WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190072
OBJECTING PARTY: Worker
REPRESENTED by: Self-Represented
RESPONDENT: Employer
HEARING: Hearing in Writing
HEARD by: S. Di Carlo, Appeals Resolution Officer
DATED: May 21, 2019
ISSUES
The worker objects to the denial of initial entitlement for a mental stress injury as addressed in the Case Manager’s (CM) decision dated August 29, 2018, which denied entitlement to Chronic Mental Stress (CMS), and denied presumptive entitlement to Posttraumatic Stress Disorder (PTSD) in First Responders and Other Designated Workers.
PRELIMINARY:
The worker was contacted to confirm whether she remains unrepresented within her appeal with the Workplace Safety and Insurance Board (WSIB) further to memo A0031. The worker confirmed she wished to proceed with the appeal with the available information on file, and that she remains unrepresented in this appeal.
BACKGROUND
This claim was set up with a date of injury of February 14, 2018 when this now 56-year-old correctional officer, claimed to be experiencing various types of harassment by members of management for not accommodating her health conditions. Also, the worker reported interpersonal conflict between herself and her co-workers and alleged she was taunted, teased and baited by them.
The worker has been losing time from work since 2012 and filed 11 grievances which were referred for arbitration by her union on her behalf. A decision was rendered on July 5, 2017, by the Grievance Settlement Board (GSB). Four (4) grievances were dismissed and seven (7) grievances were upheld. A subsequent decision dated January 22, 2019, awarded the worker a $35,000.00 monetary compensation for injury to dignity, feeling, and self-respect.
In the decision dated August 29, 2018, the CM determined the worker does not have entitlement to a mental stress injury. The CM concluded that entitlement under the CMS policy was not in order as there was no evidence of egregious or abusive behaviour, or evidence that would meet the threshold of workplace harassment or bullying. Also, entitlement to PTSD in First Responders and Other Designated Workers was also contemplated, but rebutted.
The worker submitted additional information and the CM reviewed and reconsidered entitlement in the decision dated October 25, 2018, and upheld the denial of entitlement.
The worker objects to the denial of initial entitlement to a mental stress injury and the case is before the Appeals Services Division for consideration.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy:
15-03-13 – Posttraumatic Stress Disorder in First Responders and Other Designated Workers
15-03-14 – Chronic Mental Stress
ANALYSIS
In reaching my conclusion I considered all of the available information in the file and the position of the parties and I have evaluated the worker’s appeal in the context of the facts of the case and the application of that legislation and applicable policies. Based on my assessment of the evidence, I find the circumstances do not satisfy the criteria for entitlement to a mental stress injury and I will outline my reasons for reaching this conclusion.
Worker’s Position
In the submission received September 25, 2018, the worker expressed concern over the CM’s decision. The worker positioned that she has continued to be bullied ongoing since 2016 and she was in the process of waiting for the Arbitrator’s decision following the GSB decision, regarding the restitution money for being bullied in the workplace. The worker positioned her health condition has deteriorated.
The worker stated that as a result of being bullied in the workplace she filed Occurrence Reports with the employer and believes it remains the responsibility of the employer to submit the Occurrence Reports to the claim file.
She positioned the interpersonal conflict she experienced was not normal, as evidenced by the GSB decision and referenced the GSB decision set in language that she had been bullied to “the higher end of the scale” in support of her claim. She maintained that the GSB decision and the opinions of her treating practitioners support her chronic mental stress resulted at the hands of her employer.
In addition, the worker submitted a copy of the GSB decision dated January 22, 2019, which determined the quantum of damages payable to her for injury as a result of the previous GSB decision of July 5, 2017, to validate workplace bullying she experienced. The worker relied on the language set out in the GSB decision to support the workplace bullying she encountered.
Employer Representative’s Position
The employer representative’s submission of March 5, 2019, indicates that the case underwent comprehensive review in determining that the eligibility requirements were not met under the applicable mental stress policies.
The employer representative concurs that eligibility under the presumptive legislation is not in order as the PTSD diagnosis was not a result of workplace exposure, but rather the medical information supports the worker’s PTSD is related to personal, non-occupational issues. The employer representative positioned that it has not been established that the PTSD diagnosis arose out of and in the course of employment, and maintained that the work-related issues and stressors related to the worker’s grievance settlement are considered in the category of the employer’s actions that are part of the employment function, and employment function issues are not eligible for entitlement.
Further, the representative referenced that the GSB decision concluded that the interpersonal conflicts between the worker and employer did not amount to workplace harassment. The employer representative positioned that many of the worker’s allegations of workplace harassment occurred prior to April 29, 2014, and in accordance to the CMS policy, these occurrences pre-date the established timelines for consideration within the policy framework. Moreover, the employer outlined given the worker’s record of absences in the workplace from 2014 and beyond, that the alleged occurrences would not be considered to have taken place in the course of employment. The representative seeks that the appeal be denied.
GSB decisions
In this case, the worker submitted the GSB decision to support that her employer’s treatment of her caused her chronic mental stress. I have reviewed the GSB decision of July 5, 2017, (approximately 63 pages) and note I cannot capture every detail as the decision is part of the file record; however, I have summarized what I found to be key aspects for this appeal:
The worker filed 11 grievances against her employer pertaining to the worker’s contention that her employer failed to accommodate her when she was able to return to work from sick leave, and/or that it denied her short-term sick pay (STSP) at various points when she had provided medical reports from her doctor confirming her health condition. The worker claimed to be bullied and harassed by her workplace.
No time frames were provided for allegations of taunting, teasing and baiting by co-workers, therefore, no findings of fact have been concluded regarding these allegations.
The worker claimed since 2009 or 2010 that management had targeted her and treated her differently from her co-workers. She claimed that management advised co-workers to make comments about her, and that she was subject to taunting and racially charged comments. Also that she was being teased and baited by her co-workers which led her to file a number of Occurrence Reports.
The worker had been a local union steward, and around 2009, the worker represented a co-worker that was also a correctional officer, in relation to allegations of misconduct in the workplace. The worker believed her co-worker; a female of racial minority had been falsely accused by a white male and/or white co-workers of making statements and a gesture. The worker claimed she advocated on her co-worker’s behalf and the worker believed that her employer had taken reprisals against her for representing this female of racial minority.
The worker claimed that as a result of the harassment and differential treatment, she began to feel extremely stressed and took a lot of time off work in the months and years after 2009.
The worker claimed that in retaliation against her for representing her co-worker, the employer moved the worker from her post in Property Release to the Video Court assignment. This occurred around September 2010.
Around 2012 the worker was dealing with her terminally ill parents, as her brother was not around to assist with their care. The worker also had her own family to look after. During her father’s illness, he would call the worker at work repeatedly for assistance which resulted in the worker leaving work to attend to her parents.
The worker’s parents were apparently hoarders, and as they became more ill, the worker had to deal with clearing their home, cottage, and residence in the United States. The worker’s father passed away in 2012 and her mother passed away in December 2013; prior to the worker having to make an extremely difficult decision to have her mother’s legs amputated.
During both 2012 and 2013, the worker took the maximum STSP annual credits of 130 per year; in 2014 she utilized 109 STSP credits, and in 2015, she used the maximum of 130 STSP credits.
An Independent Psychiatric Evaluation (IPE) was arranged by the employer for September 16, 2014, with a psychologist – this report indicated no psychological disorder meeting the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria, and no psychological limitations or restrictions [although this report indicated severe anxiety and depression from self-report questionnaires, and recommended chronic behavioural therapy (CBT)].
In August 2015, the worker has been in receipt of Long Term Income Protection (LTIP) benefits and was also approved for Canada Pension Plan Disability benefits.
The Grievance Board concluded with respect to the 11 grievances: seven (7) grievances were upheld and four (4) were dismissed. Of significance, I note the grievance regarding bullying and harassment was dismissed. The parties requested no specific damages award be made, and that they be given the opportunity to work on remedial issues between themselves. The GSB remained seized to address the quantum of such an award should the parties be unable to work out any of the remedial issues within 60 days of the date of the decision (July 5, 2017).
The GSB decision concluded the following findings in the worker’s favour:
The worker should have been paid her full salary from November 27, 2013 to February 17, 2014, less any period she would have received payment from the employer, as the employer should have accommodated the worker’s absence in accordance with her doctor’s notes.
The employer’s refusal to accommodate the worker in accordance with her doctor’s note of November 27, 2013, was discriminatory, and a breach of the employer’s duty to accommodate the worker’s disability under section 17 of the Human Rights Code.
The worker may not have been paid for the first six days of her STSP use in 2014, when she should have been paid at 100% of her wages, and therefore, at the 75% rate from October 1, 2, and 3, 2014, or for any other period that the parties may find in 2014.
The worker should be permitted to access the STSP credits to which she was entitled to in 2014.
The employer was ordered to compensate the worker for payments she made for doctor’s notes and reports obtained between December 2013 and February 2014, and, after the first note from Dr. Catania in early April 2014, for the remainder of the medical notes required between April and May 2014.
The worker should be permitted to utilize the 21 remaining STSP credits she had for 2014, no matter what days are covered by those credits.
A monetary compensation for injury to dignity, feelings and self-respect further to the above findings, as a result of the discrimination the worker experienced by the employer that falls closer to the high end of the spectrum.
The GSB decision concluded the following grievances were dismissed:
The employer violated various articles of the collective agreement by unjustly subjecting the worker to hardship in the form of absence, reductions in payments, and two independent medical evaluation requests.
The worker was bullied and harassed by xxxx.
The employer breached the Management Rights and No Discrimination clauses of the collective agreement by withholding regular pay through deductions that the worker had not approved, causing her financial penalties, embarrassment and family complications (this was combined with two grievances filed on the same day).
A subsequent GSB decision dated January 22, 2019, confirmed the quantum of damages that were payable to the worker as compensation for “injury to her dignity, feelings and self-respect” in the amount of $35,000.00.
Medical Evidence
Clinical notes from June 2012 to December 2018 were provided to the claim file by the worker’s family physician Dr. Catania; however, these clinical records do not have dates of individual records.
The following clinical notes include:
Stress from parents being terminally ill, “feeling like being pulled in many directions – managing her parents finances, having to deal with brother, trying to be a parent and partner”
Feeling “very alone, mom in rough shape”
Off work – took a leave of absence – noting being paid at present
Declined special leave from work which led to grievance
Hair loss left eyebrow with rash; face disfigured
Financial stressors regarding her parents estate, litigation with brother, legal fees, fear of losing house and work pension (if fired)
Stress at work: negative work environment
Workplace harassment: falsifying stories, sexist comments from co-workers, hostility from displaced officers
The worker was assessed by Dr. Dhaliwal for a psychiatric consultation on June 23, 2015. The report outlined the worker opened the statement by saying “she is destroyed, she is finished, she is depressed and she’s not worth anything.” Regarding the history of the worker’s present illness, Dr. Dhaliwal stated she has spent a number of years dealing with multiple stresses and her illness includes depression, PTSD and anxiety. The worker reported prevailing a long history of her work and the trauma she has suffered from work. She described she has worked for almost 30 years but the last five (5) years she has felt stressed, and the stress has translated into her pulling hair on her eyes and areas around the eyes to the point that it bleeds and it cannot be hidden with make-up.
Dr. Dhaliwal references that the worker reported in 2011 that she represented a female of racial minority and “she developed insomnia, rage, depression, guilt, and could not concentrate, thinking about the incident… so the [worker] felt herself traumatized by representing this lady over and over again and feeling bad about the whole episode which started affecting her.” The worker reported she has taken a number of sick leaves which have not been presented well and caused her financial stress, which adds to her personal misery. The worker was diagnosed with symptoms of major depressive disorder and PTSD. Medication and counselling were recommended. I note that no specific examples of trauma in the workplace were identified.
The psychological report completed by Doctors Verraich and Singh on August 7, 2015, summarised that the worker was adopted at two (2) months old, and reported a positive childhood and upbringing; however, she noted she experiences an underlying insecurity relating to identity issues. She reported close relations with her adoptive brother until a falling out in her early twenties; which was aggravated following her parents’ deaths in 2012 and 2013, and has resulted in no communication since.
The report referenced the severe illnesses her parents experienced that resulted in their passing, has been difficult for the worker as she took care of them and it was emotionally distressing to see their health deteriorate. Also, the worker reported the exhausting and draining process following her parents’ death, as she was required to clean out and sort the three (3) homes her parents owned. Regarding the history of her presenting problems, the worker reported that her anxiety began around 2009 when she got involved with a co-worker’s racism claim at work and this process was “exhausting.” In 2010, the worker was involved in a disciplinary action at work for threatening a co-worker; however, the worker reported that she was unfairly targeted and potentially singled out for sticking up for her co-worker in the previous year. As time progressed, the worker was unable to manage at her workplace, and her employer did not accept her doctor’s notes, which led to pay loss. Treatment recommendations included CBT to assist with her depression and anxiety.
Dr. Lawson’s June 7, 2018, psychiatry report indicated that the worker reported past diagnoses of PTSD, major depressive disorder and trichotillomania. The worker was diagnosed with persistent depressive disorder, late onset, with persistent major depressive episode, moderate-severe PTSD, with panic attacks and trichotillomania. The worker experienced repeated exposures to various traumatic events throughout her multiple years as a correctional officer with repeated ongoing flashbacks and nightmares on a daily basis. The worker reported fear with an unsupportive work environment and distrust of colleagues if something severe was to happen. I note Dr. Lawson did not identify what the specific exposures of traumatic events were or the flashbacks or nightmares as being related to work events.
Dr. Lawson’s medical report dated September 24, 2018, outlined that the worker met the DSM-5 criteria for PTSD, which the worker was also diagnosed in June 2015 by Dr. Dhaliwal as PTSD based on the DSM-IV criteria at that time. He maintained his prior handwritten notes indicate the worker “experienced repeated exposure to various traumatic events through her multiple years as a correctional officer” based on the worker’s reporting.
Dr. Catania’s medical report dated December 4, 2018, indicated the worker has a “long history of major depression and PTSD. This dates back to many years ago when she was the primary caregiver of her elderly and unwell parents. After they died, she was the executor of their estate which caused more trauma in the family. Additional stressors included workplace issues with an unsupportive employer.” Dr. Catania stated “over the past 2 years, [the worker] has noted continues stressors and most recently this involved a legal battle with her brother over her parent’s estate.”
The worker was seen by Dr. Mulder further to the psychiatry report dated March 12, 2019. The worker reported her issues began in 2009 while working as a correctional officer when she took up a case of a colleague that was being bullied at work as a union steward. The worker reported following this, she herself was being bullied. “She states that they moved from her area of work to another place. She felt that she was under constant surveillance by a manager that was intimately involved with another superior with whom she was at odds because of the representative she was offering this other person.” The worker reported to feeling more “bullied” in the workplace, which started to develop increased anxiety. In terms of a psychiatric history prior to 2009, the worker reported never being seen or treated for any psychological issues.
The worker was diagnosed with PSTD, trichotillomania and one (1) problem related to employment.
I now turn to whether the worker has entitlement for CMS.
Policy 15-03-14 titled Chronic Mental Stress, states that “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.” Furthermore, the substantial work-related stressor must be the predominant cause of an appropriately diagnosed mental stress injury.
Predominant cause means that the substantial work-related stressor is the primary or main cause of the mental stress injury – as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors when combined.
The policy defines a substantial work-related stressor as being “…excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstance.”
The policy notes that interpersonal conflicts between workers and their supervisors, co-workers, or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict amounts to workplace harassment, or results in conduct that a reasonable person would perceive as egregious or abusive.
The policy defines workplace harassment as “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.”
Finally, the policy states 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.
In summary, the following conditions must be met in order for entitlement to be granted for CMS:
The worker must have experienced one or more substantial work-related stressors,
The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury, and
An appropriate regulated health professional has provided a diagnosis based on the DSM.
The employer representative positioned that the worker’s allegations of workplace harassment occurred prior to April 29, 2014, which pre-dates the established timeline for consideration within the CMS policy. I agree with the employer representative as evidenced by the medical reports on file. In addition, the worker’s Report of Injury/Disease (Form 6) which was signed by the worker as of February 14, 2018, outlines that her problems with mental stress started in 2011.
On balance, I find the worker does not meet entitlement for CMS, as the file documentation confirms the worker exhibited symptoms of mental stress prior to the transitional provision period (April 29, 2014) which would preclude her to make a claim for CMS. Therefore, I find CMS is denied in this case, as the worker did not meet the transitional provisional period as stipulated by policy. Secondly, I will explain below none of the events described within the claim meet the criteria of a substantial work-related stressor.
The worker has provided various statements to the Arbitrator and her treating psychiatrists of perceived harassment, intimidation and retaliation since around 2009/2010. The worker believes that the accumulation of all these events have resulted in her depression, PTSD and trichotillomania. The key question is whether these incidents constitute substantial work-related stressors. If they do, then the next question that needs to be addressed is whether the work-related stressors are the predominant cause of the worker’s diagnosed mental stress injury.
It is important to reiterate that a work-related stressor is considered “significant” when it is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment. Interpersonal conflicts between workers and their supervisors are generally considered to be a typical feature of normal employment unless it results in harassment, or results in conduct that a reasonable person would perceive as egregious or abusive.
As noted in the July 2017 GSB decision, the worker alleged that xxxx bullied and harassed her when he had informed her in April 2014 that the Workplace Discrimination and Harassment Prevention (WDHP) compliant had been closed, when apparently it was not closed as an “April 8, 2014 email from the WDHP investigator to the [worker] with a draft summary of allegations, and offering her dates to meet with her, which suggests that the WDHP complaint was not in fact closed.” I disagree, while xxxx may have provided the worker with incorrect information, and I note a copy of the email was not provided to the claim file, I find xxxx did not engage in any vexatious conduct against the worker. Although the worker may have been frustrated with members of management, this incident does not amount to a significant work-related stressor or stressors unusual to her occupation. In addition, I note the GSB decision of July 2017 dismissed the worker’s grievance of harassment, as no basis was found for bullying or harassment.
The worker positioned that her employer’s treatment of her constituted retaliation against her, regarding her workplace advocacy. While the worker perceived this belief was the case, there remains no objective evidence to support her view, which the GSB decision confirmed.
The worker argues that management advised co-workers to make comments about her and that she was the subject for taunting and racially charged comments, and was being teased and baited by her co-workers which lead to a number of Occurrence Reports being submitted by herself. The documentary evidence does not provide any time-frames for these allegations. In addition, the worker contended it remain the employer’s responsibility to provide copies of the Occurrence Reports.
Firstly, I note no Occurrence Reports were provided to the claim file and secondly, I do not agree with the worker’s position, as this claim was established as the worker’s claim for entitlement and not the employer’s claim, therefore, the onus remains with the worker to have ensured all information was presented to the claim file. From an objective standpoint, I was not referred to any evidence to support an element of threat or abuse in the employers conduct, or in the interactions with the worker’s co-workers to rise to the level of harassment or bullying. I find no evidence of workplace harassment or bullying in this case.
The worker’s concerns regarding her employer’s inability to accommodate her, accept her doctor’s medical notes for STSP, and deduction of her pay falls within an employment function and does not entitle her to benefits within policy. I agree that the employer’s treatment of the worker was excessive and caused her increased anxiety, as management did not accept her numerous medical notes in recognition of her STSP credits; however, this remains an employment decision/action and the worker’s grievances pertaining to the issues of accommodation and STSP credits were upheld by the GSB decision of July 2017, which has its own set criteria to abide by. Since 2017, the worker stated her health issues have gotten worse and her grievance settlement that she was successful in, had not been settled. Again, this would be an employment decision and would not entitle the worker to benefits.
Since I have concluded that the events described by the worker do not meet the criteria for acceptance as a significant work-related stressor (or cumulative series of significant work-related stressors), it is not necessary for me to address the predominant cause.
I recognize that the language outlined in the GSB decision of July 5, 2017, is similar to language set out in policy 15-03-14 which found the “Employer’s representatives’ behaviour in this case to be egregious, arbitrary, and closed-minded” however, I find the terminology in itself does not meet the policy criteria for entitlement by the WSIB. I feel the need to stress this point as different Government Agencies have set criteria for allowance of entitlement independently of each other and although the same language may be referenced, this does not substantiate a unilateral entitlement amongst all Government Agencies.
Having considered the documentary evidence before me, none of the events described meet the criteria of a substantial work-related stressor. Consequently, it is not necessary to address the question of predominant cause. Therefore, while the worker meets the diagnostic requirements noting she has been formally diagnosed with PTSD by a psychologist, the other requirements as set out in the policy have not been met, and entitlement to CMS is not in order.
I now turn to whether the worker has entitlement under policy 15-03-13, titled “Posttraumatic Stress Disorder in First Responders and Other Designated Workers.”
The policy provides that if a first responder or other designated worker is diagnosed with PTSD by a psychiatrist or psychologist, and if certain criteria have been met, the PTSD is presumed to have arisen out of and in the course of the first responder's or other designated worker's employment, unless the contrary is shown. This is a rebuttal presumption, meaning there may be evidence which rebuts the presumption of work-relatedness.
Policy 15-03-13 states “the presumption may be rebutted if it is established that the employment was not a significant contributing factor in causing the first responder's PTSD.” The policy notes a first responder is not entitled to benefits for PTSD if it is shown that his or her PTSD was caused by his or her 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.
It has been determined that the worker met the employment and diagnostic criteria; however, the presumption has been rebutted by virtue of the fact that the worker was not claiming that her mental stress was due to the employment exposures but rather due to workplace harassment while in the capacity of a correctional officer. No specific employment exposures have been outlined in the claim file information to support that the worker’s mental stress resulted from her employment exposures.
Furthermore, I refer to Dr. Dhaliwal’s psychiatric consultation of June 23, 2015, which details the worker’s recount of developing anger, guilt, shame, depression, sweating and anxiety, following the representation of her female co-worker that was of racial minority. Also, I note the psychiatrist’s reports on file do not provide examples of traumatic exposures in her workplace, but rather outline the multiple challenges the worker has encountered in her workplace. Workplace challenges would descend under the category of employer’s decisions or actions that are part of the employment function. I was not referred to any evidence to corroborate any violence or threat of violence in the worker’s workplace. In addition, the contemporaneous medical reports substantiate that the worker faced several significant non-work-related stressors which have contributed to her psychological diagnosis. Thus, based on these circumstances the presumption has been rebutted, and entitlement is not in order.
CONCLUSION
I conclude that the worker does not have initial entitlement for a mental stress injury.
The decision denying entitlement to Chronic Mental Stress is confirmed. I also confirm the denial of entitlement for a mental stress injury under the Posttraumatic Stress Disorder in First Responders and Other Designated Workers policy.
The worker’s objection is denied.
DATED: May 21, 2019
S. Di Carlo
Appeals Resolution Officer
Appeals Services Division