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# APPEALS RESOLUTION OFFICER DECISION
**DECISION NUMBER:**
20250016
**OBJECTING PARTY:**
Worker
**REPRESENTED by:**
WORKER REPRESENTATIVE
**RESPONDENT PARTY:**
Employer (not participating)
**HEARING:**
VIDEOCONFERENCE – October 3, 2024
**HEARD by:**
C. Reid, appeals resolution officer
**DATED:**
OCTOBER 30, 2024
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## ISSUES
The worker objects to the case manager’s decision dated July 26, 2022, which denied entitlement under the Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS) policies.
The worker also objected to the case manager’s letter dated June 28, 2024, which contained a formal determination that their position of Correctional Programs Officer (CPO) did not meet the definition of correctional officer set out in policy 15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers, therefore, the worker was not entitled to benefits under the presumption clause.
## Remedy sought
The worker is seeking entitlement to health care and loss of earnings benefits under any of the WSIB’s mental health policies.
## BACKGROUND
The worker was hired by the employer in 2008. They were originally hired as a Behavioural Technologist, from 2008 to 2018, prior to a promotion to CPO. As a Behavioural Technologist, the worker was directly involved in delivering group and individual counselling and crisis interventions. They were responsible for completing psychological interviews of offenders.
The worker attributed a mental stress injury to an event that occurred in 2017. The worker reported having flashbacks to this event, where the worker witnessed first-hand an offender being stabbed. The worker, who was working as a Behavioural Technologist at the time, was locked in an interview room with another offender, and they were not able to leave the room for an hour until the door was unlocked by a corrections officer. The worker had to walk through large puddles of blood to exit the scene. The worker reported they were pregnant at the time, and continued working until their maternity leave, but expended a great deal of energy suppressing the memories and feelings from the incident until the same stabbed inmate returned to the institution. The worker reported this resulted in being flooded by memories and reliving the incident. The worker’s last day of work was June 9, 2022. The worker had a pre-approved annual leave that was to start on June 16, 2022. The worker contacted their employer during their leave and advised that they would not be able to return to work.
On May 18, 2022, the worker sought medical attention from Dr. Hamer, Psychiatrist, who provided a diagnosis of PTSD and other non-work related DSM5 diagnoses. This was the accepted accident date in this claim. The Employer’s Report of Injury (Form 7) noted that on May 18, 2022, the worker had been employed as a CPO for one month. The Form 7 further indicated that on May 18, 2022, the worker reported to their employer that they were suffering from a mental health injury from reading offender files and providing trauma counselling sessions to offenders. The worker also identified one particular incident from 2017 in which an offender was slashed in the face and body.
The Worker’s Report of Injury (Form 6) dated June 22, 2022, noted the worker was claiming a mental stress injury from cumulative events. In this form, the worker reported having flashbacks to when they witnessed an offender being stabbed by another offender. After this incident, they began to experience panic when interviewing inmates.
The worker received a medical note from their family doctor, Dr. Glassco, indicating that they would be off work for medical reasons as of June 24, 2022.
In a decision dated July 26, 2022, the case manager denied the worker’s claim for mental stress as the incidents described did not meet the criteria outlined in the CMS or TMS policies.
The worker submitted additional information and, in a letter, dated September 6, 2022, the case manager advised that they were upholding the decision from July 26, 2022. Despite the new information provided by the worker, the case manager found they were unable to relate the worker’s mental stress injury to the incident from 2017.
In a reconsideration letter dated November 4, 2022, the case manager considered the new information provided and upheld the denials dated July 26, 2022, and September 6, 2022.
In a letter dated September 18, 2023, the case manager advised that the worker did not qualify as a first responder under policy 15-03-13 Post-Traumatic Stress Disorder in First Responders and Other Designated Workers and therefore, entitlement was not considered under this policy. The case manager did not provide any rationale for their conclusion and noted that this was not a new entitlement decision and the worker’s prior objection provided in the reconsideration letter dated November 4, 2022, applied.
## AUTHORITY
**Operational Policy Manual**
**Published**
15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers
July 20, 2023
## ANALYSIS
I have carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. I find the worker has entitlement under the presumption set out in policy 15-03-13.
### Worker Position
In the submission received October 4, 2024, the worker representative argued that the position of Behavioural Technologist in a correctional institution meets the definition of point 10 in policy 15-03-13. As a behavioural technologist, the worker was directly involved in, and had significant responsibility for, the care, health, discipline, safety, and custody of inmates confined in correctional institutions.
In an undated submission, the worker representative argued that the worker’s case ought to be considered under policy 15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers, as this policy applies to “workers in correctional institutions”. The appendix in the policy provided the following clarifications: “correctional services officer, an operational manager, or a worker who is employed at a correctional institution to provide direct health care services by assessing, treating, monitoring, evaluating and administering medication to an inmate confined to a correctional institution” and “a worker who is directly involved in the care, health, discipline, safety and custody of an inmate confined to a correctional institution, but does not include a bailiff, probation officer or parole officer”.
In the areas of care and health, the worker provided group and individual counseling, crisis interventions and follow-up services. The worker completed psychological interviews to determine the needs of the offenders in order to develop and deliver effective treatments. The worker provided direct counselling to offenders, often in crisis situations. The worker was further required to assess offenders’ risk or suicide and take appropriate action. The worker had to have the ability to administer self-reporting psychological testing and write in depth mental health assessments as well as to assist in the completion of psychological risk assessments and to research and prepare therapeutic material. The worker required knowledge of theory, principles and techniques of psychology relating to mental health assessments and the delivery of psychological services. The worker had the authority to make referrals to appropriate disciplines to assist with the offenders’ mental health needs and to intervene therapeutically with personality/behavioral disorders or with mentally ill offenders. The worker was a contributing member of this psychology department within the institution.
The worker had further responsibilities in the areas of discipline, safety, and custody of inmates. Their position required knowledge of the institution, its mandates, reporting relationships and preventative security measures. The worker was expected to be able to use their knowledge of counseling, negotiating, and crisis/suicide prevention techniques to deal with potentially violent situations. Similarly, the position required the worker to have the ability to interpret body language when dealing with violent offenders, in order to accurately assess safety issues for themselves and others, as well as the ability to identify emergency and security situations.
As a behavioral technologist, the worker had a responsibility to respond to emergency situations as a Peace Officer. Their position had a peace officer designation, which means that according to the employer’s policies, the worker had the rights and obligations of a peace officer as described in Annex A. Specifically these rights and obligations included the use of force, the power to suppress, rights and obligations around firearms, restricted and prohibited weapons, ammunition, and the responsibilities of a peace officer, such as the responsibility to suppress a riot and prevent escape.
As a behavioral technologist, the worker received accreditation, for work duties that included the custody of inmates, the regular supervision of the offenders, or the support programs related to the conditional release of those offenders within penitentiaries or community parole offices.
The employer representative provided a copy of the job description, an excerpt from the worker’s Collective Agreement, and a paystub, in support of their argument that the Behavioural Technologist position fits the definitions set out in policy 15-03-13 for the purposes of considering entitlement.
The representative also argued that the CPO job description demonstrated that this position also matched the definition set out in policy 15-03-13. The worker was directly involved in and has significant responsibility for the care, health, discipline, safety, and custody of the inmates.
In the areas of care and health, the worker provided group and individual counseling to inmates in the program environment and supporting, counselling, and made appropriate referrals for effective interventions during times of personal crisis, which may be prompted by program interventions. They must have knowledge of counselling, negotiating, crisis and suicide prevention techniques to deal with potentially volatile situations and reduce any danger an offender may pose to themselves, the institution, or others.
In the areas of discipline, safety, and custody of inmates, the worker frequently works alone with and has custody of inmates. They deliver programs in a classroom setting to offenders who are often violent, manipulative, or disruptive. They must maintain discipline in these group situations and ensure not only program integrity but also the personal safety and security of each participant. Their job description identifies the ability to interpret body language as necessary and beneficial, particularly when dealing with violent offenders, in order to accurately assess safety issues for self and others.
The worker must supervise offenders on a daily basis while conducting programs and while doing so must maintain sustained attention to prevent breaches of security, which could affect the safety of offenders and staff. They are also required to have in-depth knowledge of the physical layout of the institution in which they work in order to contribute to the dynamic security of the institution. They are responsible for ensuring that offenders comply with all pre-established rules of conduct to ensure positive change, thereby reducing the risk to the general public. The worker has the authority to remove offenders from a program for non-compliance and has the authority to recommend disciplinary measures for a breach of the rules of conduct. When working in the community, the worker can be required to work in the evening with little security, and with a maximum of up to 12 offenders. In these situations, they can be required to ensure the security of the area and the participants.
Further, the position has a Peace Officer Designation, which means that, according to the employer’s policies, the worker has the rights and obligations of a Peace Officer as described in Annex A. These rights and obligations include the Use of Force; the power of arrest; rights and obligations around firearms, restricted and prohibited weapons, ammunitions; and the responsibilities of a Peace Officer, such as the responsibility to suppress a riot and prevent escape. If the worker fails in their duties as a Peace Officer, they are liable to two years imprisonment in the event that they fail to suppress a riot or perform a legal duty, thereby permitting a person whom they had in lawful custody to escape; and five years if they willfully permit someone to escape from lawful custody. Responding to emergency situations as a Peace Officer increases the potential for psychological stress and physical assault.
In their role as a CPO, the worker had workplace exposure to high-conflict situations with potential for violent incidents. They have daily interactions with offenders who may be demanding, non-compliant, hostile, or confrontational in group or individual settings. They face risk to their physical safety and continuous stress from daily contact with offenders and offender groups. Risk to their physical safety increases if adversarial situations cannot be diffused, and psychological stress can result from defusing potentially volatile situations. Occasional exposure to offenders under the influence of intoxicants also increases the potential for physical assault.
Policy 15-03-13 grants entitlement to first responders or otherdesignated 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. At point 10, I noted that this policy covers “workers in correctional institutions”. The appendix, a correctional institution means a correctional institution as defined in section 1 of the Ministry of Correctional Services Act, or a similar institution operated for the custody of inmates. The policy also defines a correctional services officer as a worker who is directly involved in the care, health, discipline, safety, and custody of an inmate confined to a correctional institution, but does not include a bailiff, probation officer or parole officer.
I find it relevant that point 10 did not simply state correctional services officer. In my mind, if it was the intent of this policy to only extend coverage to workers that were classified as correctional services officers then point 10 would have listed that job title and not the broader use of “workers in correctional institutions”. In a plain language reading of the policy, I find it reasonable to accept other workers in the institution who have care and control over the inmates, even if they do so under a job title other than correctional services officer. In this case, the worker was responsible with working one on one or in group setting with offenders, providing counselling for mental health issues. The worker was not simply employed by the correctional institution, they were an integral part of the treatment and care team responsible for the inmates. I find this sufficient to meet the definitions in policy 15-03-13.
As such, I find it appropriate to continue with a review for entitlement under the presumption set out in policy 15-03-13.
### Presumption
If a first responder files a PTSD claim within the time limits for filing a claim, and if the three criteria set out below are met, the PTSD is presumed to have arisen out of and in the course of the first responder's employment, unless the contrary is shown. (Special criteria apply to transitional claims as set out below.)
1. Date of employment
The first responder must have been employed as a first responder for at least one day on or after April 6, 2014.
The worker has been employed as a first responder as per my finding above, since 2008 up to the date they stopped working in May 2022 due to their PTSD symptoms. To my knowledge, the worker and employer continue to have an employment relationship.
2. Date of diagnosis
The first responder must have been diagnosed with PTSD by a psychologist or psychiatrist:
- on or after April 6, 2014, and
- no later than 24 months after the day he or she ceases to be employed as a first responder if he/she ceases to be employed as a first responder on or after April 6, 2016.
The worker was diagnosed on May 18, 2022, the date of injury in this claim, by Dr. Hamer, Psychiatrist.
3. Type of diagnosis
The first responder must have been diagnosed by a psychologist or psychiatrist with PTSD as described in the DSM-5.
Dr. Hamer, Psychiatrist, confirmed the diagnosis of PTSD related to incidents at work.
Noting the above, the presumption that the worker’s PTSD diagnosis is related to their work duties has been met. I find the evidence insufficient to refute this presumption. I noted that in their submissions, the worker provided reasonable explanations for why they did not start a WSIB claim until 2022 when the index injury occurred in 2017. I refer to the following evidence that supports the work-relatedness of the mental stress injury and that the presumption is not refuted.
The worker explained that the traumatic event in 2017, involved witnessing an inmate being stabbed multiple times, being locked in the room with the inmate and walking through blood. The worker reported an onset of significant symptoms and that they avoided the area where the incident occurred for as long as they could. The worker reported having to go back to work in the max unit about 3-5 weeks later and while in the same interview room a fight broke out in the max unit. Again, they were locked in the interview room with an offender for 30-40 minutes. The worker reported that gas was deployed, they could hardly breathe, but they could hear the fight occurring and people yelling. The worker reported that they did not get any assistance from the corrections officers until the fight ended. The worker further noted they were pregnant at the time of that incident. They were not only fearful for their own life but for that of their young child. The worker indicated that they did not want to report their symptoms out of fear of being seen as weak and they were focused on completing the necessary steps for maternity leave. They felt that since they were going to have a year off for their maternity leave, that they could just “hang in there” until they went off work. They gave birth in the fall of 2017. The worker reported having ongoing symptoms while off on maternity leave, but these were much less intense as they were not in the triggering environment. They also noted they were home caring for two older children and a newborn, and they did not have time to deal with their symptoms, so they suppressed/ignored them.
The worker explained that they were not aware of the impact of the 2017 event and the compounding events had on their mental health until they were unable to cope any longer and sought help. The worker noted that they were feeling “burnt out”, which is one of the main symptoms associated with cumulative PTSD. The worker also noted that when they described “added pressure at work”, they were referring to working with an inmate that had recently overdosed and was likely to do so again. The worker explained they did not realize this was a trigger for them.
Upon returning to work in September 2018, the worker stated that their symptoms “returned with full force”. They noted that they were able to do most of their work in the medium unit, as they found this unit slightly less stressful. The worker stated that even when they went back to work, they had so much going on in their lives that they could not take the time to focus on their symptoms, but eventually they did see their family doctor for a prescription. They also utilized the Employee Assistance Program (EAP) through their workplace on several occasions. While they noted the counsellors did help them cope with their symptoms, they found the counsellors did not understand trauma or the correctional environment, so the worker did not find these interventions effective, so they stopped using the services.
The worker continued to work from 2018 to 2020 when they were sent home to work due to COVID-19. Until 2021, they delivered their programs remotely. In 2021, the returned to the work site but the programs were delivered in a modified way (one-on-one). The worker stated their symptoms were present, but they were in survival mode; dealing with a pandemic and taking care of three children while their husband worked a lot of overtime. They did not have the time or energy to address their symptoms.
In December 2021, the worker noted they were having difficulty completing daily tasks due to their mental health symptoms. They felt exhausted from trying to manage everything in their life, all while having nightmares, flashbacks and dealing with hypervigilance. In January 2021, they started therapy with a Psychotherapist. With medication, treatment and being able to work from home a few days per week, they were able to manage. In late 2021, they were assigned to teach a program in the max unit. They were teaching the brother of the offender they had witnessed being stabbed in 2017. During the program, the stabbed inmate’s brother mentioned that the stabbed inmate was returning to the max unit soon. The worker found this triggering and resulted in an increase in symptoms. The worker noted a sense of panic and feeling of being unsafe. When the inmate that was stabbed returned to the max unit, their nightmares and flashbacks worsened.
The worker noted that during this time they were employed as an acting correctional program officer and hoping to secure full time employment. They were concerned that if they reported having issues, they would not get hired. The worker reported that as their mental health declined, they began making mistakes at work, were unable to sleep, were crying often and having daily flashbacks. In May 2022, they were assessed by Dr. Hamer who provided a diagnosis of PTSD. The worker continued as long as they could. When on an annual leave, they were terrified about returning to work. It was at this point that they submitted for WSIB.
The worker further explained that in their initial submission to the WSIB, they only spoke about the 2017 incident as this was the main trigger, however, this was not the only life-threatening incident they had been involved in at their workplace. They referred to death threats from an inmate. They also noted that over their 15-year career, they had heard many work-related traumatic events by speaking first had with the traumatized individuals. The worker advised that they had been locked in rooms with inmates and unable to get out, they had inmates lashing out in the classroom (e.g., yelling, screaming, throwing books), or providing support to staff following traumatic events (i.e., speaking to correctional staff after they were assaulted, meeting with nursing/health care staff following an inmate’s death). The worker noted that they are around people who were in prison for murder, so it is not difficult to accept that these inmates have the ability to take the worker’s life.
The worker noted they also suffered trauma from being threatened by inmates, reading horrific file information and inmates attempting to intimidate them. The worker stated that due to the cumulative nature of these traumas and the culture in a correctional facility, they did not reach out for help.
In their submission included with their Intent to Object form dated September 6, 2022, the worker explained that their family doctor did not “speak specifically to the 2017 incident” because the worker did not speak to them about their mental health in detail, preferring to ask for a referral to a psychiatrist.
In a letter dated October 17, 2023, the worker’s family doctor, Dr. Glassco, confirmed that the worker had never been diagnosed with PTSD prior to July 20, 2023. Dr. Glassco believed the worker was initially misdiagnosed with depression and anxiety related to hormone fluctuations further to PMS and pregnancy. At the time of the index incident in 2017, the worker was pregnant, and they were treated for depression and anxiety with a variety of medications, which were ineffective. In this letter, Dr. Glassco documented the conversation they had with the worker in which the worker described the incident from 2017 along with the symptoms they had when they returned to work after their maternity leave in 2018. Dr. Glassco noted that sometime in 2018, the worker was treated for hormonal causes of depression with little benefit. The worker was referred to Dr. Prost, who prescribed Prozac. Dr. Glassco opined that the diagnosis of PTSD arose from the 2017 incident. They stated that each time the worker had to work in maximum security following the incident in 2017, they experienced symptoms of PTSD that simply went unrecognized until Dr. Hamer put it all together in 2022.
The psychiatry consult report dated May 18, 2022, noted that the worker stated that they felt that “trauma [was] a major issue for [them] right now”. The worker stated they had experienced trauma both in their childhood as well as in their professional career. The report speaks to the worker’s recall of these past childhood traumas and the worker’s assumptions based on what they could recall. The worker also reported having observed and heard many traumatic things while working as a therapist in a correctional setting. The worker reported the incident of seeing an inmate being stabbed just outside of the classroom they were locked in. The worker reported avoiding this room for months following the incident and not working in high-risk areas due to their fears. The worker endorsed having flashbacks and nightmares related to these incidents and endorsed feeling hypervigilance and was easily startled. The worker went on to report increased symptoms from added pressure at work and that they were getting burned out. The worker changed position, now working as a full-time program facilitator and found the reduction in one-on-one treatment much better. In their new role they do not have to listen to the dark stories from the inmates. The worker endorsed having two patterns to their moods, one more reactive and triggered by interpersonal things, the other related to their menstruation cycle and barometric changes in the weather. The worker explained they had anxiety related symptoms, and that they worry about social situations, will sometimes leave a situation, or overthink what they have said. They avoid social situations particularly if they do not know people. The worker reported being seen by Dr. Prost 4 years earlier and they were provided with a diagnosis (not PTSD) and prescribed medication.
I also noted the employer’s submission that there was a disciplinary investigation for a privacy breach and that the worker took their annual leave of absence and it was not until they were to return to work on June 24, 2022, did the worker advised they would be off for medical reasons.
I acknowledge that the worker had pre-existing/co-existing mental health issues as well as some employment issues, but I find these do not rise to the level where they outweigh the impacts of the traumas witnessed at work and as such, do not refute the presumption.
I find the worker is entitled to health care and LOE benefits. I remit back to the operating area to determine the nature and extend of these benefits, subject to the usual rights of appeal.
## CONCLUSION
The objection is allowed.
DATED October 30, 2024
C. Reid
Appeals Resolution Officer
Appeals Services Division
minicounsel