DECISION NUMBER:

20240036

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

VIDEOCONFERENCE – APRIL 3, 2024

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES:

DATED:

OBSERVER FOR THE WORKER

EMPLOYER RESOURCE

OBSERVER FOR THE EMPLOYER

OBSERVER FOR THE EMPLOYER

APRIL 15, 2024

ISSUES

The worker, through their representative, is objecting to the Case Manager’s decision of March 10, 2023 denying entitlement to the following:

1. Posttraumatic stress disorder (PTSD);

2. Traumatic mental stress (TMS); and,

3. Chronic mental stress (CMS).

BACKGROUND

On July 6, 2021, worker began psychological treatment for intrusive thoughts, memories and other symptoms relating to a September 28, 2011 motor vehicle incident involving a child that they responded to as a Police Constable. The worker’s own young son had recently suffered a sudden and unexpected medical condition on July 1, 2021. The worker changed psychologists on May 5, 2022, and was diagnosed with PTSD. The worker filed a Workplace Safety and Insurance Board (WSIB) claim on November 24, 2022. Lost time began in late November 2022. The worker returned to work in a modified capacity in March 2023.

During a verbal discussion with the worker on March 10, 2023, the Case Manager stated that there was no evidence of an impairment related to the stressors of 2011 for a period of over ten years. The Case Manager explained that they viewed the worker’s personal event of 2021 to be traumatic and the basis of the start of treatment. The decision letter of the same date accepted May 5, 2022 as the date of injury and extended the timeline to file a claim. The Case Manager denied entitlement to PTSD as a first responder on the basis that the policy presumption that the PTSD was work-related had been rebutted as

the balance of evidence supported that it was caused by a personal event. The decision letter denied entitlement to TMS as there was no continuity to support that a workplace impairment related to traumatic work stressors existed prior to the personal stressors of 2021. Entitlement to CMS was denied due to a lack of clinical evidence of a functional personal impairment associated with the child fatality of 2011 for over ten years.

The administrative decision of January 9, 2024 determined that the worker’s objection to the decision of March 10, 2023 to deny initial entitlement to PTSD, TMS, or CMS would be resolved as an oral hearing. The administrative letter of January 17, 2024 confirmed that the hearing would be conducted by video conference. The issues is now before me.

AUTHORITY

r 7, 2018

ANALYSIS

I find that entitlement is in order for PTSD as a first responder. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

The worker representative requests entitlement to PTSD as a first responder on the basis that the applicable policy provides the presumption of work-relatedness unless the contrary is shown. While it may have been a personal stressor that was the final straw, it is argued that the totality of evidence does not indicate that the work duties did not significantly contribute to the diagnosis of PTSD.

It is presented that there is no dispute that the son’s seizure in 2021 and related health issues contributed to the condition. Yet, the worker representative argues that the rebuttal provision within policy should not be engaged as there is no evidence that the work duties did not contribute to the PTSD diagnosis. The submission is made that the triggering event to seek psychological treatment was both personal and

work-related which is not a bar to entitlement. The worker representative maintains that there is nothing to show that the work duties/experience are not a significant contributing factor as the personal trauma does not negate the work-related factor.

The worker representative concedes that the son’s condition likely contributed to the PTSD diagnosis; however, the argument is made that the worker was still exposed to countless traumatic calls and cases within their various roles. The worker representative submits that the lack of medical/psychological treatment until after July 1, 2021 is not a reason to preclude entitlement. Briefly, the worker representative cites four Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions in support of the following:

• There can be a combination of work-related and non-work-related factors;

• There is no requirement that the triggering event be objectively traumatic;

• The presumption is only rebutted if the work is shown not to be a significant contributing factor;

• The worker’s explanation for the delay in seeking medical treatment is plausible; and,

• PTSD can occur from secondary exposure to media/photos and does not require first-hand experience on the scene.

Employer representative’s position

The employer representative argues that entitlement to PTSD is not in order as the presumption is rebutted when one objectively views the worker’s testimony and considers the contemporaneous evidence. According to the employer representative, entitlement to TMS is not appropriate as the work-related stressors are not a significant contributing factor in the development of the mental stress injury. Similarly, entitlement to CMS is not in order as the issues all predate the personal stressor.

It is the employer representative’s position that one cannot simply rely on the presumption for entitlement as a first responder as there must still be evidence given that the presumption can be rebutted by persuasive medical evidence. The employer representative argues that the personal stressor significantly contributes to the PTSD while the work-related stressors are not a significant contributing factor. The argument is presented that each factor must be weighed for its significance. In this case, the employer representative indicates that the work experiences do not compare with the worker’s personal experiences involving their son.

With respect to the cited WSIAT decisions, the employer representative notes that contemporaneous medical evidence may be considered as a basis for determining if work or personal events are the significant contributing factor. In this situation, the worker did not seek medical attention for over a decade from the primary incident being claimed. The employer representative is of the position that the situation in this claim is materially different than the WSIAT cases as the personal stressors did overwhelm the work stressors and there is no immediate seeking of medical care. In addition to viewing the medical evidence as not persuasively showing that the PTSD is due to work-related conditions, the employer representative requests that a negative inference be taken from the second psychologist declining to release their chart notes and only provided a summary report. When viewed in totality, the employer representative maintains that the contemporaneous evidence, lack of prior reporting, and the worker’s indication of a life-altering person circumstance, establish that the work events did not have a significant impact on the PTSD diagnosis.

The employer representative points out that after the 2011 incident, the contemporaneous reporting documents the worker taking time off work, then going on holiday with no medical attention for mental stress for approximately a decade. The employer representative highlights that there are only five days between the son’s seizure and the first psychological appointment. It is the employer representative’s view that the psychological reporting mainly discusses non-work-related stressors. Further, the employer representative notes that the son’s worsening condition in October/November 2022 correlates with the worker’s lost time that began on November 28, 2022, which they suggest supports there being only a very tenuous relationship with any work-related issues.

Worker’s testimony

It is the worker’s testimony that while their son’s health issues of 2021 is the tipping point, they were already stressed out and nearly burned out prior to July 1, 2021.

The worker explains that they officially started in 1999 with the Police Service and remained there for 10 years before resigning on July 1, 2009 to move for family reasons to City X. The worker

began with the current employer on July 2, 2009. According to the worker, the current employer required a psychological assessment in order to be hired.

The worker began as a uniform police officer and joined the Emergency Response Team in 2010. In January 2012, the worker was in the Criminal Investigation Unit working in the detective office as a Detective Constable wearing a suit and tie. The worker indicates that they were given a lot of responsibility in 2012 and started taking on major cases (or cases of a more serious nature) and were promoted to Sergeant. The worker was then promoted to Staff Sergeant in June 2020 where they would oversee all major cases. The worker describes the period of 2020 to 2022 as being quite busy as they were a “working boss” handling the management of a team, attending quite a few scenes and taking some calls.

Index incident

With respect to the incident of September 28, 2011, the worker’s testimony provides clarification of the correct street where the young boy was struck by a vehicle while riding the scooter. The worker explains that they were in a very emotional state when talking with the psychologist and that their memory may not have been 100%. For example, it is the worker’s testimony that they were not the first on the scene, nor did they perform cardiopulmonary resuscitation (CPR) on the young boy, who did not literally die in the worker’s arms.

The worker explains that at the time of this work-related high priority call, their daughter was approximately eight months old and that their own emotional reaction was different as the call involved a child. The worker describes running to the child who was laying prone on the pavement. The worker was afraid of a spinal injury and notes that the boy had “death rattle” breathing with fluid coming out of their ears. The worker knew at this point that the child would not make it and that there was not much that they could do to help him. What struck the worker was that the mother of the child ran out of the house screaming in pure terror. The worker tried to talk and comfort the child to hold on as they waited approximately five to eight minutes for emergency medical services (EMS) to arrive. The child was rushed to City Y but did not survive. The worker estimates that the child died within approximately one hour of the incident but are unsure if they died on the way to City Y. Regardless, the worker stresses that the child suffered a very traumatic brain injury and that it was very apparent to the worker upon arriving at the scene that there was nothing that they could do to save them.

It is the worker’s testimony that this particular call stuck with them and that they had difficulty sleeping with recurring dreams/nightmares. The worker still thinks of the incident when driving in that area even to this day. After this incident, the worker continued to be in the major crime unit, going to scenes including shootings, homicides, suicides, and other fatalities. The worker states that after September 28, 2011, they attempted to avoid any scene involving baby deaths or children and would not attend those calls if they had the option. The worker states that they did not tell anyone other than those they trusted as they wished to avoid it and did not want to it impact them further.

Once the global pandemic started in March 2020, the worker noticed an increase in drug use directly correlating with serious crime. The worker indicates that they were one of the go-to people to take on more serious events. The worker describes a very serious homicide on Friday, March 13, 2020 in which they were the primary designator for an investigation that took months. According to the worker, there were more homicides that year, with multiple stabbings, and increased robberies which continued for another year or two rolling into 2021. The worker describes having a significant workload in 2020 to 2021 with a record number of homicides up to 2022. The worker indicates that this period was likely the busiest time in the last two decades of the city’s history where they had to manage a team. The worker describes

working a significant number of hours, never being at home, and basically sleeping on a couch at work for the month of January 2021 leading into February 2021. The worker stresses that after a homicide the case may take 2.5 years to complete from start to finish.

Additionally, the worker explains that they had to take over other roles due to staffing issues during the pandemic as staff could not work from home. The worker states that 2020 to 2021 was a record-breaking time for major cases and homicides, on top of a workplace harassment case they and others were pulled into, plus the extra workload due to the pandemic. The worker indicates that they were not processing it at the time as there was a job to do, and they did not have a choice. Looking back, the worker indicates that they were not sleeping or eating properly and were completely burned out.

The worker also describes being burned out in 2014/2015 and requesting to go back to the road for a break; however, their request was denied. Upon being promoted, the worker would be contacted at all hours and days, including on vacation. Once promoted to Staff Sergeant in 2020, they expected to go back to uniform for a break which did not occur.

Son’s health event of July 1, 2021 and relapse

It is the worker’s testimony that their son’s first seizure of July 1, 2021 was very serious as they were unresponsive, not breathing, and had no heartbeat. The worker describes this event as being “life changing”. The worker did not expect or know that the seizure was coming and was informed by their daughter during the night. Once the worker’s son stopped seizing, they were completely white with blue lips and “completely gone”. The worker’s spouse called 911 and the worker ran across the street to get a volunteer fire fighter. The worker indicates that their son was dead on the floor for five minutes prior the worker being able to revive them by performing CPR. The worker explains that their son has had 14 seizures in total with some breaks in between, with a relapse in November 2022.

Within testimony, the worker indicates that there were three incidents in October/November 2022 leading up to the start of lost time. The worker also describes work being “super busy”. The worker went on an absence the week following their son’s relapse which turned out to be the longest absence of their career. The worker indicates that their son is on the list for brain surgery and takes medication three times per day. The worker explains that they co-sleep with their son every night and monitor them “24/7”.

Lost time and return to work

The worker confirms that their last day worked was November 25, 2022 with lost time starting on November 28, 2022. The worker describes this period as a “perfect storm” as their son had a lot of relapses in November 2022 while they had an overwhelming responsibility at work as they felt that there was no one there to take over their role.

The worker indicates that there was a modified return to work in late March 2023 (either March 27, 2023 or March 29, 2023) and that they have remained at work continuously in a different role. Due to ongoing care-giving duties involving their son, the employer recommended a family accommodation plan. The worker explains that while they are still a Staff Sergeant, they are involved in more straight administration dealing with the Records and Communication units.

Entitlement to posttraumatic stress disorder

I accept that entitlement to PTSD is in order as a first responder as I am not persuaded that the presumption is rebutted.

I acknowledge the employer representative’s position that the rebuttable presumption requires determining the extent of the impact of the personal issues versus the work-related experiences. The employer representative highlights that the psychological chart note of March 2, 2022 documents the worker’s indication of the severe impact of seeing their son in such a condition. The employer representative notes that the child did not die in front of them at work on September 28, 2011.

The employer representative summarizes that of the first psychologist’s nine treatment notes, two mention the incident of 2011 while all discuss the worker’s personal stressors. The employer representative suggests that it is material that the second psychologist’s summary reports are approximately one year after the actual session and do not distinguish between the personal and work-related event, save for the worker initially being seen for their son’s diagnosis. The employer representative suggests that there is insufficient evidence that the work-related events significantly contribute to the worker’s PTSD. The employer representative references the worker’s testimony that their son’s significant incidents in October and November 2022 were like a “bomb” going off.

On the other hand, the worker representative argues that while both work-related and personal-related exposures contributed to the mental stress injury, there is only the requirement that the work exposure contributed to the PTSD diagnosis. The worker representative submits that the worker has been consistent in their statements throughout the claim and that they have not attempted to downplay the issues involving their son. According to the worker representative, the presumption for entitlement is met even though there are intermixed factors due to the totality of life experiences.

Policy 15-03-13, Posttraumatic Stress Disorder in First Responders and Other Designated Workers, defines the term first responder as including police officers. Policy states that a psychologist or psychiatrist must diagnose the first responder with PTSD as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Policy confirms that a diagnosis of PTSD in a first responder who meets the specific employment and diagnostic criteria is presumed to arise out of and in the course of employment unless the contrary is shown. Policy 15-03-13 provides further explanation that this presumption may be rebutted if it is established that the employment was not a significant contributing factor in causing the first responder’s PTSD.

There is general agreement that the three criteria under Policy 15-03-13 are met as the worker has been employed as a first responder for at least one day on or after April 6, 2014 and has been diagnosed with PTSD by a psychologist. However, I find it important that Policy 15-03-13 requires the diagnosis to be made on or after April 6, 2016 and no later than 24 months after the day the worker ceases to be employed as a first responder if they ceases to be employed as a first responder on or after April 6, 2016. In other words, I accept that policy does not have any requirements of when the PTSD diagnosis is to be made in conjunction with the work-related exposure provided that the worker continues to be employed as a first responder. Therefore, I am not persuaded that Policy 15-03-13 requires immediate medical attention for mental stress, only that the workplace exposure materially contributes to the diagnosis. For this reason, I am not persuaded that the ten-year gap of medical attention between the incident of September 28, 2011 and the first psychological treatment on July 6, 2021 is sufficient to establish that the workplace exposure is not a significant contributing factor.

I must also consider the worker’s testimony that they did not seek help after the incident in 2011 as they were embarrassed and going into a promotion. While the worker agrees that they should have sought treatment at that time, they describe not understanding PTSD at that point. The worker indicates that because of what happened with their own son in 2021 it was like the 2011 incident happened again, as they thought their own child would die and feared losing another boy of approximately the same age.

Given that the worker’s son has recurrent health issues, the worker indicates that the memories of the

2011 incident come back and they are unable to close the book on that event. The worker states that the incident of the young boy dying in 2011 had the most impact of all work exposures on them and stays with them to this day.

During questioning, the worker describes their duties as a Detective, Sergeant, and Staff Sergeant as still involving exposure to trauma. The worker explains that they would continue to go to scenes even as a secondary investigator and that they would work together with the primary investigator. The worker indicates that as a Sergeant and Staff Sergeant, one would still have exposure to material as the worker would see photos and deal with everything, including post-mortems as they are required to ensure that everything is there. I observe that the worker’s verbal statement of December 14, 2022 describes them addressing a woman whose throat had been slashed on March 13, 2020 which appears to correlated with the worker’s testimony of a homicide on the same date.

While there is no medical attention until 2021, the worker explains that they struggled after the incident of September 28, 2011 and broke down crying a day or two later at the debrief in front of other staff members. The worker describes awaking in the middle of the night, as they did in 2021, and having vivid memories of the child. The worker estimates that they have seen the psychologist 15 to 22 times in 2022 as well as one to three times per week in 2023 until their return to work. The worker indicates that they currently see the psychologist every two to three months for appointments.

Turning to the clinical evidence contained within the case record, I find it material that the first psychological note of early July 2011 documents the worker mentioning the 2011 death of a child after being struck by a car. While I recognize that the next several psychological session notes do not reference work-related stress, I cannot ignore that the final psychological session note from the psychologist dated March 2, 2022 clearly references the incident of 2011 once more and indicates that this is the event that flashed back with their son’s medical emergency. While I acknowledge that the son’s health emergency was extremely stressful for the worker, I do not find that the medical evidence from the first psychologist supports that it overwhelms or negates the impact of the work-related event of 2011.

I also accept the worker’s testimony that they changed psychologists in May 2022 as they did not feel that the first one was helping and that they needed something more. The worker indicates that they spoke with a friend who is a fire fighter who recommended a psychological clinic that only deals with first responders. Prior to seeing this second psychologist, the worker did not understand what they were experiencing as they used to “power through it” and did not like taking time off from work. After the first few sessions, the new psychologist identified both work and home stress and informed the worker that they need treatment for PTSD.

The second psychologist’s Health Professional’s Report of Occupational Mental Stress dated

November 23, 2022 outlines that the mental stress is precipitated by a work-related incident involving the death of a child who, at the time of the incident, was of a similar age of the worker’s son. The report outlines that the symptoms have recently been exacerbated following a worsening of the son’s medical condition. The psychologist provides the diagnosis of PTSD, listing the co-existing factor of the son’s medical condition. A separate report dated November 25, 2022 confirms that the worker has been under the care of the second psychologist since May 5, 2022.

The psychologist’s narrative report of January 30, 2023 states that the worker was initially seen to help cope with intrusive thoughts about their son’s seizure disorder. Even so, it soon became apparent that the recent incident triggered other work-related traumatic memories and incidents including one where a child of approximately the son’s age who was struck by a car. The report discusses other work-related stressors including various baby deaths, several murders and the workplace harassment case of 2020.

The clinical opinion is provided that there are repeated themes of failure during the course of employment as a police officer and that the worker feels that all children are unsafe and that they are unable to protect them. The psychologist documents symptoms including intrusive thoughts, nightmares, and visual flashbacks involving babies and children, as well as being triggered by the sound of ambulances. The report confirms that the worker’s symptoms are consistent with the DSM-V diagnosis of PTSD.

In summary, I recognize the employer representative’s arguments that the worker could have reported their mental stress to their family doctor who they saw during the ten-year period between 2011 and 2021. I appreciate that the worker participated in some earlier version of the Peer Support Team in 2012 of 2013, although the program has since changed. All the same, I find that there is no evidence to contradict the worker’s testimony that they were the only person who broke down crying, in front of their own recruit, during the debrief occurring shortly after September 28, 2011. I note that the first psychologist’s session note of March 2, 2022 documents that the worker broke down in front of supervisors after the event of 2011.

I further accept the worker’s testimony of exposure to increased work-related trauma during the period of 2020 to 2022, including increased serious crime and homicides. As mentioned above, I find that Policy 15-03-13 does not require that the PTSD diagnosis be provided within any specific period after the workplace exposure, provided it is no later than 24 months after employment ceases as a first responder. In any case, I find it material that there is evidence of the worker referencing the incident of 2011 at the very first psychological appointment, even if that appointment was originally scheduled in relation to the worker’s son’s unexpected health emergency.

Therefore, for all of the above-noted reasons, it is my view that the personal stressors do not overwhelm the work-related stressor or render the workplace exposures insignificant. Rather, I accept that the worker’s employment is a significant contributing factor in causing the PTSD, even with the presence of significant non-work-related co-stressors. On this basis, I am not persuaded that the presumption under Policy 15-03-13 has been rebutted. Consequently, I accept that the presumption applies and that the diagnosed PTSD for this first responder has arisen out of and in the course of their employment, on account of my determination that the contrary has not been shown.

Benefits flowing

The worker representative argues that there is currently insufficient medical information on file to rule on entitlement to loss of earnings (LOE) benefits, and requests that the Case Manager be requested to gather all outstanding information prior to any determination regarding entitlement to LOE benefits.

Similarly, the employer representative requests the opportunity to provide further written submissions if any entitlement is referred to another area for implementation.

I observe that the psychologist’s report of November 23, 2022 identifies both work-related and personal stressors. The report indicates an inability to work until January 1, 2023 due to difficulties in concentration and a moderate impairment in socialization. The psychological report of November 25, 2022 outlines that the mental stress injury has been recently exacerbated by a worsening of the son’s condition, resulting in the inability to work in any capacity until January 1, 2023. The narrative report of January 30, 2023 estimates the ability to return to work in March 2023 on a graduated basis. However, I find that additional clarification is required to determine the level of the work-related impairment given the co-existing personal stressor. As a result, the Case Manager is requested to attempt to obtain clarifying information from the treating psychologist, as well as consider any additional information provided by the representatives, before providing a formal decision regarding entitlement to LOE benefits from

November 28, 2022 onward.

Entitlement to Traumatic Mental Stress and/or Chronic Mental Stress

I find that there is no basis to determine initial entitlement to either TMS or CMS considering that entitlement is order to the work-related PTSD under Policy 15-03-13. Accordingly, it is my view that review for potential entitlement under either applicable policy for TMS and/or CMS is not appropriate in this situation.

CONCLUSION

I conclude the following:

1. Entitlement to posttraumatic stress disorder (PTSD) as a first responder under Policy 15-03-13 is in order.

The Case Manager is requested to obtain all outstanding information, including clarification from the treating psychologist regarding the work-relatedness of the recommended lost time, before determining entitlement to loss of earnings (LOE) benefits from November 28, 2022 onward.

The Case Manager is also requested to consider any additional information or submissions that may be provided from the representatives prior to rendering a decision on LOE benefits.

2. Entitlement to Traumatic Mental Stress (TMS) is not in order as entitlement is granted under Policy 15-03-13.

3. Entitlement to Chronic mental stress (CMS) is not appropriate as entitlement is granted under Policy 15-03-13 for PTSD as a first responder.

The worker’s objection is allowed.

DATED April 15, 2024

K. MacMillan

Appeals Resolution Officer Appeals Services Division