A Burnaby man who wrestled with the sudden onset of a debilitating speech impediment and then received a profanity-laced text message from his boss that described him as a “retard” as he sat down with family for Christmas dinner, has won his B.C. Supreme Court bid to have his rejected WorkSafeBC claim reconsidered.
Giorgio Cima, who has great difficulty speaking, said in an e-mail to Black Press: “I have been so excited and happy for the decision, I feel vindicated, validated.”
Cima added that between receiving that inappropriate text message from his boss, and then learning from his lawyer about the B.C. Supreme Court ruling, he said: “I felt that I have totally lost my voice and felt like kicked in by everyone.”
Cima’s lawyer, Sebastien Anderson, who has been practicing for three decades, called the case “one of the most outrageous” he’s ever had.
He agreed to take on the case pro-bono after learning about the circumstances.
“It was just so wrong what had happened to him,” said Anderson.
Cima, a married father, was working as a sales representative for Delta’s Intact Distributors in 2013, when he developed a slurred speech disorder that progressively worsened to the point it was difficult for people to understand what he was saying.
But his employer accommodated his speech disorder by allowing him to communicate with his boss, peers, customers and suppliers via e-mail and text messages.
Following the onset of the speech disorder, Cima alleged that his supervisor “treated him like a child and spoke to him in a condescending manner.”
Cima said that his supervisor would “repeatedly use phrases like ‘what you don’t understand is’; ‘do you understand?’; ‘do you comprehend what I am saying to you?’”
A work colleague “often reminded the supervisor that the worker was losing his voice not his intelligence,” a B.C. Supreme Court ruling said.
Cima did not return to work following an upsetting text message he received from his supervisor on Christmas Day in 2013.
The supervisor texted: “Merry Xmas a buddy! Not every flower can say love, but a rose can. Not every plant survives a thirst, but a cactus can. Not every retard can read, but look at you go, little buddy!! Today you should take a moment and send an encouraging message to a f**ked up friend, just as I have done. I don’t care if you lick windows, or f**k farm animals. You hang in there cupcake, because you’re f**king special to me, and you are my friend. Look at you smiling at your phone, you crayon eating mother f**ker! Merry Christmas.”
Anderson, Cima’s lawyer, said Cima received the text message just as he was sitting down with his wife, daughter and friends for Christmas dinner.
“He burst into tears, and he immediately began to fret about returning to work,” Anderson said.
Cima also began to suffer from headaches, poor focus, anger, humiliation, sadness, depressed mood and poor sleep.
Two weeks later, Cima was diagnosed by his family doctor with a major depressive disorder as a result of the text message.
Cima applied for Workers Compensation Board benefits, but that claim was denied despite the fact Cima was never interviewed by WorkSafeBC and that WorkSafe never paid for a promised assessment by a psychologist.
Cima was diagnosed with amyotrophic lateral sclerosis, also known as Lou Gehrig’s disease, on Jan. 21, 2014. His employer discontinued his pay in April of 2014.
Cima appealed the denied claim to the Workers Compensation Appeal Tribunal, but a review officer found that “while the supervisor’s actions were ‘in bad taste’ and an exercise of poor judgement and unprofessional, they did not constitute bullying and harassment, because the review officer was not persuaded that conduct was intended to, or should reasonably have been known would intimidate, humiliate or degrade the worker.”
Anderson argued in court that if what happened to Cima “doesn’t meet that standards (for harassment/bullying), there simply is no standard.”
On Wednesday, the B.C. Supreme Court ruled in favour of Cima.
“Given that I have found certain conclusions drawn by (Workers Compensation Appeal Tribunal) to be patently unreasonable, I am remitting this claim back to WCAT to be reconsidered on the merits.”
Justice Barbara Young ruled that Cima should first be interviewed, and then assessed by a board psychologist or psychiatrist “if the Board intends to challenge the opinion of (Cima’s family physician). That assessment may shed some light on whether or not the event was traumatic or a significant stressor.”
Anderson noted that Cima’s case was also dismissed by the Human Rights Tribunal.