WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 87/10

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 87/10 BEFORE: M.F. Keil : Vice-Chair M. Christie : Member Representative of Employers F. Jackson : Member Representative of Workers HEARING: January 12, 2010, at Hamilton Oral DATE OF DECISION: February 7, 2011 NEUTRAL CITATION: 2011 ONWSIAT 293 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated September 14, 2004 APPEARANCES: For the worker: For the employer: Interpreter: Husband G. Nolis, Paralegal D. Renton, Polish Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 87/10 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that the worker did not have entitlement for traumatic mental stress relating to an incident that took place on April 9, The ARO rendered a decision following an oral hearing. (ii) Issue [2] The sole issue before the Panel is whether the worker has entitlement under the Board's traumatic mental stress policy for an incident occurring on April 9, The relevant section of the Workplace Safety and Insurance Act states in part: 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker's employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker's employment, it is presumed to have arisen out of the employment unless the contrary is shown.. (5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. [3] Board Operational Policy Document No , entitled Traumatic Mental Stress, sets out the following: Policy A worker is entitled to benefits for traumatic mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. Guidelines Sudden and unexpected traumatic event In order to consider entitlement for traumatic mental stress, a decision-maker must identify that a sudden and unexpected traumatic event occurred. A traumatic event may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker s family member, or others. In all cases, the event must arise out of and occur in the course of the employment, and be Clearly and precisely identifiable Objectively traumatic, and Unexpected in the normal or daily course of the worker s employment or work environment.

3 Page: 2 Decision No. 87/10 This means that the event Can be established by the WSIB through information or knowledge of the event by co-workers, supervisory staff, or others, and Is generally accepted as being traumatic. Sudden and unexpected traumatic events include witnessing a fatality or a horrific accident witnessing or being the object of an armed robbery witnessing or being the object of a hostage-taking being the object of physical violence being the object of death threats being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon) being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse) being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous) the worker must have suffer or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) Acute reaction An acute reaction is a significant or severe reaction by the worker to the work-related traumatic event that results in a psychiatric /psychological response. Such a response is generally identifiable and must result in an Axis I Diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). An acute reaction is said to be immediate if it occurs within four weeks of the traumatic event. An acute reaction is said to be delayed if it occurs more than four weeks after the traumatic event. In the case of a delayed onset, the evidence must be clear and convincing that the onset is due to a sudden and unexpected traumatic event, which arose out of and in the course of employment. (iii) Background [4] The now 55 year old worker started with the accident employer in 1989 as a packager of cookies. In April of 1992 the worker was treated for non-compensable depression and put on anti-depressants. Medical documentation reveals the worker ceased taking that medication in May of 1994 and stopped seeing the psychiatrist. Between November 1995 and March 2002, the worker's family physician, Dr. Jaskot, prescribed Zoloft on an intermittent basis to treat the worker's periodic and mild bouts of depression. The last prescription (in March of 2002) was apparently in anticipation of a one day surgery the worker was going to have in mid-april about which she was a little anxious. There is no other medical information on file relating to the worker's pre-accident history.

4 Page: 3 Decision No. 87/10 [5] Accounts of the event giving rise to the appeal before us vary according to the perspective of the respective participants. There is general agreement that on April 9, 2002 at approximately 3:30 p.m. (during her lunch break) the worker was approached by a co-worker (hereafter referred to as EP). EP told the worker that another co-worker had told her that the worker had backed into EP s car that morning in the employer's parking lot and had damaged the bumper. The two employees went out to look at the car, where there was disagreement between them as to whether the worker had: a) bumped into EV s car and, b) whether any damage had been caused. Nothing further appears to have happened that day. [6] The following day EP came up to the worker towards the end of the shift and handed her a letter containing an estimate for damages in the amount of $ At around 11:00 p.m. that night, the worker approached the shift supervisor (GV) asking to speak to him. She was accompanied by co-worker (MD). The worker showed GV the estimate, and stated she was very upset by this. According to GV s contemporaneous notes, the worker admitted she might have nudged EP s car, but vehemently denied she had caused damage in the amount cited. [7] At 11:30 p.m., the worker's son came to GV s office. His mother had called him and was upset. GV and the son went to the parking lot and took some pictures of the bumper, after which GV asked the son to leave the premises. GV finished up his shift at 12:00 a.m. On his way home from work he decided to turn around just to make sure there was no problem at the workplace. When he arrived in the parking lot, there were a number of people there, including the worker, her son, her daughter, EP, and some other co-workers. At this point, both the worker and EP were upset. [8] GV followed EP toward her home in Stoney Creek and, on his way toward his own place, he saw the worker driving her car. The worker went home but later attended the local emergency department around 1:30 a.m. She presented as tearful, shaking and hyperventilating. The worker complained of chest and head pains. She was given Ativan and diagnosed as having an anxiety attack. The worker was seen by her family physician on April 21 st ; he put her on Effexor and Clonazepam for panic disorder with depressive symptoms. [9] On July 24, 2002, the worker wrote to the WSIB claiming entitlement for stress as a result of the workplace incident. She described being verbally attacked by EP and the confrontation as being aggressive, resulting in the worker feeling as if she were having a heart attack. The employer filed a Form 7 at the request of the Board; the employer denied there was any work injury and that the dispute had been personal in nature. [10] The worker's daughter spoke to the Board Claims Adjudicator on a number of occasions. In a memorandum dated August 16, 2002, the daughter stated EP had yelled at her mother and made an unfounded accusation, but there had been no physical or verbal threats made. The daughter also confirmed the worker had had anxiety attacks for approximately 10 years, but had never before lost time from work. [11] There was some difficulty around the worker's return to work as there was a medical suggestion of a graduated return to work, which the employer stated it could not accommodate. The worker did return to full time work in November of According to the employer and to EP, the worker was a good employee and did her work very well.

5 Page: 4 Decision No. 87/10 (iv) Testimony [12] At the hearing, the worker testified that EP had been screaming at her on April 9 th and the worker had been upset. After looking at the car, EP had said there was no problem. The worker explained she was still upset because she had been accused of something she did not do and she was embarrassed when she went back to the lunch room. The worker explained she was still upset when she got home she was shaky and could not sleep. [13] The worker went to work on the 10 th and worked her whole shift. At around 11:00 p.m. EP gave her a letter saying she had to pay for damages and said something about getting even with her in the parking lot. The worker spoke to her shift supervisor, but did not feel better. The worker called her family and later on that night her son came to the workplace wearing his security uniform. [14] The worker thought she had driven herself home, but on arrival at her place, she then fainted and had to be taken to hospital. She said that EP tried to take revenge on her by calling her son s workplace to get him in trouble. The worker told the Panel that she was barely able to get out of bed after the incident and that it took quite a while before she could return to work. Since that time she has tried to avoid EP, because when she sees her she is scared. The worker told the Panel that it was the screaming and being accused of doing something she had not done that upset her the most. Then she went on to say that the letter incident upset her even more because EP said she was going to get even. [15] EP, on the other hand, gave testimony that she had been told that, on April 9, 2002, her car was damaged by the worker. She asked the worker if this was true and they went outside to look. The worker denied that she had hit the car. EP was clear that she had not seen the incident but had been told about it. EP went to a garage, got an estimate and gave the worker the letter the following day. Later that evening, she went out to the parking lot. The worker's son was there dressed like a police officer with his cruiser he came up and told her th0ere was nothing wrong with the car. (It should be noted that the son worked in security and is not a police officer.) EP could not remember saying she would get even or threatening to take her to court. EP did call the son s supervisor because she was stressed out by his presence that night. [16] EP testified she was the worker's group leader at the time and that the worker was an excellent employee. [17] The co-workers who testified at the Tribunal hearing did not appear to remember much about the incident. They all agreed the worker was upset and shaky; they also noted EP was upset about her car. One of them indicated that EP did have a loud voice. [18] GV testified to the sequence of events set out above. He conducted and wrote out an investigation report for the employer a week later. (v) Tribunal case law on acute mental stress [19] The question of measuring whether an event (or events) can be described as traumatic has been discussed in previous Tribunal decisions. A good summary is provided in Tribunal Decision No. 1839/07 as follows:

6 Page: 5 Decision No. 87/10 We turn now to the second criterion, namely, whether the worker s reaction relates to an event or events which were traumatic. The first question to be addressed here is: by what standard is traumatic to be measured? Must the event in question be traumatic by some objective standard, or is it sufficient that the individual worker subjectively found an event to be traumatic? A number of approaches to this question have been developed in the Tribunal s jurisprudence. Under the first approach, an objective test for standard of traumatic was established. This test is known as the average worker test. Another approach, however, adopts a more subjective approach to the question of what is traumatic which incorporates the thin skull rule. These two approaches with respect to the test for traumatic in mental stress cases are outlined in Decision No. 2391/06 as follows: In Decision No. 422/96, the Panel set out the applicable legal test in mental stress cases which has been followed by other Tribunal decisions: The basic questions could then become: 1. Is it reasonable that workers of average mental stability would perceive the workplace events to be mentally stressful? 2. If so, would such average workers be at risk of suffering a disabling mental reaction to such perceptions? If the answer to either question is no, the psychological damage would not be compensable. We note that there are varying interpretations in Tribunal case law of the average worker approach in mental stress cases. In Decision No. 871/99 (September 16, 2003), the Panel discussed the average worker test set out above, and concluded as follows: But these questions do not create a new legal requirement for entitlement. The thin-skull rule continues to apply. If it is found that there was an employmentrelated injuring process, the disability from the resulting psychological injury is compensable, even if that disability is, because of some pre-existing vulnerability, greater than it would be for the average worker. In Decision No. 2391/06, the Panel did not resolve the question of which test to apply. In that case, the Panel held that even if the higher standard set out in the average worker test was appropriate, the events in that case met that higher standard. The Panel stated: Even if mental stress cases should be subject to a higher standard of causation through the average worker test, we find, for the reasons set out below, that the worker has entitlement for mental stress. In our view, the appropriate test to be applied in mental stress cases is the average worker test. Under this test, in order for entitlement to be established, a worker must have suffered an acute reaction to events which would be traumatic to a worker of average mental stability. In this regard, we note that the Board s Traumatic Mental Stress policy, which we are bound by statute to apply, indicates that the trigger events must be objectively traumatic. We note that in some cases, the average worker test has taken on an added complexity. This is so because in applying that test, there has not always been consistency with respect to which average worker should be used. Should it be an average worker generally, or should it be an average worker doing the same kind of work as the claimant. This is particularly important in cases involving emergency workers. Should the test for traumatic look at whether the events in question would be traumatic for an average worker in the general labour market, or rather, whether they would be traumatic for an average emergency worker. In Decision No. 1595/97, the Panel adopted the latter approach. The Panel regarded the average worker as one doing the same kind of work as the claimant, rather than an average worker in the general population:

7 Page: 6 Decision No. 87/10 According to this first test, it is not necessary to ask ourselves if the worker was of average mental stability but simply whether a worker of average mental stability would have perceived the workplace circumstances or events as mentally stressful as the injured worker perceived them to be. We would like to begin by acknowledging that a police officer s routine existence might well seem to involve situations that the rest of us would find stressful. It is the lot of the police officer to deal with crime, some of it horrendous, part depressing, a percentage dangerous and the rest routine. That is their daily workload and may seem unbearable to civilians just as the work of a brain surgeon might appear incomprehensible to those of us who do not, as a matter of daily activity, delicately explore the interior workings of another person s skull. This is simply by way of saying that average must reasonably be understood within the context of the particular job. A police officer expects to encounter situations that many of us would not expect to confront and would not be trained to handle. With respect, we are of the view that the proper application of the average worker test should be by reference to an average worker in the general labour pool rather than an average worker doing the same kind of work as a claimant. In our view, emergency workers should not be penalized in mental stress cases by having to establish trauma on a higher scale. It should be remembered that the average worker test already establishes a higher standard of causation than is generally adopted in compensation cases by measuring the triggering event not against the subjective thin skull of the claimant, but rather against the objective thicker skull of the average worker. In our view, it is not appropriate to raise the bar even higher for emergency workers by requiring those workers to meet a higher standard of traumatic event. We recognize that emergency workers encounter traumatic events more frequently than workers in other occupations. That fact may be relevant to the question of whether the events in question are unexpected, but it does not lessen or diminish the traumatic nature of the incidents which the workers are exposed to. Exposure to emergency situations on a regular basis may mean that these types of situations are not unexpected. It may mean that emergency workers develop coping strategies which make them more able to cope with traumatic events than other kinds of workers. But it does not change the nature of the events that they are required to deal with. We agree with the approach taken in Decision No. 933/07. The facts in that case are similar to those in the instant appeal. Decision No. 933/07 involved a claim for benefits for mental stress made by a communications operator, or 911 operator, who worked for the police. In that case, the Panel indicated that the appropriate test was whether the calls which the worker dealt with would be traumatic for an average person. The fact that the worker dealt with such calls regularly did not detract from the fact that they were objectively traumatic. The Panel stated: To say that traumatic calls were part of her job does not detract from the fact that nevertheless, we would consider them to be objectively traumatic events and to be sudden and unexpected. By objectively traumatic, we mean that the average person taking such a call would in our view be traumatized Far from becoming used to these trauma calls over time, the psychological evidence referred to in the Board s policy on cumulative trauma and Dr. Diane Whitney in her Discussion paper on Post Traumatic Stress Disorder, prepared for the Workplace Safety and Insurance Appeals Tribunal (May 2002), suggests that persons exposed to a series of traumatic events may likely at some point suffer an acute traumatic reaction although they have not done so before. We conclude that the appropriate test with respect to whether an incident constitutes a traumatic event for the purposes of subsection 13(4) is the average worker test. Under that test, the event in question must be one that would be traumatic for an average worker in the general labour pool, rather than an average worker who does the same kind of work

8 Page: 7 Decision No. 87/10 as the claimant in a particular case. In essence, the test is whether the event in question would be traumatic for an average person. [20] Tribunal Decision No. 509/07 offers a different analysis than that above in that it dealt with whether the event was unexpected. That Panel provided the following analysis: As noted above, the OPM Document No states that in order to consider entitlement for traumatic mental stress, a decision-maker must identify that a sudden and unexpected traumatic event occurred. We also note that section 13(5) of the Act provides that a worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. Accordingly, in order for the worker to be entitled to benefits for traumatic mental stress, it must be demonstrated that the incident on February 26, 2004 was unexpected within the meaning of the Act and the policy document. In our view, the incident was not unexpected, within the context and meaning of the Act and the policy. We note that the worker testified that it was part of his job to respond to emergency calls, on an overflow basis. We heard evidence at the appeal hearing that the employer had an emergency department whose members responded exclusively to emergency calls from subscribers, and that the worker was not a member of that department. We also heard evidence that he was required to respond to emergency calls infrequently. Further, we heard evidence that his training in relation to responding to emergency calls from subscribers was very abbreviated, and that, it was his understanding that the members of the emergency department received additional training for responding to such calls, beyond the training that the worker received in that regard. We did not hear any evidence on the nature of such additional training that may have been received by the emergency department. Notwithstanding all of that evidence, which we accept, we must nevertheless conclude that the worker expected to receive, and was required to respond to emergency calls in the regular course of his employment. He testified that this was a requirement of his job. He also stated that although his training in relation to responding to emergency calls was brief, he did receive some training in that regard. He also indicated in the Worker s Report of Injury, dated May 24, 2004, which he completed and signed, that he had taken a variety of calls each day, that some can be very stressful and that they can include emergency situations requiring emergency services. On the basis of this evidence, we must conclude that the worker expected that, from time to time, he would be required to respond to emergency calls.. As noted above, it is our view, that the worker expected that he would, at times, be required to address situations where callers were seeking assistance because they had suffered serious injury or were facing grave danger. Such situations might include calls from individuals who were seeking assistance because they or someone nearby was experiencing a serious or dangerous event, such as a heart attack, a stroke, a fire, an assault, or any number of other distressing events including a potential suicide. Having found that the worker expected that he would be required, at times, to respond to emergency situations, we are not able to find that the incident on February 26, 2006 was unexpected within the meaning of the Act and the policy, notwithstanding that it may be true that the worker was not able to anticipate every type of emergency to which he would be required to respond. Given that an almost infinite variety of emergencies might arise, it would be very difficult to anticipate every type of emergency that could arise, to which the worker would be called upon to respond. The very nature of an emergency event, is that it is unpredictable, as to the timing of the event, but also as to its nature. The fact that the type of emergency that arose on February 26, 2004 was not specifically

9 Page: 8 Decision No. 87/10 anticipated by the worker, does not cause us to find that it was unexpected, within the meaning of the Act and the policy. We note that the worker had a personal and subjective psychological vulnerability that arose when he was called upon to address a situation involving a suicide. That fact, however, does not cause us to change our conclusion that the incident on February 26, 2004 was not unexpected within the meaning of the Act and the policy. [21] The Panel in Decision No. 509/07 then went on to set out its understanding of objectively traumatic in the context of the case s particular facts: We note that the policy document requires that in order for a worker to have entitlement to benefits for traumatic mental stress in all cases, the event must be objectively traumatic. We have considered the definition of the objective that appears in the Canadian Oxford Dictionary, edited by Katherine Barber, Oxford University Press, 1998, which states: objective adj. 1 (of a person, an opinion, etc.) not influenced by feelings or personal bias (compare SUBJECTIVE 1) 2 a (of writing, art, etc.) concerned with outward things or events; dealing with or laying stress on what is external to the mind b external to or independent of the mind 4 (of symptoms) observed by another and not only felt by the patient objectively adv. From this definition, which we consider to be the plain and literal meaning of the word, we interpret the requirement of the policy document that the subject event be objectively traumatic to mean that, for a worker to obtain entitlement to benefits for traumatic mental stress, the subject event must be traumatic, when considered, not from the unique perspective of the worker, but when considered from a perspective which is independent of the worker s personal feelings and experiences. In the circumstances, the subject event was the reception of a request from a subscriber to determine the location of the subscriber s sister, because the subscriber feared that her sister might be in the process of attempting to commit suicide. We note that the event was not a call from a person who was attempting or contemplating suicide. We also note that the worker did not receive direct information informing him that a person was actually attempting or contemplating suicide. Rather, the worker had information that the subscriber to whom he was speaking was concerned about that possibility. In our view, this event that was experienced by the worker on February 26, 2004 was not objectively traumatic. The event was a very serious one, and in our view, the appropriate response was to treat the situation as a very serious matter, as was done in the case. We have compared the event to the types of events that are listed in the policy. The events listed in the policy all involve either witnessing the actual injurious or dangerous event, or being the object of threats or harassment. The policy also indicates that being in radio or telephone contact with the person who is central to the event (i.e., the victim ) may also attract entitlement. In our view, receiving a report from an individual that a member of her family might potentially be in danger at a unidentified location, is qualitatively different from the events listed in the policy, and is not an event which is objectively traumatic, within the meaning of the policy. (vi) Analysis [22] On behalf of the worker, her husband submitted that she became very ill when EP attempted to extort money from her over the alleged car damage. The husband acknowledged that his wife had had previous mild depressive episodes but this time was different after the encounter with EP she was shaking and fainting and in fear, unable to return to work for a period of time.

10 Page: 9 Decision No. 87/10 [23] On behalf of the employer, Mr. Nolis submitted that, first, the worker did not meet the criteria for entitlement under the Board's chronic stress policy, nor did she meet the definition set out in the legislation. Second, if there had been an injury, it did not arise out of and in the course of the worker's employment. The dispute centered on an accident to EP s car and the resulting altercation over the damage. This conflict was not about work and it was not incidental to employment. For both of these reasons, Mr. Nolis submitted there should be no entitlement. [24] The Panel turns to the issue of whether the worker has entitlement for acute mental stress as set out in law and policy. The law requires that a worker suffer an acute reaction to a sudden and traumatic event arising out of and in the course of employment. Board policy states that a traumatic may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker s family member, or others. The policy goes on to detail the kinds of event that may be reasonably considered to constitute sudden and unexpected traumatic events: witnessing a fatality or a horrific accident; witnessing or being the object of an armed robbery; witnessing or being the object of a hostage-taking; being the object of physical violence; being the object of death threats; being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon); being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse); being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous). [25] In the case before us the Panel concludes the events as they occurred cannot be described as objectively traumatic in the manner contemplated by the governing law and policy. From the contemporaneous documentation - including GV s notes (taken at the time), the worker's correspondence and file memoranda the Panel finds no evidence of any physical or verbal threats being uttered by EP. We accept that EP may well have raised her voice to the worker; EP may well have been upset about her car; and, she may have communicated that upset to the worker. What we cannot find is any contemporaneous indication that EP threatened the worker in a manner that was overtly harassing. We accept that the worker was deeply distressed by receiving a claim for damages for which she claims she was not responsible. While this may reasonably be thought to be upsetting, it does not constitute an acute traumatic event. It does not satisfy the conditions of objectively traumatic as set out in previous Tribunal decisions. We acknowledge the worker was deeply upset by the encounter and that she had an acute response to the exchange. This still does not render the situation objectively traumatic. [26] The worker testified that EP told her she would get even and she was afraid for her safety. There is no mention of such a threat in any of the contemporaneous documentation, including correspondence from the worker. The daughter specifically told the Claims Adjudicator there were no physical or verbal threats. The Panel finds it unlikely that there were communication or language problems between the worker and her daughter and that the daughter would have misrepresented her mother s concerns or understated them. We also note there is no such mention in GV s notes taken at the time. We find it reasonable to infer that, if in April of 2002, EP had physically or verbally assaulted the worker, this would have been communicated.

11 Page: 10 Decision No. 87/10 [27] We do not question the worker's sincerity on this point. However, she gave testimony in 2010 respecting a 2002 incident. We find it unlikely her memory is more accurate in the present than it was at the time the event took place. Accordingly, we have chosen to rely on the contemporaneous documentation and accordingly we find there were no physical or verbal threats made by EP to the worker. [28] In the final analysis, the Panel concludes that there was a disagreement, escalated on the one hand by EP s conviction (rightly or wrongly) that the worker was seeking to evade responsibility for her actions and, on the other, by the worker's sense she was being falsely accused and asked to pay for something she did not do. While it is unfortunate that the episode occurred and that it could not be resolved at the time, the events as experienced by the worker do not come within the criteria for entitlement to acute mental stress. [29] Since the facts of the case do not meet the criteria for entitlement, Mr. Nolis s second argument is moot. Nonetheless, the Panel would note that the argument in April of 2002 was a personal matter between the worker and her co-worker. The disagreement flowed from whether the worker's car bumped EP s car in the parking lot. The altercation was not reasonably incidental to employment nor did it concern the work being performed or the employer. The fact that EP was pursuing a claim for damages to her car was also not a work-related matter but a private, legal issue. [30] For the above reasons the worker's appeal cannot succeed.

12 Page: 11 Decision No. 87/10 DISPOSITION [31] The appeal is denied. DATED: February 7, 2011 SIGNED: M.F. Keil, M. Christie, F. Jackson