An Alberta woman, whose boss allegedly touched her inappropriately and shoved money down her shirt, has been awarded workers’ compensation benefits for psychological injury after her claim was initially rejected.
The worker said she was subject to harassment and inappropriate behavior by her foreman. Some of the examples she gave included:
- inappropriate touching and shoving money down her shirt
- regularly asking her out on a date, and not taking no for an answer
- phoning or texting her while he was drunk
- becoming jealous and not letting other workers talk to her
- engaging in sexual discrimination against her about her ability to drive a dozer.
Her initial claim was denied by the Dispute Resolution and Decision Review Body (DRDRB) on April 20, 2022. The woman appealed that ruling to the Appeals Commission for Alberta Workers’ Compensation.
Psychological diagnosis
The appeals commission found the evidence confirmed the woman had a DSM diagnosis that supported a psychological injury.
An Aug. 26, 2021, report from her family doctor to the WCB confirmed a diagnosis of “acute stress reaction/PSTD. She was prescribed Clonzaepam and Ativan to manage her anxiety.
A report dated Sept. 6, 2021, from a treating psychologist indicated the woman had “major depression” and “severe anxiety” with treatment warranted.
There was, therefore, a confirmed psychological or psychiatric diagnosis as defined in the most current version of the DSM.
Aggressive, threatening and abusive behaviour
It also found that a reasonable and objective person would view the behaviour she endured as aggressive, threatening and abusive.
For example, as soon as she began working with the foreman, he “started making inappropriate comments saying I had a nice butt, saying ‘oh that gap’ when I would bend over to grab something,” she said.
The comments were pretty much daily, she said, involving her appearance and body.
“He would make sexual comments about me to the crew members telling them ‘he would give it to me so hard,'” she said.
The commission pointed out the foreman was in a position of authority over her, and had the authority to terminate both her and her boyfriend. (Her boyfriend was on a different crew.)
Sexual stories
There was also evidence and testimony, some from witnesses, about the foreman’s behaviour. For example, he told a story to other workers about having sex with an employee on a pool table while “wearing her panties on his head.”
That story was evidence of aggressive, threatening and abusive behavior, the commission said.
“This is because it is of a sexual nature and the fact that one witness understood that it was with an employee only further demonstrates and highlights a power imbalance and an absence of respect in this case towards the worker, especially when the worker was apparently the only female working on a crew,” it said. “That is, we find that it was intimidating, offensive and hostile to the worker, whether or not it was about her.”
Traumatic injury versus chronic injury
The commission, weighing the evidence, found a a connection between her psychological condition and traumatic work-related events.
There were reports from two family doctors and a psychologist that supported a diagnosis, it said.
It ruled she had an acceptable claim for benefits under the section of WCB policy that deals with traumatic psychological injury. Therefore, it did not need to consider her claim under chronic psychological injury, it said.
Prior sexual harassment
One of the more interesting aspects of this case was the fact the woman had experienced sexual harassment and prior trauma with another employer earlier in her career.
Therefore, it was argued by the employer, her psychological injury could be pre-existing and may not have been exacerbated by any event (perceived or otherwise) during her current job.
Moreover, she disclosed during the DRDRB hearing a child and adult history of sexual abuse and assault.
But the worker said she had not had a confirmed DSM diagnosis prior to this incident.
“We conclude there is no medical evidence currently available to the panel on the file that directly supports a pre-existing condition – i.e., a pre-existing psychological or psychiatric diagnosis either based on a clinical diagnosis or confirmed medical judgement,” it said.
The employer’s investigation
The commission also reviewed an investigation conducted by the employer in this case.
It found her complaint of harassment by the foreman to be unsubstantiated, nor was there a breach of company policy.
“The document indicated there were some elements of ineffective leadership, communication and expectation challenges,” it said.
But it found the document to be unreliable because of the circumstances under which the woman signed it.
“She stated that she signed this document in a field, in view of the crew(s), with the safety manager. She also reiterated that she did not understand the document that she was signing,” it said.
“Under such circumstances involving signing a major legal document in a field with the worker, who had to have the document explained to her, we did not place significant weight on the worker’s signature, which indicated that she acknowledged the receipt and understanding of the complaint closure. As noted above, the document indicated that the complaint of sexual harassment was not substantiated nor was there a breach in company policy,” it said.
It concluded she had an acceptable claim for workers’ compensation benefits because:
- The weight of evidence confirms a psychological or psychiatric diagnosis as defined in the most current version of the DSM;
- The worker experienced interpersonal relations with a coworker, which resulted in behaviors that reasonably and objectively assessed, were aggressive, threatening, and abusive; and
- The weight of medical evidence establishes that the diagnosed psychiatric/psychological condition resulted from the traumatic work-related event or events.
For more information see Decision No.: 2022-0592, 2022 CanLII 122032 (AB WCAC)
