APPEALS RESOLUTION OFFICER DECISION
decision number:
20230031
OBJECTING PARTY:
employer
RESPONDENT:
worker
REPRESENTED by:
worker representative
HEARING:
HEARING IN WRITING
HEARD by:
c. goegan, appeals resolution officer
DECEMBER 19, 2022
ISSUE
The employer is objecting to the February 18, 2022 decision of the Case Manager granted the worker initial entitlement to post-traumatic stress disorder (PTSD) and loss of earnings (LOE) benefits from February 4, 2022.
BACKGROUND
The worker’s claim was established with an accident date of February 3, 2022. On the Employer’s Report of Injury (Form 7) the employer indicated the worker, a then 47-year old police officer, left work early on February 3, 2022 and subsequently called in sick for their next two night shifts. On February 9, 2022, the worker spoke with the employer and reported he had been experiencing stress for two years that he attributed to multiple traumatic events he had been involved with while working as a police officer.
The worker sought medical attention on February 9, 2022 and was diagnosed with PTSD. The employer offered modified work that the worker declined. In a decision dated February 18, 2022, the Case Manager concluded the worker met the presumptive criteria for initial entitlement to PTSD under Policy 15-03-13 (PTSD in First Responders and Other Designated Workers) and approved the payment of full LOE benefits from February 4, 2022. The Case Manager reconsidered and upheld the allowance of initial entitlement on September 26, 2022.
The employer objected to the February 18, 2022 decision and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
15-03-13 – PTSD in First Responders and Other Designated Workers
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
September 7, 2018
September 1, 2021
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the February 18, 2022 decision granting the worker initial entitlement to PTSD under the presumption and LOE benefits from February 4, 2022 is appropriate.
The Employer’s Position
In submissions provided with the August 31, 2022 Appeal Readiness Form (ARF), the employer argued initial entitlement to PTSD should be rescinded and based on the following:
While the worker may have PTSD, the primary cause of the injury stemmed from his former employment as a police officer with X and non-work-related events and not his employment as a police officer with the employer.
The worker reported certain personal non-work-related incidents contributed to the development of PTSD.
The employer submits the injury was wholly or almost wholly caused by work with X and not the employer.
The employer offered suitable modified work on February 9, 2022.
The Worker’s Position
In submissions provided with the December 2, 2022 Respondent Form, the worker’s representative argued that regardless of the fact the worker may have been exposed to traumatic events during their former employment with the X, this did not negate that the worker had been exposed to multiple traumatic events while working for the employer as a police officer since 2009.
The representative submitted the worker was diagnosed with PTSD by a psychologist in 2022 and had been exposed to traumatic events over the course of their career with the employer. They submitted that contrary to the employer’s submission, there have been no non-work-related incidents identified as the case of the worker’s PTSD. The worker’s representative argued the employer has not presented evidence that would successfully rebut the presumption of causation of PTSD afforded to police officers and other designated workers under the applicable WSIB Policy.
The Evidence
According to the Employer’s Report of Injury (Form 7), the worker spoke with their supervisor on February 9, 2022 and reported they had been experiencing stress for two years that they attributed to work-related incidents they were involved with that included multiple fatal motor vehicle collisions (MVC) while working for the X, a MVC fatality, fatal highway incidents and attending the scene involving the death of a family member while on duty.
In a February 9, 2022 note Dr. Atoe, indicated the worker had PTSD. Dr. Atoe referred the worker to a psychologist and stated the worker would be off work for two weeks.
A February 9, 2022 written offer of modified work from the employer indicated temporary modified work was available. The modified work offer included a list of standard medical precautions for various physical injuries and a job description for the modified position of alternative response officer.
A February 11, 2022 Health Professional’s Report for Occupational Mental Stress from Dr. Skidmore, a psychologist, had the DSM 5 diagnosis of PTSD. Dr. Skidmore indicated the symptoms began two years earlier and stated she was unaware of any pre-existing or co-existing psychological conditions. Dr. Skidmore reported anxiety began when the worker started policing and opined the worker was unable to work as a result of their psychological condition.
In a February 18, 2022 WSIB Community Mental Health Program Assessment Form, Dr. Skidmore indicated the worker’s anxiety began when they first started policing although the last two years had been difficult. They reported indicated the worker worked their first 8-years with the X and then transferred to the employer because they thought it would be better than X work, which meant they were often the only one on the scene until other first responders arrived. Dr. Skidmore noted in the last two years, calls had been staying with the worker. They indicated once such call involved the suicide of the worker’s spouse’s grandfather and Dr. Skidmore noted the worker had witnessed a number of other deaths involving suicide. Dr. Skidmore opined the worker was unable to return to work due to the severity of their symptoms and stated they would re-evaluate the worker’s ability to work in June 2022.
Findings
Policy 15-03-13 (PTSD in First Responders and Other Designated Workers) states that if a first responder other designated worker is diagnosed with PTSD and meets specific employment and diagnostic criteria, the first responder or other designated worker’s PTSD is presumed to have arisen out of and in the course of their employment, unless the contrary is shown.
The policy contains a list of workers who are classified as “first responders and other designated workers” for the purposes of applying the presumption. Police officers are included in the list.
In order for the presumption to apply to a first responder diagnosed with PTSD by a psychiatrist or psychologist, the policy requires the following three specific criteria:
The first responder must have been employed as a first responder for at least one day on or after April 6,
The first responder must have been diagnosed with PTSD by a psychologist or a psychiatrist:
On or after April 6, 2014, and
No later than 24 months after the day they cease to be employed as a first responder if they cease to be employed as a first responder on or after April 6, 2016.
The first responder must have been diagnosed by a psychologist or psychiatrist with PTSD as described in the DSM-5.
In this case, the worker meets all three of the requisite in Policy 15-03-13 (PTSD in First Responders and Other Designated Workers) for the presumption to apply. First, the worked in a designated occupation as a police officer after April 6, 2014. Second, the worker was diagnosed with PTSD after April 6, 2014 and third, Dr. Skidmore, a psychologist, rendered the diagnosis of PTSD in accordance with the DSM-5.
The issue to be addressed, however, is whether the evidence demonstrates the presumption of causation has successfully been rebutted.
Policy 15-03-13 (PTSD in First Responders and Other Designated Workers) states the presumption may be rebutted if it is established that the employment was not a significant contributing factor in causing the first responder’s PTSD. The policy also states that a first responder is not entitled to benefits for PTSD if it is shown that the PTSD was caused by the employer’s decisions or actions that are part of the employment function. A significant contributing factor is a factor of considerable effect or importance and it is important to note that work need not be the sole cause, or even the predominant cause of the PTSD.
The employer does dispute the worker has PTSD or was exposed to traumatic events. Their argument is essentially that the condition developed as the result of exposure to both non-work-related traumatic events and their employment X and that employment as a police officer with the employer did not contribute in a significant way to the condition. After considering the evidence in the record, however, I do not accept the employer’s argument as I find the evidence does not successfully rebut the presumption.
On the Form 7, the employer listed a number of traumatic events the worker reported being exposed to while working as a police officer. I note that while they cited MVC fatalities they had been exposed to in 2005/2006 while working for the X, they also cited a number of fatal incidents that occurred after they began working for the employer as a police officer in 2009. The employer also argued the worker reported a personal non-work-related incident was a contributing factor in the development of PTSD; however, I agree with the worker’s representative that there is no evidence of exposure to objectively traumatic non-work-related incidents. While Dr. Skidmore cited the worker’s attendance at the scene of his spouse’s grandfather’s death as a particularly distressing event, I note both Dr. Skidmore and the Employer’s Report of Injury indicated the worker was on duty with the employer while responding to the scene. Noting the majority of traumatic events identified by the worker occurred after they began working as a police officer for the employer, I accept the exposure to traumatic events as a police officer with the employer contributed significantly to the development of PTSD.
The employer’s representative has not directed me to any persuasive evidence suggesting that the worker’s exposure to traumatic events while working as a police officer for the employer since 2009 did not contribute significantly to the diagnosis of PTSD, or were significantly outweighed by the exposure to traumatic events while working for the X. Similarly, the employer’s representative has not directed me to any evidence to support PTSD was caused by non-work-related factors such as decisions or actions by the employer that are part of the employment function.
With respect to the payment of LOE benefits, I also find in favour of the worker. Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker is entitled to receive full loss of earnings (LOE) benefits if the nature of the injury completely prevents the worker from returning to any type of work. In this case, the worker was evaluated by both Dr. Atoe and Dr. Skidmore concerning the PTSD and each clinician concluded the worker was unable to return to work. Dr. Skidmore, who is a psychologist, concluded the worker was unable to return to any type of work in policing due to the severity of their symptoms until they could re-evaluate their symptoms in June 2022. Therefore, while the employer may have had modified work available, based on the opinion of Dr. Skidmore, I accept the nature of the injury prevented the worker from returning to any work. Accordingly, I find the February 18, 2022 decision was appropriate and the worker was entitled to full LOE benefits from February 4, 2022.
In conclusion, I do not find the evidence sufficiently rebuts the presumption afforded to the worker as a first responder under Policy 15-03-13 (PTSD in First Responders and Other Designated Workers). I also find the nature of the PTSD prevented the worker from returning to any work on February 4, 2022.
Accordingly, since the worker meets all of the requisite criteria for initial entitlement in Policy 15-03-14 (PTSD in First Responders and Other Designated Workers) I find the February 18, 2022 decision remains appropriate.
CONCLUSION
I conclude the February 18, 2022 decision granting the worker entitlement to PTSD under Policy
15-03-13 (PTSD in First Responders and Other Designated Workers) and LOE benefits from February4, 2022 is appropriate.
The employer’s objection is denied.
DATED December 19, 2022
C. Goegan
Appeals Resolution Officer
Appeals Services Division