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November 7, 2006 |
Issue No. 72 |
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WORKERS' COMPENSATION FILE CAN BE SUBPOENAED AS EVIDENCE IN ARBITRATION HEARING, BRITISH COLUMBIA ARBITRATOR RULES Rejecting the union's contention that privacy protection requirements are always paramount, a British Columbia arbitrator has held that provisions of the provincial Workers' Compensation Act allow information in a worker's WCB file to be admitted as evidence in an arbitration proceeding if the arbitrator issues a subpoena for the file. Details below. HEALTH CARE AIDE ENTITLED TO MENTAL STRESS BENEFITS AFTER ALTERCATION WITH NURSE, ONTARIO WSIB APPEAL PANEL RULES A health care aide at a long-term care facility who was punched or poked in the shoulder and berated by a nurse for questioning a patient's medication was entitled to loss-of-income benefits under the Ontario Workplace Safety and Insurance Act for the time she spent off work because she suffered from mental stress and anxiety as a result of the incident, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The Tribunal found that the physical contact and verbal abuse made the incident traumatic in nature, the worker had suffered a psychological injury as a result, and the fact that she was particularly sensitive due to emotionally painful childhood experiences did not mean that the disabling reaction she suffered was a pre-existing condition. Details below. |
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— DETAILED REPORTS — |
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WORKERS' COMPENSATION FILE CAN BE SUBPOENAED AS EVIDENCE IN ARBITRATION HEARING, BRITISH COLUMBIA ARBITRATOR RULES The Facts: At an arbitration hearing regarding a grievance over a worker's dismissal, employer Agrifoods International Cooperative Ltd. sought to adduce information in the employee's Workers' Compensation Board file as evidence and requested that WCB officials be summoned by subpoena to testify about documents in the file and about information that they had gathered in the course of dealing with the claim. The worker's claim for benefits under the B.C. Workers' Compensation Act had initially been granted, but had then been denied after review and reconsideration. When the worker appealed this reversal, the Board, in accordance with its usual practice, sent a copy of the file to the employer. What the employer learned about the worker's conduct as revealed by information in the file was a factor in its decision to terminate his employment. Section 95(1) of the Act provides that "[o]fficers of the Board and persons authorized to make examinations or inquiries under this Part must not divulge or allow to be divulged, except in the performance of their duties or under the authority of the Board, information obtained by them or which has come to their knowledge in making or in connection with an examination or inquiry under this Part." Section 95(1.1) states that "[i]f information in a claim file, or in any other material pertaining to the claim of an injured or disabled worker, is disclosed for the purposes of this Act by an officer or employee of the Board to a person other than the worker, that person must not disclose the information except (a) if anyone whom the information is about has identified the information and consented, in the manner required by the Board, to its disclosure, (b) in compliance with an enactment of British Columbia or Canada, (c) in compliance with a subpoena, warrant or order issued or made by a court, tribunal, person or body with jurisdiction to compel the production of information, or (d) for the purpose of preparing a submission or argument for a proceeding under this Part, Part 3 or Part 4." Section 95(1.2) provides that "[n]o court, tribunal or other body may admit into evidence any information that is disclosed in violation of subsection (1.1)." The union objected to the admissibility of the WCB file, arguing that this would contravene s.95(1), and the arbitrator held a preliminary hearing on this issue. The Arguments: Before the arbitrator, the union argued that s.95(1) is a blanket prohibition against disclosure of the WCB file or its contents. The only exception, in the union's view, is that section 96(2) of the Act allows the Board and its employees to divulge information and the file itself to an employer if an employee has appealed a decision of the Board. Even then, the union submitted, the legislation permits the employer only to receive and review the file, but not to reveal its contents. Therefore, the union maintained, the worker's file was not admissible before the arbitrator and WCB officials could not be called to testify about its contents. In the alternative, if the arbitrator found that s.95(1) is not a blanket prohibition against disclosure, the union argued that he should deny the employer's request because the worker's right to privacy should be preferred on a "balancing of interests" test to the employer's right to ascertain facts. The employer replied that, while the right of workers to privacy with regard to information collected by the Board in determining claims was indeed an important underpinning of the Act, the statutory scheme did provide for exceptions. One of the exceptional circumstances in which the security of the file and its contents could be breached, the employer submitted, was in compliance with a subpoena issued by a competent tribunal, as provided in s.95(1.1)(c), and the arbitrator had the authority to issue such a subpoena under the Labour Relations Code. Therefore, the employer argued, it was acting exactly as it should and in full compliance with the spirit of the statutory scheme in asking the arbitrator to exercise his power in the manner requested. The Decision: Holding that "the various subsections of the Act must be read together in order to fully understand the statutory scheme and purpose," Arbitrator John Sanderson accepted the employer's position that the WCB file was admissible by subpoena under the provisions of s. 95(1.1)(c). Arbitrator Sanderson agreed with the importance of protecting privacy rights under the Act, but found that "the clear statutory direction imposed by s.95(1.1)" was that those rights are not paramount in every case. He considered that "[i]n the circumstances before me, refusing to issue a subpoena would effectively read this provision out of the Act." Sanderson concluded that "[t]here is no question that I have the power to issue subpoenas under the Labour Relations Code. Whether I should do so is a factual rather than a legal determination. In this case, the grievor's right to privacy must be balanced against the need for all of the significant and relevant facts to be available and presented at arbitration and for the parties to receive a fair hearing. In the circumstances of this case, the factual information sought to be introduced is relevant and perhaps determinative in dealing with the merits of the grievance." While emphasizing that "I do not wish to be seen as having ruled that any specific piece of evidence is automatically admissible, notwithstanding issues of relevance or other evidentiary concerns that may arise in the course of the arbitration hearing," Arbitrator Sanderson decided to issue the subpoenas as requested by the employer. Case Name: Teamsters Local Union No. 464 v. Agrifoods International Cooperative Ltd. |
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HEALTH CARE AIDE ENTITLED TO MENTAL STRESS BENEFITS AFTER ALTERCATION WITH NURSE, ONTARIO WSIB APPEAL PANEL RULES The Facts: On May 16, 2001, a health care aide at an Ontario long-term care facility questioned a registered nurse at the start-of-shift briefing about the appropriateness of a new medication that the nurse said had been ordered for a particular patient. This turned into a confrontation in which the nurse became very angry, came face to face with the worker, said that the worker wasn't yet an R.N. and didn't know everything, and punched or poked her in the shoulder. The employee reported the incident to the director of nursing and subsequently to the police, although charges were not pursued. Following the incident, the worker found herself so stressed and anxious whenever she entered the workplace that she was unable to work. On May 24, the worker's physician diagnosed acute reactive anxiety, and told her to stay off work until the beginning of July, and then to avoid working with the nurse who had been abusive. The physician also referred the worker to a psychiatrist who had counseled her as a teenager. On her return to work in July, the employer assigned her to a different unit, but declined to follow the doctor's recommendation that she be transferred to the night shift to avoid any possibility of encountering the nurse involved in the incident. The worker found herself too stressed and anxious to work in these circumstances, and took other employment at lower pay until the end of August, when the employer finally agreed to put her on the night shift. The worker's strong reaction to the incident was partly shaped by her difficult childhood, during which she was abandoned by her mother at age four, her father was subsequently admitted to a psychiatric facility, and she suffered neglect in a foster home and abuse from an adoptive family. In a June 13, 2001 report, the worker's psychiatrist said that "[t]he problem here is a transference from mother figures abusing and abandoning, being re-activated by the situation which would result in a lot more distress and anxiety than perhaps one would ordinarily expect." In August 2001, he noted that "[c]ertainly, this person is going to be sensitive to injustice involving authority figures." The Ontario Workplace Safety and Insurance Board denied the worker's claim for loss of income benefits for mental stress resulting from the incident, taking the view that the incident was not traumatic. An Appeals Resolution Officer denied her appeal of this decision, and she appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal. Section 13(5) of the Ontario Workplace Safety and Insurance Act provides that "[a] worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment." Document 15-02-02 of the Board's Operational Policy Manual addresses the meaning of "acute reaction" by stating, in part, that "[w]orkers who develop mental stress gradually due to general workplace conditions are not entitled to benefits. However, gradual reactions to general workplace conditions must not be confused with delayed acute reactions to sudden and unexpected traumatic events. Acute reactions may be delayed by days, weeks or months." The document defines a "traumatic" event as "an event that would generally be recognized as traumatic. Traumatic events are usually horrific, or have elements of actual or threatened violence to the worker. The event must also be uncommon in the normal course of the worker's employment.... Also an event may be considered traumatic even if other workers exposed to the same event did not experience ill effects. Not all workers have the same resilience to sudden and unexpected traumatic events." The Arguments: Before the Tribunal, the Board argued that the incident that was alleged to have caused the worker's debilitating stress and anxiety was a minor confrontation that was neither violent nor threatening enough to constitute a traumatic event under the Act and Board policies. It further argued that, if childhood experiences caused the worker to react so exceptionally to an event of this nature, then her time off work was due to a pre-existing condition rather than to a workplace injury that entitled her to benefits. The worker replied that the nurse's actions had been both violent and threatening, and that she had been genuinely traumatized by the incident, suffering mental stress and anxiety that made her unable, on doctor's orders, to work for several months. She also emphasized that, despite her painful childhood, she had been in good health and able to work normally until the incident, and that she was later able to work elsewhere and to become a registered nurse. What was at issue here was an injury sustained in the course of her work, she maintained, and she was therefore entitled to benefits. The Decision: Finding that "[b]eing yelled at, berated and humiliated in front of co-workers, while being aggressively poked (or punched), constitutes a traumatic event," the Ontario Workplace Safety and Insurance Appeals Tribunal allowed the worker's appeal and ruled that she was entitled to benefits to compensate her for her loss of earnings from May 16 to August 26, 2001. Writing the unanimous decision of a three-member panel of the Tribunal, Vice-Chair Rosemarie McCutcheon found that "there was a disabling mental reaction beyond a transitory emotional response" to the incident and that this reaction was causally related to the incident. In determining whether the disability was caused by the traumatic incident or by an underlying condition resulting from the worker's childhood experiences, McCutcheon cited the common law doctrine of the distinction between "thin skull" and "crumbling skull", as discussed in Decision No. 826/94 (1995), 36 W.C.A.T.R. 102:
Noting that "there is no evidence that the worker required psychiatric treatment since she was a teenager, and the evidence suggests that she was, in fact, quite resilient" and that "the worker's disability was not disproportionate to the incident that occurred," McCutcheon held that "this case does not present a 'crumbling skull' scenario." She determined on behalf of the Tribunal that the worker was entitled to benefits, reduced by the amount of her other earnings, for the period until July 1, 2001 when she was off work on doctor's orders and for the subsequent period until August 26, 2001 during which she was unable to return to work because the employer had not complied with medical advice to transfer the worker to the night shift to avoid any possibility that she would encounter the nurse with whom she had the traumatizing altercation. Case Name: Decision No. 1527/05 |
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