WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20172039
OBJECTING PARTY: Worker
REPRESENTED by: Barrister
RESPONDENT: Employer Ltd - Not Participating
HEARING: Hearing in Writing
HEARD by: D. Gowanlock, Appeals Resolution Officer
DATED: December 18, 2017
ISSUE
The worker is objecting to the decision dated March 13, 2014 that denied entitlement to Traumatic Mental Stress (TMS).
BACKGROUND
This now 68 year old Sales Representative was hired by the retailer in June of 2003.
As a result of an Appeal Resolution Officer (ARO) decision dated August 21, 2012 under prior claim xxxxxxxx for a head injury, the worker representative requested that a new claim be registered for benefits for mental stress caused by a traumatic event that may be the result of a criminal act. The ARO decision notes that on September 13, 2011 the worker alleged that she was violently assaulted at her place of work prior to being asked to leave the employer’s premises. As a result of the alleged assault, the worker suffered severe psychological injuries and had significant fear for her health and safety. The employer provided a different account of what transpired on that day. The ARO indicated that the worker may, at her discretion, pursue entitlement to benefits for traumatic mental stress.
After this case was established, the Case Manager reviewed the details of the case and given the differing accident histories provided by the parties, the Case Manager decided to list the case for a field investigation.
On March 7, 2014 the Case Manager reviewed the details on the case record including the investigation report and video footage provided by the employer and in referencing policy 15-03-02 determined that there was insufficient evidence to support that the worker was assaulted as alleged on September 13, 2011. Initial entitlement to Traumatic Mental Stress was denied.
The worker objects this decision and the worker representative provided an Appeal Readiness Form dated March 31, 2017 and a submission dated March 7, 2017. It is the position of the worker representative that the worker developed a debilitating traumatic mental stress resulting from the assault that she suffered at the hands of the store manager Mr. X. The representative suggests that it is reasonable to expect that employee statements are self-serving as the employees would likely fear losing their jobs. According to the worker, the employees were not in the vicinity of where the assaultive behaviour took place. The representative suggests that someone or some people are not telling the truth.
The worker is seeking entitlement for Traumatic Mental Stress as well as a loss of earnings and these are the issues before me.
AUTHORITY
The following Operational Policy applies:
15-03-02 Traumatic Mental Stress
ANALYSIS
Initially only claim xxxxxxxx was referred to me in order to address the worker’s objection. Upon reviewing this case in terms of the issue of Traumatic Mental Stress I found it necessary to reference documentation in prior claim yyyyyyyy. In order to ensure fairness, I contacted the worker representative and advised that I would be referencing the prior claim in my decision and as a result, access of the prior claim was made available to the worker representative and the representative was provided with additional time to provide another submission if required.
On November 30, 2017 the worker representative provided a submission referencing the worker’s prior claim and the effect that the prior work-related injury had on the worker and how it impacted her claim for Traumatic Mental Stress.
In my review I have had regard for the claim file information, relevant policy, legislation and the submissions put forth by the worker representative with respect to the issue. I have considered all the evidence and the following is a summary of my decision.
Issue: Entitlement to Traumatic Mental Stress
I find that the criteria required allowing entitlement to Traumatic Mental Stress has not been met. I arrived at this decision based on the following:
Case Details:
Under prior claim xxxxxxxx, on August 19, 2010 the worker slipped and fell on a wet surface, striking her head in the process. According to memorandum #2, initial entitlement was accepted for a head injury and a loss of earnings benefit was paid from August 20, 2010 until September 6, 2011 at which time the worker return to part-time modified duties.
In reviewing this prior case, I have taken into consideration the assessments, consultations and discharge summaries provided by the Toronto Rehabilitation Institute (TRI) including reporting from the Psychological Trauma Program (PTP) from April of 2011 through September of 2011.
After returning to work on September 6, 2011, a Return to Work (RTW) Coordinator from the TRI met with the worker and one of the owner’s Mrs. X on September 13, 2011 to discuss the worker’s progress. According to the worker, after the meeting, an incident occurred between the worker and Mrs. X’s husband.
As documented in memorandum #8 dated February 7, 2014 the worker confirmed that on September 13, 2011 she attended the employer’s premises to participate in a RTW meeting. The worker was advised that the owner Mr.X would not be in attendance but this his sister, the co-owner, Mrs. X would be attending in his place. The worker confirmed that the meeting went well and that her full pay would be restored by the employer. After the meeting the worker was asked by the owner’s husband to meet him in the staff kitchen area at which time he reportedly asked her for her keys. According to the worker, the owner’s husband became enraged and yelled at her to get out of the store and to not return and that he did not want to see her. When she questioned the owner’s husband, he became angrier and began to yell louder. He reportedly moved closer to the worker, made contact with her face and chased her around the kitchen table. She stated that she felt fearful for her safety and thought that he was going to kill her. A co-worker came to the kitchen and restrained the owner’s husband and pulled him into another room. The worker stated that it took her fifteen minutes to calm down before she could drive home.
According to the Employer’s Report of Injury – Form 7 dated February 19, 2014 the worker was asked to go home after demonstrating bad behaviour with the co-owner. She slammed down displays of jewellery and was angry that the other owner was not present for the RTW meeting. As per the employer, the worker left the store on her own and walked out the front door.
In memorandum #31 dated September 28, 2011 the RTW Coordinator advised the Case Manager and that the activity documented in the video appeared to be an argument with both parties being “at fault”. The employer confirmed that modified work continued to be available but that the worker needed to stop discussing her symptoms with the other employees and advising the other employees that she was doing the employer a favour by coming back to work. The worker did not know when she would be back to work. She was scared and scarred by the incident and could not return to work.
The TRI Return to Work Progress Report dated September 29, 2011 prepared by the RTW Coordinator documents details of the events from the perspective of the worker and the employer. According to the RTW Coordinator she was able to view a short store surveillance video of a verbal exchange between the worker and the owner Mrs. X however there was no audio. The video showed the worker and the owner having a verbal exchange with hand movements from both parties. The worker was hidden behind a plant and did not show how the worker was handling the jewellery after the verbal exchange. There is no video clip of when the owner’s husband Mr. X asked the worker to leave the area and meet him in the kitchen. There was no video surveillance in the kitchen.
The WSIB RTW Intervention Memo dated December 1, 2011 notes that the worker reported that there was an incident at work where she was told to go home for the day. There is no reference to the incident involving Mr. X. The worker did not express any concern in terms of the physical suitability of the modified work or her RTW plan.
The employer provided a letter to WSIB dated June 6, 2012 and provides a summary of their understanding of the worker’s injuries from the initial slip and fall in August of 2010 through the worker’s return to work and the September 13, 2011 RTW meeting. The employer described the worker’s behaviour as manipulative and misleading. The owner supported the actions of the sales manager Mr. X and his reaction to the worker’s behaviour on September 13, 2011. It is the position of the employer that the accusations put forward by the worker are completely fabricated and ridiculous.
The Claims Investigation Report dated February 20, 2014 documents a conversation with the worker’s representative at the time. He indicated that the worker would provide a Form 6 and witnesses however given her emotional state, anything else was likely not possible. There is no statement from the worker to provide her account of the incident nor is a Worker’s Report of Injury – Form 6 on the case record.
The Claims Investigator interviewed the employer on February 19, 2014 who confirmed that he was called away for business on September 13, 2011. The employer stated that the worker had been prodding him to report to WSIB that she was not functioning and that she was not doing well in her job. The employer reported to the worker that he would do not such thing. He confirmed that the worker was functioning well and he was happy with her work. The worker spoke of family duties and obligations that were being interrupted by the return to work and potential increase in hours. The employer is adamant that nothing more than a workplace type of discussion took place. There was no violence, harassment or an objectively traumatic event that took place. The investigator was provided with access to all of the other employees that were on shift that day.
The Claims Investigator obtained a statement from the other owner Mrs. X. She stated that the worker was very angry and agitated during their discussions. Mrs. X became so upset by the worker’s tirade directed towards her; she was unable to open the combination lock on the safe, which she knows by heart. Mrs. X stated that she thought the RTW was going well and the TRI RTW Coordinator thought so as well. When she left after the RTW meeting, her husband Mr. X arrived and the worker was working. She confirmed that the worker had been trying to coach her brother into stating that the worker was not doing well, however he was not going to say such a thing to WSIB.
The Claims Investigator obtained statements from employees that were in the store on September 13, 2011. Of significance is the statement from the watchmaker who confirmed that he was in his area, adjacent to the lunchroom area. He stated that he heard the worker kind of yelling and angry about the fact that the owner Mr. B. was not in the store. When Mr. X entered the store, the watchmaker advised Mr. B. that the worker was not in good mood and that her demeanour was such that she might not be in the best frame of mind to be around customers. He confirmed that Mr. X approached the worker in a calm manner and asked her to come into the kitchen area. The witness could hear and see the entire event. Mr. X stated calmly to the worker that given the mood that she was in, it seemed to him that it was better to take her bag, give him the keys and for her to leave. The worker started to scream at Mr. X and reiterated her concerns with Mr. B. not being present. Mr. X was firm but not yelling. In a slightly louder voice he advised the worker that it was time to leave and to return to work when she was calm and ready to work. This witness confirmed that Mr. X did not chase the worker around the table and that there was at least five feet, if not six or seven feet in between them. According to this witness, another employee spoke calmly to the worker and suggested that it was probably best if she left. The witness confirmed that all employees must leave their keys at the end of the shift.
The Claims Investigator obtained a statement from Mr. X who essentially confirmed the statement provided by the watchmaker. He advised the worker that it was best for her to take her bag and go home as her attitude was poor and she was upsetting the other employees.
The Claims Investigator obtained a statement from Ms. L who confirmed that the worker was very upset that Mr. B was not present. The worker was actively slamming down trays of very expensive jewellery. The worker was very aggressive, loud and abusive towards Mrs. X. This employee confirmed that she witnessed the event and that Mr. X was very clam and advised the worker that it would be best to pick up her purse, return her keys and leave for the day as she was obviously in a state where she could not provide proper service to their customers. Mr. X remained within five feet of the worker and did not chase her around the table. This witness encouraged the worker to leave and walked her to the door.
The Claims Investigator obtained statements from two other employees who did not witness the event nor where they aware of any incident. They confirmed that the worker was angry and agitated.
The worker representative provided a submission dated March 7, 2017. Reference was made to the May 20, 2016 report from the worker’s family physician and his diagnosis of adjustment disorder, chronic pain, generalized anxiety disorder and major depressive disorder – moderate severity. According to the family physician, the worker’s mental stress claim is definitely related to her work injuries involving her head injury/loss of consciousness and secondly her traumatic emotional encounter of September 13, 2011. Based on the medical reporting on the case record in prior claim 25763490, it is the position of the representative that the worker developed debilitating traumatic mental stress resulting from the assault she suffered at the hands of Mr X. The representative opines that the statements of the employees at the workplace are self-serving for fear of losing their jobs. According to the worker, these employees were not in the vicinity where the assaultive behaviour took place. According the representative, some people are not telling the truth.
In his more recent submission dated November 30, 2017 the worker representative indicates that he echoes the submission he made on March 7, 2017. The representative referenced medical reporting from the family physician Dr. Zaremba and Dr. Arbitman. The second work-related incident that occurred on September 13, 2011 exacerbated the worker’s headaches, dizziness and fatigue, conditions that had been present since the slip and fall incident in August of 2010. It is the position of the worker representative that the worker developed debilitating mental stress as a result of her workplace accidents on August 19, 2010 and September 13, 2011.
Findings
In order to determine if the September 13, 2011 event meets the criteria for Traumatic Mental Stress I am guided by policy 15-03-02 which states that 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.
Further, the policy states …
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.
This means that the event
- can be established by the WSIB through information or knowledge of the event provided 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 suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) (e.g., speaking with the victim(s) on the radio or telephone as the traumatic event is occurring).
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.
There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function.
In reviewing this case, the employer in several documents confirms that the RTW was going well. As noted in the RTW Intervention Memo dated December 1, 2011 the worker confirmed that she had no issues with the physical suitability of the work that she performed during the RTW process. Although the worker representative suggests that the worker was struggling with headaches, dizziness and fatigue prior to the event on September 13, 2011, evidence on the case record suggests that up until the September 13, 2011, there were no issues with return to work and the worker was on target to resume full time regular duties by December 16, 2011.
In terms of the event on September 13, 2011 the worker has not provided a Form 6 to account for the event. She did not provide a statement to the WSIB Claims Investigator. As documented in memorandum #8, the Case Manager obtained the worker’s statement in terms of the accident history from the psychological report dated January 24, 2012.
Although the worker representative argues that the witness statements provided in the Claims Investigator report are self-serving, in contrast, I found the statements that were provided were descriptive and overall the reporting of the event by the four employees was consistent. The four employee statements (the watchmaker, Mr. X, Ms C and Ms. M) appear to suggest that it was the worker that was aggressive, loud and displaying inappropriate behaviour, such that it was suggested that she leave the store for the day. Given that the worker has not provided a detailed statement in her defence, I am having difficulty placing any weight on her statement that she was yelled at, touched on the face and chased around a table by Mr. X.
In order for entitlement to Traumatic Mental Stress to be accepted, there must be evidence of a sudden and unexpected traumatic event. In reviewing the documentary and medical evidence on the case record, I am unable to find evidence to support that a sudden and unexpected traumatic event took place on September 13, 2011. In my view, there appears to have been arguments between the worker and Mrs. X and the worker’s absence from work appears to have been caused by her reaction to the employer's decisions or actions that are part of the employment function specifically, when the employer asked the worker to leave the premises due to what appears to be inappropriate behaviour in the workplace.
Consequently, I find that the criteria required allowing entitlement to Traumatic Mental Stress has not been met and entitlement to Traumatic Mental Stress remains denied.
CONCLUSION
I conclude:
Entitlement to Traumatic Mental Stress remains denied.
The objection is denied.
DATED December 18, 2017
D. Gowanlock
D. Gowanlock
Appeals Resolution Officer
Appeals Services Division