WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190071
OBJECTING PARTY: Worker REPRESENTED by: Representative
RESPONDENT: Employer REPRESENTED by: Self
HEARING: Hearing in writing HEARD by: D. Giannobile, Appeals Resolution Officer DATED: May 2, 2019
ISSUE
The worker objects to the Case Manager’s (CM) decision denying entitlement to Chronic Mental Stress (CMS). The decisions are May 7, 2018 and August 24, 2018.
BACKGROUND
The prior Appeals Resolution Officer’s (ARO) decision dated March 26, 2016 provides a detailed summary of the events that lead to the worker’s claim for mental stress. Briefly, he is a former police officer who claimed entitlement under the Workplace Safety and Insurance Board’s (WSIB) Traumatic Mental Stress (TMS) policy related to his experience as a police diver from 1986 to 1998.
The ARO denied TMS entitlement because they were not satisfied his exposure to sudden and cumulative stressful events met the standard for entitlement under that policy. The worker appealed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) but they requested the WSIB review entitlement under the revised TMS policy and new CMS policy.
The CM’s decision dated May 7, 2018 confirmed the denial of TMS with the revised policy and denied CMS entitlement on the basis that his former job did not contain a high degree of routine stress. A reconsideration with additional evidence did not change the decision. The date of the reconsidered decision is August 24, 2018.
The worker objected to the denial of CMS and the matter is now with the Appeals Services Division for further consideration.
AUTHORITY
Relevant operational policy:
15-03-14 – Chronic Mental Stress
ANALYSIS
I have fully considered the worker’s objection including his representative’s appeal submission dated October 16, 2018 and the employer’s submission dated January 11, 2019. Having done so, I allow entitlement for CMS. My analysis follows.
I accept the results of a comprehensive psychological assessment the worker had at the Centre for Addiction and Mental Health (CAMH) in July 2013 and their conclusion that his exposure to cumulative stressful events as a police officer directly contributed to his anxiety disorder, not otherwise specified (NOS). I find their analysis outweighs the operating area’s decision to rely on factors which, in my view, do not rise to the level of the exposures he experienced as a police diver.
The WSIB requested the CAMH assessment for the specific purpose of determining the relationship between his exposure to stressful events and his psychotraumatic condition. CAMH concluded the worker suffered from an Axis I diagnosis of Anxiety Disorder (NOS) with features of posttraumatic stress, major depressive disorder in partial remission and alcohol dependence in full remission. Their own psychological tests found him a credible respondent.
They concluded:
Given the content, timeline and context of (the worker’s) symptoms, the following relationships between the workplace incidents and (the worker’s) psychological conditions have been determined:
Anxiety Disorder – developed subsequent to index workplace incidents; directly stems from traumatic nature of index workplace events
Major Depressive Disorder – developed subsequent to index workplace incidents; primarily related to persistence of posttraumatic stress symptoms/impairment; also secondarily related to other psychosocial stressors (workplace issues, family issues)
Alcohol Dependence – dependence developed subsequent to cumulative traumatic workplace incidents as a maladaptive coping strategy in reaction to posttraumatic stress symptomatology
CAMH identified no pre-existing psychological contributors to his condition but noted there was some co-existing conflict with his supervisor while working in community policing and a past poor relationship with his father.
The operating area discounted the CAMH reports in their analysis in favour of reports that were closer to the events reviewed for this appeal despite having arranged the CAMH assessment for their expert opinion on compatibility. This was not lost on the worker’s representatives who had “serious concerns” with the CM’s decision to dismiss the CAMH report in favour of those that were closer to the events in question. Their July 3, 2018 letter characterizes CAMH as the foremost experts in mental health who conduct ground-breaking research and expert training with a staff of 3,000 physicians, clinicians, researchers, educators and support staff. They also noted CAMH had the same reports the CM favoured in their possession when they came to their final opinion on compatibility.
The letter ends by stating the reports favoured by the CM did not contain the same degree of analysis and testing that the CAMH assessment did. Their October 16, 2018 submission made similar points and noted CAMH were the first who provided an opinion on causation.
With respect to the weighing of the medical reports, I agree with them. I placed significant weight on the CAMH opinion particularly since they arrived at their conclusion through extensive testing and analysis of reports that were already on file and because their primary focus was on compatibility. Their opinion also came with a full understanding of the worker’s past medical and psychiatric history including those factors the operating area believed were more responsible for his mental stress and which they ultimately felt were not.
I acknowledge there are some gaps in the medical reporting that a prior ARO decision noted in their TMS denial decision. They referenced a five-year delay in developing psychological problems in 2000 and that the reports in 2001 did not support a strong correlation between the work events and his stress. The ARO also believed his sergeant’s decision to move him from a community-policing job to a night shift was an ongoing stressor.
The prior ARO noted the worker was in an alcohol treatment program from November to December 2011. There were also references in psychiatrist’s reports in 2011 that the worker still resented the sergeant’s decision to move him to night shift. He did not report any conscious trauma related to his experiences as a police diver or having witnessed other extreme acts of violence. He reportedly never had nightmares, flashbacks, panic or anxiety related to those events.
The ARO acknowledged that CAMH found a direct relationship between his psychiatric condition and the cumulative exposure to traumatic events at work but concluded there was no evidence of stress for 10 years after his psychological symptoms started and 15 years after the most recent traumatic event that lessened their relevance to the TMS policy.
While I acknowledge the ARO findings, they were made in reference to TMS entitlement. The matter of TMS entitlement under the revised policy is not an issue for this decision so I make no findings on it. However, I find the worker has reasonably explained the gaps in treatment and delayed onset of symptoms and I will show through my analysis that his experiences as a police diver are within the scope of 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.
And:
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 as:
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.
The worker was a part of a police dive team from 1986 to 1998, then worked as a community service police officer for about three years, then moved to an administrative position due to his psychological and physical conditions.
A field investigation from May 2013 listed events the worker felt led to his stress condition. Among them are:
recovering dead bodies from water in 1991
recovering body parts of someone he recognized from a cold, swampy river (hands and arms, leg and head all in separate locations) in 1995
recovering dismembered body parts in 1988 along the St. Lawrence of a person who was murdered by a doctor
recovering three bodies from a truck that lost control and went into a ditch full of animal manure and urine in 1988
recovering the body of a drowned male in 1993 who was the brother of his friend and was waiting on the shore for the divers when they located the bodies
The worker indicated one dive in 1990 kept him away from home for 45 days and in 1988, they were away from home for 260 days. The dive team often coped by getting together for a few drinks instead of a formal debrief which led to him abusing alcohol.
The CAMH report contains some of the relevant history leading to his stress:
While working as a community service officer in 2000 he “started to remember different things” related to his past experience as an officer on the dive team
Recalled past incidences with that job including recovery of 50-80 dead bodies per year; he would typically be dragged along the bottom of waterways until he came into contact with a body
When recalling these incidents he would become nervous and shake which escalated his drinking to help him “feel numb”; would drink 40 oz. of rye a day to pass out after work
Started seeing a psychiatrist
Diagnosed with anxiety in 2002
Took months of sick time at a time for anxiety but did not claim with WSIB because there was an expectation that he should “suck it up”; at the time posttraumatic stress was not recognized by the police force
Sought treatment for alcohol addiction in 2008; alcohol consumption continued but he hid it from his clinicians and family
Quit cold-turkey in 2011 to attend a Health Centre for recovery
He reported his symptoms at CAMH as:
Having intrusive memories about past calls triggered by attending prior sites
Makes efforts to distract himself by turning off radio or disconnecting himself emotionally
Only tearful when taking about past incidents
Has infrequent flashbacks which he controls by distracting himself or going into “training mode”
Not currently experiencing nightmares
Reported good concentration, memory and decision-making
Retired since 2013
His past psychiatric history noted:
Denied contact with mental health professionals and denied problems with depression, anxiety, anger or mood instability before 2000
Referenced numerous critical work incidents between 1986 and 1999 when he worked as a police diver; spent up to 260 days a year away from home
Recalled recovery of a young boy after a two-day search which “really hit home” when his co-workers hugged his children who were the same age
He was unaware of the impact these events would have on him at the time because the police force “did not believe in stress”
Would be away from home two to three weeks at a time up to two months looking for body parts; crew of four divers would go drinking after work and consume one to two 40 oz. bottles of alcohol between them
He recalled a recovery of body parts in a small town following a murder where the body parts were thrown in a river; he encountered an arm, leg and head; his commissioner congratulated him
A co-worker suggested they see a counsellor as a group but this was declined by his superiors because of the impact it may have had on the counsellor
They would cope by consuming more alcohol
He became trapped in a railroad tie while on a recovery event at the bottom of the Trent River and had to be released from under it by a co-diver
He attended 100 to 150 fatalities while patrolling Highway 16
He was involved in a fatal motor vehicle accident when a car sped around him and had a head-on collision with a truck; he attended to the driver, a 19-20 year old male who was possibly attempting suicide because his girlfriend refused to marry him; he knew the family of the driver
He attended a call for a severely beaten woman; when EMS were called the nurse whom he knew was the victim’s mother who “lost it”
The CAMH July 22, 2013 report summarizes other traumatic events (the report indicates they asked him to recount a few):
He clarified that the truck driver in the motor vehicle accident described earlier was an acquaintance who did not survive the crash; an inquest followed and family members of the deceased were allowed to ask him questions which made the situation more difficult for him
Attended a call in the late-1980s for a 15-year old girl who died from a self-inflicted gunshot to her head; the girl was a member of his own daughter’s hockey team
He recalled the event which is summarized earlier where the mother of a female victim who had been beaten with about 80 blows from a hammer arrived at the scene and had to be restrained from approaching the area; he had to attend the autopsy which he found difficult
He attended many fatal head-on collisions; many involved people he knew which was difficult for him; other accidents involved significant injury
While working in the diving unit he routinely encountered dead bodies or body parts; he located 50-80 bodies per year and had to locate them by touch due to the conditions of the waterways he explored
This report indicates the worker was initially able to cope with the stress of his position but he became socially withdrawn and drinking heavily starting in 2000. He also noticed having anxiety attacks and sleeping in his garage or basement after passing out from drinking. He saw a psychiatrist for about 12 years but found the treatment ineffective.
He continued working but experienced distress from triggers of past traumas that eroded his confidence in his ability to continue in his job and respond to difficult calls. He attempted to explain his situation to his supervisors but received little support from them so he continued his alcohol abuse to cope. He had occasional absences from work of varying duration recommended by his psychiatrist.
The lack of any employer support or programs for his emotional stress caused him to internalize his mental stress and supress his experiences by abusing alcohol. This is undoubtedly why there are gaps in his psychological reporting and delay in his symptoms.
His statements in this regard should be given considerable weight. CAMH found him a reliable historian. Psychological testing summarized in their July 22, 2013 report found he did not exaggerate his responses or symptoms. This validates his claim that the primary source of his mental stress was his work as a police diver versus the causes preferred by the operating area and further supports my decision to accept the CAMH conclusions over other medical reports.
I also accept their conclusions in response to the questions requested by the WSIB for those reasons. Specifically, his anxiety disorder, major depressive disorder (primarily related to persistence of posttraumatic stress symptoms from the workplace incidents) and alcohol dependence are all attributable to his exposure to workplace trauma. They found no pre-existing contributors to his conditions.
I disagree with the CM’s May 7, 2018 opinion that his prior occupation did not involve a high degree of routine stress. The worker’s representative also disagreed with that characterization. Their October 16, 2018 submission pointed to the events the worker recalled throughout his time as a police diver and the occasion that he needed rescuing from the bed of a river as evidence of the stressful nature of the job. The employer referred to that last event as “life threatening” on their report of injury (Form 7).
They referenced his Staff Sergeant’s statement to the Claims Investigator wherein he confirmed the job was “very intense physically and mentally” from having to recover bodies in challenging conditions. The Sergeant confirmed the police force had no formal debriefing or critical incident stress management program between 1986 and 1998.
The worker’s representative also pointed to the fact that the WSIB has a relatively new policy for first responders that presumes a first responder or other designated worker diagnosed with posttraumatic stress disorder (PTSD) and meets specific employment and diagnostic criteria is presumed to have arisen out of and in the course of his or her employment, unless the contrary is shown. They did not make a claim under that policy but used it to illustrate the WSIB’s acceptance of those positions having a routine degree of high stress. Their point is a valid one. The WSIB’s view, via the First Responder’s policy, is that police officers have regular exposure to high stress situations well beyond the general public.
Even then, the CMS policy recognizes that routine exposure to high degrees of stress in one’s regular job is not a reason to deny a claim. It states in part:
A claim for chronic mental stress made by a worker employed in an occupation, or a category of jobs within an occupation, reasonably characterized by a high degree of routine stress should not be denied simply because all workers employed in that occupation, or category of jobs within that occupation, are normally exposed to a high level of stress. In some cases, therefore, consistent exposure to a high level of routine stress over time may qualify as a substantial work-related stressor.
Jobs with a high degree of routine stress would typically have one or both of the following characteristics:
responsibility over matters involving life and death, or
routine work in extremely dangerous circumstances.
The worker’s statements about attending multiple fatal accidents, occasionally involving acquaintances, and attending the aftermath of suicides or trolling rivers and other waterways for body parts for 12 years satisfies both criteria.
The employer’s opposition to CMS entitlement in their submission dated January 11, 2019 characterizes the events presented by the worker as “conspicuously unfortunate” and the recovery of body parts and dead bodies in “difficult elements” as “an inherent part of job” and part of the regular duties of a police dive team member. While that may be true, it does not eliminate the fact it regularly involved routine work in extremely dangerous circumstances from 1986 to 1998. Again, the fact they may be routine in a worker’s job does not disqualify them for entitlement under the CMS policy. This worker’s specialized form of police work during that time inarguably exposed him to more dangerous and stressful circumstances than if he were a regular constable.
The employer also pointed to the delayed onset of symptoms of about 6-7 years after the last work event in 1994. I acknowledge this delay but I also find the worker sufficiently described why there is not a lot of medical documentation for his issues during that time, namely the culture of police officers to “suck it up” and the Staff Sergeant’s admitted the lack of a program between 1986 and 1998 to deal with these issues.
When I further examined the delayed onset of stress, I noted the worker had extensive psychiatric treatment through Dr. Lena from 2001 to 2013 and while his reports do not specifically refer to his work as a dive team member as the source of his stress, they also fail to identify any other cause. There is a vague indication that his work assignments and working night shifts were causing some of his situational stress but I do not accept those were in any way as stressful as his experiences as a police diver. It is likely that his issues in the 2000s were an extension of the stress he experienced as a diver particularly since he advised CAMH he “started to remember different things” related to his experience on the dive team while working as a community service officer in 2000.
I also noted the worker had an independent psychiatric evaluation on May 16, 2003 arranged by his insurance company. During the interview, the worker claimed he started in policing at age 27 and worked as a diver for 10 years and spent a lot of time away from home. He decided to move into regular policing work to spend more time with his family. He denied any ongoing conflict in the force and was a good performer but his employer then put him on the night shift without much notice which upset him but “he did not see it as a long-term problem”. He was also upset when his father-in-law died two years prior because they were very close.
He denied prior problems with anxiety and first noticed feeling anxious when he started teaching police students. By 2001, he noticed problems concentrating so he went on sick leave in September 2002. The psychiatrist diagnosed Major Depression, in partial remission, single episode on Axis 1 of the DSM-IV diagnostic tool. The psychiatrist found no particular precipitant or predisposition for the development of his major depression. He found the worker a credible person who suffered from a significant psychiatric illness.
When responding to the insurer’s question on whether issues such as workload, job changes, issues with co-workers or supervisors or job performance contributed to his psychiatric problems, the psychiatrist responded:
I do not see evidence of any of these difficulties in (the worker). He presents himself as a hardworking individual. He is not looking for another job. I do not feel that any work situation has contributed to his psychiatric problems. However, shiftwork, when an individual is recovering from a psychiatric illness can be problematic. This is because depression significantly affects the sleep-wake cycle and sleep architecture.
This psychiatrist’s observations are valid to the extent of the information the worker disclosed during their meeting. Noticeably absent is any reference to his experiences as a police diver, which he generously disclosed in later years. I cannot account for the worker’s decision not to discuss these matters other than he was not aware of the impact those experiences were having on him in 2003 or that he was conditioned to not show weakness due to the police culture at the time.
I also noted the worker had a psychiatric assessment at a city Hospital in December 2011 by Dr. Barsoum who noted the worker first began treatment for depression about 10 years earlier triggered by an interaction with his supervisor over an award they did not think he deserved. He went off for a year due to the depression he felt following this interaction.
The report references the worker’s work as a police diver where he encountered dead bodies and body parts and experienced traumatic events and states “this is where the question of PTSD was raised”. The report indicates the worker did not feel particularly consciously traumatized by those events other than feeling sad about them. He reported a strained relationship with his father growing up.
The report concludes:
In spite of having been exposed to excessive scenes of violence and death in his job as a police officer, I was not able to elicit any history suggestive of post-traumatic stress disorder. In fact, he appears to have been more impacted by the mistreatment that he received by his boss ten years ago…….
I do not place much weight on Dr. Barsoum’s opinion because it diminishes the impact of finding dead bodies and body parts in murky waters against struggles with his father and a personality conflict with his boss. In my view, there is no comparison. It is possible the worker was not aware of the full impact of his prior experiences at the time (noting Dr. Barsoum mentioning the worker was not “consciously traumatized”) or was incapable of discussing them freely. The worker may have very well been distressed over the matters he described to Dr. Barsoum at the time but that does not weaken his claim to suffer chronic mental stress in the manner he now describes.
However, the worker made some relevant observations about his condition to his alcohol recovery counsellor in their exit summary report dated December 23, 2011, which is the same time as Dr. Barsoum’s report. Some of his revelations were:
(The worker) was able to identify that his work stress was a trigger for his drinking
(The worker) acknowledged that his career as a police officer has made it difficult for him to ask for help
(The worker) spoke a great deal about his career and the pressure he felt to always be the person in control in a traumatic situation. (The worker) expressed that he felt that he was not able to show feelings or be vulnerable during times of stress in his career because he had a job to do.
His counsellor concluded:
- It is this writer’s opinion that (the worker) has experienced significant trauma relating to his career as a police officer and would benefit from either seeing a trauma therapist on a weekly basis or participating in a trauma program.
Those statements represent his own thoughts about what led to his depression which I why I give them greater weight than Dr. Barsoum’s interpretation of the causes.
I will add that CAMH made no issue with the delayed onset of his symptoms.
The employer pointed to personal issues that also affected his overall psychological condition but CAMH found these were not significant contributors to his condition.
The CM and employer also placed an undue amount of weight placed on the worker’s forced job change in 2003 as a pivotal cause of his stress condition. This ignores the severity of his other exposures that CAMH saw were direct contributors to his illness. The job change, by comparison, was not.
The CMS policy outlines that 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.
It defines “predominant cause” as:
…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.
In my view, the analysis done by CAMH and their conclusion his anxiety disorder and major depressive disorder (primarily related to persistence of posttraumatic stress symptoms/impairment) is directly related to the traumatic nature of his work as a police diver and other events he experienced as a police constable satisfies the above criteria.
I have shown through my analysis that his work-related stressors were the predominant contributors to his mental stress injury and that the other issues thought to contribute to his impairment were either not the predominant cause or masked the true reason for his chronic mental stress impairment.
For those reasons, I accept the worker meets the criteria for entitlement under the WSIB’s CMS policy. I make no findings on the extent or duration of this entitlement.
CONCLUSION
The worker meets the criteria for entitlement under the CMS policy. The operating area has the authority to rule on the extent and duration of this entitlement.
The objection is allowed.
DATED: May 2, 2019
D. Giannobile Appeals Resolution Officer Appeals Services Division