The court held that the Workers’ Compensation Appeal Tribunal’s (“WCAT”) decision to deny a worker’s claim was patently unreasonable, as the court held that WCAT made findings with respect to the worker’s experience of a traumatic event without interviewing or assessing the worker, and made a medical finding that was contrary to the opinion of the worker’s physician without obtaining a supporting opinion from a medical expert.
Administrative law – Decisions of administrative tribunals – Evidence – Expert Evidence – Judicial Review – Psychological injury – Traumatic event – Workers Compensation Boards
Cima v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. No. 1076, 2016 BCSC 931, British Columbia Supreme Court, May 25, 2016, B.M. Young J.
WCAT denied a worker’s appeal and claim for benefits. The worker was a sales representative who developed a slurred speech disorder. The worker received a text message from his supervisor on December 23, 2015, in which the supervisor referred to the worker as a “retard”. After receiving this message, the worker became depressed and did not return to work. Approximately two weeks after the text message, his physician diagnosed him with a major depressive disorder as a result of the receipt of the message. The worker claimed benefits arising from mental disorder under the Workers Compensation Act, R.S.B.C. 1996, c.492 (the “Act”), two days after meeting with his physician. Approximately two weeks later, the worker was diagnosed with ALS.
WorkSafe’s case manager asked the field investigator to interview the supervisor and a customer, but the worker was never interviewed. WorkSafe said it would arrange for an assessment of the worker by a psychiatrist or psychologist but never made arrangements for such an assessment before the worker’s claim was denied. The claim was denied, and the worker appealed this decision to the Review Division.
WCAT concluded that the event did not constitute a traumatic event or a significant work related stressor and so denied benefits to the worker. The review officer held that while the supervisor’s actions were “in bad taste” and an exercise of poor judgment, they did not constitute bullying and harassment. The review officer understood that the worker was particularly vulnerable due to symptoms of as yet undiagnosed ALS, but she rejected that this vulnerability rendered the worker’s receipt of the text message to be a traumatic event. WCAT determined that these incidents were not traumatic under the Act, and that traumatic was intended to encompass more serious events than receipt of a text message. WCAT also held that the supervisor could not have been reasonably expected to have known how the text message would have impacted the worker.
On judicial review, Young J. held that the WCAT’s decision was patently unreasonable. The court held that WCAT drew conclusions on the traumatic nature of the events without any evidence from the worker and disregarded the opinion of the worker’s physician.
The court considered the definition of mental disorder as a personal injury addressed in the Act. She noted that psychological trauma is damage to a victim’s psyche that occurs as a result of a severely distressing event, and that the test regarding whether the event was distressing to the victim inherently has some subjective components to it. As a result, it is imperative that the victim be interviewed at the adjudication stage to determine what effects the events had on him.
Madam Justice Young determined that it was open to her to consider whether there was positive evidence that the worker did not suffer trauma in the face of his doctor’s opinion to the contrary. She found that there was no evidence to support this finding, given that the worker was not interviewed or assessed.
With respect to whether bullying or harassment had been carried out by the supervisor, the court noted that the test was not whether the supervisor intended to bully the worker but whether he knew or ought to have known that the action would humiliate or degrade the worker. The court found that the supervisor ought to have known that a text message calling the worker a “retard” would be viewed as offensive and belittling.
The court also noted that, while WCAT is presumed to have expertise in all matters over which it has exclusive jurisdiction, it is not presumed to have medical expertise. It appeared in this case that WCAT preferred its medical opinion over that of a medical expert. If WCAT wanted to refute the opinion of the worker’s physician, WCAT was required to obtain its own medical expert to do so.
The matter was remitted back to WCAT to be considered on the merits. The court directed that the worker should be interviewed and assessed by a board appointed psychiatrist if WCAT intended to challenge the opinion of the worker’s physician.
This case was digested by JoAnne Barnum of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.
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