WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190073
OBJECTING PARTY: Worker
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: F. Amorim, Appeals Resolution Officer
DATED: May 30, 2019
ISSUES
The worker objects to the Case Manager’s (CM) decision dated October 23, 2018 which denied entitlement to traumatic mental stress (TMS) under the amended policy dated January 2, 2018. The CM also denied entitlement to chronic mental stress (CMS).
BACKGROUND
The file documents and prior Appeals Resolution Officer’s (ARO) decision dated January 26, 2017 provides an informative background in this claim.
Briefly, the worker was employed as a personal support worker for the employer. The worker claimed she experienced stress at work on December 5, 2014 when the executive administrator entered the dietary area carrying and waving a knife that needed to be washed. The worker reported the executive administrator followed her into the corridor and was still waving the knife and telling the worker not to walk away from him when he was speaking to her and she reported the knife was approximately four (4) inches from her chest.
The worker continued to work and missed time from work through the year in 2015 due to the incident. She sought medical attention and was diagnosed with post-traumatic stress disorder with anxiety and depression.
The operating level denied entitlement to TMS in a decision dated May 9, 2016. The ARO decision dated January 26, 2017 concluded the evidence did not support that the worker experienced an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of her employment.
The worker objected to the denial of TMS and filed an appeal with the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The WSIAT returned the matter to the Workplace Safety and Insurance Board (WSIB) to reconsider the matter against the updated TMS policy dated January 2, 2018.
The operating area’s reconsideration did not change the decision as outlined in the October 23, 2018 decision. The operating area also considered the worker’s entitlement under the new CMS policy and determined the worker did not have entitlement under that policy.
The worker objects to the denial of TMS and CMS and the matter is now with the Appeals Services Division for further consideration.
AUTHORITY
Operational Policies:
15-03-02 Traumatic Mental Stress (Published January 2, 2018)
15-03-14 Chronic Mental Stress (Published January 2, 2018)
ANALYSIS
The worker’s appeal is denied. In arriving at my conclusion I have considered all of the information on file, the positions of the workplace parties and the relevant legislation and policies. My reasons are as follows.
The worker provided a written submission dated October 30, 2018 with the Appeals Readiness Form. The worker indicated that prior to the incident on December 5, 2014 she did not have any problems with the administrator. After the incident, the worker reported that she was suspended because she requested that a union member be present when the administrator spoke to her. The worker indicated the administrator’s behaviour after the incident and suspension continued to be abusive and she was afraid when she was around him. She indicated the administrator continued to taunt and threaten her. She claimed the administrator stalked, harassed and threatened her. The worker feared for her life.
The employer’s representative’s submission dated March 7, 2019 argued the worker’s claim for CMS should be denied. The representative submitted there is no corroboration of the alleged events and no medical information to support the diagnostic requirements. The representative noted the worker was involved in a progressive discipline schedule to address performance issues at the time.
Medical Evidence
A report from Dr. Lin dated March 16, 2018 indicated the worker suffered from post-traumatic stress disorder (PTSD) with anxiety and depression. Dr. Lin did not relate the diagnosis to any specific incident.
There are chart notes on file from March 2009 to December 2015. A chart note dated May 13, 2015 indicated the worker had difficulty with her supervisor and alleged the supervisor came after her with a knife. It was recorded the worker was sent home on May 12, 2015. It was noted the worker was stressed at work and needed two days off. No anxiety or depression was noted.
TMS Entitlement
The WSIAT requested the operating area to reconsider their TMS decision in their February 8. 2018 letter due to an amendment to that policy.
The updated TMS policy (15-02-03) dated 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)
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 concluded the event on December 5, 2014 did not result in the worker experiencing an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of her employment.
The amended policy’s revision that the event no longer be “sudden and traumatic” does nothing to change my view of the ARO’s conclusion. There is still a requirement for the event to be precisely identifiable and objectively traumatic. The prior ARO concluded the worker was not the object of physical harm. I agree with the prior ARO’s assessment. The employer’s investigation report does not support that the administrator waved a knife at the worker.
I agree with the prior ARO’s assessment that while the event was difficult for her and unsettling the evidence on file does not support entitlement for TMS. The worker did not seek medical attention until May 13, 2015 after she was sent home by the employer for insubordination. Dr. Ali’s clinical note indicates the worker was having a hard time with her supervisor and was stressed at work. There is no evidence the worker was diagnosed with a mental stress injury related to the December 5, 2014 event.
I find the evidence does not support the worker was the object of an event which was clearly and precisely identifiable and objectively traumatic on December 5, 2014. For that reason, I confirm the decision to deny entitlement.
CMS Entitlement
Policy 15-03-14 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 circumstances. Workplace harassment will generally be considered a substantial work-related stressor.
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 follows:
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.
Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to:
acute stress disorder
posttraumatic stress disorder
adjustment disorder, or
an anxiety or depressive disorder.
The worker submitted that her suspensions happened after the knife incident on December 5, 2014. The worker alleged the administrator followed her at work and tried to find a reason to have her suspended. The worker also claimed the administrator continued to abuse her and wanted her out of the workplace.
The events which the worker claims occurred on December 5, 2014 have not been substantiated by the evidence. I reviewed the employer’s investigation report dated December 31, 2015 regarding the incident. The investigation report does not provide any proof to support the administrator waved a knife while he was speaking to the worker. The worker reported there was a witness to the event.
The witness provided a statement to the employer and confirmed she remembered the event. She noted the administrator walked into the kitchen to speak to the worker but did not recall if he was holding a knife. The witness confirmed that she did not witness the administrator waving a knife at the worker or threaten her in any way. The witness stated that other staff advised her that the administrator was in the kitchen to wash the knife.
I find the worker’s claim that the administrator waved the knife at her or threatened her has not been proven. The worker has not provided any evidence to corroborate her allegations. As such, I have no basis on which to find that the administrator waved the knife, harassed, or threatened the worker.
The evidence on file also supports the worker was involved in disciplinary action related to excessive absences prior to the incident on December 5, 2014. The employer’s investigation report indicated the worker had been the subject of a number of employment issues. I note the worker was placed in stage 1 of the Attendance Management Program (AMP) on September 24, 2014 due to excessive absences. She was placed in stage 2 of the AMP on December 29, 2014. On May 15, 2015 the worker was suspended for three days for insubordination. I note this is around the time the worker saw a physician. She was placed in stage 3 of the AMP on June 26, 2015. She was suspended for a second time on November 12, 2015 for failing to attend a department meeting.
In my view, the evidence clearly establishes the worker was disciplined for excessive absences and insubordination. These are employment issues related to the worker’s performance and would not be considered substantial work-related stressors.
In addition, there is no medical evidence to support the worker developed a psychological injury which arose out of and in the course of her employment. There is one medical report and clinical notes which make up the medical reporting on file. The clinical note date May 13, 2015 indicated the worker did not have anxiety or depression. The physician indicated the worker was having problems with her supervisor and was stressed at work. The clinical notes also support a history of prior mental health problems.
The second is a report dated March 16, 2018. In this report Dr. Lin indicated the worker was suffering from PTSD with anxiety and depression. The physician did not provide an explanation for the diagnosis and did not relate it to a specific incident.
I have considered the medical evidence on file and find there is no evidence on which to establish the diagnostics requirements sent out in the policy.
In this case, the balance of evidence does not weigh in the worker’s favour. I do not find that the administrator waved a knife at her, harassed, or threatened as she has described. I agree with the case manager’s conclusion that there was no substantial work-related stressor, and the events at work were related to the employment function, specifically, insubordination and performance issues.
For the above noted reasons, I deny the worker’s request for CMS entitlement.
CONCLUSION
Entitlement to TMS under the revised policy is denied.
Entitlement to CMS is denied.
The objection is denied.
DATED: May 30, 2019
F. Amorim
Appeals Resolution Officer
Appeals Services Division