Worker v. Employer, 2022 CanLII 54933

20220058

REPRESENTED by:

VIDEOCONFERENCE – APRIL 25, 2022

HEARD by:

Dated: MAY 4, 2022

ISSUE

The worker, through their representative, is objecting to the Case Manager’s decision of January 8, 2021 denying initial entitlement to both Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS).

BACKGROUND

The worker began as a Case Manager in May 2016 and first noticed experiencing symptoms of burnout in 2018. The worker was on medical leave for several weeks during the summer of 2018. On March 16, 2020, the worker started working from home full-time due to the global pandemic. The worker reported having mental health issues to the team manager on May 14, 2020. Lost time began on October 6, 2020. Post-traumatic stress disorder was diagnosed on November 10, 2020. A psychological assessment took place on November 25, 2020 and December 2, 2020.

The Case Manager’s decision letter of January 8, 2021 denied entitlement to TMS as there was no specific traumatic event. Entitlement to CMS was denied due to the lack of a substantial work-related stressor other than regular work duties and dealing with management. The Appeal Readiness Form signed January 13, 2022 requested that the worker’s objection to the denial of entitlement to mental stress be resolved as an oral hearing. The Appeals Coordinator’s letter dated March 29, 2022 confirmed that the hearing would take place by videoconference. The issue is now before me.

AUTHORITY

Operational Policy Manual Published

15-03-02 Traumatic Mental Stress January 2, 2018

15-03-14 Chronic Mental Stress January 2, 2018

ANALYSIS

I find that entitlement to TMS and/or CMS is not in order. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

The written submission dated August 17, 2021 argues that the worker was able to manage the stress up to the time when they received calls from two clients threatening suicide. In the worker representative’s view, these traumatic incidents are the substantial contribution to the worker’s mental stress.

Arguments provided at the hearing maintain that the necessary policy criteria are met for both TMS and CMS entitlement. The worker representative submits that the worker started the Case Manager position as a young man with every intention of doing a good job. According to the worker representative, the worker talked about occupational burnout when they first spoke with the Workplace Safety and Insurance Board (WSIB) as they did not understand what was happening to them. The worker representative indicates that the worker’s testimony at the hearing identifies very significant issues. It is the worker representative’s position that mental health is not a straight line and that policy is intended to be looked at in a broad sense.

Traumatic Mental Stress

I am not persuaded that the policy requirements for traumatic mental stress are met.

Policy 15-03-02, Traumatic Mental Stress, outlines that entitlement to benefits for TMS may be in order if there is an appropriately diagnosed mental stress injury caused by one or more traumatic events arising out of and in the course of employment. Policy 15-03-02 requires the events to be clearly and precisely identifiable. Policy 15-03-02 requires the worker to have had direct contact with the traumatized individuals such as speaking with the victim on the telephone as the traumatic event is occurring.

The worker representative suggests that the entitlement criteria to focus on relates to the requirement for there to be some threat of death or serious harm to the person. The worker representative highlights the worker’s testimony that both they and their family were the object of threats.

How did the job affect the worker?

I acknowledge the worker’s testimony that their job as a Case Manager included a large geographic area. The worker describes meetings in person either in the office or at their homes. The job requires performing assessments so that goals and needs can be determined in order to provide resources and services. According to the worker, one of the most difficult aspects of the job is developing rapport and building trust. Services may also extend to include spouses, children and dependents who in turn may reach to the Case Manager for support.

The worker describes most of the clients as being very unwell. According to the worker’s testimony, the cases may be complex and include clients experiencing depression, addiction, abusive situations, cognitive impairments, difficulties regulating emotions, being suicidal or experiencing housing issues. At times, the worker may deal directly with the family if the client is too unwell. The worker describes difficulties that clients may experience as including struggling to bathe and/or eat, being afraid to go outside, or being hypervigilant.

The worker explains that the job was very exhilarating at the beginning as it felt purposeful. However, the job of Case Manager soon became overwhelming as it is fast-paced and involved too many unwell people for the worker to assist properly. The worker indicates becoming hypervigilant themselves, as well as anxious, irritable, and having nightmares of clients acting out threats of suicide. It is the worker’s position that it was not until after working with medical professionals that they became aware of normalizing things that were anxiety and depression.

While I appreciate the worker’s testimony, policy states that the events must be generally accepted as being traumatic. Policy 15-03-02 lists examples of possible traumatic events as including witnessing a fatality, horrific accident, an armed robbery, or hostage-taking. Traumatic events may also include being the object of death threats or threats of physical violence where the worker believes the threats are serious and harmful to self or others such as bomb threats or being confronted with a weapon.

In this case, the worker describes having suicidal clients, specifically two individuals who attempted suicide within months resulting in their families calling in panic. The worker does not view themselves as taking the job too seriously as the issues involved human lives. The worker describes being very vigilant and passionately trying to ensure appropriate resources and supports for clients and their families. The worker points out that there is no way of knowing when leaving work for the day if they were successful or what might be awaiting at work in the morning. It is the worker’s testimony that there was never any debrief after these suicidal discussions as everyone is at or beyond capacity.

In particular, the worker describes a specific event in 2018 involving two suicidal clients. The worker explains that this was all that they were thinking about causing them to become distant from their spouse and children. Additionally, the worker would experience nightmares, the inability to eat, and the feeling of tension and headaches. In May/June 2018, the worker took several weeks off as accrued sick leave and learned cognitive behavioural strategies prior to returning to work with new coping skills. Unfortunately, the worker indicates that these helpful new skills helped were not enough.

The worker describes an incident as being on a Thursday in the winter of 2018 and involving a suicidal client. The worker suggests that this situation was unique as it was in-person. The worker indicates that they could see themselves as the client given their same age. The worker made a safety plan for the suicidal client yet still did not sleep well that night. The worker returned to the office the next day, but was not able to look up to see what happened as the individual was not the worker’s client. After spending the weekend being very distracted, the worker returned to the office on Monday.

The following day, the worker was called into a meeting as two managers were upset about the worker writing in another client’s file. The worker explains that they are at a loss as to what they should have done. It is the worker’s testimony of being later informed that they saved the client’s life. The worker cites the submitted national news articles regarding an inquiry involving a client who committed murder/suicide. The worker expresses concern that they themselves could be called upon if anything happened to a client as peoples’ lives are at stake.

Is there evidence of an objectively traumatic event?

In my opinion, there is insufficient evidence of an objectively traumatic event.

The worker explains that their workload and the intensity of the client’s illness made them perform the job vigilantly since any death could become news and viewed to be the worker’s fault. I additionally acknowledge the worker’s testimony that they would receive calls containing threats of violence directed at them and their family. I also realize that the worker’s home visits did not provide the security of the office’s bulletproof glass, cameras, or panic button. I acknowledge that the global pandemic resulted in the worker having to work from home in March 2020, not being able to meet client’s service expectations, and creating the overwhelming task of trying to coordinate treatment.

Policy 15-03-02 outlines that over time some workers may be exposed to multiple traumatic events due to the nature of certain occupations. Policy states that there is recognition that each traumatic event may affect a worker psychologically even if the worker does not show the effects until the most recent event. When considering entitlement for the cumulative effect, decision-makers are to rely on clinical and other information supporting that multiple traumatic events led to the worker’s current psychological state. Policy 15-03-02 confirms that a final reaction to a series of traumatic events is considered to be the cumulative effect.

Policy 15-03-02 confirms that the last incident does not have to be the most traumatic. On the other hand, I must consider that Policy 15-03-02 states that in all cases, the events must be objectively traumatic. In this case, I must consider the worker’s confirmation within testimony that they were only verbally abused and never hit or assaulted. Therefore, I find that the policy definition of a traumatic event is not met as the threats of physical violence in this case do not involve situations such as bomb threats or being confronted with a weapon as outlined within Policy 15-03-02.

I recognize the worker’s testimony regarding receiving death threats. That being said, I observe that neither the family doctor’s report of November 10, 2020 nor the psychologist’s assessment report of December 6, 2020 reference the worker receiving any death threats. Although the corresponding report is not contained within the case record, it is the worker’s testimony that they were assessed by a psychiatrist on November 5, 2020 during a 45-minute virtual call. The worker explains that this was an incredibly upsetting experience as the psychiatrist asked very leading questions and made accusations of the worker trying to manipulate things. The worker indicates that the psychiatrist thought that they may have been in a manic phase.

The family doctor’s report dated November 10, 2020 indicates possible bipolar disorder as a pre-existing condition. I observe that the report also documents the prescribing of Seroquel. The worker representative’s written submission of August 17, 2021 requests consideration of the thin skull rule. However, it is the worker’s testimony that bipolar disorder is no longer a working diagnosis. The worker also indicates that the medication Seroquel was prescribed in October 2020 as a sleep aide and that they did not take it very long. In any event, I find that the policy requirements for initial entitlement to TMS must still be established whether there is a possible pre-existing condition or not.

I am aware of worker’s concerns with the psychological assessment of November/December 2020, including being provided to the WSIB without the worker’s consent or knowledge. Regardless, I must consider the documentation of the worker’s description of the injury as involving emotional dysregulation and exhaustion aggravated by workload, boundary breaches, and moral injury secondary to the inability to fully address the needs of the individuals for whom the worker felt responsible.

Overall, I am not persuaded that the policy definition of a traumatic event is established. Policy 15-03-02 confirms that entitlement to TMS is not in order for mental stress caused by changes to the working conditions or the employer’s decision to discipline the worker. As a result, I find that the employer’s concerns with the worker writing in another client’s file in 2018 or the impact of the global pandemic from March 2020 on the worker’s job do not meet the required policy criteria for TMS entitlement. I afford significant weight to the lack of documenting any death threats or threat of violence in reports from either the family doctor or psychologist. Therefore, I do not accept that there is sufficient evidence to establish an objectively traumatic event as defined within Policy 15-03-02. On this basis, I find that entitlement to TMS is not appropriate, including on a cumulative basis.

Chronic Mental Stress

In my opinion, entitlement to chronic mental stress under Policy 15-03-14, Chronic Mental Stress, is not in order as a substantial work-related stressor is not evident.

I am aware that Policy 15-03-14 states that a claim for chronic mental stress is distinct from a claim for traumatic mental stress. Entitlement to chronic mental stress requires there to be an appropriately diagnosed mental stress injury that is caused by a substantial work-related stressor arising out of and in the course of employment. It must be shown on a balance of probabilities that the substantial work-related stressor was the predominant cause of an appropriately diagnosed mental stress injury. The term predominant cause means that the substantial work-related stressor is the primary or main cause of the mental stress injury.

Policy 15-03-14 defines the term substantial work-related stressor in part as a work-related stressor that is excessive in intensity and/or duration in comparison with the normal pressures and tensions experienced by workers in similar circumstance. I observe that Policy 15-03-14 discusses jobs with a high degree of routine stress. Policy states that such jobs would typically have responsibility over matters involving life and death, or routine work in extremely dangerous circumstances. Policy states that entitlement should not be denied simply because all workers employed in that occupation, or category of jobs within that occupation, are normally exposed to a high level of stress. In some cases, consistent exposure to a high level of routine stress over time may qualify as a substantive work-related stressor.

In weighing the evidence, I am not persuaded that the policy requirement of a substantial work-related stressor is met. For example, the psychologist’s report of December 6, 2020 indicates that the worker provided “an overview of a convoluted history”. The report indicates that the worker’s condition was aggravated by boundary breaches due to the inability to fully address the client’s needs. I accept that the job of Case Manager involves the authorizing and facilitating of treatment. However, I am not persuaded that the position involves responsibility over matters involving life and death. In other words, while I appreciate that the worker’s testimony indicates that they felt personally responsible for their clients’ actions, it is my view that there is insufficient evidence that the job actually required the worker to assume responsibility for the potential actions of suicidal clients. That is to say, I find that the worker’s own personal perception of responsibility in and of itself is not sufficient to establish the required policy criterion.

Again, I am aware of the worker’s testimony regarding the submitted national media article and the concern that a Case Manager’s actions could possibly be called into question if there was a subsequent inquiry. Even so, I do not find that such a scenario establishes that the job involves the responsibility of matters involving life and death such as with other occupations like a police officer or emergency room nurse. For this reason, it is my view that the position of Case Manager does not represent a job with a high degree of routine stress as defined under Policy 15-03-14. Therefore, I find that the applicable policy definition of a substantial work-related stressor requires excessive intensity and/or duration compared with the normal pressures and tensions experienced by workers in similar circumstances.

In summary, Policy 15-03-14 requires the substantial work-related stressor to be the predominant cause of an appropriately diagnosed mental stress injury. I recognize that the psychologist’s report dated December 6, 2020 provides the diagnosis of adjustment disorder with mixed anxiety and depressed mood. All the same, I find that the job of Case Manager in general routinely involves dealing with suicidal clients and their families. Further, I find that the increased stressors related to the global pandemic would be similar for other Case Managers who would also be required to work from home and would reasonably encounter difficulty in referring clients to psychologists. Consequently, I find that entitlement to CMS under Policy 15-03-14 is not in order as it is my opinion that there is insufficient evidence of a substantial work-related stressor arising out of and in the course of the worker’s employment.

CONCLUSION

I conclude that initial entitlement to either Traumatic Mental Stress (TMS) or Chronic Mental Stress (CMS) is not in order.

The worker’s objection is denied.

DATED May 4, 2022

K. MacMillan

Appeals Resolution Officer

Appeals Services Division