DECISION NUMBER:

20230119

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

VIDEOCONFERENCE

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES:

DATED:

EMPLOYER RESOURCE

SEPTEMBER 26, 2023

ISSUES

The worker is objecting to the Case Manager’s decision of August 5, 2022 denying entitlement to the following:

1. Posttraumatic Stress Disorder (PTSD) as a first responder;

2. Traumatic Mental Stress (TMS); and,

3. Chronic Mental Stress (CMS).

BACKGROUND

The worker was hired as a police officer in April 2002. On August 16, 2021, the worker was involved in a non-work-related motorcycle accident. An initial medical assessment relating to deteriorating mental health took place in November 2021. The worker’s first shift back on a motorcycle performing frontline policing duties occurred in April 2022. Lost time began in June 2022. The Worker’s Report of Injury signed July 11, 2022 requested entitlement to cumulative stress relating to changes that they started to notice in October/November 2021. The family doctor provided a diagnosis of PTSD on July 18, 2022. An initial psychological assessment was performed on July 25, 2022.

The Case Manager’s decision letter of August 5, 2022 denied entitlement to PTSD based on the determination that the stress reaction appeared to be in response to non-work-related factors. The worker began psychological counselling through their extended health care benefits on August 8, 2022. The Case Manager’s reconsideration letter of January 17, 2023 upheld the decision that the presumption of entitlement to PTSD had been rebutted. The Case Manager confirmed that there was no entitlement to TMS or CMS as the non-work-related stress included the motorcycle accident of August 16, 2021. The Case Manager issued a clarification/amendment letter on February 21, 2023 highlighting inaccuracies in the psychological report of August 1, 2022 as well as the documentation of hormonal issues. In the view

of the Case Manager, the evidence supported that the PTSD was caused by the non-work-related motorcycle accident. Another reconsideration letter dated April 20, 2023 adjusted the date of injury to August 1, 2022 as this is the date that the psychologist diagnosed PTSD.

The administrative decision of July 13, 2023 determined that the worker’s objection to the decision letter of August 5, 2023 would be addressed as an oral hearing. The administrative letter dated July 26, 2023 confirmed that the oral hearing would be conducted by videoconference. The issue is now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-04 Determining the Date of Injury

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

April 9, 2021

September 7, 2018

ANALYSIS

I find that entitlement to PTSD as a first responder is 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 worker representative requests initial entitlement to PTSD as stress disorder on the basis that the presumption set out in policy has not been rebutted. The argument is presented that the worker’s duties significantly contributed to the diagnosis of PTSD and that neither the non-work-related motorcycle accident nor the worker’s hormone issues were factors.

The worker representative also requests that the date of injury be adjusted to November 25, 2021, with the nature and duration of benefits being remitted back to the Case Manager for further adjudication.

Employer representative’s position

The employer maintains that initial entitlement for a mental stress injury is not in order.

In the employer representative’s view, the worker has already been compensated for their time off and their testimony does not support the medical evidence on file. It is presented that the real-time evidence reviewed in context makes it more probable than not that the PTSD is the result of personal stressors (including hormone imbalances) and the non-work-related motorcycle accident of 2021. Further, the argument is made that the worker never witnessed any of the accidents as they would have reported to the scene afterwards. The employer representative maintains that there is no requirement of work being a significant contributing factor in cases where the presumption of entitlement has been rebutted. As a result, it is the opinion of the employer representative that none of the necessary policy criteria are met other than the worker being diagnosed with PTSD from a psychologist.

Worker’s testimony

It is the worker’s testimony that they had no mental health issues at the start of their policing career. The worker also explains that they have been riding a motorcycle since approximately 2001 and use it as a form of stress relief during difficult times. The worker began to ride a motorcycle as part of the policing duties after receiving Level 1 training in the spring of 2021. The worker anticipates possibly taking Level 2 motorcycle training at their workplace within the next year.

With respect to hormone therapy, the worker explains that they began to have symptoms of low testosterone approximately seven years ago at which point they were prescribed testosterone replacement therapy by a specialist. The worker indicates that they lost a close colleague in the fall of 2013. At that time, the worker did not realize that their symptoms were PTSD only that their behaviour had changed. The worker took the medication Cipralex for approximately one year and thought that the issue had resolved. The worker saw a resident physician at their primary care clinic in November 2021 to discuss their mental health issue.

According to the worker’s testimony, they did not know at the time that the symptoms were related to PTSD. Instead, they related their emotions to the hormone issues of seven years prior as they were similar. However, the worker states that it was never a hormone issue. Further, the worker describes the non-work-related motorcycle accident of August 16, 2021 as involving an evening leisurely ride with a passenger over a 50 kilometre per hour road that the worker had ridden countless times. At an S-bend on this freshly paved road, the rear end of the motorcycle slipped out while travelling approximately 15 to 20 kilometres per hour. There were no other vehicles involved. The passenger was bucked off, suffering minor injury. The worker’s right leg was pinned to the ground under the 800-pound motorcycle prior to the motorcycle standing back up on its own. The worker was taken to hospital with a spiral fracture just above their right ankle. Police arrived at the hospital but no charges were laid.

The worker explains that the damage to the motorcycle occurred after it stood back up and continued to travel until it struck a curb. According to the worker’s testimony, they purchased a new motorcycle even before they received the insurance payment. The worker stresses that the accident itself was not traumatic for them as both they and their passenger laughed at the time as the worker was not aware of the fractured leg until they attempted to stand up. The worker returned to modified duties with the employer in October/November 2021 and returned to full active duties in approximately April 2022.

However, the worker explains that they became more anxious and apprehensive closer to that date. Still, the worker states that they took the motorcycle out for the first few shifts.

After the lost time in June 2022, the worker returned to same modified duties of case preparation at the same location in approximately October 2022. The worker resumed regular duties in approximately November 2022 and continues to perform regular duties to date. The worker describes their current mental health as being very stable although they still have sleep issues and the occasional night terror. That being said, the worker indicates that they are enjoying their job again now that they are aware of the triggers for PTSD.

Entitlement to post-traumatic stress disorder

It is my opinion that the presumption of entitlement has not been rebutted.

Policy 15-03-13, Posttraumatic Stress Disorder in First Responders and Other Designated Workers, defines the term first responder as including police officers. Policy states that a psychologist or psychiatrist must diagnose the first responder with PTSD as described in the Diagnostic and Statistical

Manual of Mental Disorders, Fifth Edition (DSM-5). Policy confirms that a diagnosis of PTSD in a first responder who meets the specific employment and diagnostic criteria is presumed to arise out of and in the course of employment unless the contrary is shown.

Policy 15-03-13 provides further explanation that this presumption may be rebutted if it is established that the employment was not a significant contributing factor in causing the first responder’s PTSD. Entitlement to PTSD is not in order if it is shown that the PTSD was caused by the employer’s decisions or actions that are part of the employment function such as transfers or changes in working hours or productivity expectations.

Under questioning, the worker explains that their family doctor has multiple resident physicians or new doctors in the clinic who perform approximately 95% of the assessments. The worker states that the family doctor reviews the clinical notes even though they did not assess the worker directly. It is the worker’s testimony that they recall discussing their mental stress with a resident during the appointment in November 2021 and were provided with the recommendation to investigate cognitive behavioural therapy online. The worker states that they left a message for the employee family assistance plan through their employment but gave up after never receiving a return call.

The worker also describes attending a hospital emergency room on February 17, 2022 in light of having symptoms of depression, paranoia, and minor anxiety since the fall of 2021. The worker went to the emergency room at the nearest hospital after experiencing severe anxiety and chest pain during their shift. The chest pain resolved within an hour of the worker being provided with sedatives. The worker returned to the emergency room in approximately May 2022 with another episode of severe anxiety that they did not report to the employer as they felt shame and embarrassment from having another panic attack during a dayshift. The worker reached out to the employer for help after this second episode.

With respect to lost time, the worker describes calling in sick a lot due to anxiety and taking a day off here and there for several months prior to June 2022. For example, the worker would call in sick for three or four of their seven-day scheduled due to panic attacks. The worker indicates that their sergeant noticed the frequency of sick days as it was unusual. It was at this point that the worker decided that they needed help and were not fit for service.

In terms of specific incidents, the worker describes the PTSD symptoms starting after reporting to the scene where a cyclist was fatally run over by a dump truck in the fall of 2020. As the worker approached the truck, they saw the body and wanted to pass out from the shock of it. The worker quietly asked their partner to handle it and went back to the vehicle. After this date, the worker began to experience severe paranoia going to calls as well as having disrupted sleep and nightmares.

The next incident the worker describes is a fatal motorcycle accident in approximately June 2021 in which the worker was the first at the scene. The worker explains that this collision affected them as the rider, who was approximately the worker’s age, was ejected face down with severed vertebrae. The worker saw the body down the street from the motorcycle. In July 2021, the worker was the first to attend a call involving a deceased older couple hanging upside down from the vehicle. The worker testifies that they experienced nausea at the scene.

It is the worker’s view that the non-work-related motorcycle incident was not a major collision. In fact, the worker discusses that the resulting time off from work for the leg fracture helped with their mental health as they were already experiencing symptoms and removed the worker from the workplace factors. The worker asserts that the symptoms returned once they became concerned with returning to work as the workplace situations were the actual cause of the mental stress. The worker strenuously denies ever

having a fear of returning to motorcycle riding as they purchased a new motorcycle and resumed motorcycle riding at work the first two shifts back. Regarding a clinical chart note in June 2022, the worker suggests that a resident physician improperly documented the assessment. The worker denies that they would ever say that motorcycle riding was stressful as they actually use it as stress relief. It is the worker’s testimony that they contacted the clinic to correct the clinical chart note.

I appreciate the employer representative’s argument that more weight should be placed on the medical documentation closest to the period in question. On the other hand, I observe that the clinical chart note of June 23, 2022 outlines that there may be a workplace component though it is difficult to distinguish given that the worker’s occupation is a traffic police officer requiring response to fatal accidents. The attending physician documents that there appears to be some deal of situational overlap but that the worker’s own motorcycle accident appears to be driving symptoms. I must also consider that the clinical chart note of November 2, 2021 references the worker thinking a lot about death and past experiences, including the deceased colleague. While I am aware of the clinical chart note also refers to past home stressors, the attending physician does not appear to link them to the worker’s recurrent dreams.

I am aware that three clinical chart notes dating from May 2022 document the worker’s anxiety regarding hormone concerns. Yet, the clinical chart note of May 2, 2022 also references the worker’s endorsement of increased stress dating back to the fall of 2021. The internal medicine report of May 27, 2022 confirms seeing the worker about concerns with a hormonal imbalance, which dates prior to the start of lost time in June 2022. As previously referenced, the clinical chart note of June 23, 2022 discusses the worker’s anxiety surrounding the hormone issue as well as the non-work-related motorcycle accident.

The endocrinologist’s report dated July 1, 2022 documents the worker’s indication that they were feeling very good on testosterone until November 2021, which was a time of the worker having many stressors, including personal factors. The report verifies that the worker continues to experience significant symptoms of anxiety, hot flashes, palpitations, and low libido. All the same, the specialist provides the opinion that it is unlikely that the worker’s symptoms are due to an endocrine etiology. In fact, the specialist confirms that the worker has had a thorough hormonal panel collected privately the previous week and that there is no evidence of other endocrine dysfunction. I observe that the subsequent clinical chart note of July 4, 2022 review this report and documents that there is no endocrine cause for the worker’s symptoms.

Additionally, I find that the clinical opinion from the family doctor’s clinic after the receipt of the specialist’s report no longer attributes the worker’s symptoms to hormonal issues, personal stressors, or the motorcycle accident that occurred outside of work. For example, the Health Professional’s Report

(Form 8) from the family doctor signed July 18, 2022 provides a diagnosis of PTSD and dates the symptoms of work-related repetitive stress back to October 1, 2021. The family doctor’s narrative report dated October 7, 2022 confirms reviewing the worker’s charts and provides the opinion that the symptoms from November 2021 are the result of PTSD.

I recognize the employer representative’s concern that the psychologist appears to change the diagnosis of depression and anxiety to PTSD. Yet, I note that the family doctor had already changed the diagnosis to PTSD on July 18, 2022, which is prior to the psychological assessment of July 25, 2022. Therefore, I am not persuaded that more weight should be afforded to the earlier clinical chart notes as I accept that the endocrinologist is in the best position to provide a definitive opinion regarding the question of if the worker’s mental health symptoms are the result of hormone issues.

Finally, the treating psychologist’s report of October 31, 2022 explains that the worker fulfils the criteria for PTSD based on psychometric testing and a detailed intake process. In particular, I note that the psychological report of October 31, 2022 provides the clinical opinion that the worker’s own motorcycle injury did not trigger symptoms or fear of driving motorcycles. Moreover, I find that the psychologist references fatality calls at work that the worker’s testimony corroborates. Both the report and the worker’s testimony reference the death of the worker’s motorcycle trainer in September 2022. The worker indicates that they did not attend the funeral due to triggers, avoids discussing it, and avoided the

one-year anniversary.

Overall, it is my opinion that the PTSD is to be presumed to have arisen out of and in the course of the worker’s employment as a first responder. There is no dispute that the worker had a non-work-related motorcycle accident on August 16, 2021. However, I find that the evidence supports that the worker did not subsequently avoid riding a motorcycle either in their personal life or in the course of employment. Similarly, I accept that the worker’s mental stress symptoms were not the result of a hormone issue based on the endocrinologist’s report of July 1, 2022. I also find that there is insufficient evidence that the worker’s employment as a police officer, regardless of if they witnessed the fatalities or merely reported to the scene afterwards, was not a significant contributing factor in causing the diagnosed PTSD. Consequently, I find that the presumption of entitlement set out under Policy 15-03-13 has not been rebutted and that initial entitlement to PTSD as first responder is in order.

Date of injury

It is my opinion that the most appropriate date of injury supported by the medical evidence is November 2, 2021. As outlined above, the treating psychologist provides the diagnosis of PTSD on August 1, 2022. The worker representative argues that the worker experienced cumulative exposures with the first medical attention for mental health symptoms taking place on November 25, 2021.

According to Policy 15-03-13, the date of injury will generally be the date a PTSD diagnosis is made by a psychologist or psychiatrist; however, in some cases, it may be an earlier date as described under Policy 11-01-04, Determining the Date of Injury. I observe that Policy 11-01-04 provides the authority to set the date of injury in cases of gradual onset as earliest of the date of first medical attention which led to the diagnosis or the date of diagnosis.

There is general agreement that the worker attributes the work-related PTSD to several fatality calls. The worker’s testimony indicates that while there may have been other incidents, including attending other fatalities, the worker does not recall being as affected compared to the specific ones discussed during testimony and in the psychologist’s report. In my view, such a cumulative effect represents a gradual onset disablement as there was not a singular event that the worker can identify.

Although I recognize the worker representative’s request to set the date of injury at November 25, 2021, I find that the clinical chart note is actually dated November 2, 2021. In support of this determination, I observe that the family doctor’s narrative report of October 7, 2022 clearly states that the initial assessment for mental health occurred on November 2, 2021 with an indication of persisting symptoms of intrusion, avoidance, negative alterations in cognition and mood, and hypervigilance. Given this clarification, I accept that Policy 11-01-04 provides the authority to use November 2, 2021 as the date of accident as it represents the correct date of first medical attention that eventually led to the diagnosis of PTSD as required by Policy 15-03-13.

Entitlement to Traumatic Mental Stress and/or Chronic Mental Stress

The worker representative confirms that there is no need to rule on either TMS or CMS if initial entitlement to PTSD under Policy 15-03-13 is granted.

For the reasons previously outlined, I find that entitlement is in order to PSTD under Policy 15-03-13. Therefore, I find that a review for potential entitlement under the applicable polices for TMS and/or CMS is not required.

CONCLUSION

I conclude the following:

1. Initial entitlement to benefits for Posttraumatic Stress Disorder (PTSD) as a first responder is in order for the accident date of November 2, 2021.

The nature and duration of benefits is remitted back to the Case Manager for further adjudication.

2. Entitlement to Traumatic Mental Stress (TMS) is not in order as entitlement is granted under Policy 15-03-13.

3. There is no entitlement to benefits for Chronic Mental Stress (CMS).

The worker’s objection is allowed.

DATED September 26, 2023

K. MacMillan

Appeals Resolution Officer Appeals Services Division