DECISION NUMBER:
20230042
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVEIC
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
REPRESENTED by:
SELF
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
J.L. HUGHSON, APPEALS RESOLUTION OFFICER
NOVEMBER 28, 2022
ISSUES
The worker is objecting to the following:
The Case Manager’s (CM) decision dated February 22, 2021, which denied the worker’s entitlement to benefits under policy 15-03-02, Traumatic Mental Stress, and
Policy 15-03-14, Chronic Mental Stress.
The CM’s decision dated November 4, 2019, which denied the worker entitlement to benefits under policy 15-04-02, Psychotraumatic Disability.
BACKGROUND
On February 23, 2019, this Food Services Cashier was verbally threatened and then attacked by a customer, who threw a cup of pop into the worker’s face. The worker responded by striking the customer twice, who then pushed the worker with force, causing them to fall backward, through a swinging door, onto the ground. The worker began to lose time from work on February 24, 2019. In their decision dated April 25, 2019, the Eligibility Adjudicator (EA) allowed the worker’s claim for entitlement to benefits for left arm, right wrist, and right hip soft tissue injuries. The EA also allowed entitlement to loss of earnings (LOE) benefits from February 24, 2019, to March 10, 2019, inclusive, but denied LOE from
March 11, 2019.
Following their injury, the worker identified mental health concerns. In the CM’s letter dated
June 21, 2019, they allowed the worker’s claim for an initial assessment with a psychologist. The CM also noted that the worker’s physical injuries had healed. The worker was diagnosed with Post-Traumatic Stress Disorder (PTSD) by their psychologist on August 16, 2019, as noted in the Community Mental Health Program (CMHP) Assessment Form.
In their decision dated November 4, 2019, the CM denied the worker’s entitlement to benefits for their psychological condition under policy 15-04-02, Psychotraumatic Disability; however, the CM noted that the worker’s claim remained allowed for entitlement to three blocks of psychological treatment.
Following this, the worker’s claim was reviewed for entitlement to benefits for a psychological condition under policy 15-03-02, Traumatic Mental Stress, and policy 15-03-14, Chronic Mental Stress. In their decision dated February 22, 2021, the CM denied the worker’s entitlement to benefits under these policies. In part, the CM determined the worker had provoked the fight, and was both the aggressor and a participant in the altercation, and that the worker’s claim did not meet the criteria required in both policies.
The worker objects to the decisions dated November 4, 2019, and February 22, 2021, and these issues are now before me.
AUTHORITY
Operational Policy Manual
Published
15-02-02 Accident in the Course of Employment
October 12, 2004
15-03-02 Traumatic Mental Stress
January 2, 2018
15-03-11 Fighting, Horseplay and Larking
October 12, 2004
15-03-14 Chronic Mental Stress
January 2, 2018
15-04-02 Psychotraumatic Disability
September 7, 2018
The above-noted policy versions were in effect as of the dates of the decisions under appeal.
ANALYSIS
I find the worker’s claim is allowed for entitlement to benefits for PTSD under policy 15-03-02, Traumatic Mental Stress. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the worker’s representative (WR) contended that the worker’s claim should be allowed for entitlement to benefits for their psychological condition as the worker’s claim meets the criteria of all three policies under review. The WR stated that the worker was defending themself when they hit the customer, and that the assault was the predominant cause of the worker’s psychological injury.
Although the employer indicated they would participate in this appeal, they did not return a Respondent Form with a submission on this issue.
- Entitlement to benefits under policy 15-03-02, Traumatic Mental Stress
Policy 15-03-02, Traumatic Mental Stress, states in part, 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.
Appropriately diagnosed mental stress injury
In the CMHP Assessment Form, dated August 16, 2019, which was completed by a psychologist, they diagnosed the worker with PTSD, stating that the worker meets the criteria for this diagnosis based upon the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders). Therefore, I find the worker has been appropriately diagnosed with a mental stress injury as required in policy.
In addition to PTSD, the worker was diagnosed with Major Depressive Disorder, single episode, by CAMH, as documented in their consultation report dated March 18, 2020. This diagnosis has not been considered by the operating area and therefore I make no finding on the worker’s entitlement to benefits for this diagnosis.
One or more traumatic events
Policy 15-03-02, Traumatic Mental Stress, states in part that 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.
The policy goes on to state, in part, that traumatic events include, but are not limited to, witnessing a fatality or a horrific accident, witnessing or being the object of an armed robbery, or being the object of physical violence.
I find the events of February 23, 2019, are clearly and precisely identifiable. The employer and worker agree that a customer verbally threatened the worker, then threw a cup of pop at the worker and pushed the worker hard enough for them to fall through a swinging door to the floor. This information has been confirmed in the Form 7, dated February 23, 2019, the Form 6, dated February 28, 2019, and other documents on file including the worker’s written statements, and the family doctor’s chart notes dated February 24, 2019.
I find the accident history to be objectively traumatic. The worker was first verbally threatened by a customer, who then followed through on their threat by throwing pop at the worker’s face. The customer then pushed the worker with both hands against their chest with enough force for the worker to fall backward through a swinging door and onto the floor.
In the CM’s decision dated February 22, 2021, they noted that they could not consider the accident history to be traumatic within the context of the entire incident; specifically, they noted that the worker initiated the physical altercation by throwing the first punch. I disagree with the conclusion that the worker initiated the fight, which I will discuss in detail, below. As the worker was the object of physical violence, which is identified within policy 15-03-02 as a traumatic event, I find the accident history to be objectively traumatic.
Standard of proof and causation
Policy 15-03-02, Traumatic Mental Stress, states in part that, in all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the traumatic event(s), or the cumulative effect of a series of traumatic events,
arose out of and in the course of the worker’s employment, and
caused, or significantly contributed to, an appropriately diagnosed mental stress injury.
I find the traumatic event arose out of the worker’s employment. The worker was at their workplace, performing their regular job duties, which the WR stated in their submission included advising customers of the employer’s rules around the use of the pop dispenser, when the event took place.
I find the traumatic event occurred in the course of the worker’s employment. Policy 15-02-02, Accident in the Course of Employment, states in part that 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. The worker was at their assigned workplace, during their regular hours of work, at the time the injury took place. In this case, the issue of activity is most important in determining if the worker was in the course of their employment at the time of their injury.
In the CM’s decision dated February 22, 2021, they referenced policy 15-03-11, Fighting, Horseplay and Larking. This policy states, in part, that the WSIB does not provide coverage for workers who are injured while participating in a fight that results solely over a personal matter. However, if the fight results solely over work, the claim may be accepted if the injured worker
was not the aggressor and did not provoke the fight, or
was an innocent bystander.
The CM went on to state, in part, that the worker took themselves out of the course of their employment as described in policy 15-03-11 by punching the customer twice in response to the pop being thrown at the worker. The CM stated that this was based upon the worker’s statement in a text message to their employer, which is time stamped February 27 and was submitted to file with a letter dated April 11, 2019. Specifically, the worker stated, in part
The moment I opened the door [the customer] was standing waiting and [the customer] throws the pop on my face. My first reaction is to defend myself so I punched [the customer] twice on [their] face. I believe [the customer] was surprised I hit back. So [the customer] pushed me with such force against the door it swing [sic] open and I was thrown on the ground.
In their submission, the WR stated in part that the worker did not provoke the fight, which is supported by the worker’s sworn affidavit, dated January 26, 2022. Within the affidavit, the worker states, in part
I reflexively struck out in the direction from which the pop had come. I perceived this violent act as a threat but was temporarily unable to see. I had my glasses on and could not see where I was striking out. I struck [the customer] as a result of this reflexive reaction.
In their decision dated February 22, 2021, the CM noted that the worker had initiated the physical altercation by throwing the first punch in response to the pop being thrown on them. I disagree. It is important to understand the full context of the situation. As described in the Employer’s Report of Injury, dated February 23, 2019, immediately before the incident, the worker had observed a customer filling up a personal bottle with a drink. The worker told the customer they could not do that, and the customer responded by stating, “If my kids were not here, I would throw this drink in your face.” The worker stated in Memo #A, dated May 10, 2019, that they had responded by saying, “What example is that for your kids?” Following this, the worker left the area to call security. In the worker’s text message dated February 27, they noted that after calling security, they went back into their work area through a swinging door. The worker stated this door had a fake window in it (this is described elsewhere in the claim file as frosted glass). The worker was not able to see through the window of the door, and did not know the customer was on the other side. Upon opening the door, the customer threw the pop into the worker’s face.
I find that the fight resulted solely over work. The worker had advised the customer of the employer’s policy regarding use of the pop machine when the customer threatened the worker verbally. There is no indication of any non-work-related factor contributing to the fight. Further, the worker was not the
aggressor and did not provoke the fight. The worker did not retaliate or attack the customer in response to the customer threatening to throw the pop in the worker’s face; instead, the worker left the area to notify security. Upon the worker’s return to the area, the customer threw a cup full of pop at the worker’s face without any warning. The customer’s action escalated the encounter by transforming it from a verbal to a physical attack. While it is unclear if the worker intentionally struck the customer as is stated in the text dated February 27, or if the worker accidentally struck the customer as is stated later in the sworn affidavit dated January 26, 2022, the worker was consistent in saying that they were defending themselves against the attack.
Given the chain of events, I find the customer provoked the fight by threatening the worker and then throwing a cup full of pop at them. Although the worker did strike the customer, this was after they had been verbally threatened, left the area in order to call security, and then was physically struck by a cup full of pop, as the customer had threatened to do. It was after this that the worker used self-defense.
Therefore, I find the worker did not remove themself from the course of employment by attempting to defend themself against physical violence.
I find the traumatic event of February 23, 2019, caused or significantly contributed to the worker’s appropriately diagnosed PTSD. I note that the worker indicated that the trauma of past experiences resurfaced as a result of the event of February 23, 2019, as documented in Memo #A, dated April 26, 2019, Memo #A, dated May 10, 2019, as well as the CMHP Assessment Form dated
August 16, 2019. Despite this, I have reviewed the family doctor’s chart notes, and there is no indication of any ongoing treatment for a diagnosed mental health condition prior to the workplace injury. The worker was prescribed a medication for mental health reasons on April 9, 2017; however, there are no medical records after April 9, 2017, until the worker was seen on February 24, 2019, after the workplace injury.
Further, the medical information supports that the worker’s PTSD is as a result of their workplace injury and not prior traumatic experiences. In the family doctor’s chart notes, dated March 10, 2019, they noted that the worker had anxiety secondary to the assault, and in their notes dated April 15, 2019, they stated the worker continued to have flashbacks about the incident at work. In the CMHP Assessment Form, dated August 16, 2019, the psychologist noted that the worker was experiencing active PTSD symptoms, including dreams about the assault, avoiding going outside, and fear about the customer attacking the worker again. The CAMH report, dated March 18, 2020, states in part that the worker
…presents with an approximately 2-year history of intrusive symptoms of workplace assault has [sic] experienced in 2019, experiences flashbacks, intrusive memories, and a sensation of “fires in [their] head”, as well as hypervigilance and avoidance of reminders of the traumatic injury.
Given the above, I find the traumatic event of February 23, 2019, significantly contributed to the worker’s appropriately diagnosed PTSD.
Summary
I find the worker’s claim is allowed for entitlement to benefits for PTSD under policy 15-03-02, Traumatic Mental Stress, as the diagnosis of PTSD was appropriately diagnosed; the events of February 23, 2019, are clearly and precisely identifiable and objectively traumatic; and, the standard of proof and causation is met.
- Entitlement to benefits under policy 15-03-14, Chronic Mental Stress
Given I have allowed the worker’s claim for entitlement to benefits for PTSD under policy 15-03-02, Traumatic Mental Stress, the issue of the worker’s entitlement under this policy is moot.
- Entitlement to benefits under policy 15-04-02, Psychotraumatic Disability
Given I have allowed the worker’s claim for entitlement to benefits for PTSD under policy 15-03-02, Traumatic Mental Stress, the issue of the worker’s entitlement under this policy is moot.
CONCLUSION
The worker’s objection is allowed.
The worker’s claim is allowed for entitlement to benefits for PTSD under policy 15-03-02, Traumatic Mental Stress. I leave the nature and extent of benefits flowing from this decision to the operating area to consider.
I make no findings on the issue of the worker’s entitlement to benefits under policy 15-03-14, Chronic Mental Stress.
I make no findings on the issue of the worker’s entitlement to benefits under policy 15-04-02, Psychotraumatic Disability.
DATED November 28, 2022
J.L. Hughson
Appeals Resolution Officer Appeals Services Division