Administrative law — Judicial review and statutory appeal — Standard of review — Workplace Health, Safety & Compensation Law — Workers' compensation — Compensable injuries — Psychological injuries — Stress — Aggravation of pre-existing condition — Entitlement — Accident.
Appeal by the employer from a decision of the Workers' Compensation Appeals Tribunal ("WCAT") that the worker was entitled to compensation for loss of income while he was on stress leave. The worker was employed by the Children's Aid Society from 1988 to 2003. He had a history of anxiety attacks dating back to 1997, but until 2002, the attacks had been relatively infrequent. In 2002, he attended a meeting with his supervisor and two others. At the meeting, the supervisor accused him of telling everyone that his position was a part-time job, and criticized him for inadequate record keeping and unprofessional conduct. After the meeting, the anxiety attacks became almost a daily occurrence, and the worker went on stress leave for approximately six months. The Workers Compensation Board denied the worker's claim on the basis that there had been no traumatic event within the meaning of s. 2(a) of the Workers Compensation Act. WCAT concluded that the meeting was a traumatic event, and that the worker had an acute reaction to this event which gave rise to post-traumatic stress syndrome and entitled him to compensation.
HELD: Appeal dismissed. WCAT's findings of fact were to be shown the highest level of deference. The facts as found by WCAT supported the view that the meeting was objectively traumatic. There was evidence to support WCAT's characterization of the meeting as consisting of personal attacks on the worker, aggressive conduct by the supervisor, and a real and imminent threat that the meeting would become physically violent. The worker's uncontradicted testimony, psychiatric diagnosis and medical history all supported WCAT's finding that the meeting caused the worker to develop post-traumatic stress syndrome, and that the meeting exacerbated his pre-existing anxiety problem.
Statutes, Regulations and Rules Cited:
Workers' Compensation Act, S.N.S. 1994-95, c. 10., s. 2(a)
Counsel:
Glen F. Campbell, for the appellant
Alexander MacIntosh, for the respondent Workers' Compensation Appeals Tribunal
Madeleine Hearns, for the respondent Workers' Compensation Board
Anne Clark and Kenneth LeBlanc, for the respondent, James MacNeil
Edward Gores, for the respondent, Attorney General of Nova Scotia, not appearing
Held: Appeal dismissed per reasons for judgment of T.A. Cromwell J.A., M. MacDonald C.J.N.S. and E.A. Roscoe J.A. concurring.
T.A. CROMWELL J.A.:—
I. Overview:
¶ 1 Stress is considered an accident under the Workers' Compensation Act, S.N.S. 1994-95, c. 10 ("WCA") if it results from an acute reaction to a traumatic event: WCA, s. 2(a). In this case, the Workers' Compensation Appeals Tribunal ("WCAT") found that the worker's stress fell within the definition of accident and therefore recognized his claim for workers' compensation. The question on this appeal is whether the Tribunal erred.
¶ 2 The worker, Mr. MacNeil, was employed by the appellant agency from 1988 until 2003. His workers' compensation claim relates to a stress leave which he took in 2002. He had a history of anxiety attacks dating back to 1997, although according to his evidence, they were at that time fairly infrequent and manageable. In 1999, as a result of difficulties in the workplace, these attacks became somewhat more frequent and more frequently required medication. In February of 2002, there was an intense meeting with his supervisor. The worker knew "there was potential for an explosion", stood up and left the meeting and shortly after went home. He went to see his family doctor the same day. The doctor referred him to a psychiatrist. The panic attacks became more frequent and he had to take medication daily. He was diagnosed with post-traumatic stress syndrome. He went on stress leave until September and claimed workers' compensation for that period.
¶ 3 WCAT, overturning prior decisions of the Case Manager and Hearing Officer, found that the February 2002 meeting had been a traumatic event which resulted in post-traumatic stress syndrome and exacerbation of his pre-existing anxiety condition. According to WCAT, these developments were severe and intense and therefore an acute reaction to the meeting. Mr. MacNeil's stress resulted from an acute reaction to a traumatic event and was an injury by accident within the meaning of s. 2(a) of the WCA.
¶ 4 The appellant says that WCAT misinterpreted the statute's requirement that stress must result from "an acute reaction to a traumatic event", misapprehended the evidence and erred in applying the evidence to the statutory provisions. However, in my view, the worker's unchallenged evidence and the medical reports from his psychiatrist justify WCAT's decision and the appeal should be dismissed.
II. Case History, Evidence and Decision of WCAT:
¶ 5 This case has evolved as it has worked its way through the various levels of review. At the outset of the worker's claim, there was little to alert the Board to the worker's position that the February, 2002 meeting had been a traumatic event to which he had an acute reaction.
¶ 6 The report of accident, date stamped March 26, 2002, says that the injury occurred "over a period of time" and that symptoms had first been noticed four years earlier. It refers to the injury as consisting of "blood pressure, gastro-intestinal, anxiety attacks" and to the fact that Mr. MacNeil had been seen by Dr. Kos on February 12, the same day as the reported commencement of earnings loss.
¶ 7 There is an April 4 memorandum in the file which records the Board's first contact with Mr. MacNeil. There is mention, in general terms, of Mr. MacNeil's workplace difficulties, but there is no reference to the February meeting or any other specific traumatic event. Dr. Kos completed a report dated April 23, 2002 giving the date of injury as February 12 and the diagnosis as "stress, anxiety, panic attacks." The report relates the panic attacks to the work situation and mentions an investigation which the worker had been required to undertake in 1999.
¶ 8 The Board obtained a medical opinion which simply states that the events described by the worker in the contact sheet did not constitute an acute reaction to a traumatic event as defined in s. 2(a) of the WCA. This opinion was given before any reports had been received from Mr. MacNeil's psychiatrist, Dr. Sheard.
¶ 9 The Board's case manager denied the claim on April 12, 2002. In his opinion, the stress suffered by the worker did not qualify for compensation under the WCA. To be eligible for compensation, the worker must have suffered an injury by accident arising out of and in the course of his employment: WCA, s. 10(1). The term "accident" only applies to stress where it is "an acute reaction to a traumatic event": WCA, s. 2(a). The case manager concluded that there had been no traumatic event within the meaning of s. 2(a) with the result that the worker could not be said to have been injured as a result of an accident.
¶ 10 The worker appealed unsuccessfully to a Hearing Officer. In a decision dated August 20, 2002, the Hearing Officer concluded that there was insufficient evidence that the worker's stress resulted from a traumatic event and therefore that he had suffered an injury by accident within the meaning of s. 2(a) of the WCA.
¶ 11 The worker's submissions before the Hearing Officer are in the record. Mr. MacNeil stated that "[t]he events resulting in my situation were cumulative and culminated in a traumatic event with my supervisor on February 6, 2002." He pointed out an error in the Case Manager's report. The report stated that Mr. MacNeil had been followed by Dr. Sheard since 1998 when in fact Mr. MacNeil stated he never saw Dr. Sheard until April 25, 2002. We know from the record that his family doctor made the referral to Dr. Sheard shortly after the February 2002 incidents. There appears to have been no report from Dr. Sheard in the file at the time the Hearing Officer made her decision.
¶ 12 The worker appealed to WCAT. It concluded that the February meeting had been a traumatic event and that the worker's condition resulted from an acute reaction to it within the meaning of s. 2(a) of the WCA.
¶ 13 Before WCAT, Mr. MacNeil testified. The Tribunal also had before it two reports from Dr. Sheard as well as the rest of the contents of the file. The appellant, although represented by counsel before WCAT, did not call evidence at the oral hearing and cross-examined Mr. MacNeil hardly at all on any substantive issue. The oral evidence of Mr. MacNeil about his workplace experiences was, therefore, uncontradicted and, for practical purposes, unchallenged.
¶ 14 Mr. MacNeil testified that he began work with Family Services of Eastern Nova Scotia in 1988 and that he worked as a family therapist for five years and as a supervisor for seven.
¶ 15 While working as a supervisor in the Glace Bay office, he was asked to conduct an investigation relating into some billings by a contract employee. Mr. MacNeil did not want to do this because the employee's mother was a colleague. In any case, he did not think he should be asked to investigate what was really an accounting matter. He was, nonetheless, directed to do the investigation. He discovered that there had been over billing by the employee. The employee, his colleague's son, was reprimanded. Mr. MacNeil thought this was an inappropriately light response given what he considered to be the seriousness of the situation.
¶ 16 The employee's mother subsequently became Mr. MacNeil's supervisor. Mr. MacNeil decided to go back into field work in a union position. His evidence was that this was opposed by the supervisor, but ultimately took place. In the field work position, he was under the supervision of Mr. J.J. According to Mr. MacNeil, there had been and continued to be tension between them. Mr. MacNeil recounted specific instances in which he felt that he had been unjustly or excessively criticized. Record-keeping was a continuing source of tension.
¶ 17 Eventually, there was a meeting scheduled in February of 2002. Present were Mr. MacNeil, his supervisor, J.J., another supervisor and a union representative. Mr. MacNeil said that the meeting opened with J.J. accusing him of going around telling everyone that his child welfare position was a part-time job. Mr. MacNeil denied this. Mr. J.J. then said that Mr. MacNeil's records were insufficient or not up to par and that Mr. MacNeil was unprofessional and lacked professional practices. Mr. MacNeil's evidence described how the meeting became more heated. I will quote this evidence in full:
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By this time in the meeting, I have to tell you, I was getting a little hot under the collar. As well as getting hot under the collar, I suffer from anxiety attacks. And even for me to be here today, I have to take medication to be here. I was -- I had had my medication that morning. This was late morning or maybe early afternoon -- I forget now -- and I do carry with me all the time some medication that I -- because if I have a particular attack during the day -- I usually only take one a day, but if I have an attack during the day, I take more. And I was getting to the point where it was a small office, there was four of us in it, and he was calling me everything under the sun. And I can't recall half of it -- it began to be a blur. But I began to get very agitated sort of thing, admittedly, and I just needed to get out of there. The four walls were closing in. And I just stood up. There was -- and so as not to minimize my role in this, there was apparently a point -- oh, yes -- at which Mr. J.J. kept saying to me, "Well, I want a date when these recordings are going to be up to date." And I said, "Well, I can't give you a date, you know. You give me a date. When do you want them?" sort of thing. And we began this very childish back-and-forth bantering about the dates for when it should be done. I said, "Just give me a date," you know. And then it was interjected by the union member who said, "Well, why don't you just file them on a weekly basis?" he agreed to it. And then right after he said that, he said, "Well, I want a date." So he was fixated on this date. Anyway, I was -- as he was becoming more -- he started to get closer to me, and quite frankly, I started to get closer to him too. For whatever reason, I don't know, because I didn't want to be close to him. And at that point, I just knew that this is a potential for an explosion, particularly for me. When I have an attack like that, I just can't have people closing in on me. I just can't be in an enclosed space. And I got up and I said, "Mr. J.J., you may intimidate a lot of these young people around here, but you don't intimidate me. I'm out of here." And I walked out. And I was charged with insubordination for that two days later and just sent home for a week or so. The point is, at that point, I went to my family doctor, who sent me to Dr. Sheard, and I was quite a basket case in terms of my feelings. ... |
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... but I left that meeting and I immediately went back to my office. Two workers came with me. I asked one of them to get me a glass of water. I took a medication and I then went to the secretary and told her, "I have to leave the building. I have to leave. I have to go home." I went home. I was in such bad shape that my wife called my family doctor, who -- and believe you me, in Cape Breton, this is not easy -- who agreed to see me immediately, and asked her to drive me in to see him, and he felt that I should have a stronger medication, and he wanted to hospitalize me, but I did not want that, so I agreed to a stronger medication and I went home. And then I was off sick on stress leave for months and months. But that, in a nutshell, is the -- what I feel is my traumatic event which led to me being off at that point in time, and that's when I applied for compensation. Now -- can I go on further? I -- that was the traumatic event. ... |
| Q. |
Jim, if you had to point to one incident that was the cause of your problems, what would you say it would be? I mean your medical problems. |
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| A. |
Oh, the medical problems. I think it started with the meeting with J.J., who -- you know, he -- again, I'm a professional all my life. There's nothing in my record that shows that I cheated or stole or whatever sort of thing. And I did an investigation which did show that, and I was the one who was branded with this, one way or another. But certainly the meeting with J.J. was a very traumatic experience for me personally because, you know, I -- it was just completely embarrassing and debasing and the whole nine yards sort of thing. And it -- you know, the panic attack that I had at the time. You know, they were even worse after that for a while until the medication kicked in. ... |
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| Q. |
... And in this incident, you were not struck by J.J.? |
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| A. |
No. |
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| Q. |
And you told us that you came closer to him -- he was coming closer to you and you kept coming closer to him? |
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| A. |
That's the way I felt, yeah. |
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| Q. |
Yeah. And then you got up and you left the meeting. |
| A | Correct, yes. |
¶ 18 A day or a couple of days later, Mr. MacNeil was at work, but was suspended for a week or two for his part in the meeting. He was off on stress leave for several months thereafter.
¶ 19 Mr. MacNeil testified about his history of anxiety attacks. He said that they started in about 1997. They were relatively infrequent, perhaps two or three per month. They became more frequent in 1999 around the time of his investigation of the contract worker described earlier. He started taking medication more frequently. Shortly after the February, 2002 meeting the attacks started to occur almost daily and Mr. MacNeil became more anxious and depressed and took medication for these conditions.
¶ 20 After the February meeting, his family doctor referred him to Dr. Sheard, a psychiatrist. At the time of the WCAT hearing, he was being seen monthly. There were two reports from Dr. Sheard before WCAT. The second, dated June 10, 2003, is most relevant. It states that Mr. MacNeil suffers from "heightened anxiety, depressed mood, poor concentration in the context of work related post-traumatic stress syndrome on DSM-IV Axis 1. The genesis of this lies in a meeting that Mr. MacNeil had with his supervisor, Mr. [J.] on February 4, 2002." (Emphasis added) The report also refers to a subsequent meeting on February 8th at which Mr. MacNeil was informed that he was suspended for insolence. The report continues: "[h]e has grappled with traumatic recollection of these two events ever since ..."
¶ 21 WCAT made two critical findings. First, it concluded that the February meeting was a traumatic event. Second, it found that Mr. MacNeil had an acute reaction to this event which gave rise to post-traumatic stress syndrome and exacerbated his pre-existing anxiety disorder.
¶ 22 An event is traumatic, according to WCAT, if it is "something other than the commonplace workplace experiences of the particular worker". The meeting had been characterized by "personal attacks" by J.J. against Mr. MacNeil and had culminated in a confrontation of a physical nature that was not a common workplace experience. WCAT said J.J.'s actions were "physically aggressive" and that in the context of this workplace, this was "totally unexpected and intolerable." WCAT continued:
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The Worker described the meeting as a highly-charged scene where voices were raised. He and J.J. became physically aggressive toward each other - standing chest-to-chest; getting closer and closer together. I infer from his testimony that "there was potential for an explosion" that there was a real and imminent threat that the meeting was about to become physically violent. The Worker described the experience as "completely embarrassing and debasing." I infer that this description reflects his revulsion with his role in violating the fundamental norm of workplace nonviolence through his conduct at the meeting. |
¶ 23 WCAT also found that Mr. MacNeil had an "acute reaction" to these events. An acute reaction was defined to mean a "sharp, severe, or intense reaction that is not necessarily immediate." The Tribunal noted that the evidence of both the worker and Dr. Sheard was that Mr. MacNeil had a severe, intense reaction to the February meeting. The anxiety attacks had become much more frequent and difficult to control as a result of those events, they resulted in Dr. Kos making the referral to Dr. Sheard and Dr. Sheard had diagnosed a recognized psychiatric illness which had its genesis in that meeting.
¶ 24 Relying on Dr. Sheard's opinion, WCAT concluded that the February meeting caused the worker to develop post-traumatic stress syndrome and that there was no evidence that the worker suffered from this before the meeting and no evidence that he would have developed it had the events of the meeting not occurred. WCAT also found that the events of February 2002 had exacerbated the worker's pre-existing anxiety condition.
¶ 25 WCAT concluded that the worker's reaction to the February meeting was sufficiently severe and intense that it was acute and that the meeting was a traumatic event. The resulting stress therefore constituted an injury by accident arising out of and in the course of his employment within the meaning of s. 10(1) and 2(a) of the WCA.
III. Issues:
¶ 26 The appellant raises four issues:
| 1. |
Did WCAT err by failing to defer to the Hearing Officer's findings of fact? |
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| 2. |
Did the Workers' Compensation Appeals Tribunal err by using the wrong test to determine whether the Worker's condition was caused by an "acute reaction to a traumatic event" as required by the Workers' Compensation Act, S.N.S. 1994-1995 c. 10, as amended, s. 2(a) (the "Act")? |
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| 3. |
Did the Workers' Compensation Appeals Tribunal err by finding that the meeting of February 2002 was "personal", "violent", and "aggressive" in the absence of any evidence to support that finding and by failing to recognize that any disabling condition the Grievor might have suffered was entirely the result of his own "willful and intentional act"? |
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| 4. |
Did the Workers' Compensation Appeals Tribunal err in making a patently unreasonable decision by finding that the evidence supported the conclusion that a traumatic event had occurred within the meaning of the Act and/or that the Worker's condition was caused by an "acute reaction" to that event? |
IV. Analysis:
1. Standard of Review:
¶ 27 The standard of review is to be approached according to the "pragmatic and functional" approach. This approach was described by Fichaud, J.A. in Creager v. Provincial Dental Board, 2005 NSCA 9; [2005] N.S.J. No. 32 (Q.L.)(C.A.) with a conciseness that I can more easily quote than emulate:
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[15] ... Under the pragmatic and functional approach, the court analyses the cumulative effect of four contextual factors: the presence, absence or wording of a privative clause or statutory appeal; the comparative expertise of the tribunal and court on the appealed issue; the purpose of the governing legislation; and the nature of the question, fact, law or mixed. From this, the court selects a standard of review of correctness, reasonableness, or patent unreasonableness. The functional and practical approach applies even when there is a statutory right of appeal: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paras. 17, 21-25, 33; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 21. The approach applies even to pure issues of law, for which the standard of review need not be correctness. The existence of the statutory right of appeal and whether the issue is one of law, are merely factors weighed with the others in the process to select the standard of review: Ryan at paras. 21, 41, 42; Dr. Q at paras. 17, 21-26, 28-30, 33-34. |
¶ 28 The third and fourth issues raised on appeal concern WCAT's finding of fact about what happened at the February meeting. Even on an appeal from a court, those findings would be reviewed only on the palpable and overriding error standard. In the context of this statutory appeal, which excludes appeals on questions of fact, the highest level of deference should be shown to WCAT's findings. The standard of review in relation to these issues therefore is that of patent unreasonableness.
¶ 29 The second issue concerns the test to be used in determining whether the worker's stress resulted from "an acute reaction to a traumatic" event. However, the parties to the appeal are substantially in agreement about the interpretation of this phrase. The dispute is whether that is the approach which WCAT followed in this case. Given the agreement of the parties on the correct test, I will assume, for the purposes of this appeal, that whether or not the worker had "an acute reaction to a traumatic event" is to be assessed using both a subjective and an objective point of view. For the purposes of this appeal, therefore, the only issue is whether WCAT employed the test which the parties agree to be the correct one. I will assess that on the correctness standard. It is not necessary for the purposes of this appeal to offer a final opinion on whether the test on which the parties agree is the correct test or on the question of whether WCAT's selection of the test should be reviewed on a more deferential standard.
¶ 30 It is also necessary to say a word about the standard of review to be applied by WCAT in relation to the Hearing Officer's findings as this is raised in the first issue. The applicable principles were summarized in Canada Post Corp. v. Nova Scotia (Workers' Compensation Appeals Tribunal) (2004), 222 N.S.R. (2d) 191; [2004] N.S.J. No. 105 (Q.L.)(C.A.) at paras. 18 and 21:
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[18] The appropriate standard of review to be applied by WCAT on appeal from the decision of a Hearing Officer is that set out by this Court in Doward v. Nova Scotia (Workers' Compensation Board), [1997] N.S.J. No. 171; 160 N.S.R. (2d) 22; 473 A.P.R. 22 (C.A.) and Metropolitan Entertainment Group v. Durnford, [2000] N.S.J. No. 343; 188 N.S.R. (2d) 318; 587 A.P.R. 318 (C.A). |
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[21] Taken together, Doward and Durnford confirm that: WCAT proceedings are of a hybrid nature, combining features of appeals de novo with reviews of the record; WCAT is to exercise an independent adjudicative function; WCAT's deference to findings of Hearing Officers is defined and limited by its statutory mandate and its hybrid role; courts should be wary of curtailing that independent adjudicative function by imposing a rule of deference not contemplated by the legislature; and, that WCAT owes deference to a Hearing Officer's findings of fact based on the assessment of oral testimony particularly where WCAT conducts a paper review and receives no additional evidence beyond that before the Hearing Officer. |
¶ 31 In my view, WCAT is bound by these principles and the standard of review we should apply with respect to this aspect of its decision is correctness.
| 2. |
Did WCAT err by failing to defer to the Hearing Officer's findings of fact? |
¶ 32 The appellant says that WCAT erred by failing to defer to the findings of fact by the Hearing Officer. However, WCAT heard the oral evidence of Mr. MacNeil and had two medical reports from Dr. Sheard that had not been before the Hearing Officer. No deference to the Hearing Officer's findings of fact was called for in these circumstances.
| 3. |
Did WCAT use the wrong test to determine whether there had been an acute reaction to a traumatic event? |
¶ 33 The appellant submits that WCAT's approach to the terms "acute reaction" and "traumatic event" placed undue emphasis on the worker's subjective opinion about workplace events and not enough on how a reasonable onlooker would have perceived these events. The parties here accept that the test has both an objective and a subjective component. Given that agreement, it is not necessary for the purposes of this appeal to finally decide whether that is indeed the proper approach. I will assume for the purposes of considering the appellant's submission that it is. Similarly, as mentioned earlier, it is not necessary to decide whether WCAT's articulation of the test is entitled to some deference on appeal. The appellant's submission is simply that WCAT did not apply the subjective/objective test here.
¶ 34 The fundamental difficulty with this submission is that the facts as found by WCAT support the view that the February meeting was traumatic from an objective point of view. There was no testimony other than Mr. MacNeil's about what went on in the workplace. There was no cross-examination of any significance on the workplace events. The appellant had filed a memorandum with the Tribunal that addressed some of the workplace issues, but WCAT rightly held that in the absence of supporting documentation from the worker's personnel file, the absence of oral evidence on behalf of the appellant and the absence of any challenge to his credibility, that memorandum could be given little weight. That conclusion is not challenged by the appellant. WCAT found the meeting to be highly charged with the potential for physical violence. The word "traumatic" was taken to mean something other than the common workplace experiences of the particular worker, suggesting an objective element. And WCAT addressed itself to the question of what employees working for the employer in general, not just this worker, would find normal or unacceptable. Therefore, assuming without deciding that this more objective approach was the proper one, WCAT did not fail to take it.
¶ 35 I specifically refrain from finally deciding the degree of objectivity required in assessing stress claims because the record and arguments submitted on this appeal make it unnecessary to do so.
| 4. |
Did WCAT make findings of fact for which there is no evidence? |
¶ 36 The appellant says that there is no evidence to support WCAT's findings that the February meeting was "personal", "violent", and "aggressive" and that WCAT failed to recognize that any disabling condition resulted from the worker's own wilful and intentional act.
¶ 37 To start with the second point first, WCAT found that the worker's conduct did not instigate or initiate the confrontation. WCAT did not, therefore, fail to take into account whether the worker's own wilful and intentional acts had contributed to the condition.
¶ 38 As for the first point, the appellant says that there is no evidence to support WCAT's statement that the worker and J.J. were "standing chest-to-chest," or that the meeting was "personal", "violent" and "aggressive". While the comment about "chest-to-chest"is not in the record, WCAT's overall characterization of the meeting is supported by the evidence.
¶ 39 There was evidence to support WCAT's inference that there was "a real and imminent threat that the meeting was about to become physically violent." The worker testified that J.J. started coming closer to him in the small meeting room, that the atmosphere was heated and that there was a potential for an explosion. There was also evidence that J.J. called the worker unprofessional and falsely accused him of making comments that "child welfare is a part time job." These could reasonably be considered personal remarks. There was evidence that J.J.'s approach to the meeting made the worker feel completely embarrassed and debased. In short, there was evidence to support WCAT's characterization of the meeting as consisting of personal attacks on the worker, aggressive behaviour by the supervisor and violence in the sense that there had been a real and imminent threat that the meeting would become physically violent. The phrases which WCAT placed in quotation marks are accurate quotations from the worker's testimony. While perhaps not every fact-finder would have drawn the same inferences from the record which WCAT did, it cannot be said that there was no evidence to support them.
¶ 40 It is true, as the appellant submits, that there is no evidence to support WCAT's statement that the worker and J.J. came together "chest-to-chest". However, this one misapprehension of the evidence is not sufficient to require appellate intervention given that WCAT's overall characterization of the meeting is reasonably supported by the record.
| 5. |
Was the finding that there had been an acute reaction to a traumatic event patently unreasonable? |
¶ 41 The patently unreasonable standard of review requires a very high level of deference on the part of the reviewing court. A decision is patently unreasonable if it borders on the absurd, is clearly irrational or evidently not in accordance with reason: Voice Construction Ltd. v. Construction & General Workers' Union Local 92, [2004] 1 S.C.R. 609 at para. 18; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52.
¶ 42 The appellant submits that there were no excessive, unusual or atypical stressors in the workplace which could reasonably be characterized as a traumatic event. On this record, I cannot accept this submission.
¶ 43 As noted earlier, WCAT had evidence before it that the worker and Mr. J.J. got closer to each other, that there was "a potential for an explosion", that the worker felt the supervisor was attempting to intimidate him, that he had a panic attack and had to leave the meeting. The worker testified that he found the meeting traumatic. He immediately went to his family doctor, was referred to a psychiatrist and was off work for several months on stress leave. While it is true, as the appellant says, that Mr. MacNeil had suffered panic attacks since 1997, there was also evidence these became more frequent and more severe immediately after the February meeting. As noted, it was just after this meeting that he was referred to a psychiatrist, Dr. Sheard. He opined in his report that Mr. MacNeil had suffered a work related post-traumatic stress syndrome whose genesis was in the February meeting. The evidence about his reaction to the meeting as well as the events immediately afterward support the conclusion that it was an acute reaction to those events.
¶ 44 In short, the worker's uncontradicted testimony, his psychiatric diagnosis, and his medical history all support WCAT's conclusion that the events of February 2002 caused the worker to develop post-traumatic stress syndrome and, as well, that those events exacerbated Mr. MacNeil's pre-existing anxiety condition. Supported as they are by the record, these conclusions cannot be said to be bordering on the absurd, clearly irrational or evidently not in accordance with reason.
V. Disposition:
¶ 45 I would dismiss the appeal and, following the usual rule in Tribunal Appeals, I would do so without costs.
T.A. CROMWELL J.A.
Concurred in:
M. MacDONALD C.J.N.S.
E.A. ROSCOE J.A.