Decision #120/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on October 27, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On September 29, 2021, the worker reported a psychological injury to the WCB, describing incidents with her supervisor that caused stress and embarrassment. The worker noted the incidents occurred over a few years, referring to an incident that took place in January 2018 and ongoing comments by the supervisor through to the supervisor's resignation in October 2020. The worker advised she reported the incident to the employer during a meeting on July 29, 2021, and was placed off work by her family physician on August 8, 2021. The worker reported her current symptoms were anxiety, depression, stress, feeling scared and lack of sleep.
The Employer's Accident Report, which was also provided to the WCB on September 29, 2021, indicated the worker made a formal report to them on September 27, 2021 of incidents with her former supervisor that occurred between 2018 and 2020.
The worker sought medical treatment from her family physician on October 4, 2021, reporting mental distress caused by harassment from her former supervisor at work. The worker reported being anxious at work, trying to avoid contact with the supervisor, with the symptoms continuing at home after she left work. It was noted the worker had not had contact with the supervisor since October 2020 when the supervisor left his position. The treating family physician recorded the worker had no distress or psychotic symptoms and agreed to a psychiatric referral. The physician queried a diagnosis of post-traumatic stress disorder. The physician noted the worker was capable of modified duties and recommended she might benefit from a gradual return to work.
On October 21, 2021, the WCB contacted the worker to discuss her claim. The worker provided further details with respect to the incidents noted on her initial report to the WCB, along with information regarding potential witnesses. The worker further confirmed a meeting took place in July or August 2021 between the worker, two employer representatives, and a union representative, where the employer advised they would not do a full investigation as the former supervisor no longer worked for them. The worker advised the WCB she had reported to her family physician at the beginning of August 2021 and had not been back to work since then.
On November 4, 2021, the WCB contacted the employer to discuss the worker's claim. The employer advised that the worker told them of the incidents involving her former supervisor at a meeting with the worker and her union representative in September 2021. The employer indicated the information presented was surprising and they were unable to investigate as the supervisor had not worked for them for approximately a year.
On November 10, 2021, the WCB advised the worker that her claim was not acceptable. The WCB advised that problems with employee/employer relations do not meet the definition of an accident required to establish a WCB claim under the WCB legislation and policies. The WCB further advised that psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work do not give rise to a compensable claim.
A copy of a psychiatrist's December 4, 2021 assessment of the worker was placed on the worker's file on December 8, 2021. The psychiatrist noted the worker's report of being harassed by her former supervisor, who was no longer working with the employer. The worker reported the supervisor "… used to make invalidating comments about her physical appearance, and the way she dresses. She reports that he used to embarrass her in front of other co-workers." The worker went on to describe a specific incident in 2018 and noted she had been missing time at work in order to avoid dealing with the former supervisor.
On January 11, 2022, the worker's union representative filed additional medical information and asked the WCB to reconsider the earlier decision. The representative provided a list of the sick time the worker had taken between 2015 and 2021, along with copies of sick notes provided for the worker by her treating family physician. The representative submitted the worker had begun to use more sick time starting in 2018 "…in an effort to avoid interacting with her supervisor." The representative submitted the evidence provided supported the worker was subjected to "…offensive and objectionable behaviour…" by her former supervisor which caused a psychological injury. On January 26, 2022, the WCB contacted the employer and requested the employer speak to the worker's co-workers to gather further information regarding the incidents described by the worker.
On February 17, 2022, the employer provided two witness statements to the WCB from the worker's co-workers. One co-worker, who was interviewed by the employer on February 15, 2022, advised they had witnessed one of the incidents referred to by the worker that occurred several years ago, but recalled the incident "being brief" and done " in a joking manner," and did not recall the worker complaining to them about the incident. The co-worker did recall the worker leaving her former supervisor's office in an upset manner on one occasion, but indicated the worker did not discuss that incident with them.
The second co-worker, who was interviewed on February 16, 2022, recalled the same incident with the worker and her former supervisor and described the incident as being "…stupid, and not excusable…" but indicated they "…didn't register it as something that needed to be addressed." The second co-worker also advised that they did not recall the worker expressing concerns with respect to the former supervisor to them. On February 25, 2022, the WCB advised the worker's representative, with a copy to the worker, that the new information had been reviewed but there would be no change to the decision that the claim was not acceptable.
On March 21, 2022, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative submitted the evidence supported the worker sustained a psychological injury due to a workplace accident. The representative argued that the former supervisor's comments and behaviour towards the worker were "…wilful and intentional acts as described by WCB policy" which were "in no way related to her employment," and the former supervisor's actions were "deliberate and…intended to humiliate and demean her." The representative further submitted the medical evidence on file, including the December 4, 2021 assessment by the treating psychiatrist who concluded that the worker's presentation was consistent with an Adjustment Disorder with depressive features, which arose due to work related stressors, supported the worker experienced harassment by her former supervisor.
On May 9, 2022, Review Office determined that an accident arising out of or in the course of the worker's employment could not be established and the claim was not acceptable. Review Office found the evidence did not support that the worker was physically in danger or at risk of harm when with her former supervisor, or that the former supervisor intended to harm or injure the worker. Review Office therefore found the reported circumstances did not support an accident occurred as defined in the WCB legislation.
On June 8, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission, and a videoconference hearing was arranged for October 27, 2022.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On September 20, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident arising out of and in the course of employment. "Accident" is defined in subsection 1(1) to include "a wilful and intentional act that is not the act of the worker" and results in an injury. Subsection 4(1) provides that once such an injury is established, the worker is entitled to compensation as provided under the Act.
The WCB's Board of Directors has established Policy 44.05.30, Adjudication of Psychological Injuries (the "Policy"), the stated purpose of which is to explain the way that claims for psychological injuries are to be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.
Under the heading "Non-Compensable Psychological Injuries", the Policy provides, in part:
Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event.
The term "wilful and intentional act" is further described in the "Administrative Guidelines" to the Policy, in part, as follows:
Wilful and intentional act
Not every act is a wilful and intentional act. A wilful and intentional act is one which involves malice or bad faith. Malice or bad faith will be found when the person committing the act actually knew, or a reasonable person would know that the act was offensive or objectionable to the worker.
There are often no witnesses to the acts that give rise to harassment-type claims and there is not usually documentary or other evidence. Because of this, the WCB will make determinations of credibility and plausibility to determine if the act occurred. It will make findings of facts based upon all of the relevant evidence that is available.
The worker was represented by her union's Workers Compensation Specialist, and was accompanied at the hearing by her spouse. The worker's representative relied on a written submission which was provided in advance of the hearing, and made an oral presentation to the panel in further support of their position. The worker also filed a written submission dated July 16, 2022, and made an oral submission to the panel.
The worker's position, as outlined by her representative, was that she suffered a psychological injury at work due to harassment by her former supervisor and her claim is acceptable.
The representative noted the worker filed a WCB claim on September 29, 2021 due to psychological distress caused by harassment from her former supervisor between 2018 and October 2020. The worker reported an incident in 2018 where the supervisor had said her boot was ugly and attempted to light it on fire, as well as interactions where the supervisor would belittle her, making comments about her weight, her appearance and her self-esteem. The representative noted that the worker advised she was stressed and embarrassed and did not report the supervisor's behaviour to the employer when it occurred, but would call in sick to avoid the supervisor. The representative submitted that the worker later explained her psychological symptoms were exacerbated when she learned that a colleague at work had been in a relationship with the supervisor at the same time she was being harassed by him.
The representative acknowledged that the worker's delay in reporting the supervisor's behaviour made an investigation more difficult, but submitted that this did not justify the lack of any real inquiry or investigation by the employer or the WCB into what had happened.
The representative submitted that the limited evidence which is available supports the credibility of the worker's reports. It was noted that co-workers confirmed the 2018 incident, and it was submitted that this provides credibility to the worker's other allegations with respect to the supervisor's behaviour. The representative submitted that in the absence of evidence to the contrary, the validity of the worker's reports should be accepted.
The representative submitted that even if the 2018 incident could be considered a joke, the supervisor knew, or reasonably ought to have known his comments with respect to the worker's weight, appearance and dress were unwelcome, offensive and objectionable. The verbal assaults and invalidating behaviour which the supervisor directed towards the worker were personal in nature and had nothing to do with her employment. It was submitted that in behaving this way, the supervisor cannot have had any other reasonable motivation than to cause the worker emotional or psychological distress. The worker was not simply dealing with a difficult supervisor; rather, she was subjected to comments, unrelated to her employment, which were made with the probable intent to cause harm.
The representative submitted that the evidence further supports the accident resulted in physical injury to the worker, and medical reports from the worker's family physician and treating psychiatrist support the worker sustained a psychological injury, with symptoms of anxiety, insomnia and depressed mood, which required treatment and resulted in a loss of earning capacity.
In conclusion, the representative asked that the panel place weight on the evidence provided by the worker and accept responsibility for her psychological injury.
In her submission to the panel, the worker noted that prior to the incidents with her former supervisor, she was a hardworking, dedicated employee, with a strong work ethic. The worker submitted that the harassment affected her emotions, career and reputation, adding it was hard to articulate all the ways she had been impacted emotionally, physically, mentally and financially by this.
The worker submitted that the incident where her supervisor threatened to light her boot on fire and eventually did so occurred in 2017. The worker noted the incident left her feeling angry and humiliated, the supervisor having shown no regard for her feelings or personal safety and having never apologized to her.
The worker confirmed the supervisor also made demeaning and inappropriate comments with respect to her physical appearance, which made her feel violated and that the supervisor was attacking her character. The supervisor also made comments concerning her personal interactions with others and relationships outside of work, which led her to question her own behaviour.
The worker noted that in December 2020, a co-worker disclosed that she was engaged to be married to the former supervisor. The worker stated she experienced increased psychological distress after learning the supervisor had had a secret relationship with the co-worker, noting they intentionally kept their relationship a secret, contrary to workplace policy, which made her think about how much extra attention, privileges and preferential treatment the co-worker received at the expense of other workers.
The worker noted that in January 2021 she shared the information she had received with respect to the supervisor's relationship with the co-worker with her current supervisor, and in April 2021, she told the supervisor about the incident in 2017 with respect to her boot being lit on fire.
In July 2021, a conversation with the co-worker triggered flashbacks and memories which further exacerbated the onset of her psychological symptoms. The worker said she started to ruminate about the incidents and was losing sleep, which led her to leave work in August 2021. The worker noted that after leaving work, she was using sick time and applied for WCB and EI.
The worker stated that when she reported the incidents to human resources in September 2021, and was advised they were not going to investigate, she felt like she was being blamed for not having reported this sooner. She said it made her feel incompetent and unvalued, and contributed to her feelings of low self-worth and other insecurities. The worker said it was upsetting that the employer did not value her enough to take her complaints seriously, and shut down her concerns without allowing her to share the scope of the issues related to the relationship between the former supervisor and the co-worker and their effect on the workplace. The worker said she felt like she was to blame for not reporting this earlier, and had made a mistake, which made her feel victimized again.
The worker submitted that harassment affects a worker's self-esteem, integrity and well-being both in and out of the workplace. The workplace should be a safe place where workers are treated with dignity and respect and the supervisor's demeaning, belittling statements and behaviours left her feeling deeply humiliated and embarrassed, resulting in her being too afraid to be herself. The worker said that while the former supervisor was there, she felt her opinions and thoughts were not as important as those of other people. She noted she is starting to regain her passion for the job now that both the former supervisor and the co-worker have resigned, but that she still has a long way to go to recover and regain her self-esteem and self-worth.
The employer was represented by legal counsel, who provided a written submission in advance of the hearing and attended the hearing together with the employer's Director, Human Resources.
The employer's legal representative noted that the employer took no position with respect to the appeal and they were participating in the appeal solely to provide information if necessary.
In their written submission, the representative noted in response to the worker's July 16, 2022 submission, that:
• The worker did not disclose a complaint of disrespectful treatment to the employer until September 2021, well after the alleged incident(s) and after her former supervisor had left their employment.
• The employer had no knowledge of the relationship between the former supervisor and a co-worker until after the supervisor left their employment.
• Any concern regarding the employer's investigation into the worker's complaint was not relevant to the issues before the WCB or the appeal panel.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment. The panel is unable to make that finding for the reasons that follow.
The worker filed a claim for a psychological injury, referring to a specific incident in 2017 or 2018 and to comments made to her by the supervisor between that incident and October 2020 when the supervisor left his employment. While the worker has advanced her claim on the basis of harassment by her former supervisor, the panel is of the view that the evidence shows the primary focus of her claim, and what became so upsetting to her, was the subsequent disclosure of a relationship between her former supervisor and her co-worker.
In December 2020, the co-worker disclosed that she was engaged to be married to the former supervisor. The worker indicated that after learning that the supervisor had a secret relationship with the co-worker, she experienced increased psychological distress, noting:
They made me believe that they had strong morals and ethics. They…elaborately and intentionally kept their relationship a secret, believing that they could be objective in their actions and decisions in the workplace. Their intimate relationship made me think about how much extra attention was given to [the co-worker] in the workplace.
[The supervisor] had an obligation to report his intimate relationship with [the co-worker]…He transgressed workplace policy…[The supervisor] was [the co-worker's] direct supervisor and in a position of power…[The supervisor] failed to establish and maintain clear and appropriate boundaries.
In January 2021, the worker shared what she had learned of the relationship between the former supervisor and the co-worker with her new supervisor. In a further conversation with the co-worker in July 2021, the worker told the co-worker her relationship "undermined my position…and was damaging to me professionally." The worker noted that when the co-worker told her she needed to be responsible for her own behaviour, "but she could not manage to be honest about the nature of her relationship or follow basic workplace policy," the co-worker's comments and the conversation triggered flashbacks and memories and she "felt really targeted." The worker stated that:
I guess I was feeling really angry and agitated just, like, being around and at the centre in general, like, in regards to her because…I felt, again, like they broke…the organization's policies and put us all in a really s***** position.
The worker said that the July 2021 conversation with the co-worker "kind of just triggered me…and made me start thinking about all the other things that happened" at the workplace. The worker indicated it was this conversation which caused her to go off work and seek medical attention in August 2021, which was well after the supervisor had left the workplace.
In advancing her claim for harassment, the worker has relied on an incident in 2017 or 2018 where the supervisor had commented that her boots were ugly and lit her boot on fire one day in the common room when others were present. The evidence shows, and the worker confirmed at the hearing, that the supervisor put the fire out right away with his hands, and it does not appear that the boot was damaged. Statements obtained from two co-workers who were present at that time supported the incident occurred, but they recalled it being "brief" and "stupid, and not excusable," but not something that needed to be addressed. The worker indicated she did not report this incident to the employer until April 2021, when she brought it to the attention of her new supervisor. Based on the evidence, the panel is satisfied that the incident as described was certainly inappropriate, but is unable to find that it rose to the level of a personal attack or resulted in an injury to the worker.
In reviewing and considering the worker's claim, the panel was much more concerned with respect to comments the supervisor was said to have made with respect to the worker's appearance, including her weight and use of make-up, and her self-esteem. The worker indicated that, as is often the case, there was no one else around when the supervisor was said to have made such comments. The employer's representative indicated they did not dispute the incidents the worker described occurred. The panel accepts that personal comments were made which were not appropriate, and may have been hurtful to the worker, but is unable to find, based on the evidence and on a balance of probabilities, that such comments affected the worker to the point that they resulted in a psychological injury or accident as defined under the Act and Policy.
In this regard, the panel is satisfied that the worker has not described being deeply affected by the supervisor's comments at the time and/or the incident in 2017 or 2018, as she had suggested, and finds that that there is a lack of context to corroborate or support that the worker suffered an injury as a result. When asked at the hearing how often the supervisor would make such comments, the worker said that it was not frequent, noting the supervisor brought up her need to lose weight "a couple of times." When asked if she rebuffed the supervisor and told him the comments towards her were not appropriate, the worker said she did but "like, at some point, I eventually just stopped giving it any attention."
The worker further indicated in her evidence that she kept this to herself; that she did not confide in anyone with respect to her interactions with the worker and she only started talking about it when she eventually reported it to her new supervisor after her former supervisor had left. While the worker indicated she did not bring this up with the employer earlier because she did not feel like she knew her rights, and was worried about her reputation, the effects on the workplace and possible reprisals, the panel is of the view that it is not reasonable that the worker would not have advised anyone of these interactions or consulted someone else if she felt she was being attacked by the supervisor or was being so deeply affected as she indicated.
The worker had indicated that she was trying to cope by missing days at work to avoid interacting with the supervisor because she was anxious and intimidated by his behaviour. The panel notes, however, that a listing of sick time usage from 2015 to 2021, shows the worker's time loss was relatively consistent up until 2021, and only increased drastically in 2021, well after the supervisor had already left his employment and the worker had learned of his relationship with her co-worker.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of her employment. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of November, 2023