Aircraft maintenance engineer and crew chief | Compensation for a mental disorder

WCAT Decision Number:

A1900897 (May 26, 2022)

DECISION OF THE WORKERS’ COMPENSATION APPEAL TRIBUNAL

WCAT Decision Number:

A1900897

WCAT Decision Date:

May 26, 2022

Introduction

[1]

The worker is an aircraft maintenance engineer and crew chief employed by the employer, an

airline. The worker applied to the Workers’ Compensation Board (Board)¹for compensation for

a mental disorder as a result of an incident at work on May 10, 2018, when he became aware

that a legal decision concerning a dispute between the worker and the employer had been

posted on a bulletin board in the workplace.

[2]

[3]

In a decision dated July 19, 2018, the Board concluded that the worker was entitled to

compensation for a mental disorder, specifically an adjustment disorder, which was

predominantly caused by the incident on May 10, 2018. The employer requested a review of

that decision.

In a decision of the Board’s Review Division dated March 13, 2019 (Review Reference

#R0242307), a review officer denied the employer’s request for review and confirmed the Board

decision dated July 19, 2018. The review officer found that the worker’s mental disorder met the

criteria for compensation under the law and policy. Specifically, the review officer found that the

worker had a mental disorder which was diagnosed by a registered psychologist; the incident on

May 10, 2018 was a significant stressor which arose out of and in the course of the worker’s

employment and was the predominant cause of the worker’s mental disorder; and the mental

disorder was not caused by a decision of the employer related to the worker’s employment and

therefore excluded from compensation.

[4]

References to section numbers in the Workers Compensation Act (Act) in this decision are

different from those in the Review Division decision under appeal and the underlying Board

decision. The Act was reorganized and renumbered under the Statute Revision Act (RSBC

1996, c 440) effective April 6, 2020. All references to the Act in this decision refer to the

Workers Compensation Act, RSBC 2019, c. 1, unless otherwise specified. The purpose of the

revisions is to make the Act easier to read and understand. They are not intended to change the

legal effect of the Act.

1

The Board operates as WorkSafeBC.

1

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[5]

[6]

The employer appealed the March 13, 2019 Review Division decision to the Workers’

Compensation Appeal Tribunal (WCAT) under section 288 of the Act. The employer submitted

that the worker did not suffer a mental disorder; rather he was suffering from the effects of a

pre-existing mental disorder after the May 10, 2018 incident. The employer argued that the

posting incident on May 10, 2018 was neither a traumatic event nor a significant stressor and

the worker’s mental disorder is not compensable. It requested that the Review Division decision

be varied and the worker’s claim for a mental disorder be denied.

The worker submitted that the employer’s appeal should be denied and the Review Division

decision confirmed. He argued that the May 10, 2018 was a traumatic event or a significant

stressor and his mental disorder arose out of and in the course of his employment and is

compensable. In the alternative, the worker argued that the “predominant cause”²test in

subparagraph 135(1)(a)(ii) of the Act violates the worker’s right to equality pursuant to

section 15 of the Canadian Charter of Rights and Freedoms (Charter). He submitted that the

causation test should be “causative significance,” which is the causation test that applies for

mental disorders arising from traumatic events, as well as for injuries and diseases.

Method of Appeal

[7]

The employer requested that the appeal be decided after an oral hearing. The worker objected

to an oral hearing being held and submitted that the employer’s appeal should be decided

based on a review of the file and the parties’ written submissions. The worker submitted there

were no significant issues of credibility and that he was unable to participate in a hearing due to

his psychological condition. He provided a brief medical note dated May 22, 2019 from his

family physician, Dr. Symon, which stated as follows: “Due to the situation issues with anxiety,

he is unable to attend WCAT oral hearing. Rather the process should be done in written

submissions.” I held a pre-hearing conference on May 29, 2019, as summarized in a

memorandum which was disclosed to the parties the following day. I determined that there were

significant issues of credibility which required an oral hearing to resolve. I acknowledge that the

hearing process may be stressful, especially for a person with a mental disorder. In my view, the

medical note provided was insufficient as it did not set out what effect participating in a hearing

would have on the worker’s anxiety condition, how long any effect might last, whether any

potential negative effect could be reduced by any accommodations, or for how long the worker

would unable to participate. I considered the rule at item 7.5 of the WCAT Manual of Rules of

Practice and Procedure (MRPP), I also considered the duty of procedural fairness, including the

right of a party to be heard. The duty is described at item 1.5.3 of the MRPP. I determined that

the appeal would proceed by an oral hearing. I indicated the worker could advise of any

accommodations that would assist him in participating in the hearing and I would consider those

requests. I held a second pre-hearing conference on September 11, 2019 to deal with hearing

procedure.

2

All quotes reproduced as written, except as noted.

2

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[8]

[9]

At various points during the process, the worker provided medical notes which indicated that it

would be helpful if he were able to take breaks as needed. I granted the worker’s request. The

worker and his representative indicated that they would advise if a break was necessary, and

did so during the hearing.

I held an oral hearing over 11 days beginning in September 2019 and finishing in September

2020. The employer was represented by legal counsel and called four witnesses, all of whom

are employees of the employer: Ms. A, the human resources manager; Mr. B, the base

manager; Mr. C, the worker’s supervisor; and Mr. E³, the manager of the health services

department. The worker participated in the appeal and was represented by two members of the

Workers’ Advisers Office. The worker gave evidence and called four witnesses: his wife; Mr. X,

a co-worker, friend and union representative; Mr. Y, a co-worker and friend; and Mr. Z, a former

co-worker and friend. The hearing was held in person in Richmond, British Columbia on

September 23 to 26, 2019 and March 2 to 6, 2020. A further hearing date scheduled in

March 2020 was postponed due to the COVID-19 pandemic. The final two days of the hearing

took place by video conference on September 29 and 30, 2020. The parties completed

submissions in writing by March 2, 2021.

Issue(s)

[10]

[11]

The issue is whether the worker suffered a mental disorder on May 10, 2018 which is

compensable under section 135 of the Act.

Background and Evidence

For the purposes of this decision, it is not necessary to set out all the evidence on the worker’s

claim file or submitted in connection with this appeal. I have set out the evidence only as

necessary to explain my decision. I have reviewed all of the evidence.

[12]

[13]

The worker’s claim for a mental disorder takes place within the context of a lengthy history of

disputes between the worker and the employer as well as a prior compensation claim.

The worker is a member of a union and the terms of his employment are covered by a collective

agreement. He feels that he was bullied and harassed at work since approximately 2010 by

various individuals. The worker originally alleged that he was harassed by a co-worker, Mr. F.

The employer terminated Mr. F’s employment in January 2015. The worker subsequently

alleged that he was harassed by the base manager, Mr. B. The worker filed bullying and

harassment complaints with the employer regarding these incidents, including in 2013 and

2014. He subsequently filed a complaint against his employer with the Canadian Human Rights

Commission (CHRC), which was dismissed. The worker applied for judicial review of the

3

Mr. E replaced Ms. D as a witness due to her extended illness. Ms. D was the disability case manager.

3

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

CHRC’s decision to dismiss his human rights complaint. In March 2017, the worker’s application

for judicial review was denied by the Federal Court (the Court Decision).

[14]

In the meantime, the worker applied to the Board for compensation for a mental disorder in

August 2016 (the 2016 claim). The Board determined that the worker had not filed his

application for compensation within a year of the date of injury and he had not been precluded

from doing so by special circumstances. The Board dismissed his 2016 claim. That decision

was confirmed in an April 2017 Review Division decision. The worker appealed the Review

Division decision to the WCAT and, after the events with which this claim is concerned, a

WCAT vice chair confirmed the Review Division decision on December 27, 2018 (WCAT

Decision A1701687). The vice chair found that the date of injury of the worker’s claim for mental

disorder was October 25, 2014 and the worker had not applied for compensation within a year

of that date. She further found that special circumstances had not precluded him from doing so.

Therefore, the worker’s August 2016 claim for compensation was barred by the Act from being

considered on its merits.

[15]

[16]

The worker was off work due to his pre-existing mental disorder from July 2016 until

September 2017 (approximately 14 months), when he returned to work on a gradual basis. In

approximately June 2017, while the worker was still off work, he learned that the Court Decision

had been posted in the workplace. The worker filed a complaint with the employer.

The worker returned to his work duties in the hangar on a full-time basis in late November 2017.

On May 10, 2018, the worker learned that the Court Decision was posted at the airport ramp

office. The worker asked Mr. W, a co-worker who worked at the airport ramp, to drive him there.

The worker saw the Court Decision posted on a bulletin board at the ramp office. He filmed the

incident and removed the Court Decision. He reported to his supervisor, Mr. C, and then left the

worksite.

[17]

On May 18, 2018, the worker applied for compensation with respect to the posting incident on

May 10, 2018. He stated that the incident had occurred at 6:45 p.m. He provided further details

regarding the circumstances that led to his claim in writing on May 21, 2018. He indicated that,

in a Review Division decision, the Board had clearly acknowledged evidence of Mr. B bullying

and harassing him.⁴He wrote that the employer and the union had not done anything to prevent

the bullying, harassment, and retaliation against him when the Court Decision had first been

posted in the workplace in June 2017, despite his requests for an investigation. On May 10,

2018, a co-worker told him that someone had again posted a copy of the Court Decision and it

4

The worker later clarified that he was referring to the April 25, 2017 Review Division decision, which

had confirmed the Board decision that the worker’s 2016 claim was barred from consideration. The

worker provided a copy of that decision with his submission to the WCAT. In that decision, the review

officer specifically indicated that the merits of the claim were not before him. That statement is

inconsistent with the worker’s position that the review officer found there was bullying and harassment.

4

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

had been there for a week. The worker stated that he found copies of the Court Decision in the

north side of the employer’s facility, hung directly underneath the employee shift schedule. He

wrote:

… On [M]ay 10^th, 2018 when I saw these postings again and with my own eyes

I was traumatized, humiliated and my dignity in front of other coworkers

damaged, I have nightmares that I might get another harassing calls again

because of this as I did in 2017, rumours and gossips behind me has started

again, my dignity and self respect is damaged.

[18]

[19]

The worker provided the Board with a copy of a letter he wrote to the employer dated May 15,

2018. In that letter, the worker wrote that he blamed the employer for failing to investigate

when similar behaviour had occurred in 2017. The worker stated the employer could have

investigated by reviewing surveillance footage to determine who had posted the decision or

posting a memorandum to indicate that the behaviour of posting the decision was unacceptable.

He said that the employer’s failure to investigate demonstrated that the employer wanted the

harassing behaviour to continue.

The Board case manager spoke with the worker on June 18, 2018. The worker explained

that the Court Decision had previously been posted on a bulletin board in the lunch room in

June 2017, but he did not see it as he was off work on long-term disability when it occurred. The

worker stated there were multiple copies. The worker acknowledged the Court Decision was

publicly available online. However, he said the employer printed them out and distributed them

to others to put them up on the bulletin board. The worker said that shortly after the Court

Decision was first posted, a former co-worker called the worker at home and told the worker that

he was “F___ed” with the employer and would no longer be welcome at work. The worker said

that by the time he found out about it, the Court Decision was no longer posted at work. The

worker alleged that Mr. G had printed the decision. He said that Mr. G was part of management

and worked with Mr. B. Mr. B had reportedly removed a copy of the Court Decision from the

workplace; however, the worker did not believe him. He said the human resources manager,

Ms. A, was protecting Mr. B. On May 10, 2018, the worker learned the Court Decision was

posted at the ramp office. A co-worker and witness (Mr. W) drove the worker there as the

worker did not have access to drive there. The worker said that was the main stressor, along

with the fact that the employer did not do anything about it the first time it occurred.

[20]

The case manager spoke with Mr. W, who confirmed that he had informed the worker of the

posting and drove him there to see it.

5

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[21]

The Board obtained the clinical records from Dr. Symon, beginning in January 2013. Those

records show the following:

 The worker was diagnosed with generalized anxiety disorder, insomnia, and headache by

Dr. Baldelli, a family physician at the same clinic as Dr. Symon, in October 2014. Dr. Baldelli

prescribed zopiclone, a sleep medication.

 In December 2014 the worker reported stress at work that had been going on for years. He

complained of harassment and problems with colleagues. Dr. Symon diagnosed stress and

insomnia.

 The clinical records referred to stress and/or anxiety in January, February, April, May,

September, and October 2015. Some of those references were general while others related

to his health or to work. The worker also endorsed related physical symptoms including

insomnia, headache and heart-related concerns. In October 2015, Dr. Symon prescribed

Ativan (an anti-anxiety medication).

 On October 19, 2015, Dr. Symon noted the worker found Ativan helpful but was using it

every day. The worker was very concerned that he had cardiac disease. He was off work

and was worried about returning to work, especially about working in confined spaces.

Dr. Symon recommended counselling.

 In November 2015, it was noted that the worker was feeling better after a vacation and all

his somatic symptoms and anxiety disappeared. He was ready to return to work and felt he

did not have to see a psychiatrist or counsellor.

 In May, June and July 2016, the treating physician noted ongoing stress with the worker’s

Federal Court case. The worker went off of work. On July 24, 2016, the physician noted the

worker had been interviewed by a mental health team which had suggested a referral to a

rapid access clinic. The physician noted anxiety from stress at work and from the worker’s

court case.

 The worker attended an assessment on August 26, 2016 with Dr. Chan, a psychiatrist, and

Dr. Karakoc, a resident psychiatrist.⁵The worker complained of being distracted by thoughts

of harassment at work and his upcoming court case. He was afraid of making mistakes at

work. He complained of physical symptoms of anxiety, including numbness in his hands,

heart palpitations, headaches, and dizziness. He had strange dreams related to work and

wanted to avoid his place of work. Dr. Chan’s impression was that the worker was

presenting with symptoms of anxiety including constant worries about work and a related

court case, poor concentration, irritability, restlessness, poor sleep, and low energy in the

context of workplace harassment. Dr. Chan diagnosed an adjustment disorder with anxiety

5

For simplicity, I refer to the report of Dr. Chan and Dr. Karakoc as the report of Dr. Chan.

6

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

and anxious distress. She indicated that the alternative, or rule-out diagnosis, was

unspecified anxiety disorder. She recommended the worker take citalopram (an

antidepressant) and participate in a mixed anxiety cognitive behavioural therapy group.

 The worker attended a follow-up assessment with Dr. Chan on September 9, 2016. His

presentation and diagnosis remained the same as in the initial assessment.

 The clinical records in September, November, and December 2016 continued to refer to

stress and anxiety. In December 2016, Dr. Symon noted that the worker had financial stress

from his court case. He felt unable to return to work due to tension. He felt everyone would

be watching him to see if he would make mistakes. He was distracted, unable to

concentrate, and forgetful.

 In January 2017, Dr. Symon noted the worker had ongoing severe stress from the legal

battle with the employer. The worker did not feel able to go back to work due to the

poisonous atmosphere with employees and the stressful working environment with no

tolerance for mistakes. Dr. Symon diagnosed anxiety and increased the worker’s dose of

citalopram. The worker was waiting to start cognitive behavioural therapy in February 2017.

 In April 2017, the worker reported he had completed his cognitive behavioural therapy

course and had increased the dose of citalopram to the 30 milligrams per day. Dr. Symon

diagnosed chronic anxiety and stress. He renewed the worker’s prescriptions for Ativan and

citalopram.

 The worker sought treatment for headache and an irregular heartbeat in April, June, and

July 2017. There is no mention in the clinical records of the first posting of Court Decision at

work. In September 2017, the worker indicated that he was planning to return to work the

following week and was very anxious about it.

 On November 21, 2017, the worker reported he had almost returned to work full time. He

continued to have moderate anxiety. He was finding it difficult to do a “run-in procedure”

which was time sensitive and critical for aircraft safety. The worker requested a letter that he

was unable to do that task. He was still using anxiety medication (Ativan) every few days.

Dr. Symon refilled the worker’s prescriptions for Ativan and citalopram (prescribed at

20 milligrams).

 On March 7, 2018, the worker indicated that he still had “quite severe anxiety and insomnia.”

He sometimes felt depressed. He was continuing to see a counsellor. Dr. Symon diagnosed

anxiety and depression and referred the worker to mental health services. He refilled the

worker’s medications.

 On April 22, 2018, the worker reported that he was again going through a period of “quite

intense anxiety” and was suffering from insomnia and headaches. He felt that he was being

7

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

constantly watched at work and felt like they were waiting for him to make a mistake so that

they had an excuse to fire him. He was concerned by a recent engine fire on a commercial

flight in the United States. He was checking his work three or four times to make sure there

were no mistakes. Dr. Symon diagnosed insomnia and tension headache and prescribed

pain medication.

 On April 28, 2018 the worker saw Dr. Wardill, a family physician at the same medical clinic.

He reported he was very anxious and was concerned with making a mistake at work. He

had chronic anxiety and had had harassment issues at work in the past for which he had

required time off. He was experiencing headache and sleep disruption. He reported his

anxiety came in clusters of a few days. On examination, Dr. Wardill reported that the worker

was hyperventilating in the office and looked very anxious. She recommended the worker

follow up with Dr. Symon and also discussed options with the worker, including doing

cognitive behavioural therapy or increasing the dose of or changing his anti-depressant

medication.

 The worker saw Dr. Kurra, a family physician at the same clinic, on May 11, 2018 (the day

after the incident). Dr. Kurra wrote: “See prev[ious] notes. Has anxiety from bullying and

harassment at work. Had some harassment again yesterday – his human rights complaint

was posted at work again – went home with a lot of anxiety and could not sleep. Still

anxious. Did not take [A]tivan. No [suicidal ideation].” Dr. Kurra diagnosed anxiety. She

advised the worker to use Ativan and to see Dr. Symon for an increase or change in his

anti-depressant medication.

 The worker saw Dr. Kalia, a family physician at the same clinic, on May 17, 2018. The

worker reported that he was in counselling. He was really anxious and had a panic attack

the previous week. He had been off work since May 10, 2018. He was having difficulty

sleeping and was using Ativan. His anxiety was worse at night. Dr. Kalia observed that the

worker was alert and was not in acute or apparent distress. She diagnosed anxiety and

insomnia. She increased the worker’s citalopram from 20 to 30 milligrams, prescribed an

antihistamine for sleep, and refilled the worker’s migraine medication. She strongly

encouraged the worker to continue counselling.

 The worker saw Dr. Symon on May 28, 2018. Dr. Symon noted that the worker had been off

work since his recent flare-up of anxiety, after he found colleagues had posted personal

information of his at work. The worker stated he wanted to return to work but stated that

incidents like this consume him and he was unable to stop thinking about the way he has

been insulted. He had increased the dose of citalopram slightly and was using Ativan

judiciously, usually just once per day. The worker reported he was highly anxious,

experiencing quite severe insomnia, and had had a few full-blown panic attacks. Dr. Symon

diagnosed anxiety. He recommended counselling and prescribed Ativan.

8

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

 The worker saw Dr. Kalia on May 30, 2018. He reported that he still had significant anxiety.

He stated that he had to go to court on Monday (June 4, 2018). He stated he felt too anxious

and did not feel he was able to attend. Dr. Kalia noted the worker was alert and in no

apparent distress. Dr. Kalia diagnosed anxiety and was given a note.

 The worker saw Dr. Symon on June 11, 2018. He reported suffering from quite severe

anxiety, insomnia, and suppressed anger. He reported that he was worried about returning

to work and making a mistake in his high stress job. He stated that “everyone is watching

him like a hawk and waiting for him to slip up.” He denied severe depression. He was seeing

Ms. J. Kalia, a registered clinical counsellor, through the medical clinic. Dr. Symon

diagnosed stress and anxiety. He renewed the worker’s prescriptions for citalopram and

Ativan.

 The clinical records contain counselling notes with Ms. Kalia beginning on June 14, 2018.

These notes show that the worker had a hard time not thinking and talking about his work

stress.

[22]

[23]

The Board case manager referred the worker to Dr. Beihl for an expedited psychological

assessment, which took place on July 9, 2018. In the report of the following day, Dr. Beihl

diagnosed the worker with an adjustment disorder with mixed anxiety and depressed mood.

Dr. Beihl stated that the May 2018 posting incident was the predominant cause of the worker’s

aggravated anxiety.

Prior to the oral hearing commencing, I requested the counselling records from Dr. Blasberg,

registered psychologist, with respect to the worker. Those records were provided and disclosed

to the parties. The worker began counselling with Dr. Blasberg in April 2017 and was

discharged on November 30, 2017. The worker reported difficulty with ruminative anxiety about

past perceived harassment at work and ongoing legal challenges. In the 21 appointments that

the worker had in that period, he mentioned sleep difficulty on at least four occasions throughout

that time, including in June, August, and November 2017. He reported physiological symptoms

related to stress such as twitching, tics, and irregular heartbeat. For instance, on October 11,

2017, he reported experiencing physiological symptoms at work, such as twitching. He reported

ruminative anxiety or intrusive thoughts about past work harassment at least five times. He

reported significant stress related to his ongoing legal challenges at least five times, including

twice in both June and July, as well as November 30, 2017. Specifically, on November 30, 2017

the worker reported a resurgence of symptoms after attending a legal hearing related to work. In

contrast, there was one reference (on September 26, 2017) to the worker learning about the

posting of the Court Decision earlier that year.

[24]

The worker next saw Dr. Blasberg on May 3, 2018, a week prior to the claim incident, noting

that “he had a few moments of panic symptoms at work” which had been troubling him. He

continued to have ruminative thoughts about past experiences at work. He was continuing to

9

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

deal with his 2016 compensation claim (his WCAT appeal) and the CHRC, which were stressful

at times. He continued to use his sick days as necessary to recuperate from stresses at work.

[25]

The worker saw Dr. Blasberg on May 14, 2018. The worker reported his employer had posted

sensitive information about his CHRC complaint on a bulletin board again. This had enflamed

him and caused a resurgence of symptoms. Dr. Blasberg observed that he was highly agitated.

[26]

[27]

On May 23, 2018, the worker reported difficulty with work-related rumination. He was

experiencing sleep problems and a return of some somatic symptoms.

The worker submitted a letter from Dr. Blasberg dated June 27, 2019 regarding the content of

the clinical records for the period April 26, 2017 to May 23, 2018. Dr. Blasberg wrote that he

recalled several discussions over the course of the worker’s treatment related to the public

posting of his private personal information at work and feelings of distress and anxiety which

impacted his functioning, even if those discussions were not documented in the clinical record.

[28]

[29]

The worker returned to work on a graduated basis and returned to full duties in July 2019. The

Board ended the worker’s wage loss benefits effective July 21, 2019 and determined the

worker’s injury had not resulted in a permanent condition. Therefore, the worker was not entitled

to a permanent disability benefit.

On August 21, 2019, the employer submitted an undated opinion from Dr. Grosse, a

psychiatrist. The employer had previously provided the July 16, 2019 letter in which it requested

Dr. Grosse’s opinion, as well as the material it provided to Dr. Grosse. Dr. Grosse opined that

the anxiety symptoms which led to the worker going off work in May 2018 were due to an

exacerbation of the worker’s pre-existing non-compensable anxiety disorder and did not

represent a separate co-existing condition.

[30]

The worker provided a report from Dr. Lymburner, a psychologist, dated August 11, 2019.

Dr. Lymburner’s report was based on a psychological assessment of the worker conducted on

July 12, 2019. Dr. Lymburner stated her opinion that, prior to May 10, 2019, the worker suffered

from “other specified anxiety disorder,” which was mild. She stated that the worker’s pre-existing

anxiety disorder was significantly aggravated by the May 10, 2018 posting. In addition, she

agreed with Dr. Beihl that adjustment disorder with mixed anxiety and depressed mood was the

most appropriate diagnosis. She stated the May 10, 2018 incident was the predominant cause

of the worker’s adjustment disorder.

[31]

In a September 2, 2019 letter provided by the worker, Dr. Lymburner set out her disagreement

with Dr. Grosse’s opinion. On September 11, 2019, the employer provided an undated letter

from Dr. Grosse in which he disagreed with Dr. Lymburner’s opinion.

10

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[32]

[33]

[34]

The worker submitted an email that he sent to Mr. W on September 20, 2019 and Mr. W’s

response to the worker on the same date. Mr. W agreed with the worker’s statement about what

happened on May 10, 2018.

The employer provided the worker’s employee absence profile for the period 2014 to 2019. The

employer also provided a number of e-mails between the worker and Ms. A, as well as between

the worker and Ms. U, the national human rights coordinator for the union.

As required by my order, the employer provided the Joint Investigation Report and underlying

investigation notes and documents. The investigation was conducted by Ms. A from the

employer and Ms. U from the union. The investigation focussed on the circumstances

surrounding the worker discovering the Court Decision posted on May 10, 2018. The joint

investigators interviewed ten witnesses, four of whom also testified at the WCAT oral hearing

(Mr. B; Mr. C – witness 1; Mr. X – witness 8; and Mr. Y – witness 6). Mr. W was interviewed

(witness 7), as was Mr. V (witness 9). Where it is necessary to refer to their evidence, I refer to

the remainder of the witnesses by their witness number in the joint investigation.

[35]

[36]

Mr. B and the first five witnesses were interviewed on June 26 and 27, 2018. Witnesses 6, 7,

and 8 were interviewed on July 5, 6, and 10, 2018, respectively. Witness 9 was interviewed on

November 22, 2018. The worker was interviewed in June 2019. While there do not appear to be

any notes provided from the worker’s interview, the worker’s statement is set out at page 6 of

the joint investigation report.

The conclusions of the joint investigation report are not binding on me in any way. The

definitions applied by the joint investigators and the purpose of the inquiry are not the same as

the issues before me in this appeal. I have not relied in any way on their conclusions, including

their findings of fact. However, the notes of the witness interviews form a part of the evidence

that I am able to weigh in determining what occurred with respect to the posting of the worker’s

Court Decision in the workplace, including where, when, and by whom it was seen.

[37]

The worker provided a video which showed his perspective when travelling to the ramp on

May 10, 2018. The video is just under four minutes long. It did not contain a time stamp or show

when it was recorded. The worker gave his name and indicated that the date was May 10, 2018.

He stated he was told that day that his Court Decision was again printed at the ramp office and

had apparently been seen there for a week. He said that he wanted to see for himself “this

retaliating and harassing bullying behaviour of the employer that has not been able to stop.”

Once the worker arrived at the ramp office, he followed Mr. W into the office. He walked to the

bulletin board where the video shows that the Court Decision was posted unobstructed at the

bottom right corner. Pinholes are visible in the document.

[38]

There was a significant amount of evidence provided by witnesses at the oral hearing, although

not all of it was relevant to the issues which were necessary to decide on this appeal. I have

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considered all of the evidence. I will refer to the witness evidence from the oral hearing as

necessary to explain my reasons and findings.

Reasons and Findings

[39]

[40]

Section 303(2) of the Act requires the WCAT to make its decision based on the merits and

justice of the case, but in doing so it must apply any policies of the board of directors of the

Board that are applicable in that case. The policies in the Rehabilitation Services and Claims

Manual, Volume II (RSCM II) apply to this appeal.

The changes to item C3-13.00 of the RSCM II effective July 23, 2018 apply to all decisions

made by the Board and the WCAT, including all decisions made, but not finally adjudicated,

before July 23, 2018. The policies in Chapter 3 of the RSCM II were revised effective

February 1, 2020, including item C3-13.00. However, the policy revisions on February 1, 2020

apply only to Board decisions and do not apply to the WCAT. The March 13, 2019 Review

Division decision and the underlying Board decision were issued prior to that date. The effect of

these changes is that Chapter 3 of the RSCM II as it was after July 23, 2018 but before

February 1, 2020 continues to apply in the appeal, with the changes to section numbers and

language reflecting the revised Act.

[41]

[42]

The standard of proof is the balance of probabilities as modified by subsection 303(5) of the Act.

That section provides that in compensation cases, where the evidence supporting different

findings on an issue is evenly weighted, the WCAT must resolve that issue in a manner that

favours the worker.

I. Jurisdiction and Procedural Issues

The parties to the appeal raised numerous evidentiary, jurisdictional, and procedural concerns

throughout the proceedings, which lengthened the proceedings beyond what would otherwise

have been necessary to hear this appeal and removed the focus from the key issues. It is not

necessary for the purposes of this decision to set out all of those concerns and rulings. I issued

a number of memoranda in which I addressed many of those concerns or objections. They

include memoranda dated May 30, 2019, September 18, 2019, February 26, 2020, October 14,

2020, October 29, 2020 and November 30, 2020.

[43]

The worker was disabled from work due to a mental disorder in July 2016 and filed a

compensation claim in August 2016. The Board determined that the worker’s 2016 claim was

statute-barred from being adjudicated. Therefore, I conclude that I do not have jurisdiction to

consider the worker’s entitlement to compensation for a mental disorder in relation to incidents

or events which took place prior to August 2016. I communicated the issue before me in the

appeal and my view of my jurisdiction to the parties. I provided the opportunity for the parties to

make submissions on the extent of my jurisdiction. I indicated that while I would hear general

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background evidence about the nature of the ongoing dispute between the parties, I would not

hear evidence about specific events prior to that date and would not make findings on whether

the worker was subjected to bullying and harassment, as defined by the law and policy, prior to

that date. I encouraged the parties to restrict the evidence to that which was relevant to the

issue in this appeal.

A. Audio recording

[44]

I declined to admit a surreptitious audio recording from October 2014 as requested by the

worker. In his testimony, the worker described that the audio recording involved a meeting

between himself and two union officials regarding his CHRC complaint. I gather the audio

recording involves hearsay evidence of the union officials regarding something Mr. B said to

them (and is the same audio recording which was discussed in the Court Decision). Whether

Mr. B bullied and harassed the worker in 2014 is not an issue that is before me in this appeal.

Therefore, I am not satisfied that the audio recording is relevant in any way to the issues that

I must decide in this appeal. I also declined to admit a number of documents from the worker

that predated August 2016 on the basis that they were not relevant.

B. CHRC investigation reports

[45]

I declined to admit into evidence two investigation reports from the worker’s complaints to the

CHRC which were provided by the employer on August 15, 2019, at Tabs 13 and 14 of the

employer’s book of documents. I declined to admit these documents based on the lack of

relevance to the issue under appeal for the first report and because they specifically stated that

they were not for distribution except to the parties to the complaint. I indicated that the parties

could introduce direct evidence about any circumstances of the investigation which were

relevant to the issue under appeal.

C. Joint Investigation

[46]

I issued an order for production of documents related to the joint investigation by the employer

and union into the 2018 posting of the Court Decision in the workplace, as requested by the

worker. I had originally denied the worker’s request for an order for the employer to produce

those documents (as well as for the worker’s entire personnel file going back 20 years) in

advance of the hearing, as the worker’s request for production had not satisfied the

requirements in the practice directive in item 11.7 of the MRPP. I had indicated the worker could

renew the request at the hearing and I would consider it further. The worker renewed that

request on September 23, 2019, the first day of the hearing. The joint investigation report came

up during the cross-examination of Ms. A on September 23, 2019. At that point, the employer

clarified that the joint investigation report was separate from the joint investigation outcome

letter which it had already provided and that the collective agreement prevented it from

providing the investigation report without an order to do so. It indicated the notes from the

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witness interviews were available. The employer agreed to disclose the report and underlying

documents if it was ordered to produce them, if the names of witnesses were able to be

redacted (with a separate list of the names provided), and if a copy of the report and underlying

documents were not provided to the worker, but only to his representative. The worker would be

able to go over the documents with the representative, but not to retain a copy. The purpose of

these conditions was to prevent a violation of the collective agreement. The worker agreed to

the conditions. It was agreed that the employer would have an opportunity to directly

examine Ms. A on the investigation report and then the worker would resume with Ms. A’s

cross-examination. The worker requested a late start to review the records the following day,

which was granted.

[47]

I adjourned the hearing and issued the order for production of the documents on the afternoon

of September 23, 2019. The employer provided the majority of the documents to the worker that

evening. Ms. U’s notes were provided the following morning. The hearing was adjourned until

1:00 p.m. on September 24, 2019 in order to give the worker the opportunity to review the

documents. When the hearing resumed, the worker objected to the order for production of

documents being issued and that the documents were disclosed after the worker had begun

Ms. A’s cross-examination. The worker argued he had been “ambushed” and objected to

splitting the cross-examination of Ms. A. The worker did not raise any of those objections the

day before (other than the request for time to review, which was granted). I find there was no

unfairness to the worker as a result of my granting his request for an order to produce the

documents or the manner in which it occurred.

D. Witnesses and acceptance of other evidence

[48]

[49]

I also issued orders for some of the worker’s witnesses to attend the hearing so that the

witnesses could receive time off from work in order to give evidence.

In his submission, the worker wrote that, prior to the hearing, he advised that he was prepared

to call further witnesses, such as his parents, as to his mental state after the May 10, 2018

incident, but that “The Panel felt that [the worker’s wife’s] evidence as a wife would be sufficient

and no further family witnesses were needed.” This misstates the discussion around the

potential to provide evidence from the worker’s parents. At the May 29, 2019 pre-hearing

conference, the worker indicated that he might provide written statements from his parents.

There was no suggestion that they would be called as witnesses at the hearing, as it was

reported that they were in ill health. The employer indicated it would likely object to such

evidence. There was some discussion regarding the weight to be afforded to written statements,

the usefulness of that evidence, and concerns regarding the duplication of evidence. In the

May 30, 2019 memorandum, it was left open to the worker to provide written statements from

his parents. The worker provided the witness list on July 12, 2019. His parents were not on that

list. The list contained two witnesses who had not been discussed at the pre-hearing

conference. The worker did not provide written statements from his parents. It was up to the

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worker to decide what evidence to lead in the appeal, subject to any rulings on objections made

by the employer. I made no ruling regarding admissibility of evidence from the worker’s parents.

[50]

Both parties requested that other evidence not be admitted. For example, the employer objected

to the September 20, 2019 email of Mr. W and to Dr. Blasberg’s letter dated June 29, 2019

being admitted into evidence, as well as to the worker calling Mr. Z as a witness. Section 298 of

the Act and item 11.3 of the MRPP provide that the WCAT may receive and accept evidence it

considers relevant, necessary, and appropriate, regardless of whether the evidence is

admissible in a court of law. I indicated that I would accept the evidence but I would consider the

arguments raised in determining the weight to be attributed to that evidence. I also noted the

employer could object to any evidence of Mr. Z which was not relevant to the appeal.

[51]

[52]

[53]

After the hearing had started, the worker submitted the video he took while driving to and

arriving at the ramp office on May 10, 2018. The employer initially objected to the video being

admitted into evidence. The employer reviewed the video with the worker outside of the hearing.

After doing so, the employer withdrew its objection and I admitted the video into evidence as it is

relevant to the appeal.

E. Admissibility of Dr. Grosse’s opinion and conflict of interest

In his submission, the worker objected to Dr. Grosse’s opinion being admitted into evidence on

the basis that the employer breached the worker’s privacy by providing the file documents and

medical records to Dr. Grosse. The worker argued that Dr. Grosse’s opinion was not admissible

as it violated subsection 235(1) of the Act and a number of different codes of ethics and practice

standards. The employer argued that it was improper for the worker to first raise this objection in

his written submission in January 2021 when Dr. Grosse’s report was provided to the WCAT in

August 2019.

Section 235 of the Act provides:

235 (1) If information in a claim file, or in any other material relating to the claim

of an injured or disabled worker, is disclosed for the purposes of this Act

by an officer or employee of the Board to a person other than the worker,

that other person must not disclose the information except as follows:

(a) in compliance with an enactment of British Columbia or Canada;

(b) in compliance with a subpoena, warrant or order issued or made

by a court, tribunal, person or body with jurisdiction to compel the

production of information;

(c) for the purpose of preparing a submission or argument for

a proceeding under a compensation provision, an OHS

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[occupational health and safety] provision or Part 7 [Appeals to

Appeal Tribunal];

(d) if the information is about a person, the person has identified the

information and consented, in the manner required by the Board,

to disclosure of that information.

(2) A court, tribunal or other body may not admit into evidence any

information that is disclosed in contravention of subsection (1).

(3) A person who contravenes subsection (1) commits an offence.

[54]

The worker’s medical records were information falling within subsection 235(1) as they were

disclosed to the employer by the Board. The employer was prohibited from disclosing that

information except for in the circumstances allowed by paragraphs (a) through (d). Given the

worker’s statement about consent, it appears the worker considered paragraph 235(1)(d).

However, in my view, paragraph 235(1)(c) is more applicable in this situation.

[55]

[56]

[57]

Applying the modern principal of statutory interpretation, the words of paragraph 235(1)(c) must

be read in the entire context of the Act, in their ordinary and grammatical sense harmoniously

with the scheme and purpose of the Act, the object of the Act, and the intention of the

Legislature.

Contextually, section 235 must be read as broadly applicable to matters relating to the

compensation of workers. It is in Part 4 of the Act, which concerns compensation of injured

workers and their dependants, but it is also applicable in the context of WCAT appeals, by virtue

of subsection 314(2) of the Act.

The key phrase in paragraph 235(1)(c) is, “for the purpose of preparing a submission or

argument for a proceeding.” In that phrase “submission” must be taken to mean something

other than “argument” otherwise, that word would be redundant. The Oxford English Dictionary

definition of “submission” in the context of a legal proceeding is “theory, etc. submitted by

counsel to judge or jury.” Put another way, “submission” means “that which is submitted for

consideration.” Thus, in its ordinary sense, “submission” encompasses not only the theory of a

case but the evidence and argument in support of that theory.

[58]

The question is whether “preparing a submission” includes obtaining expert evidence. One

could argue that it would have been simple to include words “obtaining expert evidence” in

paragraph 235(1)(c), and the fact that they are not means their meaning should not be ascribed

to the words “preparing a submission.” Thus, interpreted narrowly, paragraph 235(1)(c) would

allow an employer to disclose information obtained from the Board only to its representative so

that the representative can prepare a submission. Interpreted broadly, paragraph 235(1)(c)

would allow the employer to disclose information with others, such as experts.

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[59]

Subsection 235(2) may provide some context as to the intended meaning of subsection 235(1).

That subsection prohibits a court, tribunal, or other body from admitting into evidence

information disclosed contrary to subsection 235(1). In my view, the narrow interpretation of

paragraph 235(1)(c) would have the absurd result that WCAT could not admit into evidence

information from the worker’s claim file that has been properly disclosed to the worker, the

employer, and to WCAT (and thus previously admitted), simply because the employer had

disclosed the information to an expert for the purpose of obtaining an expert opinion for the

purpose of the appeal, contrary to section 235(1). In the case at hand, that would mean the

entire claim file plus Dr. Blasberg’s records, all of which were disclosed by the employer to

Dr. Gosse, would not be admissible in the appeal, even if the evidence was in the worker’s

favour. Application of section 235(2) is not limited to tribunals other than WCAT. Section 235(2)

can be understood to preclude a court or a tribunal other than WCAT from admitting into

evidence information disclosed contrary to section 235(1). Thus, if “submission” in

section 235(1) is interpreted to include obtaining expert evidence for use in the appeal the

seemingly absurd result described above would be avoided without rendering section 235(2)

meaningless.

[60]

[61]

Broadly speaking, the scheme and purpose of the Act is to provide secure, no fault

compensation to injured workers, and collective liability to employers (Pasiechnyk v.

Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890). Neither a narrow

interpretation of paragraph 235(1)(c), which would exclude disclosure of information in order to

obtain expert evidence, nor a broad interpretation, which would include such disclosure, is

obviously disharmonious with the broad scheme and purpose of the Act.

The reference in paragraph 235(1)(c) to Part 7 of the Act (Appeals to the Appeal Tribunal)

invites consideration of the purpose of Part 7, which can to be taken to include adjudication in

accordance with the Act and policy, and compliance with the principles of natural justice as per

the reference to the merits and justice of the case in subsection 303(2) of the Act. In my view,

the principles of procedural fairness support a broad interpretation of paragraph 235(1)(c)

because an employer ought not be precluded from obtaining relevant expert evidence.

A counterargument is that if expert medical evidence is needed, an employer could ask for the

worker’s consent to disclose pursuant to paragraph 235(1)(d) and, if the worker declined

consent, could ask WCAT to obtain an opinion from an independent health professional. On

balance, I conclude that a procedural fairness argument provides some support for a broad

interpretation of paragraph 235(1(c).

[62]

Where the meaning of statutory provisions is unclear, it is appropriate to consider legislative

history and debate. Prior to the revision of the Act effective April 6, 2020, subsection 235(1) was

subsection 95(1.1). Subsection 95(1.1) was added to the Act in 1995 by the Miscellaneous

Statutes Amendment Act (No. 2), 1995. Before then, there was no specific reference to

subsequent disclosure of information disclosed to a person other than the worker. The

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amendment received very little debate in committee. The members of the Legislative Assembly

(MLA) appeared to be concerned primarily about whether the addition of subsection 95(1.1)

would limit their ability to receive information from the Board when assisting constituents with

compensation claims. The following statements seem to suggest that subsection 95(1.1) would

prevent an employer from using information obtained from the Board during the appeal process

for a purpose outside the appeal process. From that it might be inferred that subsection 95(1.1)

would permit the employer to disclose the information for a purpose within the appeal process.

L. Reid: The new 34 (1.1) [sic] says: “If information in a claim file, or in any other

material pertaining to the claim of an injured or disabled worker, is disclosed for

the purposes of this Act by an officer or employee of the board to a person other

than the worker, that person shall not disclose the information....” That’s the

section I’m referring to. What I’m suggesting is that oftentimes I as the MLA, and

certainly other MLAs in this chamber, have received information directly from an

employee of the Workers’ Compensation Board on behalf of a constituent. I’m

seeking clarification on whether or not that activity will continue to be permissible

under this new amendment.

Hon. C. Gabelmann: I understand that this won’t change or make any difference

to the relationship that MLAs -- or advocates, for that matter -- have with the

injured worker or with the board with respect to that information. This deals

simply with information that could be used as part of the appeal process later on,

so there’s not an inappropriate sharing of information that could impact

inappropriately on the appeal process.

L. Reid: I appreciate the minister’s clarification, but in terms of extending the

discussion, would the scenario ever arise where an MLA would be asked to

participate in an appeal process? Does this allow for that scenario?

Hon. C. Gabelmann: In representing the worker at an appeal hearing, the MLA

would need the worker’s consent to divulge any information the MLA might have.

Without that consent, you couldn’t divulge it.

L. Reid: To summarize, then, I am hearing the minister say that the status quo

will be maintained -- that the same provisions of constituent consent for the MLA

to become involved remain in place and that this does not alter that relationship.

Hon. C. Gabelmann: This deals with ensuring that the paper -- the material, the

file -- isn’t disclosed to the employer. When receiving the information in the file in

respect of the appeal, the employer doesn’t disclose it further. The disclosure is

limited to the question at hand in the appeal, and disclosure beyond that or for

some other purpose -- some retributive purpose, perhaps -- is not allowed.

L. Reid: I thank the minister for that clarification. What I’m hearing him say is that

the individuals that the worker would ask to be involved...the status quo around

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that arrangement is maintained, but it puts on additional conditions for other

people who may be asked to participate in the appeal process. Can I ask the

minister to confirm?

Hon. C. Gabelmann: In general, the answer is yes.

Hon. C. Gabelmann: In the situation that the member described, the employer

would already have the information. What is barred is the employer using that

information for purposes other than the appeal. It therefore can’t be disseminated

beyond that process.

Interjection.

Hon. C. Gabelmann: Oh, if there’s a court order, then.... I guess the other point

to make is that this rarely gets into the court process, given the appeal process in

the WCB [Board] structure. This is where it occurs: in the appeal process. Both

parties have the information’s disclosure, but what’s prohibited is the use of that

material by a party.... In effect, it’s to prevent the employer from using the

information that is made available to them -- to effectively defend himself or

herself -- for some other purpose, including maybe finding a way of firing the

employee because they learned something from this record.

[63]

The addition of subsection 95(1.1) clearly indicates an intention to restrict disclosure, but the

exception in subsection (1)(c) demonstrates an intention to balance the worker’s privacy interest

and the employer’s interest in fair participation in proceedings under the compensation and

appeal provisions. Arguably, the debate could support either a narrow or a broad interpretation

of “submission” in subsection 235(1.1), but on balance, it seems to more strongly support the

conclusion that an employer may disclose information for the purposes of the appeal, but not for

any other purpose.

[64]

[65]

In general, statutory provisions that create offences are interpreted more strictly such that

ambiguity is resolved in a way that limits rather than expands the scope of activity constituting

an offence. A corollary is that where the ambiguity is in a provision that makes an exception to

conduct that would otherwise be an offence, it should be resolved in a way that expands rather

than restricts the exception. Accordingly, ambiguity in section 235(1)(c) should be resolved by

interpreting “submission” broadly rather than narrowly.

Considering all of the above, I find that a contextual reading of the words in

subsection 235(1)(c), reinforced by the history of subsection 235(1) (formerly

subsection 95(1.1), supports a conclusion that disclosure to Dr. Gosse was not contrary to

subsection 235(1) of the Act. However, even if I am incorrect in my analysis, section 235(2)

does not lead to the result that Dr. Grosse’s opinion is inadmissible. Further, while I have

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accepted Dr. Grosse’s opinion and relied on it to a limited degree, the appeal does not turn on

Dr. Grosse’s opinion. Rather, the outcome of the appeal turns on the application of the facts as

I have found them to other (non-medical) criteria in the law and policy.

[66]

[67]

[68]

With respect to the violations of the various ethical and professional standards cited by the

worker, it is not necessary for me to determine whether there has been such a violation.

The question is whether Dr. Grosse’s report is admissible. Section 298 of the Act provides

that the WCAT may receive and accept information that it considers relevant, necessary and

appropriate, whether or not the information would be admissible in a court of law. The

MRPP contains a practice directive for expert evidence set out at item 11.6. The practice

directive requires the expert be qualified as an expert in the field in which they are giving an

opinion and not to be an advocate for any party. On the first point, I find that Dr. Grosse is

qualified to give an expert opinion on the medical issues set out in his opinion.

The worker questioned whether there was a conflict of interest or a reasonable apprehension of

bias on the part of Dr. Grosse based on the appearance of a personal relationship with Mr. E.

The worker argued the personal relationship was established by the presence of a LinkedIn

relationship with Mr. E and on Mr. E directing a request for a further medical opinion to an email

account which appeared to be a personal account, as well as using Dr. Grosse’s first name in

that request. The worker also suggested that Dr. Grosse’s medical-legal work was heavily

based on working for employers and insurance companies, rather than for workers. The worker

stated that this did not indicate a balanced approach and may well impact Dr. Grosse’s

objectivity.

The worker first clearly raised conflict of interest objections in his January 2021 submission,

though he had perhaps implied such concerns in a request for an order for production of records

dated November 27, 2020. During the oral hearing, the worker had requested the employer

produce the invoice for Dr. Grosse’s medical opinion on the basis that the worker had provided

the invoice for Dr. Lymburner’s opinion (as he was requesting reimbursement) and that invoice

had been disclosed to the employer. I determined at the time that the worker had not provided

sufficient reasons to justify such an order. In November 2020, the worker requested an order for

production of e-mail correspondence between Mr. E and Dr. Grosse as well as all billing

information for Dr. Grosse for the last five years. The worker made this request approximately

two months after the oral hearing had been completed. The worker’s request did not meet the

requirements set out in the practice directive at item 11.7 of the MRPP, including the

requirement for such requests to be made 21 days prior to the commencement of the oral

hearing. I addressed the worker’s request in a memorandum dated November 30, 2020. The

worker did not explain why this request was not made prior to the start of the hearing and I am

not aware of any reason why it could not have been raised in a timely way.

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[69]

The worker had an opportunity to ask questions of Mr. E regarding the extent of any relationship

with Dr. Grosse when Mr. E gave evidence on March 2, 2020, but did not do so. The worker first

provided evidence of the LinkedIn relationship in August 2019, shortly after the employer

provided Dr. Grosse’s opinion in August 2019. The worker did not raise any concerns at that

time. The employer had first indicated the potential to call Mr. E in the May 29, 2019 pre-hearing

conference, as noted in the memorandum the following day, thus despite that Mr. E was not on

the employer’s first witness list, the worker was aware of his name before August 2019. I note

that “reasonable apprehension of bias” is a term that applies to decision makers, while conflict

of interest applies to medical practitioners. I find that the worker has not raised a real or

apparent conflict of interest beyond mere speculation and innuendo. Further, if the worker held

such concerns, he should have raised and explored those concerns during the oral hearing. I

find that the worker has not established a real or apparent conflict of interest on the part of

Dr. Grosse. He has not provided sufficient support for his concerns regarding the reliability of

Dr. Grosse’s evidence. He has not established that Dr. Grosse acted as an advocate rather than

in a manner consistent with his duty to assist the WCAT.

F. Admissibility of the worker’s wife’s evidence

[70]

[71]

After the completion of the worker’s wife’s testimony, the worker submitted that the employer

had violated the worker’s privacy and the Personal Information Protection and Electronic

Documents Act (PIPEDA) by questioning the worker’s wife with respect to the worker’s

medical records. He argued that as a result of the privacy breech, all portions of his wife’s

cross-examination that dealt with his medical records should be struck from the record. In a

memorandum dated September 14, 2020, I made a preliminary determination to deny the

worker’s request that the portions of his wife’s testimony be struck.

The worker again raised this argument in his submission to WCAT. In addition, the worker

indicated that the disclosure to the worker’s wife violated section 235(1) of the Act. In the

attachments to the submission, notes of the worker’s wife’s evidence were set out, with

highlighting denoting the portion of the evidence that he submitted should be struck.

[72]

[73]

The worker’s medical records are part of the record of this appeal and were properly disclosed

to WCAT, the worker, and the employer in connection with the appeal.

The worker argues that he did not provide meaningful consent for his personal information to be

disclosed. It is not necessary for me to determine whether the employer breached PIPEDA, or

even whether PIPEDA or the Freedom of Information and Protection of Privacy Act (FIPPA)

apply to this situation. What I must determine is whether or not to admit the evidence of the

worker’s wife or to strike portions of her evidence from the record. The worker has not

established that a violation of PIPEDA or FIPPA prevents me from admitting the evidence of the

worker’s wife. The worker did not argue her evidence was excluded on the basis of privilege. It

was the worker who called his wife to testify.

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[74]

[75]

In my view, the correct question is whether subsection 235(1) of the Act prevents me from

accepting the worker’s wife’s evidence. Based on the analysis in the previous section with

respect to Dr. Grosse’s opinion, I find it does not. I find that the disclosure was permitted under

section 235(1)(c) as part of the appeal process. I find that “submission” in paragraph 135(1)(c)

should be interpreted broadly and encompasses not only the theory of a case but the evidence

and argument in support of that theory. I find that any disclosure of the clinical records to the

worker’s wife was made within the context of a fair appeal process.

The worker’s wife gave evidence on behalf of the worker. In doing so, she gave evidence with

respect to the state of the worker’s health in relevant periods. The evidence of the worker’s wife

was at times inconsistent with the evidence contained in the medical records. The employer

elicited information from the worker’s wife through cross-examination as part of a fair hearing

process. In my view, an unfairness to the worker would result if the employer had requested that

the clinical records be preferred over the evidence of the worker’s wife if his wife were not given

an opportunity to address an apparent inconsistency between her evidence and the evidence on

the record. On the other hand, a significant unfairness would result if the worker’s witness was

able to testify on the worker’s condition during those periods but the employer was not allowed

to cross-examine the witness with respect to that evidence and the discrepancy between it and

the medical records.

[76]

[77]

In my view, the worker misstated my preliminary ruling in his submission. The worker suggested

that I had indicated in the September 14, 2020 memorandum that I would use the clinical

records to assess the worker’s wife’s credibility. The worker suggested that approach was

backwards. However, “the evidence” I referred to in my preliminary ruling was the portions of the

testimony of the worker’s wife which were in dispute. It was that testimony which I described as

“highly relevant” to the issues on the appeal, and indicated it was necessary to consider that

testimony in evaluating the credibility of the worker and his wife.

I find that those portions of the worker’s wife’s evidence should not be struck from the record. It

is relevant to issue on the appeal. (I note that even if I were to agree with the worker’s

argument, there seems to be inconsistency in the application of that argument to her testimony.)

However, regardless of whether or not I were to strike those highlighted portions of the worker’s

wife’s cross-examination, my overall findings with respect to the credibility and reliability of the

worker’s wife’s evidence would remain unchanged.

G. The oral hearing recording

[78]

The oral hearing recording is incomplete. Specifically, it is missing with respect to three of the

hearing days. Although I recorded the proceedings and confirmed the presence of the recording

at the end of each of those days, it appears that there was a technical problem in transferring

those recordings and they were lost. I advised the parties of the missing recordings on a

subsequent hearing day. There may also be portions of other days which were inadvertently not

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recorded. Section 35(3) of the Administrative Tribunals Act and item 14.5 of the MRPP provide

that if a recording is incomplete, the validity of the proceeding is not affected. I took detailed

notes during the hearing, on which I have relied.

H. The Charter

[79]

Shortly after the WCAT hearing concluded, the worker challenged the validity of

subparagraph 135(1)(a)(ii) of the Act under the Charter. There were concerns raised about

the sufficiency of the worker’s notice. In addition, the employer argued that the changes in

Workers Compensation Amendment Act, 2020 (Bill 23) effective August 14, 2020 did not apply

to this appeal. One of those amendments had the effect of giving the WCAT jurisdiction over

Charter issues. I addressed many of the procedural concerns surrounding this issue in a

memorandum dated October 29, 2020, which was provided to the parties. I set out that the

worker was required to provide a full description of all grounds on which he was challenging

section 135 of the Act. I indicated that I would separate the merits of the employer’s appeal from

the Charter issue and would only hear arguments on the Charter issue if it was necessary to do

so. The worker provided notice of his Charter challenge on November 4, 2020. I find that the

changes in Bill 23 apply to this appeal and I have jurisdiction to decide the worker’s Charter

argument. However, given the basis on which I have decided the employer’s appeal, the

worker’s Charter argument is not engaged, as I explain later in this decision. Therefore, I did not

initiate a submission process on the Charter issue because it is not necessary for me to decide

the worker’s Charter argument.

II. Compensation for a Mental Disorder

[80]

Subsection 135(1) of the Act provides that a worker is entitled to compensation for a mental

disorder that does not result from a compensable personal injury only if all of the following

apply:

 The mental disorder was either a reaction to one or more traumatic events

arising out of and in the course of the worker’s employment or was 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;

 The mental disorder was diagnosed by a psychologist or psychiatrist with a condition

under the most recent DSM⁶; and,

 The mental disorder was not caused by a decision of the employer related to the

worker’s employment.

6

The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. The

most recent version is the DSM-5.

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[81]

[82]

The worker was not employed in an eligible occupation⁷and is therefore not entitled to the

benefit of the presumption in subsection 135(2) of the Act.

Item C3-13.00 of the RSCM II states that the complexity of mental disorders gives rise to

challenges in the adjudication of a claim for a mental or physical condition that is described in

the DSM-5. The mental disorder may be the result of a number of contributing factors, some of

which are work related and some of which are not. The policy identifies a number of questions

to be addressed in determining whether the worker’s mental disorder is compensable. I will

address each of those as necessary.

[83]

[84]

There are a number of disputed facts in this appeal. Not all of them are necessary to resolve.

I will attempt to resolve only the disputed facts which are necessary for my decision in this

appeal. I will begin by making some general observations about the credibility of the witnesses.

In assessing the credibility of the worker and the other witnesses, I have kept in mind the

approach to assessing credibility in Bradshaw v. Stenner, 2010 BCSC 1398, at paragraph 186:

Credibility involves an assessment of the trustworthiness of a witness’ testimony

based upon the veracity or sincerity of a witness and the accuracy of the

evidence that the witness provides (Raymond v. Bosanquet (Township) (1919),

59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves

examination of various factors such as the ability and opportunity to observe

events, the firmness of his memory, the ability to resist the influence of interest to

modify his recollection, whether the witness’ evidence harmonizes with

independent evidence that has been accepted, whether the witness changes his

testimony during direct and cross-examination, whether the witness’ testimony

seems unreasonable, impossible, or unlikely, whether a witness has a motive to

lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31

O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)

[Faryna]; R. v. S. (R.D.), [1997] 3. S.C.R. 484 at para. 128 (S.C.C.)). Ultimately,

the validity of the evidence depends on whether the evidence is consistent with

the probabilities affecting the case as a whole and shown to be in existence at

the time (Faryna at para. 356).

[85]

The worker also referred to Faryna, as referenced above, in his submissions and provided a

copy of the decision. In Faryna, Justice O’Halloran stated that the test of the credibility of a

witness with an interest in the outcome of the case cannot be gauged solely by whether the

personal demeanour of the particular witness carried conviction of the truth. Rather, “… the real

7

Section 135(5) of the Act defines eligible occupation as the occupation of correctional officer,

emergency medical assistant, firefighter, police officer, sheriff or any other occupation prescribed by

regulation.

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test of the truth of the story of a witness in such a case must be its harmony with the

preponderance of the probabilities which a practical and informed person would readily

recognize as reasonable in that place and in those conditions.”

[86]

[87]

The worker’s evidence is contained in a number of sources on the file, including in documents

he wrote to the Board and to the employer, verbal history he provided to the case manager,

statements he made to treating physicians and psychologists as documented in medical records

and psychological assessments, and his testimony at the WCAT oral hearing. The worker

testified for more than three days.

In general, the worker’s evidence contained a great deal of exaggeration or was impacted by

the worker’s unique perspective. His evidence was frequently internally inconsistent and at

times completely contradictory. For example, the worker testified that he was “filled with anger,”

“pissed off” and “wanted to find out who did it and beat the hell out of them” after seeing the

Court Decision posted on May 10, 2018. At another point, he said he was “outraged,” “beyond

belief.” The employer put to the worker that the sources of his anger that day were set out in his

May 15, 2018 email to Ms. A and included a number of things that had happened prior to that

date. As the employer began to ask about the additional sources of the worker’s anger on

May 10, 2018, the worker stated, “I’m not sure if anger is accurate. I was disappointed.” After

being reminded of his previous evidence, the worker agreed he was angry.

[88]

[89]

The worker’s evidence was often inconsistent with the evidence of other witnesses, including his

own witnesses. The evidence of the worker’s wife was both internally and externally

inconsistent.

The contrast in the testimony of both the worker and his wife between their direct evidence and

their evidence in cross-examination was striking. While under cross-examination, both the

worker and his wife were extremely guarded. The worker was very hesitant and careful in his

evidence. He considered his words carefully before answering even simple questions, resulting

in long pauses before he would answer a question. For example, when asked to confirm the

accuracy of the information he had provided on his application for compensation to the Board,

the worker took so long reading over the document, that he was asked to review it in the

evening and still had difficulty answering questions about it the following day.

[90]

The worker’s wife was extremely evasive in her evidence, and in some cases had to be directed

to answer the question. She would not agree on cross-examination to statements that she made

in direct examination. She frequently responded “Maybe” when asked a question, would

respond with a question, or stated that she could not remember. Her evidence was frequently

inconsistent, and she gave directly contradictory answers numerous times. She appeared to

modify her answers in order to give the answer that she felt would best support the worker,

based on the question asked. Overall, I find that the worker’s wife’s evidence was neither

credible nor reliable.

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[91]

As an example of some of the above problems, the worker said that if his wife also had a

medical appointment, 95% of the time she would also attend his appointment. He said that she

also had health concerns and that they had a lot of appointments. The worker’s wife said that

she attended appointments with the worker “most of the time.” She later said that she would

attend if she also had an appointment. The worker was not able to recall if his wife attended the

appointment with him on May 11, 2018. She testified that she did not attend that on that date.

However, when asked if she attended medical appointments with the worker after May 11,

2018, she replied “Sometimes. Maybe. Yeah.” She testified that, on the night of May 10, 2018,

she hid the pills and knives and felt that the worker was suicidal. Then, she testified that the

worker was not suicidal that night. She said there was a difference between how she felt and

what he was thinking, but did not clearly explain the difference in her answers. She said she

once told Dr. Symon about feeling that she had to hide the pills and knives, but that she “didn’t

say all of it.” The worker said that he told Dr. Symon “everything.” However, his wife testified

that Dr. Symon was not the type of doctor who you could unload your concerns to. When she

was asked if it was important to tell the doctor that the worker had said he wanted to die, she did

not answer the question. Instead, she said that she did not go to see the doctor for many weeks

or months after May 11, 2018. She did not explain why that answer was inconsistent with her

earlier answer that she had gone sometimes during that period.

[92]

Mr. Y also exhibited serious credibility problems in his testimony. Specifically, he testified that

he did not remember who told him about the posting of the Court Decision when he returned to

work in 2017. Then, when pressed about whether he did not remember or he was withholding

the information, he asked for direction as to whether he was legally obligated not to tell if he had

promised that person that he would not. When told he had affirmed to tell the truth and his

affirmation took precedence over any promise he had made, he testified who had told him.

However, he claimed he had just remembered at that very moment and had been telling the

truth when he said he could not remember. He continued to insist that was the case despite

acknowledging that he had sought permission to reveal who had told him after being asked to

testify at the hearing. As aptly described in Faryna, in my view, this example falls into one of the

“comparatively infrequent cases in which a witness is caught in a clumsy lie.” Mr. Y’s insistence

that he had forgotten who had told him was inconsistent with his statement that he had not told

because he believed he was legally obligated not to tell, and further impugned his credibility.

[93]

Mr. Y also demonstrated inconsistency between other statements and his testimony at the oral

hearing, as well as a tendency to exaggerate. For example, he told Dr. Lymburner that for the

worker to enter the workplace was like “entering a war zone.” The worker himself did not make a

statement to that effect, nor did Mr. Y state that in the oral hearing, where he would have been

subject to cross-examination. His statement that “everybody” was aware of the Court Decision

and was talking and laughing about it was inconsistent with his acknowledgement that he had

not spoken to everybody about the Court Decision and could not name anyone he had

overheard talking or laughing about it.

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[94]

Mr. X, Mr. Y, and Mr. Z all stated that they had testified in order to help the worker. When Mr. X

was asked if he was the worker’s friend, he stated they were “acquaintances,” which gave the

appearance that he was trying to portray their relationship as something less than a friendship.

He then acknowledged that they were friends. Mr. Z, despite acknowledging that he had not

been in the workplace since March 2015 (with the exception of two hours in 2016), disagreed

that he had no personal knowledge from his own observations of any events in the workplace.

He eventually acknowledged that “obviously if I was not there I could not see anything.” I also

note that all three testified about the worker’s mental health, although all three acknowledged

that the worker did not discuss his mental health symptoms with them. I find that, aside from

some obvious observations, the worker’s mental health generally was not something that was

within their knowledge.

A. Did the worker suffer a mental disorder on May 10, 2018 which was diagnosed under the

most recent DSM, either as a new mental disorder (psychological injury) or as an

aggravation of a pre-existing condition?

[95]

Item C3-13.00 of the RSCM II states that section 135 of the Act requires more than the normal

reactions to traumatic events or significant work-related stressors, such as being dissatisfied

with work, upset or experiencing distress, frustration, anxiety, sadness or worry as those terms

are widely and informally used. Rather, it requires that a worker’s mental disorder be diagnosed

by a psychiatrist or psychologist with a condition that is described in the most recent DSM at the

time of diagnosis. This generally involves a comprehensive and systematic clinical assessment

of the worker.

[96]

[97]

Item C3-13.00 states that, in reviewing the diagnosis, the Board also considers all of the

relevant medical evidence, including prior medical history, attending physician reports and

expert medical opinion. The findings of this additional information are considered in determining

whether there is a DSM-5 diagnosed mental disorder.

The worker has been diagnosed by a psychologist or psychiatrist with a mental disorder under

the DSM-5. The diagnoses provided by Dr. Beihl and Dr. Lymburner satisfy this requirement.

Dr. Grosse did not provide a diagnosis of a mental disorder under the DSM-5. Rather, he

disagreed with Dr. Beihl and Dr. Lymburner that the worker’s circumstances warranted a new

and separate diagnosis of an adjustment disorder. He provided an opinion that the worker had

an exacerbation of a pre-existing non-compensable condition. He indicated that the worker had

a pre-existing anxiety disorder. However, an anxiety disorder is not a condition that is described

in the DSM-5. Rather, it is a class of disorders which includes a number of diagnosable

conditions, such as generalized anxiety disorder, panic disorder, and other specified anxiety

disorder.

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[98]

There is disagreement on which diagnosis is correct. In addition, the worker had a

DSM-5 diagnosis prior to the May 10, 2018 incident. The medical evidence contains frequent

reference to mental health symptoms since October 2014. The employer appears to dispute that

the worker suffered a psychological injury around the time of the May 10, 2018 incident. The

employer submits that the worker had pre-existing and ongoing anxiety issues and their

exacerbation should not be accepted as a new compensable illness. Thus, I will consider

whether the worker developed a new mental disorder or aggravated a pre-existing mental

disorder on or around May 10, 2018. This involves consideration of both medical and

non-medical evidence of the worker’s mental state both before and after that date.

[99]

Item C3-13.00 provides that an aggravation of a pre-existing mental disorder is adjudicated

under section 135 and the direction in item C3-13.00. However, item C3-13.00 does not address

what constitutes an aggravation of a pre-existing mental disorder. In my view, it would be helpful

if the Board addressed this issue in the policy, as they do elsewhere in policy with respect to

aggravations of pre-existing injuries and pre-existing diseases. I acknowledge that there is

different statutory authority for compensation for an injury and compensation for a

mental disorder. However, in the absence of binding policy in item C3-13.00, the policy in

item C3-16.00 may provide helpful guidance.

[100] Item C3-16.00 provides that it is necessary to distinguish between injuries resulting from

employment (which are compensable) and injuries resulting from pre-existing conditions or

diseases (which are not compensable). An injury is not compensable simply because it

happened at work. It is also necessary to determine that it arose out of the employment. This

means that there must have been something in the employment activity or situation that had

causative significance in producing the injury. The policy further provides that a pre-existing

condition may be aggravated by an employment-related incident or trauma. In order to

determine if the resulting injury is compensable, the Board considers the nature and extent of

the pre-existing condition or disease, the nature and extent of the employment activity, and the

degree to which the employment activity may have affected the pre-existing condition or

disease. Evidence that the pre-existing condition or disease has been accelerated, activated or

advanced more quickly than would have occurred in the absence of the employment activity

may confirm that the aggravation resulted from the employment activity. Elsewhere, with respect

to a pre-existing deteriorating condition or disease, item C3-16.00 provides that the evidence is

examined to determine whether or not, at the time of the injury, the pre-existing deteriorating

condition or disease was at a critical point at which it was likely to result in manifest disability.

[101] Item #97.31 of the RSCM II provides that where the matter is one requiring medical expertise,

the decision must be preceded by a consideration of medical evidence. Item #97.34 of the

RSCM II provides that, where there are differences of opinion among doctors or other conflicts

of medical evidence, the Board must select from among them. The Board should not

automatically prefer one category of doctor to another, nor should it count the number of

opinions one way versus another. Rather, the Board must analyze the opinions and conflicts as

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best as possible on each issue and arrive at her or his own conclusions about where the weight

of the evidence lies. The policy notes that differences in opinion may or may not result from a

difference in medical opinion. Rather, the difference might result from different assumptions of

the underlying facts.

[102] The employer argues that Dr. Grosse’s opinion should be preferred to that of Dr. Beihl and

Dr. Lymburner on the basis that Dr. Grosse is a psychiatrist and his is the only medical opinion

on file. It argues that Drs. Beihl and Lymburner, both registered psychologists, are not medically

trained and suggests that psychologists are not qualified to provide an expert opinion on

diagnosis. The employer relies on a 1966 journal article in support of this position. The

employer’s argument is inconsistent with section 135 of the Act, which specifically requires a

diagnosis by either a registered psychologist or a psychiatrist. I do not accept the employer’s

argument.

[103] There are various sources of evidence with respect to the worker’s mental state both prior to

and after the May 10, 2018 incident. These include the clinical records of Dr. Symon and

Dr. Blasberg, the employer’s attendance records, and the evidence of the worker, his wife, and

other witnesses at the oral hearing.

[104] The employer’s attendance records show that the worker took two sick days in February 2018.

He was off work due to illness on April 21 and 22, and April 28, 29, 30 and May 1, 2018.

[105] The worker testified that he had some anxiety in March, April, and early May 2018, prior to the

incident of May 10, 2018. The worker said his anxiety was due to a number of reasons,

including his human rights complaint and investigation, trying to prove the employer did not

properly investigate the 2017 posting, and his worries that the employer wanted to fire him,

causing him to always watch his back. However, he said he was able to control his symptoms

and go back to work right away. He said he was off work for three days or maybe a week, five or

six days. He said he went back to work and there were “no issues.” He acknowledged that he

was absent due to anxiety and related physical symptoms on April 21 and 22, 2018 and April 28

to May 1, 2018, as set out in the employer’s attendance report. Specifically, he testified that in

the period from April 21 to May 9, he worked only four days: April 27 and May 7 to 9⁸. He said

he had no problems doing his job on those days. When asked to explain the discrepancy

between his evidence that his mental health symptoms were not affecting his ability to work and

the fact that he took time off of work due to his mental health symptoms, he stated that his

symptoms were not affecting his ability to work when he was actually at work. Rather, his

symptoms only affected him on the days he took off of work.

8

The worker indicated that April 23 to 26, 2018 and May 2 to 6, 2018 were his regular days off.

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[106] The worker’s wife testified that the worker was better by November 2017. She said that, “just

like normal people,” he had some anxiety and would use some sick days in the period

November 2017 to January 2018. She stated that, prior to May 10, 2018, the worker had mild

anxiety. When asked if, prior to the May 10, 2018 incident, the worker had an anxiety condition

that prevented him from working, she responded “Never.” She initially denied knowing that the

worker was off work on the days set out in the employer’s report. Her answers regarding

whether she would know if the worker was off work or not were contradictory. She later agreed

the worker was off work in April 2018, but indicated that it could have been due to anxiety or “it

could have been anything.” The worker’s wife’s evidence is inconsistent with the worker’s own

evidence that he was off work on those days due to anxiety. When asked if, in the three weeks

prior to May 10, 2018, she had observed her husband being so anxious that he needed to go to

the doctor, the worker’s wife stated “Maybe he did need to go to the doctor.” When again asked

if the worker was very anxious during that period, she stated that he went to the doctor “but he

didn’t have anxiety to the point of dying.”

[107] I prefer the evidence contained in the contemporaneous records to the evidence of both the

worker and his wife at the oral hearing, which I found to be self-serving and lacking in credibility.

I find that the worker and his wife both attempted to minimize the worker’s symptoms prior to

May 10, 2018 and to exaggerate those he experienced after that date.

[108] I find that the worker’s statement that he had no issues at work as a result of his anxiety on

April 27, 2018 and May 7 to 9, 2018 is not credible. It does not make sense that he would have

again gone off work due to anxiety on April 28, 2018, after working only one day, if he was not

having any issues related to his anxiety on April 27, 2018. It is not consistent with his statement

to Dr. Blasberg that he was having “a few moments of panic symptoms at work.” Nor is it

consistent with his statements that he was worried about an engine fire or checking his work

three or four times. The fact that the worker was required to take time off from work due to his

anxiety symptoms is inconsistent with his claim that he was coping well.

[109] I find that, prior to May 10, 2018, the worker was missing work due to his anxiety. In the period

between April 22 and May 10, 2018, he missed more days of work than he was able to work. He

was having panic attacks and even had one in the doctor’s office. He was complaining of

headaches and having trouble sleeping since March 2018.

[110] Dr. Symon specifically indicated in March 2018, that the worker was suffering from severe

anxiety. That description appeared to come from the worker. Despite frequent mentions of

anxiety in the clinical records, it is significant that the worker’s stress or anxiety had not often

been described as being severe in the past. For example, those descriptions occurred in

July 2016, when the worker went off of work, and in December 2016 and January 2017. Those

descriptions were all associated with the worker’s legal battles with the employer. As Dr. Symon

was the worker’s regular physician and was very familiar with his condition, I place considerable

weight on that description.

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[111] I also find that the worker frequently ruminated about his past disputes with the employer. This

is evident in the worker’s emails to the union and the employer, such as the email to Ms. U

dated July 26, 2017. That email contains numerous references to events that took place in 2014

or earlier and only a small portion of that letter addressed current issues. Rumination about past

events is also noted in the psychological treatment records, including on May 3, 2018, shortly

before the May 10, 2018 incident.

[112] Furthermore, the worker’s emails to the union in July and August 2017 contradict the worker’s

evidence that he was “over” learning about the postings June 2017 within three weeks or so and

had “moved on.” Mr. X testified that the throughout the worker’s time back at work between

September 2017 and May 2018, he was upset, irritated, and frustrated by the bullying and

harassment he had received, including learning about the Court Decision being posted in

June 2017. Mr. X stated that, despite this, the worker was “stable.” However, he acknowledged

that he never discussed the worker’s mental health symptoms with the worker and had no basis

on which to claim that the worker was stable. Mr. Y testified that the worker would not stop

talking about the June 2017 posting

[113] In his psychological assessment, Dr. Beihl wrote:

His doctor in March 2018 recorded in his notes that [the worker] had severe

anxiety and insomnia, and in April noted intense anxiety. In the present interview

[the worker] acknowledged ongoing anxiety during those months but stated that it

was lower than when he stopped working in 2016, with less intense and frequent

panic attacks. He was ruminating less about past harassment and his anxiety

was manageable. He reported that despite his anxiety and worries about making

mistakes at work and being fired, he was coping with his work duties. Leading up

to the May 2018 work incident, [the worker’s] anxiety was likely at a mild level.

[114] Dr. Beihl did not review Dr. Blasberg’s records. He did not have access to the employer’s

attendance records and was not aware that the worker was off work in late April and early

May 2018. He also was not aware of the worker’s evidence at the oral hearing that he was off

work due to his anxiety. It is clear that Dr. Beihl accepted on the worker’s statement that he was

coping with his work duties prior to May 10, 2018. However, the worker’s statement that he was

coping is inconsistent with the fact that he was experiencing periods of disability from work

within the three weeks immediately preceding the injury. The worker’s statement about his

condition is inconsistent with the clinical record in March 2018 that he had severe insomnia and

anxiety. I prefer the contemporaneous clinical records to the worker’s evidence that he was

coping with his work duties. I find Dr. Beihl’s conclusion that the worker’s anxiety was likely at a

mild level prior to the May 10, 2018 incident is based on facts which are inconsistent with the

facts that I accept. Therefore, I am unable to place any weight on that conclusion.

31

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[115] For similar reasons, I reject Dr. Lymburner’s conclusion that the worker’s pre-existing anxiety

disorder was mild. Dr. Lymburner did review Dr. Blasberg’s records. However, she was not

aware that the worker had missed work due to his anxiety symptoms in the weeks immediately

preceding May 10, 2018. Rather, she specifically relied on the worker’s evidence that he was

working full time. I do not accept that the worker was coping with his work duties. Rather, I find

the facts that the worker was missing work, had been referred for mental health treatment, and

was advised to see Dr. Symon to consider increasing his medication all suggest that the

worker’s mental health condition was significantly active and was deteriorating prior to May 10,

2018.

[116] Dr. Beihl indicated that the worker had been previously diagnosed with generalized anxiety

disorder. Dr. Lymburner did not agree with that diagnosis. As Dr. Lymburner pointed out in her

report, that diagnosis appeared to be based on Dr. Baldelli’s diagnosis based on one visit in

October 2014. That is the only time the worker was diagnosed with generalized anxiety

disorder. I conclude that generalized anxiety disorder does not represent the most appropriate

diagnosis for the worker’s condition in the weeks or months immediately preceding May 10,

2018.

[117] Dr. Lymburner provided an opinion that, in the months leading up to May 10, 2018, the worker

met the criteria for “other specified anxiety disorder.” She stated that generalized anxiety

disorder was excessive anxiety about a number of events and activities, while the worker’s

worry was focussed specifically on the bullying and harassment he experienced at work and

associated factors, including a feeling of being targeted and concern about making a mistake.

Further, she stated that it was unclear whether the worker’s response to “this stressful and

longstanding negative work environment” could be characterized as excessive.

[118] The worker also downplayed the effect of his prior stressors on him in the period prior to

May 10, 2018. For example, I do not accept the worker’s evidence that he had no problem

working during his judicial review. He testified that he was able to deal with his judicial review

and go back to work. He said he did 85% of the work for the judicial review himself and said: “If I

felt stress with that process, I would have killed myself.” He said he did not feel any emotions

when he was dealing with the CHRC. He was able to cope with the stress and move on. The

worker’s statements are inconsistent with Dr. Symon’s clinical records which contain frequent

references to his CHRC complaints and the judicial review process (court case) throughout,

including in July and August 2016 when he went off work (and was off for over a year). The

worker’s stress and anxiety associated with his legal disputes with the employer was at times

described as severe. Dr. Blasberg’s clinical records contain at least five references to the

worker’s legal disputes in the months that he treated him in 2017. I prefer the contemporaneous

clinical records to the worker’s statements.

32

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[119] In addition, the worker was evasive in his testimony about what was taking place with his

ongoing stressors in the months prior to the May 10, 2018 incident. The worker acknowledged

that he had an ongoing CHRC complaint which he had filed in January 2017 and had added to

with respect to the Court Decision being posted in the workplace in May or June 2017. He

acknowledged he was having a hard time proving that the Court Decision had been posted in

multiple locations. He also was engaged in an appeal with respect to his 2016 claim. He clearly

had a legal hearing involving his employment scheduled for June 4, 2018, but claimed not to

recall what it was. He denied that his legal stressors were affecting him. I did not find that denial

credible. It is inconsistent with how much those stressors had affected him in the past, and is

inconsistent with the clinical records from the time. It is also inconsistent with Mr. X’s evidence

that, between September 2017 and May 2018, the worker “was constantly irritated” about the

posting of the Court Decision in the spring of 2017. When they got together outside of work, the

worker “always brought up” how upset he was about that posting.

[120] I have a number of concerns with Dr. Lymburner’s opinion with respect to her diagnosis of the

worker prior to the May 10, 2018 incident. Dr. Lymburner opined that the worker did not have a

pre-existing adjustment disorder. However, she incorrectly identified Dr. Chan’s diagnosis of the

worker in August 2016 as an anxiety disorder, when in fact Dr. Chan had diagnosed him with an

adjustment disorder.

[121] More importantly, Dr. Lymburner accepted that the worker was working full time for the period

February 2018 to May 10, 2018. She was unaware that the worker had missed work due to his

anxiety symptoms. She accepted that the worker was generally coping much better than he had

previously after his return to work in the fall of 2017. She also accepted that the worker was

much better able to distract himself from negative thinking. These facts are not consistent with

the facts that I accept. Therefore, I am unable to place any weight on her opinion.

[122] The worker submitted that it appeared that his adjustment disorder had diagnostically resolved

by the time he had returned to work in September 2017. However, Dr. Lymburner’s opinion

cannot be relied upon to support that assertion as she did not acknowledge that the worker had

an adjustment disorder at all, including in August 2016. I prefer Dr. Chan’s diagnosis to

Dr. Lymburner’s retrospective diagnosis, as Dr. Chan treated the worker at the relevant time.

Further, Dr. Lymburner was not aware of or did not acknowledge the ongoing nature of the

stressors related to the worker’s ongoing disputes with his employer, including the Court

Decision in March 2017, the worker learning about the posting in June 2017, his subsequent

complaints to the employer and the CHRC in that time, and the ongoing appeal process related

to the 2016 claim. Specifically, Dr. Lymburner did not address whether the ongoing nature of

these stressors could have maintained the worker’s previously diagnosed Adjustment Disorder.

I find that the worker also downplayed the effect of these other stressors on him. This affects the

weight I am able to place on Dr. Lymburner’s opinion.

33

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[123] The worker testified that after seeing the posting on May 10, 2018, his heart was pounding, he

was sweating, his head was aching, he had numbness in his whole head, he had numbness in

his fingers, and his head was “not working.” He was “mad.” He wanted to punch someone. He

had a panic attack, and his father and brother had to come get him. After getting home, he

punched the bathroom wall. He said his wife told him later that she hid the knives and pills

because she was worried he was going to harm himself. However, he did not indicate that he

had any suicidal ideation. He stated that he wanted to “beat the crap out of” whoever had

posted the decision. The worker’s wife testified that he said he wanted to die. She said he hurt

his hand when he punched the wall. She said his hand was painful, and he was holding it.

However, she testified that he did not injure his hand. This comment, in particular, was notable.

The worker’s wife had declined to answer questions on her observations of the level of the

worker’s anxiety prior to the May 10, 2018 incident, stating that she was not a doctor. Yet, she

stated that the worker had not injured his hand, which is something that would require

examination by a physician and possibly an x-ray to determine.

[124] In contrast, the clinical records show that the worker specifically denied having suicidal ideation

when he spoke to Dr. Kurra on May 11, 2018. He did not mention an injury to his hand. He said

that he did not take Ativan. He also told Dr. Beihl that he had “no thoughts of self-harm” and “no

thoughts of harming [Mr. B] or others.”

[125] The worker’s wife described the worker’s behaviour that night as yelling and cursing. She stated

that she had never seen him like that before and that, compared to her, he is always a very

calm person. When asked if he was like that in 2016, she replied “Never, because he is very

calm.” In my view, even taking into account the self-comparison, these statements are not

consistent with Dr. Beihl’s assessment, in which he stated that the Personality Assessment

Inventory showed that the worker was prone to quick changes in his mood and easily loses his

temper. I acknowledge that testing was conducted shortly within a few months of the May 2018

incident. However, Dr. Beihl’s observations were consistent with the worker’s behaviour during

the hearing, during which the worker had more than one outburst where he lost his temper and

began yelling. Despite the suggestion in the worker’s submission, I do not agree that the

worker’s wife’s testimony showed that the worker’s wife was “excitable” or “more excitable than

the worker.”

[126] Overall, the worker demonstrated a tendency in his evidence to minimize his symptoms prior to

May 10, 2018 and to exaggerate his symptoms on and after that date. His wife did the same. As

a result, I am unable to place significant weight on the worker’s evidence or that of his wife.

While I accept some aspects of their evidence about his behaviour on May 10, 2018, in my

view, it is not reasonable that the worker did not take Ativan, as noted by Dr. Kurra, if his

condition was as bad as he and his wife have described. I note that the worker was noted to be

using Ativan every few days in November 2017 and at other times prior to that the worker was

noted to be taking Ativan every day. The explanation that he was trying to avoid taking Ativan is

not reasonable in light of the description of the significant symptoms the worker was

34

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

experiencing on that day. Even if he were trying to avoid it, I expect he would have taken Ativan

that night (or his wife would have encouraged him to do so) if he were as bad as they described.

Where there are discrepancies, I prefer the contemporaneous medical evidence to that of the

worker and his wife.

[127] Where the worker’s statements conflicted with the clinical records, Dr. Beihl and Dr. Lymburner

relied the worker’s statements, as set out in the examples above, including the quote from

Dr. Beihl set out in paragraph 113 of this decision. The majority of symptoms that Dr. Beihl and

Dr. Lymburner relied on in support of the diagnosis of adjustment disorder were present prior to

the May 10, 2018 incident, particularly in the period from March to May 2018. As a result, I am

not able to place weight on their opinions.

[128] Dr. Lymburner did not conduct any psychometric testing, including any validity testing. Such

testing is a normal part of a psychological assessment. She did not provide any explanation why

she did not do so. This reduces the weight I am able to place on her opinion. In addition, she

conducted collateral interviews with the worker’s brother, Mr. Y, and Dr. Blasberg. However, it is

not clear what information she obtained in those collateral interviews. The worker’s brother did

not give evidence at the oral hearing (nor was he available for cross-examination by the

employer). The evidence of Mr. Y at the oral hearing was not credible. Dr. Lymburner relied on

Mr. Y’s statement that the worker’s functioning deteriorated significantly after the May 10, 2018

incident and he was a changed person. However, that is inconsistent with Mr. Y’s evidence at

the WCAT oral hearing. Specifically, Mr. Y testified that he did not discuss the worker’s mental

condition or related symptoms with him. I am unable to conclude that Mr. Y was in a position to

comment on the worker’s level of function or mental health symptoms either immediately

preceding or after the May 10, 2018 incident.

[129] Overall, I am unable to place any weight on the opinions of Dr. Beihl and Dr. Lymburner

(including her critique of Dr. Grosse’s opinion), as they have relied on facts which are

significantly different than the facts that I have found. This affects my ability to rely on their

opinion in a number of areas: not only whether a psychological injury occurred (including an

aggravation of a pre-existing psychological condition) and the diagnosis of any resulting injury,

but also with respect to the causation of any injury, as I also find that the worker downplayed the

effect of other stressors.

[130] Dr. Grosse stated that the opinions of Dr. Beihl and Dr. Lymburner with respect to the worker’s

diagnosis were inconsistent with the clinical information. He stated that the worker’s increase in

symptoms represents an exacerbation of the pre-existing condition which was symptomatically

active before May 10, 2018. In my view, Dr. Grosse’s opinion is consistent with the facts as I

find them and I accept it, to that extent. The worker argues that Dr. Grosse’s opinion supports

that he had an aggravation of his pre-existing condition. However, I am not satisfied that is the

case. Dr. Grosse has not provided a DSM-5 diagnosis. More importantly, it is not clear that an

“exacerbation,” or an increase in symptoms, is the same as an aggravation. Some conditions

35

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

have regular fluctuations in symptom levels. In my view, there is insufficient evidence to

determine that the worker’s pre-existing anxiety condition was accelerated, activated or

advanced more quickly than would have occurred in the absence of the May 10, 2018 incident.

It was at a critical point at which it was resulting in manifest disability prior to that incident. While

I considered obtaining an independent health opinion pursuant to section 302 of the Act to

resolve the medical issues regarding the occurrence and diagnosis of a psychological injury (as

well as on the causation of any psychological injury), given my findings on the other criteria in

section 135 of the Act, I find that it is not necessary to do so.

B. Was the worker exposed to an identifiable stressor or series of stressors?

[131] Item C3-13.00 of the RSCM II provides that in all cases, the events or stressors must be

identifiable.

[132] The Board Interim Practice Directive #C3-3 provides further guidance on the factors in

adjudicating claims for compensation under section 135 of the Act. The practice directive is not

binding, but may provide useful guidance where it is consistent with the law and policy. The

practice directive states that, because item C3-13.00 requires that the event be clearly and

objectively identifiable, it must actually have occurred. An anticipated event, which did not occur,

does not qualify as a traumatic event within the meaning of policy. A worker working alone at

night who anticipates being robbed because they work alone has not experienced a traumatic

event. This is in contrast to a situation where there was a near miss. For example, a worker is

almost struck by a falling metal beam while in the course of her employment. Although the

worker was not struck by the heavy metal object, the event that may be considered traumatic is

the near miss. In my view, this same reasoning applies to whether a stressor is identifiable.

[133] The Board and the Review Division considered the incident of May 10, 2018 in isolation.

However, there is a great deal of evidence on the file, and at the oral hearing, of other stressors.

The worker argued that his reaction to the May 10, 2018 posting incident was significantly

informed by other events. Therefore, I consider it is necessary to make findings of fact regarding

the occurrence of a number of other stressors, including whether they are identifiable.

1) 2017 incidents when the worker learned the Court Decision was posted at work

[134] The worker testified that while he was on leave from work, he learned about the Court Decision

being posted in the workplace in late spring or early summer of 2017. He got a telephone call

from Mr. Y. He stated that the Court Decision was “all over the workplace.” He said that Mr. Y

told him that there were copies in the library, hallway, and lunchroom of the hangar and at the

ramp office. He testified that people were laughing about it. Approximately a week later, Mr. X

called the worker and said he had seen the Court Decision in the ramp office and had thrown it

out.

36

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[135] Mr. X testified that he works at the ramp office, but he starts and finishes each shift at the

hangar. He said he saw the Court Decision posted at the ramp office in June or July of 2017. He

saw it on two occasions on the same day. He first saw it on the table but did not have a chance

to read it because he had to leave on a call. When he returned to the ramp office, he saw it on

the bulletin board and discarded it in the recycling bin. He testified that he did not see the Court

Decision on any other occasion, either in the hangar or the ramp office, in 2017 or 2018. Had he

seen it, he would have removed it. I accept Mr. X’s evidence in this regard. It was consistent

with the evidence he gave to the joint investigation.

[136] Mr. X testified that he was aware that Mr. T of the union saw the Court Decision in the hangar.

However, he did not indicate that he told the worker that information. Nor did the worker indicate

that he was aware of that. Therefore, that could not have been a stressor for the worker.

[137] Mr. Y testified that he called the worker to tell him about the Court Decision being posted in the

workplace. He stated that he heard about the Court Decision being posted when he returned to

work after being off for an injury. He initially said he thought he had returned to work in early

May 2017. However, during cross-examination, he agreed with the employer’s suggestion that

its records showed he had returned to work on June 12, 2017.⁹I accept that Mr. Y informed the

worker of the posting in mid-June 2017, as that corresponds with the evidence of the worker

and Mr. X.

[138] I find that Mr. Y did not see the Court Decision posted himself. I also find that Mr. Y only heard

about the postings from one person.

[139] I find that the evidence supports a conclusion that in mid-June 2017, Mr. Y informed the worker

that the Court Decision was posted in both the hangar and the ramp. Approximately a week

later, Mr. X informed the worker that he had seen the Court Decision in the ramp office and had

removed it. I find the worker learning about the posting was an identifiable series of stressors.

2) The telephone call from Mr. K in June 2017

[140] The worker testified that about a week after Mr. X’s call, he received a telephone call at home

from Mr. K. He stated that Mr. K was a former co-worker (who had not worked for the employer

for at least eight years)¹⁰and friend who had even stayed at his home. He said he put the call

on the speaker function so that his wife could hear it. He testified that Mr. K used profanity and

told him that he would no longer be welcome by the employer. The worker stated that Mr. K told

him how he felt about the Court Decision. Mr. K said he became aware of the Court Decision at

a pub, and had been told about it by a supervisor of the worker. There is no evidence on file

9

While the worker initially objected to the employer introducing this information, the employer responded

that it was “trying to help.” The worker appeared to withdraw the objection.

¹⁰Mr. B stated that Mr. K had not worked for the employer since June 2007. I accept that evidence.

37

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

from that supervisor or Mr. K. Neither one was called as a witness in the WCAT hearing nor was

interviewed by the joint investigation team.

[141] The worker’s wife provided similar evidence. However, I have significant concerns about the

credibility of the worker and his wife, as I described previously. In addition, I note that their

descriptions of Mr. K’s language were too similar, so much so that they contained the same

unusual expression: “You are not welcome at the door.” That turn of phrase would not likely be

used by a native English speaker. The circumstances of putting the call on the telephone’s

speaker function seem contrived. Given the worker’s wife’s difficulty remembering other key

events, the clarity of her recollection of this call (including remembering the name of the

supervisor alleged to have told Mr. K) suggests the evidence is very likely rehearsed. In his

testimony at the oral hearing, the worker agreed that he did not complain about Mr. K’s call to

the employer or the union. Despite that, there appears to be a very vague and unclear mention

of that incident in the worker’s July 26, 2017 e-mail to Ms. U (which was provided by the

employer). In that email, the worker stated that copies of the Court Decision were posted in the

hangar “which has caused me up to harassment from a past co-worker.” Therefore, although it

is not necessary to determine the facts of what took place during the call, for the purposes of

this decision, I accept that Mr. K called the worker at home and discussed his Court Decision

with him in a negative manner. I accept that was an identifiable stressor.

3) The worker’s belief that the employer and/or Mr. B was involved in posting the Court

Decision and that Mr. B was engaged in ongoing harassment against him

[142] In the worker’s July 26, 2017 and July 31, 2017 emails to Ms. U, the worker alleged that Mr. B

was responsible for posting the 2017 Court Decision in the workplace. He wrote that he had

been told that Mr. G was responsible for posting the decision. He requested that Mr. B be

investigated regarding the posting, as Mr. G worked under him and would not have known about

the Court Decision “unless he was told and directed to do so by [Mr. B] as part of his ongoing

bully[ing] and harassing behaviour towards me in my opinion.”

[143] In the oral hearing, Mr. B testified that he has not had any direct contact with the worker since

January 2015 as a result of the worker’s complaint against him. The worker was managed by

his direct supervisor as set out in the chain of command. The worker acknowledged that he had

had no direct contact with Mr. B.

[144] Mr. B testified that he discovered a copy of the Court Decision in the maintenance library of the

hangar on May 15, 2017. He immediately removed the Court Decision and reported it to Ms. A.

Ms. A destroyed the copy. At Ms. A’s direction, he searched the hangar and found no other

copies. Mr. B’s evidence was consistent with that of Ms. A. Mr. B testified that he was not aware

of any other times that the Court Decision had been posted in the workplace until he learned

from Mr. C that it had been discovered at the ramp office on May 10, 2018. He stated that he

38

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

regularly checked the bulletin boards at the hangar to ensure that nothing inappropriate was

posted on them.

[145] Dr. Blasberg’s records show that the worker told him that the employer had posted the Court

Decision at the ramp in May 2018. The worker argued to the Review Division that the employer

had posted the Court Decision; however, he provided no support for that bare assertion. The

worker testified at the oral hearing that he had not reviewed his former representative’s

submission to that effect. However, the former representative’s submission was consistent with

the worker’s own statement to the Review Division on January 21, 2019 that the reason the

employer had not identified who was behind posting the Court Decision in 2018 was “because

themselves were the one behind it all and are trying to cover it up.” At the oral hearing, the

worker stated it was not his position that the employer had posted the Court Decision in

May 2018. He testified that he had suspicions, but no evidence, that the employer may have

been involved in May 2018 posting. He testified that he believed Mr. G was involved in posting

the Court Decision in 2017. He said he heard from numerous people, but provided no further

evidence in support. He was not asked whether he believed Mr. B was involved in posting the

May 2018 posting. The worker did not identify any instances of bullying and harassment by

Mr. B occurring in the period since he filed his 2016 claim with the Board, although he implied

that such bullying and harassment was ongoing.

[146] I find that the worker believed the employer was involved in posting the Court Decision in both

2017 and 2018. However, I find the evidence does not support that it is at least equally likely

that either Mr. B or a person at the direction of the employer was involved in posting the

worker’s Court Decision in the workplace in 2017 or 2018. Nor do I find that it is at least equally

likely that Mr. B was involved in bullying or harassment of the worker at any time during the

relevant period. Therefore, these are not identifiable stressors.

4) Gossiping and laughing

[147] The worker alleged that there was gossiping and laughing about the Court Decision in

June 2017 and again after May 10, 2018. He testified that he did not personally experience any

gossiping or laughing throughout the time he was at work from September 2017 to May 10,

2018. Rather, he said that Mr. Y told him that people were gossiping and laughing about it.

[148] Mr. Y testified that he told the worker people were gossiping and laughing about the Court

Decision. His testimony was inconsistent on that point. He testified that “everybody” knew about

it. When he was asked if he had talked to every employee about it, he said he had not. Rather,

he said that it was posted for everybody to see. He stated he overheard people talking about it

in the background. However, Mr. Y did not see the Court Decision himself. He identified only

one person who had told him about the Court Decision being posted. He was unable to identify

anyone whom he heard talking or laughing about the Court Decision. Given his friendship with

the worker and the fact that he had told the worker what he had learned from one co-worker, I

39

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

expect he would have remembered and been able to report anyone he had overheard. He told

the joint investigation team (on July 5, 2018) that he did not recall hearing anyone talking about

the Court Decision in the last 12 months. I find the evidence does not support that Mr. Y heard

others talking or laughing about the Court Decision, or that he told the worker that he had.

[149] The worker testified that when he saw the posting on May 10, 2018, he thought that whoever

put it there might be laughing at him. He also thought about how he would supervise people if

they were laughing at him. However, he did not testify that anyone actually laughed at him. An

anticipated reaction is not the same as a “near miss”. I find an anticipated reaction is not an

identifiable stressor.

[150] Nonetheless, there is some evidence from Mr. C’s testimony and from the joint investigation that

people were discussing the Court Decision around the time that it was posted in May or June

2017. Mr. C testified that he heard mention of the Court Decision once or twice in 2017. He was

not aware of it being posted in 2017. He did not hear people laughing about it. That was

consistent with his evidence to the joint investigation team, in which he described the discussion

as “short-lived” and occurring for one or two days. Witness 4 testified that he had heard

discussion about the Court Decision when it first became public. It mentioned that recordings

had been made. No one knew whom the worker had recorded. Witness 4 said it was “quite the

joke now” and that they joked amongst each other “Are you recording me?” if someone was

holding a phone. It concerned him that the worker had been recording them. It was unclear from

Witness 4’s evidence whether the joking about being recorded was only after the May 10, 2018

incident or there was also some joking in 2017. Witness 5 said there was a “fair amount of talk”

about a year earlier (in June 2017); people were interested in the content, specifically the

reference to the worker recording.

[151] Mr. V told the joint investigation (in November 2018) that he had seen the Court Decision posted

in the ramp office in early April 2018 but had not told anyone about it or discussed it with

anyone. Mr. X had not seen it there or heard any such discussion. Witness 2 said the Court

Decision had probably been there from the previous summer and that no one paid attention

to it.¹¹There was a lot on the bulletin board. He said he had no interest in it and was not aware

of any discussion about it. Witness 3 said he was not aware of the Court Decision being posted

in the ramp office.

[152] Considering all the evidence, I find that some of the worker’s co-workers were talking about the

Court Decision briefly in May or June 2017 (and possibly joking about being recorded), but that

the discussion or jokes did not continue beyond that time. After that, the evidence does not

support that it is at least equally likely that employees were discussing the Court Decision prior

to the worker finding it on May 10, 2018 and going off work. Rather, the evidence does not

¹¹Ms. A’s notes did not contain the word “probably.” Ms. U’s notes were generally more thorough. Neither

party called Witness 2 as a witness at the oral hearing.

40

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WCAT Decision Number:

A1900897 (May 26, 2022)

support that it continued to be a matter of interest beyond June 2017. The evidence does not

establish whether the Court Decision remained on the bulletin board in the ramp office since

June 2017 or whether it was reposted prior to early April 2018. It is not necessary to resolve that

dispute for the purpose of this appeal. Based on Witness 4’s evidence, after the incident on

May 10, 2018, there was some joking about being recorded. That joking likely related to the

worker’s behaviour in recording Witness 2 and 3 on May 10, 2018. It did not directly refer to the

worker. I note that the quote of Witness 3 in the worker’s submission which the worker attributed

to Witness 3 discussing the Court Decision was not a discussion about the Court Decision at all.

Rather, Witness 3 was talking about Witness 2 asking him if he had heard the worker play back

what they had just said. It referred to the worker’s action of recording them on May 10, 2018.

The worker acknowledged at the oral hearing that he had recorded them on May 10, 2018.¹²I

do not consider Witness 2 asking Witness 3 that question to be gossip or joking. Rather, it is a

reasonable inquiry about something that had just transpired.

[153] I find the evidence does not support a conclusion that there was any discussion or joking about

the Court Decision in the worker’s presence. Nor does it support that anyone was laughing at

the worker. I find that other employees discussing the Court Decision in May or June 2017 and

joking about being recorded after May 10, 2018 are identifiable stressors.

5) The decision not to proceed with the worker’s complaint about the 2017 posting(s)

[154] The worker filed a formal complaint with the union about the 2017 postings on July 31, 2017. In

an email dated August 3, 2017, Ms. U informed him that the union would not proceed further

with his complaint as it contained insufficient detail to investigate further. The posting appeared

to have been an isolated incident that had been dealt with when it occurred. The worker

frequently mentioned the employer’s failure to satisfactorily investigate the 2017 postings in his

correspondence regarding the May 2018 posting. The evidence supports a conclusion that the

decision not to proceed with the worker’s complaint about the 2017 posting(s) was an

identifiable stressor.

6) The worker learning of and seeing the Court Decision at the ramp on May 10, 2018

[155] There is a dispute with respect to who reported to the worker that the Court Decision was

posted in the workplace on May 10, 2018, and when. In the worker’s submission to WCAT, he

argued that Mr. V and Mr. W came to the hangar to alert the worker about the Court Decision

being posted at the ramp office on that day. There is an implication that they both told him about

the posting. However, that is not consistent with any of the worker’s evidence. The worker’s

evidence to the Board was that a co-worker told him about the posting. He did not clearly

indicate who had told him. He stated that Mr. W drove him to the ramp and was a witness. In his

email to Mr. W, the worker said that Mr. W had told him. In the evidence at the WCAT hearing,

¹²The worker did not attempt to submit that recording into evidence as he was unable to locate it.

41

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

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the worker stated that Mr. V and Mr. W approached him around the start of the shift on May 10,

2018. Mr. W came up to him and told him about the posting at the ramp office. The worker

testified that he did not have any conversation with Mr. V.

[156] There are inconsistencies in the evidence of Mr. W. He told the Board case manager that he

saw the Court Decision on the bulletin board in the workplace on May 10, 2018 so he told the

worker about it and then drove the worker there so the worker could see it, as the worker did not

have a pass for that work area. This does not make sense, because Mr. W told the joint

investigation team that he started his shift at 6 p.m. (the same time as the worker). I accept that

as fact, as it is consistent with Mr. W’s actions of going to the ramp shortly thereafter and getting

a call to service an aircraft. It is also consistent with Mr. Y’s evidence that the employees

working at the ramp go to the hangar at the start and end of their shift only. Thus, Mr. W would

not yet have been to the ramp on May 10, 2018 when he saw the worker in the hangar. He

would have had to have seen the Court Decision on a previous shift, not that day as he had told

the case manager, in order to tell the worker about it around the start of his shift on May 10,

2018. Despite that Mr. W’s statement to the case manager was the closest in time to the events,

I place no weight on it because it is not plausible in all the circumstances.

[157] Mr. W told the joint investigation team that he had not told the worker about the posting and had

not seen it before May 10, 2018. He said that Mr. V,¹³who was supposed to be his partner that

night, had phoned to say he was going to be late, so he was alone to go to the ramp. The

worker had offered to help him out at the ramp. However, as soon as the worker got into the

vehicle with him, the worker started filming. When they got to the ramp, the worker walked to the

bulletin board. Mr. W said he got a call to service an aircraft, so he left the ramp office and went

to the gate.

[158] The worker provided an email string dated September 20, 2019 in which he wrote to Mr. W that

he was writing to confirm that on May 10, 2018, Mr. W told the worker that he had noticed the

worker’s Court Decision was posted at the ramp office bulletin board and then drove him there.

Mr. W replied: “Yes [the worker] that’s true, that was what happen on that day.”

[159] The worker declined to call Mr. W as a witness, despite specifically being asked if he was going

to do so after the employer’s investigation report had been provided. The worker rhetorically

asked why he would call a witness who has already shown himself not to be credible. Neither

party requested an order for Mr. W to appear as a witness. I recognize that the investigative

powers in the Act allow me to call a witness on my own motion. However, in a case such as this

one where both parties are participating and represented, I do not find it is necessary or

appropriate to do so. Rather, I find there is sufficient evidence available to make a

determination.

¹³The name written in Ms. U’s interview notes was a misspelling of Mr. V’s first name. Ms. A testified to

that effect during the oral hearing. The worker agreed that was Mr. V at pg. 11 of his submission.

42

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

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[160] The worker suggests that Mr. W was not telling the truth in the joint investigation because he

was intimidated by the employer. I find the evidence does not establish that bare assertion.

While Mr. Y testified that he felt intimidated (which the employer questioned), that does not

establish that Mr. W felt intimidated. The joint investigation was conducted by the union and

employer and the participants were told that their evidence was confidential and that there

would be no retaliation for their participation. It is inconsistent that Mr. W would be intimidated

from telling the truth at the joint investigation but not from providing a written statement for the

purpose of this appeal. In my view, the only way to redeem the inconsistencies in Mr. W’s

evidence would be to have him explain them at the hearing, with the employer having an

opportunity to cross-examine him. As that did not occur, I place no weight on the September 20,

2019 email from Mr. W.

[161] The evidence Mr. W provided to the investigation team was detailed and was in his own words. I

prefer that description of what took place to Mr. W’s brief comment to the case manager, and to

the September 20, 2019 email, the latter of which contained only Mr. W’s agreement with the

worker’s description of what took place. I also note that Mr. W’s statement that Mr. V was late is

consistent with witness 2’s statement that “One of the guys was late.” It is also consistent with

the fact that Mr. V was not at the ramp office when the worker arrived there, nor was he

identified as being present when the worker questioned Witness 2 or Witness 3 at the ramp

office. The fact that Mr. V was late (so Mr. W. was alone to go to the ramp) is inconsistent with

the worker’s statement that he was approached by Mr. V and Mr. W near the start of his shift.

Had Mr. V been present at the start of the shift, he would have travelled to the ramp with the

worker and Mr. W.¹⁴Therefore, I find the worker’s statement that he was approached by Mr. W

and Mr. V at the start of his shift is not credible. Over all the various sources of his evidence, the

worker generally was vague about the circumstances surrounding how he learned of the posting

on May 10, 2018, including when and from whom. Considering all of the evidence, I place no

weight on the worker’s statement that Mr. W told him around the start of the shift on May 10,

2018 that he had seen the Court Decision posted at the ramp office.

[162] I find that it is more likely than not that Mr. W did not inform the worker that the Court Decision

was posted at the ramp office on May 10, 2018, and nor did Mr. V.

[163] In cross-examining Mr. Y, the employer suggested that it was Mr. Y who told the worker that the

Court Decision was posted at the ramp office on May 10, 2018. Mr. Y denied that he did so.

However, he also stated that he felt that it would have been a bad thing if he had told the

worker. Mr. Y’s evidence was not credible in that he deliberately tailored his evidence on other

¹⁴These conclusions take into account Mr. B’s evidence to the joint investigation team that there are four

ramp crews of two employees each, for a total of eight people who work at the ramp. They start and

finish their shift at the hangar and spend the rest of their day at the ramp. This evidence was consistent

with Mr. X’s evidence at the oral hearing regarding the nature of his duties at the ramp and how much

time he spent at the hangar. Mr. X stated that there were four people on duty at the ramp per shift.

43

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

A1900897 (May 26, 2022)

occasions. Mr. Y acknowledged being at the ramp office to perform a safety audit that

afternoon, prior to the worker starting his shift. Witness 4 reported to the joint investigation team

that he had seen Mr. Y doing a safety audit on the afternoon of May 10, 2018 and Mr. Y was

staring at the bulletin board for quite a while. His recollection was fairly detailed and is credible.

Mr. Y’s denial of that seemed defensive. Mr. Y acknowledged both that he called the worker at

home after the 2017 posting and that he spoke with the worker around the start of the worker’s

shift on May 10, 2018. However, it is not necessary for the purposes of this decision to make a

finding regarding whether or not Mr. Y informed the worker that the Court Decision was posted

in the ramp office on May 10, 2018.

[164] Given my conclusion that Mr. W and Mr. V did not inform the worker of the posting on May 10,

2018, and the lack of confirmation from any person, including the worker, that Mr. Y or any other

person did, I am unable to conclude that the worker learning of the posting was an identifiable

stressor. The evidence does not establish when that communication took place, who

communicated that information to the worker, the nature of that communication, and the nature

of the worker’s reaction.

[165] Regardless of how the worker learned that the Court Decision was posted at the ramp office,

there is no dispute that the worker saw the Court Decision posted in the ramp office on May 10,

2018. This was been confirmed by Mr. W and witnesses 2 and 3, as well as by video evidence.

I find that the worker seeing the Court Decision posted on May 10, 2018 was an identifiable

stressor.

7) Ongoing legal issues involving the employer

[166] There is no dispute that the worker was engaged in ongoing legal action and claims involving

the employer at the time of the May 10, 2018 incident. This included his 2016 compensation

claim, for which he had an ongoing appeal at the WCAT which both preceded and remained

active after the May 10, 2018 incident. It also included further complaints against the employer

with the CHRC, which the worker filed in January 2017 and amended to include the posting

events in May or June 2017. There was a notation in Dr. Symon’s clinical records of a “court

hearing” that the worker was scheduled to attend on June 4, 2018. The worker would likely have

been aware in early May 2018 that this court hearing was coming up. I conclude that these

ongoing legal issues were identifiable stressors.

[167] In summary, I find that the following are identifiable stressors:

 The worker learning from Mr. Y and Mr. X in June 2017 that the Court Decision was posted

in the workplace.

 The telephone call from Mr. K in June 2017.

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150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

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 Discussing the Court Decision in May or June 2017 and joking about being recorded after

May 10, 2018.

 The decision not to investigate the 2017 posting.

 The worker seeing the Court Decision at the ramp on May 10, 2018.

 The worker’s ongoing legal issues involving the employer, including those relating to his

2016 compensation claim and his 2017 complaints with the CHRC.

C. Arising in the course of the worker’s employment

[168] Section 135 of the Act and item C3-13.00 require that the traumatic events or significant

stressors must arise out of and in the course of the employment. In this case, it is appropriate to

consider whether the stressors arose in the course of the worker’s employment prior to

considering whether they were traumatic or significant.

[169] In determining whether a stressor or event took place in the course of the worker’s employment,

the language in the policy is the same. Item C3-13:00 provides that, in determining whether a

traumatic event or significant stressor arose in the course of the worker’s employment, the

Board is required to determine whether the traumatic events or significant stressors “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.”

[170] In WCAT Decision A1604648, a WCAT vice chair acknowledged the distinction between a claim

for compensation for personal injury and a claim for compensation for a mental disorder,

including the separate legislative authority for each type of claim. The vice chair stated:

[92]

Policy item #C3-14.00, “Arising Out of and In the Course of the

Employment”, is the principal policy of Chapter 3 and describes the

decision making principles for determining a worker’s entitlement to

compensation for personal injury. The policy provides guidance on the

medical and non-medical evidence the Board considers when

determining whether an injury arose out of and in the course of

employment. The policy defines “in the course of the employment” in

a manner that parallels the statement quoted above from policy

item #C3-13.00. I note, however, that policy item #C3-13.00 is absent any

guidance on the medical and non medical evidence to consider when

deciding whether an event or significant stressor arises in the course of

employment. In my view, it would be helpful if the Board either expanded

upon the policy on “Causation” in item #C3-13.00 or incorporated by

reference the factors described in policy item #C3-14.00 that may be

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WCAT Decision Number:

A1900897 (May 26, 2022)

considered when deciding whether a traumatic event or significant

stressors arises in the course of employment.

[93]

I find that policy item #C3-14.00 provides helpful guidance on the type of

evidence that may be considered in order to determine if a worker was in

the course of employment when experiencing a traumatic event or

significant stressor. I consider that a review of the factors listed in that

policy is a good starting point in this appeal in considering whether the

worker was in the course of his employment when he received the text

message.

[171] I agree with the vice chair in WCAT Decision A1604648 and adopt her reasoning as my own. I

will examine the stressors to determine whether the worker was in the course of his employment

when they occurred.

[172] Item C3-14.00 provides that the concept of employment is broader than work and includes more

than just productive work activity.

[173] With the above in mind, I turn to considering whether each of the identifiable stressors arose in

the course of the worker’s employment.

1) The worker learning about the 2017 postings from Mr. X & Mr. Y and the telephone

call from Mr. K in June 2017

[174] The worker appears to agree that he was not in the course of his employment when he learned

about the posting of the Court Decision in June 2017. The worker was on a leave of absence

from work at the time. He was called at home by Mr. Y and Mr. X, both friends of his. Similarly,

Mr. K called the worker at home during the same period. Mr. K was a former friend of the

worker, and had not been employed by the employer for many years. The evidence does not

suggest that the worker’s duties involved performing work from home or that the worker was

engaged in performing work during any of these interactions. The evidence does not establish

that it is at least equally likely as not that these events or stressors 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. I find these events did not take place in the course of

the worker’s employment.

2) Discussion about the Court Decision and joking about being recorded

[175] I found that there was some discussion about the Court Decision in May or June 2017 and, after

May 10, 2018, there was some joking about being recorded. The only evidence of joking came

from Witness 4, who was on day shift and was not at the ramp at the time the worker found the

postings at the ramp office at approximately 6:45 p.m. on May 10, 2018. I do not find that the

evidence supports that either of those stressors took place while the worker was at work.

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150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

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Considering the factors in item C3-14.00, which I discuss in more detail below, I do not consider

those factors weigh in favour of an employment connection. The evidence supports a

conclusion that these stressors did not happen at a time and place and during an activity

consistent with, and reasonably incidental to, the obligations and expectations of the worker’s

employment. I find that this stressor did not arise in the course of the worker’s employment.

3) The decision not to proceed with the worker’s complaint regarding the 2017 posting

[176] The worker learned that the union would not carry through with his complaint regarding the 2017

posting of the Court Decision in an August 3, 2017 email from Ms. U of the union. The worker

was on a medical leave at that time, and had not been working for over a year. The email was

sent to his personal email account. The evidence supports a conclusion that this stressor did not

happen at a time and place and during an activity consistent with, and reasonably incidental to,

the obligations and expectations of the worker’s employment. I find that this stressor did not

arise in the course of the worker’s employment.

4) The worker learning about the posting of the Court Decision on May 10, 2018

[177] In the worker’s submission, he argued that he was in the course of his employment at the

hangar when Mr. V and Mr. W came to alert him of the posting. However, I have not accepted

those facts. I do not accept that the worker learned of the posting from Mr. V or Mr. W.

Furthermore, the worker was vague about when he spoke with Mr. W. He only stated that it

occurred “around” the start of his shift, which could mean either before or after he started work.

[178] Given that the evidence does not establish who told the worker about the posting, or when on

that day, I found this was not an identifiable stressor. For the same reasons, I find the evidence

fails to establish that the worker was in the course of his employment when he learned the Court

Decision had been seen at the ramp office. It is possible that the worker received a telephone

call with this information while still at home. The worker might have been at the workplace but

not yet have started his shift at the point that he learned the information. He may have started

work. I find there is an absence of evidence to establish that the incident in which the worker

learned of the posting at the ramp office 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. I find the evidence does not support a conclusion that it is at least as equally likely

as not that the worker was in the course of his employment when he learned of the posting of

the Court Decision at the ramp office on May 10, 2018.

[179] In his submission, the worker argued that he had a psychological change when he first learned

of the posting of the Court Decision on May 10, 2018. However, I have not accepted the facts

that he has reported with respect to that event, nor have I found that the evidence supports that

was an identifiable event or a significant stressor. Furthermore, I do not find that the evidence

supports a conclusion that he experienced a psychological change when he first learned of the

47

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

A1900897 (May 26, 2022)

posting. The medical evidence, including the reports of Dr. Beihl and Dr. Lymburner, does not

distinguish between the worker learning about the posting on May 10, 2018 and the worker

seeing it that day. Rather, it appears to refer only to the worker seeing the Court Decision

himself. The worker did not provide evidence with respect to his immediate reaction when he

was told about the posting on May 10, 2018. He said he was in disbelief and felt angry and

“vindicated” as he drove to the ramp. In his testimony, as well as his written reports to the Board

and the employer at the time, the worker stressed that it was actually seeing the decision posted

“with his own eyes,” including the “15 pinholes,” that was significant to him. In his notice of

appeal, he indicated that the injury occurred at 6:45 p.m. at the north side of the facility. Thus,

even if I had found it was identifiable or the worker was in the course of his employment at the

time when he first learned the Court Decision had been seen again at the ramp office, I would

find that the evidence failed to establish either that the worker experienced a psychological

change at that moment or that it was a significant stressor or traumatic event.

5) The worker seeing the Court Decision at the ramp office on May 10, 2018

[180] With respect to whether the worker was in the course of his employment when he viewed the

posting at the ramp office, the worker argued:

There is no dispute that [the worker] was taken to the airport ramp location on

May 10, 2018 by [Mr. W] who had permission to drive there. A question arises as

to why [the worker] ended up going from the airport hangar location to the ramp

location on that day. The employer’s submission does not address this detail.

The employer’s submission indicates that “[The worker’s] regular duties did not

involve him working at the airport ramp location.” This begs the question, then, as

to why [the worker] was placed in a situation where he felt that he needed to

make his way to the airport ramp location. We suggest that [the worker], while

working at the airport hangar location, had come into shocking information which

he felt he needed to investigate immediately. This is the only plausible

explanation; there would be no other reason as to why [the worker] felt compelled

to make his way from his “regular duties” at the airport hangar location to the

airport ramp location. The employer’s submission is silent on this issue.

[181] I agree that the only reason the worker went to the ramp was to investigate the report that the

Court Decision was posted in the ramp office. However, the worker’s argument does not

address whether he was in the course of his employment when he saw the Court Decision

posted. As discussed above, I will consider the factors set out in C3-14.00 as guidance.

[182] The first factor to consider is whether the incident occurred on the employer’s premises. The

ramp office was part of the employer’s premises. However, the worker agreed that the ramp

was not an authorized work site for him. He agreed that one would need a business reason to

go to the ramp. The ramp office is located at an airport gate. It is common knowledge that area

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150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

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WCAT Decision Number:

A1900897 (May 26, 2022)

has restricted access and is subject to regulation and regulations beyond those imposed by the

employer. This factor weighs slightly in favour of an employment connection.

[183] The second factor is whether the worker was doing something for the employer’s benefit. The

worker acknowledged in his evidence that there was no business reason for him to go to the

ramp. I accept that although the worker told Mr. W that he would help him, the worker went

there for the sole purpose of establishing that the Court Decision was posted in the workplace.

That purpose was to benefit the worker, not the employer. This factor does not weigh in favour

of an employment connection.

[184] The third factor is whether the incident took place while carrying out instructions from the

employer. The worker was not picking up parts, as had been suggested by Mr. X in his

statement in the joint investigation. Mr. X testified that he had only been guessing when he

made that suggestion and he did not know why the worker was at the ramp office on May 10,

2018. The worker did not indicate that he was carrying out the instructions of the employer.

Rather, his evidence supports that he went to the ramp office of his own volition and not at the

direction of the employer. This factor does not favour an employment connection.

[185] The fourth factor is whether the incident occurred when the worker was using equipment or

materials supplied by the employer. The worker was not using equipment or materials. The

bulletin board was provided by the employer. This factor supports a tenuous employment

connection.

[186] The fifth factor is whether the incident occurred while the worker was in the process of receiving

payment or other consideration from the employer, such as reporting to the worksite to pick up a

cheque. This factor is not applicable.

[187] The sixth factor is whether the incident occurred during working hours. I find that the worker was

being paid at the time he saw the posting. This factor favours an employment connection.

[188] The seventh factor is whether the incident was caused by an activity of the employer or a fellow

employee, which favours an employment connection, or by a non-work related activity of the

worker, which does not. The policy states that the more tenuously the worker’s activity is related

to employment, the less this factor favours coverage. Consideration in either case is given to

whether the activity of the employer, fellow employee or worker was employment-related or

unauthorized (see item C3-17.00, Deviations from Employment). Item C3-17.00 provides

guidance on determining whether the worker’s conduct was such a substantial deviation from

the reasonable expectations of employment as to take the worker out of the course of

employment. An insubstantial deviation is not sufficient to take the worker out of the course of

employment. The Court Decision was placed in the ramp office by an unknown co-worker at an

unknown time. I find that the evidence does not establish that this was the act of the employer

(including Mr. B), nor do I find it was authorized by the employer. On the other hand, the

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WCAT Decision Number:

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worker’s activity in going to see it was not related to the employment. Rather, it was to advance

the worker’s position in his ongoing legal disputes with the employer. I find that this factor

demonstrates a tenuous relationship to the employment.

[189] The eighth factor is whether the incident occurred while the worker was performing activities

that were part of the worker’s job. The worker’s work duties as a crew chief involve supervision

of airplane mechanics and engineers carrying out aircraft maintenance at the hangar. The

worker stated that he is not a crew chief at the ramp office. His job involves supervision of

others. However, he left the physical location at the hangar where he was supposed to be

supervising others. This factor does not favour an employment connection.

[190] The ninth factor is supervision. The evidence does not support that the worker was being

supervised at the ramp office. This factor does not support an employment connection.

[191] Considering all of the factors, I find the employment connection is tenuous at best. I find that the

incident in which the worker saw the posting at the ramp office did not happen at a time and

place and during an activity consistent with, and reasonably incidental to, the obligations and

expectations of the worker’s employment. The evidence does not support that it is at least as

equally likely as not that the worker was in the course of his employment when he witnessed the

posting of the Court Decision at the ramp office on May 10, 2018.

6) The worker’s other legal issues involving the employer

[192] The worker’s legal actions involving the employer were a series of stressors which occurred

over time and were ongoing both before and after the May 10, 2018 incident. While these

actions are concerned with issues that have their origin in the workplace, they did not take place

in the workplace. None of the factors set out in item C3-14.00 support an employment

connection. For example, the worker did not undertake those actions on the employer’s

premises, they were not for the employer’s benefit, he was not being paid by the employer while

doing so, he did not take those actions under the supervision or direction of the employer and

they were not part of his job. I find that these stressors did not happen at a time and place and

during an activity consistent with, and reasonably incidental to, the obligations and expectations

of the worker’s employment. I find that they did not arise in the course of the worker’s

employment.

[193] In summary, none of the identifiable stressors, including the May 10, 2018 stressor where the

worker saw his Court Decision posted at the ramp office, arose in the course of the worker’s

employment.

50

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[194] Given that I have found that none of the identifiable stressors arose in the course of the worker’s

employment, it is not necessary to go on to consider whether they arose out of the employment.

Further, it is not necessary to consider the remaining criteria in section 135 of the Act, including

whether they are traumatic events or significant stressors, or to apply a causation test

(regardless of which causation test applies).

[195] The worker challenged subparagraph 135(1)(a)(ii) of the Act on the basis that it applies a

different standard of causation (predominant cause) to significant stressors than that which

applies to traumatic events and to all other injuries and illnesses (causative significance). The

worker submitted that his Charter argument would apply if I were to determine that the

predominant cause test was not met. In other words, the Charter question the worker raised

would be engaged only if I were to conclude the worker was exposed to significant work-related

stressors arising out of and in the course of his employment which were of causative

significance in, but not the predominant cause of, his mental disorder. However, that is not the

outcome on which I have decided the employer’s appeal. I have not found it necessary to apply

either causation test. Therefore, the worker’s Charter argument is not engaged in this appeal.

[196] The requirements of section 135 of the Act are not satisfied. The worker’s claim for

compensation for a mental disorder is denied.

[197] For the benefit of the worker, I note that this decision to deny his claim does not affect the wage

loss benefits that have been paid to date on this claim. A decision to accept a claim which is

subsequently overturned on appeal is considered a decisional error and does not result in a

declaration of an overpayment, as set out in item #48.41 of the RSCM II. In other words, in such

cases the Board does not require repayment of the benefits paid.

Appeal Expenses

[198] Section 7(1)(b) of the Workers Compensation Act Appeal Regulation provides that WCAT may

order the Board to reimburse a party to an appeal for the expenses associated with obtaining or

producing evidence submitted to the WCAT.

[199] Item #16.1.3 of the MRPP provides that the WCAT will generally order reimbursement of

expenses for obtaining or producing written evidence, regardless of the result in the appeal,

where the evidence was useful or helpful to the consideration of the appeal or it was reasonable

for the party to have sought such evidence in connection with the appeal.

[200] The employer did not request to be reimbursed for any expenses. Specifically, it indicated that it

did not request to be reimbursed for Dr. Grosse’s opinion.

51

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

[201] The worker requested to be reimbursed for Dr. Lymburner’s opinion in the amount of $3300.

I find it was reasonable for the worker to request Dr. Lymburner’s opinion in connection with the

appeal.

[202] Item 16.1.1 of the MRPP provides that the WCAT will not automatically reimburse a party for an

amount that exceeds Board policy or a fee schedule. Parties tendering an account for an

expense that exceeds a fee schedule must provide a detailed breakdown of the expense

requested and explain why an amount greater than the fee schedule amount is requested. If a

panel is asked to reimburse an amount that exceeds a Board policy or fee schedule amount, the

panel will consider the request. Item 16.1.3.1 sets out the limited circumstances a panel will

consider in deciding to reimburse expenses at a different rate or on a different basis than set out

in Board policy or in a Board fee schedule.

[203] The worker provided two invoices on September 16, 2019. The first, dated August 19, 2019,

was for 14 hours at $200 per hour, for a total of $2800. The second, dated September 4, 2019,

was for 2.5 hours at the same rate, for a total of $500, for reviewing Dr. Grosse’s opinion. The

Board’s Psychologist Fee Schedule sets out that a psychology assessment and report may be

paid up to a rate of $215 per hour to a maximum of 13 hours. A supplementary psychology

report may be paid a flat fee of $350.

[204] The worker did not provide reasons why Dr. Lymburner’s opinion should be reimbursed in

excess of the fee schedule. I am not aware of any reason why Dr. Lymburner’s psychological

assessment should be reimbursed at a rate greater than other psychological assessments.

Dr. Lymburner did not perform psychometric testing of the worker, which is a normal part of a

psychological assessment. Such testing would increase both the time required for the

assessment to be performed, as well as the analysis. While it was necessary to review prior

medical evidence, I do not consider the amount of evidence reviewed by Dr. Lymburner was

unusual. Thus, it cannot be said that the expert reviewed a significant body of evidence or the

issue addressed was unusually complex. In addition, Dr. Lymburner billed for discussion with

the representative. It is unclear why such a discussion was necessary. I am not satisfied that

Dr. Lymburner’s report should be reimbursed in excess of the fee schedule. Therefore, I direct

the Board to reimburse the worker for the maximum of 13 hours at the rate of $200 per hour for

the first report and a flat fee of $350 for the second report, for a total of $2950.

[205] The worker did not request to be reimbursed for any expenses associated with attending the

oral hearing. I make no further order with respect to appeal expenses.

52

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca

WCAT Decision Number:

A1900897 (May 26, 2022)

Conclusion

[206] I allow the employer’s appeal and vary the decision of the Review Division dated March 13,

2019. The worker’s claim for a mental disorder does not meet the requirements of section 135

of the Act and is denied.

[207] I direct the Board to reimburse the worker for Dr. Lymburner’s reports in the amount of $2950.

Hélène Beauchesne

Vice Chair

53

150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Tel: (604) 664-7800 | 1-800-663-2782

Fax: (604) 664-7898 | wcat.bc.ca