APPEALS RESOLUTION OFFICER DECISION
decision number:
20220046
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer
REPRESENTED by:
employer representative
HEARING:
HEARING IN WRITING
HEARD by:
amy woodworth, appeals resolution officer
april 20, 2022
ISSUES
The worker is objecting to the Case Manager’s decision dated February 13, 2019 where they denied entitlement to a mental stress injury for Traumatic Mental Stress (TMS).
The issue was reconsidered and upheld in letters dated August 30, 2019 and March 8, 2021.
BACKGROUND
On October 2018, this employee of an elementary school was summoned to attend court in relation to criminal charges filed by a parent of a student at the school. This stems from an incident on June 5, 2018, when a grade eight student, known to have behavioural issues, became argumentative and hostile. The teacher attempted to de-escalate the situation but required the assistance of the worker. The student’s mother was contacted to come down to the school to pick them up. The student became angry when their mother arrived, hurling a chair on their walk back to the classroom. The worker went to open the door and the student pushed them and yelled at them.
The police intervened and the school pursued a charge of mischief and the student was given an eleven- day suspension. The student’s mother was upset with the worker’s handling of the incident and pursued criminal charges against the worker through a justice of the peace.
The worker had a physical and emotional breakdown upon receiving notice of the summons to attend court in relation to the criminal charges. The worker sought medical attention on October 22, 2018 and went off work on October 23, 2018, returning the next day. The worker stopped working on October 30, 2018.
On November 2018, the worker was charged with assault and forcible confinement and was required to make monthly court appearances from November 28, 2018 until the trial date of November 25, 2019. The worker was informed of the crown withdrawing the charges on November 20, 2019.
In a decision dated February 13, 2019, the CM cited both the TMS and CMS policies and denied entitlement to a mental stress injury. It was noted that being summoned to appear in court was not considered to be a substantial work related stressor as defined by the policy.
The worker representative (WR) submitted an intent to object form dated August 23, 2019, objecting to the CM’s decision. In a letter dated August 30, 2019, the CM confirmed the denial of entitlement for TMS because being summoned to appear in court does not meet the threshold of an objectively traumatic incident.
Additional medical information was submitted by the WR on July 6, 2020. The CM reviewed the information and in a letter dated March 8, 2021, upheld the prior decision that denied entitlement to TMS.
The WR submitted an Appeal Readiness Form dated October 8, 2021, objecting to the denial of entitlement to TMS in the claim.
AUTHORITY
Operational Policy Manual
Published
15-03-02 Traumatic Mental Stress
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 find in favour of the worker.
Position of the Parties
The WR provided a submission with the ARF dated October 8, 2021. In the submission they argue that the criminal charges arose out of and in the course of the worker’s employment as they were the result of the June 5, 2018 incident with a student at the school. They contend the criminal charges were sudden and unexpected and they provided a prior Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision where it was determined that to be criminally charged with assault was considered objectively traumatic, sudden and unexpected in the daily course of a worker’s employment. (WSIAT Decision Number 818/12 2013) The WR indicates the reaction from the criminal charges was clearly and precisely identifiable, as the worker was diagnosed with a mental stress injury following the charges and the medical documentation supports their reaction to the event. They reference the WSIAT decision to support their argument that the criminal charges were objectively traumatic. In that decision, it acknowledges that the charge of assault carries with it the threat of criminal conviction and incarceration. They contend that the worker’s mental stress injury is directly related to the criminal charges against them, the potential consequences of those charges and the course of the criminal proceedings.
The employer representative (ER) submitted a respondent form dated February 27, 2022. In their submission, they note they agree with the CM’s decision to deny TMS in the claim. They argue that following the June 5, 2018 incident the worker did not report a mental stress injury and only sought medical attention four months later. They note that in all of the reports on file, the mental stress injury relates to the legal proceedings and not to the June 5, 2018 incident. The employer representative submits that the legal proceedings brought on by the parent of a student does not meet the definition of a traumatic event as per the policy. They note the policy provides a list of events that are “considered” traumatic, and while not exhaustive, all events include a component of a physical threat, violence or life-threatening situation. They submit that the CM’s decision to deny entitlement to TMS should be upheld.
Assessment
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.
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.
Before a TMS claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM).
In this case, medically, there is a report from Dr. Scott dated January 30, 2019, confirming the worker was diagnosed with Post Traumatic Stress Disorder (PTSD) in relation to receiving the summons regarding the criminal charges. Noting the diagnosis provided, I find the diagnostic criteria has been met.
In considering the impetus for the onset, I note the WR argues that the criminal charges arose out of and in the course of employment. The WR indicates the worker has a calm demeanour and handles conflict confidently. It was following one such incident with a student on June 5, 2018 at the school, which triggered the criminal charges that were laid and the worker received a summons on October 2018.
It is well documented that the incident that took place on June 5, 2018, with the student at the school, is what led to the student’s mother laying charges. Thus, I find the criminal charges are a result of that event, which arose out of and in the course of employment.
On October 2018, the worker received the summons to appear in court in relation to the criminal charges laid against them. This is the event that caused the worker’s emotional breakdown and the worker sought medical attention on that date. I find this event is clearly and precisely identifiable.
I acknowledge the ER argues that the legal proceedings brought on by the parent of a student does not meet the definition of a traumatic event as per the policy. However, I am not of the same view.
Policy 15-03-02, indicates that 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 this case, the worker had been working in their position for twelve years and had experience in dealing with students with behavioural issues. The worker had never been criminally charged before and these charges were unexpected. The student involved in the incident was given an eleven day suspension, and as a result the mother was upset and proceeded with filing criminal charges against the worker.
The worker’s receipt of the summons and the laying of criminal charges is an event that in my view, the average worker would find to be objectively traumatic. The worker had an acute reaction to this event in that they had to seek medical attention. Further, these criminal charges come with a threat of criminal conviction and incarceration, the potential of six months for each charge. Consequently, I find this also constitutes a threat to the worker’s personal security.
Therefore, I accept all the conditions to allow entitlement under Policy 15-03-02 have been met, and I find the worker has entitlement to TMS in this claim.
CONCLUSION
I find the worker has entitlement to TMS.
The operating area is to determine any benefits that may flow from this decision.
The worker’s objection is allowed.
DATED April 20, 2022
Amy Woodworth
A. Woodworth
Appeals Resolution Officer
Appeals Services Division