WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180041
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer (Not participating)
REPRESENTED by: N/A
HEARING: Hearing in writing
HEARD by: D. Giannobile, Appeals Resolution Officer
DATED: September 20, 2018
ISSUES
The worker objects to the denial of Traumatic Mental Stress (TMS) made with respect to the amended policy dated January 2, 2018. The date of the Case Manager’s (CM) decision is May 28, 2018.
The worker objects to the denial of Chronic Mental Stress (CMS) as indicated in the decision letter dated May 28, 2018.
BACKGROUND
The file documents and prior Appeal Resolution Officer’s (ARO) decision dated June 17, 2014 provide an informative background for this claim. To summarize, the worker is a former Child Protection Worker for the employer who initially claimed she experienced stress at work on March 28, 2012 when her employer issued her a “harsh, threatening” letter. This resulted in increased blood pressure and anxiety for which she sought medical attention.
Her doctor diagnosed a possible cerebral-vascular accident (CVA) and recommended she stop working. The worker later revealed that the employer’s letter required her to participate in an investigation pertaining to an infant child of a family on her caseload that had died suddenly from a respiratory illness. The worker learned of the child’s passing on March 23, 2012. She claimed learning of the child’s death and speaking to a Police Constable about it that day caused her anxiety and a panic attack.
The Workplace Safety and Insurance Board (WSIB) denied her claim in letters dated May 4, 2012, November 22, 2012 and May 28, 2013 on the basis that the actions of her employer did not meet the standard for being objectively traumatic.
The prior ARO decision considered the appeal under the TMS policy that was in effect at the time (operational policy 15-03-02, dated October 12, 2004) and concluded neither the worker’s hearing of the child’s death nor her employer’s requirement that she participate in an investigation met the criteria for allowance under the TMS policy.
The worker objected to the denial to the Workplace Safety and Insurance Appeal Tribunal (WSIAT) who returned the matter to the WSIB to reconsider their decision against the updated TMS policy dated January 2, 2018. The WSIB’s reconsideration did not change the decision as per their letter dated May 28, 2018. The operating area also considered the worker’s claim under the new CMS policy but also found no entitlement under that policy.
The worker objects to the denial of TMS and CMS entitlement and the matter is now with the Appeals Services Division for further consideration.
AUTHORITY
Relevant operational policies:
15-03-02 – Traumatic Mental Stress (dated January 2, 2018)
15-03-14 – Chronic Mental Stress (dated January 2, 2018)
ANALYSIS
I have fully considered the worker’s appeal including her written submission dated April 11, 2014 but I find no basis on which to alter the decisions to deny entitlement under the TMS or CMS policies. The employer did not participate in the appeal. The worker’s representative did not make another submission beyond their April 11, 2014 letter. My analysis follows.
TMS Entitlement
The WSIAT requested the WSIB reconsider their TMS decision in their February 20, 2018 letter (copy now on file) due to an amendment to that policy. They believed the claim met the transitional provision outlined in that policy and qualified for a further consideration by the WSIB.
The updated TMS policy from January 2, 2018 eliminated the requirement that the worker have an “acute reaction” to an event and eliminated the need for the traumatic event to be “sudden and unexpected”.
It goes on to state:
In all cases, the event(s) must arise out of and occur in the course of the employment, and be
clearly and precisely identifiable, and
objectively traumatic.
This means that the event(s)
can be established by the WSIB through information or knowledge of the event(s) provided by co-workers, supervisory staff, or others, and
is/are generally accepted as being traumatic.
Traumatic events include, but are not limited to
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 workplace harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse), and
being the object of workplace 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 work-related traumatic event(s) first hand, or heard the work-related traumatic event(s) 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(s) is/are occurring.
The prior ARO decision on TMS considered both components of the worker’s claim. It noted that the initial reports from her and her employer (including the worker’s initial statement to the CM on April 4, 2012) were that her stress and elevated blood pressure occurred after she received a letter from the employer on March 28, 2012 that she perceived as “harsh” and “threatening”. The employer’s letter advised her that she was required to attend a “Best Practice Review” meeting on March 30, 2012 for the case involving the family with the deceased child.
Their letter acknowledges the worker advised them on March 27, 2012, she would not attend the meeting and that she did not believe the child met the definition of a “client” under their policies. The employer’s position was that the scenario met their definition and that they had reported prior similar occurrences to the Paediatric Death Review Committee of the Office of the Chief Coroner. Their policies and procedures required that a “Best Practice Review Meeting” occur in all deaths to help prevent future child deaths.
The letter goes on to state that her attendance at the meeting is “critical” and an expectation of her employment. She was also to complete a Child Fatality Summary Report one day prior to the meeting. The employer advised her that her refusal to participate in the process “borders on insubordination and is subject to serious disciplinary action.” They were also aware that the worker had consulted a lawyer with respect to the matter but they would not discuss the matter with outside counsel. The letter ends:
(The worker), the purpose of this meeting is not to find fault or assign blame, but rather to help us inform best practice guidelines in helping us serve our clients.
Emails from the employer to the worker (and others with the employer) recommended they schedule a “Best Practice” meeting to “learn from the experience”. The employer’s administrative assistant emailed the worker on March 29, 2012 reminding her to complete her report before the meeting the next day. The worker replied on March 30, 2012 at 2:20 AM that she just noticed the form attached to the email and was attaching it. She indicates that she is “sick” and just returned from the hospital. She does not disclose her illness in the email.
The CM spoke to the worker on April 4, 2012 for her statement. The worker advised that on March 28, 2012, her manager asked her to come into her office and gave her a “harsh, threatening” letter and that she would face a disciplinary committee the next day and would need to bring a lawyer.
As she read the letter, she felt her face starting to burn and had sharp stabbing pains in her chest. She continued working and made photocopies of the letter for the meeting the next day. She went home and measured her blood pressure that was “very high”. She woke up the next day and could not feel her face, felt dizzy, numb and had a headache. She went to a local hospital where they told her she had high blood pressure so she sent a text message to her supervisor that she would be unable to attend the meeting the next day. The memorandum states the worker attributed her high blood pressure and chest pain to the content of the employer’s letter.
The worker later provided additional details about what she believed was the cause of her stress. Her appeal submission dated April 11, 2014 points to the events on March 23, 2012 when she heard of the child’s death as the “unexpected traumatic event” that caused her stress.
Her submission argues the event arose out of her employment and that the child’s death was objectively traumatic for her and was unexpected in the normal course of her employment as a Child Protection Worker. She had never dealt with a child fatality on her caseload.
The prior ARO noted that the creation of this claim flowed from the worker’s reaction to the employer’s March 28, 2012 letter that she perceived to be “harsh” and “threatening”. I find it was neither harsh nor threatening. It simply advised her of her obligation to participate in a meeting after the tragic event and that her refusal to do so was insubordinate behaviour. It further clarified that the meeting would not find fault or assign blame for the child’s death. It does not support the worker’s statement that she would face a disciplinary committee and need a lawyer. The employer made it quite clear that they would not discuss the matter with an outside counsel so I do not accept the worker’s evidence on the content of the letter. It is not objectively traumatic and, therefore, not compatible with the revised TMS policy.
With respect to the tragedy of the child’s death, I also turned to the prior ARO’s analysis who noted that the worker was involved with the deceased child’s family because of another child in that family. The child apparently died of a respiratory illness in their sleep on March 22, 2012 when they were a few weeks old. There was no violence or trauma said to have caused the death. According to her appeal submission, she went into her screening supervisor’s office on March 23, 2012 who passed her a phone with the investigating officer on the other end. The officer was with the family at the time and advised her what happened. She recalled she could hear the family screaming in the background. The officer asked her to attend a joint investigation but she felt shocked, stressed and anxious and suffered a panic attack so she did not attend.
She returned to her desk and felt like she was in a nightmare. Her team supervisor and a member of the Peer Support Team tried to calm her down. She collapsed and went to the hospital on March 29, 2012 and did not return to work.
The prior ARO did not find the event as objectively traumatic and I agree. I also agree with their analysis that the event would be unsettling and unfortunate and that she would experience great sadness but her proximity to the event was remote. The worker had a grief response after hearing tragic news about a family on her caseload. I find the worker did not experience an objectively traumatic event to the extent that meets TMS entitlement. For that reason, entitlement to TMS remains denied.
CMS Entitlement
The operational policy for CMS states in part:
A worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment.
A worker is not entitled to benefits for chronic mental stress caused by decisions or actions of the worker’s employer 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.
It goes on to state:
Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
And:
There is no entitlement for chronic mental stress caused by an employer’s decisions or actions that are part of the employment function, such as
terminations
demotions
transfers
discipline
changes in working hours, or
changes in productivity expectations.
However, workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as
workplace harassment, or
conduct that a reasonable person would perceive as egregious or abusive.
The CM’s May 31, 2018 decision addressed the employer’s March 28, 2012 letter as the cause of the worker’s stress and found that it contained no evidence of excessive, abusive or egregious language or behaviour and followed their protocol following such events. I agree with their assessment and confirm my earlier finding that it was not abusive or threatening contrary to the worker’s claim. Their letter is not accusatory and advises that meeting with her will help them deal with future similar events. It reminds her that her participation in the meeting is vitally important and that they would see it at insubordinate behaviour if she did not attend.
The March 28, 2012 letter contained information related to an employer process for which the worker was obligated to participate. There is no entitlement to CMS based on the employer’s March 28, 2012 letter.
With respect to the worker’s reaction to the child’s death, I also find it does not meet the threshold for entitlement under the CMS policy.
The policy states:
A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.
It defines a substantial work-related stressor:
A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
I acknowledge the worker’s statement that this was the first fatality she had experienced in her employment and role as a Child Protection Worker. She also claimed in her April 18, 2013 letter to the WSIB that “witnessing” a child of a family on her caseload die was “unexpected” and “very traumatic”. However, she did not witness the child’s death. A constable advised her of it by phone while she was at work.
I do not find the event of the child’s death from apparent natural causes to meet the definition of a substantial work-related stressor. As I indicated earlier in this decision, I find the worker had a remote connection to the event. There is no evidence how much contact, if any, the worker had with this child in its short life. I do not doubt or dispute that hearing of the child’s death caused her sadness for a period but the employer did not investigate her or accuse her of any negligence related to it since the evidence suggests the child died from natural causes.
While the rareness of such an event may enhance a person’s reaction to it, it does not meet the standard of a substantial work-stressor for the purpose of CMS entitlement.
Therefore, CMS entitlement is denied.
CONCLUSION
Entitlement to TMS under the revised policy is denied.
Entitlement to CMS is denied.
The objection is denied.
DATED: September 20, 2018
D. Giannobile
Appeals Resolution Officer
Appeals Services