Worker v. Employer, 2024 CanLII 34667

Appeals Resolution Officer Decision

Decision Number: 20240021

Objecting Party: Worker

Respondent: Employer

Represented by: Employer Representative

Hearing: Videoconference – March 20, 2024

Heard by: Amy Woodworth, Appeals Resolution Officer

Dated: March 27, 2024

Issues

The worker is objecting to the Case Manager’s (CM) decision dated February 14, 2022, regarding the following issues:

1. The denial of presumptive entitlement to Posttraumatic Stress Disorder (PTSD) in First Responders and Other Designated Workers.

2. The denial of entitlement to Chronic Mental Stress (CMS)

Background

On November 29, 2021, this sergeant reported a mental stress injury related to workplace incidents and sought medical attention for it the following day. The worker began losing time from work the following day.

On the Worker’s Report of Injury/Disease (Form 6), the worker reported the psychological injury was due to being bullied at work based on their disability and need for accommodation. They reported that they had a disability but had been triggered during a recent event, and that is when they reported the claim.

In a decision dated February 14, 2022, the CM denied entitlement under policy 15-03-13, Post-Traumatic Stress Disorder in First Responders and Other Designated Workers as the worker did not meet the diagnostic requirements. Entitlement to CMS was not in order, as it was determined the mental stress was caused by an employer’s decisions or actions that were part of the employment function.

The worker objected to the decision; however, they did not meet the time limit to appeal. On September 11, 2023, the CM reconsidered and allowed an extension to the time limit to appeal the decision dated February 14, 2022.

As the worker continued to object to the decision, the file was referred to the Appeals Services Division. The worker requested an oral hearing to resolve the issues under appeal, which was granted in the letter dated December 11, 2023.

Authority

Operational Policy Manual

Published

15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers September 7, 2018

15-03-14 Chronic Mental Stress January 2, 2018

Analysis

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that will be explained, I do not find in favour of the worker.

Worker’s Testimony

The worker testified that they began working with the employer as a corrections officer in October 2010. They became a sergeant around 2014, and worked in that position up to 2021. In their role they supervise corrections officers, provide support to them in their jobs, supervising inmates. They have been responsible for staff accommodations, risk management and general floor duty management. They confirmed they were working in staff services in 2021.

The worker reported they got along with everyone they worked with and they started working in City X jail until it shut down and they were all moved. The worker stated that they did not feel supported at work. They had been reaching out over the phone and email to their supervisor and they were getting no response. They stated this made them feel not valued by the employer. They also noted given the nature of their work and the violence that is present in the workplace, support should be provided.

They were diagnosed with PTSD by Clinic X and they started seeing the doctor for this around 2014 or 2015. They reported that two family members died traumatically, which impacted their mental health. They confirmed they required accommodation at work for the PTSD and a non-work-related physical injury. They indicated the accommodations were never permanent but rather temporary.

They stated that the manager mismanaged their disability and condition and before they stopped working the manager gave the impression that they wanted to help them, but then became aggressive when the worker had questions about the accommodations.

They described that during the November 29, 2021 meeting, the supervisor was yelling and flailing their arms and they asked the worker if they were “dumb”. The worker reported they were scared and this triggered them and caused a panic attack where they almost called 911. The worker advised that when they reported the incident to the staff sergeant they were crying uncontrollably.

They stated that the supervisor that was in the meeting that took place on November 29, 2021, they had possibly worked with them prior. They confirmed the restrictions that the doctor indicated were required for the worker’s accommodations. They indicated at the time of the meeting they were being put back in the general duty manager office and there had been changes in the role since they had last worked there.

They confirmed there was correspondence sent regarding the new assignment and they were to start on November 8, 2021. Following this, the employer received the updated limitations from the worker’s doctor and the worker attempted to discuss the accommodation agreement with the supervisor. They noted that they had wanted to work four shifts of ten hours; however the shifts in this role were five shifts, at eight hours. They noted that previously there were two managers, a primary and a secondary and worker wanted the primary position; however, the employer indicated they no longer separated the roles.

The worker confirmed that following the meeting on November 29, 2021 they stopped working and have not returned to work since then. They went off on short term sick leave, and eventually received long term benefits. They still are seeing their doctor, therapist and psychiatrist for their PTSD. The worker reported they want to return to work, but are nervous about the return to work process and dealing with the same people they dealt with before. They worry that they will not be treated fairly. They also stated they are worried about dealing with staff shortages, the violence, and overdoses that occur at work. They described at times a manager is running an entire tower and having to manage everything that occurs.

Employer’s Position

The employer representative argued that the denial of the claim for TMS and CMS should be upheld. They stated that there are specific criteria under both policies and the information in the claim and provided during the testimony does not meet these criteria.

They noted that while the worker has referenced the general duties and surroundings of the institute, they did not relate their mental stress to any specific traumatic events or incidents and issues with colleagues or supervisors do not pertain to the presumptive policy.

Regarding CMS entitlement, they noted that the policy is very clear that when interpersonal conflict is present, this is considered typical in a workplace and would not meet the criteria to allow CMS. They noted that while things may occur at the workplace that affect people personally, the policy is specific in what criteria is required to allow entitlement. They submit that the worker’s claim does not meet these criteria.

Post-Traumatic Stress Disorder in First Responders and Other Designated Workers

Policy 15-03-13 states that if a first responder or other designated worker is diagnosed with posttraumatic stress disorder (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 his or her employment, unless the contrary is shown.

The policy also outlines the rules for a first responder or other designated person who is diagnosed with posttraumatic stress disorder (PTSD). The WSIB presumes someone’s PTSD is work-related if they:

1. were employed in the designated job for at least one day on or after April 6, 2014, and
2. were diagnosed with PTSD on or after April 6, 2014, and
3. were diagnosed with PTSD by a psychologist or psychiatrist as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)

The presumption does not apply if it is shown the employment was not a significant contributing factor in causing the PTSD. A first responder is not entitled to benefits for PTSD if it is shown that his or her PTSD was caused by his or her employer's decisions or actions that are part of the employment function, such as

• terminations
• demotions
• transfers
• discipline
• changes in working hours, or
• changes in productivity expectations.

The worker was employed as a sergeant with the employer since 2014 and prior to that as a corrections officer. In a report dated November 30, 2021, the psychiatrist indicated they had a past psychiatry history consistent with PTSD. Thus, the worker meets the three criteria for presumptive PTSD. They worked in a designated occupation after April 6, 2014, they were diagnosed with PTSD after April 6, 2014, and they were diagnosed with PTSD (DSM-5) by a psychiatrist. What is in dispute is whether the evidence demonstrates the presumption has been rebutted.

In this case, I find the presumption does not apply as the evidence shows that the employment was not a significant contributing factor in the causing the PTSD. The information on file supports the worker was previously diagnosed and treated for PTSD and they confirmed this in their testimony. The psychiatrist noted the worker’s past psychiatric history was consistent with PTSD on November 30, 2021.

While the worker stated their mental health was impacted due to a lack of support at work and by the behavior of the supervisor during a meeting on November 29, 2021, I do not find this was a significant contributing factor in their PTSD diagnosis.

On November 30, 2021, the psychiatrist reported that the patient had worsening mood and anxiety recently and noted work had been increasingly stressful; however, the medical report indicated that the worker’s PTSD diagnosis was by history and not the result of recent events.

While I acknowledge the worker stated the meeting was stressful and caused them to have a panic response, I do not find the evidence supports that their employment was the significant contributing factor in causing the PTSD.

As such, I find the worker does not meet the criteria to allow entitlement under this policy.

CMS

In reviewing entitlement to CMS, I refer to Policy 15-03-14 that states a worker will generally be entitled to benefits for CMS if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor that arises out of and in the course of the worker’s employment. Furthermore, the substantial work-related stressor must be the predominant cause of an appropriately diagnosed mental stress injury.

In summary, the following conditions must be met in order for entitlement to be granted for CMS:

1. A regulated health professional has provided a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (DSM)
2. The worker must have experienced one or more substantial work-related stressors
3. The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury

1) Has a regulated health professional provided a DSM diagnosis?

As stated in Policy 15-03-14, before any CMS claim can be adjudicated, there must be a diagnosis in accordance with the DSM which may include, but is not limited to,

• acute stress disorder
• post-traumatic stress disorder
• adjustment disorder, or
• an anxiety or depressive disorder

In my review of the medical evidence on file, I note the doctor completed the Community Mental Health Program Assessment Form dated December 6, 2021. As per this form, the doctor diagnosed the worker with anxiety and PTSD. Noting the diagnosis provided, I find this policy criteria has been met.

2) Does the evidence support the worker experienced one or more substantial work-related stressors?

As per Policy 15-03-14:

The term “work-related stressor” is meant to include multiple work-related stressors, as well as a cumulative series of work-related stressors.

In order to consider entitlement for chronic mental stress, the WSIB decision-maker must be able to identify the event(s), which are alleged to have caused the chronic mental stress. This means that the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others can confirm the event.

A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict

• amounts to workplace harassment, or
• results in conduct that a reasonable person would perceive as egregious or abusive

Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.

Policy 15-03-14 goes on to state there is no entitlement for chronic mental stress caused by an employer’s decision, or actions that are part of the employment function, such as:

• terminations
• demotions
• transfers
• discipline
• changes in working hours, or
• changes in productivity expectations

However, workers may be entitled to benefits for CMS due to an employer’s decision or actions that are not part of the employment function, such as

• workplace harassment, or
• conduct that a reasonable person would perceive as egregious or abusive

Policy 15-03-14 also states that interpersonal conflict between workers and their supervisors, co-workers or customers are generally considered a typical feature of normal employment, and are not generally considered a substantial work-related stressor. It is not unexpected that there will be disagreement, tension and conflict between workers, co-workers or managers.

In reviewing the evidence on file and provided during testimony, I note that the worker reported that they did not feel supported in their workplace, and argued that given the nature of their work, which included violence, overdoses, etc; they felt that support should be provided. They stated that it was the supervisor’s behaviour during the meeting on November 29, 2021, that triggered their symptoms and led to a panic attack. They note that their reaction was not related to the accommodations, or job they were discussing, but specifically to the supervisor’s behaviour and reaction that included yelling and flailing their arms.

While I can acknowledge the demands of being a sergeant, would be stressful, and I agree that support is required, I do not find the stressors described by the worker to be excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. Additionally, while the supervisor’s behaviour described by the worker, did seem to show a lack in professionalism and appropriate workplace behaviour, I do not find this behaviour to be considered egregious or abusive.

The worker described a demanding workload, and lack of support; however, I note that the worker did have accommodation plans in relation to their non-compensable disabilities and the employer did support and adhere to the recommendations made by the worker’s doctor in order to best accommodate them. Additionally, while I understand the meeting that took place on November 29, 2021 caused stress for the worker, my understanding was that it was to discuss the worker’s accommodation plan. This was described in the email that is on file dated November 29, 2021 sent by the supervisor. Changes in the worker’s accommodation plan or agreement, hours of work and productivity expectations would be considered management’s decisions or employment functions and this would not fall within the criteria to allow benefits for mental stress under policy 15-03-14.

For the reasons stated above, I do not find the criteria in Policy 15-03-14 for a substantial work-related stressor has been met.

3) The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury

Policy 15-03-14 states that in all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor was the predominant cause of an appropriately diagnosed mental stress injury.

As outlined above, I have concluded the evidence does not support a substantial work-related stressor. Consequently, it is not necessary to address the question of predominant cause.

For the reasons stated above, the requirements as set out in Policy 15-03-14 have not been met and entitlement to CMS is not in order.

Conclusion

In conclusion,

1. The worker does not have presumptive entitlement to PTSD under policy 15-03-13.
2. The worker does not have entitlement to CMS under policy 15-03-14

The worker’s objection is denied.

DATED MARCH 27, 2024

Amy Woodworth Appeals Resolution Officer Appeals Services Division