Worker v. Employer, 2023 CanLII 112874

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20230122

OBJECTING PARTY:

WORKER

RESPONDENT:

EMPLOYER – NOT PARTICIPATING

HEARING:

HEARING IN WRITING

HEARD by:

d. gowanlock, appeals resolution officer

DATED:

JUNE 29, 2023

ISSUES

The worker is objecting to the Case Manager’s decisions dated September 19, 2022 and November 22, 2022 denying entitlement to:

1. Traumatic Mental Stress

2. Chronic Mental Stress

The worker is also questioning the date of injury assigned in this case.

BACKGROUND

According to the Employer’s Report of Injury – Form 7 dated August 15, 2022, the worker was hired by the employer in August of 2005 and employed as a Support Services Worker. The worker disclosed that after being off work on Short-Term Disability (STD), they were advised by their physician to file a claim with WSIB for Post Traumatic Stress Disorder (PTSD).

On their Worker’s Report of Injury – Form 6, the worker documents that they experienced a cumulative mental stress injury caused by traumatic events. In the attached written statement, the worker recalled two events, the first occurring in May of 2021 and a second occurring in May of 2022. After the May 2022 event, the worker reported that they were emotionally triggered. They cried in their car. That incident sent the worker into a horrific spiral and re-triggered a number of historical traumatic events that had occurred over the past 18 years.

A Psychiatry Consultation Report dated July 7, 2022 provides a diagnosis of PTSD related to work trauma.

On August 22, 2022, a statement was obtained from the worker. The worker claimed cumulative mental stress due to multiple traumatic events, which include multiple threats of death and physical violence.

They stopped working on May 31, 2022, sought medical attention with their family physician on June 3, 2022 and underwent a psychiatric assessment on July 7, 2022.

On September 6, 2022, the Case Manager reviewed the details of the case and denied entitlement to Traumatic Mental Stress and Chronic Mental Stress. This decision was confirmed in writing on September 19, 2022.

The worker objected to the September 19, 2022 decision and on November 21, 2022, the Case Manager conducted a reconsideration and upheld the decision to deny entitlement to Traumatic Mental Stress and Chronic Mental Stress. This decision was confirmed in writing on November 22, 2022.

The worker objects to the September 19, 2022 and the November 22, 2022 decisions.

AUTHORITY

Operational Policy Published

Operational Policy Manual

Published

11-01-04 Determining the Date of Injury

April 9, 2021

15-02-05 Recurrences

April 9, 2021

15-03-02 Traumatic Mental Stress

January 2, 2018

15-03-14 Chronic Mental Stress

January 2, 2018

ANALYSIS

The employer is not participating in the appeals process.

Therefore, in my review, I have had regard for the case file documentation, relevant policy, legislation and the submissions put forth by the worker with respect to the issues. I have considered all the evidence and the following is a summary of my decision.

Worker Submission

The worker submitted an Appeal Readiness Form dated January 11, 2023. The worker also provided additional information in April and May of 2023 requesting clarification of policy and referencing the Workplace Safety and Insurance Appeal Tribunal (WSIAT) Medical Discussion paper entitled Post Traumatic Stress Disorder authored by Dr. Diane Whitney, as well as various WSIAT decisions in support of their appeal.

In the most recent submission provided in May of 2023, the worker requests entitlement to a Non- Economic Loss (NEL) benefit. This benefit can only be considered if entitlement has been accepted in a case. Further, the issue would have to be addressed by the operating area first. As this issue is not properly before me, I will not address entitlement to a NEL benefit within this decision.

Issues: Entitlement to Traumatic Mental Stress and date of injury

I find that the criteria required establishing entitlement to Traumatic Mental Stress have been met. The date of injury in this case is June 3, 2022. I arrived at these decisions based on the following:

Policy

Policy 11-01-04 Determining the Date of Injury states in part:

A worker’s date of injury varies based on the nature of the event(s) that give rise to their claim for benefits under the Workplace Safety and Insurance Act, 1997 (WSIA). For all purposes associated with the

administration of benefits and services under the WSIA, a worker’s date of injury is the same as their date of accident.

In a gradual onset disablement claim, the date of injury is established using the date of first medical attention which led to the diagnosis, or the date of diagnosis, whichever is earlier.

Policy 15-02-05 Recurrences states in part:

A worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:

• does not result from a significant new incident/exposure, and

• is clinically compatible with the original injury/disease.

Policy 15-03-02 Traumatic Mental Stress states in part:

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.

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.

Cumulative effect

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.

In considering entitlement for the cumulative effect, decision-makers will rely on clinical and other information supporting that multiple traumatic events led to the worker’s current psychological state. Also, there may be evidence showing that each event had some effect or life disruption on the worker, even if the worker was not functionally impaired by the effect or life disruption.

Standard of proof and causation

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the traumatic event(s), or the cumulative effect of a series of traumatic events,

• arose out of and in the course of the worker’s employment, and
• caused, or significantly contributed to, an appropriately diagnosed mental stress injury.

Case Details

In August of 2022, the worker provided a written statement outlining the events that they felt contributed to the mental stress injury as follows:

In May of 2021, the worker was assigned a complex file that required significant and intensive in home support. They had been working with the family for months and they weren’t engaging. In order to try and prevent the children from being removed from the home, and after several meetings, they developed a structured plan where they were required to attend the home between 7-9 am and 7-10 pm. They agreed to do this for a three week period.

During a visit in the evening a youth that had been using crystal meth and fentanyl and their parent, got into a heated argument where the youth came out of the kitchen with a knife pointed towards their parent and the worker. This caught the worker off guard as they had previously planned with the parent to lock up knives and anything that could be used as a weapon as the worker feared for their safety, the parent’s and the other child’s. Every time the worker attended the home, the youth was escalating, yelling, swearing, making threats and throwing objects.

During this specific incident when the youth came out with the knife, their mother looked terrified and backed up. The worker backed up as well. The worker felt that their life was in danger that the youth was going to stab and kill them and the client’s parent. The parent had told the worker a number of times that they were afraid of the youth and they feared for their safety. The worker thought that if they needed

to escape they would have to jump off of the balcony and injure themselves or die. The home was very cluttered, had piles of hoarding. The front door of the apartment was down a long narrow hall. The worker remembered feeling frozen like they couldn’t move and felt that they couldn't run because there was still another young vulnerable child with autism who also needed to be protected.

After this incident, the worker advised their manager that they feared for their life and their safety due to significant volatility of the client, historical violent behaviour as well as several incidents where the youth would toss furniture and throw objects. They also told their manager that police had been called several times by both the parent and themselves and the police would attend and speak to the youth, but advised they couldn’t do anything else due to the youth’s age. The location of the apartment building was in an unsafe area in the city and set back from the road. Their manager assigned another Support Services Worker to attend the home with the worker and advised to call police if they felt threatened.

Due to ongoing fears for safety while in the presence of the family, the worker contacted the police on a number of occasions to attend due to violence, throwing objects, flipping tables and chairs during visits and the risks associated to the other child who would be left in the home should they leave.

The worker dismissed their own fears, as they had been doing while supporting this family, in order to try

and de-escalate the situation. This type of interaction with this family occurred a number of times within a three week period where the worker felt that their life was threatened with violence including using a baseball bat as well as verbal threats.

When they returned to the apartment the following day, there was significant police presence and the police reported that there was an ongoing investigation into a stabbing and would not tell the worker more. The worker got in their car, called the family right away, and was not able to get through. They thought that the youth had stabbed the family. It was later through social media that the worker learned it was next door to the youth and the youth was not involved. When they were able to return again the following day, there was a significant amount of blood on the doors, wall and floor in the hallway outside of the youth’s apartment with police tape and the worker felt terrified. They instantly felt unsafe and worried for their physical safety. They relived this experience twice daily for several more weeks until the youth was removed from the parent’s care.

In May of 2022, the worker had been supporting a youth that they had worked with including the family and extended family off and on for 12 years. The youth had been avoiding the worker for quite some time and finally agreed to meet. They already knew that the youth was not safe and had a pre-existing safety plan to attend as two workers. When they arrived, the youth crawled out of the apartment on their hands and knees. The youth was under the influence of crystal meth (the worker believed) emaciated, with grey/green skin and their face was gaunt and the youth looked like a skeleton. The youth’s feet were both broken and facing the wrong way. The youth sat on the edge of the stairs while the worker spoke with them.

They left the home and contacted another worker and the police to do a wellness check in hopes they would place the youth on a psychiatric hold and provide medical attention. The worker was emotionally triggered and cried in their car. That incident sent the worker into a horrific spiral and re-triggered a number of historical traumatic events that had occurred over the past 18 years. The worker started to experience severe nightmares, flashbacks of traumatic events, and they became unable to leave their home, and began to avoid/miss work. They felt like they couldn’t relax and were easily startled by sounds. They were having difficulty with people being near them, or being touched. There were unable to connect with others and constantly felt unsafe, hyperaware of their surroundings. They were unable to drive in certain parts of the city. They were irritable with their husband and children and exhausted from not being able to sleep.

Their memory was poor and there were having difficulty completing simple tasks such as going to the grocery store as they were startled easily.

According to the employer’s Form 7, the worker stopped working as of June 1, 2022.

The family physician’s clinical note dated June 3, 2022 documents that the worker reported having an acute anxiety reaction to events that happened recently at work. They had been seeing a therapist for three years, usually around work. The worker was experiencing panic attacks, they were unable to sleep, agitated with family and work, tearful, and dreaded going to work. Usually they loved their job. The worker had been taking Paroxetine 40mg long term. A diagnosis of major depressive disorder was noted.

The family physician referred the worker for a psychiatric assessment, undertaken on July 7, 2022. According to the July 7, 2002 psychiatric assessment, the worker presented for an assessment following a year of worsening mental health symptoms. The worker reported experiencing traumatic events regularly. While many of the events stayed with them, they had typically coped well. While the worker had to take some time off in the past, and returned to work feeling better, it was not until the pandemic hit that the worker started to feel their mental health slipping again. There were staffing shortages and their case load had gotten larger, and the intensity of the cases had also become an issue as the mental health of those in the community had become an increasing problem. The worker spoke about being chased with baseball bats and knives or feeling acutely unsafe in apprehension interventions. In the past, the worker felt that they could cope; however, they felt themselves slipping.

The worker spoke about two recent events, one when chased by someone with steak knives (later clarified by the worker as an incident with a single knife) and another where they encountered a young person that they had followed for many years unwell on the streets. The worker started to have an increase in flashbacks and nightmares. They tried to continue working, but started to avoid seeing clients. Their memory and concentration were an issue. They stopped working in June of 2022.

The worker further explained that their trauma history was vast, related to their workplace. Nightmares and flashbacks had been constant for many years, though worse more recently. The worker confirmed that they had never seen a psychiatrist before, however had been followed by private therapists for a number of years. They were currently seeing a psychotherapist and had been taking Paxil for many years. The psychiatrist notes that the worker, over the years, experienced through their work countless traumatic events as well as incidences where their life was threatened. Due to the pandemic and increased caseload, the worker was feeling more burned out and overwhelmed over the year. However, in May 2021 the worker experienced two critical traumatic events related to youths that became significant triggers for mental health instability. The psychiatrist opined that the worker had longstanding PTSD, typically more stable and something that the worker has lived with for many years.

On October 11, 2022, the Case Manager obtained a statement from the worker as documented in memo A. According to the worker, both the May 2021 and May 2022 incidences were reported to their manager, PS. The age of the youth in the May 2021 incident was 10 years old. The worker did not know what size the knife was but says it was aimed directly at them in an aggressive way. The worker stated that immediately after May 2021 incident and the debrief, their manager requested more support for this youth because this youth was continuously belligerent with all of the worker’s interactions. The worker also discussed the May 2021 and May 2022 incidences with co-worker LK who was not present at both incidences. The worker confirmed that there was no police report, and does not remember completing incident report. With respect to the May 2022 incident, the worker explained that this incident involved an 18-year-old youth whose ankles and feet were black and blue and facing the wrong direction. The worker described attempting to convince this 18-year-old youth to seek medical attention but they refused. The youth appeared to be suffering from malnutrition and was emaciated. The worker stated that they never saw this youth’s ankles and feet facing the wrong way before, in all of their years of working with this youth.

On October 27, 2022, a statement was completed by a co-worker who recalled the event in May of 2021 at which time the worker was in the home of the youth and during their time alone in the home with the youth and the parent, the youth became extremely violent, and had a knife. The worker was very emotional and began to cry. They were shocked that this had happened as it was unprovoked, and that the parent was scared. It was clear during discussions that the worker was very impacted by this incident. The worker had to be back in the home with the youth and the parent the next day. This would have been less then twelve hours later after the incident happened. This means there was very little time to decompress, prepare a safety plan, and assess further risk. In June of 2022 during a lunch meeting, the co-worker could see a noticeable difference in the worker’s demeanor. The worker was on a medical leave from work, and they spoke extensively about the impact of the work, and how the many years of working in a high stress and trauma-exposed environment had led to the worker feeling anxious, scared to be in public spaces, and withdrawn. The co-worker could say confidently that the incident and the many others the worker experienced caused work related injury. Although, it may not be as visible as a broken bone, vicarious and direct trauma is very real.

On November 14, 2022, another statement was obtained from the worker as documented in memo B. In terms of the May 2021 incident, the worker did not recall what set the youth off. The youth came out of the kitchen with a steak knife, swearing and yelling. The worker did not fully recall the incident but remembered de-escalating the situation and took the youth back to the kitchen. Afterwards, they felt okay and didn’t think they required medical attention at the time and wanted to continue pushing through. The worker confirmed that knives were not thrown at them and that the second incident involved seeing a youth at an apartment building. The worker confirmed that they did not leave work due to the workload, but rather the accumulation of incidences such as the May 2021 and May 2022 incidents.

On December 27, 2022, the worker’s manager provided a written statement. There were no incident reports or contact logs confirming the dates and events. The manager recalled speaking to the worker about the events and felt that both events were very hard emotionally for the worker to manage. With regards to the knife incident, blood in the hallway from an unrelated circumstance with a neighbor and police involvement, and the ongoing threats by one youth in the home was difficult to the point where two workers were involved due to the level of need and support required for the youth. The worker was extremely upset with the youth with the broken feet and this incident impacted them. The worker was emotionally upset by this youth’s situation and inability to care. The manager believed that the worker asked for some days off work at the time.

Findings

I find that the criteria required for entitlement to Traumatic Mental Stress have been met for the following reasons:

The May 2021 incident was described by the worker as follows:

The youth came out with the knife; their mother looked terrified and backed up. The worker backed up as well. The worker felt that their life was in danger and that the youth was going to stab and kill them and the client’s parent. The parent had told the worker a number of times that they were afraid of the youth and they feared for their safety. The worker thought that if they needed to escape they would have to jump off of the balcony and injure themselves or die. The home was very cluttered, had piles of hoarding. The front door of the apartment was down a long narrow hall. The worker remembered feeling frozen like they couldn’t move and felt that they couldn't run because there was still another young vulnerable child with autism who also needed to be protected.

Policy 15-03-02 states 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 my view, the incident occurring in May of 2021 is clearly and precisely identifiable, and objectively traumatic. The worker was clearly the object of threats of physical violence where the worker believed the threats were serious and harmful to themselves as well as the youth’s parent and sibling. The worker suffered and witnessed the work-related traumatic event first hand.

The incident was confirmed through information and knowledge from others as confirmed in the statements provided by the worker’s manager and their co-worker. The incident appears to generally have been accepted as being traumatic.

The medical evidence confirms that the worker was not seen by their family physician in May of 2021, however; according to the clinical notes, the worker was under the care of a psychotherapist.

Unfortunately, the psychotherapist’s clinical notes were not obtained and are not available for review.

Nevertheless, I did place significant weight on Dr. Hamer’s July 7, 2022 psychiatry consultant report. In this report, the psychiatrist confirms the May 2021 incident and the May 2022 incident and notes that the worker experienced a year of worsening mental health symptoms. The psychiatrist also notes that the worker’s trauma history is vast related to their workplace. Nightmares and flashbacks had been constant for many years, although worse recently. A diagnosis of longstanding PTSD was confirmed.

In determining work-relatedness, I considered the WSIAT Medical Discussion paper entitled Post Traumatic Stress Disorder authored by Dr. Diane Whitney, revised in June of 2022. In this discussion paper, Dr. Whitney provides two pieces of information that I find is relevant to this case.

First, on page 9, Dr. Whitney notes that in a study by King 2021, 80.1% of child welfare workers reported non-physical violence followed by threat 47.2% and assault 5.8%. The category of experiencing threats was significantly associated with mental health outcomes with depression being most commonly reported. Secondary traumatic stress (STS) which is also known as vicarious trauma or compassion fatigue refers to experiences of professionals who are exposed to other’s traumatic stories and as a result can develop their own traumatic symptoms and reactions. Child welfare workers along with other professionals may have exposure to both direct and secondary exposure to dangerous situations.

Surveys of child welfare workers reveal that over 50% have high risk of compassion fatigue and that workers feel trapped and hopeless with their work with clients and feel in danger while working with clients. I find it is reasonable to conclude that the worker may have in fact been struggling with some symptoms suggestive of PTSD over a number of years, without realizing it.

Second, on page 10, Dr. Whitney notes that there may be a delay in the onset of PTSD symptoms so when trauma symptoms onset six months after the trauma, the classification is delayed-onset PTSD. At times PTSD symptoms may develop years later. This often occurs in the context of another trauma or a significant reminder of the original trauma. Again, I find it reasonable to conclude that the worker’s PTSD came to light only after the May 2021 incident. There may be a component of 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.

In terms of work-relatedness, I am unable to find any reference to any other factors but the work and the exposure to traumatic events over the years with the most recent being in May of 2021 and May of 2022. Like many people working front line jobs caring for other people, it is not uncommon for a worker to deal with their symptoms until they reach a point that they can no longer function. I believe that this is the case with this worker, causing them to stop working as of June 1, 2022.

Policy 15-03-02 states that in terms of the standard of proof and causation, in all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the traumatic event(s), or the cumulative effect of a series of traumatic events, arose out of and in the course of the worker’s employment, and caused, or significantly contributed to, an appropriately diagnosed mental stress injury.

I am satisfied that the traumatic event on May of 2021 arose out of and in the course of the worker’s employment, and caused, or significantly contributed to, an appropriately diagnosed mental stress injury.

Policy 15-05-02 states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that does not result from a significant new incident/exposure, and is clinically compatible with the original injury/disease. I am satisfied that the incident in May of 2022 is a recurrence of the May 2021 psychological response and provides clarification in terms an appropriately diagnosed mental stress injury, namely PTSD.

As a result of my analysis, I find that the criteria required establishing entitlement to Traumatic Mental Stress have been met. Therefore, I have not considered entitlement to Chronic Mental Stress.

Given that the worker has been off work since June 1, 2022, the worker is entitled to a loss of earnings benefit. I will remit the type and duration back to the operating area to determine once updated medical reporting has been obtained and clarification of return to work activities and any third party reimbursements have been addressed.

In terms of the date of injury, which the worker objects to, I have considered policy 11-01-04 which states that a worker’s date of injury varies based on the nature of the event(s) that give rise to their claim for benefits under the Workplace Safety and Insurance Act, 1997 (WSIA). For all purposes associated with the administration of benefits and services under the WSIA, a worker’s date of injury is the same as their date of accident. In a gradual onset disablement claim, the date of injury is established using the date of first medical attention which led to the diagnosis, or the date of diagnosis, whichever is earlier. In my view, the date of injury in this case is June 3, 2022 at which time the worker sought medical attention for a mental stress injury relating to work.

CONCLUSION

I conclude:

Entitlement to Traumatic Mental Stress is allowed. Entitlement to Chronic Mental Stress has not been considered.

Given that the worker has been off work since June 1, 2022, the worker is entitled to a loss of earnings benefit. I am remitting the type and duration back to the operating area to determine once updated medical reporting has been obtained and clarification of return to work activities and any third party reimbursements have been addressed.

The date of injury is June 3, 2022. The worker’s objection is allowed.

DATED June 29, 2023

D. Gowanlock

D. Gowanlock

Appeals Resolution Officer Appeals Services Division