DECISION NUMBER:

20220123

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

TELECONFERENCE – SEPTEMBER 9, 2022

HEARD by:

AMY WOODWORTH, APPEALS RESOLUTION OFFICER

OBSERVER:

UNION REPRESENTATIVE

               DATED:                                     SEPTEMBER 30, 2022

ISSUES

The worker is objecting to the Case Manager’s (CM) decision dated May 7, 2021, regarding the following issues:

1. The denial of entitlement to Traumatic Mental Stress (TMS)

2. The denial of entitlement to Chronic Mental Stress (CMS)

BACKGROUND

This special needs assistant reported that on March 17, 2021, they were assaulted by the vice principal when they went to their office and asked for personal protective equipment (PPE). The worker reported that the vice principal retrieved four gowns and pushed them on their chest, causing physical pain. The worker also reported they were bullied and harassed regarding their request for additional PPE.

The worker sought medical attention on March 18, 2021, and stopped working. The CM made further inquiries and in a decision dated May 7, 2021, they denied initial entitlement to TMS, as they determined the incident was not considered objectively traumatic. The CM also denied initial entitlement to CMS as they determined the concerns reported by the worker were not considered harassing and did not rise to the level of a substantial work related stressor under the CMS policy.

The worker objected to the CM’s decision and the file was referred to the Appeals Services Division for further consideration. The worker representative requested a resolution by oral hearing, which was allowed in a letter dated April 28, 2022.

AUTHORITY

Operational Policy Manual

Published

15-03-02 Traumatic Mental Stress 15-03-14 Chronic Mental Stress

January 2, 2018

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that will follow, I do not find in favour of the worker.

Worker Representative’s Position

The worker representative argues that initial entitlement to a psychological trauma should be allowed and the incident that occurred on March 17, 2021 meets the policy criteria.

They contend that with the worker’s prior Post Traumatic Stress Disorder (PTSD) diagnosis from a previous injury, along with other traumatic incidents, causes the worker to have an enhanced reaction to traumatic situations. The worker representative states that the employer is aware of the worker’s condition and it is their responsibility to make sure the worker is supported.

They note that the pandemic was a stressful and confusing time and it was up to the employer to take all responsible precautions to keep the worker safe. They argue that on the day of the incident the vice- principal became frustrated and pushed the gowns into the worker’s chest, and it doesn’t matter that the worker had a pre-existing condition, this should not negate benefits. They contend that the worker’s ongoing PTSD is a DSM V diagnosis and therefore that criterion in the policy is met.

The worker representative notes the letter dated April 21, 2021 on file is a statement by the worker and explains the issue with the gowns and this statement was requested by the WSIB. They argue this should be accepted as written, as there are no arguments opposing the statement.

Employer Representative’s Position

The employer representative argues that the worker should not have entitlement to TMS or CMS. They note that the CMS policy states it cannot be due to a management issue and the stressor must be the pre-dominant cause. They further argue there is no DSM V diagnosis related to the March 17, 2021 incident.

The employer representative points out that on the Health Professional’s Report of Injury/Disease (Form 8) the chest is indicated as the area of injury. This was also noted on a Functional Abilities Form (FAF) that is on the file. There is no diagnosis of a mental stress injury.

They note that the clinical notes from Dr. Lee pre-date the March 2021 incident and report a history of PTSD, including family history of trauma. They submit that given the worker’s psychological traumatic history, their reaction to the March 17, 2021 incident was overwhelmed by their pre-existing conditions.

They argue that the worker was not threatened or harassed, and was accidentally touched on the chest, but the employer just simply did not have the quantity of PPE to give out each day.

Worker’s Testimony

The worker testified that they have been an employee with the employer since 2003. They confirm they are a special needs assistant, and help with the daily care of the special needs students. They state that they have close contact with the children they work with, helping them with eating, cleaning, and toileting among other tasks.

The worker testified that the lack of available PPE during the pandemic was a big stressor. They indicated they sent an email to the principal a day or two before March 17, 2021, asking for gloves, gowns, and goggles. They acknowledged it was typically the classroom teacher that provided the PPE to them. The worker stated that on March 17, 2021, the vice principal pushed gowns onto their chest and the worker was shocked by this action and wanted to run away. They indicated they did not call the police.

The worker stated that the teacher told them they needed to wear the gowns and gloves more than one day. The worker stated that the teacher was yelling and bullying them about this issue and the worker felt humiliated. They indicated they were comparing them with other co-workers who were wearing gowns more than one day. The worker also indicated they asked the vice-principal many times for more gowns and the vice-principal advised that other co-workers wore their gowns more than one day and that they didn’t have the budget for buying more gowns. The worker did not understand why they were being compared to co-workers. The worker indicated they had prior PTSD and could not handle being bullied.

They confirmed that the gowns were disposable, similar to a hospital gown. The vice-principal had boxes in their office and each package had four gowns in it. The worker could not recall the vice-principal saying that if they could, then they would give them a gown every day.

The worker stated they saw Dr. Lee for treatment until they stopped last year, in 2021. They started seeing a social worker in July 2021. Dr. Wilcox is the worker’s family doctor.

TMS

For the reasons that follow, I find the worker does not have entitlement to TMS.

Policy 15-03-02 states that 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

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.

Medical Diagnosis

In this case, I do not find there is an appropriately diagnosed mental stress injury. As stated in policy 15- 03-02, before any traumatic 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.

I refer to the Form 8 dated March 19, 2021, where Dr. Wilcox provided a diagnosis of workplace harassment, which is not in accordance with the DSM. While the worker representative stated that the worker has previously diagnosed PTSD from prior incidents and argues that this should be considered as the diagnosis in regard to the incident of March 17, 2021, I do not concur.

The diagnosis of PTSD was the result of a prior claim for a separate incident. There is no new diagnosis provided for the incident of March 17, 2021, which is the basis of this claim. Therefore, I find that there is no DSM diagnosis provided that is specifically related to the incident of March 17, 2021. I am unable to find there is a current diagnosis in accordance with the DSM in relation to the injury. Therefore, I find this policy criteria has not been met.

Clearly and Precisely Identifiable Event that is Objectively Traumatic

While I note the worker described incidents that they characterized as bullying by coworkers, and specifically the incident of the vice-principal pushing a package of gowns against their chest, I do not find the behaviour described by the worker meets the criteria of a clearly and precisely identifiable traumatic event. In stating this, I note that in terms of workplace harassment, a traumatic event includes physical or threats of physical violence. A traumatic event also includes a life threatening or a potentially life threatening situation.

Based on the description provided by the worker, although the worker claims she suffered a traumatic incident at the workplace and I acknowledge that the pandemic period was a stressful time, I do not find the incidents described by the worker included physical violence, or threats of physical violence, or that the worker was placed in a life-threatening position. As such, I am unable to identify that any traumatic event occurred.

In summary, I do not find evidence of a clearly and precisely identifiable traumatic event. As such, I find the conditions to allow entitlement under Policy 15-03-02 have not been met. Therefore, I find the worker does not have entitlement to TMS in this claim.

CMS

For the reasons that follow, I find the worker does not have entitlement to CMS.

In reviewing entitlement to CMS, I refer to Policy 15-03-14 that states a worker will generally be entitled to benefits for CMS if an appropriately diagnosed mental stress injury is caused by a substantial

work-related stressor that arises 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.

In summary, the following conditions must be met in order for entitlement to be granted for CMS:

1. A regulated health professional has provided a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (DSM)

2. The worker must have experienced one or more substantial work-related stressors

3. The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury

4. Has a regulated health professional provided a DSM diagnosis?

As stated in Policy 15-03-14, before any CMS claim can be adjudicated, there must be a diagnosis in accordance with the DSM which may include, but is not limited to,

• acute stress disorder

• post-traumatic stress disorder

• adjustment disorder, or

• an anxiety or depressive disorder

As previously stated, I do not find there is a diagnosis in accordance with the DSM that is related to the incident under this claim. Noting there is no DSM diagnosis, I find this policy criteria has not been met.

2. Does the evidence support the worker experienced one or more substantial work-related stressors?

As per Policy 15-03-14:

The term “work-related stressor” is meant to include multiple work-related stressors, as well as a cumulative series of work-related stressors.

In order to consider entitlement for chronic mental stress, the WSIB decision-maker must be able to identify the event(s), which are alleged to have caused the chronic mental stress. This means that the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others can confirm the event.

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.

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered 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

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.

Policy 15-03-14 goes on to state there is no entitlement for chronic mental stress caused by an employer’s decision, 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 CMS due to an employer’s decision 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 the worker’s testimony and in their statement on file, they indicated that they had to request additional gowns and PPE while working during the pandemic in order to feel safe. They indicated this was stressful as the teacher and vice-principal compared them to other co-workers, who also had to re-use their gown and equipment. The worker reported that the teacher yelled at them and they felt bullied.

Eventually, when the worker saw the vice-principal to acquire additional gowns, the worker stated the vice-principal pushed the gowns with force into their chest.

As stated in the policy, interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor. In this case, while I acknowledge the incident(s) described by the worker were unpleasant and may have caused them additional stress, I do not find the events to equate to workplace harassment or conduct that a reasonable person would perceive as egregious or abusive.

In this case, while I can acknowledge the demands of being a special needs assistant, specifically during the pandemic would be stressful, I do not find the incident(s) described by the worker to be excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. The worker’s own statement supports that other employees in the worker’s position were also required to wear gowns and other PPE for more than one day. Additionally, as indicated in the worker’s statement on file, the vice principal stated that they wanted the worker to have a gown for everyday use, but they did not have enough of them.

For the reasons stated above, I do not find the criteria in Policy 15-03-14 for a substantial work-related stressor has been met.

3. The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury

Policy 15-03-14 states that in all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor was the predominant cause of an appropriately diagnosed mental stress injury.

As outlined above, I have concluded the evidence does not support a substantial work-related stressor, or a diagnosed mental stress injury. Consequently, it is not necessary to address the question of predominant cause.

For the reasons stated above, the requirements as set out in Policy 15-03-14 have not been met and entitlement to CMS is not in order.

CONCLUSION

The issues are concluded as follows:

1. I find the worker does not have entitlement to TMS.

2. I find the worker does not have entitlement to CMS. The worker’s objection is denied.

DATED September 30, 2022

A. Woodworth

Appeals Resolution Officer Appeals Services Division