WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190059
OBJECTING PARTY: Worker
REPRESENTED BY: Worker Representative
RESPONDENT: Employer (Not Participating)
HEARING: Oral Hearing held on January 9, 2019
HEARD BY: Corrado Cirinna, Appeals Resolution Officer
DATED: January 29, 2019
ISSUE
The worker objects to the case manager decision dated April 19, 2018, which denies entitlement in this claim under both the Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS) policies.
BACKGROUND
The worker was employed as a security guard and had worked with this employer since 2007. This claim was established with an accident date of July, 1, 2017, when the worker reported an onset of stress due to her occupation.
The worker reported that her job duties involved sitting in her vehicle for eight hour shifts at a local hospital health unit and monitoring vehicles to ensure that people who were going to the hospital did not illegally park in the health unit parking lot. If they did park illegally, the worker was responsible for advising people of this, asking them to park elsewhere, and possibly issuing a ticket if necessary.
The worker reported that she worked alone throughout her shift, and often experienced people getting mad at her and calling her horrible names. She reported that on one occasion someone threatened to stab her. The worker went on vacation starting on July 1, 2017, but could not return to work following her vacation due to the stress that she was under.
Entitlement in this claim was reviewed both in the context of TMS and CMS. In a decision dated April 19, 2018, entitlement was denied based on the finding that there was no evidence of any objectively traumatic event or a substantial work-related stressor. The worker was noted to be suffering a stress reaction to a decision by the employer about her job duties, and mental stress caused by an employer’s decision or action that is part of the normal employment function, which is not considered compensable.
AUTHORITY
15-03-02.Traumatic Mental Stress
15-03-14 Chronic Mental Stress
ANALYSIS
In arriving at my decision I had regard for all the information contained in the file, the operational policies and the information gathered during the course of the oral hearing, including the testimony of the worker. I find the worker has no entitlement in this claim under the TMS policy or CMS policy.
Synopsis of Worker Testimony
The worker testified that she began her employment as a security guard with this company in 2007. She initially worked at the hospital main entrance, and her job typically involved assisting people with directions. She enjoyed this job, and did not encounter any incidents of verbal assault or bullying.
The worker indicates that the employer lost the contract at the hospital in late 2010 and she then was laid off and received employment insurance (EI) benefits for approximately eight months. The employer called her in August 2011 and offered her another security guard position in the health unit parking lot, which she accepted.
The worker described her job duties since 2011 at the health unit, which is located adjacent to the hospital. She explained that parking at the health unit is free, whereas visitors to the hospital must pay for parking. Her job essentially involved sitting in her car and ensuring that people that were going to the hospital were not illegally parking in the health unit parking lot. The worker indicates that when this happened, it was her job to notify people that they could not park in the health unit parking lot if they were visiting the hospital. In cases where individuals were parked illegally she was authorized to issue tickets. The worker testified that from the outset, this job was very stressful and that she endured negative encounters involving demeaning name calling, ridicule, mocking, intimidation and comments about her sexuality. She indicates that these incidents occurred on an almost daily basis.
The worker notified the employer that she found this job very stressful and that it was adversely affecting her. The worker indicates she asked to be transferred to another post. The employer indicated it was unable to transfer her to a different location as they did not have any other security contracts in the area.
The worker indicates that since she started working at the health unit, she was off work due to stress on three separate occasions. Her first stress leave was in 2012, at which time she was off work for approximately 15 weeks and received EI sick benefits during that timeframe. She returned to work and continued working until sometime in late 2014. She was once again on stress leave and missed an additional 15 weeks from work and received EI sick benefits during this timeframe.
When she returned to work following her second stress leave, she returned to work four days per week as recommended by her doctor and had Wednesdays off so that it would break up her work week.
The worker’s most recent stress leave started in July 2017. Following this most recent leave, her family doctor advised her that she should not return to this type of employment. Since stopping work in July 2017 the worker received 15 weeks of EI sick benefits, followed by 10 months of regular EI benefits.
The worker testified that while on EI benefits, she applied to other jobs, but has been unsuccessful in finding work. The worker provided a brief history of her educational and employment history indicating that she does not have a grade 12 diploma and that her approximately 10 years of work experience prior to starting with this employer in 2007 involved working in entry level retail/customer service positions.
In recent months, the worker was granted Canada Pension Plan (CPP) disability benefits amounting to approximately $700 per month. This is currently her only source of income.
When asked to describe specific incidents that led to her inability to continue working, the worker indicated that one person after calling her many names and berating her, stated that he should “shank” her and he then drove off. The worker indicates that she initially did not know what this term meant and when she asked someone she was told that it meant he wanted to stab her.
The worker also described another incident where she had to attend court because someone challenged a ticket she had issued. This person had to pay the ticket and once again became very verbally abusive towards her when he lost his case.
The worker also described other concerns with the job, which included being exposed to extreme weather conditions during the winters and during the summer. The worker indicates that much of the time she needed to run her vehicle during her shift so that she was not too cold during the winter, and did not suffer heat exhaustion during the summer months.
The worker testified that prior to being exposed to this stressful work environment, she also suffered from bipolar disorder and sleep apnea. The worker testified she is only able to work during the day due to problems caused by her sleep apnea.
The worker indicates that she has been under the care of a psychiatrist for approximately ten years due to the bipolar disorder and would regularly attend group counselling therapy, and had been on medication for this condition. She indicates that as a result of the stress caused by her job duties, her bipolar condition became much worse and has resulted in a substantial increase in the amount of medication she takes for this condition.
Before any claim for TMS and CMS 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.
In this case, the criteria has been met based on the Health Professional’s Report for Occupational Mental Stress (Form CMS8) dated March 7, 2018 which provides a diagnosis of Bipolar Disorder, Depression and Anxiety. A further Form CMS8 dated June 21, 2018 provides a diagnosis of Major Depressive Disorder and Bereavement Reaction.
Review of Medical Information on File
The CMS8 Form dated March 7, 2018 indicates the worker’s condition was made worse by her stressful job as she was isolated in her vehicle in a parking lot and was often harassed by people parked illegally and given a ticket. At that time, the diagnosis was Bipolar Disorder, Depression and Anxiety.
The CMS8 Form dated June 21, 2018 provides a diagnosis of Major Depressive Disorder and Bereavement Reaction. This report suggests the onset of the worker’s symptoms were due to the stress caused by working alone in a parking lot, which negatively impacted the worker’s mood. The report also notes she endured frequent verbal abuse by individuals using the parking lot. This report also notes the worker has had a previous diagnosis of Chronic Major Depressive Disorder.
There are a number of notes from the family doctor, mostly written on a prescription pad all of which authorize the worker to remain off work for unspecified medical reasons. These notes do not provide any diagnosis or any reasons why the worker was unable to work.
The note from the family doctor dated October 3, 2017, indicates the worker had been off work since June 29, 2017 caring for her mother who was ill.
The clinical note January 16, 2018 indicates the worker was given a note stating she had difficulty returning to work as her job involves sitting in a vehicle all day by herself and she should avoid being outside in cold weather. The report also noted the worker should not be working by herself all day in isolation.
The note from the family doctor dated June 25, 2018 indicates; “This patient has difficulty working outside in the cold weather as it causes worsening of joint pain/arthritis of the knee and hips. She has difficulty working night shifts as she had a sleep disorder - sleep apnea and needs to work day shifts. She had difficulty working on her own in isolation (mental health reasons).”
The report from the treating psychotherapist dated June 29, 2018 indicates the worker initially presented for treatment due to ongoing anxiety and subsequent stress that had negatively impacted her social, cognitive, and physical function. The report concludes by stating; “Anxious symptoms and her anxiety is largely related to previously spending the significant portion of her days alone. She is now unsure how to behave around others and is fearful when in their presence.”
The clinical note dated August 24, 2018 indicates the worker’s mother had recently passed away, and she required a note authorizing her to remain off work.
Although the worker has apparently been under active psychiatric treatment, there are no reports on file from the treating psychiatrist.
TMS Entitlement
The TMS policy 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 is not entitled to benefits for traumatic 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. 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.
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.
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. 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.
The policy goes on to provide a list of examples that can be considered as traumatic events. These include being the object of physical violence, or 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).
Decision
The worker has no entitlement in this claim under the CMS policy.
Reasons for the Decision
- The worker has acknowledged that during all of her interactions with members of the public she was never physically touched or harmed in any way. She did not feel like she was in any imminent physical danger, and there were never any death threats made towards her.
When reviewing the most significant of the workplace incidents described by the worker, it is the one involving an apparent threat to stab her that would be the most significant and potentially traumatic. The worker has acknowledged that when the comment was made by this individual that he should “shank” her, she did not know what this meant and did not experience a feeling of being in any danger. It was not until after she asked someone what the term meant that she realized this was a physical threat against her.
As outlined by the policy, a traumatic event is typically verified by gathering information of the event from by co-workers, supervisory staff, or others. In this case, the only account of this incident is from the worker, and this is partly due to the fact she works alone, and it would be difficult for anyone to have witnessed many of the incidents she has reported. Having said this, the worker has been unable to be specific in terms of a timeframe of when this incident occurred, and she also acknowledges that she did not report the incident to the employer and did not file a police report. Although the worker has indicated that learning of what the term “shank” meant was very upsetting and traumatizing to her it does not appear that she was so traumatized by the incident that she required medical intervention, or feel the need to immediately report the matter to the employer or the police.
Much of the medical reporting on file does not cite traumatic events at work as being the primary factors that were affecting the worker’s inability to continue working as of July 2017. The medical reporting is somewhat vague, and typically authorized the worker to remain off work for unspecified medical reasons. Much of the focus from the time the worker stopped working in July 2017 appears to be on the worker caring for her mother who was quite ill. Therefore, the primary reason that the worker stopped working appears to have been to care for her ill mother and had nothing to do with any traumatic workplace incidents.
The medical reporting also focuses on the work conditions that the worker was exposed to, which included working alone and being exposed to extreme weather conditions depending on the time of year. As outlined in the policy, a worker is not entitled to TMS caused by decisions or actions of the employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions. The actions of the employer were not punitive or retaliatory in any way and the only reason the worker was placed in this job starting in 2011 was because the employer had lost other contracts, and this was the only job the employer could offer. The worker accepted this offer knowing fully what it entailed.
I have also considered the overall pattern of verbal abuse and harassment described by the worker and do not find these incidents meet the definition of objectively traumatic events. While the worker endured unwelcome and often malicious and hurtful comments made towards her by members of the public, none of these incidents rises to the level of being objectively traumatic events, where the worker feared physical violence or death. While I appreciate the worker likely encountered individuals who became uncooperative and verbally abusive, for an event to be considered objectively traumatic, the incident would need to be seen as traumatic, when considered by a disinterested, third party observer. I do not find that any of the incidents described by the worker rise to the level of being objectively traumatic under the TMS policy.
CMS Entitlement
Policy 15-03-14 states that a worker is entitled to benefits for chronic mental stress (CMS) arising out of and in the course of the worker’s employment.
A worker is not entitled to benefits for CMS caused by decisions or actions of the 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 employment
The policy defines a workplace harassment as occurring when a person in the course of employment engages in the course of vexatious comment or conduct against a worker including bullying, that is known or ought reasonably to be known to be unwelcome.
In order to consider entitlement for CMS, the decision-maker must be able to identify events which are alleged to have caused the CMS. This means that the events can be confirmed by the WSIB decision-maker through information or knowledge provided by coworkers, supervisory staff, or others.
The policy defines a substantial work related stressor as one that is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
The policy states that interpersonal conflicts between workers and their supervisors, coworkers 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.
In all cases the WSIB decision-maker must be satisfied on the 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.
Decision
Entitlement in this claim under the TMS policy is denied.
Reasons for the Decision
Decisions or actions of the employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions will not result in CMS entitlement. In this case, the medical reporting suggests that the diagnosed depression and anxiety were in part due to the work conditions that the worker was exposed to, which included working alone and being exposed to extreme weather conditions depending on the time of year. The worker was placed in this job starting in 2011 when the employer had lost other contracts, and this was the only job the employer could offer based on the worker’s seniority. The worker was fully aware of what the job entailed before she accepted this job, and knew that she would be working alone and sometimes exposed to extreme weather conditions.
The worker has provided examples of perceived harassment, intimidation, abusive and hurtful comments made towards her by members of the public seeking to park illegally at the health unit parking lot. The worker believes that the accumulation of these incidents resulted in the significant symptoms that have caused her to be unable to work since July 2017. The key question is whether these incidents constitute substantial work-related stressors. If so, the question that needs to be addressed is whether the substantial work-related stressors are the predominant cause of the worker’s diagnosis of depression and anxiety.
The policy states that interpersonal conflicts between workers and their supervisors, coworkers 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.
In the circumstances of this case, I cannot reasonably conclude that the perceived harassment and abusive behaviour endured by the worker amounts to substantial work related stressors. While I accept the worker has endured unwelcome, mean spirited and hurtful comments made towards her by members of the public, I find this to be an unfortunate and unpleasant aspect of the job that is to be expected in an environment where there may be occasional interpersonal conflict with members of the public.
Also, to the extent that she may be experiencing such stressors, they are in my view not the predominant cause of the diagnosis of anxiety and depression resulting in her inability to continue working as of July 1, 2017. I base this on the fact that the medical reporting on file does not cite work related mental stress as being the primary factor affecting the worker’s inability to continue working as of July 2017. It appears the worker stopped working in July 2017 to care for her mother who was quite ill. Therefore, the primary reason that the worker stopped working was not due to work related stressors.
CONCLUSION
Entitlement in this claim under both the traumatic mental stress and chronic mental stress policies is denied.
The worker’s objection is denied.
DATED: January 29, 2019
Corrado Cirinna
Appeals Resolution Officer
Appeals Services Division