Worker v. Employer, 2024 CanLII 140466

20250006

REPRESENTED by:

Employer (not participating)

VIDEOCONFERENCE – September 17, 2024

HEARD by:

DATED:

S. Waters, appeals resolution officer

September 24, 2024

ISSUE

The worker objects to the Case Manager’s (CM’s) April 19, 2023 decision, which denied entitlement to benefits for a mental stress injury under the Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS) policies.

BACKGROUND

The worker’s date of hire was January 21, 2019. On November 30, 2022, the worker submitted a Worker’s Report of Injury/Disease (Form 6) claiming anxiety, panic attacks, and posttraumatic stress disorder (PTSD) due to her work as an addictions Case Manager. In written and verbal statements, the worker described stress related to the behaviour of clients at a drop-in centre where she worked.

The worker was at this drop-in centre from January 2019 until April 2020, and then remained off work claiming the Canada Emergency Response Benefit (CERB) until October 1, 2020. The doctor first documented the worker’s report of stress due to working with aggressive clients on February 26, 2020.

The worker returned to work in October 2020 but worked partially from home from January 2021 until September 2022 due to the pandemic and the worker’s pre-existing health conditions. The worker’s doctor indicated the worker had anxiety and depression on December 15, 2021. The worker returned to work at a different office near the original drop-in centre from September 2022 until she stopped working as of January 23, 2023. The worker started seeing a psychotherapist on December 7, 2022.

The CM wrote a letter on April 19, 2023, denying entitlement to benefits for a mental stress injury. They explained that the incidents described by the worker were not objectively traumatic as required by the TMS policy. The CM also explained they could not identify a substantial work-related stressor that was excessive in intensity and/or duration when compared to the normal pressures and tensions experienced by workers in similar circumstances. The worker and her representative objected to this decision. The CM confirmed their decision to deny entitlement for a mental stress injury in reconsideration letters dated February 9, 2024 and May 24, 2024.

The CM wrote another letter on May 27, 2024, changing the accepted date of injury in the claim to September 2, 2022. The CM determined that a medical report on this date identified the worker reporting symptoms related to work stressors, and these symptoms eventually led to a confirmed diagnosis.

Worker’s Oral Testimony

Before working with the accident employer, the worker provided counselling and therapy to youth in a community clinic. The worker described herself as a free spirit and full of life. The worker went out with friends, travelled by herself, and enjoyed music, dancing, cooking, and learning languages. The worker denied any prior mental health or psychiatric issues, though she confirmed attending a few counselling sessions in 2014 or 2015 to gain insight about a difficult personal relationship.

The worker began working with the accident employer in January 2019 on a full-time basis at Jobsite A. The worker explained this location had offices for the Case Managers on the first floor of the building and a drop-in centre for clients in the basement. The worker described there being a front door to the building as well as a back door to the drop-in centre, but explained clients could access the main part of the building via door or elevator. The worker stated the drop-in centre was open to homeless individuals as well as housed individuals with criminal, mental health, and/or substance use issues.

Before COVID, the worker’s typical workday involved completing administrative work in the office as well as leaving the office to meet with clients. This could include visiting clients at their homes or accompanying them to appointments. Occasionally, the worker would be responsible for helping in the drop-in centre by covering reception and making calls to clients, probation officers, and booking medical appointments.

The worker explained she was diagnosed with, and underwent surgery for, thyroid cancer in May 2019, but was able to return to work and function without any difficulties after this procedure. However, the worker stated as she worked with these clients, she started feeling more exhausted, stressed out, depressed on the weekends, and had difficulty sleeping. She saw her doctor sometime in summer 2019 who stated “it could be stress” but only recommended Advil for headaches.

When COVID first occurred in spring 2020, the worker and other Case Managers were deemed essential and required to attend every shift at Jobsite A drop-in centre. They would continue seeing clients in the community but only during a crisis. The worker was responsible for completing COVID screening at the main door for the drop-in centre. This exposed the worker to witnessing clients swearing (at her and others), physical fights between clients, and clients using substances outside. The worker stated she felt physically and mentally stressed out at this point.

The worker’s doctor advised her to go off work and collect CERB due to her reduced immune system following the cancer diagnosis and treatment. The worker was off work receiving CERB from April 2020 to October 2020. The worker’s doctor provided a note indicating the worker should not work in the drop-in centre due to the violence of some clients when she returned in October 2020. However, the worker reiterated that her office was in the same building as the drop-in centre so she still saw and heard clients. Staff had walkie-talkies so she would overhear about violence occurring in the drop-in centre. The worker was also still responsible for visiting clients in the community as part of her regular job duties.

The worker explained staff were allowed to partially work from home between January 2021 and September 2022 due to the changing circumstances surrounding COVID lockdowns. This meant the worker could complete her administrative paperwork at home for 1-2 hours per shift. But the remainder of each shift was still spent visiting and accompanying clients in the community. The worker stated that by January 2023, her symptoms continued to worsen and she started having panic attacks. The worker stopped working as of January 23, 2023, and remains off work at this time on long-term disability.

The worker stated that in comparison to what she was like before 2019, she is very sad about the person she has become. She has difficulty sleeping, eating, and leaving the house. She experiences anxiety, flashbacks, panic attacks, anger, and isolation. The worker now only has one friend, no interest in prior hobbies, and has difficulty leaving the house because being around people, noises, and screaming triggers her symptoms. The worker remains in active psychotherapy treatment.

The worker testified her belief that her mental health issues are solely related to the frequency of violent incidents she was exposed to while working with unpredictable and unmedicated clients as part of her employment. She stated it was especially scary when a client was taller or bigger than her since she is petite (“barely 5ft”). She stated there were no other triggers or contributors other than work affecting her mental health. The worker explained she reported many incidents to her employer, but was often discouraged from completing incident reports. Although the worker could not recall when some incidents occurred, the worker described incidents in detail to explain the unpredictable and violent working environment she was exposed to, which I will summarize below.

In terms of the work environment in general, the worker explained clients were allowed to use the staff washroom during and after COVID. This meant the worker sometimes walked in on a client screaming and yelling, using drugs or passed out on the floor after using drugs, or self-harming. In one instance, the worker walked in on a client hitting their head repeatedly against the mirror. The worker testified this always made her apprehensive about going to the washroom because she did not know who might be in there or what a client might be like, so she and other staff members sometimes used a washroom in a café across the street. Similarly, clients would often use aggressive language at her, other staff, or other clients in the drop-in centre and throw food or items. The worker stated a client once spat on her without provocation and laughed loudly before walking away.

The worker also described multiple specific incidents she experienced during her employment between 2019 and when she stopped working in January 2023.

Sometime in 2019, the worker went to a building to see a client in the community. While inside, the worker suddenly started choking and could not breathe. Two housing workers who worked in the building found her and took her outside until the worker could breathe again. The worker later found out through security cameras that one of the employer’s clients who lived in the building had sprayed pepper spray in the building. The worker explained this was very stressful for her since she had pre-existing asthma and thyroid cancer.

Around the same time, the worker went to that same building to visit a client. Suddenly, she heard someone yell “Look out! He has a knife!” She hid and learned that another client was walking around the halls holding a knife. The worker was very scared the client would find her and stab her. The worker explained the police arrived and arrested the client, who was later released the same day.

Sometime before going on CERB, the worker was in the office with two other staff members. The worker explained their office had glass windows. Suddenly they heard a client screaming and shouting while standing outside the office. The client was violent and hit the wall by a window with their fist, which created a hole in the wall. Over a walkie-talkie, a manager told the worker and other staff members to stay in the office and not come out. The worker stated she was very scared that the client would break one of the windows and hurt them. The worker remained in place until the client went to the washroom, then grabbed her stuff with the two other staff members and ran out of the office.

In early 2020, the worker testified she was solely responsible for dealing with an elderly male client (approximately 65 years old) who was tall (5’10” to 6’0”) and had dementia with volatile temper fits. She explained this client was her sole responsibility because no one else wanted to deal with him. This client would frequently be sitting at the drop-in centre having tea or coffee and then suddenly throw food on the floor, start yelling and swearing, and hit the table with a fist. The worker also described two specific violent incidents with this client while providing service in the client’s home.

On one occasion, the worker opened the fridge to see if the client had or needed food. Suddenly, the client cornered her against the fridge and hit the back of the worker’s head with a fist. The worker stated she was very scared, thought she was going to die, and did not think anyone would know what happened to her. The worker tried to distract the client until he stepped back and then she ran out of the unit. On another occasion, the worker was helping with laundry in the client’s apartment. Suddenly, the client was standing in front of her yelling and holding a knife. The worker again described being scared for her life.

Sometime after the worker returned from CERB, the worker went to visit a female client in the community. The worker explained the door for the client’s apartment was located at the top of the stairs. The client answered the door and appeared to be under the influence of substances. The client said she did not want to see the worker but asked for tokens. The worker answered that she was not carrying tokens at the time. The client suddenly got very angry and rushed towards the worker as if to push her down the stairs. The worker stepped back quickly and ran down the stairs to lock herself in the housing agency office located in that building. The worker testified it was her belief that the client would have pushed her down the stairs if she had not run away. When the worker reported this incident to her supervisor, the worker stated the supervisor said the client was “having a bad day.”

Shortly before the worker went off work (in December 2022 or early January 2023), the worker was visiting another female client in the community. While standing at the door, the worker stated a big, scary-looking man arrived and demanded money from the client. When the client did not have money, the worker stated the man used bad language and got very angry, volatile, and threatening. The man tried to take the laptop the worker was carrying, demanded money from her, then threatened the client and worker with a knife if he did not get his money. The worker testified she was scared because they were at the back of a building and no one would know if the man stabbed them. The worker said she would call the police and the client said she would pay later that day so the man left. The worker stated the client asked to be relocated to a shelter for a few days, and the worker avoided going to the building for a few days.

Worker’s Position

It is the worker representative’s position that the worker is entitled to benefits for a mental stress injury under the TMS or CMS policy. They argued the worker was capable of working without any mental health issues before 2019, but developed significant and ongoing psychological symptoms since starting her employment with the accident employer. The worker’s representative argued the worker’s experiences in the workplace were objectively traumatic and constituted substantial work-related stressors that caused the worker’s PTSD, depression, and anxiety. To support their position, the representative referenced multiple written statements and medical reports on file.

In the event the appeal is allowed, they seek all benefits flowing from the initial entitlement allowance. This includes entitlement to healthcare benefits as well as loss of earnings (LOE) benefits for the worker’s treatment and time off work due to her mental stress injury. If entitlement cannot be granted under the TMS or CMS policy, they requested a review of entitlement for a psychotraumatic disability.

Employer’s Position

The employer did not return the Participant Form. They are not participating in the appeal.

AUTHORITY

Operational Policy Manual

Published

15-03-02 Traumatic Mental Stress

15-03-14 Chronic Mental Stress

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

January 2, 2018

September 1, 2021

Appeals Services Division’s Practices and Procedures, May 2024. Section 5.4: Benefits flowing.

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:

Initial entitlement for PTSD is in order in accordance with the TMS policy;
Entitlement to full LOE benefits is in order effective January 23, 2023.

The worker’s appeal is allowed.

Assessment of Entitlement

Initial entitlement for PTSD is in order in accordance with the TMS policy.

It is the worker representative’s position that the worker is entitled to healthcare benefits because her mental stress injury arose out of and in the course of her employment. Information on file supports this position. Although entitlement was initially reviewed under the TMS and CMS policies, I find entitlement is in order specifically in accordance with the TMS policy. Policy 15-03-02 (Traumatic Mental Stress) states the following:

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.

The policy states that traumatic events include, but are not limited to:

Being the object of physical violence
Being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others.

Policy 15-03-02 also explains:

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.

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.

I find there is no dispute that the worker has an appropriately diagnosed mental stress injury. The worker’s doctor diagnosed her with PTSD on a Health Professional’s Report (Form 8) dated March 29, 2023. This Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis was confirmed by the worker’s treating psychotherapist in a report dated April 5, 2023, and by a psychiatrist as part of an Independent Medical Examination (IME) report dated August 25, 2023. For the reasons that follow, I find the balance of evidence establishes that this appropriately diagnosed mental stress injury was caused by multiple traumatic events arising out of and in the course of the worker’s employment.

Through verbal statements to WSIB staff, written statements on file, and sworn testimony during the hearing, the worker described a variety of stressors in her job. She provided a detailed explanation of the physical worksite setup and her job duties for interacting with clients in the drop-in centre and the community. The worker also described the types of clients she was required to interact with as part of her regular work. This included clients with mental health conditions, addiction/substance issues, and criminal backgrounds and/or behaviour. The worker’s statements make it clear that the nature of these dysregulated clients resulted in an underlying tone of unpredictable violence and threats of violence in the locations the worker was required to be to perform her job duties.

I also find some of the incidents described by the worker to be particularly compelling in terms of granting entitlement for traumatic mental stress. The first incident I find significant is in 2019 when the worker was visiting a client in a building and was told to hide while another client walked the halls with a knife. The worker was essentially required to shelter-in-place due to a threat of physical violence, and the worker testified to her belief that the client would find and stab her.

Similarly, shortly before the worker went on CERB, the worker was required to shelter-in-place with two other staff members in the office while a volatile and violent client damaged a wall outside the glass office. The worker again stated her fear that the client would break the office windows and hurt her or the other staff members. I find it significant that the worker testified her manager used a radio directing them to shelter-in-place until the client left as this implies a genuinely believed threat of physical violence if the worker was to leave the office while the client was in the area.

The worker testified to being the object of physical violence, and the object of threats of physical violence, on at least two occasions when providing care to an elderly male client in early 2020. These instances involved the client physically hitting the worker on the back of the head with a fist while cornering her against a fridge, and confronting the worker with a knife while she assisted with laundry. Similarly, in times between October 2020 and January 2023, the worker described two instances where she believed a client intended to harm her by pushing her down the stairs, and when a male individual threatened the worker and a client with a knife for money.

Based on the balance of evidence, I have accepted these statements as accurate and concluded it is reasonably likely these incidents occurred for multiple reasons. The worker has provided sworn testimony detailing the events and I find her testimony to be credible. Her testimony remains consistent with the more contemporaneous verbal and written statements provided to WSIB staff and in writing on file. The employer also has not provided any statement or documentary evidence to counter the legitimacy of the worker’s claims about these incidents occurring.

Additionally, chart notes from the worker’s doctor mention the worker’s reports of stress and anxiety related to working with aggressive clients in 2020, 2022, and 2023. In particular, I find it relevant that the family doctor noted the worker was stressed due to working with aggressive clients as early as February 26, 2020, and documented on November 16, 2022 that the work environment, violent clients, verbal abuse, and loud voices/sounds worsened the worker’s anxiety symptoms.

For these reasons, I find the balance of evidence supports the working environment and these specific violent incidents occurred as described by the worker. Regardless of whether these types of events were considered “normal” for the worker’s job, they demonstrate the worker was exposed to a combination of physical violence and threats of physical violence while performing her job duties in the course of her employment between 2019 and early 2023. Based on this and the totality of evidence, it appears the worker was employed in a high stress work environment and experienced multiple objectively traumatic events including being the object of physical violence and the object of threats of physical violence that the worker believed to be serious and harmful to herself as well as nearby co-workers and clients.

Considering the above, I am satisfied the worker has an appropriately diagnosed mental stress injury caused by multiple traumatic events arising out of and in the course of her employment. I find the worker is entitled to healthcare benefits for traumatic mental stress and specifically the diagnosis of PTSD as a result. Since I already determined initial entitlement is in order under the TMS policy, I find it would be redundant and thus unnecessary to review entitlement under the CMS policy.

Entitlement to full LOE benefits is in order effective January 23, 2023.

In the event the appeal was allowed, the worker’s representative seeks benefits flowing including LOE benefits for the worker’s time off work. I find I have jurisdiction to consider this issue based on section 5.4 of the Appeals Services Division’s Practices and Procedures. This section states:

In all cases, the benefits that flow from a decision will be considered part of the issue agenda and included in the Appeals Resolution Officer’s decision. The Appeals Resolution Officer will be responsible for ruling on benefits only to the extent that reliable information is either contained in the file or readily available…

It is the worker representative’s position that the worker is entitled to LOE benefits because she was off work as a result of her work-related mental stress injury. Information on file supports this position. When making my decision, I considered Policy 18-03-02 (Payment and Reviewing LOE Benefits), which states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits beginning when the loss of earnings begins. The policy adds:

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 process.

Based on the worker’s testimony and documentation on file, the worker started losing time from work as a result of her mental stress injury on January 23, 2023. I note that even though the Employer’s Report of Injury/Disease (Form 7) is dated February 10, 2023, the employer documented that the worker had returned to her regular job and had not lost any time and/or earnings. I am unable to identify any documentation following the Form 7 that shows the employer offered modified duties before, during, or after the worker’s stoppage of work.

There are multiple medical reports on file supporting the worker’s time off work due to her mental health condition from January 23, 2023 onward. The worker’s family doctor wrote a note to this effect dated January 18, 2023. The March 29, 2023 Form 8 also states the worker was unable to work in any capacity until at least April 21, 2023 due to work-related PTSD, anxiety, and panic attacks. In a report dated April 5, 2023, the treating psychotherapist stated the worker’s PTSD symptoms progressed to the point of interfering with her ability to function in all aspects of her life and resulted in a complete leave from work. The psychotherapist indicated this remained the case at the time of the report date.

The family doctor wrote another note on April 10, 2023. The note extended the worker’s time off work until at least July 21, 2023. Within an IME report dated August 25, 2023, a psychiatrist assessed the worker and concluded her compensable PTSD rendered her disabled from performing the essential tasks of her employment and from returning to work in any capacity at that time. The last medical report on file for my review is dated December 20, 2023. The treating psychotherapist noted the worker was attending weekly treatment sessions and continued to exhibit significant levels of difficulty in daily functioning.

I find available clinical evidence establishes the nature and severity of the worker’s compensable PTSD completely prevented her from returning to any type of work from January 23, 2023 until at least December 20, 2023. There is no contrary medical report on file indicating the worker was capable of resuming some work or her pre-injury work during this period. As a result, I find the worker is entitled to full LOE benefits effective January 23, 2023 until December 20, 2023 inclusive.

I find there is insufficient evidence on file for me to fairly review entitlement to healthcare and LOE benefits beyond December 20, 2023. This is noting the worker’s testimony that she remains in active treatment and off work but the last medical report available on file is dated December 20, 2023. With this in mind, I will return benefits flowing to the operating area to collect updated evidence regarding the worker’s condition and review ongoing entitlement to healthcare and LOE benefits in the claim as appropriate.

CONCLUSION

I find:

Initial entitlement for PTSD is in order in accordance with the TMS policy;
Entitlement to full LOE benefits is in order effective January 23, 2023.

The worker’s appeal is allowed.

DATED September 24, 2024

S. Waters

Appeals Resolution Officer

Appeals Services Division