Highlights of Noteworthy Decisions

Decision 891 21
B. Kalvin - P. Greenside - S. Roth
  • Credibility
  • Procedure (written submissions)
  • Stress, mental (chronic)

The worker was a cashier at a retail store. In two separate incidents in February 2019, customers verbally abused the worker and made derogatory comments about her religion. She was diagnosed with anxiety caused by the incidents. She was granted entitlement for chronic mental stress. The employer appealed.

The appeal was dismissed.
In a preliminary matter, the Panel noted that, after the employer requested a written hearing on the grounds that the facts were clear and the worker's testimony was unnecessary, the employer's written submissions disputed the worker's account of events and challenged the worker's credibility. The long standing principle from Browne v. Dunn is that a party wishing to impeach the credibility of a witness must put contradictory evidence to the witness and give them a chance to respond or explain. The employer could not attempt to impugn the credibility of the worker after requesting a written hearing. Large sections of the employer's submissions would therefore be disregarded.
The worker had entitlement to chronic mental stress. Board policy on Chronic Mental Stress provides that inter-personal conflicts are not generally considered work-related stressors unless the conflict amounts to workplace harassment or results in conduct that a reasonable person would perceive as egregious or abusive. Reasonable persons would regard a racist verbal attack as both egregious and abusive. The worker experienced a substantial work-related stressor that arose out of and in the course of her employment. Given the finding that the conduct was egregious and abusive, it was unnecessary to determine whether the policy's definition of workplace harassment required that both the worker and the perpetrator be in the course of employment for that exception to apply.
There was significant medical evidence that the work-related stressor caused her to experience a mental stress injury. Although the worker suffered from pre-existing panic and anxiety disorders, the workplace events were the predominant cause of her condition. The medical reports attributed the worker's onset of stress related symptoms to the work incidents and there was no contrary medical opinion.