APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240048
OBJECTING PARTY: employer
REPRESENTED by: EMPLOYER REPRESENTATIVE
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
HEARING: VIDEOCONFERENCE – mAY 13, 2024
HEARD by: MS. M. RODRIGUES, APPEALS RESOLUTION OFFICER
ADDITIONAL ATTENDEES: EMPLOYER WITNESS OBSERVER (EMPLOYER RESOURCE PERSON)
ISSUES
The employer, through their representative, is objecting to the November 28, 2022 decision made by the case manager that:
- Allowed initial entitlement to a mental stress injury for posttraumatic stress disorder (PTSD).
The worker, through her representative, is objecting to the November 28, 2022 decision made by the case manager that:
Determined the date of injury was June 9, 2021.
Denied entitlement to loss of earnings benefits from May 16, 2021.
PRELIMINARY ISSUE
Prior to the hearing, I contacted both representatives on May 8, 2024 concerning the order for the testimony. I was only able to speak to the employer representative. At the hearing, I confirmed the order for the process and questioning given the above three issues under appeal. The opening statement would start off with the employer and then the worker. For the testimony portion, I requested the worker be questioned first, followed by the witness. The order of questioning would be as follows: employer representative, worker representative, myself and then each representative for a follow-up.
Following the worker’s testimony, the same order for the questioning would apply to the employer’s witness. For the closing statement, I confirmed each party would have the opportunity for a rebuttal. While the worker representative asked to question the worker first, I reiterated my preference to have the employer representative proceed first given the first issue in the appeal is for initial entitlement. The worker representative subsequently agreed.
BACKGROUND
This claim was registered on June 25, 2021 after receiving the Employer’s Report of Injury/Disease (Form 7) dated June 25, 2021. This operator reported a mental stress injury for PTSD due to the nature of her traumatic calls and high-pressure situations, combined with a work-related adjustment disorder from workplace dynamics and management.
The worker reported the symptoms began in late 2019/early 2020 but went unreported as she attempted to get better on her own and feared punishment from management. She sought health care on May 16, 2021 and stopped working. The worker reported PTSD symptoms to the doctor on June 9, 2021. She was diagnosed with PTSD on June 23, 2021 due to traumatic calls and adjustment disorder that resulted from workplace dynamics.
In a decision letter of November 28, 2022, the case manager accepted entitlement to PTSD under policy 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers) for health care benefits. The case manager determined the date of injury to be June 9, 2021, which was the first date the worker sought treatment for the work-related stressors and workplace injury. Entitlement to adjustment disorder was denied because the work-related component of this diagnosis was related to employer decisions and actions, namely the dispute over sick time.
The case manager also denied entitlement to LOE benefits from May 16, 2021 because it could not be established that the lost time was related to the PTSD symptoms. The case manager found the primary reason for the lost time from work was related to employer decisions and actions, including personal reasons that were not work-related. This decision was reconsidered on May 3, 2023, September 14, 2023, October 31, 2023, December 18, 2023 and January 24, 2024, but the original decision was upheld.
The employer objects to the allowance of initial entitlement to a mental stress injury for PTSD in the decision dated November 28, 2022. The worker objects to the date of injury and denial of entitlement to LOE benefits in the decision dated November 28, 2022. These issues were referred to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-04 Determining the Date of Injury April 9, 2021
15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers September 7, 2018
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) April 9, 2021
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) September 1, 2021
Reference:
Workplace Safety and Insurance Appeals Tribunal (Tribunal) discussion paper – Posttraumatic Stress Disorder
ANALYSIS
I have carefully considered all the available information, legislation and relevant operational policies in reaching this decision.
Issue #1 – Initial entitlement and date of injury
For the reasons that follow, I find initial entitlement to a mental stress injury for PTSD remains allowed. I find the date of injury should remain as June 9, 2021.
Employer position
The employer representative argues the criteria under the First Responders policy is not met and initial entitlement should be rescinded. He attached various documents to support his position in the submission of December 14, 2023. He questioned the validity of the PTSD diagnosis, given no testing for the Diagnostic and Statistical Manual of Mental Disorders (DSM)-5 diagnosis was completed.
The representative submits all the worker’s psychological symptoms are attributable to non-work-related conditions. The worker sought psychological treatment for two years and never attributed her symptoms to the job duties, nor did the psychologist suspect the symptoms were related to job stress. The worker’s attribution of psychological symptoms was done to gain access to the 90-day extension of pay pursuant to the collective agreement and the symptoms are related to non-work-related stressors or reactions to employment functions of the employer.
The representative contends the date of injury of June 9, 2021 is correct based on policy 11-01-04 (Determining the Date of Injury) for gradual onset type claims and the Health Professional’s Report (Form 8) of June 23, 2021. He does not agree the symptoms the worker experienced in 2019 are related to the eventual PTSD diagnosis. He affords no weight the September 28, 2021 psychology report, indicating the work-related stressors refer to employment functions and not the worker’s job duties.
Worker position
The worker representative submits the diagnostic criteria in the First Responders policy is met, opining there is no indication specific psychometric testing should be completed at the time of the diagnosis. She states weight should be given to the worker’s testimony about the various calls she received as part of her job duties. While the Tribunal discussion paper on PTSD is cited, the representative points out that PTSD symptoms overlap with other diagnoses. She acknowledges there are concurrent issues concerning sick time access and work cessation in May 2021, but there is no evidence to suggest the worker filed a WSIB claim as a result of this.
The representative states policy 11-01-04 (Determining the Date of Injury) sets the date of injury as either the first date treatment is sought that leads to the diagnosis, or the date of the diagnosis, whichever comes first. She submits the policy does not speak to the need for there to be a clear relation to the diagnosis. She opines the date of injury is August 28, 2019, which is the first date the worker sought treatment for psychological issues.
The representative indicates it is not abnormal to seek treatment and discuss other things, with the worker not realizing the symptoms experienced were due to PTSD. In the alternative, she requested January 6, 2021 should be selected as the date of injury based on a clinical note from the psychologist given the worker’s reporting of employment issues. The representative states the worker has a limited capacity to deal with conflict and stressors. She submits the worker’s testimony supports she was struggling with many symptoms that are consistent with the Tribunal discussion paper on PTSD.
Findings
The employer representative contends initial entitlement should be rescinded in this claim. The worker representative submits the date of injury should be August 28, 2019 or January 6, 2021. However, in weighing the available evidence, I find initial entitlement to a mental stress injury for PTSD remains allowed and the date of injury should remain as June 9, 2021. My reasons for why are outlined below.
Is initial entitlement to PTSD in order?
I will first address initial entitlement and then the date of injury. When considering initial entitlement to a mental stress injury in this claim, I relied on policy 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers). The policy outlines the circumstances under which PTSD in first responders and other designated workers is presumed to be work-related. 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.
- 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.
- 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.
- Type of diagnosis
The first responder must have been diagnosed by a psychologist or psychiatrist with PTSD as described in the DSM-5.
The policy goes on to state the presumption may be rebutted if it is established that the employment was not a significant contributing factor in causing the first responder's 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.
While the employer representative submits the presumption is rebutted, I did not come to the same conclusion after reviewing the available evidence. I am persuaded all the policy requirements are met as outlined in policy 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers). In reviewing those requirements, I find the following facts are not in dispute:
- The date of employment criterion is met because the worker was employed as a first responder for at least one day on or after April 6, 2014 given her operator duties. As such, the First Responders policy applies.
- The date of diagnosis criterion is met because the worker was diagnosed with PTSD by a psychologist on or after April 6, 2014.
- During her testimony, the worker described the operator duties, which involves call-taking and dispatching. As part of call-taking, she receives emergency, non-emergency and internal calls. Dispatching involves sending police officers to the location based on call priority, obtaining additional information, and communicating with the officers over the radio.
- As pointed out by the employer representative, the worker was hired in a temporary part-time position as an operator on October 13, 2015. On October 27, 2017, her employment status changed to permanent part-time and then the worker became full-time on May 15, 2019. This is also confirmed by the testimony from both the worker and witness.
In my view, the criterion for type of diagnosis is in dispute and whether the presumption has been rebutted in this claim based on the concerns outlined by the employer representative. As such, I will address those concerns in that order.
The employer representative questions the validity of the PTSD diagnosis, noting the psychologist only concurred with the family doctor, but never conducted a formal evaluation as the worker was a long time patient. However, I note the worker was initially diagnosed with PTSD by the family doctor in June 2021 and then by the psychologist in September 2021 based on the clinical reporting. As pointed out by the worker representative, there is no indication specific psychometric testing is required at the time of the diagnosis.
Both representatives referred to the Tribunal discussion paper on PTSD and I did the same noting initial entitlement is one of the issues here. The discussion paper is written by Dr. Whitney, a recognized expert in the field of psychiatry and is written so that it can be understood by lay people. While I am not bound by any information or opinion expressed in a discussion paper, I may consider the information provided by the paper along with any other expert evidence in the appeal. The employer representative cites the sections on comorbidities, overdiagnosis and clinical assessment tools in the discussion paper.
In the Tribunal discussion paper, Dr. Whitney addresses comorbidities/co-existing conditions and notes many symptoms included in the PTSD criteria in DSM-5 overlap with other disorders. In reviewing the discussion paper, I am struck by the conflicting views concerning comorbidities. On page 5, Dr. Whitney states, in part:
It is therefore not unsurprisingly that with PTSD rates of co-morbidity are very high particularly with depression (Brewin 2020). Some authors argue that many of the PTSD symptoms are general reactions to adversity rather than specific reactions to trauma. Other authors question whether comorbidity would be reduced with a smaller symptom set consisting of those more specific to PTSD such as flashbacks, nightmares, startle and hypervigilance.
While the employer representative points out overdiagnosis pertaining to PTSD, I again note there is no consistency among experts on this issue. On pages 6 to 9 in the discussion paper, Dr. Whitney writes, in part:
At the present time, the overdiagnosis of PTSD is questioned in some clinical areas particularly involving military personnel, legal situations and financial compensation for injury.
PTSD is viewed by some public officials as an overly generalized or invalid diagnostic category that is often induced in or falsified by veterans or others seeking compensation. There was a recent debate in the British Medical Journal in 2021 (Maudsley Debate) with regards to the question of whether PTSD is overdiagnosed. Several authors identified that the burgeoning rates of PTSD diagnosis as attributable to broadened disease definitions.
Other authors argue that PTSD is commonly underdiagnosed. This is partially based on the fact that only a fraction of people with PTSD are in a position to be assessed for PSTD due to lack of access to mental health care.
The EMS / paramedics, police officers (from regional or city services and province), fire fighters and health care providers are a high risk population for PTSD as well as suicide…The Canadian Mental Health Association estimates that in emergency service workers the prevalence of PTSD is twice the national average i.e. approximately 16%.
On June 9, 2021, the worker completed self-reported Generalized Anxiety Disorder 7-Item (GAD-7) and Patient Health Questionnaire (PHQ-9) testing. She received a GAD-7 score of 21, which is indicative of severe anxiety. Her PHQ-9 score was 14, which is interpreted as moderate depression.
As I pointed out earlier, the employer representative references various testing types in the Tribunal discussion paper on PTSD. He states it is insufficient to provide a diagnosis of PTSD when no testing was administered. The representative contends there is no evidence to support the family doctor administered testing, such as the PTSD Checklist for DSM-5 (PCL-5) or Clinician Administered PTSD Scale (CAPS), to determine if criteria for PTSD is met.
Dr. Whitney points to various clinical assessment tools on pages 9 and 10 of the Tribunal discussion paper. She states it would be beneficial to have screening measures in primary care, given it is not used at this time. While the employer representative cites the lack of CAPS testing, I note Dr. Whitney states it is commonly used in specialty trauma clinics and provides information on diagnosis and symptom level.
I note PCL-5 testing is a 20-item self-report measure that assesses the presence and severity of PTSD symptoms. When considering a diagnosis, PCL-5 should not be the lone diagnostic tool. However, I find it significant that Dr. Whitney states, “Many individual clinicians rely on the clinical interview to make the diagnosis of PTSD” and that standardized assessment tools can help with the diagnosis as well.
I interpreted the above statement by Dr. Whitney to mean CAPS and PCL-5 testing are not the only tools used when considering a diagnosis for PTSD. I find there is no requirement for this testing to be completed for a PTSD diagnosis. As pointed out by the worker representative, the psychologist confirmed the PTSD diagnosis is based on the clinical interviews that took place with the worker, who was a long-time client. As such, I find the type of diagnosis criterion in the First Responders policy is met and that all three criteria are satisfied.
I will now address the employer’s concerns about whether the presumption provided in the First Responders policy is met. The employer representative submits the worker wanted to gain access to the 90-day extension of pay pursuant to the collective agreement and her symptoms are related to non-work-related stressors or reactions to employment functions of the employer.
However, after reviewing the available evidence in the case record, I did not come to the same conclusion. In my view, the worker’s employment is a significant contributing factor in causing her PTSD. I find the available evidence supports the worker developed PTSD in the course of and out of her employment and the presumption is not rebutted. I afford weight to the worker’s testimony and how her work impacted her psychologically.
During her testimony, the worker spoke about working in the travel and tourism industry, along with being an infant room teacher before working with police services. She detailed the hiring process for becoming an operator. This included testing for spelling, grammar and typing, along with call simulation.
After passing those tests, she was invited to interview with the director and supervisor. After that, the worker was sent for psychological testing. The written test was reviewed by a psychologist, who also met with her. A job offer was extended to the worker pending physical testing, which she also passed.
The worker confirms working three 12-hour shifts in one week and four 12-hour shifts the following week, during a two week period. There are generally 8 to 10 people per shift, but sometimes it goes as low as 5 people per shift, which is very stressful. She works with the same people all the time and this is based on a platoon release each October, which details the schedule for the following year. The worker outlined the room layout and indicated the call-taking/dispatch duties are located on the fourth floor of police headquarters.
I previously noted the worker described her operator duties, which involved call-taking and dispatching. The worker testified call-taking includes receiving emergency calls, non-emergency calls and calls from other services. She states emergency calls include an immediate threat to life/property and are generally calls that involve “heavy stuff.” This may consist of suicide calls, where someone knows a person who wants to commit suicide, has attempted to do so, or has committed suicide. She also dealt with calls about intimate partner violence, weapons, shots fired, marine emergencies, people jumping into the water, family violence, violent person in crisis, or anything that could go wrong.
The worker states non-emergency calls include ones where life/property is in peril. While the call may not be an emergency to the call taker, she states it can go from an emergency call to non-emergency call. She notes these types of calls range from extremes. For example, a non-emergency call can be someone indicating a cat is defecating in their yard. Lastly, other service calls involve receiving calls from ambulance services because police officers are required. The worker notes there are more calls about mental health issues because patients are too violent for paramedics to deal with. In addition, she states sometimes people call for an ambulance, but then ambulance services realize it is a police issue.
The worker states dispatching duties involve a different kind of stress. There is less being screamed at in the ear and her flight/fight response is not activated as much. However, the calls sometimes involve police officers yelling in the background. She notes some callers are calm vs. others, who are screaming or yelling. The worker recalls being on edge for those dispatch calls because she never knew what type of calls she would receive.
The employer representative notes the types of calls the worker attributes to her PTSD outlined during her testimony differs from those provided to the case manager. In reviewing the case record, the worker told the case manager on June 29, 2021 that she received more drug/overdose calls. She became nervous when receiving a call because she did not know what it would be about. The worker also states being embarrassed about having a supervisor sign time sheets in front of co-workers and that her anxiety came from the administration. She submits her main issues are with two individuals – the director of the department and a human resources person.
However, I concede that the worker, in her capacity as an operator, would receive a large volume of in-coming calls daily throughout her shift. The First Responder policy does not outline what types of duties, calls and so on, need to be evident for entitlement to be accepted. The policy states 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 worker testified about specific calls that she attributes to her PTSD and became emotional when recounting the details. She spoke about calls concerning a suicidal person, domestic violence, a person who jumped into the water and an officer who jumped in after to save them, a knife involving a mother and son and an infant death. For the suicidal call, the worker had nightmares about putting in the wrong address and thereby causing a delay in the police officers arriving at the site. However, after returning to work the following day, the worker pulled up the details and confirmed she had put in the correct address. While she felt relieved, she states the situation still haunts her.
The worker also recalls situations where police officers are screaming that they need help. She has a memory of a routine traffic stop, where the police officer pulled a person over in a parking lot and then began asking for back-up. The worker states the situation became chaotic as other police officers went to respond for help and recalls one dispatcher stating, “Now look how fast they go.” I note the worker became emotional recalling this incident, along with other ones during her testimony.
The worker testified the call volume seemed to increase when the weather warmed up. She recounts that officer-involved-shootings seemed to be increasing as well, noting there were two prior to her stopping work in May 2021. The worker states receiving traumatic calls and going home a couple times per week with something she was unable to shake and that impacted her. She testified about her sessions with the psychologist, who is heavily involved with police services. The worker was trying to cope with the fact that one of her parents was sick and decided to reach out to the psychologist. She recalls the psychologist telling her that they can only help with what she tells them.
In reviewing the clinical record, the Form 8 of June 23, 2021 provides the same diagnosis as the June 9, 2021 clinical note. The family doctor states the work-related PTSD is due to the nature of calls and has been ongoing for about 18 to 24 months. They note the work-related adjustment disorder is a result of workplace dynamics, especially with management. The doctor states the Form 8 was completed based on the first consultation of June 9, 2021.
The employer representative questions why the worker, who sought treatment for almost two years, did not attribute her symptoms to her job duties. He notes there is no mention of any distressing calls at work outlined in the clinical reporting from the psychologist and family doctor. In reviewing the clinical record, I came to the same conclusion for the period of August 2019 to May 2021.
The clinical record indicates the worker began seeing the psychologist in August 2019. In the clinical notes from the psychologist, I find the worker did not mention any distressing work-related calls until the clinical note of June 9, 2021 from her family doctor. At that time, the worker reported the emotional impact of the traumatic phone calls received as part of her job duties. The calls involved death, violence and patients screaming at her. I note it was at this time that the family doctor diagnosed the worker with work-related PTSD and workplace adjustment disorder.
Of significance, in the September 28, 2021 clinical report, the psychologist notes most of the sessions with the worker concentrated on enhancing coping skills, addressing vulnerability in relationships and work-related stressors. However, the psychologist states it was only in May 2021 that concerns at that time focused on the actions of a police officer and cumulative stress of the worker’s job duties. Prior to this date, the worker reported relationship difficulties, the passing of one of her parents and attendance issues, given she was placed on time sheets at work. There was no mention of trauma-related phone calls between August 2019 and May 2021.
My viewpoint is further strengthened by the psychologist’s reporting in the January 11, 2022 clinical report. While the worker struggled with anxiety on a long-term basis, the psychologist notes the primary focus between August 2019 and May 2021 was stress/anxiety and relationship difficulties.
While the worker representative requests no weight should be given to the raw treatment (clinical) notes from the psychologist, I do not accept her position. While I concede that raw clinical notes may not be detailed in some circumstances, I see no reason to disregard them in this claim given the psychologist outlines the concerns the worker shared in those clinical notes. Conversely, I note the worker representative requests I place weight on the clinical note of January 6, 2021 from the psychologist when it comes to an alternative date of injury. I will address this issue later in my decision.
The worker was asked why she did not tell the psychologist about her job duties and its impact on her after she started treatment. She reiterated her testimony that the psychologist was heavily involved with police services and wondered if that information would get back to the employer and impact her negatively. The worker thought the psychologist would report back to the employer. She openly talked about her relationship and workplace issues with everyone. This was “surface level” for her and she told the psychologist about it as well. The worker was unsure why she was experiencing symptoms at that time, but now knows it was due to the PTSD.
The worker testified she began calling in sick and had panic attacks when working nights. However, she could not recall when this first started happening. At the time, she was unaware of what she was experiencing and why it was occurring. The worker would get hot/cold flashes, tingling in her hands, a feeling of pins/needles, heart racing, shortness of breath and would sometimes vomit. When asked why she did not report anything to the supervisor, the worker states she did not know what was going on. She also did not want to let anyone down, as many family members had worked for the police service and she took pride in her work.
The worker testified she had exhausted her sick credits in 2020 and acknowledged she did not get paid for her time off due to a COVID exposure as a result. She recalls wanting to find an opportunity to get paid for the time she lost due to the COVID exposure. The worker states a threshold meeting is called when an employee has run through half of their sick time, but indicates this did not occur in her case. The worker explained that during a threshold meeting, the employee meets with human resources and is not reprimanded. The purpose is to address concerns about sick time and create a plan.
The purpose of the threshold meeting was also confirmed by the witness testimony. However, the witness states the threshold meeting was held on January 11, 2021 and not sooner due to the difference in shift schedules. The witness also corroborated the worker’s testimony concerning her not having enough sick time for the COVID exposure and the denial of the extension of sick credits.
In the correspondence of July 9, 2021, the employer outlined various instances involving the worker between August 8, 2016 and May 18, 2021. During this period, the worker called in sick, reported late for work, advised of an inaccurate duty roster schedule, or was spoken to about cell phone usage. However, I find there is no available evidence that relates any of these situations as the cause behind the worker’s PTSD diagnosis. In addition, I note the witness testified that she, as the Director of the centre, does not handle disciplinary issues. These issues are handled by the supervisor.
Of note, the witness also testified that internal peer support, along with an external employee assistance program (EAP), is available to all employees. She said many employees come to her to talk about the stressful phone calls. The witness was unaware the worker sought psychological counselling, but had dealt with that specific psychologist on one occasion during a training program. The witness states the worker did not raise issues or distressing calls during any of the meetings in May 2021. She recalls that other employees at work have gone on stress leaves in the past, with some returning to work.
I acknowledge the witness states that, in her capacity as director, many employees have spoken to her about stressful calls. However, there is no indication that an employee needs to discuss stressful calls with the director, seek internal peer support, or contact the EAP. It is important to note the witness confirms having no direct contact with the worker, even as a director or in her previous role as supervisor. The worker never reported to her in the past and it is only the supervisor who is directly involved in the worker’s work.
During the worker’s testimony, she could not recall being told that applying for WSIB benefits gets her a 90-day advance on pay. However, I note the worker asked about this provision in an email she sent to the employer on June 23, 2021. Nevertheless, I find there is no available evidence to support the worker psychological symptoms, or claim for WSIB benefits, is related to trying to gain access to the 90-day extension of pay pursuant to the collective agreement. I note the worker received her full wages until September 2021, at which point she applied and received both short- and then long-term disability benefits from October 2021 to September 2023.
The employer representative also asked the worker if she had been advised to complete the Worker’s Report of Injury/Disease (Form 6) between June 10 and 23, 2021. She states someone told her about the Form 6, noting it could have been human resources, but she was not sure.
The worker testified she was upset about being placed on time sheets and having her application request for extending sick credits being denied. However, there is no available evidence to support her psychological symptoms resulted from the employer’s work-related decisions or actions in this regard. In my view, a unionized worker can seek assistance from their union concerning attendance credits, grievances, or how to file a WSIB claim.
I accept the opinions of the family doctor and psychologist that the worker’s PTSD condition resulted from her job duties as an operator. As such, I am satisfied the available evidence supports the worker’s PTSD developed in the course of and arose out of her employment.
I find it significant that, even while the worker initially sought psychological counselling due to non-work-related issues from August 2019 to May 2021, she subsequently developed work-related PTSD due to her job duties. In my view, the significant contributing factor to the development of PTSD did not result from the passing of a parent, relationship issues, being placed on time sheets, or having an extension of sick credits being denied. As such, I find the presumption as outlined in the First Responders policy is not rebutted.
Thus, for the reasons listed above and policy 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers), I find initial entitlement to a mental stress injury for PTSD remains allowed.
What is the date of injury?
The worker representative submits no weight should be given to the raw clinical notes from the psychologist. She indicates the date of injury should be August 28, 2019 based on the clinical record. In the alternative, the worker representative states that January 6, 2021 is the date of injury because this is the date the worker discussed employment issues with the psychologist. Whereas the employer representative submits that should initial entitlement be upheld, the date of injury should remain as June 9, 2021.
Given I confirmed that initial entitlement to a mental stress injury for PTSD remains in order in this claim, I will address the issue of date of injury. To do so, I turned back to policies 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers) and 11-01-04 (Determining the Date of Injury) to help me identify the date of injury in this claim.
Policy 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers) states the date of accident/injury will generally be the date a PTSD diagnosis is made by a psychologist or psychiatrist, however, in some cases, it may be an earlier date.
Policy 11-01-04 (Determining the Date of Injury) states the date of injury (also known as the date of accident) varies based on the type of claim and can refer to the date of the actual incident, on which an unexpected result of working duties occurs, of first medical attention, or of diagnosis. In a gradual onset disablement claim, the date of injury is established using the date of first medical attention which led to the diagnosis, or the date of diagnosis, whichever is earlier.
The worker representative submits policy 11-01-04 (Determining the Date of Injury) does not speak to the need for there to be a clear relation to the diagnosis. However, I did not interpreted the policy in the same light. In my view, the policy states the date of injury is the first date health care is sought that led to the diagnosis or the date of diagnosis, whichever comes first for a gradual onset disablement. In my view, the clinical reporting supports the worker initially sought psychological treatment for personal and not work-related stressors.
I find the worker’s PTSD is a gradual onset disablement in this claim. While I acknowledge the worker initially started attending treatment with the psychologist on August 28, 2019, the available clinical evidence supports she was first diagnosed with PTSD in June 2021. This is consistent with a gradual onset disablement. However, I do not accept the worker representative’s position that the date of injury should be August 28, 2019 or January 6, 2021. I am satisfied the date of injury should remain as June 9, 2021. My reasons for why are outlined below.
I reviewed the psychological clinical notes from August 2019 to January 2022 and those from the family doctor from May to October 2021. I am struck by the worker representative’s request that either August 28, 2019 or January 6, 2021 should be the date of injury and opines no weight should be afforded to these clinical notes. However, I note she selected two dates of injury based on the information contained within them. August 28, 2019 is the first date the worker sought treatment with the psychologist. January 6, 2021 is the date the worker discussed attendance difficulties with her work and being placed on time sheets.
To make the determination of whether August 28, 2019 should be the date of injury, I need to examine the clinical reporting at that time. I do not share the same view as the worker representative concerning the lack of detail in the raw treatment notes. I find the psychologist details and outlines the worker’s concerns in the clinical notes, providing an overview of why she sought treatment in the first place.
The clinical notes from August 2019 to May 2021 outline the various issues the worker was dealing with at the time. The August 28, 2019 clinical note outlines the worker’s concerns about a personal relationship. There is no mention of work-related psychological symptoms being related to her job duties.
My viewpoint is further supported by the worker’s testimony that one of her parents was sick around that time and she was not coping well. In addition, the clinical report of January 11, 2022 from the psychologist states the focus of the sessions from August 2019 to May 2021 was primarily stress/anxiety and relationship difficulties.
The subsequent clinical notes include concerns about her relationship and the passing of her parent. There is no mention of any workplace stressors related to her job duties during this period. Nor is there any available evidence to support the initial treatment visit of August 28, 2019 led to the work-related PTSD diagnosis in June 2021. As such, I do not find August 28, 2019 is the date of injury in this claim.
Turning my attention to whether January 6, 2021 is the date of injury, I note the worker representative contends this is the date the worker discussed employment issues with the psychologist. She states the worker had a limited capacity to deal with conflict and stressors, given the worker was unable to cope as a result and relayed this information to the psychologist. The representative cites the somatic symptoms the worker struggled with, such as an increased heart rate, hot/cold flashes, tingling hands and so on.
She argues these symptoms are consistent with those outlined in the Tribunal discussion paper on PTSD.
In reviewing the Tribunal discussion paper on PTSD, I note that Dr. Whitney states the following on pages 6 and 7:
Post-trauma: lack of social support is the primary post-trauma risk factor for developing PTSD. Severity of acute symptoms is predictive of development of PTSD. However, PTSD can develop when no acute symptoms were present (Yehuda 1998). Early research suggests that acute posttraumatic symptoms of increased heart rate and startle response are predictive of developing PTSD. In some situations people are reluctant to reveal their trauma experience or trauma symptoms due to concern about being labelled as “crazy” or negatively impacting their career.
I acknowledge the worker’s testimony that she thought the psychologist would report back to her employer when she started treatment. She outlined various symptoms she experienced, such as having panic attacks, hot/cold flashes, tingling in her hands, pins/needles, heart racing, shortness of breath and even vomiting.
However, I find there is a lack of available clinical evidence to support these symptoms were related to her job duties between August 2019 to May 2021. There is no mention, from her psychologist, of any work-related job stressors in the clinical notes during that period.
Furthermore, the Tribunal discussion paper also speaks to comorbidity or co-existing conditions, which I have already addressed earlier in my decision. The clinical note of January 6, 2021 states the worker discussed attendance difficulties with work and being placed on time sheets. While the psychologist notes this caused increased stress, there is no indication the worker had or expressed concerns with her job duties at that time.
By the worker’s own account, she testified being placed on time sheets in December 2020. She was upset and looking back, noting she did not have the capacity to handle that situation appropriately. There is no available evidence to support this is related to her job duties, nor led to the diagnosis of PTSD in June 2021. As such, I do not find that January 6, 2021 is the date of injury in this claim.
In reviewing the case record, I note the worker lost time from work beginning May 16, 2021, but am satisfied that June 9, 2021 should remain as the date of injury. Medical notes dated May 16 and 27, 2021 indicate the worker is not able to attend work due to medical reasons. No further information was provided as to why the worker was able to work.
In reviewing the clinical notes from the family doctor between May to October 2021, I note the worker indicates being stressed at work on May 26, 2021. The worker has been seeing a psychologist for the past two years. She provides details about a toxic workplace due to a co-worker and not being supported by the administration, feeling she was in trouble for taking time off. No diagnosis is provided at that time.
It is not until the clinical note of June 9, 2021, where a PTSD diagnosis is provided. The worker recalls the “emotional impact of the job – traumatic phone calls – death/violence/patients screaming at her.” She recounts nightmares, being traumatized to the degree she is afraid to answer her phone and being unable to sometimes attend the debriefing of major events at work if working at the time. This is the first time the worker was diagnosed with work-related PTSD and an element of workplace adjustment disorder.
As I have previously concluded, the worker made no mention of a mental stress injury due to her job duties prior to June 9, 2021. My viewpoint is further supported by the Form 8 dated June 23, 2021. The family doctor notes this form was completed based on the first consultation of June 9, 2021.
While the First Responders policy states the date of accident/injury will generally be the date a PTSD diagnosis is made by a psychologist or psychiatrist, I note it states it may be an earlier date in some cases. In this claim, the worker was diagnosed with PTSD by the family doctor on June 9, 2021. The diagnosis was later confirmed by the psychologist in their reports of September 28, 2021 and January 11, 2022. In my view, June 9, 2021 is the first date the diagnosis of PTSD is identified and when the worker began treatment for a work-related mental stress injury.
Thus, for the reasons listed above and policies 15-03-13 (Posttraumatic Stress Disorder in First Responders and Other Designated Workers) and 11-01-04 (Determining the Date of Injury), I find the date of injury should remain as June 9, 2021.
Issue #2 – Entitlement to LOE benefits
For the reasons that follow, I find entitlement to LOE benefits from May 16, 2021 to June 9, 2021 remains denied. I find entitlement to full LOE benefits from June 9, 2021 to September 18, 2023 is allowed. I find entitlement to partial LOE benefits from September 18, 2023 to October 19, 2023 is allowed.
Employer position
The employer representative submits the evidence supports the LOE is a result of non-work-related stressors, which include employment functions of the employer and personal stressors. He references policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) in support of his position. The representative states that, for the two year period prior to May 2021, the worker outlined significant relationship issues, the death of a parent and non-work-related stressors due to employment functions. He argues there is no evidence of distressing phone calls during this period.
In the December 14, 2023 submission, the representative also points to the grievance, relationship issues and lack of work-related stressors in the clinical notes between February and May 2021. He states the medical notes do not include rationale for why the worker stopped working. The representative contends the clinical reporting supports the worker had significant pre-existing and non-work-related psychological conditions for years prior to claiming a work-related condition. He opines there is no evidence to support attendance issues prior to May 2021 or that the worker’s symptoms, which caused her lay off in May 2021, are related to her job duties or the PTSD diagnosis.
Worker position
The worker representative contends the lost time is related to the workplace PTSD diagnosis and not the employer’s decisions or actions. She states that even if the lost time is related to the frustration of the employer’s action, entitlement to LOE benefits cannot be denied. The worker’s attendance at work escalated the PTSD symptoms, diminishing her capacity to handle stress and conflict. In doing so, this made it difficult for the worker to deal with others calling emergency for help. She requested entitlement to full LOE benefits from May 2021 to September 18, 2023 and partial LOE benefits from September 18, 2023 to October 19, 2023.
The representative submits the worker was unable to manage at work and asked for time off to address her symptoms and rest. She states the severity of the PTSD precluded the worker from working, indicating this is consistent with policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)). While the worker was also dealing with personal issues, she opines it does not diminish that the lost time is work-related. The representative points to the clinical reporting of June 17, 2021 and January 11, 2022, where 70% of the stress is work-related. She notes the worker remained co-operative in health care measures, citing her attendance for ongoing treatment with the psychologist. She finds the clinical reporting supports the work-related PTSD is the significant factor that caused the worker to stop working in May 2021.
In the submission of May 10, 2023, the worker representative states that regardless of reason the worker stopped working in May 2021, she developed PTSD from her job and cannot be expected to work.
Modified work was not offered. She opines the psychologist concluded the worker was not psychologically fit to work. The representative states the evidence supports that some of the sick days the worker took are related to anxiety and stress, eventually leading to the diagnosis of PTSD. She also argues the distinction between work-related PTSD and non-work-related conflict may not be as clear as indicated by the case manager.
Findings
To determine whether the worker is entitled to LOE benefits beyond May 16, 2021, I turned to policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) to help me reach a conclusion. The policy states a worker who has a LOE as a result of a work-related injury/disease is entitled to payment of LOE benefits beginning when the LOE begins. Benefits continue until the earliest of
- the day on which the worker’s loss of earnings ceases
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
- two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
- the day on which the worker is no longer impaired as a result of the injury.
The policy goes on to state if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
In reviewing the available evidence, I do not find the worker is entitled to full LOE benefits from May 16, 2021 to June 9, 2021. I find the work-related PTSD likely made a significant contribution to the worker’s psychological condition from June 9, 2021 to September 18, 2023. I find the available clinical evidence supports the worker was totally impaired during this period. My viewpoint is supported by the clinical notes and reports from the family doctor and psychologist from June 2021 to May 2023. I find the worker is entitled to full LOE benefits from June 9, 2021 to September 18, 2023 and partial LOE benefits from September 18, 2023 to October 19, 2023. My reasons for why are outlined below.
In the correspondence of June 25, 2021, the employer points to posts on social media that show the worker at the beach and shopping. They indicate the director of the communication centre was notified the worker wanted to take the summer off or not return to work at all. The employer learned the worker had purchased an island with friends and planned to run a bed and breakfast.
However, the worker testified she used to live by the water, so the pictures would have been taken at her residence. She states her partner’s friends purchased an island outside of the City X area, but that she never put money towards it. The worker confirmed she was not involved in that purchase. In addition, she testified that one of her social media accounts was hacked and cloned. I afford weight to the worker’s testimony that she had no other sources of income during the period she was off work from May 2021 to September 2023.
The worker testified that, looking back, she was unclear about what was going on with her and other factors were amplified. She now sees these factors are minor, such as sick time, and that only in a heightened state did it become an issue. The worker states feeling confused, like the world was ending and there was no solution. She always jumped to the worst case scenario and gave an example of when she received calls about well-being checks. The worker also had disturbed sleep, generally sleeping 4 hours per night.
By May 2021, the worker testified experiencing issues with concentration. She was unable to remember her write-ups, felt all over the place and scattered at times. Other times the worker could remember things perfectly. She would write every detail down so she did not forget anything while working. Looking back, she knows this was a symptom of PTSD and trauma. The worker used to be sharp but recalls losing this skill prior to May 2021. Leading up to her stoppage of work, she could no longer triage while stressed and struggled to manage conflict, experiencing panic attacks the night before her shifts. In addition, her heart raced as she was driving to work.
I must weigh the worker’s testimony against the other available evidence in the case record. While the worker representative finds the worker is entitled to full LOE benefits from May 2021, I did not. I find there is no available evidence to support the worker stopped working on May 16, 2021 due to the PTSD, noting the PTSD diagnosis is first mentioned on June 9, 2021. I am unable to conclude the undiagnosed PTSD condition significantly attributed to the worker’s psychological condition from May 16, 2021 to June 9, 2021.
In my view, the worker likely stopped working in May 2021 due to non-work-related issues associated with personal stressors. The family doctor’s clinical note of May 26, 2021 states the worker is stressed at work, but the cause outlined is personal stressors, such as not dealing with issues from 5 years ago. The doctor notes the worker spoke about a toxic workplace, being harassed by a co-worker 2 years ago and unsupportive administration. The worker also indicates feeling like she is in trouble for taking time off.
The clinical note from the following day outlines the worker’s poor cognition, focus, concentration, inability to relate to her peers, meet deadlines and handle stress. As such, I did not afford weight to the family doctor’s clinical notes of May 26 and 27, 2021.
I placed weight on the psychologist’s reporting from August 2019 to January 2022. In doing so, I find it compelling the psychological report of January 11, 2022 states the focus of the sessions from August 2019 to May 2021 was primarily stress/anxiety and relationship difficulties. This continued to be 30% of the worker’s overall current stress. In my view, this supports the worker’s inability to work between May 16, 2021 and June 9, 2021 is not related to the mental stress workplace injury. As such, I find entitlement to LOE benefits for this period is denied.
In reviewing the worker’s LOE from June 9, 2021, I note she remained off work until September 18, 2023. As such, I need to determine whether the worker was totally or partially impaired during this period and if the LOE is a result of the work-related injury. The employer representative states the predominant cause of the LOE did not render the worker totally impaired. He states the clinical evidence does not support the work-related PTSD was a significant factor that caused the worker to stop working in May 2021. The representative states weight should be afforded to the clinical evidence vs. the worker’s testimony about why she stopped working.
I reviewed the clinical record from June 2021. The clinical note of June 17, 2021 states that 70% of the worker’s stress was related to work, such as calls and the nature of work. The January 2022 report also states the worker was highly anxious and distressed on June 17, 2021. The worker indicated the cumulative exposure to trauma as a dispatcher took its toll over time. This is when the worker told the psychologist she stopped working on May 16, 2021, her family doctor prescribed medication and the diagnosis of PTSD.
In the Form 8 of June 23, 2021, the family doctor recommends the worker remain off work due to severe psychological symptoms with anxiety and depression. They state the worker is cognitively impaired due to the above and has poor focus, concentration, difficulty relating to peers and the inability to function in a stressful situation. The doctor notes the worker is unable to adhere to schedules or complete responsibilities, has frequent anxiety attacks and some periods of avolition/apathy. The doctor notes the worker has impaired decision-making capabilities, poor attention to detail and is unable to cope with stress.
I am satisfied the Form 8 supports the worker is totally impaired as a result of the work-related PTSD and unable to RTW in any capacity. My viewpoint is further supported by the clinical notes and forms completed by the family doctor from June 10, 2021 to October 18, 2021. The Healthcare Practitioners Statement/Form of June 10, 2021 completed by the family doctor indicates the worker is unfit for work and provides the work-related diagnosis of PTSD. The clinical notes from June 23, 2021 to October 18, 2021 indicate there has been no significant improvement in the worker’s condition. The worker experienced panic attacks, spontaneous crying, reliving of emergency calls and occasional nightmares.
Of significance, in the clinical note of August 24, 2021, the family doctor indicates the worker is unable to work due to her inability to function in the environment that triggers her anxiety, hypervigilance and borderline panic attacks. I find it significant the doctor states focus, concentration, attention to detail, ability to work with peers and function in a high stress environment would completely overwhelm the worker. In my view, this clinical note supports the worker continues to be totally impaired and unable to RTW.
I find the worker’s symptoms, as described by the family doctor, align with those outlined by the psychologist in their clinical reports of September 28, 2021 and January 11, 2022. In the September 28, 2021 report, the psychologist states seeing the worker on September 21, 2021. At that time, the worker indicates the stress and trauma related content of her call-taking/dispatch duties made her feel overwhelmed about returning to work. I note the worker expressed concerns about being able to continue engaging in emergency services due to the exposure of stress and trauma.
Of note, in the January 11, 2022 report, the psychologist states that RTW has been discussed with the worker over the past several months. The worker expressed significant hesitation at doing so due to fear and anxiety. I afford weight to the psychologist’s opinion that the worker is not psychologically fit for duty and find the worker was totally impaired from June 9, 2021. Of note, the psychologist states the worker is highly avoidant, anxious about working in the communication centre and recommended developing a RTW plan with all parties to determine whether the worker could safety return to her job.
In reviewing the subsequent clinical reports of February 8, 2023 and May 11, 2023, the psychologist notes the worker reports a significant reduction in anxiety and PTSD symptoms. In the February 2023 report, the worker indicates being motivated to attempt to RTW. The psychologist states they will develop a graduated RTW plan through the employer’s reintegration program and confirms they are looking at adding exposure therapy. The timeframe for the implementation of the plan is April. The May 11, 2023 report indicates the worker continues to respond well to treatment. Her adaptive and social functioning has improved as well. The psychologist and worker began planning for a RTW.
I interpreted the above two clinical reports to mean that while the worker has improved with continued treatment, she remained totally impaired and was not ready to RTW without a plan. The February 8, 2023 report states a RTW plan would provide the worker with an opportunity to retrain, refamiliarize herself and learn new practices/ procedures on training equipment. She would slowly be reintroduced and exposed to police headquarters and communication centre. In my view, this is reasonable, given she had been off work since May 2021.
The witness testified the worker returned to work on a graduated basis on September 18, 2023. She confirmed that either human resources or the association would reach out to the worker about returning to work, as she did not. The witness had no contact with the worker about long-term disability. Once she was advised about the worker’s hours/restrictions for returning to work, she would update the worker on the policies/procedures and have someone sit with her to ensure she was comfortable.
The worker testified she reached out to a staff member who was part of the work reintegration program in August or September 2023. She was unable to recall the modified work schedule, but indicates it may have started with 6 hours for one day a week for a week or two, then two days at 6 hours and so on until she resumed her full-time hours. The worker then resumed her pre-injury job duties and hours on October 19, 2023.
In summary, I find the wage loss after June 9, 2021 is a result of the work-related PTSD in this claim. I find the clinical record supports the worker was totally impaired and not capable of returning to work in any capacity due to the PTSD symptoms from June 9, 2021 to September 18, 2023. Given the worker returned to work on a graduated basis from September 18, 2023 to October 19, 2023, I find entitlement to partial LOE benefits is allowed for this period.
Thus, for the reasons listed above and policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)), I find entitlement to LOE benefits from May 16, 2021 to June 9, 2021 remains denied. I find entitlement to full LOE benefits from June 9, 2021 to September 18, 2023 is allowed. I find entitlement to partial LOE benefits based on the RTW plan from September 18, 2023 to October 19, 2023 is allowed.
The operating area will need to obtain the graduated RTW plan for the hours worked from September 18, 2023 to October 19, 2023. I also note the worker received short- and long-term disability benefits from a third party insurance company from October 2021 to September 2023.
CONCLUSION
As I concluded above, I find:
Initial entitlement to a mental stress injury for PTSD remains allowed.
The date of injury remains as June 9, 2021.
Entitlement to LOE benefits from May 16, 2021 to June 9, 2021 remains denied. Entitlement to full LOE benefits from June 9, 2021 to September 18, 2023 is allowed. Entitlement to partial LOE benefits based on the RTW plan from September 18, 2023 to October 19, 2023 is allowed.
The operating area will need to obtain the graduated RTW plan for the hours worked from September 18, 2023 to October 19, 2023, along with any earnings information that may be required.
The employer’s objection is denied.
The worker’s objection is allowed-in-part.
DATED May 31, 2024
Ms. M. Rodrigues Appeals Resolution Officer Appeals Services Division