WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190069
OBJECTING PARTY: Worker
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing-in-Writing
HEARD by: D.Gowanlock, Appeals Resolution Officer
ISSUES
The worker is objecting to the Case Manager decision dated October 6, 2017 that denies entitlement to Traumatic Mental Stress.
The worker is objecting to the Case Manager decision dated June 18, 2018 that denies entitlement to Chronic Mental Stress.
BACKGROUND
This claim was established based on a Worker’s Report of Injury – Form 6 dated June 23, 2017.
According to the Employer’s Report of Injury – Form 7 the worker was hired by the employer in May of 2016 and employed as a Packaging Attendant. The worker initially reported that she had on-going issues with depression and anxiety. On May 2, 2017 the worker emailed the Human Resources Manager requesting accommodation due to feeling unsafe and uncomfortable on her shift. On May 10, 20107 during a return to work meeting, the worker described her feelings due to an event in the workplace involving her mother that occurred on August 20, 2016 and the associated conflict thereafter. The worker did not witness the event nor did she make any complaints regarding her safety prior to reporting on May 2, 2017. The employer objects to the allowance of the case given that the worker’s situation does not meet WSIB’s criteria of a sudden and unexpected traumatic event.
On October 6, 2017 the Eligibility Adjudicator obtained a statement from the worker and could not determine that the event as described by the worker was objectively traumatic in nature. The criteria required allowing entitlement to Traumatic Mental Stress was not met and initial entitlement was denied and communicated to the workplace parties in writing on October 6, 2017.
On June 11, 2018 the Case Manager reconsidered entitlement to Traumatic Mental Stress and reviewed the worker’s case in terms of entitlement to Chronic Mental Stress. The Case Manager made several attempts to contact the worker to confirm her statement without success. As a result, the decision denying entitlement to Traumatic Mental Stress was upheld. In terms of Chronic Mental Stress, the Case
Manager was unable to identify a significant work-related stressor. Further, there was no medical documentation on the case record to indicate that the worker was diagnosed with a mental stress injury.
Worker Position
The worker objects to the October 6, 2017 decision and the June 18, 2018 reconsideration decision. The worker’s former representative provided an Appeal Readiness Form dated January 17, 2018 and included a submission. According to the representative the worker’s mother and father also worked for the employer. One was the object of sexual assault and the other was subject to verbal harassment as well as threats and destruction of property which the worker witnessed and was told of first hand. The worker was made to work with the accused individual and feared for her safety. The representative referenced policy 15-03-02 Traumatic Mental Stress and argues that this situation meets the criteria for entitlement.
Employer Position
The employer is participating in the appeals process. The employer representative provided a submission dated December 31, 2018. The representative notes that there is no medical evidence on file to substantiate a non-organic mental stress condition. In the absence of medical documentation the Board cannot allow benefits.
The employer contends that the Case Manager decision reflects a thorough understanding of the available evidence and proper application of Law and Policy. There is no evidence to support that the worker was subjected to substantial work-related stressors, or was a direct witness to an objectively traumatic event or the recipient of a course of vexatious comment or conduct that would constitute workplace harassment or any identifiable egregious or abusive behaviour. The employer submits that there is no objective evidence upon which the worker’s appeal can succeed.
AUTHORITY
The following operational policies apply:
15-03-02 Traumatic Mental Stress (published April 7, 2016 and January 2, 2018)
15-03-14 Chronic Mental Stress
ANALYSIS
The worker is objecting to the October 6, 2017 decision that denies entitlement to Traumatic Mental Stress.
In responding to the worker’s objection, the Case Manager reviewed entitlement under the Traumatic Mental Stress policy as well as the Chronic Mental Stress policy and issued a further decision dated
June 18, 2018 addressing entitlement under both policies.
In my review I have had regard for the case file information, relevant policy, legislation and the submissions put forth by the worker representative and the employer representative with respect to the issues. I have considered all the evidence and the following is a summary of my decision.
Issue 1: 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:
Policy
Policy 15-03-02 Traumatic Mental Stress (published on April 7, 2016) 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.
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.
Policy 15-03-02 Traumatic Mental Stress (published January 2, 2018) states that a worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s employment.
A worker will generally be entitled to benefits for traumatic mental stress if an appropriately diagnosed mental stress injury is caused by one or more traumatic events arising out of and in the course of the worker’s employment
In order to consider entitlement for mental stress related to one or more traumatic events, the WSIB decision-maker must identify that one or more traumatic events occurred. A traumatic event may be a result of a criminal act 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 most cases a traumatic event will be sudden and unexpected.
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.
Case Details and Findings
On her Worker’s Report of Injury – Form 6 the worker notes that she developed mental stress from watching both her parents being harassed and abused in the work environment and having to be in the same work area as the man who abused her mother. According to the worker, the individual came after her mother and her father and the worker feared for her safety. The worker first started having problems with the event as of August 20, 2016. She sought medical attention on either March 8 or March 9, 2017.
As documented in memo #A0005 the worker explained that her mother was sexually harassed in the workplace by a large male co-worker. The worker did not witness the incident; however, she was aware that the co-worker touched her mother’s back and made inappropriate comments. According to the worker, her mother reported the events to her supervisor but nothing was done. The co-worker also went after her father and his locker was broken into while working the same shift as the co-worker. As a result of these incidents the worker started to feel unsettled and afraid that she would be targeted next. The worker confirmed that the co-worker did not do anything to her. There was no threat of harm. According
to the worker she became afraid of what could have happened and her depression returned. She stopped working on March 4, 2017 and her employment was terminated on July 21, 2017.
In determining whether the criteria required allowing entitlement to Traumatic Mental Stress has been met, I am guided by policy 15-03-02. In this case I have considered entitlement under the prior policy published on April 7, 2016 as well as entitlement under the current policy dated January 2, 2018.
Under both policies, in order for entitlement to Traumatic Mental Stress to be accepted, an event must arise out of and in the course of employment and be clearly and precisely identifiable and objectively traumatic.
According to memo #A0001 the employer was not aware of any events. The events as described by the worker while unpleasant are not clearly and precisely identifiable. The events have not been established by WSIB through information or knowledge of the event provided by co-workers, supervisory staff or others.
While the events appear to have impacted the worker, I am unable to determine that the events are objectively traumatic. In arriving at this conclusion I considered the fact that the worker delayed in reporting to the employer and to WSIB by almost eight months. It appears that the worker established the claim while off work from March 4, 2017 until July 20, 2017. More importantly, while the worker indicates that she sought medical attention on either March 8 or March 9, 2017, there are no medical documents on the case record and therefore no medical evidence to support a mental stress injury.
As a result of my analysis, I am not satisfied that the evidence supports that a traumatic event arose out of and in the course of employment and caused, or significantly contributed to an appropriately diagnosed mental stress injury. Therefore, I find that entitlement to Traumatic Mental Stress remains denied.
Issue 2: Entitlement to Chronic Mental Stress
Policy
Policy 15-03-14 Chronic Mental Stress states that a worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment.
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.
In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor
arose out of and in the course of the worker’s employment, and
was the predominant cause of an appropriately diagnosed mental stress injury.
Case Details and Findings
The worker’s statement is outlined on page three.
In determining whether the criteria required allowing entitlement to Chronic Mental Stress has been met I am guided by policy 15-03-14 which states that in all cases, the substantial work-related stressor must arise out of and in the course of the worker’s employment, and is the predominant cause of an appropriately diagnosed mental stress injury.
According to the worker’s statement, events are alleged to have occurred to her mother and father at work. While the events appear to have impacted the worker, I am unable to determine that either event could be considered a substantial work-related stressor. In arriving at this conclusion I considered the fact that the worker has not made any allegations of being personally harassed or bullied at work. She did not report any abusive or egregious actions taken against her. More importantly, while the worker indicates that she sought medical attention on either March 8 or March 9, 2017, there are no medical documents on the case record and therefore no medical evidence to support a mental stress injury.
As a result of my analysis I am not satisfied that the evidence supports that a substantial work-related stressor is evident that arose out of and in the course of the worker’s employment and was the predominant cause of an appropriately diagnosed mental stress injury. Therefore, I find that entitlement to Chronic Mental Stress remains denied.
CONCLUSION
I conclude:
Entitlement to Traumatic Mental Stress remains denied.
Entitlement to Chronic Mental Stress remains denied.
The worker’s objection is denied.
DATED: April 4, 2019
D. Gowanlock
D. Gowanlock
Appeals Resolution Officer
Appeals Services Division