Decision #86/08 - Type: Workers Compensation

Preamble

On September 12, 2003, the worker filed a claim with the Workers Compensation Board (“WCB”) for psychological injury that she related to harassment she alleged occurred at work over a period of several years. The claim for compensation was denied by primary adjudication and Review Office on the grounds that there was insufficient evidence to find that the worker suffered an acute reaction to a traumatic event. The worker disagreed and filed an appeal with the Appeal Commission. A hearing was arranged and took place on February 21, 2008.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In 2003, the worker was employed as a caregiver at an institution. She had been employed there for approximately 10 years. On September 12, 2003, the worker filed an accident report with the WCB claiming “stress/harassment” as the area of injury. The date of injury was recorded as September 10, 2003, as the worker had attended a doctor on that date. The worker advised that she was a female worker in a male dominated institution. She said her co-workers did not accept her fashion of caregiving and that she had been criticized for it. She felt paranoid because their intentions were possibly to make her look bad. She feared someone setting her up and blaming her for something she did not do. She said she felt mentally and sexually harassed. She was scared and concerned that if someone found out she was filing a WCB claim, they may come after her. She was afraid to report her stress related injury to her manager or anyone at work and had been dealing with this for a long time. On September 11, 2003, she stopped work.

The employer’s report of injury was signed September 24, 2003. The employer asked the WCB to determine whether this was a compensable claim. It stated that the worker returned to work on September 11, 2003 from a vacation leave and that during an investigative interview that same day, she informed management that she was going off on stress leave and had a medical certificate from her doctor.

Narrative notes dated September 10, 2003 by the treating physician stated, in part, “She is under lots of stress and would like stress leave from work…she is also afraid that she may have done something wrong at work…”. The treating physician assessed anxiety and situational reaction and gave her a note to be off work for two weeks. Medication was declined by the worker.

In a memorandum dated September 25, 2003, a WCB case manager indicated that she called the worker to advise her of the WCB’s criteria for stress. She stated that the situations described by the worker, i.e. problems with co-workers and being criticized by her supervisor did not meet the WCB’s criteria. The worker advised that she was threatened with the loss of her job on September 11, 2003. The worker was advised that although this would be traumatic to her, it did not meet the WCB’s criteria of a serious, life-threatening situation. The worker was advised that if she wanted to pursue a claim due to mental and sexual harassment, the WCB would investigate this but it would require more detailed information and external confirmation of facts. The worker indicated that because of fear for her personal safety, she was unwilling to give the WCB names or details.

In a WCB decision dated September 25, 2003, the worker was advised that her situation did not meet the requirements of a stress claim as outlined under The Workers Compensation Act (the “Act”) given that the information she provided did not indicate that a traumatic event occurred.

In a letter dated October 17, 2003, the worker advised the WCB that she was now prepared to give the name of the person who sexually assaulted her in the workplace. She noted that an investigation was presently underway into her complaint. She said she felt endangered in the workplace and felt unsafe in her home life since she had come forward with this information.

On November 3, 2003, the worker provided the WCB with a copy of her sexual assault/harassment complaint that she submitted to her employer dated October 17, 2003. The complaint alleged unwelcome and inappropriate conduct by a male co-worker towards the worker. The co-worker was a supervisor, but he was not the worker’s supervisor. In additional to a pattern of harassing behavior, the complaint also alleged that an assault occurred in May/June 2003 whereby the co-worker grabbed the worker’s clothing and caused her chest to become exposed.

In a telephone conversation dated January 30, 2004, it was recorded by the case manager that following investigation, the employer found insufficient evidence to support the worker’s allegations and therefore no action would be taken against the co-worker.

In a memorandum dated January 30, 2004, the case manager recorded details of conversations that she had with three co-workers concerning the alleged incident described by the worker.

On February 13, 2004, the case manager informed the worker that the WCB was unable to accept her claim as it was felt that there was insufficient evidence to confirm the sexual harassment and to support that her time loss effective September 11, 2003 was due to the incident that occurred in May or June of 2003. This decision was based on the report from the treating physician dated September 10, 2003, the information by the employer that they had insufficient evidence to support the worker’s allegations and the information provided by three co-workers.

The worker retained a solicitor who provided the WCB with a medical report dated April 6, 2004. The solicitor submitted that the medical report was consistent with the worker’s complaints that sexual harassment caused her to suffer post traumatic stress disorder. He also felt that the physician’s report “overrides any conclusion which you may have drawn from inferences you made in discussions with [the worker’s] co-workers.”

On June 23, 2004, the case manager advised the solicitor that the medical information was considered, however the WCB was still of the view that there was insufficient evidence to confirm that the sexual harassment occurred in the workplace or that the worker’s time loss in September 2003 was directly related to the sexual harassment.

In a decision dated August 5, 2004, Review Office indicated that it reviewed the case and gathered some information from the employer. Review Office’s decision was that the evidence did not establish that the worker suffered a personal injury by accident arising out of and in the course of her employment. Review Office was of the opinion that the evidence confirmed that the worker was dealing with an accumulation of stressors, both inside and outside of work, which led to her time loss on September 11, 2003. It stated for a claim to be acceptable, the evidence must establish that the worker suffered an acute reaction to a traumatic event that caused serious psychological harm consistent with the acute reaction. It was unable to make this determination.

By report dated January 31, 2007, a treating psychiatrist reported that from May 2004 to June 2006, the worker received treatment. She presented with moderately severe symptoms of Depression and some features of Post Traumatic Stress Disorder. The psychiatrist opined that: “In my opinion, her psychiatric symptoms and associated functional impairments are directly linked to workplace sexual harassment and emotional abuse that spanned ten years, but became more prominent over the last two to three years of her employment. These workplace stressors and the absence of meaningful support, validation or intervention to end the abuse by management, contributed directly to a sense of inadequacy, powerlessness and diminished self esteem, and ultimately was expressed as a depressive syndrome. (The worker) does not have a prior history of psychiatric symptoms, substance abuse or maladaptive personality traits.”

The case was again considered by Review Office on April 4, 2007 based on additional information including an investigation assessment report from the Manitoba Human Rights Commission. The Review Office stated there would be no change to its August 5, 2004 decision. It stated that its adjudication in determining the acceptance or denial of a claim was not based on whether or not the WCB believed the worker had been sexually harassed or whether or not the employer took reasonable steps to terminate any harassment, but rather whether the worker suffered serious psychological harm as a result of an acute reaction (as defined by the WCB) from a traumatic event. It stated that any report or decision/investigation made by an outside investigating body can be considered by the WCB at the worker’s request but its decision and/or recommendations were not binding on the WCB for acceptance of a claim. Review Office noted that when rendering its former decision it placed weight on the whole of evidence that overwhelmingly showed that the worker’s stress arose from many cumulative stressors.

On October 24, 2007, the worker disagreed with Review Office’s decision and an oral hearing was requested. On January 29, 2008, the worker provided the Appeal Commission with additional evidence for consideration.

Following the hearing held on February 21, 2008, the appeal panel discussed the case and requested additional information from a number of sources. The information received by the panel was forwarded to the interested parties for comment. On June 4, 2008, the panel met and rendered its final decision with respect to the issue under appeal.

Reasons

Worker’s Position:

The worker was self-represented at the hearing. She submitted that she suffered sexual harassment for ten years in the workplace, which eventually culminated in a physical incident in May/June, 2003 whereby she was “groped” by the harasser. After the physical incident, she developed a short term post traumatic stress-type disorder, which by September 10, 2003, prevented her from being able to continue working.

Employer’s Position:

Two representatives from the employer’s human resources department were present at the hearing. The representatives had been involved in the employer’s investigation into the worker’s complaints of sexual harassment. The employer did not take a formal position regarding the issue before the panel, but did provide information regarding the results of their investigation, which concluded that there was no clear evidence to support the worker’s allegations of sexual harassment.

Applicable Legislation:

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (the “Act”) provides that compensation is payable to workers who suffer: “personal injury by accident”. Accordingly, for the appeal to succeed, the panel must find that the worker was injured by an accident.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker;

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

Subsection 1(1.1) of the Act restricts the definition of “accident” by stating the definition: “does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.”

Thus, the definition of “accident” provides three general ways in which it may be found that an accident has occurred. A claim may be adjudicated as an accident (in the more traditional sense) under parts (a) and (b) of the definition, or as an occupational disease under part (c) of the definition.

If a claim is adjudicated as an accident under part (c) of the “accident” definition, it must satisfy the definition of “occupational disease” set out in subsection 1(1) as follows:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than as an acute reaction to a traumatic event.

WCB Policy 44.20.60 deals with claims involving psychological conditions. Policy 44.20.60 provides as follows:

1. Where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.

This includes, but is not limited to psychological conditions incurred as a result of the following:

(a) Organic brain damage from a traumatic compensable head injury.

(b) A psychological reaction or condition which is a direct result of a serious compensable life-threatening injury/event (serious in this context means an accident that threatens life or direct involvement in a life threatening incident or event).

(c) Psychosis resulting from exposure to harmful chemicals at the worksite.

(d) Psychosis resulting from the use of drugs used in the treatment of a compensable injury.

2. Accidents prior to January 1, 1992: Stress or psychological conditions said to be a result of a non-specific event or events and, therefore, cumulative in nature are considered to be chronic stress, and in the absence of a specific identifiable compensable event or events are to be adjudicated on the individual merits and circumstances of the case.

3. Accidents on or after January 1, 1992: Stress is not an occupational disease as defined under The Workers Compensation Act, except as an acute reaction to a traumatic event.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that an accident occurred, and as a result of which the worker was injured. On a balance of probabilities, we are able to make that finding.

At the outset, we note that in determining that an accident occurred, we do not base our decision on part (c) of the “accident” definition which incorporates “occupational disease” into the definition. According to the Act, “occupational disease” excludes a claim for stress, unless the stress occurs as “an acute reaction to a traumatic event.” It is our interpretation that this requirement is intended to exclude claims for chronic stress which result from non-specific events and which are cumulative in nature. In the present case, the evidence does not disclose

that there was an acute reaction to a traumatic event, and therefore we do not find that there was occupational disease.

This is consistent with section 2 of WCB Policy 44.20.60, which provides that for accidents on or after January 1, 1992: “Stress is not an occupational disease as defined under The Worker’s Compensation Act, except as an acute reaction to a traumatic event.”

The panel does, however, find that the definition of “accident” is met under part (a), which includes: “a willful and intentional act that is not the act of the worker.” In the present case, the worker’s evidence was that for many years, she always noticed the male co-worker’s undue attention on her. He would call her to ask what she was wearing, corner her on the elevators, constantly ask her to come for coffee, and he would visit her floor and come looking for her. The worker felt that the co-worker would openly leer at her body and he would constantly make comments about her attire. He would make sexual innuendos during their conversations, which in later years escalated into him telling her about sexual encounters with other women in the workplace. Over time, the worker felt that the attention and advances were becoming more aggressive. On his days off, the co-worker would phone the workplace and ask to speak with the worker. The worker felt as though he was always watching her. On a few occasions, the co-worker appeared at locations outside of work where he knew she would be. Emails with sexually inappropriate content were sent by the co-worker to the worker’s home computer. On one occasion, the co-worker retrieved a personal item belonging to the worker from a locked location. Finally, the worker relayed an incident whereby the co-worker grabbed her to turn her to face him, during the course of which he stuck his fingers inside of her sleeveless turtleneck top and pulled her forward by her bra straps. As she struggled, her clothing was dislodged and her left breast was bared. She fell into the co-worker’s lap, then quickly jumped up and left the room. The worker’s evidence was that there were witnesses to the assault. She claims to have reported the assault to her superiors, who discounted the incident and took no further action. From that point onwards, the worker felt as though there was a poisonous atmosphere at work and that others at work were closing rank against her. She felt paranoid about being set up at work or having accusations made against her.

In January, 2004, the employer completed an investigation and concluded that there was no clear evidence to support the worker’s allegations. The persons interviewed by the employer believed that there was a friendly work relationship. There were no witnesses to the incidents reported by the worker.

In September, 2005, the Manitoba Human Rights Commission completed an investigation assessment report regarding the complaint. The recommendation made by the investigator was that there was evidence to support the allegation that the complainant was subjected to harassment on the basis of her sex from the co-worker. On March 29, 2006, a supplementary report was issued which reaffirmed that as a whole, the evidence would appear to support the worker’s allegations that she was subjected to a course of abusive and unwelcome conduct or comment made on the basis of her sex. The panel notes that not all of the allegations made by the worker were found by the Human Rights Commission to be supported by evidence. Ultimately, the Human Rights complaint was settled by a memorandum of agreement between the parties.

In coming to our decision, the panel considered whether the alleged sexual harassment was the reason for the worker’s psychological condition, or whether the allegations simply became elevated in importance when the work performance issues arose. When reviewing the chronology of events, it is evident that there were serious employment issues which were affecting the worker and which caused her stress. This culminated in the worker being confronted with her conduct on September 11, 2003 and ultimately terminated from her employment in April, 2004. The treating physician’s notes also reference the fact that the worker was experiencing marital difficulties in the September, 2003 time period. The worker’s evidence was that after the physical incident in May/June, 2003: “And at that point something happened to me where I suddenly, instead of feeling like I was a worthy person, I had lost hope with everything. I felt like I was worthless. And then the workplace turned against me, even though I went – I had told two supervisors. They chose not to do anything about it and yet everyone else found out about it, and I had noticed a big change in the workplace environment around me. I was quite alone.” The worker testified that she became paranoid and started hiding in her basement. She became alienated from her family because they did not understand what was going on. Ultimately she was asked by her spouse to leave the marital home. She developed an inappropriate relationship with a resident because he was the only person who appeared to offer support for her. Finally, after filing her claim with WCB, she was put in contact with a psychologist, who identified her condition and assisted her in obtaining medication and treatment.

At the request of the panel, the treating psychologist’s notes were produced. The notes confirm that from the time of the first visit on September 17, 2003, the sexual harassment was a major issue for the worker. The series of stressful experiences in the workplace which the worker identifies are the conflict with her helper orientation, the sexual harassment, the confrontation regarding her conduct with a resident, and concern that she may be set up as having committed a crime. At the next visit on October 30, 2003, Post-Traumatic Stress symptoms are identified. The notes reflect that the worker reported “seeing” the man who sexually harassed her at work, worrying about her safety, not sleeping well, intrusive images of the assault, and nightmares.

It is apparent that in addition to the sexual harassment, family discord and work performance issues were deeply affecting the worker. The worker’s evidence is that these two issues flowed from her reaction to the sexual harassment. While there may be some uncertainty as to whether the family discord and work issues resulted from the harassment or whether they would have occurred independently, the panel is prepared to find that the harassment did contribute to the worker acting in these ways.

On review of the evidence as a whole, the panel is satisfied on a balance of probabilities that the conduct of the co-worker towards the worker significantly impacted the worker and caused a psychological condition which disabled her from working. Although the investigations by both the employer and the Manitoba Human Right Commission concluded that several of the allegations were not supported by evidence other than the worker’s testimony, the panel accepts that the worker was deeply affected by the acts of her co-worker and as a result, suffered psychological injury.

As outlined earlier, WCB Policy 44.20.60 gives direction regarding claims for psychological conditions. The policy provides that where a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident shall be considered a personal injury by accident, for which compensation may be paid. Although some of the conduct of the co-worker towards the worker occurred outside of the workplace, the panel is satisfied that the relationship between the worker and the co-worker arose out of and in the course of employment, and the fact that the co-worker’s conduct extended to situations outside of the workplace does not break the work-related nexus.

WCB Policy 44.20.60 also provides a non-exclusive list of incidents which may give rise to psychological conditions for which compensation may be paid. In our opinion, although it is not specifically listed, the sexual harassment suffered by the worker was of a similar nature to the incidents listed in the policy. The worker was not merely suffering from chronic stress. She had developed a severe psychological condition which disabled her from working. While she was not involved in a life-threatening injury or event, we find that the nature of the sexual harassment suffered by the worker was of the same gravity and seriousness as the listed incidents, such as to warrant the finding that the worker was injured by “accident”. To be clear, we are not basing our decision on the single alleged incident of physical assault, but rather we find that the entire course of harassing conduct over a period of many years was the “accident” for which compensation is payable.

For the reasons set out above, we conclude that the worker’s psychological condition is a personal injury by accident, for which compensation is payable. The worker’s claim is therefore acceptable. The appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 23rd day of July, 2008

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