Employer v. Worker, 2023 CanLII 100127

20230112

employer

REPRESENTED by:

worker

REPRESENTED by:

not represented

HEARD by:

DATED:

m. haughton, appeals resolution officer

AUGUST 30, 2023

ISSUE

The employer is objecting to the Case Manager’s (CM) decision dated May 6, 2022, which accepted entitlement to a mental stress injury, specifically post-traumatic stress disorder (PTSD), under Policy 15-03-13, Posttraumatic Stress Disorder in First Responders and Other Designated Workers. The CM reconsidered and upheld this decision on June 8, 2023.

BACKGROUND

On January 28, 2022, this police officer advised the employer of a mental stress injury, which they attributed to traumatic exposures while performing their work duties. The worker began to lose time from work on January 29, 2022. On February 16, 2022, the worker sought medical attention and was diagnosed with PTSD.

The CM accepted entitlement to PTSD under Policy 15-03-13, Posttraumatic Stress Disorder in First Responders and Other Designated Workers on May 6, 2022. The CM noted the worker had met the employment and diagnostic criteria for entitlement. The CM acknowledged the worker had been disciplined for a work-related issue on January 28, 2022; however, the medical information did not indicate the disciplinary action was a contributing factor to the worker’s mental stress injury. The CM indicated the medical information supported the worker’s employment was a significant contributing factor to the diagnosed PTSD.

On June 8, 2023, the CM reconsidered and upheld the May 6, 2022 decision. The CM also determined the worker had met the claim and consent requirements.

The employer’s objection to the CM’s decision dated May 6, 2022 and the subsequent reconsideration of that decision on June 8, 2023, form the basis for this appeal.

AUTHORITY

Workplace Safety and Insurance Act, 1997 (The Act), Section 22(1)

Operational Policy Manual

Published

Policy 15-01-03 Workers' Requirement to Claim and Consent

April 9, 2021

Policy 15-03-13 Posttraumatic Stress Disorder in First Responders and Other

September 7, 2018

Designated Workers

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker has met the legislative requirements to claim and consent. I find the worker has entitlement to PTSD under Policy 15-03-13, PTSD in First Responders and Other Designated Workers. My findings and analysis are provided below.

Employer’s Position

The employer representative provided a submission with the Appeal Readiness Form dated May 23, 2023. The representative raised a preliminary issue with respect to the worker having met the legislative requirements to claim and consent as a Worker’s Report of Injury (Form 6) had not been provided to the claim file.

The representative submitted the worker had not satisfied the entitlement threshold under Policy 15-03-13, PTSD in First Responders and Other Designated Workers, and entitlement should not have been accepted. The representative noted the worker’s claim for benefits for PTSD coincided with disciplinary action. The representative indicated that none of medical records had any timely information regarding the nature or date of the cumulative stressful events and/or a specific work-related precipitating event. The representative stated the presumption appeared to be solely based on the worker’s occupation rather than demonstrable events and the Workplace Safety and Insurance Board (WSIB) had not made any attempt to review, confirm or verify any cumulative exposure. The representative indicated the worker’s reference to “only so many dead bodies you can look at” was not specific and had no probative value. The representative submitted entitlement should be overturned and the employer’s cost statement should be adjusted accordingly.

Worker’s Position

The worker is not participating in this appeal and did not provide a submission for consideration.

Review of Relevant Information

The Employer’s Report of Injury (Form 7) dated February 21, 2022, indicated the worker was a police officer and had claimed entitlement to cumulative mental stress. The employer indicated the worker had been disciplined as a result of a work-related incident and sent back to their primary unit. The worker was agitated and anxious about the decision and had booked off work for work-related PTSD. The employer stated the worker began to lose time from work on January 29, 2022 and they sought medical attention on February 16, 2022. I note the employer also indicated the worker did not enjoy working shift work or the midnight shift, which were required in their primary unit.

The employer subsequently provided an offer of modified work on March 14, 2022. The employer offered the worker modified work completing computer based training, completing re-certifications, providing administrative support, performing modified patrol duties, completing investigative duties, participating in crime prevention, public information and safety programs and answering non-emergency calls for service.

A Worker’s Report of Injury (Form 6) dated May 13, 2022 was completed with the assistance of the CM. The worker indicated their mental stress injury resulted from cumulative stress over their career. The worker stated they had dealt with a lot of things during their career and there were “only so many dead bodies you can look at”. The worker reported they felt overwhelmed and the stress had gotten to them. The worker indicated they felt anxious and depressed going into work and it was not a healthy environment for them. The worker stated their condition had taken a toll on their personal life, marriage and family life. The worker endorsed difficulty sleeping and eating.

As noted in memo A, the worker indicated they were using alcohol to manage their symptoms; however, they felt they had their alcohol use under control. The worker indicated their job had taken a toll on them and they worked in an environment that required them to “be a tough guy” and keep their feelings in even when they felt really down and not sociable. The worker reported that others had commented that the worker was not the same person they used to be.

A report from a psychiatrist dated February 16, 2022, noted the worker had been experiencing anxiety and depressive symptoms, which had been worse over the prior few months. The worker advised they had stopped working as they were unable to manage. The worker reported depressive ruminations and flashbacks about incidents they had experienced at work. The worker endorsed difficulty with sleep, panic attacks and palpitations. The worker was noted to be having some post-traumatic stress symptoms with a mild degree of anxiety. The worker endorsed drinking for self-medication; however, they indicated they were trying to cut down. The worker was prescribed Ativan and Mirtazepine to assist with sleep and their PTSD symptoms. The worker was diagnosed with post-traumatic stress disorder with depression and anxiety and they were noted to have a decreased stress tolerance. The worker’s major stressor was noted to be work-related and having been exposed to traumatic experiences. The worker was noted to be unfit to return to work for an indefinite period.

A Health Professional’s Report for Occupational Mental Stress (Form CMS8) dated March 2, 2022, noted the worker had been exposed to recurrent traumatic exposures, including deceased individuals, over the last 16 years. The worker was diagnosed with PTSD and depression. The worker endorsed anxiety, recurrent intrusive thoughts, depression and anxiety. An antidepressant and individual counselling was recommended. The worker was noted to be unable to return to work due to a cognitive impairment and decrease stress tolerance caused by their mental stress injury. I note this form was signed by the worker confirming they authorized the health professional to release their functional abilities to the employer and to the WSIB.

A WSIB Community Mental Health Program Assessment Form was completed by a psychologist on October 7, 2022. The worker reported that throughout their career as a police officer they had been exposed to numerous traumas, which included death, suicide, serious injury, serious accidents and decaying human remains. The worker also reported being physically assaulted on multiple occasions during the course of their employment, including being punched, kicked and spit on by members of the public.

The worker reported intrusive experiences, nightmares, avoidance behaviour and upsetting emotional and physical symptoms when reminded of the traumatic exposures. The worker endorsed irritability, restlessness, negative cognitions, sleep disturbance, low mood, an exaggerated startle response and hypervigilance. The worker also reported a history of alcohol abuse which was used as a maladaptive coping strategy to manage their psychological distress. The worker was diagnosed with PTSD, panic disorder and alcohol use disorder. Major depression was also queried. The worker reported a supportive relationship with their spouse and they enjoyed walking and training their family dog. The worker reported their work environment was toxic and staff members were not treated equally. They also perceived a lack of support at work. The worker was noted to be in psychological distress and unable to return to work.

Section 22(1) of The Act states that a worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease.

Policy 15-01-03, Workers' Requirement to Claim and Consent, states that as soon as possible after an injury, workers must file a claim for benefits. They must also consent to disclose their functional abilities information, which is provided by the treating health professional. A claim must be filed within six months of an injury or, in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six-month deadline, or waive the dual requirement altogether if in the WSIB's opinion it is just to do so. Workers meet their requirement to claim for benefits by signing Worker's report of injury/disease (Form 6) or a Worker's Continuity Report (Form REO6).

In this case, the worker filed a claim for benefits on January 28, 2022, when they felt unable to continue managing their symptoms. The worker began to lose time from work on January 29, 2022 and they sought medical attention on February 16, 2022. The worker signed the Form CMS8 on March 2, 2022 and completed a Form 6 with the assistance of the CM on May 13, 2022.

I find the worker has met the requirements to claim and consent.

Entitlement to PTSD under Policy 15-03-13

Policy 15-03-13, PTSD in First Responders and Other Designated Workers, states that if a first responder other designated worker is diagnosed with 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 their employment, unless the contrary is shown.

The policy contains a list of workers who are classified as “first responders and other designated workers” for the purposes of applying the presumption. Police officers are included in the 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 meets all three of the requisites in Policy 15-03-13, PTSD in First Responders and Other Designated Workers, for the presumption to apply. The worker was employed in a designated occupation as a police officer after April 6, 2014. The worker was diagnosed with PTSD after April 6, 2014 and a psychiatrist rendered the diagnosis of PTSD in accordance with the DSM-5.

The issue to be addressed is whether the evidence demonstrates the presumption of causation has successfully been rebutted.

Policy 15-03-13 (PTSD in First Responders and Other Designated Workers) states 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. The policy also states that a first responder is not entitled to benefits for PTSD if it is shown that the PTSD was caused by the employer’s decisions or actions that are part of the employment function. A significant contributing factor is a factor of considerable effect or importance and it is important to note that work need not be the sole cause, or even the predominant cause of the PTSD.

The medical information on the claim file supports the worker reported numerous traumatic events they were exposed to while performing their job duties as a police officer, including exposure to death/deceased individuals, suicide, serious injury, serious accidents, decaying human remains and assaults by member of the public. While I appreciate the worker did not provide specific dates of these exposures, the employer representative did not dispute the fact the worker has PTSD and has not provided any information to support the worker was not exposed to traumatic events.

The medical information on the claim file does not support the worker was exposed to objectively traumatic non-work-related incidents. I have considered the employer representative’s position that the onset of the worker’s PTSD symptoms coincided with disciplinary action; however, I note the medical information on the claim file does not support the disciplinary action was a significant contributing factor to the worker’s diagnosed PTSD or a causal factor in the worker seeking medical attention for their mental health condition.

I have considered the employer representative’s position; however, I find their argument has not successfully rebutted the presumption.

Noting the traumatic exposures identified by the worker occurred after they began working as a police officer for the employer, I accept the exposure to traumatic events as a police officer with the employer contributed significantly to the development of PTSD.

The employer’s representative has not directed me to any persuasive evidence suggesting that the worker’s exposure to traumatic events while working as a police officer for the employer over a period of 16 years did not contribute significantly to the diagnosis of PTSD. Similarly, the employer’s representative has not directed me to any evidence to support PTSD was caused by non-work-related factors such as decisions or actions by the employer that are part of the employment function. While I appreciate the worker’s claim for benefits coincided with a disciplinary issue, the medical information on the claim file does not support this issue caused or contributed to the worker’s mental stress injury.

In conclusion, I do not find the evidence sufficiently rebuts the presumption afforded to the worker as a first responder under Policy 15-03-13, PTSD in First Responders and Other Designated Workers.

Accordingly, since the worker meets all of the requisite criteria for initial entitlement as outlined in the policy, I find the worker has entitlement to PTSD under Policy 15-03-13, PTSD in First Responders and Other Designated Workers.

CONCLUSION

The employer’s objection is denied.

The worker has met the legislative requirements to claim and consent.

The worker has entitlement to PTSD under Policy 15-03-13, PTSD in First Responders and Other Designated Workers.

DATED August 30, 2023

M. Haughton

Appeals Resolution Officer

Appeals Services Division