WCAT WCAT Decision Number: A1800306 (March 13, 2019) · saw that A had “unfriended” the worker. As a result, A’s social media posts did not appear on the worker’s media feed

WCAT

WCAT Decision Number: A1800306 (March 13, 2019)

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Workers’ Compensation Appeal Tribunal 150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898

DECISION OF THE WORKERS’ COMPENSATION APPEAL TRIBUNAL

Introduction

[1] The worker filed a claim for compensation for a mental disorder with the Workers’ Compensation Board1 (Board) on November 16, 2016. The worker alleged that she had been bullied by her co-workers, both in the workplace and through social media, between September 17 and November 21, 2015. The worker also alleged that her employer’s failure to respond to her complaints of bullying and harassment contributed to her mental disorder.

[2] In a decision letter dated March 28, 2017 the Board denied the worker’s claim as she had filed her application for compensation more than one year after the date of the incidents reported, contrary to the Workers Compensation Act (Act). The Board found that the described behaviours of the co-workers did not constitute significant workplace stressors or traumatic events and that the described behaviours of the employer were excluded from consideration under the Act.

[3] The Board’s decision to deny the claim was confirmed on review on December 27, 2017 (Review Reference #R0223190). The review officer found that the worker’s claim was filed within the one-year time limit. However, the co-workers’ behaviours did not constitute bullying and harassment and the employer’s actions constituted employment decisions which were excluded under the Act.

[4] The worker now appeals to the Workers’ Compensation Appeal Tribunal (WCAT).The worker’s appeal proceeded by way of oral hearing on June 18, 2018. The hearing was attended by the worker and her representative, as well as a representative of the employer. Following the oral hearing both parties provided written submissions. Issue(s)

[5] Is the worker entitled to compensation for a mental disorder pursuant to section 5.1 of the Act? Jurisdiction

[6] This appeal is authorized under subsection 239(1) of the Act, which permits appeals of Review Division findings regarding compensation matters to WCAT.

[7] The standard of proof is the balance of probabilities, subject to section 250(4) of the Act which states that if the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the appeal tribunal must resolve that issue in a manner that favours the worker.

1 operating as WorkSafeBC

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[8] I am bound to apply the published policies of the board of directors of the Board, subject to the provisions of section 251 of the Act. The Rehabilitation Services and Claims Manual, Volume II (RSCM II), contains the published policy applicable to this appeal. Relevant Statutory Background

[9] Section 5.1(1) of the Act provides that a worker is entitled to compensation for a mental disorder that does not result from an injury if the mental disorder is either a reaction to one or more traumatic events or is predominantly caused by a significant workplace stressor or a cumulative series of stressors. The traumatic event or significant workplace stressor(s) must be identifiable and must arise out of, and in the course of, the worker’s employment.

[10] The Act sets out that the mental disorder must be diagnosed by a psychologist or psychiatrist and must be a condition described in the applicable version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM)2. The mental disorder is not compensable if it is caused by a decision of the worker’s employer relating to the worker’s employment, under section 5.1(1)(c) of the Act, except potentially in a situation where the manner in which the decision is made or delivered constitutes bullying and harassment. Background and Evidence

[11] I have reviewed all of the evidence on the worker’s claim file, her submissions to the Review Division, to WCAT, and new evidence presented on appeal. I will only summarize and refer to that evidence necessary to explain, and give context to, my decision.

[12] The worker started working for the employer, an insurance company, in 2004. In December 2014 the worker started a new role, as a claims adjuster in training, along with 17 other adjusters in training. The team worked together in an open office environment, with no dividers between the workstations/ desks. As such, the claims adjusters could hear each other’s telephone conversations with the clients. There were private booths available for the claims adjusters to use for more difficult telephone conversations.

[13] At the oral hearing the worker talked about co-worker Q, who was her assigned “buddy”. Q took care of the worker’s files in the worker’s absence. The worker testified that Q was friends with co-workers A and Z. All of them were part of the same team of adjusters in training. Q, A, and Z would invite the worker to go for coffee with them or offer to bring back a coffee, or a cookie, for the worker.

[14] In her November 16, 2016 application for compensation the worker says that she was bullied by these three co-workers between September 17 and November 21, 2015. She described silent bullying, being ridiculed in front of her co-workers, and being threatened on a social media platform. The worker wrote that she felt humiliated, intimidated, offended, and psychologically unsafe. The worker reported that she had informed her direct manager of the co-workers’ behaviours around the time that they occurred, but did not file a formal written complaint with her employer until October 2016.

2 The current version is the DSM-5.

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[15] The worker spoke with a Board case manager on November 23, 2016 and again on January 23, 2017. The worker also provided lengthy written submissions, including a detailed statement of facts, to the Board on December 9, 2016. I have summarized the worker’s evidence below. Team Meeting

[16] At a team meeting on Monday, September 14, 2015, the worker raised the issue of workload. Only one other co-worker supported her in the meeting. After the meeting four other co-workers approached the worker and advised that they had spoken with the managers about the issue of workload personally. The worker was surprised that her co-workers had not supported her in the meeting. She felt shunned by her peers. Interaction with Co-Worker A

[17] The worker recalled having a difficult, 30-minute long, telephone conversation with a client around 3:15 p.m. at her desk on September 17, 2015. According to the worker, during the telephone call co-workers A, Q and Z were whispering, laughing, rolling their eyes and looking in the worker’s direction. They were at co-worker A’s desk, which was two desks in front of the worker’s desk. The worker believed the three were listening to her conversation and mocking her. By the time the worker finished the telephone conversation all three co-workers had returned to their desks.

[18] At the oral hearing the worker said that she knew that A, Q and Z were talking about her as their giggles were synchronized to the worker’s responses to the customer on the telephone.

[19] In her detailed statement provided to the Board in December 2016, the worker wrote that the whispering and giggling about the worker between the three co-workers had happened before.

[20] The worker spoke with her work friend and colleague, who sat at the desk in front of the worker. The worker stood up from her desk and approached her friend’s desk. Co-worker A then told the worker that she could have spent less time on the telephone call. The worker asked what A meant. A then told the worker that she “went on and on about this issue”. The worker recalled that A was sitting in her chair, which was turned around from her desk, and was approximately three metres away from the worker. As A was speaking, she winked and “smirked” at someone behind the worker. The worker asked A who she was winking at. The worker turned around to see co-worker N, who was smiling but then became serious when the worker turned around to look at her. N sat in the desk behind the worker’s and is not one of the three identified co-workers accused of bullying the worker. The worker said that, after she saw A winking at someone, her mind went blank.

[21] The worker then told A that, if she thought she could do a better job than the worker, A could take the worker’s challenging file and the worker would take two files from A. The worker said that she said this with a smile. A threw up her hands and told the worker to forget about it, that she “just didn’t get it”.

[22] The worker acknowledged that her conversation with A was loud and that other people in the office became quiet while the worker and A were talking. The worker acknowledged that, after the conversation, the worker and her friend rolled their eyes about A. The worker said that the

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office was quiet and there was tension in the air for the remainder of the work day. At the oral hearing the worker recalled that no one in the office said good-bye to her that day.

[23] The worker took Friday, September 18, 2015 as a pre-planned vacation day. The Sign

[24] When the worker arrived at work on Monday morning, September 21, 2015, she said “Good Morning” to A and Q, but neither of them returned the greeting. The worker felt that she was getting the “cold shoulder” from those two co-workers. She saw that A had printed out the word “Hooooore” on a piece of paper and pinned it to the wall of her cubicle above her computer monitor. Social Media Postings

[25] At approximately 4:30 a.m. on September 22, 2015 the worker looked at a social media site and saw that A had “unfriended” the worker. As a result, A’s social media posts did not appear on the worker’s media feed. The worker went to A’s profile page on the social media site and saw that, at 9:24 p.m. on September 17, 2015, A had posted the word “Hooooore” and tagged Q and Z. A also posted a meme (a character and words) that said: “Don’t mistake this fake smile and professional body language, I’d punch you in the throat if I knew I wouldn’t lose my job.” Q and Z had liked both posts. At 11:15 p.m. that evening Z posted a comment “I feel like I’ve heard that before… Want a cookie with that?” A and Q had both posted laugh emoji’s to Z’s comment.

[26] The worker believed that the social media posts from A and Z were about her as they were posted on the same day that A and the worker had their interaction at work. The worker believed that A had unfriended her on the social media site so that the worker would not see the social media interactions. The worker felt threatened by the “punch in the throat” comment. She was humiliated, intimidated and offended. The worker felt psychologically unsafe.

[27] At the oral hearing the worker explained that she interpreted A’s social media posts as calling her a “whore” and threatening to punch her in the face. The worker was upset by the social media posts and found it difficult to focus at work.

[28] The worker told the Board that other co-workers unfriended her on the social media platform, and blocked her from viewing their profiles. The worker understood that one of her co-workers told someone at another office that there was a “harassment incident” at the worker’s office. The worker felt that the social media incident led to rumours being spread about her and caused her co-workers to refrain from associating with her on social media. Reaction of Management

[29] The worker met with her direct manager between September 23 and 25, 2015, explaining the interaction with A, the social media posts, and the sign posted on A’s desk. The manager told the worker that it did not appear to her that the posts were about the worker and, in any event, there was nothing the manager could do about it as the posts had occurred outside of the workplace.

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[30] The manager talked to A about the conversation between A and the worker at work on September 17, 2015. The manager then brought the worker in on the conversation, but told her not to raise the social media posts with A.

[31] In the meeting with A, the worker explained that she felt belittled by the words and tone that A had used in front of their fellow co-workers on September 17, 2015. She asked A to provide feedback in a more respectful manner and A agreed. The meeting ended with apologies and hugs between the worker and A. However, the worker continued to be upset by the social media activity. She felt betrayed that other co-workers had seen, and liked, A’s social media posts.

[32] In her detailed statement of facts provided to the Board on December 9, 2016 the worker stated that suggestions she made at team meetings following the September 17, 2015 incidents were discounted by her co-workers, particularly A. Other Social Media Posts and Management’s Reaction

[33] On October 8, 2015 the worker was speaking with her friend at work about co-worker A. The friend checked the social media site and showed the worker that, at 8:54 p.m. on September 17, 2015 A had posted a meme that said “I feel like I practically know you because of your ear splitting conversations.” The meme had been liked by Z and two other co-workers from the worker’s office. At 11:36 p.m. on September 17, 2015 Z had posted a meme that said “I couldn’t help but overhear your conversation because I was eavesdropping”.

[34] The worker’s son underwent surgery around October 19, 2015 and the worker took some time off work. At the oral hearing the worker explained that her son had a congenital condition which required several rounds of surgery and medical attention. Her son underwent surgery in August 2015 and again in October 2015.

[35] When the worker returned to work after the surgery, she began to work in a private booth. The worker explained that this was not to fall behind in her work, but also because she felt threatened and intimidated by the social media posts.

[36] On October 20, 2015 the worker emailed her manager about the other social media posts which the worker characterized as unprofessional. The worker told her manager that the posts were affecting her stress level. The worker suggested that, perhaps, a review of the code of ethics during a staff meeting would be beneficial.

[37] In turn the manager forwarded the worker’s email to more senior management. The worker’s direct manager advised the senior manager that the worker felt that the posts were unprofessional and that she felt that she was being bullied. The worker had, over the past few days, been working from an interview booth as she felt that her phone calls were being judged by some of her colleagues.

[38] The worker explained to the Board that she felt that her employer refused to investigate or deal with the social media postings as the worker had not proven that the posts were about her. The worker was told by management to return to working at her desk. She asked to be moved to another location but was told she had to continue to sit with her training group, which included co-workers A, Q, and Z.

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[39] On November 19, 2015 a union steward met with A, Q and Z to discuss the worker’s concerns. Q left the meeting and the worker joined the meeting. The worker recalled that A was crying. The worker explained how she was hurt and intimidated by the social media posts. A and Z told the worker that they had no idea how she had felt; they both thought the worker was worried about her son’s surgery and not the social media posts. A told the worker that the posts were about a customer, and not the worker. A acknowledged that she had unfriended the worker following their heated exchange at work on September 17, 2015. A and Z told the worker they were worried about posting anything on the social media site for fear the worker would interpret any posts to be about her. The worker explained that, going forward, she expected a respectful and supporting work environment.

[40] By November 21, 2015 the worker saw that Q had also unfriended her on the social media platform. Furthermore, co-workers Q, A and Z had blocked the worker from seeing their profiles on the social media platform. On November 30, 2015 the worker saw that another co-worker had unfriended her on the same social media platform. The worker felt isolated.

[41] In January 2016 the worker and her union requested that the worker be, temporarily, moved to another location to assist her in returning to work, for medical reasons. On the advice of the employer’s disability claims manager, the worker’s direct manager denied the worker’s request to be relocated, as she continued to be part of a training group and there was no medical indication that such an accommodation was necessary for the worker. The emails between the management team in January 2016 refer to the worker’s belief that she was being bullied and harassed by her co-workers. Other Factors

[42] At the oral hearing the worker recalled that, around September 2015, she started to develop pain behind her right ear. She was diagnosed with a parotid tumour. A biopsy indicated that the tumour was benign. The worker had the tumour surgically removed in May 2016 and the benign nature of the tumour was confirmed.

[43] On October 2, 2015 the worker saw Dr. Lorenzon, her family doctor, about the tumour. On October 30, 2015 Dr. Lorenzon told the worker that the biopsy results indicated that the tumour was benign. The doctor documented that the worker continued to feel extremely stressed about her medical condition, her son’s medical condition, her high workload and cyberbullying by her co-workers.

[44] On November 23, 2015 the worker left work on her doctor’s recommendation. The worker recalled that her family doctor was concerned about both her medical condition and the effects the workplace bullying was having on the worker. Medical Evidence

[45] According to the November 23, 2015 chart note of Dr. Dascalu, general practitioner, the worker reported ongoing stress at work, that her son needed further surgery, and ongoing medical conditions of her own. The doctor recommended two weeks off work, given all the stress from the worker’s medical conditions and her son’s upcoming surgery. By December 3, 2015 the

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worker was feeling anxious, not sleeping, and was run down. She was concerned about her tumour, her son’s medical condition, and reported that the bullying at work was escalating.

[46] On January 7, 2016 the worker saw Dr. Lorenzon. The worker reported increased stress from bullying at work and stress at home. Dr. Lorenzon also noted the worker’s medical issues and her son’s medical issue. On January 25, 2106 Dr. Lorenzon noted that the worker felt isolated and belittled, and was seeing a counsellor. The worker feared going back to a toxic work environment. In her chart note of February 17, 2016 Dr. Lorenzon noted the worker’s pre-operative anxiety, which continued through to at least April 2016. Dr. Lorenzon also noted that the worker’s pre-menopausal symptoms aggravated her situation.

[47] The worker provided an August 11, 2016 report of Dr. Spivak, psychiatrist. Dr. Spivak documented the worker’s report of a cancer scare and a new role at work, followed by challenges with her co-workers. The worker reported that her co-workers often talked about her and imitated her while she was on the phone. The worker reported an incident in September when she was mocked by a group of people who were clearly snickering about her then winking at each other. She reported subsequently being unfriended by one of the group on a social media platform but the worker was still able to see that the co-worker had posted a cartoon mocking the worker. The worker described a threatening tone to the joke and the use of the word “whore” in a slang fashion.

[48] Dr. Spivak noted that the worker spoke in vague terms about how her symptoms came on and appeared to minimize the impact of the work situation. The doctor determined that the worker developed progressive symptoms, starting in the fall of 2015. The worker believed that multiple factors led to her disability from work but Dr. Spivak noted the worker was highly focused on the work issues and determined that the worker’s ability to identify the driving force behind her psychological symptoms was impaired.

[49] Dr. Spivak assessed the worker with Major Depressive Disorder and Adjustment Disorder with mixed anxiety and depression, as well as obsessive-compulsive personality traits, parotid tumour, menopause and severe work-related stressors.

[50] The worker saw Dr. Newman, registered psychologist, on September 26, 2016. The worker explained that she had experienced bullying and cyberbullying at work and that nothing improved when she involved management. The worker reported feeling nauseated whenever she read the social media posts referring to her as a whore and discussing physical violence against her.

[51] On October 25, 2016 the worker told Dr. Newman that her co-workers’ social media posts were publicly humiliating and implied that she was loud. On November 15, 2016 the worker worried that she was a target for others. Submissions to the Board

[52] In her submissions to the Board the worker argued that her concerns about workplace bullying were discounted by her manager and never fully investigated, resulting in her mental disorder. She explained that, until she received the report from Dr. Spivak in September 2016, she did not

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have the courage and confidence to face the conflict. She had not earlier filed her complaint with the employer, or applied for compensation, due to her mental disorder.

[53] In a telephone conversation with a Board case manager on March 23, 2017, the worker argued that she had filed her claim for compensation within the one-year time limit set out under the Act. She said that having her co-workers block her on social media counted as workplace bullying and harassment, as did the November 19, 2015 meeting with her co-workers. The worker also said that she was unaware that her disabling symptoms were related to work until she saw Dr. Spivak’s report. Employer’s Evidence

[54] The employer filed a November 22, 2016 report of injury with the Board. It says that it was first notified of the bullying and harassment on October 13, 2016. It says that the medical information provided by the worker’s doctor during her absence from work did not indicate any work-related reasons for her absence.

[55] On February 17, 2017 the employer provided to the Board a summary of the findings of its investigation into the worker’s bullying and harassment complaint. The employer noted that the worker provided a detailed written report to the employer on October 13, 2016. In an interview Q denied bullying the worker and maintained that the social media posts were not in reference to the worker but in regard to a customer. The employer issued a letter of expectation to Q regarding the employer’s respectful workplace policies.

[56] In her interview A acknowledged the verbal disagreement with the worker on September 17, 2015 but denied that any of her social media posts were about the worker. At the end of its investigation the employer determined that the posts were, likely, related to the worker. It determined that the posts were inappropriate and in violation of its workplace policies. The employer issued a letter of reprimand to A in regard to her social media posts. Adjudication and Review

[57] In the March 28, 2017 decision letter the case manager determined that the incidents described as bullying and harassment had not occurred within one year of the worker’s November 16, 2016 application for compensation, as required under section 55 of the Act. The worker had failed to establish that there were special circumstances that precluded her from filing the claim within that one-year time limit. As such, the worker’s claim was statute-barred.

[58] The case manager went on to consider the specific allegations of the worker. She found that the manner in which the employer responded to the worker’s reports of abuse and harassment were excluded from consideration under the Act and Board policy as they were decisions of the employer, relating to employment. The case manager found that being unfriended and blocked on social media did not constitute either traumatic events or significant workplace stressors. The meeting of November 19, 2015 constituted interpersonal conflict, but did not rise to the level of bullying and harassment.

[59] The worker disagreed with the decision and requested a review. In written submissions dated July 4, 2017 the worker argued that she had filed her application for compensation within one

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year of the last in a series of injuries, pursuant to Board policy. She submitted that the November 19, 2015 meeting was the last in a series of injuries.

[60] Alternately, the worker argued that the date of injury occurred when the cumulative stressors compounded to result in a psychological injury. She submitted that her psychological injury occurred either at the November 19, 2015 meeting, or on November 21, 2015, which was the first day of her resulting disability.

[61] In written submissions dated November 17, 2017 the worker relied on the report of Dr. Spivak in arguing that her mental disorder was predominantly caused by the bullying and harassment she experienced at work and on social media. She submitted that her medical conditions, and those of her son, had not disabled her from working. The worker submitted that the employer’s lack of response to her reports of bullying and harassment was an aggravating issue which was not excluded from consideration under Board policy.

[62] The employer provided written submissions to the Review Division on December 5, 2017. It submitted that the worker was not precluded from submitting an application for compensation prior to November 16, 2016. It also argued that the worker’s disability was not related to bullying and harassment, but to her ongoing medical investigation, as set out in Dr. Lorenzon’s medical records. The employer provided a copy of a January 8, 2016 email from the worker to the employer in which the worker wrote that her absence from work was not, in any way, related to the incident that occurred with her co-workers. She wrote that her doctors had recommended that she continue working at a different location due to her medical conditions.

[63] The employer also submitted Dr. Lorenzon’s medical notes, dated January 4 and 25, 2016 recommending that the worker remain off work. In both notes Dr. Lorenzon wrote that the worker was under a lot of stress related to her medical condition and was waiting for surgery.

[64] The employer argued that the behaviours and incidents described by the worker did not constitute bullying and harassment and were more appropriately characterized as interpersonal conflict between the worker and her co-workers. It submitted that the social media posts and comments were not work-related issues. The employer argued that Dr. Spivak’s report should be given little weight as it was based on the worker’s subjective reporting of the events, rather than any independent investigation or review of medical records.

[65] In rebuttal submissions dated December 20, 2017 the worker acknowledged that she had not previously told her employer that her absence from work after November 23, 2015 was related to the bullying and harassment as she did not want her employer to treat her any differently upon her return to work. She submitted that she had previously taken medical leave and had returned to different treatment from her employer. The worker submitted that her manager was already aware of her increased stress as a result of the behaviours of her co-workers in any event.

[66] The worker submitted that her medical condition turned out to be less serious than anticipated, as her tumour was benign. She submitted that her son had been experiencing the same medical condition since birth. As such, she argued that neither of those two conditions had disabled her from working on November 23, 2015.

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[67] The worker submitted a December 19, 2016 emailed statement. She wrote that she had asked Dr. Lorenzon to remove any reference to workplace bullying from the January 2016 disability notes to the employer. The worker explained that she had taken sick leave in 2011 and 2012 resulting from her reaction to being yelled at by a manager. In 2013 and 2014 the worker unsuccessfully applied for several different jobs with the same employer. The worker wrote that she was passed over for less senior candidates. She had been told by one manager that he had heard negative things about the worker. Another manager raised the worker’s sick leave history with the employer. The worker thus felt that any sick leave she took would be held against her by the employer.

[68] In the December 27, 2017 Review Division decision the review officer found that he had jurisdiction to consider the worker’s claim, and that it was not barred by section 55 of the Act, as the last incident in the cumulative series described by the worker occurred within one year of filing her claim on November 16, 2016.

[69] The review officer went on to find that the incidents described by the worker were not significant stressors. He found that the social media postings were not aimed at the worker. The review officer concluded that the co-workers’ whispering, giggling, and winking was not behaviour intended to humiliate or intimidate the worker; the pattern of behaviour did not constitute bullying and harassment. The review officer also found that the employer’s decision that the co-workers were not bullying and harassing the worker was an employment decision and thus excluded from consideration under the Act. New Evidence and Submissions

[70] On May 28, 2018 the worker provided new evidence in the way of a series of emails between the worker, her manager and the union.

[71] On November 18, 2015 the worker’s manager noted that the worker was struggling to keep up with her workload. The worker would be kept at 75% of a full file load until the New Year.

[72] On January 6, 2016 the employer’s disability claims manager advised the worker’s direct manager that the worker was working with the union to get moved away from her office due to bullying and harassment by her co-workers.

[73] In an email dated January 21, 2016 the disability claims manager suggested to the union representative that the worker had no business reason to interact with her co-workers and so could continue to work in the office.

[74] On March 3, 2016 the employer’s disability claims manager completed a questionnaire for the employer’s long-term disability insurer regarding the worker. The insurer noted the worker’s allegations of bullying and harassment at work and asked whether the complaints had been resolved. The disability claims manager advised that there had been no formal investigation, as there was nothing directed at the worker. She wrote that if a co-worker chooses to not be friends with the worker on a social media platform that does not raise a bullying or harassment issue. The disability claims manager advised that the worker had not raised any formal complaint and that there was no workplace conflict to address.

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[75] On April 27, 2017 Dr. Newman authored a “confidential draft” report, addressed to the employer’s disability claims manager. In her report Dr. Newman summarized the worker’s report of the social media posts, co-workers liking the posts, the sign posted on A’s workstation, and news of the incident spreading to another branch of the employer organization. Dr. Newman found that management response to the worker’s allegations focused on whether the social media posts were about the worker, or were threatening in nature. She wrote that the worker’s experience of being bullied, in conjunction with such an unsupportive and ineffective management response combined to instill in the worker feelings of intimidation, humiliation, invalidation and a lack of support in the workplace.

[76] The worker provided a copy of the employer’s May 31, 2017 investigation report. The employer noted that co-workers A and Q denied mocking the worker during the telephone call of September 17, 2015. A recalled that the worker had asked for feedback on the phone call. In speaking with other employees, the employer was advised that both the worker and co-worker A were “strong personalities” and that the disagreement between them on September 17, 2015 quickly escalated into a scene. The employer concluded that neither A, nor the worker, appeared to be blameless for the disagreement.

[77] Co-worker A denied that the social media posts were about the worker. She said that the word “hooooore” was an expression used between herself, Q and Z, and originated from a song lyric. It was not directed toward the worker in A’s social media post. Other employees in the workplace confirmed that A, Q and Z used the expression “hooooore” amongst themselves prior to the September 17, 2015 incident. The employees interviewed believed that the social media posts (other than the word “hooooore”) were likely about the worker. The impression of other employees was that the worker refused to let go of the workplace disagreement, the social media posts, and the perceived belittling by A, Q and Z.

[78] The employer determined that the social media posts were likely about the worker, given the close timing with the workplace disagreement and the general impression of other employees at the workplace. The employer found that the posts were a public statement that had a negative impact on the worker and, as such, amounted to conduct which was known, or ought to have known, would be likely to offend the worker, contrary to the employer’s Respectful Workplace Policy. Other than the social media posts, the employer found that A, Q, and Z did not engage in any conduct that was known, or ought to know, would have been likely to offend the worker.

[79] In a signed statement dated May 28, 2018 statement co-worker N set out that she had worked as a claims adjuster in training with the worker. N’s desk was situated directly behind the worker’s desk in September 2015. N recalled that, on September 17, 2015 the worker had been upset on the phone with a customer. Following the phone call A “piped in” for some reason and the worker and A went back and forth arguing for approximately five minutes.

[80] In her statement N wrote that, also on September 17, 2015, she saw that A shared a social media post. N did not recall what the post said but believed that it was directed at the worker because it was relevant to what had happened between them that day.

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[81] On May 30, 2018 the worker provided further new evidence in the way of information from the Workplace Bullying Institute (WBI) website.3 The WBI defines workplace bullying as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more persons”. The WBI sets out that workplace bullying includes abusive conduct that is threatening, humiliating, or intimidating, as well as work interference and verbal abuse. The WBI sets out that workplace bullying escalates to involve others who side with the bully. The website explains how employers’ responses to workplace bullying, including not punishing the bullies, can perpetuate the problem. It also explains why certain workers are targeted by bullies at work.

[82] The frequently asked questions page from the WBI website sets out that workers’ compensation coverage will deny a mental stress claim following a lengthy “sham” investigation involving a “humiliating” psychological exam by one of the employer’s “hack” psychologists. I note that the website refers to the American workers’ compensation systems.

[83] In a May 28, 2018 signed statement the worker’s friend at work confirmed that she sat at the desk directly in front of the worker’s desk. On September 17, 2015 the friend witnessed the worker speaking with a customer loudly enough that the friend, and other co-workers in the area, could hear what the worker was saying. After the telephone call was over, the friend heard A comment to the worker. The friend interpreted the comment as a criticism of the way in which the worker was doing her work.

[84] The friend understood that the worker was experiencing some personal and family issues which were stressful. She was not surprised that the worker was upset with A’s comment.

[85] The friend wrote that she saw a meme posted by A on a social media site in the evening of September 17, 2015. The friend immediately thought the meme was about the worker and directly related to what had happened at work that day as the meme mentioned being loud. The friend saw that Z had commented on the post, using words that were often used between A, Q and Z. The friend thought the comment was an inside joke between A, Q and Z.

[86] The worker provided a June 12, 2018 medical legal report from Dr. Newman. Dr. Newman wrote that it was outside the scope of her practice to provide diagnoses and thus she was unable to infer causality to diagnoses made by other service providers. She could, however, provide her perspective and observations to assist in inferring diagnostic causality. Dr. Newman understood that Dr. Spivak had diagnosed the worker with Major Depressive Disorder/Adjustment Disorder with mixed anxiety and depression in August 2016.

[87] In her report Dr. Newman explained that the worker experienced mobbing and cyberbullying. Mobbing refers to more than one individual engaging in bullying behaviour while cyberbullying refers to using the internet to do so. Dr. Newman opined that A, Q and Z engaged in mobbing behaviour by posting on social media. The posts were noted to include an allusion to a physical threat as well as shaming and name calling in the word “hooooore”. Dr. Newman explained that bullying behaviour can take the form of subtle, non-verbal behaviour and tactics understood to be directed at the target but ambiguous enough that the behaviour can later be explained as a joke, misunderstanding, or not intended for the target. She pointed out that A’s behaviour of

3 Found at www.workplacebullying.org/individuals/problem/being-bullied/

http://www.workplacebullying.org/individuals/problem/being-bullied/

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winking and smirking during the verbal interaction with the worker (on September 17, 2015) involved other co-workers which moved the disagreement away from conflict and toward abuse.

[88] Dr. Newman noted that the worker attempted to deal directly with the behaviour, remove herself from the area and attempted to obtain assistance from her manager and her union. Dr. Newman noted that the worker demonstrated symptoms consistent with emotional shock or traumatic stress when recalling the behaviours of her co-workers. The psychologist concluded that the worker’s reported experience at work was in keeping with having been a target of covert bullying, in a mob context, both in person and online. The worker’s symptoms of anxiety and depression were commensurate with having experienced covert bullying, mobbing and cyberbullying, and being unable to escape or somehow ameliorate the situation.

[89] At the oral hearing the worker explained that she felt like no one at work believed her that the social media postings were about her. She felt invalidated by her manager’s refusal to deal with the social media posts. The worker was fearful that her employer would hold her sick leave against her in the future. She felt that the employer had already held her sick leave against her, in denying her January 2016 request for relocation to a different office.

[90] The worker testified that she did not want her employer to know that she went on sick leave in November 2015 due to the bullying and harassing behaviours of her co-workers. The worker felt that everyone at work knew about the harassment, yet management did nothing to address it.

[91] Following the oral hearing, I requested that the parties provide their submissions in writing.

[92] In submissions dated July 10, 2018, the worker argued that she was subjected to bullying behaviour by A, Q and Z, and her employer.

[93] The worker submitted that A’s behaviour in the office on September 17, 2015 was abusive, as she winked and smirked at co-worker N during the discussion. The worker submitted that the social media post about punching the worker in the throat was clearly threatening and that the posts related to loud conversations were abusive. The worker argued that the posts were intended to shame the worker and attract public support for the shaming. The worker argued that, as the posts were clearly related to the worker, as they were created on September 17, 2015. The worker relied on the statements provided by two other co-workers who believed that A was bullying the worker. The worker also relied on Dr. Newman’s opinion that the worker’s experience was consistent with having been a target of bullying.

[94] The worker submitted that, following the September 2015 incidents, the bullying conduct of body language, comments and criticism continued until she could no longer take it and moved to work in a private booth.

[95] The worker submitted that, although Dr. Lorenzon’s notes to the employer did not refer to workplace bullying and harassment, the doctor’s chart notes at that time established that the bullying and harassment was playing a significant role in the worker’s stress levels.

[96] The worker submitted that the employer’s failure to act on the worker’s complaints of the bullying and harassing behaviour constitutes a significant work-related stressor under section 5.1(1)(a)(ii) of the Act. The worker submitted that, in failing to act on her complaints, the

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employer breached its legal obligation to investigate the complaints and provide the worker with a healthy and safe workplace. She argued that the employer’s faiurel to act demonstrated blatant disregard for the worker and thus, was not caught within the labour relations exclusion established by section 5.1(1)(c) of the Act. The worker noted that, when the employer finally did investigate the worker’s allegations, it found that the social media posts were likely related to the worker, and that they contravened the employer’s respectful workplace policy.

[97] The worker referred to WCAT Decision A1601110 and WCAT-2014-00675 in arguing that, if there was employer misconduct in the course of labour relations, like bullying and harassment, this would be an exception to the exclusion of employer decisions found in section 5.1(1)(c) of the Act. Referring to WCAT Decision A1601845 the worker argued that, where the employer’s conduct was egregious, this would also be an exception to the labour relations exclusion found in the Act. The worker argued that, in repeatedly not acting on the worker’s report of cyberbullying, the employer acted in bad faith and that the worker’s psychological injury was a direct consequence of this misconduct. The worker argued that the employer knew that the worker was suffering psychological harm as a result of workplace bullying, yet refused to act on the worker’s complaint, until October 2016.

[98] The worker relied on Dr. Spivak’s report in arguing that the driving force behind her anxiety and depressive symptoms was the workplace bullying she experienced, and management’s lack of action.

[99] The worker argued that she had filed her claim for compensation within one year of her date of injury, if her date of injury was determined as of her date of disability (November 21, 2015), or as of the date of the last incident in the series of events (November 19, 2015).

[100] The worker submitted that she may not have, initially, been aware that her anxiety was directly related to the workplace bullying. She submitted that she became aware that her psychological condition was caused by the workplace bullying and harassment when she received a copy of Dr. Spivak’s August 2016 report.

[101] The employer provided written submissions dated July 31, 2018. It argued that the interactions between the worker and her co-workers were not bullying and harassment but the result of a personality conflict. The employer submitted that the social media posts did not name the worker or refer to a work situation and that the word “hooooore” was a reference to song lyrics that had been used by the co-workers prior to the September 17, 2015 workplace incidents. The employer argued that, beyond the social media posts, there was no conduct that was known to, or should have been known to, likely offend the worker.

[102] The employer submitted that it did attempt to address the worker’s concerns regarding her co-workers, in the September 23, 2015 meeting with A, as well as the November 19, 2015 meeting with both A and Z. It argued that there was no evidence that the meetings were conducted in an abusive or threatening manner.

[103] The employer submitted that the medical information it received while the worker was away from work after November 20, 2015, did not indicate that the worker’s leave was related to workplace conflict. The worker specifically denied such a connection in her January 2016 email to the employer’s disability claims manager. The employer was unable to reconcile the worker’s

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desire for the employer not to know that her stress was related to the workplace bullying with the worker’s prior reports to her employer about the workplace bullying. The employer further argued that, according to the medical chart notes provided, “stress in the workplace” was one of a number of medical issues experienced by the worker, in addition to personal issues and workload.

[104] The worker provided rebuttal submissions on August 30, 2018. Relying on the reports of Dr. Spivak and Dr. Newman the worker reiterated her argument that the conduct of her co-workers went beyond a personality conflict and constituted bullying. The worker submitted that she stood up to A at work on September 17, 2015, resulting in A’s bullying behaviour escalating. The worker argued that she did not act in retribution, but tried to handle the situation in a professional and respectful manner.

[105] The worker did not dispute that the three co-workers used the word “hooooore” prior to the September 17, 2015 incident, but argued that there was still a nexus between the office incident and the threatening social media post. The worker argued that A’s behaviour was purposely ambiguous.

[106] The worker argued that the employer repeatedly failed to take steps to investigate the worker’s complaint of cyberbullying, contrary to the Act and Board policy, as well as contrary to the employer’s own policy and the collective agreement with the worker’s union. The worker submitted that she spoke with her manager about the issue on September 25, 2015, emailed her manager on October 20, 2015, isolated herself in an interview booth on the same date, and in January 2016 requested that she return to work in a different location than the alleged bullies. The worker’s manager forwarded the worker’s October 20, 2015 email to senior management but, in January 2016, on the advice of the disability claims manager, denied the worker’s request for accommodation. The worker pointed out that, in March 2016, the employer’s disability claims manager advised the long-term insurer that the workplace conflict was resolved yet had, two months earlier, denied the worker’s request, on medical advice, to be relocated at work. The worker argued this showed that the employer was aware of the worker’s allegations of bullying and harassment, minimized them and disregarded the recommendation of the worker’s family doctor.

[107] Relying on the January 2016 emails between the managers, the worker argued that the employer knew that the worker was unable to return to work at her usual location due to the bullying and harassment of her co-workers.

[108] The worker argued that she was unable to face going back to work on November 23, 2015 as she felt that the situation at work had worsened. She pointed out that A and Z had, on November 19, 2015, further bullied and harassed her by denying that the social media posts were about her and expressing their concern about the worker’s interpretation of everything else they posted on the social media site. Within two days the other bully unfriended the worker on the site. Then the worker learned that another co-worker unfriended her on the site and heard that the co-worker had told someone at another office location that there was a “harassment incident” at the worker’s office. The worker could not face going back to work.

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Preliminary Issue

[109] In her final submission the worker requested that, if her claim was accepted by WCAT, the Board be directed to reimburse the worker the cost for psychological treatment she has sought since November 23, 2015. That issue is not properly before me on appeal. There has been no initial adjudication of that matter.

[110] The only issue before me is whether or not the worker developed a mental disorder arising out of and in the course of her employment. Should the worker succeed in her appeal, then it is up to the Board to determine what benefits, if any, the worker would be entitled to. Reasons and Findings

[111] I find that the worker did not develop a mental disorder arising out of and in the course of her employment. My reasons are set out below. Policy Amendments and the Atkins Decision

[112] The policy applicable to claims under section 5.1 of the Act is found in policy item C3-13.00 of the RSCM II. By resolution of July 12, 2018 (Resolution of the Board of Directors, 2018/07/12-02), amendments to policy item C3-13.00 were made. That resolution provides that the amendments apply to all decisions made by the Board and WCAT respecting claims that involve section 5.1 of the Act made on or after July 23, 2018, including all decisions made, but not finally adjudicated, before July 23, 2018. Accordingly, the amendments apply to this appeal.

[113] In addition to the policy amendments, I am mindful that, on July 13, 2018, the British Columbia Supreme Court issued Atkins v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCSC 1178 (Atkins), which was a judicial review of a WCAT decision on a claim for compensation for a mental disorder under section 5.1 of the Act. In that decision, the worker submitted to the court that WCAT erred in law by applying a test requiring her to prove that the workplace event in question was both subjectively and objectively traumatic. She argued that it should have been sufficient for her to show that the event was traumatic for her.

[114] The court concluded that the WCAT decision was not patently unreasonable. Despite that conclusion the court did not agree with WCAT’s analysis of Board policy regarding whether an event was “traumatic”. Specifically, the court commented on the importance of both subjective and objective elements of the analysis in determining whether an incident occurred and whether it was “traumatic”.

[115] As the court concluded that WCAT’s decision was not patently unreasonable, its comments on the interpretation of Board policy are obiter dictum (statements made in passing). The court considered the issue of whether a described event was traumatic, rather than considering whether a described workplace stressor was significant, which is the issue before me in this appeal. Furthermore, the court addressed the predecessor to the Board’s current policy on mental disorders. While I am not bound to apply the court’s interpretation of former Board policy I find the Atkins decision provides some guidance on the importance of considering both subjective and objective elements in interpreting the Board’s policy on mental disorders.

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[116] I will now turn to my analysis of the worker’s claim for a mental disorder.

A. Was the worker diagnosed with a DSM mental disorder?

[117] Policy item C3-13.00 sets out that section 5.1 of the Act requires that a DSM diagnosis be made by a psychologist or psychiatrist.

[118] Dr. Spivak has diagnosed the worker with Major Depressive Disorder and Adjustment Disorder, both of which are diagnoses found in the current version of the DSM. I find that this criteria has been met.

B. Was there one or more events, or a stressor, or a cumulative series of stressors?

[119] The amended policy item C3-13.00 sets out that, in all cases, the one or more events, stressor, or cumulative series of stressors, must be identifiable. Prior to the recent amendments, the policy set out that the worker’s subjective statements and response to the event or stressors were to be considered as well as information and knowledge provided by other employees. The subjective/objective analysis has now been moved to the section of the policy considering whether the event was traumatic, or the stressors were significant.

[120] I interpret the amended policy to mean that, in the absence of evidence to the contrary, the worker’s subjective statements identifying events or stressors are sufficient to satisfy this criterion.

[121] I am satisfied that the worker has identified a cumulative series of events that occurred between September 14, 2015 and November 30, 2015. Specifically, the worker has described the behaviour of her co-workers at a meeting on September 14, 2015, in the office on September 17, 2015, during a meeting around September 23 to 25, 2015 and in a meeting on November 19, 2015. The worker has also identified social media activities and the employer’s response, or lack thereof, to her complaints, as stressors.

C. Were the work-related stressors “significant”?

[122] Section 5.1(1)(a) of the Act sets out two situations in which a claim for a mental disorder will be recognized as arising out of and in the course of a worker’s employment, as a reaction to one or more traumatic events and/or a reaction to a significant workplace stressor or cumulative series of stressors.

[123] The worker has not claimed that the described incidents/ behaviours are traumatic events but, rather, argues that they are a series of workplace stressors. As such, I will focus my analysis on whether the described incidents are workplace stressors, as contemplated by section 5.1(1)(a)(ii) of the Act.

[124] Policy item C3-13.00 states that a work-related stressor is considered “significant” when it is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment. The policy states that interpersonal conflicts between the worker and his or her supervisors, co-workers or customers are not generally considered significant unless the conflict results in behaviour that is considered threatening or abusive.

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Examples of significant work-related stressors may include exposure to bullying and harassment.

[125] The Act does not define bullying or harassment, and neither does the Board’s policy on mental disorders. As pointed out by the worker, policy item #D3-115-2 of the Board’s Occupational Health and Safety (OHS) Guidelines, commonly referred to as the Prevention Manual, sets out that bullying and harassment:

(a) Includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be intimidated or humiliated, but

(b) Excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

[126] I note that this section of the Board’s Prevention Manual contains policy concerning Division 3 of

Part 3 of the Act. Compensation claims are governed by Part 1 of the Act, and the Board policy set out in the RSCM II. That being said, the definition of bullying and harassment found in the Prevention Manual is very similar to that contained within the Board’s interim Practice Directive #C3-3 (Mental Disorder Claims). The practice directive says that, in general terms, both bullying and harassment reflect conduct that is intended to, or should reasonably have known would, intimidate, humiliate or degrade an individual.

[127] While practice directives are not binding on me, they do provide guidance in interpreting Board policy.

[128] The practice directive states that not all interpersonal conflict that is rude or thoughtless will be considered abusive behaviour. However, conduct that is determined to be threatening or abusive is a significant work-related stressor.

[129] The Board’s prevention policy on bullying and harassment was considered by another WCAT panel in the noteworthy decision WCAT-2014-02791. There the panel went through a detailed analysis of what constitutes bullying and harassment. At paragraph 128 the panel stated:

…when there is conduct alleged to be bullying or harassing, such that the alleged bully/harasser intended to or ought to have known his or her conduct would cause a worker to be humiliated, intimidated, or degraded, there should generally still be some element of threat or abuse in that conduct. Otherwise, interpersonal conflict that is generally not abusive or threatening could be a significant workplace stressor provided it was categorized as bullying and harassment. In the absence of a clear definition of what interpersonal conflict amounts to bullying and harassment, I think it appropriate to consider that bullying and harassment will also generally only be considered significant when there is an element of abuse or threat in that conduct.

[130] I agree with and adopt the reasoning of the panel in WCAT-2014-02791. I find that interpersonal

conflict in the workplace will generally only rise to the level of bullying and harassment when the conduct of concern includes an element of threat or abuse. This is consistent with the Board’s practice directive.

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[131] “Abusive” is defined in the Oxford English Dictionary as “extremely offensive and insulting; characterized by illegality or physical abuse”. It is defined in Black’s Law Dictionary, Eighth Edition, as “characterized by wrongful or improper use”. “Threatening” is defined in the Oxford English Dictionary as “make[ing] or express[ing] a threat to someone or to do something; put at risk; endanger”. “Threat” is defined as “a statement of an intention to inflict injury, damage, or other hostile action, as retribution.” It is defined in Black’s Law Dictionary, Eighth Edition, as “communicating intent to inflict harm or loss on another”.

[132] I pause here to note that I place no weight on the WBI information provided by the worker, setting out definitions of workplace bullying. To begin with, the information provided does not set out the qualifications of the individual who created the information posted on the website. Secondly, the website appears to also contain information dismissing workers’ compensation processes and policies around mental disorder claims without considering the specific law and policies in place in our jurisdiction. The information provided by the worker is not helpful to me in my consideration of the appeal in any way.

[133] The Board’s interim practice directive sets out that, in determining whether a stressor is significant, the worker’s subjective statements and response to the stressor are to be considered. The question is not determined solely by the worker’s subjective belief about the stressor, but involves both a subjective and objective analysis. The practice directive sets out that the test to be met is whether a reasonable person, in the worker’s situation and with the general characteristics of the worker, would expect to find the workplace stressor to be significant.

[134] There is no definition in policy or practice of “general characteristics” or “characteristics of the worker”. The term was considered by another WCAT panel in WCAT Decision A1800049. There the panel considered that “general characteristics” would likely include whether the worker had some physical characteristic (such as a physical impediment) that made them particularly sensitive to certain comments that others might not necessarily find stressful. She also considered that “general characteristics” might include a worker’s past life experiences (such as past abuse, or exposure to war) which resulted in the worker reasonably viewing an event as more stressful than others would.

[135] I agree with and adopt the reasoning of the panel in WCAT Decision A1800049. I find that “general characteristics” can include physical characteristics as well as past life experiences, both personal and work related, which might result in a worker reasonably viewing an event as more stressful than others would.

[136] In this appeal, I consider the worker’s general characteristics to include her concurrent medical conditions of menopause and a tumour, as well as her son’s medical condition. Given the medical records of Dr. Lorenzon and Dr. Dascalu, I accept that the worker was experiencing stress related to those conditions at the time she was exposed to the described behaviours of her co-workers. I must thus consider whether a reasonable person, with these identified general characteristics, would expect to find the described work-related stressors to be significant.

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Team Meeting(s)

[137] I do not find the September 14, 2015 team meeting to be a significant work-related stressor. I accept the worker’s statement that she was only supported by one of her co-workers when she publicly raised the issue of workload in the meeting, despite learning that her co-workers did, privately, support her on this issue. I am not persuaded that, in failing to speak up and support the worker, her co-workers engaged in bullying and harassing behaviour. There is no element of threat or abuse in the described behaviour. Nor do I find that it is beyond the normal pressures and tensions of the worker’s employment.

[138] I pause here to note that the worker submitted that, following the September 17, 2015 incidents and social media posts, her ideas and suggestions continued to be dismissed at team meetings. At the oral hearing the worker stated that A, specifically, dismissed the worker’s suggestion for instituting a different or new business process. The worker did not provide any specific details or dates.

[139] The worker’s evidence did not suggest that A was abusive or threatening in the manner in which she disagreed with the worker’s suggested changes at the team meeting, or that other co-workers were abusive and threatening in their dismissal of the worker’s suggestions for improvement at subsequent team meetings. There is insufficient evidence before me to suggest that such dismissal of ideas is unexpected, or outside of the norm at these team meetings. As such, I do not find that such behaviours rise to the level of bullying and harassment, or otherwise constitute significant stressors. September 17, 2015 Work Incident

[140] I do not find that A, Q or Z engaged in bullying and harassment toward the worker at work on September 17, 2015.

[141] I accept the worker’s statement that A criticized the way the worker handled the lengthy and difficult telephone call the worker had that afternoon. I find that A’s comments to the worker, particularly in front of their co-workers, were rude and inconsiderate. I do not, however, find that A’s actions in this regard were intended to humiliate or intimidate the worker.

[142] While A did speak to the worker in a public forum, I note that is the nature of the office space in which they both work; it is an open office setting and the workers do not have their own private offices in which to have conversations. I note that the worker and her friend at work also had a conversation, at their desks in the open office space, about the telephone call. The difference is the friend was commiserating with the worker while A was criticizing the worker.

[143] I find it significant that A is a co-worker, and not in any position of authority over the worker.

[144] In her statement N said that A and the worker argued back and forth for several minutes. This is not an example of a target standing up to a bully, but of two individuals having a loud, heated exchange about each other’s work.

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[145] I also take into account the fact that the worker had left her desk and gone to her friend’s desk when the conversation occurred with A. I find it likely that the worker was standing during the conversation, while A was sitting in her chair, having turned around from her desk. The worker acknowledged that she and A were both speaking loudly. I find that the worker implied that she could do a better job than A could. It appears to me that both A and the worker were criticizing each other. Although I accept that A initiated the conversation, I do not find that to be bullying and harassment. I find the verbal exchange between A and the worker is interpersonal conflict between two strong personalities.

[146] The worker first raised the issue of the wink and the smirk when she filed her written complaint with her employer in October 2016, more than one year following the incident. It does not appear that any wink or smirk of A was raised by the worker to her manager in September 2015, nor was any such behaviour addressed in the conversation between the worker and A during their September 2015 meeting. Co-worker N, who the worker says received the wink and smirk, does not address any such behaviour in her statement. If the wink and smirk were a predominant part of the interaction between the worker and A on September 17, 2015, I would expect that the worker would have addressed that with A at the time, and that N would have mentioned it in her statement.

[147] I acknowledge that the worker observed A, Q and Z talking and giggling together while the worker was on the telephone call. I acknowledge that it is possible that the three co-workers were talking about the worker and her phone conversation, as the worker acknowledges that her telephone conversation was loud, long, and conducted in an open office. I am not persuaded, however, that such conduct rises to the level of bullying and harassment.

[148] I find it significant that, after the interaction with A, the worker and her friend at work discussed the worker’s interaction with A and rolled their eyes about it. I fail to see how the engagement between the worker and her friend at work regarding A’s conduct is any different than the described engagement between A, Q, and Z during the worker’s telephone conversation. Furthermore, such an interaction between the worker and her friend at work supports a finding that such discussions, eye rolling, and gossiping appears to be part of the normal working environment at this workplace. There is no indication that, at the time, the worker was humiliated or intimidated by the gossiping, eye rolling and whispering, or that she felt threatened or abused, although I accept that the worker may have been upset by the behaviours.

[149] I do not find that the co-workers’ behaviours were abusive or threatening, humiliating or intimidating. They were rude. They were likely annoying to the worker when she was attempting to resolve a conflict with a customer. I do not find, however, that the co-workers’ behaviours go beyond the expected norms of working in an open office environment in a customer service job. I do not find this behaviour to be a significant stressor.

[150] Overall, I find that a reasonable person, with the general characteristics of the worker, would not expect the behaviours exhibited by A, Q and Z at work on September 17, 2015, to be significant work-related stressors.

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September 17, 2015 Social Media Activity

[151] Although the worker saw the September 17, 2015 social media posts on two separate occasions (September 22 and October 8, 2015), all the posts and comments at issue occurred on the same day.

[152] I accept that the posts were, at least in part, about the worker and the events in the office on September 17, 2015. I acknowledge that the worker’s name was not mentioned in the posts or comments to the posts. However, the posts refer to loud conversations and eavesdropping. There is no evidence before me that there were any other loud customer conversations or arguments between co-workers in the office on September 17, 2015.

[153] I find it significant that the meme posted by A referred to losing one’s job for punching someone, which implies conflict in a work situation. There is no evidence before me that A was, on September 17, 2015, experiencing conflict or frustration with any of her other co-workers or customers.

[154] Lastly, A specifically tagged her co-workers, Z and Q, with her posts and used the word “hooooore” which, according to the worker and other employees, was a word that was used between the three co-workers.

[155] Based on all these facts I find it likely that A’s and Z’s posts on social media in the evening of September 17, 2015 were referring to the worker’s telephone call that day at work and the worker’s interaction with A at work that day.

[156] I acknowledge that the employer, ultimately, determined that the social media posts were contrary to its respectful workplace policies. However, the employer’s workplace policies are different than the Board’s policy and practice directive on bullying and harassment. A finding by the employer that A and Z acted in a manner that was likely to offend the worker is not determinative of whether A and Z knew, or should have known, that their conduct would intimidate or humiliate the worker. The tests are different, and should not be treated the same.

[157] I also acknowledge that the worker felt threatened, intimidated, and upset when she read the social media posts. However, the worker’s own subjective interpretation of the events is not determinative of the matter. The test to be met is whether a reasonable person, with the general characteristics of the worker, would expect the social media posts to be significant stressors.

[158] I consider that A’s post about punching someone in the throat was not a direct threat toward the worker. The words were not written by A and the worker was not named. However, I do consider that the post was threatening and abusive in nature. It refers to physical violence, held in check by the possibility of losing one’s job. I take into consideration the heated nature of the exchange between A and the worker at work that day, and how they both insulted the other’s abilities to handle their respective work files. I also take into consideration that the worker was already experiencing some stress related to non-work, medical issues. I accept that a reasonable person, with the personal background and history of a heated exchange with A, would expect to find such a post a significant stressor.

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[159] I agree with the worker that the posts by A and Z referring to loud conversations were abusive in nature. I accept that both A and Z were referring to the worker’s conversations at work that day, both with the customer and with A. I consider that the comments were made, about the worker, in an online forum where her co-workers would read the posts. I find it significant that the employees interviewed by the employer believed those posts to be about the worker. The wording and context of the memes and sayings posted were sarcastic, rude, and hurtful. I accept that a reasonable person, with the general characteristics of the worker, would expect the social media posts to significant stressors, given the earlier events of the day and the online forum in which the posts were made.

[160] I do not find A’s post of the slang term “hooooore” to be bullying or harassment. The comment was not directed toward the worker. Nor do I find the comment to, in any way, be about the worker. Rather, it appears to be directed toward Z and Q, as A tagged them with the post. I find it significant that the worker, her friend at work, and other employees in the office, all agree that A, Z and Q used the term “hooooore” between the three of them at work prior to the September 17, 2015 incidents. I find it more likely that the term was an inside joke between the three co-workers. I find that a reasonable person, with the general characteristics of the worker, including her knowledge of the three co-workers, would not expect that post to be a significant stressor.

[161] I accept that A, Z and Q should have known that posts about being loud, and punching in the throat would intimidate, humiliate or degrade the worker. I accept that A did not intend that effect, as she had unfriended the worker before making her posts, presumably so the worker would not see them. However, the posts were made in an online forum in front of co-workers that had observed the worker’s loud conversations earlier that day. The three co-workers should have known that the worker would, at some point, learn of the posts from her co-workers. Other Social Media Activity

[162] I find that A, Z and Q unfriending and blocking the worker on the social media site does not constitute a significant stressor. I make the same finding for other co-workers who unfriended and/or blocked the worker on the social media site. Choosing not to associate with a co-worker outside of work, whether online or in person, is not bullying and harassing behaviour. It is not threatening or abusive, intimidating or humiliating. I understand that the worker was upset that her co-workers chose to unfriend her on the social media site, above and beyond the three alleged bullies. I acknowledge that the worker felt isolated by those actions. However, I do not find that a reasonable person, even with the general characteristics of the worker, would expect such behaviour to constitute a significant stressor.

[163] The worker also explained that she heard that one of her co-workers told another employee at a different office that there was a “harassment incident” at the worker’s office. No further details or evidence were provided by the worker. I do not put any weight on a hearsay statement of a rumour of a “harassment incident” which may or may not be related to the conflict between the worker and A. I do not find that such a statement, or rumour, could amount to bullying and harassing behaviour or constitute a significant stressor.

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“Hoooore” Sign

[164] The worker’s evidence is that she saw the sign posted above A’s computer, when the worker went to work on Monday morning. It is unclear when A posted the sign, but I accept that it was sometime between when the worker left work on September 17, 2015, and when she returned to work on September 21, 2015.

[165] As noted above, I accept that the word “hoooore” was used between A, Z and Q prior to the September 17, 2015 work incidents and social media activity. As described by N in her written statement, I find that the word was used as an inside joke between the three co-workers. Although it was also part of the social media post made by A on the evening of September 17, 2015, I do not find that the word refers to that post, to the September 17, 2015 work incident, or to the worker in any way.

[166] I find it more likely that A posted the sign on her desk to entertain Q and Z, and to perpetuate their inside joke. I do not find that the sign is abusive or threatening, intimidating, or humiliating. I do not find that a reasonable person, with the general characteristics of the worker, would expect the sign to be a significant stressor. November 19, 2015 Meeting

[167] While I acknowledge that the November 19, 2015 meeting was arranged by the union, rather than by management, the meeting occurred at the workplace during work hours and, as such, is work related.

[168] I do not find that A’s and Z’s behaviours at the November 19, 2015 meeting constitute bullying and harassment. I acknowledge Dr. Newman’s opinion that bullying and harassment can be intentionally ambiguous to allow for later denial. That does not, however, necessarily mean that in denying their behaviours A and Z were continuing to engage in bullying and harassing behaviour. It is not unexpected that employees would deny work connections to inappropriate social media postings in order to avoid getting in trouble at work.

[169] There is no evidence before me that A and Z were abusive or threatening to the worker during the November 19, 2015 meeting. The evidence is that the two denied any work connection to their social media posts, and expressed concern that the worker would interpret all future posts to be about her. I do not find those statements to be intimidating or humiliating in nature. I do not find that a reasonable person, with the general characteristics of the worker would expect such statements to be significant stressors.

D. Decisions of the Employer

[170] Section 5.1(1)(c) of the Act sets out that the mental disorder must not be caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work performed or the working condition, or to discipline or terminate the worker. Policy item C3-13.00 sets out that the statutory list of examples is inclusive and not exclusive. Other examples of decisions of the employer include decisions relating to workload, changes in job duties and reorganization.

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[171] The interim practice directive notes that there may be situations which fall outside of these “routine” employment issues that give rise to a compensable mental disorder, such as targeted harassment or another traumatic workplace event. It also sets out that, while an employer has the prerogative to make decisions regarding the management of the employment relationship, it does not mean that the decisions can be communicated in any fashion.

[172] The worker argues that, in failing to investigate her complaints of cyberbullying in a timely manner, it ignored its requirements under the Act, Board policy, its own policy, and the collective bargaining agreement. The worker argued that by repeatedly not investigating the matter and by refusing to move or relocate the worker, the employer engaged in bullying and harassing behaviour which fell outside the exclusion set out in section 5.1(1)(c) of the Act.

[173] The worker refers to noteworthy decision WCAT-2014-00675, a mental disorder appeal where the worker alleged that she developed a mental disorder as a result of her manager’s verbal abuse, bullying, harassment, and intimidation. At paragraph 77 of the decision the panel stated:

…I consider that while most labour relations matters are covered by section 5.1(1)(c), employer misconduct in the course of labour relations is not. I do not attempt to provide a definition of employer misconduct here, but I consider that it broadly includes bullying, harassment, abuse (physical or psychological), threats, and criminal behaviour.

[174] In that particular appeal the panel found that the behaviour of the manager, while distressing to

the worker, did not rise to the level of employer misconduct in that it did not constitute bullying and harassment or otherwise fall outside of normal or routine employment or labour relations matters.

[175] The worker also referred to WCAT Decision A1601110, a mental disorder appeal in which the worker claimed that he developed, or experienced an aggravation of, a mental disorder as a result of bullying and harassment at the hands of his employer. The worker argued that the employer failed to follow law and its own policy by failing to adequately accommodate the worker’s psychological limitations and restrictions. The worker argued such failure to act according to law and policy constituted bullying and harassment toward the worker.

[176] The panel in A1601110 adopted the reasoning of the panel in WCAT-2014-00675 in finding that, generally speaking, misconduct of the employer will supersede the exclusion under section 5.1(1)(c) of the Act. The panel also adopted the analysis of a prior panel in WCAT-2013-03061 in finding that, for an employer’s conduct to be viewed as stepping out of the “labour relations exclusion” and into harassment or bullying, the conduct must be “extremely egregious”, such that any reasonable person considering it would clearly see it as abusive or personally threatening.

[177] At paragraph 54 the panel referred to prior WCAT Decision A1601845 where the panel noted that the courts had been clear that not every perceived offence or instance of misconduct would give rise to a finding of bad faith. Rather, the courts had found that bad faith is akin to malice or blatant disregard for the employee; the employer’s conduct must be reprehensible or egregious.

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[178] The panel in A1601110 found that bullying and harassment is not present when the employer exercises its management roles and responsibilities in good faith and, when doing so, does not act in a hostile, intimidating, threatening, or abusive manner. Although the employer failed to follow its own policies regarding workplace accommodation, there was insufficient evidence of malicious conduct on the employer’s part. The panel wrote that there must be some objective evidence of harassment, in addition to evidence of a worker’s subjective beliefs.

[179] In this appeal, I accept the worker’s assertion that the Act, and Board policy, require all employers to investigate complaints of occupational health and safety issues, including allegations of workplace bullying and harassment. I also accept the worker’s assertion that the employer failed to fully do so in this case. I do not, however find that this shows that the employer had a blatant disregard for the worker’s psychological or physical safety.

[180] I find that the employer considered, and dealt with, the worker’s complaint about A’s behaviours at work on September 17, 2015. The worker’s direct manager met with the worker to discuss the situation, met with A, and arranged for A and the worker to discuss the matter with a view to more respectful communications in the future. The fact that the manager addressed the worker’s complaint in this manner indicates to me that the employer did not have a blatant disregard for the worker’s psychological safety.

[181] I agree that the employer failed to adequately investigate the worker’s complaint of bullying and harassing behaviour as it relates to the social media posts and social media activities of A, Q and Z. I am not, however, persuaded that the employer’s failure to adequately address the situation rises to the level of egregious behaviour. I find it significant that the worker’s direct manager informed a more senior manager, the Human Resources Department, and the employer’s disability claims manager, about the worker’s allegations, and sought further input on the issue.

[182] The worker’s direct manager determined that the social media activities of A, Q and Z did not constitute workplace harassment as the activities did not occur in the workplace, during workplace hours, and did not (to the manager) appear to be directed toward the worker. Although the employer later determined that the social media behaviours were contrary to its workplace policies, I do not find that the manager’s initial assessment of the situation was egregious, or done in bad faith. While the manager’s conclusion that the social media postings were not work related was later determined to be an incorrect conclusion, I do not find that it was an unreasonable decision at the time.

[183] The manager’s decision in not further investigating the worker’s complaint of online bullying and harassment does not appear to have been made out of malice, or with any ill intent. There is no indication that the manager’s actions were motivated by any ill will toward the worker or any special relationship with A, Q or Z.

[184] There is also no evidence before me that, in communicating this to the worker, the manager was abusive or threatening in any manner.

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[185] The worker has argued that the employer’s conduct is egregious because it repeatedly failed to act on her complaints of bullying and harassment. I do not find that the employer repeatedly failed to act on the worker’s complaints. I agree with the worker that the employer took no action in regard to the worker’s first complaint of social media bullying in September 2015, or to her second complaint on October 20, 2015. However, I note that the two complaints relate to the same co-workers, and to postings made on the same day, with the same content. I do not find that failing to investigate those two complaints of the same behaviour constitutes repeatedly failing to act.

[186] I do not consider that the employer’s decision not to accommodate the worker’s requested relocation in January 2016 is a repeated failure to act on the worker’s complaint. The employer had already determined that a claim for bullying and harassment had not been made out with regard to the social media activities of A, Q and Z. It considered that the worker did not need to interact with those co-workers to do her job. The employer made a reasoned decision. I do not find that it acted reprehensibly or in bad faith.

[187] I do not accept the worker’s argument that the employer knew that the worker was suffering psychological harm as a result of the workplace bullying and therefore should have acted on the worker’s complaint prior to October 2016.

[188] Dr. Lorenzon’s medical notes to the employer in January 2016 set out that the worker was unable to work as a result of her medical condition and personal stress. Dr. Lorenzon did not refer to work-related stress. Furthermore the worker herself told the employer that she was not off work due to the interactions between herself and her co-workers but, rather, to her other medical conditions. While the employer was aware of the worker’s allegations that she was bullied and harassed by her co-workers, I do not accept that it should have determined that this was the source of the worker’s ongoing disability, in light of the contradictory concurrent medical evidence and evidence from the worker herself. I do not find that the employer minimized the worker’s reports of bullying and harassment but, instead, preferred the medical evidence and statement from the worker herself that her absence from work was due to medical conditions and not the alleged bullying and harassment.

[189] I acknowledge the worker’s assertion that she asked Dr. Lorenzon not to refer to the bullying and harassment in her disability letters to the employer. I am unclear as to why the reason for taking medical leave would be important. The worker argued that she was fearful that the employer would dislike her taking medical leave, and hold it against her in the future. In this argument the reason for taking the medical leave appears to be inconsequential.

[190] I find that the decision of the employer not to allow the worker to sit elsewhere in the fall of 2015, not to accommodate the worker by relocating her in January 2016, and the employer’s decision not to immediately investigate the worker’s allegation of social media bullying were decisions of the employer relating to employment and thus excluded from consideration under section 5.1(1)(c) of the Act. I find that the employer did not act in bad faith in making these decisions. Nor did the employer act egregiously in the manner in which those decisions were communicated to the worker. As such, the actions of the employer do not fall outside of the exclusion created by section 5.1(1)(c) of the Act.

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E. Causation

[191] Policy item C3-13.00 explains that the Act requires the mental disorder be predominantly caused by a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment. There are two parts to this requirement. The first part is the determination of whether the significant stressor or cumulative series of significant stressors arose out of and in the course of the employment. “In the course of” refers to whether the significant stressor, or cumulative series of 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. “Arising out of” refers to whether the significant stressors may be due to employment or non-employment related factors.

[192] As noted above, I find that only the social media posts made on September 17, 2015, constitute bullying and harassment. I must now determine whether those social media posts arose out of and in the course of the worker’s employment.

[193] In considering this issue, I find policy item C3-14.00 (Arising out of and in the Course of Employment) to be of assistance, although acknowledge that the policy sets out factors to consider in determining whether an injury, rather than a significant stressor, arose out of and in the course of employment. That policy sets out that time and place are not strictly limited to the normal hours of work or the employer’s premises. The policy goes on to identify several factors to consider in determining whether the injury arose in the course of employment including whether the injury occurred on the employer’s premises, for the employer’s benefit, on instructions from the employer, while using equipment supplied by the employer, during a time period where the worker was being paid or receiving other consideration, and whether the activity was part of the worker’s job duties.

[194] The social media postings were created by the worker’s co-workers between 8:54 p.m. and 11:36 p.m. on September 17, 2015. As indicated by the worker’s direct manager the postings were created after regular work hours. There is no indication that A, Q or Z were working at home in the evening hours of September 17, 2015. Nor is there any indication that either of the three co-workers were using work computers to post the social media comments. I find that the social media postings were created at a time and place that is inconsistent with the worker’s employment.

[195] I find it most likely that the use of the social media platform was not part of the job duties of the worker, or her co-workers. I find it significant that the worker’s friend at work used her phone to check the social media site on October 8, 2015, although she was in the office at the time. This indicates to me that use of the social media platform at work, on work computers, was either expressly prohibited by the employer or discouraged. This supports a finding that the use of social media, either to create or view posts and activity, is not an activity that is consistent with, or reasonably incidental to, the obligations and expectations of the worker’s employment.

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[196] I accept that the worker viewed some of the social media postings during work hours, and in the office, on October 8, 2015. However, I do not find that such activity was part of her employment, or reasonably incidental to her work obligations and expectations. The worker was not looking at the postings for the benefit of the employer, but to satisfy her own curiosity about what her co-workers had posted about her.

[197] I acknowledge that the postings were made by the worker’s co-workers. I find it likely that the posts about loud conversations referred to the worker’s conversation on the telephone, which is a work activity. However, I am not persuaded that the social media posts happened at a time and place and during an activity consistent with, or reasonably incidental to, the worker’s employment. In other words, although the social media posts are likely referring to an incident that occurred at work, I do not find that the posts themselves (the significant stressors) arose out of and in the course of the worker’s employment.

[198] I note that another WCAT panel came to the opposite conclusion in regard to Facebook postings about a different worker in WCAT Decision A1600147. In that particular appeal the Facebook post at issue had been a comment made in response to a customer service review about the worker on a community forum page, open to the general public. The comment, made by a co-worker, offered up the worker’s name as someone who had been complained about by several customers or patients of the worker. In that case the comment was brought to the worker’s attention by her manager, who commented that she was not sure what the two should do about the review, and the comments. The manager used her computer to show the worker the postings. The panel found that there was a clear work connection to the Facebook posts in those circumstances.

[199] I accept that there are circumstances in which social media posts, even if created after work hours, may have a sufficient nexus to the obligations and expectations of a worker’s employment, such that the postings arose out of, and in the course of, a worker’s employment. I am not persuaded, however, that such a sufficient nexus occurs in this particular appeal.

[200] The facts here are quite different than those in WCAT Decision A1600147. The content of the social media posts in this situation, while likely work-related, are not customer service reviews made in a public forum but posts created on private pages where certain co-workers could see them. The postings at issue in this appeal did not need to be addressed by the worker as part of her employment obligations, as was the case in WCAT Decision A1600147. In this case, I find that the social media postings of A, Q and Z were not consistent with, nor reasonably incidental to, the obligations and expectations of the worker’s employment. As such, I find that the social media posts, the significant stressor in the worker’s claim, did not arise out of and in the course of the worker’s employment. For this reason the worker’s claim for compensation for a mental disorder fails under section 5.1 of the Act.

[201] I find that it is not necessary to go on to consider the second part of the causation requirement; whether the significant stressors were the predominant cause of the worker’s mental disorder. Neither do I find it necessary to consider whether the worker filed her claim within the one-year limitation period set out in section 55 of the Act, as it fails on other grounds.

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Appeal Expenses

[202] The worker requested reimbursement of appeal expenses of $121.70 for obtaining Dr. Lorenzon’s medical records, $1,995 for the cost of obtaining Dr. Newman’s June 12, 2018 medical legal report, and travel expenses for attending the oral hearing in Richmond, B.C.

[203] Section 7(1) 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 WCAT. Item #16.1.2 of the WCAT Manual of Rules of Practice and Procedure (MRPP) allows me to order reimbursement of certain expenses for a worker’s own attendance at an oral hearing, if the worker is successful on appeal. Item #16.1.2.1 sets out that travel expenses are generally paid for the portion of the journey to the oral hearing location that is in excess of 20 km.

[204] In this case the worker was not successful on appeal. Furthermore, she travelled less than 20 km each way to attend the oral hearing. I see no persuasive reason to depart from WCAT’s general practice in this appeal. I decline to order reimbursement of the worker’s travel expenses to attend the oral hearing.

[205] Item #16.1.3 of the MRPP allows me to order reimbursement of an appeal expense for obtaining evidence if I find it useful or helpful in my consideration of the appeal or if I consider that it was reasonable for the worker to have sought such evidence in connection with the appeal.

[206] The employer argues against reimbursement of Dr. Newman’s June 12, 2018 report. It argues the report was not useful, as Dr. Newman was unable to address causation. The employer also argued that it was not reasonable to obtain the 2018 report, as Dr. Newman’s April 27, 2017 report was already on the claim file. I note that many factors were at issue in this appeal, and that causation was only one of them. I also note that the 2018 report contained more detailed information and opinion on the nature of the bullying itself than did the 2017 report. Although I was not ultimately persuaded by Dr. Newman’s report, I found some of her comments useful. I also find it reasonable for the worker to have obtained the report. Therefore I find that the worker is entitled to reimbursement of the cost of obtaining the report.

[207] As per item #16.1.3.1 of the MRPP, WCAT will usually order reimbursement of expert opinions at the rate established by the Board for similar expenses. The balance is the responsibility of the party who obtained the report.

[208] The Board’s fee schedule for a psychological assessment is $190 per hour to a maximum of 13 hours, resulting in a total maximum of $2,470. I note that Dr. Newman did not set out how many hours she spent on her report, but billed $1,900 plus $95 in tax. Dr. Newman’s overall bill is within the fee schedule set by the Board, despite the lack of hourly billing. As such, I order the Board to reimburse the worker the amount of $1,995 for the cost of obtaining Dr. Newman’s report.

[209] The worker submitted a February 2, 2018 invoice from Dr. Lorenzon’s office in the amount of $121.70 for reviewing the worker’s file and for copying and delivering 31 pages of records. The invoice does not set out the date on which the review, copying, and delivery of the worker’s records occurred. The worker’s representative stated that the records were submitted to the

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Review Division in support of the worker’s request for review. I note that the review officer did not address expenses in his decision.

[210] In reviewing the worker’s submissions to the Review Division, I note that the submissions included copies of the worker’s medical records from Dr. Dascalu’s office. The worker did not provide any records from Dr. Lorenzon’s office. Those were obtained by the Board on January 6, 2017. I also note that Dr. Lorenzon’s invoice is dated after the Review Division decision was issued, and does not refer to any earlier date on which the work billed for was conducted. I am not persuaded that Dr. Lorenzon’s invoice for $121.70 relates to evidence obtained for the purpose of either this appeal, or the review. I decline to order reimbursement of the cost of $121.70. Conclusion

[211] I deny the worker’s appeal and confirm Review Reference #R0223190. I find that the worker is not entitled to compensation for a mental disorder pursuant to section 5.1 of the Act. Specifically, I find that the significant stressors of online bullying and harassment on September 17, 2015 did not arise out of, and in the course of, the worker’s employment.

[212] I order the Board to reimburse the worker appeal expenses in the amount of $1,995 for the cost of obtaining Dr. Newman’s 2018 report. I decline to order reimbursement of any other expenses on this appeal. Sherelle Goodwin Vice Chair

Documents

WCAT WCAT Decision Number: A1800306 (March 13, 2019) · saw that A had “unfriended” the worker. As a result, A’s social media posts did not appear on the worker’s media feed