Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20170015 Objecting Party: Worker Represented by: Self Respondent: Employer (Not Participating) Hearing: Oral Date: June 2, 2017
Issue
The worker is objecting to the Case Manager’s decision dated March 3, 2015 which denied her claim for benefits under the Traumatic Mental Stress (TMS) policy.
Background
The worker, then 59 years old, with the employer since October 26, 1989, was working as an Administrative Assistant at the time of her injury. The worker claimed to have developed a psychological reaction as a result of being assaulted by her supervisor on May 8, 2015.
The Case Manager conducted enquiries to clarify the accident history. The Case Manager, in her decision dated March 3, 2015, denied entitlement under the TMS policy concluding there was insufficient evidence to demonstrate she was assaulted by her supervisor. The worker objected to this decision.
The worker provided further information requesting reconsideration of this decision. The Case Manager, in reconsideration decisions dated March 14, 2016, May 11, 2016, and December 16, 2016, confirmed the denial of entitlement under the TMS policy. The worker objected to these decisions.
Authority
Operational Policy Manual Documents
Policy 11-01-01 Adjudicative Process Policy 11-01-02 Decision Making Policy 15-03-02 Traumatic Mental Stress Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
Analysis
In reaching my conclusions I considered the claim file record, the worker’s testimony, and the relevant policy and legislation. I have only included a synopsis of the relevant testimony from the worker in my decision.
The worker’s doctor attended the hearing as an observer and for moral support of the worker.
Prior to the hearing the worker provided two documents which summarized the information she was going to testify to. Both documents are dated May 31, 2017, one in the form of a letter and the other in chart form which demonstrated a before and after comparison of her activities when considering the impact of the May 8, 2014 incident. The information provided in these documents was consistent with the previous information submitted to file.
The worker confirmed she would provide testimony in French; however, wished to have the decision provided to her in English.
Worker testimony
The worker provided the following testimony:
- She had previous surgery to her right shoulder in 2010 and staff knew her shoulder was not 100%.
- She and a co-worker were working on a draft report with a tight deadline. Their supervisor, following a morning meeting, provided revisions which needed to be done before the report would be ready. Her co-worker agreed to insert the revisions and forward the document to her.
- She returned to her office and a few minutes later her supervisor came to her and in a loud voice advised further revisions were to be done to the document.
- She walked toward her co-worker’s office to update her on the added revisions required to the document. She stated she wasn’t aware her supervisor was following her; he bumped her from behind and grabbed her shoulders three times digging his fingers into her shoulders. She stated her knees buckled and when she arrived at her co-worker’s office she was in tears.
- Following this incident she relied on her co-worker to complete the report.
- She had a strong work ethic and didn’t want to let her team down so she continued to work until May 16, 2014 by self-medicating. She further added on several occasions following the incident her supervisor came to her desk, stood beside her and spoke to her loudly and close to her face.
- She sought medical attention at a local hospital emergency department on May 19, 2014 and with her family doctor on May 24, 2014 due to her injuries.
- She has not returned to work since May 16, 2014, no longer participates in Ballroom dancing nor travels to Montreal to visit her children/grandchildren as she did prior to the incident.
Assessment of evidence
The issue before me is the worker’s entitlement under the TMS policy. I find in favour of the worker and have outlined my reasons below.
To be entitled to benefits for Post-Traumatic Stress Disorder (PTSD) policy 15-03-02 indicates there must be an objectively traumatic event, the traumatic event must arise out of the employment, must be sudden, must be unexpected and there must be an acute reaction.
An acute reaction is said to be immediate if it occurs within four weeks.
I find there is sufficient evidence to demonstrate the worker suffered a traumatic event on May 8, 2014 and developed an acute reaction due to this event. In arriving at my conclusions I am persuaded and place greater weight on the following:
- That the police officer did not proceed with future investigation of the incident does not disqualify the worker from entitlement to benefits under the Workplace Safety and Insurance Act. The standard of proof is that of balance of probabilities and not beyond reasonable doubt.
- The worker claimed she was grabbed from behind and her supervisor dug his fingers into her shoulders causing pain and her knees to buckle. When she arrived at her co-worker’s office she was in tears.
- The co-worker, during the internal investigation, confirmed she witnessed an incident in which she heard the worker say “Ow, ow, ow, my shoulder, “K”.” Although the witness could not recall the exact date, she could recall the worker had tears in her eyes following the incident.
- The worker sought medical attention on May 19, 2014 and provided the emergency staff a history of injury consistent with the history reported to her employer. The worker’s injury was diagnosed as muscular pain exacerbated by stress and she was authorized off work for one week.
- The worker sought medical attention on May 24, 2014 with her family doctor for a diagnosed PTSD and bilateral shoulder trauma for which she was referred for physiotherapy treatment.
- The family doctor’s clinical notes demonstrated the worker continued to seek medical attention for bilateral shoulder pain and PTSD.
- The family doctor completed an Insurance questionnaire on September 12, 2014 advising the worker was unable to work due to her PTSD symptoms and that the worker required psychotherapy treatment.
I find the worker was in the course of her employment when she was grabbed by her supervisor. I am satisfied the act of her supervisor grabbing the worker and jabbing his fingers into her shoulders is clearly identifiable and, in my opinion, would be general accepted as traumatic. In assessing the significance of this incident I cannot discount, as per the worker’s description, the stature of the supervisor compared to the worker.
I also find the incident was clearly unexpected. It would not be normally expected, in a normal office environment, that a supervisor would bump and grab an employee from behind, then dig their fingers into the employee’s shoulders.
I find the worker suffered an acute reaction to this event as she sought medical attention on May 19, 2014 and May 24, 2014. She was subsequently diagnosed with PTSD and bilateral shoulder trauma, injuries which are consistent with the described event.
I further find the medical reporting on file demonstrated the worker was unable to return to work due to her injuries from May 19, 2014 until September 12, 2014. Updated medical information, including reports from the Psychiatrist or Psychologist, will be required to determine the worker’s entitlement loss of earnings (LOE) and health care benefits beyond September 12, 2014.
Conclusion
I conclude the worker suffered an acute reaction, diagnosed as PTSD and bilateral shoulder trauma, due to the incident on May 8, 2014. I further conclude the worker is entitled to LOE benefits from May 19, 2014 until September 12, 2014 less any advances and insurance benefits received for the corresponding period of time.
The nature and extent of the worker’s entitlement to LOE and health care benefits beyond September 12, 2014 are remitted to the operating area for determination subject to the usual right of appeal.
The worker’s objection is allowed.
DATED June 2, 2017
Mr. D. Duguay Appeals Resolution Officer Appeals Services Division