004 incident, the supervisor had asked the employee relations manager to strip the worker’s supervisory duties because of the constant arguments between the worker and the co-worker and the demeaning manner in which the worker treated the co-worker.

This evidence simply does not paint the worker as a victim. Rather, it casts her in a rather negative light – that of the aggressor. This is important in determining what happened at the fume hood at around 12 p.m. on February 3, 2004.

The worker alleges that she politely approached the worker leaving ample room between herself and the worker because of her unpredictable nature. The co-worker and the supervisor both say that the worker was the aggressor and came in crowding the co-worker physically.

In our determination, something in between happened. We have not come to this determination lightly. As can be seen by the summary of the evidence before us, the evidence is quite contradictory. A common thread in all that evidence is however apparent.

On February 3, 2004, the worker worked at her station mindful of what the co-worker was doing. She had had an argument with the co-worker the day before and in fact had gone to see the medical director about it. It was still unresolved by that day. Then an FNA came in. The worker wanted to do the FNA. As she testified, it was hers to do. She noticed that the co-worker was not doing it the right way and in fact had fallen behind in the procedure. She took her lunch early that day so that she could finish it off. At 12 p.m. she approached the co-worker thinking that it was her time to take over. Only the co-worker was not working on the FNA. She was doing something else. Though the worker could have worked at a different spot, she wanted to do it under the fume hood and she was not going to take no for an answer. She told the worker that it was time for her to go for lunch. We accept that she said this in a rather aggressive tone and that she used words like “out out” as this is consistent with her prior interactions with the co-worker as well as with the supervisor’s evidence. The supervisor’s evidence is that he was present for most of this incident. Though the worker was not sure of exactly who was present she was also certain that someone had at least heard the incident. The supervisor’s testimony about the incident is consistent with the evidence as a whole and we therefore find it to be reliable and prefer it over the evidence which is inconsistent with it.

The evidence is also that the worker approached the co-worker, who was seated at the fume hood, from the left then moved behind her and to the right. There is some dispute as to how close the worker was standing to the co-worker during the confrontation. The worker says as far away as she could though she also says that the co-worker did say “get out of my way” which seems to imply that the worker was too close to