APPEALS RESOLUTION OFFICER DECISION
decision number: 20220006
OBJECTING PARTY: employer
REPRESENTED by: employer representative
RESPONDENT: worker
REPRESENTED by: worker representative
HEARING: HEARING IN WRITING
HEARD by: l. diaz, appeals resolution officer
DATED: DECEMBER 14, 2021
ISSUE
The employer objects to the September 9, 2020 Case Manager’s decision which granted entitlement to Traumatic Mental Stress (TMS) under the claim.
BACKGROUND
On July 30, 2020, while employed as a Driver, the worker was subjected to aggressive and confrontational behaviour by a new temporary co-worker who came into contact with the worker while on a break outside of the employer’s physical premises. The worker had been employed as a Driver for 22 years.
The worker reported the incident to their employer. The following day, the worker was on their pre-scheduled vacation. The worker sought initial medical attention related to the above incident on August 4, 2020, following which they were diagnosed with anxiety and post-traumatic stress disorder (PTSD). The worker was scheduled to return to work on August 10, 2020, however did not do so as a result of the above incident, claiming for TMS under the claim. The worker retired on July 31, 2021, at which point full LOE benefits ceased.
Case Manager’s decision
Further to the July 30, 2020 decision, the Case Manager granted entitlement to PTSD and anxiety on the basis the worker’s injury arose out of and in the course of employment. The Case Manager also concluded the criteria for entitlement to TMS had been established.
Employer’s position
The employer submitted that the evidence did not establish the worker sustained an accident in the course of employment in order to have a compensable TMS claim under the Act as they wilfully removed themselves from the course of employment when embarking on a coffee break.
Worker’s position
The worker’s representative maintained that the evidence supported entitlement to TMS was appropriately granted and requested that the operating area’s decision be upheld.
AUTHORITY
Operational Policy Manual Published
11-01-01, Adjudicative Process November 3, 2008
15-02-02, Accident in the Course of Employment October 12, 2004
15-03-02, Traumatic Mental Stress January 2, 2018
15-03-03, On/Off Employer’s Premises October 12, 2004
ANALYSIS
I find the worker was appropriately granted entitlement to TMS under the claim. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and the applicable Policies.
Policy 11-01-01, Adjudicative Process, records the following in part:
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."
An allowable claim must have the following five points
an employer (see 12-01-01, Who is an Employer?)
a worker (see 12-02-01, Workers and Independent Operators)
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
In reviewing the above five points for an allowable claim, I note that points 1 and 2 are not in question as there is an employer and a worker. It is now necessary to examine whether point 3 has been established, i.e. ‘personal work-related injury’, as doing so ties directly into whether the remaining points have also been met.
With respect to determining whether ‘personal work-related injury’ has been met, I had particular regard for Policy 15-02-02, Accident in the Course of Employment, given the circumstances of the events that unfolded on July 30, 2020. The evidence supports, and it is undisputed, that the following occurred on that day:
The worker commenced their shift at 5:30 am on the day in question – this is supported by the timesheets submitted to file. The worker started their shift at this time in order to prep their truck and get ready for their day.
The worker loaded the truck and departed the workplace, first making a stop at the coffee shop at 6.45 am prior to starting their deliveries for the day.
The worker was confronted by a verbally aggressive and confrontational temporary worker who threatened the worker, and who made physical contact with the worker by leaning into him aggressively. The worker did not sustain physical injuries as a result of this very aggressive behaviour.
The incident was entirely and wholly started by the temporary co-worker who approached the worker.
The aggressive behaviour lasted approximately 10-15 minutes.
The above events were witnessed and confirmed by several co-workers who were present and witnessed and heard the temporary worker’s behaviour.
The worker left the coffee shop shortly thereafter and commenced their driving route.
The worker reported the incident to their employer the same day.
The worker was subsequently diagnosed with PTSD and anxiety, which was directly related to the incident under the claim. The worker first sought medical attention for this condition on August 4, 2020, and was subsequently assessed by Dr. Jett, Psychologist, who provided ongoing psychological treatment for this condition.
The worker provided the following account on their Worker’s Report of Injury/Disease of what occurred on July 30, 2020:
I was physically and verbally attacked by a another employee, he came up to me with fists clenched within centimetres at times touching and verbally called me bitch, pussy, said things like I’ll show you what a real man can do, said ‘I will show you who God is’, he was physically domineering and trying to provoke me. He told me he felt bad energy from me. I walked away but in a matter of 15 minutes he had attacked me 3 times. He continued to growl and insult me, I definitely felt my life was in danger, he was twice my size and half my age, I asked him what his problem was with me and he said I didn’t need to know.
The incident is also well-summarized in the witness statement submitted to file by a union steward, which is documented below. It is also corroborated by another co-worker, who submitted a similar account to file.
6:45 a.m. I arrived at a donut shop in a city in Ontario. Upon entry I noticed my co-worker M sitting in a booth in the corner. I asked L if he would like anything. He replied no. I mentioned that we would be sitting with M. L proceeded to sit with M. While I was in line, I noticed that L was sitting on the same side of the table as M, and was extremely close to him. I thought it was peculiar. I received my order and joined them. S (driver) walked in to order as I was walking out. Once outside I turned and noticed L had followed me outside.
7:00 a.m. Within a couple minutes S and M had joined us. When M came around the corner of the building I noticed L approaching him. L then stood within a few centimeters of M (I noticed touching at times). L was physically domineering, and trying to antagonize M into a confrontation. L told M he felt bad energy from him. L also mentioned something about God (“I’ll show you who God is.”), but I was unable to hear him clearly. He was speaking into M's ear, and he had an aggressive stance. S and I gave a look of concern to one another, because we both thought this was very strange behaviour.
M removed himself from being next to L, and came closer to where I was standing. M asked me about the recent fires in a town. I replied that I knew very little about them. M asked me if my people had anything to do with the fire. L then got in M's face again, threatening him with physical violence, calling him names such as pussy, bitch and telling M that he is going to show him what a real man can do to him. At the time I observed L with his fist clenched, his jaw tightened, and he was growling at M. M immediately stopped talking and took the entire verbal barrage of insults and threats. I felt that this situation was turning very bad very quickly. I knew the safety of M was very much in question. I then stepped in and told L that we had to get to our first call. He ignored me. He was growling at M, and continued to insult him. I repeated myself several more times, but L refused to acknowledge me. M told L that he had no idea why he was so angry. L replied that he didn't need to know why. I started walking to my truck hoping that he would leave. After a couple moments I observed him get into his car.
The employer submitted that because the exchange had occurred at approximately 7:00 am while grabbing coffee before the worker’s first call, it clearly outlined that the worker deviated from the worker’s regular route, outside of regular break hours, prior to commencing the route.
In response to this concern brought forth by the employer, I note that although the worker had not yet commenced their morning route, their shift had actually started at 5:30 am. The file information confirms the worker would have prepped their truck and prepared for the day while at the employer’s premises.
The employer also submitted that the worker could have purchased a coffee at their premises, or alternatively, brought a coffee in to work from home. Policy 15-03-03, On/Off Employer’s Premises, speaks to this issue as follows:
A worker is considered to be in the course of employment on entering the employer's premises, as defined, at the proper time, using the accepted means for entering and leaving to perform activities for the purpose of the employer's business. The "In the course of employment" status ends on leaving the employer's premises, unless the worker leaves the premises for the purpose of the employment.
Without limitation to the following, the WSIB will consider entitlement in claims where a worker is injured when
going to or from work in transport under the control and supervision of, or chartered by, the employer
obtaining pay or depositing tools, etc., on the employer's premises after actual work hours
participating in a work-related sports activity, for example, school teachers and camp counselors, when the employer condones these activities by making the premises available and/or exercising a form of supervision and control
attending compulsory evening courses
travelling on company business, by the most direct and uninterrupted route, under the supervision and control of the employer
travelling to or from a convention and/or participating in convention activities, and
on a lunch, break, or other non-work period (period of leisure) by ordinary hazards of the employer's premises.
The above policy clearly indicates that ‘in the course of employment’ status ends unless the worker leaves the premises for the purpose of the employment (emphasis added). The file information confirms that the very nature of the worker’s position of Driver required them to leave the employer’s premises for the majority of the workday.
The file evidence supports that the reason the worker and other Drivers who worked for the employer would stop at the coffee shop in question was that it had parking availability for their trucks while they secured a coffee prior to commencing their morning route. The worker is required to depart from the employer’s physical premises in order to perform the majority of their work duties. The file information also supports the worker only took that one 15-minute break that day.
With respect to the employer’s representative contending that the worker could have brought their own coffee from home or purchased it from the employer’s premises, I would point out that it is an individual’s personal choice/preference as to where they decide to purchase their beverages – this is not an issue which speaks to initial entitlement to TMS. In addition, I do not accept the employer representative’s suggestion that the employer has a lunchroom where the worker could have taken their break and/or lunch, particularly given the nature of their employment which requires that they make deliveries for the majority of their day.
Having regard for all of the above information, I accept it was reasonable for the worker to attend the coffee shop to purchase a coffee on their paid morning break prior to beginning their route.
Although the employer indicated in their submission that it was not customary for workers to take their break prior to commencing their route, I do not find the evidence presented supports this position. The file information confirms that there were at least three other Drivers/employees from their company present at the coffee shop prior to the start of their route.
Additionally, despite the employer arguing that the worker was performing a personal activity at the time of the incident, I would note the evidence supports, as is confirmed by the employer, that the worker is entitled to two 15-minute breaks and one ½ lunch break throughout the course of their day. The worker had just purchased a coffee, which would be consistent with taking a 15-minute break to which they would be entitled.
Consequently, I find all of the evidence above supports the worker was ‘in the course of employment’ at the time of the incident, further to Policy 15-03-03.
I also considered Policy 15-02-02, Accident in the Course of Employment, which records the following:
A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.
I find the evidence presented supports all of the above criteria have been established. The worker would normally be required to travel outside of the employer’s premises to perform their work given their position of Driver – the circumstance of ‘place’ has therefore been established. The worker began work at 5:30 am that morning, and the incident occurred at approximately 6:45 am, according to the Worker’s Report of Injury/Disease and Employer’s Report of Injury/Disease. The ‘time’ would therefore clearly coincide with the worker’s usual hours of work. Lastly, in terms of the ‘activity’ performed at the time of the incident, the evidence supports the worker was taking a 15-minute break for which they are paid and to which they are entitled. I concur with the worker’s representative and find that purchasing a coffee on a paid break while being required to be away from the employer’s premises does not constitute a distinct departure on a personal errand.
The employer referenced several WSIAT decisions for consideration, Decision No. 174/88, Decision 2142/99, and Decision 1727/13. However, the facts of these WSIAT decisions differ from the facts of the case before me. In each of the WSIAT decisions presented for review, the worker departed from the place in which they typically performed work to take their lunch (not their break). In this particular case, unlike the WSIAT cases presented, the worker was required to leave the employer’s premises for a work-related purpose, i.e. perform deliveries.
Policy 15-03-02, Traumatic Mental Stress, records the following:
A worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s employment.
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), 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).
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.
I note the employer is not disputing that the event in question was traumatic. Having regard for the event itself, I accept that it was clearly and precisely identifiable and objectively traumatic. The event was corroborated by witnesses, and I find it would generally be accepted to be traumatic to have an individual threaten another in such an aggressive manner. I further find the evidence supports the worker was the object of workplace harassment that included the threat of physical violence. As a result, I therefore conclude the worker has met the criteria for entitlement to TMS.
In summary, having regard for all of the above information, I find the evidence supports the worker sustained a ‘personal work-related injury’. Furthermore, it does not appear to be in dispute that the incident occurred as described above, thereby establishing the fourth point of ‘proof of accident’, in accordance with Policy 11-01-01. Lastly, the worker’s diagnosis of PTSD and anxiety would certainly be compatible with the accident history described. Consequently, given that the worker has met all the criteria for an allowable claim, I therefore find they were appropriately granted entitlement to TMS under the claim.
CONCLUSION
I conclude the worker has entitlement to TMS under the claim.
The employer’s objection is therefore denied.
DATED December 14, 2021
L. Diaz
Appeals Resolution Officer
Appeals Services Division