APPEALS RESOLUTION OFFICER DECISION
DEcision number:
20220037
OBJECTING PARTY:
worker
REPRESENTED by:
WOrker representative
RESPONDENT:
employer, not participating
HEARING:
VIDEOCONFERENCE – March 2, 2022
HEARD by:
Dorothy Zaffino, appeals resolution officer
April 1, 2022
ISSUE
The worker objects to the case manager (CM) decision dated November 23, 2021, which denied entitlement to Post Traumatic Stress Disorder (PTSD).
At the outset of the hearing, the worker representative confirmed they are only pursuing entitlement under policy 15-03-13 (PTSD in First Responders and Other Designated Workers) and are not pursuing entitlement under policy 15-03-02 (Traumatic Mental Stress) or policy 15-03-14 (Chronic Mental Stress).
BACKGROUND
The worker’s claim was established by the Employer’s Report of Injury (Form 7) dated May 5, 2021. The Form 7 states the worker, a 911 communicator, reported a work-related illness on May 3, 2021, related to their exposure to traumatic calls. The worker stated they sought medical attention on May 3, 2021 with a social worker and their family doctor. The employer advised the worker was on a leave at the time and was set to return to work on May 20, 2021.
The Worker’s Report of Injury (Form 6) dated May 7, 2021 states the worker was claiming a work-related injury as a result of being a 911 communicator since 2013 and their exposure to numerous traumatic calls. The worker indicated they sought health care with the Trauma Centre on March 11, 2021. The Form 6 included examples of several traumatic calls. The worker stated they have flashbacks, anxiety attacks, poor sleep and appetite, trouble concentrating and unexplained fear.
On June 2, 2021 the worker was assessed by Dr. Rockman, psychologist, and was diagnosed with PTSD, adjustment disorder, major depressive disorder, cannabis use disorder, and alcohol use disorder.
In the decision letter dated November 23, 2021 the CM denied entitlement to traumatic mental stress, chronic mental stress, and PTSD given they determined the worker’s diagnosis of PTSD was attributed to the worker’s spouse’s assault. The CM opined there were no previously reported specific employment exposures within the claim and found the spouses’ assault to be the precipitating event causing the worker’s PTSD.
The worker’s objection for entitlement to PTSD forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers
September 7, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find in favour of the worker. I find the evidence on file supports entitlement to the presumption under policy 15-03-13 (PTSD in First Responders and Other Designated Workers).
WORKER POSITION
On November 10, 2021 the worker representative provided written submissions and contends the worker is entitled to PTSD under policy 15-03-13 (PTSD in First Responders and Other Designated Workers) given they meet all the criteria under the policy.
The worker representative argues the CM erred when they concluded the PTSD was as a result of the worker’s spouse’s assault and not due to the worker’s experience as a 911 communicator. The worker representative also submits that the CM concluded their decision based on the worker’s marital status and contends the refusal to provide access to benefits on this basis has resulted in a discriminatory effect which violates the worker under Section 10 of the Ontario Human Rights Code.
In closing arguments, the worker representative argues the worker meets all the criteria set out in policy 15-03-13. The worker representative argues a nexus with the spouse’s assault given they are in fact the worker’s co-worker. Further, the worker representative opines Dr. Rockman’s medical report clearly supports the worker’s PTSD is related to both the worker’s job as a 911 communicator and the worker’s spouse’s assault.
EMPLOYER
The employer is not participating in this appeal.
RELEVANT POLICY
Policy 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers) states:
If a first responder or other designated worker is diagnosed with posttraumatic stress disorder (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 his or her employment, unless the contrary is shown.
Presumption
If a first responder is diagnosed with PTSD by a psychiatrist or psychologist, and if the three criteria set out below are met, the PTSD is presumed to have arisen out of and in the course of the first responder's employment, unless the contrary is shown.
1. Date of employment
The first responder must have been employed as a first responder for at least one day on or after April 6, 2014.
2. Date of diagnosis
The first responder must have been diagnosed with PTSD by a psychologist or psychiatrist
on or after April 6, 2014, and
no later than 24 months after the day he or she ceases to be employed as a first responder if he/she ceases to be employed as a first responder on or after April 6, 2016.
3. Type of diagnosis
The first responder must have been diagnosed by a psychologist or psychiatrist with PTSD as described in the DSM-5.
Rebutting the presumption
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.
WORKER TESTIMONY
The worker testified they commenced their employment with the employer in October 2014 as a 911 communicator and were in good mental health prior to their work-related psychological condition.
The worker testified that their spouse worked on the same platoon as them and they worked very closely with the officers in the same platoon. They continue to work in the same platoon since filing their claim.
The worker testified that their psychologist confirms their symptoms began in 2015. When they first began in their role as a 911 communicator they had a “pretty bad call”. They think often about this call even years later. The worker indicated a man had passed away during the call. They talked with the ambulance and stayed on the line with the individual up until the point they passed away. The worker testified this call affected them along with many others over the years.
The worker further testified to the type of calls taken as a 911 communicator. They took 911 calls for police, fire and ambulance. When they transferred the call they continued to hear and listen to the call. Some of the calls involved suicide, death, death of a child and domestic disturbances that got ‘heated’. For example, the worker testified that she was on a call where the person was scared of their husband coming home and attacking them. The other types of calls the worker handled were called unknown trouble calls. The worker indicated with the unknown trouble calls you were unable to identify what was going on but would hear a lot of noise and screaming in the background. The worker testified there were many calls like this. The worker testified to taking a call of a stabbing at Wonderland, which involved young people with weapons. Other calls would include gunshots being fired.
The worker testified to handling a call where a child was crushed by a dresser. The worker testified that their mental health difficulties began in 2015. The worker states that at this time they began to experience symptoms.
The worker was required to see a psychologist once a year by their employer. They never wanted to share their symptoms with the psychologist because of fear if the ‘word got out’ the worker would be labeled and they worried about what others would think. The worker also never wanted to take time off and just kept ‘trucking on’.
The worker testified that in the summer of 2016 they developed non-work related health issues. The worker testified to being airlifted to Markham Stouffville hospital and requiring a renal transplant. They were off work in the summer of 2016 and returned to work at the end of September 2016. They returned to modified duties and applied for a dispatch position. The dispatch position required taking calls as a dispatcher and as a 911 communicator. The worker indicated that the dispatch position was modified because there was more ability for accommodation and breaks.
The worker testified they went off work again in March 2018 for non-work related health issues. Upon returning to work in September 2018 they were very anxious and worried about if they did the right thing when handling calls.
The worker testified that while pregnant their anxiety increased. They requested only to be on the call-taking side only in order to have more control. Call-taking was only one call at a time whereas dispatching you were to handle multiple calls and you could not take a break. The worker testified this accommodation did not help and their symptoms continued.
The worker testified that when they would end the call they felt like they messed up and did not know the final outcome, which caused further anxiety. They felt as though they were left hanging and assuming the worst of the individual they tried to help.
The worker went on maternity leave for 18 months. During maternity leave they felt relieved because they did not have to deal with their work which they found difficult and yet happy because they were having a baby. The thought of returning to work would increase their anxiety.
While on maternity leave the worker felt very anxious. While the worker was excited being a new mom they also felt like they were drowning.
On March 27, 2020, their spouse, a police officer for a police force in the same platoon, was brutally attacked and assaulted. A co-worker called them to advise them of what had occurred. The worker was privy to additional information than what a regular layperson would have received.
They began to seek medical attention given they were experiencing panic attacks. The worker states they saw the employers’ psychologist for a few sessions and stopped attending given it increased their anxiety because their office was their same place of work. The worker stated they would experience increased blood pressure approaching the building. The worker testified that they started to be suicidal.
They then sought treatment via a social worker at the Trauma Center.
Their symptoms have not improved given they have not received consistent and appropriate treatment. The worker testified the treatment appears to be ‘choppy’ and they have changed social workers several times, not due to any reason of their own.
When asked about what kept the worker from return to work, the worker testified fear. They are fearful that they are unable to do their job. The worker states they cannot have panic attacks at their job given the type of job. The worker testified they are fearful and are concerned for everyone's safety.
When asked what they believe is the cause of their mental health condition, the worker testified they feel it is due to their job as a 911 communicator and dispatcher.
When asked if the worker shared their symptoms with anyone at work, the worker replied they did not as they did not want to have ‘that label’. The worker further testified that to cope with their symptoms they would try to exercise on lunch and meditate. The worker testified they did not want to go on medication or seek help until they could no longer cope.
RELEVANT CASE DETAILS
On May 10, 2021, during a telephone conversation with the CM and the worker, the worker advised they were claiming a mental stress injury as a result of their regular work duties as a 911 communicator. The worker reported they first noticed symptoms in early 2019. They indicated that they struggled, but continued to work and dealt with it. The worker reported that their symptoms got worse slowly over time.
The worker reported they commenced maternity leave in November 2019 and were scheduled to return to work on May 13, 2021. The worker reported they began seeing a social worker at the Trauma Centre in March 2021. The worker reported they saw the staff psychologist in approximately December 2020. The worker only saw this psychologist for a few visits and stopped since being at headquarters for the appointments caused an increase in their anxiety. The worker states the psychologist did not provide a diagnosis at this time and they discussed depression and anxiety.
While being off work, the worker reported gradually getting more and more flashbacks of critical calls and ruminating. As the worker’s return to work was approaching, they indicated their symptoms worsened and were motivated to seek treatment to ‘try to get fixed’ before returning to work.
Approximately two months prior to this telephone discussion, the worker states the social worker suggested medications given counselling alone was not helping.
The worker spoke about a flashback from a police officer assault in March 2020, which was in fact the worker’s spouse. The worker states they were already suffering from flashbacks from traumatic calls and when their spouses’ assault occurred it affected them more that they would ruminate about other calls.
Following the telephone conversation, the worker was referred for an initial psychological assessment.
On May 14, 2021, Dr. Byron submitted the Health Professional’s Report for Occupational Mental Stress (Form CMS8) and diagnosed the worker with PTSD. Dr. Byron indicates the worker was first seen for their psychological condition on November 20, 2020. Dr. Byron stated in 2019 the worker had a complicated pregnancy and was struggling with anxiety as a result of taking calls and was experiencing flashbacks (and requested a move from calls to dispatch). While on maternity leave the worker’s spouse, also a police officer was assaulted and suffered a traumatic brain injury, which compounded the workers anxiety.
Dr. Byron also indicated the worker experienced end stage renal failure in 2018 and a renal transplant in May 2018 and a high-risk pregnancy, which are both said to be psychologically stressful. Dr. Byron stated the worker was seen by a psychologist through their employer from November 20, 2020 to January 2021 and then commenced counselling in March 2021 with the Mental Health Trauma Centre. The worker was prescribed antidepressants.
Dr. Byron opined the worker was experiencing anxiety related to experiences as a dispatcher and their spouses’ injuries.
Dr. H, the employer’s psychologist, submitted a report dated May 17, 2021 and states the worker was seen on November 20, 2020, November 26, 2020, December 9, 2020 and December 17, 2020 to discuss their mental health concerns. Dr. H confirmed that prior to these visits, they had met the worker annually from 2016 to 2018 as part of the employer’s mandatory mental health check-ups for all active duty 911 communicators.
Dr. H states the worker identified significant anxiety symptoms associated with their spouses’ traumatic injury and states the worker reported their symptoms were triggered by exposure to memories and content related to their work as a 911 communicator, as well as accounts and media associated with their spouses’ injury.
The worker cancelled their January 5, 2021 session due to a possible Covid-19 exposure and did not reschedule. As such, given Dr. H did not fully complete the worker’s background information and no formal assessments were given, they deferred any formal diagnosis. Dr. H states the worker’s reported symptoms were consistent with both depression and anxiety, with the anxiety centering around triggers related to their job function, job location and their experience of their husband’s significant injury. Dr. H states those were their preliminary clinical observations in session, but in the absence of a more fulsome assessment they were unable to offer a diagnosis.
On June 2, 2021 the worker was assessed at the WSIB Community Mental Health Program with Dr. Rockman. In the report dated June 9, 2021, they indicate the worker’s onset of symptoms were cumulative since 2015. Prior to the worker’s maternity leave the worker states they were experiencing feelings of stress, depression and ‘overwhelming anxiety’ due to their responsibilities at work and continued to experience these symptoms during their leave. The worker’s spouse was assaulted in March 2020 and this event further exacerbated their symptoms and they have experienced increasing difficulty coping with their symptoms and worries about their ability to return to work as a dispatcher.
Dr. Rockman stated the worker’s presentation was consistent with PTSD with panic attacks (related to their spouses assault), adjustment disorder with anxiety (pre-existing), major depressive disorder, single episode, moderate (pre-existing, exacerbated by spouses attack), cannabis use disorder, moderate and alcohol use disorder.
On June 16, 2021 the CM sought to clarify Dr. Rockman’s DSM diagnosis. Dr. Rockman indicated the worker’s PTSD diagnosis was the result of both the worker’s job duties as a first responder as well as their spouses’ assault. Dr. Rockman further clarified the worker’s diagnosed adjustment disorder and major depressive disorder are both solely related to the worker’s duties as a first responder and were exacerbated by the spouses assault.
ASSESSMENT OF THE EVIDENCE
For the reasons that follow, I find the worker is entitled to benefits for PTSD under policy
15-03-13 (PTSD in First Responders and Other Designated Workers) given all criteria for entitlement have been satisfied.
In order for the presumption to apply to a first responder 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, 2014.
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.
There is no dispute the worker meets all three criteria. They worked in a designated occupation after April 6, 2014, they were diagnosed with PTSD after April 6, 2014, and they were diagnosed with PTSD (DSM-5) by a psychologist. What is in dispute is whether the evidence demonstrates the presumption has been rebutted.
Based on my review of the information on record, the worker and their treating physicians clearly attributed the onset of the worker’s symptoms to their job as a 911 communicator. While it is evident there were other factors contributing to the PTSD diagnosis, the medical information on file clearly states the worker’s diagnosis of PTSD is as a result of both the worker’s job duties and the assault on the worker’s spouse.
On May 14, 2021 Dr. Byron opined the worker was experiencing anxiety related to experiences as a dispatcher and their spouses’ injuries. Dr. Byron further states the assault on the worker’s spouse compounded the workers anxiety.
In Dr. H’s May 17, 2021 medical report, they state the worker’s reported symptoms were consistent with both depression and anxiety, with the anxiety centering around triggers related to their job function, job location and their experience of their husband’s significant injury.
In the medical report dated June 2, 2021 Dr. Rockman indicates the worker’s onset of symptoms were cumulative since 2015. Prior to the worker’s maternity leave the worker states they were experiencing feelings of stress, depression and ‘overwhelming anxiety’ due to their responsibilities at work and continued to experience these symptoms during their leave. The worker’s spouse was assaulted in March 2020 and this event further exacerbated their symptoms and they have experienced increasing difficulty coping with their symptoms and worries about their ability to return to work as a dispatcher.
In order to rebut the presumption, the evidence must show the work was not a significant contributing factor to the development of PTSD. That means the contribution must be noticeable and not trifling or trivial. The work need not be the sole cause, or even the predominant cause of the PTSD.
In my view, it is evident the worker’s treating physicians opine the assault on the worker’s spouse compounded and further exacerbated the worker’s PTSD symptoms and were not the only cause for the worker’s PTSD diagnosis.
I find the presumption has not been rebutted. While the assault on the worker’s spouse certainly contributed to the PTSD diagnosis, I find that the worker’s job duties significantly contributed to the diagnosis of PTSD. This is supported by the testimony along with the commentary from the clinicians that assessed the worker.
I find entitlement for PTSD under policy 15-03-13 (PTSD in First Responders and Other Designated Workers) is in order given all three criteria have been met and do not find the presumption was rebutted. The operating area shall determine the extent and duration of benefits flowing from this decision.
CONCLUSION
The worker’s objection is allowed.
DATED April 1, 2022
Dorothy Zaffino
Appeals Resolution Officer
Appeals Services Division