Worker v. Employer, 2025 CanLII 39126

20250033

HEARD by:

DATED:

Kelly Gordon, appeals resolution officer

January 27, 2025

ISSUES

The worker is objecting to the Case Manager’s (CM) decision dated August 4, 2023. Specifically, the worker objections to the following:

The denial of entitlement to Traumatic Mental Stress (TMS)
The denial of entitlement to Chronic Mental Stress (CMS)

BACKGROUND

On March 14, 2023, the worker submitted a Worker’s Report of Injury, Form 6, claiming entitlement to a work-related back injury that occurred on January 4, 2023. In the attached submission, the worker also states that while performing their duties as a truck driver on December 12, 2022, they were attacked by a person with a knife. As the worker reported a mental stress injury due to an incident that occurred while working, a new claim (this claim) was established. Although the date of incident was initially reported as December 12, 2022, the worker later clarified the date of incident was December 13, 2022.

Prior to rendering a decision, the CM obtained information from the employer, and they requested medical information from the worker’s doctor. In addition, the worker submitted the police report that confirms the worker reported the December 13, 2022, work-related incident. The CM reviewed all evidence, but determined they could not establish proof of a workplace mental stress injury. Therefore, the CM issued a decision dated August 4, 2023, confirming the denial of entitlement to TMS and CMS.

The worker submitted further information to file, and they requested a reconsideration of the

August 4, 2023 decision. Although the CM considered the information submitted, in their reconsideration decision dated August 6, 2024, they upheld their August 4, 2023, decision that denied entitlement to TMS and CMS.

The worker submitted the Appeal Readiness Form (ARF) dated October 30, 2024, confirming their objection to the denial of entitlement to TMS and CMS.

The worker’s objection to the denial of TMS and CMS forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

15-03-14 Chronic Mental Stress

15-03-02 Traumatic Mental Stress

January 2, 2018

ANALYSIS

For the reasons that follow, I find the worker does not have entitlement to CMS or TMS. In reaching this decision, I have carefully considered all the available information on file, the worker’s testimony, and the relevant operational policies.

During the appeal hearing, the worker advised they are very frustrated with WSIB, and their ongoing back and mental stress issues. The worker feels they have been denied a proper evaluation of their mental health condition, and they feel that no one believes them. The worker advised that all their complaints are real, but they feel they are being ignored.

The worker testified that their mental stress condition started immediately after the December 13, 2022, incident when they were in their truck, and someone came to their window, and attacked them with a knife. After this incident, the worker returned to work, and a couple of weeks later, they suffered a

work-related back injury (January 2023) that has been accepted in another WSIB claim. The worker continues to suffer from ongoing back pain. The worker advised they returned to work after the back injury, but approximately 13 days later, the employer terminated their employment. The employer advised them that since they were employed for less than three months, they could terminate them. The worker disagrees with this as they worked with this employer for two seasons, which is approximately.

10 months. The worker feels their employment was terminated because they reported their work injuries, and they complained about safety issues with this employer.

The worker testified they reported their mental stress condition to their family doctor not long after the December 13, 2022, incident, and their family doctor referred them to Dr. Tempier, Psychiatrist.

Dr. Tempier assessed the worker and referred them for counselling. The worker started psychological counselling, but reported they always saw different counsellors. As such, they had to keep repeating their issues over and over. On one occasion, the worker showed up for their appointment, and the clinic was closed. Therefore, for a while, the worker stopped attending counselling. The worker confirmed they have since returned to counselling, and they see a counsellor approximately once a month.

The worker testified they have told their family doctor, Dr. Tempier, and their counsellors that their mental health issues all started after the December 13, 2022, incident when they were attacked by someone with a knife.

After their termination with the accident employer in this claim, the worker secured employment with a new employer. In January 2024, they were driving a work truck for their new employer, when a construction truck started driving towards them in their lane. The worker slowed down, and they had to slam on their brakes. The worker got out of their truck, yelled at the other truck driver, and punched their truck window. Although the worker was the one who called the police, the worker testified they are being charged for hitting the other truck window. The worker testified that this incident has also caused mental stress issues, and under their January 2024 back injury claim, the worker was referred to Dr. Allman, Psychologist.

The worker stated that although they told Dr. Allman that their mental stress issues are related to the December 13, 2022, incident with the knife, Dr. Allman only wanted to hear about their back incident as accepted with their new employer. The worker testified they still have ongoing back issues, and they continue to receive benefits in their WSIB back claim as they have not been able to return to work.

The worker advised they have been seeing their Member of Parliament (MP) who is helping them with their WSIB claims.

The worker testified that their mental stress injuries stem from the December 13, 2022, work-related incident. As such, they are requesting this appeal grant entitlement for their mental stress condition.

In my review of the evidence on file, I note the Worker’s Report of Injury, Form 6 dated June 20, 2023. On this form, the worker states they were driving their truck at the end of their day, when a car passed by them, causing the worker to bring their truck to a stop. Once stopped, a male came out lunging at them with a knife in their hand. The worker confirms they called the police, and they made a police report. The worker relates a back injury to the stress of the incident, and to a lifting incident that occurred two weeks later. The worker saw their MPP to provide the Form 6, but the form was not submitted. The worker confirms they were let go from the employer on January 20, 2023, after their January 4, 2023, back injury.

On August 2, 2023, the employer submitted the Employer’s Report of Injury, Form 7. The employer states the worker did not report the December 13, 2022, accident, and as such, they have no information regarding the incident.

The worker submitted their Record of Employment that confirms their employment with the accident employer ended on January 24, 2023, for other reasons.

Police Report

The worker submitted the police report that confirms the worker reported the December 13, 2022, incident. As per the police report, at 17:27 on December 13, 2022, the worker reported a traffic issue involving a silver vehicle. The worker reported that the driver of this vehicle was an irate male who threatened them with a knife. The worker reported they were driving eastbound, in their tractor trailer, when they were aggressively passed by one newer grey vehicle. The worker reported that a male driver ahead of them kept brake stopping them, for approximately 500 feet, which at one point, forced the worker to make an immediate stop to avoid a collision. An unknown male came out aggressively, holding a knife in their hands, still in the sheath. The unknown male walked up to their vehicle window, with knife in hand, and they were yelling at the worker about their headlight. Both the worker and the unknown male engaged in a heated verbal argument. The unknown male did not take the knife out of their sheath, but they held it in their hands, pointing outwards, and they were challenging the worker to a fight. The worker confirmed there were no verbal threats, yet from the actions and the agitation displayed from the unknown male, the worker felt threatened during the interaction. The worker also advised that the unknown male punched the tractor trailer mirror with their fist, but they did not break the mirror.

As per the follow up report dated December 16, 2022, the police confirm the worker called in a traffic complaint related to the December 13, 2022, incident. The worker reported they saw the silver vehicle that was involved in the December 13, 2022, incident. The police officer spoke to the worker who stated they did not see the driver of the vehicle, nor did they notice anything that made the vehicle stand out to them aside from the colour and the headlights. The worker also stated they were driving their own personal vehicle when they saw the vehicle.

Medical evidence

Dr. Gourley, the worker’s family doctor submitted a report dated June 28, 2023. In this report, Dr. Gourley confirms the worker has been in their care for five years, and that the worker suffers from chronic back pain related to their degenerative disc disease. In terms of the worker’s mental health condition,

Dr. Gourley states the worker has been struggling with a possible mood disorder, and that the worker is under a significant amount of stress arising from a number of sources. The worker is attending psychotherapy, and although they are waiting for an appointment with psychiatry, the wait time is anticipated to be two to four months. Due to the severity of mood change, lack of concentration, and focus, Dr. Gourley provides the opinion that the worker is unable to participate in any form of employment. I find it important to note here that Dr. Gourley makes no reference to any mental stress condition related to the December 13, 2022, incident.

Dr. Tempier, Psychiatrist submitted a consultation report dated July 19, 2023. Dr. Tempier confirms the worker was referred to them for fluctuating mood and anxiety. Regarding the December 13, 2022, incident, Dr. Tempier only states that the worker was quite surprised at the time of the incident, and they were later fired. The worker did secure employment after this, but their employment was terminated. At the time of the assessment, the worker was not working, and they were in receipt of Unemployment Insurance (EI). Dr. Tempier refers to a number of personal and non-occupational issues that have contributed to the worker’s mental health condition. The diagnoses provided is possible Post-Traumatic Stress Disorder (PTSD), and possible intermittent explosive disorder with anxiety and anger features.

Dr. Tempier also notes that they will review to rule out depressive disorder and adjustment disorder as well as personality disorder. Recommendation is made for the worker to talk to a therapist. Although

Dr. Tempier referred the worker to a therapist in their building, Dr. Tempier states the worker has not heard back from the therapist regarding an appointment. Dr. Tempier suggested the worker be prescribed Lamictal or Lamotrigine starting at 25 mg and going up to 25 mg more every two weeks.

They were optimistic that the worker would be able to carry on with their life and get a new job.

On May 11, 2023, the worker was referred to a mental health agency for psychological treatment. As per the referral form screening report, the worker was reported to have possible PTSD related to issues from their childhood, and other non-compensable events. Although the report refers to the worker’s January 4, 2023, back injury, there is no information regarding the December 13, 2022, incident. The worker was depressed, angry, frustrated, and anxious all the time.

In the mental health agency progress note dated June 26, 2023, the worker is reported to still be frustrated with the system, and they feel the system has failed them since childhood. Although this note refers to the worker’s work-related back injury, and the worker’s frustration with the back injury claim, there is no reference to the December 13, 2022, incident. In the progress note dated September 27, 2023, the counsellor states the worker reported they are in dispute with WSIB regarding two claims, and that the worker needs all information sent to WSIB. The worker was to meet with their family doctor the following week to have the information sent to WSIB. The worker is reported to have no income support, and they are still looking for work. The worker was to complete an Ontario Disability Support Program (ODSP) form at their next visit.

1) Does the worker have entitlement to CMS?

For the reasons that follow, I find the worker does not have entitlement to CMS.

In reviewing entitlement to CMS, I refer to Policy 15-03-14 that states a worker will generally be entitled to benefits for CMS if an appropriately diagnosed mental stress injury is caused by a substantial

work-related stressor that arises out of and in the course of the worker’s employment. Furthermore, the substantial work-related stressor must be the predominant cause of an appropriately diagnosed mental stress injury.

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

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

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

As stated in Policy 15-03-14, before any CMS claim can be adjudicated, there must be a diagnosis in accordance with the DSM. This may include, but is not limited to acute stress disorder, PTSD, adjustment disorder, or an anxiety or depressive disorder.

In determining if this policy criteria has been met, I refer to Dr. Gourley’s June 28, 2023 report, in which Dr. Gourley provides a possible diagnosis of mood disorder. In the psychological report dated

July 19, 2023, Dr. Tempier states the worker’s diagnosis is possibly PTSD with possible intermittent explosive disorder with anxiety and anger features. The May 11, 2023, mental health agency psychological progress reports also refer to possible PTSD related to issues from their childhood, and other non-compensable events.

Based on my review of the medical evidence, I do not find a confirmed DSM diagnosis on file. While I do not question the psychological findings provide possible diagnoses, such as possible PTSD, and possible intermittent explosive disorder with anxiety and anger features, there is no evidence on file to support the worker underwent psychological testing to confirm these diagnoses. As there are no medical reports on file that provide a confirmed DSM diagnosis, I do not find this policy criteria has been met.

As per Policy 15-03-14, the term “work-related stressor” is meant to include multiple work-related stressors, as well as a cumulative series of work-related stressors.

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

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

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

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

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

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

In this case, the worker is claiming that on December 13, 2022, while driving their work truck, another driver cut in front of them and forced them to stop. The other driver then got out of their car, came up to the worker’s truck window holding a knife, and held the knife up to the window as they yelled at the worker. While I note the evidence does not support the worker was physically harmed during the incident, and that the person did not specifically threaten the worker, I accept this incident would not be one that is normally expected for a truck driver. In addition, the police report states that the person holding the knife was aggressive and displayed agitation. Therefore, I find the December 13, 2022, incident was substantial in intensity in comparison to the normal pressures and tensions experienced by workers in similar circumstances. For these reasons, I accept the evidence supports the December 13, 2022, incident was a work-related stressor. Therefore, I find this policy criteria has been met.

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

As outlined above, I have concluded the evidence does not support a confirmed diagnosed mental stress injury. In addition, although I find the psychological reports do confirm the worker is being investigated and treated for mental health issues, I find no evidence in the medical reports on file to support the treating physicians relate the worker’s mental health stress to the December 13, 2022, incident.

Dr. Gourley states the worker has been struggling with a possible mood disorder, and notes the worker is under a significant amount of stress arising from a number of sources. However, in their report,

Dr. Gourley makes no mention of the December 13, 2022, incident. Although Dr. Tempier refers to the December 13, 2022, incident in their report, they only state that at the time of the incident, the worker was surprised. However, they refer to a number of personal and non-occupational issues as the cause for the worker’s mental health stress. I also note that the mental health agency psychological treatment notes relate the worker’s possible PTSD to issues from their childhood, and other non-compensable events. There is no mention in the treatment notes of the December 13, 2022, incident when the person came up to the worker in their truck with the knife.

For the reasons stated above, I find the medical evidence does not support the December 13, 2022, incident is the predominant cause for the worker’s mental stress condition. Therefore, I find this policy criteria cannot be established.

In summary, I find the evidence does not support a confirmed DSM diagnosis. I also find the evidence does not support the December 13, 2022, incident is the predominant cause for the worker’s mental stress. Since all criteria as outlined in Policy 15-03-14 have not been met, I do not find the worker has entitlement to CMS.

2) Does the worker have entitlement to TMS?

For the reasons that follow, I find the worker does not have entitlement to TMS.

In addressing entitlement to TMS, I refer to Policy 15-03-02 that states a worker will generally be entitled to benefits for TMS if an appropriately diagnosed mental stress injury is caused by one or more traumatic events arising out of and in the course of the worker’s employment. In order to consider entitlement for mental stress related to one or more traumatic events, the WSIB decision-maker must identify that one or more traumatic events occurred. A traumatic event may be a result of a criminal act or a horrific accident and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others. In most cases, a traumatic event will be sudden and unexpected.

In all cases, the event(s) must arise out of and occur in the course of the employment, and be

clearly and precisely identifiable, and
objectively traumatic

Traumatic events include, but are not limited to

witnessing a fatality or a horrific accident
witnessing or being the object of an armed robbery
witnessing or being the object of a hostage-taking
being the object of physical violence
being the object of death threats
being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
being the object of workplace harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse), and
being the object of workplace harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous)

The worker must have suffered or witnessed the work-related traumatic event(s) first hand, or heard the work-related traumatic event(s) first hand through direct contact with the traumatized individual(s), e.g., speaking with the victim(s) on the radio or telephone as the traumatic event(s) is/are occurring.

Policy 15-03-02 goes on to state that there is no entitlement for TMS caused by an 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

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

violence or threats of violence, or
conduct that a reasonable person would perceive as egregious or abusive.

Medical Diagnosis

As previously noted, I do not find a confirmed DSM diagnosis on file. While I do not question the psychological findings provide possible diagnoses, such as possible PTSD, and possible intermittent explosive disorder with anxiety and anger features, there is no evidence on file to support the worker underwent psychological testing to confirm these diagnoses. As there are no medical reports on file that provide a confirmed DSM diagnosis, I do not find this policy criteria has been met.

Clearly and Precisely Identifiable Event that is Objectively Traumatic

The worker testified that while driving on December 13, 2022, another car cut in front of them causing the worker to stop their truck. The other driver got out of their car, came up to the worker’s truck window, and attacked them with a knife. The worker then called the police. In my review of the police report, I note the worker reported the other driver did not threaten them with a knife. The worker reported the driver was holding a knife in their hands, but that the knife was still in the sheath. The other driver did not take the knife out of their sheath, but they held it in their hands, pointing outwards, and they were challenging the worker to a fight. The worker confirmed that although there were no verbal threats, based on the agitation displayed from the unknown male, the worker felt threatened during the interaction.

I find it significant to note that the worker’s testimony that they were attacked by the person with the knife is not consistent with what they reported to the police. As per the police report, the worker engaged in a verbal argument with the person holding the knife, and that the knife never came out of the sheath. Although the knife was pointing outwards, there is no evidence the worker reported they were attacked with the knife. However, I accept that the evidence supports someone did come up to the worker’s truck window holding a knife and challenged the worker to a fight. I accept this is a clear and identifiable event that was also objectively traumatic.

Based on my review of the evidence, I find the worker does not have entitlement to TMS. As per

Policy 15-03-02, for TMS to be allowed, the worker has to be diagnosed with an appropriately diagnosed mental stress injury that is caused by one or more traumatic events arising out of and in the course of the worker’s employment. In this case, I do not find the worker has been diagnosed with an appropriately diagnosed mental stress injury that was caused by the December 13, 2022, incident. Therefore, I find the required policy criteria has not been met. As such, I find the worker does not have entitlement to TMS.

CONCLUSION

I find the worker does not have entitlement to TMS.

I find the worker does not have entitlement to CMS.

The worker’s objection is denied.

DATED January 27, 2025

Kelly Gordon

Appeals Resolution Officer

Appeals Services Division