IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Atkins v. British Columbia (Workers’ Compensation Appeal Tribunal), |
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2018 BCSC 1178 |
Date: 20180713
Docket: S177807
Registry: Vancouver
In
The Matter Of The
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241
And
In The Matter Of The
Administrative Tribunals Act, S.B.C. 2004, c. 45
Between:
Linda Atkins
Petitioner
And
Workers’
Compensation Appeal Tribunal
and Fraser Heath Authority
Respondents
Before: The Honourable Mr. Justice Milman
Reasons for Judgment
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Counsel for the Petitioner: |
P. Eastwood |
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Counsel for the Respondent, Workers’ Compensation Appeal Tribunal: |
J.T. Lovell |
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Counsel for the Respondent, Fraser Health Authority: |
N. Toye |
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Place and Dates of Hearing: |
Vancouver, B.C. May 29 and 30, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. July 13, 2018 |
Table of Contents
II. The Impugned Basis for the Decision
A. Ground 2: Did the Vice Chair improperly apply a purely objective test?
ii. The Employer’s Argument and WCAT Precedents
B. Ground 3: Did the Vice Chair rely on and apply an irrelevant policy?
[1] This is a petition seeking judicial review of a decision of the Workers Compensation Appeal Tribunal (“WCAT”).
[2] The petitioner, Ms. Atkins, is a licensed practical nurse who formerly worked for the respondent, Fraser Health Authority (the “Employer”), as a Home Health Liaison out of Peace Arch Hospital in White Rock, British Columbia. Her duties included assessing and arranging community care for patients. Ms. Atkins claims that while she was working in that capacity in April 2015, she developed post-traumatic stress disorder (“PTSD”) as a result of an incident (the “Incident”) that occurred between her and a patient’s son, who is referred to throughout the record below and in these reasons as “A.”
[3] On that occasion, Ms. Atkins was arranging the discharge of A’s mother from the hospital. A did not believe his mother was ready to be discharged. As they were preparing for a meeting with the patient’s health care team, A became angry, agitated and aggressive. Among other things, he yelled at Ms. Atkins, followed her into a small room and barred her from exiting the room by placing his hands on the doorway before ultimately withdrawing. It is not disputed, at least on this review, that Ms. Atkins was traumatized by the Incident because of a heightened sensitivity attributable to a history of severe physical and emotional abuse that was primarily unrelated to her work.
[4] Following the Incident, Ms. Atkins went on medical leave. She returned to work and went back on medical leave several times before she finally stopped working on December 11, 2015.
[5] On December 21, 2015, Ms. Atkins applied for compensation under the Workers Compensation Act, R.S.B.C. 1996 c. 492 [WCA], alleging that as a result of the Incident she suffered from a compensable mental disorder within the meaning of s. 5.1 of the WCA.
[6] The Workers’ Compensation Board, operating as WorkSafeBC (the “Board”), by a decision dated January 20, 2016, refused the application. Ms. Atkins appealed that decision to a Review Officer, who, by a decision dated June 30, 2016, dismissed the appeal and affirmed the original decision of the Board. Ms. Atkins appealed again to WCAT, which conducted its own hearing and, by a decision made June 19, 2017 and indexed by WCAT as Number A1605033 (the “Decision”), also dismissed her appeal.
[7] Among other things, the Vice Chair concluded in his reasons that Ms. Atkins did not qualify for compensation under s. 5.1 of the WCA because the Incident was not, viewed objectively, a “traumatic event”, as it was required to be in order for her to be entitled to compensation under that provision.
[8] Ms. Atkins now applies to this Court for a review of the Decision under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 and s. 57 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA], arguing that the Decision in that respect was patently unreasonable. She seeks an order setting the Decision aside and remitting the matter back to WCAT for reconsideration.
[9] The application is opposed by the Employer and WCAT. Although counsel for the Employer took the lead in arguing against the application, counsel for WCAT made submissions as to WCAT’s standing on this review, the standard of review and costs and brought certain of its own previous decisions to my attention, without objection from Ms. Atkins’ counsel.
[10] The application for review focuses primarily on only one aspect of the Decision – i.e., whether the Incident qualified as a “traumatic event” within the meaning of s. 5.1 of the WCA. That provision states as follows:
5.1 (1) Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder
(i) is a reaction to one or more traumatic events arising out of and in the course of the worker's employment, or
(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment,
(b) is diagnosed by a psychiatrist or psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis, and
(c) is not caused by a decision of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker's employment.
…
(2) The Board may require that a psychiatrist or psychologist appointed by the Board review a diagnosis made for the purposes of subsection (1) (b) and may consider that review in determining whether a worker is entitled to compensation for a mental disorder.
(3) Section 56 (1) applies to a psychiatrist or psychologist who makes a diagnosis referred to in this section.
…
"psychiatrist" means a physician who is recognized by the College of Physicians and Surgeons of British Columbia, or another accredited body recognized by the Board, as being a specialist in psychiatry;
"psychologist" means a person who is
(a) a registrant of the college responsible for carrying out the objects of the Health Professions Act in respect of the health profession of psychology, or
(b) entitled to practise as a psychologist under the laws of another province.
…
[11] In considering whether the Incident qualified as a “traumatic event” within the meaning of that provision, the Vice Chair referred to Board Policy #C3-13.00 (the “Policy”). The Policy is found in the Rehabilitation Services and Claims Manual, Volume II (RSCM II). The Vice Chair treated it as binding on him pursuant to s. 250 of the WCA, pursuant to which, “[WCAT] must make its decision based on the merits and justice of the case, but in so doing the appeal tribunal must apply a policy of the board of directors that is applicable in that case.”
[12] The Policy states in relevant part as follows:
B. Was there one or more events, or a stressor, or a cumulative series of stressors?
In all cases, the one or more events, stressor or cumulative series of stressors, must be identifiable. The worker’s subjective statements and response to the event or stressor are considered; however, this question is not determined solely by the worker’s subjective belief about the event or stressor. The Board also verifies the events or stressors through information or knowledge of the events or stressors provided by co-workers, supervisory staff or others.
C. Was the event “traumatic” or the work-related stressor “significant”?
All workers are exposed to normal pressures and tensions at work which are associated with the duties and interpersonal relations connected with the worker’s employment.
For the purposes of this policy, a ‘traumatic’ event is an emotionally shocking event, which is generally unusual and distinct from the duties and interpersonal relations of a worker’s employment. However, this does not preclude a worker who, due to the nature of his or her occupation, is exposed to traumatic events as part of their work (e.g., emergency workers).
In most cases, the worker must have suffered or witnessed the traumatic event first hand. The reaction to the traumatic event or events is typically immediate and identifiable. In some situations, however, the reaction may be delayed.
A work-related stressor is considered “significant” when it is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment.
Interpersonal conflicts between the worker and his or her supervisors, co-workers or customers are not generally considered significant unless the conflict results in behavior that is considered threatening or abusive.
Examples of significant work-related stressors may include exposure to workplace bullying or harassment.
While specific reference is made to emergency workers under traumatic events above, this does not preclude consideration of emergency workers under the significant stressor provisions.
D. Causation
(i) Was the mental disorder a reaction to one or more traumatic events arising out of and in the course of the worker’s employment?
The Act requires that the mental disorder be a reaction to one or more traumatic events arising out of and in the course of the worker’s employment. This requires the Board to determine the following:
· Did the one or more traumatic events arise in the course of the worker’s employment?
This refers to whether the one or more traumatic events happened at a time and place and during an activity consistent with, and reasonably incidental to, the obligations and expectations of the worker’s employment.
· Did the one or more traumatic events arise out of the worker’s employment?
This refers to the cause of the mental disorder. Both employment and non-employment factors may contribute to the mental disorder. However, in order for the mental disorder to be compensable, the one or more traumatic events have to be of causative significance, which means more than a trivial or insignificant cause of the mental disorder.
In making the above determinations, the Board reviews the medical and non-medical evidence to consider whether:
· there is a connection between the mental disorder and the one or more traumatic events, including whether the one or more traumatic events were of sufficient degree and/or duration to be of causative significance in the mental disorder;
· any pre-existing non-work related medical conditions were a factor in the mental disorder; and
· any non-work related events were a factor in the mental disorder.
The Board is required to determine whether there is sufficient evidence of one or more traumatic events that are of causative significance in the mental disorder.
Where there is insufficient evidence that the one or more traumatic events arose out of and in the course of the worker’s employment, the mental disorder is not compensable. A speculative possibility that the one or more traumatic events contributed to the mental disorder is not sufficient.
…
[13] The Vice Chair summarised the effect of the applicable legislation and policies as follows:
[91] Section 5.1 of the [WCA] provides that a worker is eligible for compensation in respect of any diagnosed mental or psychological disorder described in the most recent Diagnostic and Statistical Manual of Mental Disorders, Volume 5, where that disorder is a reaction to one or more traumatic events arising out of and in the course of the worker’s employment, or is predominantly caused by a significant workplace stressor or a series of significant workplace stressors arising out of and in the course of that worker’s employment.
[92] Section 5.1 adds that the diagnosis referred to in that section must be made by a psychologist or psychiatrist. The same section provides that a claim cannot be established in respect of an employer’s decision relating to the worker’s employment, including decisions respecting work to be performed, working conditions, discipline, and/or termination of the worker’s employment.
[93] Section 250(2) of the Act requires WCAT to apply published policy of the board of directors of the Board, subject to the provisions of section 251 of the Act. The Rehabilitation Services and Claims Manual, Volume II (RSCM II) contains the published policy applicable to this appeal.
[94] Policy item #C3-13.00 from the RSCM II discusses the adjudication of claims under section 5.1 of the Act. It provides that, when assessing an assertion that there was an event or stressor, or series of events of stressors, the worker’s subjective statements are considered; however, information provided by co-workers, supervisory staff, and others may also be considered.
[95] In terms of traumatic events, the policy equates traumatic with something “emotionally shocking” and generally unusual, distinct from job duties and interpersonal conflicts. The policy notes that this does not preclude compensation for individuals who deal with traumatic events as part of their job duties. Additionally, generally, for an event to be considered traumatic, the worker must have observed it firsthand.
[96] In terms of work-related stressors, they rise to the level of “significant” where they are excessive in intensity or duration, distinct from the normal pressures and tensions of a worker’s employment. Interpersonal conflicts do not generally qualify, unless the conflict results in behaviour that is threatening or abusive.
[97] In assessing whether a disorder stemming from a traumatic event arose out of the employment, the Board will consider whether the traumatic events were more than a trivial or insignificant factor in the development of the disorder.
[14] Having done so, the Vice Chair then referred to and looked for guidance in a practice directive (#C3-3) concerning bullying and harassment (the “Practice Directive”). He explained his reasoning for doing so as follows:
[101] In deciding this appeal, I also found useful the definition of bullying and harassment provided in the Board’s Practice Directive #C3-3. While that document is not binding policy, it provides guidance in the adjudication of claims for mental disorders and seeks to foster consistency and quality in decision-making. I have considered it in that light. According to the practice directive, in general terms, both bullying and harassment reflect conduct that is intended to, or should reasonably have been known would, intimidate, humiliate, or degrade an individual.
[15] The Vice Chair recognised the need for expert evidence in resolving the primary issue before him, which he understood to be whether Ms. Atkins’ condition was a compensable one under s. 5.1 of the WCA. In that regard, he also appears to have accepted that the psychological evidence before him (i.e., primarily the report of Dr. Bubber, a psychologist), established to his satisfaction that the Incident was the sole “trigger” for the onset of Ms. Atkins’ PTSD:
[103] The issue under appeal requires the input of psychological evidence. It is not within the experience and knowledge of a layperson to determine the diagnosis and etiology of a psychological disorder. The psychological evidence relates the worker’s psychological condition to her encounter with A and to other, more distant elements of her history. The question of whether her condition worsened to the point of temporary disability is not before me. The intensity of her psychological condition is not at issue. I must decide only the compensability of her psychological condition and, based on the psychological evidence, only her encounter with A potentially contributes to that condition.
[104] …. Dr. Bubber provided the most detailed and nuanced assessment of the worker’s condition and I accept, based on her evidence, that the worker’s encounter with A was the singular trigger for her PTSD of delayed onset.
…
[107] The worker’s position is that her interaction with A constituted a traumatic event and that her condition continued to deteriorate with her subsequent exposure to further traumatic incidents and to significant workplace stressors. The worker’s argument seems to emphasize her interaction with A as the most significant incident leading to her diagnosed mental disorder. This is also supported by the psychological evidence and, in particular, the opinion of Dr. Bubber.
[16] Recognising the centrality of the Incident to Ms. Atkins’ claim, the Vice Chair then summarised in detail his findings as to what occurred during the Incident:
[108] I have made factual findings as to the circumstances of the worker’s interaction with A. Because of the importance of that encounter, I will present my findings in detail. Those findings are as follows.
[109] The worker was to meet with A in or around April 2015, to discuss his mother’s discharge from hospital. A was visibly distressed when the worker arrived for their meeting. While the worker seems to have made some inference about the conduct of A from her assessment of nursing staff present at that time, I make no such inference. I accept that nurses nearby were not interacting with A at that time and were busying themselves at their workstation; however, I do not consider these circumstances sufficient to establish any reason(s) for the situation or to lead to any conclusion about A’s demeanour or previous behaviour.
[110] A nurse identified the worker as a home health worker and A followed her to the location of their scheduled meeting, attempting to discuss his mother’s discharge with the worker. A followed the worker to the meeting room and placed both hands on the doorframe. There was no other route of egress from the room. A was flushed in the face and was speaking loudly or was yelling. He was in some level of distress out of concern for his mother’s care.
[111] I do not agree with the worker’s representative that A clearly intended to trap the worker in the room by adopting the posture that he did. The representative stated it was not normal for someone to adopt such a posture. I disagree that this posture has the implied expression of threat or intimidation inferred by the worker and her representative. People of all different shapes and sizes might adopt different postures and I do not consider the facts sufficient to establish that A intended to make the worker feel trapped or even that he reasonably should have known that the worker would have felt trapped. The same analysis applies for feelings of threat or intimidation. There has been no evidence that A did or said anything threatening, beyond the worker’s subjective perception of his posture and manner of speech as such. Furthermore, the worker has provided divergent accounts of what occurred in her encounter with A and I do not consider her to be a reliable historian when it comes to the details of this incident.
[112] I do not doubt that the worker perceived A’s posture as threatening. I find that the worker feared A would not let her leave the meeting room. The worker reported to the Board that A had threatened her but I do not find that convincing, given that she could not recall what he had said. In the oral hearing, the worker stated she could not understand what A said during the meeting. This makes me cautious in accepting the worker’s version of events unreservedly. It seems that she communicated her perceptions and conclusions even where those are not established by the evidence and where, as here, it seems she inferred conduct based on her feelings. As I have already noted, she also provided divergent accounts of what took place during this encounter.
[113] For these reasons, I do not accept that the others in the meeting room were shaken. I am satisfied that the worker was shaken but the fact that the others did not turn to look at A does not establish to my satisfaction that they were shaken by the conduct of A. Similarly, while the worker’s co-workers in the room commended the worker for her handling of A, this does not mean that A’s conduct was objectively as perceived by the worker or that the reactions of the co-workers were as perceived by the worker. That these co-workers commended the worker’s skilful handling of an upset member of the public does not mean they considered that member of the public to have been threatening.
[17] Having made those findings, the Vice Chair concluded, on the following grounds, that the Incident was not a “traumatic event” for the purpose of s. 5.1 of the WCA, even though he accepted that Ms. Atkins, due to her personal history of abuse, perceived it as such:
[114] The worker’s inferences are a product not only of her observations but her previous experiences. The worker has a significant history of abuse at the hands of her ex-husband and has experienced other traumatic incidents in her life. This was the point made by Dr. Bubber, who explicitly stated that, whether or not A intended to threaten or intimidate the worker, the worker genuinely felt threatened given her vulnerability to perceiving stressors as threatening to her.
[115] The employer’s representative argued that I should seek a psychological opinion from the Board or an independent health professional in response to Dr. Bubber’s opinion. I disagree. Dr. Bubber’s assessment does not strike me as being partial to the worker. It is detailed and based on an accurate understanding of the facts. I am able to arrive at a sound conclusion with confidence with respect to the issue under appeal after having considered Dr. Bubber’s evidence and I do not consider additional evidence to be necessary. I consider that gathering further evidence would unnecessarily prolong this appeal.
[116] The critical question in this case is whether the worker’s subjective perception of A as threatening is sufficient to make her encounter with A traumatic, as described in Board policy. The policy describes traumatic events as those that are “emotionally shocking” and generally distinct from a worker’s job duties and interpersonal conflicts. The policy also provides the guidance that ‘The reaction to the traumatic event is typically immediate and identifiable. In some situations, however, the reaction may be delayed.’
[117] None of that guidance as to the event being distinct from a worker’s job duties generally or as to the immediacy of the reaction is determinative. As noted in Cima [i.e., Cima v. Workers Compensation Appeal Tribunal, 2016 BCSC 931], the question of whether something is traumatic depends on the perspective of the “victim”. Importantly, however, the same case makes clear that the analysis under policy item #C3-13.00 is not entirely subjective. At paragraph 57 of that decision, Young J. noted that there needed to be “some subjectivity to the analysis” after criticizing a previous WCAT panel for providing insufficient subjective consideration to a worker’s experience related to a claim in respect of a mental disorder.
[118] The policy itself also makes clear that the analysis is not entirely subjective, but will include consideration of a worker’s subjective experience insofar as it states:
The worker’s subjective statements and response to the event or stressor are considered; however, this question is not determined solely by the worker’s subjective belief about the event or stressor. The Board also verifies the events or stressors through information or knowledge of the events or stressors provided by co-workers, supervisory staff or others.
[119] This leaves open to what extent the worker’s subjective experience matters and to what extent the objective circumstances matter in deciding whether an event meets the Board’s definition of traumatic. Young J. was critical of a WCAT decision at issue in Cima for involving little if any consideration of the worker’s subjective experience. In this case, the worker’s subjective experience was related to the Board, to Dr. Bubber, and in detail to me in the oral hearing. I have weighed her subjective experience carefully and accept the conclusion of Dr. Bubber, that the worker genuinely found A’s demeanour to be threatening. I have no difficulty accepting that the worker found that incident to be traumatic.
[120] My concern is that I do not consider the encounter with A to be objectively traumatic. I agree with the employer’s representative that this does not seem to have been distinct from the pressures of the worker’s job and that the worker had a delayed reaction to her encounter with A, although Board policy states these questions are not determinative. A’s conduct was inappropriate, as the employer’s representative conceded, and I consider that it fell far along the continuum of behaviour the worker could expect to encounter given her work as a home health liaison.
[121] While the worker testified that she found this encounter to be unlike anything she had previously experienced, I do not accept her evidence on that point. As noted by Dr. Bubber, the worker was prone to exaggeration. While generally the testimony she provided was credible, I found her to overstate some aspects of her reactions, in particular in terms of her encounter with A. This is one such circumstance. I have no difficulty accepting that A’s conduct was inappropriate and was on the extreme of what the worker might be expected to deal with in her role as a home health liaison; however, I do not accept that an individual resting his hands on the doorframe and shouting was objectively dissimilar from what might be expected in the context of the worker’s job. Had A grabbed the worker, similar to the circumstances described in WCAT‑2014-04168, I may have arrived at a different conclusion; however, the facts in this case do not support a finding that the worker’s encounter with A was objectively traumatic.
[122] The Board’s Practice Directive #C3-3 provides some insight. Interestingly, it references an objective test in weighing whether bullying and harassment is found to exist, but not an objective test based on the experience of the victim; rather, the test is on what the supposed bully or harasser should have expected the worker’s reaction to be. This supports that there is an objective component to be considered in assessing the perception of the victim. In the circumstances of this case, based on the practice directive, A could be said to be bullying or harassing the worker only if he intended to intimidate, humiliate, or degrade her (which I have found to not be the case based on the evidence before me) or if he should have reasonably known that the worker would be intimidated, humiliated, or degraded.
[123] It is here that the worker’s case fails. Dr. Bubber’s evidence makes it clear that the worker’s PTSD results from experiences in the worker’s past, ranging from her childhood to horrific experiences she had in her abusive marriage and to her assault in 2002. These experiences left the worker so vulnerable to a trigger for delayed onset PTSD that A, resting his hands on a doorframe and angrily and with a raised voice, talking to the worker about her job, activated her psychological condition. These are not circumstances that were objectively threatening. I do not consider that A should have known that the worker had such significant, pre‑existing psychological vulnerability. I consider this to be in keeping with interpersonal conflict that is to be expected given the nature of the worker’s job. This is also unlike the situation in Cima, where the court determined that a supervisor ought to have known that sending a text message calling a worker with a known speech impairment a “retard” would be humiliating and degrading to that worker.
[124] It is also significant to me that the diagnostic criteria for PTSD, the condition with which the worker was diagnosed, require experiences involving “[e]xposure to actual or threatened death, serious injury, or sexual violence….” The worker’s interaction with A does not meet those requirements. Her previous experiences in life did, but this also supports that her PTSD is not a reaction to her encounter with A but a reaction to those prior incidents. The encounter with A served as a trigger for but not a cause for the underlying condition, which related to the worker’s difficult psychological history.
[125] Section 5.1 of the Act describes accepting mental disorders that do not accompany physical injuries and that may only be compensable if they satisfy three criteria. The first criterion discusses both responses to trauma and work-related stressors.
[126] A compensable mental disorder may be related to trauma where the disorder is a reaction to one or more traumatic events arising out of and in the course of the worker’s employment. I have found that A’s behaviour was not a traumatic event because only the worker perceived it to be so based on her significant psychological history. I have also found, more significantly, that the traumatic events giving rise to the worker’s diagnosis of PTSD were generally remote and not arising out of and in the course of her employment. …
[127] A compensable mental disorder may also be related to a significant work-related stressor or collection of such stressors if the disorder was predominantly caused by that/those stressor(s) arose out of and in the course of the worker’s employment. In this case, the worker’s PTSD was caused by her non-work-related history of observing and experience personal abuse and by her assault at work in 2002, which coincided with a physical injury. Her mental disorder may have been triggered by an event at work, but it was not predominantly caused by such an event. Reading Dr. Bubber’s report as a whole, it strikes me that the trigger event was significant in that it mirrored the other, more significant experiences the worker had accrued throughout her life. Additionally, the trigger event does not satisfy the diagnostic criteria for PTSD while those previous events did. For these reasons, I consider it more likely than not that the worker’s PTSD was primarily caused by the worker’s historical exposure to trauma.
[128] I have also considered whether the encounter with A aggravated any pre‑existing psychological condition, whether or not it was diagnosable at the time, as argued by the worker’s representative. This includes consideration of whether activation of the pre-existing psychological condition qualifies the worker for compensation. The worker’s appeal fails on that ground for similar reasons. Specifically, the other events described by the worker do not amount to traumatic events. I agree with the worker and her representative that her experience with A was likely the most threatening to her, but even that event did not meet the threshold for “traumatic” as set out in policy item #C13-13.00. The other unpleasant yet milder incidents involving the worker’s co-workers, various patients, B, C, and D do not reach that threshold.
[Emphasis added]
[18] On that basis, the Vice Chair dismissed Ms. Atkins’ appeal.
[19] It is common ground that the Decision can only be set aside on a showing that it was patently unreasonable.
[20] In Edwards v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCSC 582, Gaul J. summarised the jurisprudence governing the applicable standard of review in cases such as this as follows:
[48] There is a healthy body of jurisprudence that explains the meaning of “patent unreasonableness”.
[49] In Vandale v. British Columbia (Workers’ Compensation Appeal Tribunal), 2013 BCCA 391, Mr. Justice Frankel explained the “patently unreasonable” standard in the context of a judicial review of a WCAT decision as follows:
[41] …That standard requires that a tribunal's decision be accorded a high degree of deference. Indeed, in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23 at para. 18, [2004] 1 S.C.R. 609, Mr. Justice Major stated that, "[a] definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd." In Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52, [2003] 1 S.C.R. 247, Mr. Justice Iacobucci said, "[a] decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand."
[42] In Speckling v. British Columbia (Workers' Compensation Board), 2005 BCCA 80 at para. 33, 46 B.C.L.R. (4th) 77, Madam Justice Levine accepted the following as an accurate summary of the approach to be taken in applying that standard:
1. The standard of review is that of patent unreasonableness: Canada (Attorney General) v. P.S.A.C. (1993), 101 D.L.R. (4th) 673 (S.C.C.).
2. "Patently unreasonable" means openly, clearly, evidently unreasonable: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
3. The review test must be applied to the result not to the reasons leading to the result: Kovach v. British Columbia (Workers' Compensation Board) (2000), 184 D.L.R. (4th) 415 (S.C.C.).
4. The privative clause set out in s. 96(1) of the Act [now ss. 254 and 255] requires the highest level of curial deference: Canada Safeway v. B.C. (Workers' Compensation Board) (1998), 59 B.C.L.R. (3d) 317 (C.A.)
5. A decision may only be set aside where the board commits jurisdiction error.
6. A decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245, and Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation et al (1997), 144 D.L.R. (4th) 385 (S.C.C.).
[Emphasis in original.]
She further stated:
[37] As the chambers judge noted, a decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is "openly, clearly, evidently unreasonable", can it be said to be patently unreasonable. That is not the case here.
[Emphasis in original.]
[50] In Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 496, leave to appeal refused [2015] S.C.C.A. No. 60, Tysoe J.A. considered the “patently unreasonable” standard of review and concluded:
[37] There is no question about whether the standard of review to be applied to the fourth decision of the Board's reconsideration panel is patent unreasonableness. Section 58 of the ATA is clear in that regard. The disputed issue relates to the meaning of the term "patently unreasonable".
…
[39] In Law Society of New Brunswick v. Ryan, 2003 SCC 20, a case decided shortly before the enactment of the ATA, the Supreme Court of Canada described the standard of patent unreasonableness in respect of non-discretionary decisions as follows:
[52] The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam [Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted "in the immediacy or obviousness of the defect". Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.
[Emphasis added]
[21] In Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 576, aff’d 2012 BCCA 304, Rogers J. described how the reviewing court must deal with flawed or unreasonable logic in the decision under review:
Even if there are aspects of the reasoning which the court considers flawed or unreasonable, so long as they do not render the decision taken as a whole to be patently unreasonable, the decision is not patently unreasonable.
[Emphasis added by Rogers J.]
[22] Ms. Atkins asserts that the Decision was patently unreasonable and should be set aside on the following four grounds:
(a) there was no evidence to support the Vice Chair’s conclusion that the Incident was not traumatic or outside her previous experience;
(b) the Vice Chair applied an incorrect test by requiring Ms. Atkins to establish that the event was “objectively traumatic”;
(c) the Vice Chair based the Decision at least in part on an irrelevant practice directive concerning bullying and harassment; and
(d) the Vice Chair improperly preferred his own opinion over that of an expert in answering a question that should have been answered relying solely on the expert opinion evidence before him.
[23] As counsel for Ms. Atkins acknowledged during his oral argument, there is considerable overlap in the four grounds of review. With the second ground of review, Ms. Atkins challenges the legal test that the Vice Chair applied in determining whether an event qualifies as “traumatic” under s. 5.1 of the WCA. I will therefore begin my analysis with that ground. The third and fourth grounds raise discrete issues directed at the Vice Chair’s application of that test, so I will turn to those grounds next. Lastly, I will address the first ground, which deals with the evidence (or lack of it) that the Vice Chair relied upon in reaching his conclusions. After considering all four grounds individually, I will conclude my analysis by determining whether the Decision as a whole should be set aside as patently unreasonable in light of my findings on each of the grounds collectively.
[24] Ms. Atkins contends that the Vice Chair erred in law by applying a test requiring her to prove that the event was both subjectively and objectively traumatic. It should have been sufficient, her counsel submits, for her to show that the event was traumatic for her, in light of her personal history (as indeed the Vice Chair accepted it was).
[25] The Vice Chair’s test was patently unreasonable, it is argued, because it is inconsistent with the decision of the Court of Appeal in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188, and of this Court in Cima v. Workers Compensation Appeal Tribunal, 2016 BCSC 931.
[26] The worker in Plesner was an auxiliary steam plant operator who had been present at the plant when a truck ran over a natural gas pipeline, causing it to rupture. The gas leak was contained after just over an hour. Mr. Plesner claimed to have developed PTSD as a result of that experience, particularly his fear of an imminent explosion. He was initially denied benefits on the basis that he “had not experienced an acute reaction to a sudden and unexpected traumatic situation” as was required by the predecessor to the Policy, as it then read: Plesner at para. 24.
[27] Mr. Plesner appealed that finding to the Review Division and from there to WCAT, without success at either level. He was successful on his application for judicial review in this Court, but on grounds that were later agreed by the parties to have been incorrect. The matter was finally resolved by the Court of Appeal. By the time it came before that Court, the sole issue was whether s. 5.1 of the WCA and the Policy (as they then read) infringed s. 15 of the Charter. The majority found that they did.
[28] Justice Prowse, with whom Frankel J.A. concurred, found that s. 5.1 of the WCA when read in conjunction with the Policy, unjustifiably infringed s. 15 of the Charter because they discriminated against persons seeking compensation for work-related mental injuries by imposing arbitrary barriers to compensation that did not apply to those seeking compensation for work-related physical injuries.
[29] The problem Prowse J.A. identified is apparent from the first paragraph of the majority judgment:
[89] Mr. Plesner suffered post traumatic stress disorder (‘PTSD’) as a result of the rupture of a natural gas pipeline at his workplace on January 16, 2003. There is no question that this injury arose out of and in the course of his employment. If he had suffered a broken leg while running from the site of the rupture, he would have been compensated for his broken leg. If he had suffered a broken leg while running from the site of the rupture and had then suffered debilitating depression because of a slow recovery from that injury, he would have been compensated for both injuries (because the mental injury was tied to the physical injury). But Mr. Plesner’s claim for compensation for PTSD was denied, despite WCAT’s finding that his injury was work-related. His ‘mental stress’ injury was found to be non-compensable on the basis that it did not fit within what is now s. 5.1(1)(a) of the [WCA], when read together with Policy Item #13.30 (“Policy 13.30”). In particular, WCAT found that his injury was not an acute reaction to a sudden and unexpected ‘traumatic event’.
[30] The majority agreed with Mr. Plesner’s argument that the result before the Board, the Review Division and WCAT was unconstitutionally discriminatory, on the following grounds:
[124] I agree with Mr. Plesner that he was subjected to differential treatment based on an enumerated ground, namely, mental disability. He submits that he is less favourably treated in applying for compensation under the Act than are his co-workers who suffer physical disabilities as a result of workplace accidents. Those who suffer physical injuries merely have to show that they suffered a work-related injury and they will receive compensation. He has to show that he suffered a work-related injury and, in addition, that the work–related injury was caused by a particular type of event, which event is described in strict and exclusory language.
…
[128] In this case, I have found that Mr. Plesner was subjected to differential treatment based on an enumerated ground. He has been treated differently, and less favourably, than his chosen comparator group – those suffering physical injuries whose claims fall under s. 5(1) of the Act. Those who suffer physical injuries (whether or not associated with a related mental injury) are compensated in circumstances where those who suffer purely mental injuries are not. They are compensated if they can show that their injury was work-related in fact. They are assisted in this regard by operation of s. 5(4), which provides that if an injury occurs at work by accident (as here), there is a rebuttable presumption that the injury is work-related.
[129] By way of contrast, if a person suffers a purely mental injury at work, it is not sufficient to establish that the injury was work-related in fact. Rather, s. 5.1(1)(a) requires the worker to meet the threshold of proving that the injury was caused by a ‘traumatic event’, which Policy 13.30, in turn, further qualifies by requiring that event to be akin to ‘horrifying’ as earlier discussed. The distinction is highlighted in the differential treatment accorded claimants under s. 5(1) on the one hand, and s. 5.1(1)(a) of the Act, when read together with Policy 13.30, on the other.
[130] In my view, this differential treatment based on an enumerated ground amounts to discrimination within the meaning of s. 15(1). …
[31] The “differential treatment” included the requirement under the Policy (as it then read) that the worker demonstrate the criteria set out in the definition of “traumatic event”, which the majority found to be problematic because it “takes precedence over a case specific assessment of whether an individual’s purely mental injury is genuine and ‘work-related’ and ignores the particular needs of workers who suffer such injuries” (at para. 137).
[32] In rejecting the submission that the infringement could be justified under s. 1 of the Charter, Prowse J.A. commented on the professed need for objective criteria in defining compensable mental injuries. She found that the criteria chosen in the Policy as it then read failed the “minimal impairment” and “proportionality” tests because they were unduly “extreme” in that “they impose an exclusionary threshold which is difficult, albeit not impossible, for those suffering purely mental work-related injuries to meet”: Plesner at para. 156.
[33] In order to remedy the infringement, the Court of Appeal severed certain words from the Policy and declared them to be of no force or effect. Those severed words were identified in Schedule A to the judgment, which reproduced an extract from the Policy with the severed words underlined, as follows:
#13.30 MENTAL STRESS
The Board provides compensation for psychological impairment where the condition results directly from a compensable physical injury or occupational disease. [See policy items #13.20 and #22.33.]
A worker may be entitled to compensation for mental stress that does not result from a physical injury or occupational disease if the impairment is due to an acute reaction to a sudden and unexpected traumatic event.
“Mental stress” is intended to describe conditions such as post-traumatic stress disorder or other associated disorders. Mental stress does not include “chronic stress”, which refers to a psychological impairment or condition caused by mental stressors acting over time. Workers, who develop mental stress over the course of time due to general workplace conditions, including workload, are not entitled to compensation.
Section 5.1 of the Act provides as follows:
A worker is entitled to compensation for mental stress that does not result from an injury for which the worker is otherwise entitled to compensation only if the mental stress:
(a) is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment,
(b) is diagnosed by a physician as a mental or physical condition that is described in the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, at the time of diagnosis, and
(c) is not caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.
Under subsection 5.1(a), the Act establishes a two-part test:
1. There must be an acute reaction to a sudden and unexpected traumatic event.
2. The acute reaction to the traumatic event must arise out of and in the course of employment.
An “acute” reaction means – “coming to crisis quickly”, it is a circumstance of great tension, an extreme degree of stress. It is the opposite of chronic. The reaction is typically immediate and identifiable. The response by the worker is usually one of severe emotional shock, helplessness and/or fear. It may be the result of:
· a direct personal observation of an actual or threatened death or serious injury;
· a threat to one’s physical integrity;
· witnessing an event that involves death or injury; or,
· witnessing a personal assault or other violent criminal act.
For the purposes of this policy, a “traumatic” event is a severely emotionally disturbing event. It may include the following:
· a horrific accident;
· an armed robbery;
· a hostage-taking;
· an actual or threatened physical violence;
· an actual or threatened sexual assault; and,
a death threat.
In most cases, the worker must have suffered or witnessed the traumatic event first hand.
In all cases, the traumatic event must be:
· clearly and objectively identifiable; and
· sudden and unexpected in the course of the worker’s employment.
This means that the event can be established by the Board through information or knowledge of the event provided by co-workers, supervisory staff, or others, and is generally accepted as being traumatic.
[34] In the wake of Plesner, both s. 5.1 and the Policy were amended into their current form. In a “Discussion Paper” promulgated to consider the legislative changes by which those amendments were enacted, the Board recognised the effect of the severance that had been ordered in Plesner:
The Court of Appeal also deleted the statement in [sic] policy that the event ‘is generally accepted as being traumatic’. This language had enabled WorkSafeBC to undertake an objective assessment of whether an event was traumatic.
[35] Counsel for Ms. Atkins argues that in applying an objective test as he did in this case, the Vice Chair has effectively resurrected those severed words, particularly the last underlined clause.
[36] The second decision that Ms. Atkins relies upon under this ground is Cima.
[37] The worker in that case, Mr. Cima, worked as a sales representative under the supervision of Mr. Simmons, one of the co-owners of his employer. Mr. Cima had developed a slurred speech disorder that was later diagnosed to be a symptom of amyotrophic lateral sclerosis (ALS). On Christmas Day, 2013, Mr. Simmons sent Mr. Cima an offensive text message laced with sarcasm, profanities and vulgar insults which mocked him about his disabilities. Mr. Cima did not return to work thereafter.
[38] Mr. Cima sought benefits under s. 5.1 on the basis, among others, that he became clinically depressed after receiving the text message from Mr. Simmons. The Board rejected the claim. Mr. Cima was never interviewed as part of the Board’s investigation. Mr. Cima was unsuccessful in his appeal to the Review Division. The WCAT panel agreed with the Board and the Review Division in rejecting Mr. Cima’s claim on the basis, among others things, that Mr. Cima’s receipt of the text message was not a traumatic event under the Policy. Their conclusion (summarised at para. 3 of this Court’s judgment) was that the definition of traumatic is intended to capture events much more serious or more traumatic than the receipt of a text message, however objectionable its contents may have been to the worker.
[39] When the matter came before this Court for judicial review, Young J. set aside the WCAT decision as patently unreasonable. The problem, she held, was in the WCAT panel’s failure to consider Mr. Cima’s subjective perspective:
[54] The Vice Chair has decided that a traumatic event needs to be more serious than the receipt of the December 25, 2013 text in order to be compensable. Despite the fact that the Vice Chair accepted that the worker was vulnerable and that he was deeply offended by the “retard” reference given the difficulties he had been experiencing with his speech over the previous year, it appears to me that she relied entirely on an objective standard of what one might consider traumatic.
[55] The Policy interpreted by the Vice Chair directed the adjudicator to conduct a subjective analysis with caution that she should not rely entirely on a subjective analysis but that she should also obtain information from other sources. It is not clear to me that the case manager, review officer or Vice Chair applied a subjective analysis at all.
[56] Objectively, the average person could easily be offended by the December 25, 2013 text message from a work supervisor but not to the point of developing a mental disorder. The average person who was not suffering from ALS would also have the option of getting angry with his supervisor and quitting his job. A person in the worker’s position is trapped. With his speech in the condition it was in and his suspected ALS he was not in a position to find another job. His options are to work with the person who sent him this offensive message or stay home from work.
[57] The word ‘traumatic’ itself has to reflect back to the victim. Psychological trauma is a type of damage to the victim’s psyche that occurs as a result of a severely distressing event. It begs the question: Distressing to whom?; It is not distressing to the average person on the street but to the victim who alleges the distress. It is imperative that the victim be interviewed at the adjudication stage to determine what effect the event had on him and that there is some subjectivity to the analysis.
[40] Ms. Atkins submits that the Vice Chair in this case made the same error that Young J. found to be reversible as patently unreasonable in Cima. Although the Vice Chair heard Ms. Atkins’ account, it is argued, he did not actually weigh it in his analysis as he was required to do in reaching a conclusion.
[41] Counsel for the Employer submits that both Plesner and Cima are distinguishable.
[42] First, she argues that the current version of the Policy specifically requires that there be an objective component to the analysis. She argues that the Vice Chair in this case correctly applied the Policy, which is not the same as the previous version that was found to be constitutionally deficient in Plesner. She notes that Ms. Atkins does not challenge the constitutionality of the current version of the Policy.
[43] Second, this case is also unlike Cima, it is argued, because in that case the WCAT panel had failed to perform any subjective analysis whatsoever, whereas in this case the subjective perspective of Ms. Atkins was considered in detail, although ultimately rejected in part. Justice Young held in Cima only that there must be “some subjectivity to the analysis” – which does not mean that the entire analysis must be subjective.
[44] As further support for the validity of a mixed test, counsel for the Employer cites Van Dam v. Workers’ Compensation Appeal Tribunal, 2017 BCSC 227. In that case, the worker was a nurse in an extended care facility who was seeking benefits for a mental disorder that she claimed was caused by her having witnessed an attack by one resident on another and the subsequent death of the resident who had been attacked. Ms. Van Dam’s claim was refused by the Board, the Review Division and WCAT. Her petition to this Court was filed late and she needed an extension of time in order to proceed with it. Justice Adair refused to allow her to proceed on the basis that she found the delay to be unjustified. She went on, however, to comment as well on what she found to be the lack of merit in the review application. In rejecting Ms. Van Dam’s allegation that the WCAT panel had made a patently unreasonable finding of fact and failed to apply the Policy in concluding that those incidents were not “traumatic events” for the purpose of s. 5.1, Adair J. recognised the need for both an objective and a subjective component in the test:
[44] WCAT’s interpretation of ‘traumatic events’ can be seen to be consistent with the Policy, and the analysis in the Decision of subjective and objective elements can be seen to be consistent with the approach described in [Cima], at paras. 54 and following. There was evidence (both subjective and objective) before WCAT to support its conclusion that the events in this case were not ‘traumatic events.’ The court on judicial review cannot reweigh the evidence. Neither the interpretation of ‘traumatic events,’ nor WCAT’s conclusion applying that interpretation to the evidence, can be said to be clearly irrational, almost bordering on the absurd.
[45] Although he did not make submissions on the merits of the review application in this case, WCAT’s counsel referred me to three of WCAT’s own earlier decisions which have considered the appropriate balance to be struck between the objective and subjective elements of the test in determining whether an event was traumatic for the purpose of s. 5.1, in light of Plesner and Cima.
[46] The first of those decisions is WCAT Decision No. 2014-00758, which involved a corrections officer who developed symptoms of anxiety and depression following attacks on female staff at the correctional facility where she worked. In that case, the WCAT panel considered the appropriate role for the objective element of the test in determining whether the relevant stressors alleged were sufficiently “unusual” within the meaning of the Policy. In reaching its conclusion, the panel relied heavily on the decision of Cromwell J.A. (as he then was) in Embanks v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 28:
[66] In my view the objective test concerns the characterization of the work-related stressors, not the worker's psychological reaction to them. Concerning the relationship between a worker's subjective reaction and the objective test of ‘unusual’ stressors,’ I note the following reasoning of Cromwell J.A., as he then was, in Embanks v. Nova Scotia (Workers' Compensation Appeals Tribunal), 2008 NSCA 28, at paragraph 31:
... in Rees v. Canada (Royal Canadian Mounted Police), 2005 NLCA 15, 246 NFLD and P.E.I.R. 79 at para. 32, the Court held under GECA that ‘...given an ordinary reading of the language, the definition of ‘accident’ clearly is sufficiently broad to include gradual onset stress which results from [a] willful and intentional [act or] acts of someone other than the employee.’ The same ‘ordinary meaning’ of the term ‘accident’ (absent some express statutory expansion of the term beyond its ordinary meaning) suggests that it is not appropriate to speak of an ‘accident’ as something that occurred only in the perception of the worker. To put it simply, the question of whether there was an ‘accident’ in the ordinary sense of the word cannot be answered by deciding that the worker thought there had been an accident. Absent statutory expansion of the definition, such an approach is, in my view, inconsistent with the scheme of workers' compensation legislation as set out in Logan, supra at paras. 84-88 and W.D., supra at paras 46-52.
[emphasis and bracketed text in original]
[67] Cromwell J.A. went on to discuss the role of an employee's subjective perceptions, stating the following at paragraphs 33 – 35:
[33] It is important to note, however, that this objective view relates to the assessment of the nature of the events which the worker claims gave rise to the stress. That these events are to be examined objectively in the sense required under the Policy does not mean that the worker's perception of the events is irrelevant or should be ignored in determining whether there has been an injury by accident arising out of and in the course of employment.
[34] Without attempting to be exhaustive, there are various ways in which the worker's perceptions are relevant and therefore should be considered. For example, the worker's evidence about the nature of the events is, of course, relevant evidence bearing on that issue. While the worker's perception is not necessarily controlling, this does not mean that the worker's evidence about the events should either be treated as suspect or ignored. As a further example, the worker's own, subjective reaction is relevant to whether the required link between the events and the disabling stress has been made out. As in all workers' compensation claims, there must be a link between the injury and the accident. As GECA puts it, the employee must be "... caused personal injury by an accident" (s. 4(1)(a)(i)), (emphasis added). Thus, there are certain subjective elements which should be considered in the sense that one must assess the effects on this particular worker of the workplace stressors. In other words, once persuaded of the objective facts that there have been unusual and excessive stressors compared to those experienced by an average worker in the same or similar occupation, it is necessary to go on to consider whether those events, in the particular case, did give rise to disabling stress.
[35] To put it in simple language, the events must be excessively and unusually stressful, objectively viewed and, in the actual case of the individual worker, give rise to the mental or physical condition on which the claim is based. I do not understand WCAT to say anything contrary to this in its reasons in this case.
[emphasis in original]
[68] The panel in WCAT-2010-01831 considered the foregoing reasoning from Embanks, along with factors from the policies in the RSCM II concerning the adjudication of physical injuries, and concluded that:
[102] We consider that a requirement that a psychological injury result from a clearly and objectively identifiable event (or circumstance) in the employment, which is a plausible cause of the injury, is consistent with the provisions of Board policies on the adjudication of claims, including those referred to above from items #14.20, #15.00, #97.31 and #97.32. While a worker's subjective experience of workplace events and circumstances must be taken into account, and cannot be discounted simply on the basis that the worker might be considered biased, it is also necessary to consider the event or circumstances on an objective basis to determine whether there is sufficient evidence of employment causation. As explained in Appeal Decision #99-1254, this does not involve a more onerous test than what is required to establish a physical injury.
[47] The second WCAT decision that WCAT’s counsel brought to my attention also involved a corrections officer seeking benefits for a mental disorder attributed to a traumatic event or unusual stressors in the workplace (in that case, viewing the body of a murdered inmate). The Board had disallowed the claim in the first instance on the basis that it did not consider the stressor to have been sufficiently unusual, viewed objectively. A review officer reversed that finding on the basis that the condition arose from a “traumatic event” within the meaning of s. 5.1 of the WCA. On the further appeal to WCAT (WCAT-2015-00506), the panel discussed the proper role of the objective component of the test, as follows:
[131] The parties' submissions raise the question of whether a claimed traumatic event or significant work-related stressor is assessed objectively or subjectively. Policy item #C3-13.00 provides that although a worker's subjective statements and response to an event or stressor are considered, the issue of whether the event is traumatic or the stressor significant is not determined solely on the worker's subjective belief. We find the panel's reasoning in WCAT-2014-01745 to be helpful on this point:
[43] Where psychological injury is alleged, an objective assessment is particularly important because a pre-existing or concurrent psychological condition may have an impact on the worker's perception of events in the workplace. In other words, the worker may perceive the workplace events as traumatic or significantly stressful because of his or her psychological condition as opposed to the worker developing the condition as a result of the workplace events. If one accepts that the events were traumatic or significantly stressful simply because the worker perceived them as such, the nature of the workplace events becomes irrelevant.
[44] In simple terms, I consider the October 25, 2012 event must be emotionally shocking and/or excessively and unusually stressful, objectively viewed. Once that is satisfied, then there are certain subjective elements which should be considered in the sense that one must assess the effects on the particular worker of the workplace event or stressor. In other words, once persuaded of the objective facts that there has been an emotionally shocking event(s) and/or unusual and excessive workplace stressors compared to those experienced by an average worker in the same or similar occupation, it is necessary to go on to consider whether those events/stressors, in the particular worker, gave rise to a disabling mental disorder.
[132] We agree with this reasoning. In other words, both objective considerations and the specific facts of the worker's appeal are relevant, neither alone is determinative.
[Emphasis in original.]
[48] Finally, WCAT’s counsel referred me to a more recent decision, Number A1606231 (September 6, 2017), in which the following was stated at paras. 92 – 94:
[92] I accept the reasoning applied in Cima v. Workers’ Compensation Appeal Tribunal, 2016 BCSC 931 which requires that I consider the worker’s individual circumstances and subjective impressions. I agree with the panel in WCAT A1601087 which indicated, since the decision of majority of the British Columbia Court of Appeal in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188, it has been clear that the test for what is “traumatic” cannot be wholly objective. Instead, as confirmed in the current version of policy item #C3‑13.00, both the worker’s subjective statements and response to the event or stressor and an objective perspective must be brought to the analysis.
[93] I also agree with the panels in in WCAT 2015-03540 and WCAT-2016-01034 which indicate the nature of workplace events is not determined wholly on the worker’s subjective perception. Both panels quoted from WCAT-2014-01745 indicating that whether the events are characterized as emotionally and/or excessively and unusually stressful must be viewed objectively. If one accepts that the events were traumatic or significantly stressful simply because the worker perceived them as such, the nature of the workplace events becomes irrelevant. Consistent with the analysis performed to determine if a matter fits within the labour relations exclusion, the events of interpersonal conflict are judged according to the perception of a reasonable person.
[94] The correct approach is to consider whether a reasonable person with the general characteristics of the worker would reasonably be expected to find the event excessively and unusually stressful. Once it has been established that an event was objectively excessively and unusually stressful, the subjective factors –the impact on the individual worker- is examined.
[49] The Vice Chair described the main issue before him at para. 116 of the Decision, as follows:
[116] The critical question in this case is whether the worker’s subjective perception of A as threatening is sufficient to make her encounter with A traumatic, as described in Board policy. The policy describes traumatic events as those that are ‘emotionally shocking’ and generally distinct from a worker’s job duties and interpersonal conflicts …
[50] What the Vice Chair had to determine in order to resolve that “critical question” was how to balance and reconcile the objective and the subjective elements of the test. The Policy requires on its face that both subjective and objective factors be considered in determining whether an event is sufficiently traumatic to qualify as compensable under s. 5.1 of the WCA. I agree with the Employer that the previous decisions of this Court in Cima and Van Dam expressly recognise and confirm that there is both a subjective and an objective element in the test.
[51] The more difficult question is how the subjective and objective elements of the test should be applied in relation to one another, or, as the Vice Chair fairly put it (at para. 119 of the Decision), “to what extent the worker’s subjective experience matters and to what extent the objective circumstances matter in deciding whether an event meets the Board’s definition of traumatic.”
[52] Counsel for Ms. Atkins submits that the proper scope of the objective element is limited. He asserts that the Policy on its face only requires that the event be objectively “identifiable” and that the nature of the event and the worker’s response to it not be determined “solely by the worker’s subjective belief about the event or stressor.” The Board is directed to “verify” the event or stressors by means of independent evidence. Nothing in the Policy, it is argued, directed the Vice Chair to require Ms. Atkins to prove, as a condition to her entitlement to compensation, that the Incident was “objectively traumatic.” In addition, Ms. Atkins’ counsel urges me to read the decision of Young J. in Cima as mandating a predominantly, if not entirely, subjective approach in categorizing an event as traumatic.
[53] Support for that submission is said to lie in para. 57 of Cima, where Young J. remarked as follows:
The word ‘traumatic’ itself has to reflect back to the victim. Psychological trauma is a type of damage to the victim’s psyche that occurs as a result of a severely distressing event. It begs the question: Distressing to whom?; It is not distressing to the average person on the street but to the victim who alleges the distress.
[54] The failure of the WCAT panel in Cima to take into account Mr. Cima’s subjective perception of the impact on him of his receipt of the text message was one of the factors that led Young J. to conclude that the WCAT decision at issue in that case was patently unreasonable. She summarised her conclusion in that regard as follows, at para. 85:
[85] I find the Vice Chair’s objective analysis of what constitutes trauma plus the board investigator’s failure to interview the worker in the investigation of this claim because he had a speech impediment and because conclusions about his reaction were drawn without supporting evidence all to be patently unreasonable.
[Emphasis added]
[55] On the other hand, several of the WCAT precedents that were cited to me by WCAT’s counsel suggest that a worker seeking to be compensated for a mental disorder caused by a traumatic event must clear two hurdles, each discrete. Under that form of test, the worker must first show that the event was traumatic on an objective standard. Next, the worker must go on to show, on a subjective standard, that he or she was actually traumatized.
[56] It may be argued that such an approach has the potential to create an unnecessary, arbitrary and therefore discriminatory burden for workers seeking compensation for mental disorders, contrary to the majority judgment of the Court of Appeal in Plesner. Once it is determined that a worker was physically injured in a workplace accident, there is no comparable requirement to show that the accident was of a kind that was objectively capable of causing injury to the average person. Why should there be such a requirement for a worker seeking compensation for a mental disorder?
[57] A number of the WCAT decisions have sought to address that very question. In WCAT-2010-01831, as quoted above in WCAT- 2014-00758, the reasoning in those decisions was summarised as follows:
[102] We consider that a requirement that a psychological injury result from a clearly and objectively identifiable event (or circumstance) in the employment, which is a plausible cause of the injury, is consistent with the provisions of Board policies on the adjudication of claims, including those referred to above from items #14.20, #15.00, #97.31 and #97.32. While a worker's subjective experience of workplace events and circumstances must be taken into account, and cannot be discounted simply on the basis that the worker might be considered biased, it is also necessary to consider the event or circumstances on an objective basis to determine whether there is sufficient evidence of employment causation. As explained in Appeal Decision #99-1254, this does not involve a more onerous test than what is required to establish a physical injury.
[58] In other words, the objective element of the test for trauma is justified as a legitimate means of tying the true cause of the mental disorder to the worker’s employment – a connection that must also be made out in the case of a physical injury.
[59] That same theme, discussing a scenario closely analogous to this case, was developed in WCAT-2014-01745, as cited in WCAT-2015-00506:
[43] Where psychological injury is alleged, an objective assessment is particularly important because a pre-existing or concurrent psychological condition may have an impact on the worker's perception of events in the workplace. In other words, the worker may perceive the workplace events as traumatic or significantly stressful because of his or her psychological condition as opposed to the worker developing the condition as a result of the workplace events. If one accepts that the events were traumatic or significantly stressful simply because the worker perceived them as such, the nature of the workplace events becomes irrelevant.
[60] The principal rationale for this approach appears to be that even objectively insignificant work-related events may theoretically be capable of triggering the onset of a mental disorder. Such a trigger, so the theory goes, may not be significant enough to justify treating the mental disorder as truly work-related, particularly when compared with other, far more traumatic events in the worker’s past. Those other events, apart from having caused the disorder itself, may also have caused the worker to perceive the work-related event as traumatic when the worker, like most other people, otherwise would not.
[61] The problem with that justification is that the legitimate need to establish a causal connection between the mental disorder and the worker’s employment is already provided for elsewhere in the Policy, under the heading “Causation.” That aspect of the Policy provides decision-makers with the following guidance:
Both employment and non-employment factors may contribute to the mental disorder. However, in order for the mental disorder to be compensable, the one or more traumatic events have to be of causative significance, which means more than a trivial or insignificant cause of the mental disorder.
In making the above determinations, the Board reviews the medical and non-medical evidence to consider whether:
· there is a connection between the mental disorder and the one or more traumatic events, including whether the one or more traumatic events were of sufficient degree and/or duration to be of causative significance in the mental disorder;
· any pre-existing non-work related medical conditions were a factor in the mental disorder; and
· any non-work related events were a factor in the mental disorder.
The Board is required to determine whether there is sufficient evidence of one or more traumatic events that are of causative significance in the mental disorder.
[62] Given that there is already a separate requirement elsewhere in the Policy to establish causation in that manner, it is difficult to see the validity of the justification that has been put forward by WCAT in many of its previous decisions for interpreting the governing legislation and Policy to require, in addition, that the worker also demonstrate the event or events in issue to have been “objectively traumatic.” Once a worker is found to have been subjectively traumatized by a work-related event that causes a mental disorder, it is not clear what legitimate purpose would be served by inquiring further into whether the average person would have been traumatized by it as well.
[63] I appreciate that, as counsel for the Employer argues, Ms. Atkins has not advanced a formal constitutional challenge to the legislation or the Policy. While that is true, what is properly in issue in this case is an ambiguity in the legislation and the Policy – i.e., as to the interplay between the objective and subjective elements of the test in determining whether a work-related event was a traumatic one or not. It has been held that in resolving ambiguities in legislation, the interpretation that avoids a Charter breach is to be preferred over a competing interpretation that does not – even in the absence of a formal constitutional challenge.
[64] For example, in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, the Court held as follows, at pp. 581-82:
Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law. If there is some ambiguity to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail.
[65] To a similar effect are the following dicta from Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1078, as cited in Inglis v. British Columbia (Minister of Public Safety and Solicitor General), 2013 BCSC 2309 at para. 353:
Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so.
[66] One way to resolve the ambiguity at issue in this case would therefore be to apply that rule of statutory interpretation in this context, i.e., to eschew the interpretation of the Policy adopted by the Vice Chair (i.e., permitting the decision-maker to distinguish, in breach of the Charter, between “objectively traumatic” events and events that can be said to be traumatic only because the worker perceived them as such). Such a distinction, it may be argued, adds an unnecessary, arbitrary and therefore discriminatory hurdle in the path of workers seeking compensation for work-related mental disorders, contrary to Plesner.
[67] On the other hand, it is possible to find support for the Vice Chair’s approach in Embanks, as quoted in WCAT 2014-00758. At issue in Embanks was how to balance and reconcile the objective and subjective elements of the test to be applied in determining whether one or more events leading to a mental disorder were “excessively and unusually stressful” so as to qualify as a compensable “accident” under the Government Employees Compensation Act, R.S.C. 1985, c. G-5. Cromwell J.A. summarised the correct test to be applied for that purpose as follows, at paras. 34-35:
[34] … once persuaded of the objective facts that there have been unusual and excessive stressors compared to those experienced by an average worker in the same or similar occupation, it is necessary to go on to consider whether those events, in the particular case, did give rise to disabling stress.
[35] To put it in simple language, the events must be excessively and unusually stressful, objectively viewed and, in the actual case of the individual worker, give rise to the mental or physical condition on which the claim is based. I do not understand WCAT to say anything contrary to this in its reasons in this case.
[Emphasis added].
[68] Many WCAT decisions treat that aspect of the discussion in Embanks as authoritative or at least persuasive in the interpretation of s. 5.1 of the WCA and the Policy as well. Even if Embanks had been capable of being applied in this context as those decisions assume, however, the better view today appears to be that the Embanks reasoning has since been overtaken, at least in this province, by the subsequent decisions in Plesner and Cima, which are more directly on point.
[69] I note that even in Embanks, Cromwell J.A. made express provision for subjective information from the worker to be incorporated into the objective branch of the test. His “non-exhaustive” list of how such information might be considered in that context includes the need to hear the worker’s own perspective on the nature of the events:
[34] … the worker's evidence about the nature of the events is, of course, relevant evidence bearing on that issue. While the worker's perception is not necessarily controlling, this does not mean that the worker's evidence about the events should either be treated as suspect or ignored. …
[70] As Young J. held in Cima, it is patently unreasonable for a decision-maker to apply a purely objective test without regard to the worker’s subjective perspective on the event. There must, as Young J. put it at para. 57 of the judgment, be “some subjectivity to the analysis.” Likewise, in Embanks, Cromwell J.A. held that the worker’s perception is not to be adopted as controlling, but neither is it to be ignored, as it was in Cima.
[71] Nevertheless, it is difficult to reconcile the Embanks line of authority with Plesner and Cima.
[72] With respect to Plesner, I agree with the submission that was made on behalf of Ms. Atkins that by imposing a separate requirement to prove that an event is “objectively traumatic”, the Vice Chair effectively resurrected language in the previous version of the Policy that the Court of Appeal expressly ordered to be severed as inconsistent with the Charter.
[73] With respect to Cima, the contrast is even plainer: whereas in Embanks there is an express direction to consider, at least in the first instance, whether the event would be stressful to the average worker, in Cima, Young J. held that at para. 57, that the relevant experience of distress is that of “the victim who alleges the distress” and not that of “the average person on the street.”
[74] I agree with the Employer that this case is not exactly like Cima because, among other things, the Vice Chair did at least purport to consider Ms. Atkins’ account of the Incident and its impact on her, although he ultimately discounted significant parts of it on the basis that he found her account to be exaggerated. The reasonableness of his findings in that regard is the subject of a different ground of appeal. Nevertheless, it cannot fairly be said that the Vice Chair engaged in a purely objective analysis without even hearing from the worker on the nature of the event, as occurred in Cima.
[75] But having heard Ms. Atkins’ subjective account of the Incident and having accepted that it was traumatic for her, the Vice Chair nevertheless concluded that the Incident was not a sufficiently traumatic one because the average person would not have been traumatized by it. It is impossible to reconcile that chain of reasoning with the result in Cima.
[76] If, as the Vice Chair held, a worker’s claim to have been traumatized by an event could properly be dismissed on the basis that the event was not “objectively traumatic” in the view of the decision-maker, then Cima could not have been decided by this Court as it was. Justice Young had specifically found (at para. 56 of the judgment), like the Vice Chair in this case, that the offensive text message Mr. Cima received was not “objectively traumatic” – i.e., in the sense that it would not cause the average person to develop a mental disorder. If that were sufficient in itself to defeat the claim, there would have been no need to hear from Mr. Cima. But Young J. held that it was not sufficient and that there was such a need. It was not just that Mr. Cima’s evidence was needed to inform what could otherwise be an entirely objective analysis. Rather, what ultimately mattered, according to Young J., was whether that text message was traumatic for Mr. Cima, not the average person.
[77] If, as was held in Cima, it is trauma to the worker but not the average person that matters, what role, if any, is left for the objective aspect of the test? Justice Young held only that there must be “some subjectivity to the analysis,” not that the test should be an exclusively subjective one. Although the authorities are clear in holding that the test must include both an objective and a subjective element, one of those elements must ultimately yield to the other in cases such as this one, Plesner and Cima, where they point in different directions.
[78] It appears to follow from Plesner and Cima that it is the subjective element that must be treated as paramount. An objective assessment of the event (including, among other things, a consideration of how unusual it was in that particular employment setting) may properly enter into the analysis, but only for the limited purpose of determining whether the event is “identifiable” and the worker was likely to have been traumatized by it, as she claims. In arriving at a conclusion on those questions, the decision-maker need not accept as controlling the worker’s own assertion of what occurred and whether she was actually traumatized by it. But once it is found, as it was in this case, that the worker was actually traumatized, that should be the end of the inquiry into whether the event was a traumatic one or not.
[79] So in this case, once the Vice Chair found that Ms. Atkins had in fact been traumatized by the Incident, there was no legitimate purpose served by inquiring into whether the average person would have been traumatized by it as well.
[80] I therefore find this ground of review to be well-founded.
[81] Counsel for Ms. Atkins submits that the Vice Chair compounded his other errors by referring to and relying upon the Board’s unrelated policy on bullying and harassment in reaching his ultimate conclusion. That policy was, he argues, entirely irrelevant to the main question, which was whether the Incident was a traumatic event within the meaning of s. 5.1.
[82] Counsel for the Employer responds that the Vice Chair did not rely on the bullying and harassment policy in his assessment of whether the Incident was traumatic. Rather, she submits, the Vice Chair instead merely referenced the Practice Directive for general guidance, because it addresses a related subject. With it, it is argued, the Vice Chair merely drew from the definition of “bullying and harassment” some guidance on how to evaluate the Incident on an objective basis.
[83] Counsel for the Employer argues that the Vice Chair was under no misapprehension about which aspect of the Policy actually applied in this case, and, in any event, that it was not patently unreasonable for the Vice Chair to seek such guidance.
[84] This ground of review has been overtaken to a significant extent (if not entirely) by my conclusion on Ground 2. I have found that it was improper for the Vice Chair to have dismissed the appeal on the basis that the Incident was not “objectively traumatic.” This ground of review merely seeks to challenge one of the stepping stones on the Vice Chair’s path to that conclusion.
[85] In case I am wrong in my conclusion on Ground 2, however, I will also address this ground independently.
[86] I agree with counsel for Ms. Atkins that the Vice Chair did rely improperly on the definition of bullying and harassment in the Practice Directive in considering whether the Incident qualified as traumatic. I also agree that the Vice Chair’s consideration of the Practice Directive in that regard took him far off course and into an irrelevant inquiry – one that appears, moreover, to have factored at least to some extent in his ultimate conclusion.
[87] There was no real issue in this case about bullying and harassment. To be fair to the Vice Chair, it appears that Ms. Atkins’ representative had argued before the Review Division (unlike on review before me) that the Incident also qualified as “bullying and harassment” and, as such, entitled her to compensation as one of several stressors under s. 5.1(1)(a)(ii) of the WCA (see para. 69 of the Decision). Ms. Atkins’ representative at the WCAT hearing continued to argue that the Incident qualified as both a traumatic event and a stressor (see para. 75 of the Decision). The Vice Chair also properly referred to the objective features of bullying and harassment in distinguishing this case from Cima, where those features were properly in play (see in particular the last sentence of para. 123 of the Decision). Nevertheless, the Vice Chair’s analysis of what constitutes bullying and harassment appears to have improperly spilled over into his “traumatic event” analysis as well.
[88] The Vice Chair observed in para. 101 of the Decision that the Practice Directive was “not binding policy” but treated it as a helpful analytical tool because it “… provides guidance in the adjudication of claims for mental disorders and seeks to foster consistency and quality in decision-making. I have considered it in that light.”
[89] Later, in the course of his analysis, the Vice Chair concluded that the Practice Directive “provides some insight” on the main issue before him (at para. 122). The “insight” he drew from it derived from his observation that the test for bullying and harassment is an objective one focusing on the state of mind of the bully or harasser. According to the Vice Chair “[t]his supports that there is an objective component to be considered in assessing the perception of the victim” (at para. 122). How the Practice Directive could serve as such support in the context of the test to assess trauma is not made clear.
[90] After concluding that A did not intend to intimidate, humiliate or degrade Ms. Atkins nor should he reasonably have known that he was, the Vice Chair moved immediately to the conclusion that “[i]t is here that the worker’s case fails” (at para. 123).
[91] There follows a brief reference to Dr. Bubber’s opinion about the deeper causes of Ms. Atkins PTSD, but immediately after that the Vice Chair returns to an irrelevant consideration of A’s state of mind:
[123] … Dr. Bubber’s evidence makes it clear that the worker’s PTSD results from experiences in the worker’s past, ranging from her childhood to horrific experiences she had in her abusive marriage and to her assault in 2002. These experiences left the worker so vulnerable to a trigger for delayed onset PTSD that A, resting his hands on a doorframe and angrily and with a raised voice, talking to the worker about her job, activated her psychological condition. These are not circumstances that were objectively threatening. I do not consider that A should have known that the worker had such significant, pre‑existing psychological vulnerability. I consider this to be in keeping with interpersonal conflict that is to be expected given the nature of the worker’s job. This is also unlike the situation in Cima, where the court determined that a supervisor ought to have known that sending a text message calling a worker with a known speech impairment a “retard” would be humiliating and degrading to that worker.
[Emphasis added.]
[92] It appears that the Vice Chair here engaged in an irrelevant inquiry that appears to have impacted at least to some extent on his ultimate conclusion. I therefore find this ground too to be well-founded.
[93] Counsel for Ms. Atkins argues that the Vice Chair improperly substituted his own opinion for that of Dr. Bubber on the issue of whether the Incident aggravated a pre-existing psychological condition.
[94] He refers in this regard to paras. 124-128 of the Decision, quoted earlier. In those paragraphs, the Vice Chair observed that the Incident did not meet the diagnostic criteria for PTSD, although Ms. Atkins’ previous life experiences did. On that basis, the Vice Chair concluded that the Incident, although it was the sole trigger for the onset of her PTSD, was not the cause of it.
[95] Counsel for Ms. Atkins also relies in this regard as well on Cima, where Young J. was also critical of the WCAT panel in that case for disregarding the opinion of an expert witness. Justice Young dealt with the issue as follows, at paras. 86-92:
[86] The panel also disregarded the opinion of the family doctor that the worker’s depression was triggered by the traumatic work‑related event. Dr. Yong said at p. 105 of the disclosure:
As you are aware, Mr. Cima has been absent from work since December 25 2013 for an incident with his employer that involved workplace harassment. He first presented to my clinic in January 2014 with regards to the incident and has been seeing me on a regular basis thereafter. Mr. Cima has presented with symptoms consistent with a major depressive episode secondary to the aforementioned incident and as such I have advised that he remain off work especially given that he would be in close proximity to the employer who had instigated the incident tin the first place.
[87] I understand that the panel did not get as far as assessing causation but this was evidence of the worker’s reaction to the December 25, 2013 text and it was completely ignored.
[88] Had the worker been assessed by a board psychologist or psychiatrist, then there may have been sufficient evidence before WCAT to support a finding that the event was traumatic or significant but the Board denied the claim on its definition of traumatic event and declined to have the worker assessed.
[89] It is not clear that the finding of “significant workplace stressor” does require a medical opinion. Dr. Yong was of the opinion that the workplace harassment led to the depressive disorder. In disregarding Dr. Yong’s opinion, the Vice Chair preferred her expertise in assessing the significance of the event to the worker over the expertise of the medical doctor who had actually spoken with and treated the worker.
[90] While the hearing panel is presumed to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction, it is not presumed to have medical expertise.
[91] In Page v British Columbia (Workers’ Compensation Appeal Tribunal), 2009 BCSC 493, Hinkson J., as he then was, found at paras. 63 and 65:
[63] Where a WCAT panel is faced with a medical diagnosis as to a mental condition that is described in the DSM-IV at the time of the diagnosis, it is not equipped to reject that diagnosis, without an appropriate opinion to the contrary.
[65] This is not a case of the respondent’s panel preferring one diagnosis to another. As there was no psychiatric or psychological opinion that contradicted the only opinion before them as to the worker’s condition, this is a case of the Hearing Panel making its own diagnosis, when it clearly has no expertise upon which to do so.
[92] Hinkson J. found that such reasoning and the resulting findings were based upon the arbitrary exercise of the WCAT's discretion in terms of the use of the evidence before it, particularly its reliance predominantly, if not entirely, on an irrelevant factor, the 1995 opinion evidence of Dr. Meloche. In the result, he found that the WCAT's decision on this issue was patently unreasonable.
[96] Counsel for Ms. Atkins submits that in rejecting the medical evidence before him, the Vice Chair made the same error.
[97] In response, counsel for the Employer submits that the Vice Chair did not ignore Dr. Bubber’s opinion, let alone prefer his own opinion over hers. Rather, the Employer submits that there was no contradiction between the Vice Chair’s findings and the report of Dr. Bubber. The Vice Chair specifically accepted and adopted Dr. Bubber’s conclusions in their entirety.
[98] The Employer also points out that Dr. Bubber did not express an opinion as to whether there had been an aggravation of a pre-existing psychological disorder. On the contrary, her report expressly states that there was, “no indication [Ms. Atkins’ pre-Incident] difficulties were severe enough to meet the criteria for a pre-existing psychological disorder.”
[99] Although the Employer acknowledges that there is provision in the Policy for advancing a claim on the basis that the traumatic event aggravated a pre-existing condition, in this case there was no diagnosis of a pre-existing condition upon which to found such a conclusion.
[100] I agree with the Employer that the Vice Chair did not disregard the expert opinion of Dr. Bubber, but rather accepted and adopted it in its entirety.
[101] Dr. Bubber had concluded in her report that the Incident “served as a trigger for a delayed post traumatic response to the previous traumatic events in her life.” She also found it to be “the critical turning point in the onset of Ms. Atkins PTSD.”
[102] I am not persuaded that there is anything in the Decision that disregards or contradicts Dr. Bubber’s conclusions in that or any other regard. Dr. Bubber does not expressly state in her report that the Incident itself met any of the diagnostic criteria for PTSD. Her view appears to have been that the primary causes of Ms. Atkins’ PTSD lay in her previous history, which is one of the critical findings that the Vice Chair took from her report.
[103] Although it is certainly arguable that triggering a delayed onset of a mental disorder is tantamount to aggravating a pre-existing condition, Dr. Bubber herself does not equate those two things. I am not prepared to conclude on review that it was patently unreasonable for the Vice Chair to recognise and act upon a distinction between them.
[104] I therefore reject this ground of review.
[105] Counsel for Ms. Atkins submits that the Vice Chair made two crucial findings that were entirely without support in the evidence:
(a) that the Incident was not “objectively traumatic”; and
(b) that it was unlike anything that Ms. Atkins had previously experienced in her work.
[106] In that regard, counsel for Ms. Atkins also asserts that the Vice Chair lacked a valid evidentiary basis to reject her evidence or any part of it as untrustworthy. He attacks in particular the Vice Chair’s conclusion that Ms. Atkins was “prone to exaggeration.”
[107] That conclusion appears in para. 121 of the Decision, in which the Vice Chair stated as follows:
[121] While the worker testified that she found this encounter to be unlike anything she had previously experienced, I do not accept her evidence on that point. As noted by Dr. Bubber, the worker was prone to exaggeration. While generally the testimony she provided was credible, I found her to overstate some aspects of her reactions, in particular in terms of her encounter with A. This is one such circumstance. I have no difficulty accepting that A’s conduct was inappropriate and was on the extreme of what the worker might be expected to deal with in her role as a home health liaison; however, I do not accept that an individual resting his hands on the doorframe and shouting was objectively dissimilar from what might be expected in the context of the worker’s job. Had A grabbed the worker, similar to the circumstances described in WCAT 2014-04168, I may have arrived at a different conclusion; however, the facts in this case do not support a finding that the worker’s encounter with A was objectively traumatic.
[Emphasis added].
[108] The evidentiary basis for that conclusion appears to have come from the report of Dr. Bubber, in which Dr. Bubber reported that she found Ms. Atkins to have exaggerated in some of her responses when she completed a diagnostic questionnaire. Dr. Bubber nowhere expressed the view that Ms. Atkins was otherwise “prone to exaggeration.”
[109] Finally, counsel for Ms. Atkins argues that the Vice Chair had, in rejecting Ms. Atkins’ evidence as he did, failed to follow another policy found in the RSCM II, at #97.32, which states that, “[i]n reaching conclusions on a medical question”:
… A conclusion against the statement of the worker about his or her own condition may be reached if the conclusion rests on a substantial foundation, such as clinical findings, other medical or non-medical evidence, or serious weakness demonstrated by questioning the worker, or if the statement of the worker relates to a matter that could not possibly be within his or her knowledge.
[110] Counsel for Ms. Atkins asserts that the Vice Chair rejected her evidence as to her medical condition without having the requisite “substantial foundation” to do so.
[111] The Employer responds that there was evidence before the Vice Chair to support each of these conclusions.
[112] With respect to the evidentiary basis for the Vice Chair’s rejection of Ms. Atkins’ assertion that the Incident was unprecedented for her, counsel for the Employer refers to the summary of Ms. Atkins’ job description, as recounted by her and summarised in paras. 12-20 of the Decision. Those paragraphs state as follows:
[12] At the oral hearing, the worker described her job duties generally. She stated she interacted with patients and their families with respect to patient discharges that were complex. She was to assess and arrange for necessary community treatments for patients who were being discharged in accordance with applicable policies provided by the employer. The worker explained that family members were usually worried about loved ones during this time of transition.
[13] The worker stated she felt consistent pressure to accommodate family wishes of patients to be discharged, causing the worker to feel tense and unsupported at work. The worker also felt that her co-workers did not see her as an equal because of her previous work experience in nursing. At the oral hearing, she explained she was praised for doing routine parts of her job but clarified that this was not a significant stressor for her.
[14] The worker testified that other staff were unsure what home health workers did and what their responsibilities were. The worker described co-workers exceeding their authority by ordering patient discharge with home care without asking for a necessary assessment from home health workers. The worker also stated co-workers also asked for home health care to be provided in order to avoid difficulties with patients and/or their family members. The worker also described tensions with co-workers where they requested home care for one reason or another but those patients did not want home care and it could not be forced upon them. The worker stated it was a challenge to make others understand this limitation.
[15] The worker described frustrations with situations where a nurse coaches a patient to be discharged in how to get home supports. She stated this made her felt disrespected and she could not get support from her manager when complaining about such instances. She felt that such actions perpetuated the perception that home care could become available, no matter the applicable policies, with enough complaining. The worker also described feeling indirect pressure from other managers, passed on to her through her manager, to decide some patients should be eligible for home care benefits.
[16] The worker stated she felt stress being in this precarious position. She felt she was a target for patients and their families. She felt she was the bearer of bad news. She also described stressors she felt related to workload and the interplay between occupational therapy and home health services. These general stressors were relevant to her psychological condition, the worker stated.
[17] The worker also explained that difficulties she had with co-workers tended to stem from the ignorance that these co-workers had with respect to the worker’s job duties. She stated that the composition of the teams she worked in varied patient-by-patient and the composition of the teams affected how those teams interacted. Some co-workers were easier to work with than others.
[18] The worker stated that sometimes team members have strong feelings about the best strategy to meet a patient’s needs. This could create some disagreement and conflict within the group. The worker stated she tried to stay inquisitive during such circumstances and attempted to engage in problem-solving; however, sometimes the solutions available did not match with the desires of some team members.
[19] At the oral hearing, I suggested to the worker that the availability of resources may be an issue and that, if resources were not a factor, patients might receive more care. I suggested that limitations on resources translated to, at times, making do with less patient care than might otherwise be possible. The worker agreed with this assessment and stated that this sometimes created tension within the team treating any given patient. The worker added that ignorance about the policies regulating resource allocation in home care also contributed to these difficulties for some team members.
[20] The worker added that these tensions between team members were not often problematic. She stated that sometimes people attempted to use their authority to influence the process and that physicians, in particular, were not accustomed to the administrative considerations involved in deciding what extent of home care should be made available to a patient. The worker emphasized she attempted to educate her co-workers in such circumstances. The worker also emphasized that, while family members may be upset in some circumstances, they typically ended the interactions with a positive experience, trusting that the team members cared for the well-being of their family members that were being discharged from the hospital.
[113] In addition, counsel for the Employer refers me to paras. 24 and 27 of the Decision, in which the Vice Chair summarised Ms. Atkins’ inconsistent descriptions of the Incident. Those paragraphs state as follows:
[24] The worker stated A escalated and she feared he would not have let her leave the office. In a written account, the worker said she did computer work and refused to engage with A until he left. In a telephone call with a Board officer on January 15, 2016, she said A was standing in front of her at the time. In the oral hearing, the worker testified that she backed up from A, a short distance until she was backed up against a desk near the door, still within arm’s reach. The worker testified that A sounded angry.
…
[27] In conversations with the Board, the worker stated that because of A she could not attend the subsequent meeting, although she could not remember whether A had threatened her directly. In the oral hearing, the worker stated that A threatened her but she could not understand what he had said. He was yelling. The worker stated she was trying to think how to get out of the situation, so close to A without any telephones in reach.
[114] With respect to policy #97.32, counsel for the Employer submits that it has no application in this case because the evidence of Ms. Atkins that was rejected was not “evidence on a medical question” nor was it as to “her own condition,” but even if it was, the Vice Chair had the requisite “substantial foundation” to reject it.
[115] Like Ground 3 and for the same reason, this ground has been largely if not entirely overtaken by my conclusion on Ground 2. I will address this ground independently as well, for the same reason that I addressed Ground 3.
[116] While I agree with the submission made on behalf of Ms. Atkins that there was no direct evidence to support the Vice Chair’s conclusion that the Incident was within the “spectrum” of what she could expect to experience in dealing with patients and their families in her work, I agree with the Employer that it was permissible for the Vice Chair to infer as much from the description that Ms. Atkins gave of the general nature of the work that she did.
[117] I also agree with the Employer that the Vice Chair had some evidence before him to justify rejecting Ms. Atkins testimony in part on the basis that she was “prone to exaggeration.” He did not need to have an express opinion from Dr. Bubber to that effect in order to reach that conclusion.
[118] Finally, I also agree with the Employer that policy #97.32 was not applicable in this case. In particular, the Vice Chair did not reject Ms. Atkins’ evidence on a medical question, particularly as to her own condition. To the extent he did, there was a basis in the evidence, as described in the preceding paragraphs, for the Vice Chair to find a “serious weakness demonstrated by questioning the worker.”
[119] I therefore reject this ground of review.
[120] I have found two of Ms. Atkins’ four grounds of review, i.e., Grounds 2 and 3, to be well-founded.
[121] With respect to Ground 2, I have found that the Vice Chair erred by dismissing Ms. Atkins’ claim on the basis that the Incident was not “objectively traumatic” despite having accepted that she was in fact traumatized by it.
[122] In particular, I have found that particular inquiry to have been unnecessary, arbitrary and therefore discriminatory because it served no legitimate purpose, given that there is provision elsewhere in the Policy requiring the worker to show a causal connection between the mental disorder and the worker’s employment.
[123] In other words, the legitimate inquiry focuses on that causal connection, not on whether the average person would also have been traumatized by the event in question.
[124] Although I have found that the Vice Chair engaged in an improper inquiry and based the Decision partly on the product of it, I also find that his ultimate conclusion flowed primarily from the legitimate inquiry that he was entitled to engage in.
[125] Under the “Causation” terms of the Policy, a mental disorder triggered by a work-related event may properly be found to be insufficiently connected to the worker’s employment if, as was found to be the case here, the only reason the work-related event was perceived by the worker to be traumatic in the first place was a history of other more traumatic events in the worker’s past, unrelated to the worker’s employment, which are, for that reason, more likely to be the true cause of the worker’s mental disorder.
[126] The Vice Chair appears to have based his conclusion primarily on that ground. He summarised his overall conclusion as follows:
[126] A compensable mental disorder may be related to trauma where the disorder is a reaction to one or more traumatic events arising out of and in the course of the worker’s employment. I have found that A’s behaviour was not a traumatic event because only the worker perceived it to be so based on her significant psychological history. I have also found, more significantly, that the traumatic events giving rise to the worker’s diagnosis of PTSD were generally remote and not arising out of and in the course of her employment. …
[Emphasis added.]
[127] In other words, the Vice Chair based his ultimate conclusion primarily on the relative causal significance of the Incident as compared with the earlier, more traumatic events in Ms. Atkins’ past that were mostly unrelated to her work. He found those to be the more likely cause of Ms. Atkins’ mental disorder and the only reason she perceived the Incident as traumatic in the first place. There was evidence to support those conclusions. In light of that, I cannot conclude that the Decision as a whole was patently unreasonable.
[128] With respect to Ground 3, although I have also found that the Vice Chair’s erroneous consideration of and reliance upon the Practice Directive improperly contributed to some extent to his ultimate conclusion, that error appears to have contributed only to his erroneous assumption that the Incident had to be shown to be “objectively traumatic.” It does not appear to have played any role in his legitimate and primary finding as to the lack of the requisite causal connection between the mental disorder and Ms. Atkins’ employment.
[129] For those reasons, I am unable to conclude that the two errors I have identified so undermined the valid reasoning supporting the Decision that the Decision as a whole cannot stand independently of them.
[130] Having regard to the high degree of deference that must be shown on a review such as this, I find that the Decision as a whole was not patently unreasonable.
[131] The application for review is therefore dismissed.
[132] The parties have leave to speak to costs if they are unable to agree on the appropriate order in light of these reasons for judgment.
“Milman J.”
The Honourable Mr. Justice Milman