APPEALS RESOLUTION OFFICER DECISION
decision NUMBER:
20230113
OBJECTING PARTY:
worker
REPRESENTED by:
self represented
RESPONDENT:
employer
REPRESENTED by:
self represented
HEARING:
HEARING IN WRITING
HEARD by:
brian smith, appeals resolution officer
aUGUST 11, 2023
ISSUES
The worker objects to the Case Manager’s decision dated May 11, 2022 that denied entitlement to benefits for a mental stress injury.
BACKGROUND
On April 1, 2022, a Health Professional’s Report (Form 8) was received by the WSIB. The report indicated that the worker had been diagnosed with post-traumatic stress disorder (PTSD), anxiety and depression. The Form 8 also recommended that the worker not return to work.
The worker attributed their mental stress injury to cumulative traumatic events over their years working as a nurse. The worker stopped working in September 2021 and received long-term disability (LTD) and Employment Insurance.
On May 10, 2022, a Case Manager denied entitlement to benefits for a mental stress injury.
On June 21, 2022 and September 19, 2022, the May 10, 2022 decision was reconsidered and upheld.
The worker is appealing the Case Manager’s decision dated May 11, 2022 that denied entitlement to benefits for a mental stress injury. The worker has submitted an Appeals Readiness Form and the claim was forwarded to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers 15-03-03 Traumatic Mental Stress
September 7, 2018 January 2, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the worker is entitled to benefits for traumatic mental stress (TMS). My reason and analysis follow.
The worker contends that they ought to be entitled to benefits for a mental stress injury. The worker has noted three specific incidents they felt contributed to their mental stress injury.
The employer while participating in the appeal has made no additional submission for my review. I do note that the employer submitted correspondence dated May 16, 2022 in which they indicate that they do not feel the claim meets the WSIB's criteria for an allowable claim under policies 15-03-02 Traumatic Mental Stress, 15-03-14 Chronic Mental Stress, and 15-03-13 Post Traumatic Stress Disorder: in First Responders, and Other Designated Workers.
In considering entitlement, I note that policy 15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers says 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.
The policy lists the workers who are classified as “first responders and other designated workers” for the purposes of applying the presumption. Nurse is on that 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, 2014.
The first responder must have been diagnosed with PTSD by a psychologist or a psychiatrist:
o On or after April 6, 2014, and
o 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 was employed as a nurse until they stopped working in September 2021 and submitted a claim on April 1, 2022. Therefore, two of the criteria are met.
I note that the worker’s family doctor diagnosed them with PTSD. However, the policy requires that the worker be diagnosed by a psychologist or psychiatrist.
The case record also confirms that the worker was assessed on October 19, 2021 by Dr. Seevaratnam, Psychiatrist, who diagnosed the worker with Major Depressive Disorder, moderate to severe in intensity, without psychotic features and recurrent.
The worker also was treated by Dr. Jenkins, Psychologist via the Community Mental Health Program (CMHP). Dr. Jenkins first saw the worker on May 8, 2022 and diagnosed the worker with Unspecified Trauma- and Stressor-Related Disorder. Of significance, Dr. Jenkins also noted that the worker reported that their family doctor had diagnosed PTSD, but in Dr. Jenkin’s opinion, there were insufficient symptoms and impairment in functioning to meet the threshold for the PTSD diagnosis.
On July 25, 2022, the worker was assessed by Dr. Douglas, Psychologist who opined that the worker meets the criteria for PTSD, and requires ongoing psychological therapy to address this. Dr. Douglas also opined that the workplace constitutes the major contributor to the worker’s condition.
I recognize that because of the three diagnoses from the three physicians, the worker was referred for and completed a comprehensive assessment at the Mental Health Specialty program on September 1, 2022.
The worker was assessed by Dr. Aleem, Psychiatrist and Dr. Ng, Psychologist. The doctors diagnosed the worker with Other Specified Trauma and Stressor Related Disorder with features of PTSD. They opined that the worker’s symptoms are directly attributable in onset to cumulative work-related trauma exposure.
I have considered that the worker has been assessed by three psychologists and two psychiatrists. All but one have determined that the worker does not have PTSD. I am therefore led to conclude that PTSD is the most accurate diagnosis for the worker's psychological symptoms. In the absence of a diagnosis of PTSD, entitlement to benefits under policy 15-03-13 is not in order.
Traumatic Mental Stress
I have considered entitlement to benefits under policy 15-03-02 Traumatic Mental Stress which says a worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s employment.
A worker is not entitled to benefits for traumatic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
The policy goes on to say 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. 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 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.
This means that the event(s)
- can be established by the WSIB through information or knowledge of the event(s) provided by co-workers, supervisory staff, or others, and
- is/are generally accepted as being 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.
In this case, the worker has attributed their mental stress injury to the cumulative effects of their job duties and identified three specific incidents. The first incident involved the worker caring for a patient that they were familiar with personally. The worker indicated that they knew both the patient who was a nurse and their husband who was a doctor. Their person came to the emergency room because of a drug overdose and eventually passed away in the ICU.
The worker also described an incident involving a young man who had come to the hospital as a result of a drug overdose. The worker was declared brain dead and kept in the ICU for the harvesting of his organs. The worker indicated that the incident was a trigger for them as they have a son of a similar age that also has substance abuse issues.
The third incident described by the worker, involved a patient who had been discharged and returned later the same day. The worker reported that they witnessed the patient stab themselves 17 times.
I would point out that the employer has not rebutted the incidents as they were reported by the worker in the case record. Consequently, I accept that the events occurred the way they have been described in the case record by the worker.
I note that the policy also says that due to the nature of their occupation, some workers, over a period of time, may be exposed to multiple traumatic events. If a worker experiences traumatic mental stress because of the most recent traumatic event, entitlement may be in order even if the worker may experience these traumatic events as part of the employment and was able to tolerate the past traumatic events. A final reaction to a series of traumatic events is considered to be the cumulative effect.
The WSIB recognizes that each traumatic event in a series of events may affect a worker psychologically. This is true even if the worker does not show the effects until the most recent event. As a result, entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic.
I find the reported incidents are clearly and precisely identifiable. In my view, witnessing a person stabbing himself or herself 17 times is objectively traumatic, as I consider it to be a horrific incident. I also find the two overdose incidents, reported by the worker, that ended in the patients dying would reasonably be considered to be objectively traumatic.
Noting these incidents occurred while the worker was working their regular shift, I am satisfied that the worker’s mental health injury arose out of and in the course of the worker’s employment and as has been opined in the Mental Health Specialty Program Report. I am also satisfied that the incidents significantly contributed to the worker’s diagnosis of Other Specified Trauma and Stressor-Related Disorder with features of PTSD.
I would also point out that the employer has not directed me to any persuasive evidence suggesting that the worker’s exposure to traumatic events while working as a nurse for them since May 2007 was not a significant contributing factor in the development of the diagnosis Other Specified Trauma and Stressor Related Disorder with features of posttraumatic stress disorder.
I have also not been referred to any evidence of exposure to traumatic events that significantly outweighed the workplace incidents or any evidence to support the mental stress injury was caused by non-work-related factors such as decisions or actions by the employer that are part of the employment function.
I have not ignored the temporal relationship between when the worker stopped working and the impending vaccine mandate put in place by the employer. However, in their May 16, 2022 submission, the employer noted that the worker completed an incident report discussing the three events that they have attributed to their mental stress injury. I also note that the worker’s family doctor recommended that the worker not return to work because of the psychological presentation. Consequently, I am not persuaded that the reason the worker stopped working was because of the vaccine mandate and not their medical condition.
Since I have found that the events reported by the worker are clearly and precisely identifiable, are objectively traumatic, arose out of and in the course of the worker’s employment, and significantly contributed to the diagnosed Other Specified Trauma and Stressor Related Disorder with features of posttraumatic stress disorder. I find that the worker is entitled to benefits for TMS.
Chronic Mental Stress.
Since I have determined that entitlement to benefits for a mental stress injury is in order under the TMS policy, I find that reviewing entitlement under the Chronic Mental Stress policy is not necessary.
CONCLUSION
The worker’s objection is allowed.
The worker is entitled to benefits for TMS for their diagnosed Other Specified Trauma and Stressor Related Disorder with features of posttraumatic stress disorder.
Benefits flowing are remitted to operations subject to the usual right and appeals.
DATED August 11, 2023
Brian Smith
Appeals Resolution Officer
Appeals Services Division