WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150027
DECISION DATE: February 25, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Self-Represented
HEARING: Hearing in Writing
HEARD by: D. Giannobile, Appeals Resolution Officer
ISSUE
Entitlement to Traumatic Mental Stress via cumulative trauma
BACKGROUND
The worker is an administrator with a provincial government ministry who is claiming entitlement under the Traumatic Mental Stress (TMS) policy from the cumulative effects of a number of incidents where she felt threatened by the actions or behaviours of the high risk youths in the program and a co-worker in one instance.
The claim was initially created for TMS related to comments made against her by a youth in their custody between June and November 2011. An Appeals Resolution Officer (ARO) denied the appeal in a decision dated November 28, 2013 because the events claimed by the worker were not seen to involve physical violence or threats of physical violence so no “sudden and traumatic event” existed.
The worker, through her representative, requested a review of TMS entitlement as a cumulative effect from four incidents dating back to August 1998. An investigation obtained details about the incidents however a case manager (CM) ruled on June 19, 2014 that the threshold for entitlement was not met and the claim remained denied.
The worker objected to the denial to TMS from a cumulative onset. The matter was referred to the Appeals Services Division for further consideration.
AUTHORITY
Legislative:
Section 13(4) & (5) of the Workplace Safety and Insurance Act, 1997 (Act)
Policy:
15-03-02 – TMS
Workplace Safety and Insurance Board (WSIB) Best Approaches Document for TMS
ANALYSIS
In my view, the incidents identified by the worker meet the threshold for TMS entitlement related to exposure to multiple sudden and traumatic events. For that reason, I allow the appeal.
Due to the nature of their occupation, some workers, over a period of time, may be exposed to multiple, sudden and unexpected traumatic events resulting from criminal acts, harassment, or horrific accidents. If a worker has an acute reaction to the most recent unexpected traumatic event, entitlement may be in order even if the worker may experience these traumatic events as part of the employment and was able to tolerate the past traumatic events. A final reaction to a series of sudden and traumatic events is considered to be the cumulative effect.
The Workplace Safety and Insurance Board (WSIB) recognizes that each traumatic event in a series of events may affect a worker psychologically. This is true even if the worker does not show the effects until the most recent event. As a result, entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic (significant).
In considering entitlement for the cumulative effect, decision-makers will rely on clinical and other information supporting that multiple traumatic events led to the worker’s current psychological state. Also, there may be evidence showing that each event had some effect or life disruption on the worker, even if the worker was not functionally impaired by the effect or life disruption.
There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function, such as
- terminations
- demotions
- transfers
- discipline
- changes in working hours, and
- changes in productivity expectations.
However, workers are entitled to benefits for traumatic mental stress due to an employer's actions or decisions that are not part of the employment function, such as violence or threats of violence.
Some principles for adjudicating TMS claims are discussed in the Best Approaches document (available on the WSIB website). It states in part:
It is important to first look closely at the event itself before making any assessment as to whether it would be considered unexpected in the normal course of employment for a particular job. After the nature and quality of the event is clearly understood, the decision maker must then look at the whole job, including work history and the individual circumstances of the worker’s employment.
For example, in certain jurisdictions, police officers rarely, if ever discharge their weapons. In other jurisdictions, the environment may result in more situations in which there is potential for violent confrontation. A nurse may care for many patients over the course of his/her career, but a particular death can have a more significant impact, depending on the circumstances surrounding the death, the nature of the patient and their illness and the relationship between the nurse and the patient.
It is important for decision makers to recognize that the fact a worker has previously experienced a similar traumatic event at work, does not mean it can be automatically inferred that the event was expected. It is important to first look closely at the event itself before making any assessment as to whether it would be considered unexpected in the normal course of employment for a particular job. After the nature and quality of the event is clearly understood, the decision maker must then look at the whole job, including work history and the individual circumstances of the worker’s employment.
And:
When gathering the relevant evidence to enable a determination on entitlement in a traumatic mental stress claim, direct contact with the worker is essential in order to understand the event and the worker’s view of how it links to their condition.
The incidents in question are well documented in the file but I will summarize them for context.
1st Incident August 1998 - Riot
The worker was a shift supervisor when several youths ran towards her brandishing shovels, pitchforks and baseball bats they had taken from a locked shed and came at her threatening to harm her. She claims they got within 20 steps of her so she ran and hid in a classroom. She heard glass breaking so she locked herself in her office and asked her staff to call the police.
She was the night shift supervisor on duty that evening and had control of the facility which made her vulnerable for attack by these youths. She believed they were trying to take her hostage and took another youth hostage when they couldn’t find her and barricaded themselves in a field house.
She claims the police mistook her for one of the youths and pointed a gun at her when they arrived. The incident lasted 12 hours after which she feared doing her daily rounds.
The witnesses who were contacted were not direct witnesses to the incident but had independent recollections that aligned with the worker’s statement about this event.
2nd Incident March 2002 – Staff Strike
Unionized staff at the facility went on strike in March 2002 for two months. She claimed she was verbally abused, was the subject of offensive comments, her office smeared with fish and her car window smashed. At one point the staff walked out for 36 hours which left a few managers to supervise a large number of high-risk offenders so the centre was locked down to protect them from the youths and staff on strike.
She was deprived of sleep and experienced severe anxiety about her safety and the safety of others during this time.
The witnesses confirm the unionized staff was particularly abusive towards the worker and her office and personal car. The worker was unionized until she moved into management in 1997. One witness claimed some of the comments to or about the worker were so offensive she was unable to share them with the Workplace Safety and Insurance Board (WSIB) investigator who took her statement. She also stated the youth exploited the situation which made the situation more tense and unpredictable.
3rd Incident April 2007 – Employee’s Dismissal
A staff member boasted to other employees that he had enough artillery to shoot both day and afternoon shift staff, specifically managers and senior managers (of which the worker was one). The staff who heard the comments reported them to her manager after a couple of days. The manager then reported the comments to her.
As a result of his behaviour, the superintendent suspended the employee pending a full investigation and it was the worker’s duty to inform the employee. After he was suspended, she heard from others that the employee threatened that his first victims would be senior management.
A witness recalled this employee’s statements were made the same day as the “Virginia Tech” shooting. The witness recalled the police did a full investigation after which the employee was cleared to return to work. This outraged many employees of the centre and he was not returned to the youth centre.
The superintendent confirmed the events as told by the worker. The employee had a meticulously laid out plan and was known to have numerous firearms. As well, the employee who heard the comments first hand went off on a stress claim. She confirmed the worker had to advise the employee of his suspension and that employees were outraged when they heard he was cleared to return to work at that location.
4th Incident June 2011 to November 2011 – Perceived Threat
This matter was already addressed in this claim in the ARO’s decision dated November 28, 2013 wherein the events between June 2011 and November 2011 related to some perceived threats from a subordinate employee about how he was being treated. This employee made claims about the worker to some youth in the correctional facility suggesting the worker was racist and was harassing the staff member in question and disrespecting the native culture of the youth in the facility. The youth later believed the staff member was terminated and the worker was the reason for it.
The worker felt she was now targeted by the youth and felt as if she was at risk for being harmed when she did her rounds. On one occasion in the dining hall she overhead youth pointing at her and calling her a racist. At one point, one of the youths approached her in an aggressive manner and said “what are you going to do now?” and walked away.
She was diagnosed with adjustment disorder and insomnia in December 2011 and major depression with anxiety in April 2012. In May 2012 a psychologist diagnosed traumatic-related anxiety originating from the workplace and Post-Traumatic Stress Disorder (PTSD). As per the ARO decision, she underwent an independent psychiatric assessment on April 5, 2013 where the incidents were summarized (including a previously unreported incident when a co-worker grabbed her breast) and her report that she had moved to another town. The psychiatrist believed the work incidents led to a PTSD diagnosis and an Adjustment Disorder with Mixed Anxiety and Depressed Mood that quickly progressed to Major Depressive Disorder.
This event was denied in the ARO decision as not being objectively traumatic.
These occurrences are not disputed by the employer. In fact, the employer has taken the unique position of supporting the worker’s claim for cumulative TMS in their letters dated January 20, 2014 and June 23, 2014.
In all cases for entitlement, there needs to be a compatible medical diagnosis for allowance to occur. In most cases, medical treatment for injuries or conditions occurs immediately after the injury. In all cases where there is a delay in seeking medical treatment, the decision-maker must determine if the delay is reasonable and if the resulting diagnosis remains compatible with the originating accident or incident.
In this case, the worker acknowledged that she did not obtain medical treatment for work-related stress when she lived in her previous city. Her subsequent family doctor issued a letter dated May 15, 2014 attached to her medical reports indicating there were no visits for psychological issues in her records from 2003-2008. In speaking with the CM on April 17, 2014 she believed that speaking about the 2011 incidents during her treatment reminded her of the other events. She then indicated to her CM on May 29, 2014 that she did not mention anything to her doctor because she was one of the first female managers and did not want anyone to think she could not do the job.
The doctor’s chart notes provide useable information about the worker’s state of mind and clearly identify the work events as the source of her anxiety. For example, the chart notes starting from January 17, 2012 identify her harassment at work since June 2011 related to the racist accusations of a subordinate which caused the juvenile inmates to turn against her. She also reported having her car “keyed” and two flat tires and being worried about her safety. Daytime anxiety, agoraphobia and poor sleep were noted symptoms. By April 2012 she reported getting prank phone calls at work but police took no action. Sleeping pills were prescribed.
Her psychologist completed a Functional Abilities Form (FAF) on February 22, 2012 authorizing her off work until such time that she completed her psychological treatment. Her psychologist also completed a medical examination for insurance benefits in April 2012 and diagnosed Post-Traumatic Stress Disorder. He confirmed the diagnosis in a letter to the CM on May 18, 2012 and believed she rightfully perceived being the subject of physical violence at work and was in a high risk situation in the community. No prior similar history of anxiety is reported.
There is a more thorough independent psychiatric examination on file dated April 5, 2013 that appears to have been requested by the third party insurer. The principal stressor appears to be the events of June-November 2011 when the worker was being targeted by youth at the correctional facility. She reported receiving phone calls with “heavy breathing” at the other end and a fear of going into the city because the youth tended to be there. She has fear and anxiety about returning to work and avoided coming to the city so she moved to a smaller town. The report documents the worker claiming that her condition caused her to relive events that had happened fifteen years earlier starting with the 1998 riot when she recalled youth were coming at her with pitchforks, shovels and bats. She also relived an incident when a co-worker grabbed her breast even though she did not report it when it happened.
Her symptoms that are said to be caused by the accumulation of the events are well described in the report. They include distressing recollections of the events that happened at work, recurrent dreams of the events, flashbacks of the events and psychological distress on exposure to anything that reminds her of these situations.
She was diagnosed with PTSD and also an Adjustment Disorder with Mixed Anxiety and Depressed Mood which quickly progressed to Major Depressive Disorder on Axis I of the DSM-IV diagnostic tool. Her work issues were seen as the “precipitating and perpetuating” factors for her impairment and they continued to cause her psychiatric problems.
Having fully considered the matter, I accept that there is a causal relationship between the Axis I diagnosis and her exposures to the described events at work. In each described event, the worker believed her safety and well-being were threatened by the actions of others and the perceived danger lingered even after the events had ended. I do not accept the CM’s opinion that the strike event in 2002 was caused by an employer’s action or decision since it is clear from the worker’s statement that the “strike” was not the stressful event.
The prior ARO decision that the last event was not “sudden or unexpected” does not preclude it from being considered as a component of the resulting psychiatric impairment particularly when the events are viewed holistically and with an eye towards the “cumulative” TMS portion of the policy.
For example, the policy states in part:
The Workplace Safety and Insurance Board (WSIB) recognizes that each traumatic event in a series of events may affect a worker psychologically. This is true even if the worker does not show the effects until the most recent event. As a result, entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic (significant).
In my view, this is the precise manifestation of the worker’s psychiatric condition. I am not troubled by the fact that she did not seek medical treatment until the last event because she may not have been functionally impaired until the last event. She also provided a reasonable explanation that she did not seek treatment after each event because she did not want her employer to think she was unfit for her management position.
Therefore, I am satisfied the worker meets the qualifying criteria for entitlement to TMS from the cumulative effect of work events as she described. The matter of benefits flowing from this decision is left to the operating area to decide.
CONCLUSION
Entitlement to TMS from cumulative exposure is granted.
The worker’s objection is allowed.
DATED February 25, 2015
Mr. D. Giannobile
Appeals Resolution Officer