Worker v. Employer, 2024 CanLII 140462

DECISION NUMBER:

20250012

OBJECTING PARTY:

REPRESENTED by:

RESPONDENT PARTY:

HEARING:

HEARD by:

DATED:

NOVEMBER 28, 2024

ISSUE

The worker is objecting to the denial of initial entitlement for Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS) in the Case Manager decision of December 4, 2023.

BACKGROUND

The worker was employed as a city bus driver. On November 16, 2023, the worker picked up two teenage boys on their route. One of the boys did not pay and the worker informed them of the fare policy. The worker put the bus in park, called for backup, and refused to continue with the route until the boys both paid their fare or left the bus. The boys became verbally abusive. A short time later, an adult woman arrived, started recording the incident, and verbally abused the worker as well. The worker was 53 years old when the incident occurred.

The worker sought medical attention on November 17, 2023, and was diagnosed with Acute Reactive Depression. They started losing time from work on November 17, 2023.

The Case Manager decision of December 4, 2023 denied entitlement under both the TMS and CMS policies.

AUTHORITY

Operational Policy Manual

Published

15-03-02 Traumatic Mental Stress

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

January 2, 2018

September 1, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find entitlement is in order for TMS. My reasons are explained below.

The worker representative submitted an Appeal Readiness Form dated July 24, 2024. In a telephone conversation on November 6, 2024, documented in claim file memo A0020, the worker representative confirmed they are seeking entitlement for TMS and loss of earnings (LOE) benefits from

November 17, 2023 to and including December 1, 2023.

The employer is not participating in the appeal and did not submit a Respondent Form.

According to operational policy 15-03-02, 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. 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.

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
being the object of workplace harassment that includes physical violence or threats of physical violence, and
being the object of workplace harassment that includes being placed in a life-threatening or potentially life-threatening situation.

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).

The Case Manager decision of December 4, 2023, determined the entitlement criteria were not met for TMS. It was the Case Manager’s conclusion that there was no clearly and precisely identifiable and objectively traumatic event that caused the worker’s mental stress reaction. The Case Manager determined the incident experienced by the worker was not life threatening and the worker was not the object of physical violence or death threats.

After considering the evidence, I am satisfied the worker was exposed to an incident at work that was both clearly and precisely identifiable, and objectively traumatic.

The worker reported a specific incident at work on November 16, 2023, when the worker was verbally abused by two boys and an adult woman presumed to be their mother, over an issue with a fare. That was a clearly and precisely identifiable event.

The operational policy describes potential events that would be considered objectively traumatic. One of the examples given is being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others.

The evidence supports that the worker genuinely and reasonably believed the boys were making serious threats of physical violence toward the worker. In reaching that conclusion, I specifically note the following evidence:

On the Worker’s Report of Injury/Disease (Form 6) dated November 20, 2023, the worker reported experiencing severe emotional trauma caused by the abusive behaviour and threats by the passengers on November 16, 2023, requiring medical attention and ongoing psychological support.
The worker also reported on the Form 6 that one of the teenage boys started using extremely abusive language, saying “[expletive], drive the bus” and threatening to call someone to “deal with me”. On an Intent to Object Form, the worker reported that the boys threatened that someone was coming to “teach me a lesson”. The boys were on a phone, telling someone to come to the bus. The worker did not know who the boys were calling and was afraid they intended to physically assault the worker. While verbally abusing the worker, one of the boys was banging on the bus.
Soon after the incident started, an adult woman arrived on the scene. The worker assumed it was likely the mother of one of the boys. The worker reported that the abusive behaviour intensified, because the woman engaged in similar abusive behaviour and started recording the worker.
The worker reported the incident to a supervisor, but no one came to the scene immediately to assist. The boys and the adult woman kept up the abusive behaviour for approximately 25 minutes before finally leaving the scene. Security arrived after the individuals had already left.
The worker noted the incident left them in a constant state of fear and anxiety, being afraid to leave their home in case the individuals involved found out where the worker lived.

I am satisfied this incident was objectively traumatic. The worker was stuck at the scene for approximately 25 minutes without backup or support. During that time, the teenage boys were verbally abusing the worker, aggressively banging on the bus, and threatening to take further action by calling someone. An adult woman arrived on the scene and also started verbally abusing the worker. The

language reportedly used by the teenage boys was implicitly threatening, when they claimed someone was coming who would “deal with” the worker or “teach the worker a lesson”. I consider it reasonable that the worker feared the verbal threats would escalate into physical violence, or that the teenage boys might call someone else to the scene and further escalate the situation.

In summary, I am satisfied the worker developed an appropriately diagnosed mental stress injury (Acute Reactive Depression), caused by a work related event that was clearly and precisely identifiable and objectively traumatic. The worker was the object of workplace harassment that included what the worker reasonably perceived to be threats of physical violence. Entitlement is in order for TMS.

Because I have allowed entitlement for TMS, I find it is not necessary to address entitlement for CMS.

According to operational policy 18-03-02, if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.

Regarding implementation readiness and benefits flowing from initial entitlement, the worker representative reported that the worker lost time from November 17, 2023 to and including

December 1, 2023. On the Form 7, the employer also reported there was lost time from the date of the injury and provided earnings information, including mandatory overtime for the four weeks prior to the injury. The Form 8 completed on November 17, 2023, indicated the worker was unable to work due to acute reactive mood disorder and that limitations would be in place for up to 14 days. There is no indication that modified work was offered by the employer. Based on the available evidence, I find full LOE benefits are in order from November 17, 2023 to and including December 1, 2023, subject to confirmation by the employer that the period of lost time is accurate. The appeal appears to be ready to implement.

CONCLUSION

I conclude initial entitlement is in order for TMS. Full LOE benefits are payable from November 17, 2023 to and including December 1, 2023, subject to confirmation by the employer that the period of lost time is accurate.

The worker’s objection is allowed.

DATED NOVEMBER 28, 2024

Helen Shaw

Appeals Resolution Officer Appeals Services Division