WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 698/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 698/14 BEFORE: R. McCutcheon : Vice-Chair A.D.G. Purdy : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: April 10, 2014 and October 28-29, 2014 at Hamilton Oral hearing DATE OF DECISION: May 27, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1155 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) M. Evans dated October 24, 2011 ARO N. Grunenko dated June 14, 2012 APPEARANCES: For the worker: For the employer: Interpreter: M. Zare, Paralegal S. Alam, Lawyer Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 698/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals two ARO decisions, giving rise to the following issues in this appeal: Entitlement for mental stress under Claim #2 ; Ongoing entitlement for the neck, including a permanent impairment assessment under Claim #1; Entitlement for the bilateral shoulders, upper extremities, and the low back under Claim #1; Entitlement for chronic pain disability (CPD) and/or psychotraumatic disability under a separate claim for a physical injury ( Claim #1 ). [2] The worker testified over two days of hearing in response to questioning by her representative and the employer's representative. Representatives for both parties made submissions. [3] The Workplace Safety and Insurance Act, 1997 (the WSIA) applies to this appeal. Subsections 13(4) and (5) of the WSIA govern claims for mental stress and state: (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress. (5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer s decisions or actions relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. [4] In final submissions on behalf of the worker, the worker's representative cited Decision No. 2157/09, which found that subsections 13(4) and (5) of the WSIA violate section 15 of the Charter of Rights and Freedoms 1 and were not saved by section 1. In that case, the Panel declined to apply subsections 13(4) and (5) of the WSIA and allowed the worker s claim for mental stress. The worker's representative submitted that the Panel in this case should follow Decision No. 2157/09. In response, the employer's representative submitted that Decision No. 2157/09 was distinguishable from the facts of this case since it addressed a case of harassment. [5] The Panel notes that Decision No. 2157/09 did not make a general declaration of the constitutional invalidity of subsections 13(4) and (5) of the WSIA, as this Tribunal does not have the jurisdiction to do so. Accordingly, parties who intend to advance a constitutional argument before this Tribunal are expected to file a Notice of Constitutional Question in compliance with Tribunal s Practice Direction 2 if they intend to argue that subsections 13(4) and (5) of the WSIA are not constitutional. Furthermore, this Tribunal follows the practice of the Courts to address constitutional arguments only when necessary for the outcome of the case; therefore, a Charter question that is raised in accordance with the Practice Direction will be addressed by the 1 2 Canadian Charter of Rights and Freedoms, Constitution Act, 1982, R.S.C. 1985, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11. WSIAT Practice Direction: Procedure When Raising a Human Rights Or Charter Question. Effective date: July 1, 2014.

3 Page: 2 Decision No. 698/14 Tribunal only after a decision has been made on the other issues in the appeal under the applicable legislation and Board policy. Where the Tribunal has made a final decision on the other issues to the appeal so that a decision on the Charter question is no longer required, the Tribunal will not decide the Charter question. [6] The worker's representative did not file a Notice of Constitutional Question in this case; however, in view of our decision on the merits of the appeal it was unnecessary for the Panel to hear further submissions on the Charter issue. (ii) Issues and decision [7] The worker takes the position that her mental stress claim meets the requirements of the Act, or in the alternative, that the mental stress provisions ought not to be applied. The worker submits that she also has physical injuries related to the nature of her work generally. [8] The employer's representative submits that the mental stress claim ought to be denied as it does not meet the requirements of the Act and applicable Board policy. The employer submits that the worker s physical conditions were pre-existing and unrelated to the nature of her job. [9] For the reasons set out in this decision, the worker s appeal is allowed in part as follows: The worker is granted entitlement for mental stress under Claim #2. The Panel finds that the worker s mental stress claim meets the requirements of the Act and the applicable policy. Ongoing entitlement for the neck, including a permanent impairment assessment under Claim #1 is denied. Entitlement for the bilateral shoulders, upper extremities, and low back under Claim #1 is denied. Entitlement for CPD and/or psychotraumatic disability under a separate claim for a physical injury ( Claim #1 ) is denied. (iii) Background [10] In 1979, the now 57-year-old worker started as a communications operator and dispatcher with the accident employer, a police force. Her job duties included answering 911 calls, as well as assisting officers in the field when they were in pursuit of suspects. [11] In February 2009, she reported an onset of pain in multiple areas, including the head, face, upper back, lower back, and bilateral upper extremities. She attributed her condition to ongoing repetitive sitting, keyboarding, using a computer mouse, reaching, and inability to move freely while at work. She described severe pain, burning, numbness, tingling, pins and needles, her upper back and neck locking up, and her entire torso locking up. She stated that she had pain in the elbows that radiated up into the neck and extremities. [12] In February 2009, the WSIB adjudicator contacted the worker to obtain a statement about the onset of her condition. The worker reported a long history of pain, burning, and numbness in her neck, elbows, shoulders, arms, hands, and back. She stated the pain originally started in her neck, shoulder, and elbow, and worsened over time. She described her work as a 911 operator involving 12-hour shifts keyboarding, using a computer mouse, and reviewing three different screens, while sitting for prolonged periods. The WSIB adjudicator decided to grant entitlement

4 Page: 3 Decision No. 698/14 for a neck condition on the basis of a gradual-onset disablement injury related to a change in the worker s job duties, in which a third computer screen had been added to the work station. Further medical information was pending. [13] Upon review of further medical evidence, including an MRI of the neck, the WSIB decided to limit entitlement for the neck in Claim #1 on an aggravation basis, finding that the worker had a major pre-existing condition which had been symptomatic for years and was deteriorating. The worker attempted to return to work for a brief period, but was off work again by August The employer implemented accommodations based upon recommendations from a return to work specialist. The worker was not successful in further attempts to return to work. The WSIB found that the employer offered suitable modified work and entitlement to loss of earnings (LOE) benefits after October 2009 was denied. [14] In the course of the adjudication under Claim #1, the worker told her adjudicator that her doctor believed she was suffering from post-traumatic stress disorder (PTSD). The worker advised the adjudicator that she was not sure why she would tense up every time she attempted to return to work. According to the adjudicator s memorandum, the worker attributed her PTSD to two particular gun calls. The worker said she did not know how much this was bothering her until her family doctor finally told her that she might have PTSD. She had been referred to a psychologist. [15] A new claim was established for the worker s PTSD (Claim #2). The WSIB denied the claim, finding that the statutory and policy entitlement criteria for mental stress were not met. The WSIB found that the worker s condition was related to conflict with a supervisor rather than particular calls she handled in the course of her employment. This decision was confirmed by the 2011 ARO decision. [16] The WSIB denied the worker s claims for the bilateral shoulders, upper extremities and low back under Claim #1, as well as entitlement for CPD or psychotraumatic disability. In the 2012 ARO decision, the worker s objection was denied. The ARO noted that there was no initial medical information regarding these areas or any relationship drawn between these areas and the work aggravation of the neck which was accepted in Other than tenderness in these areas, there was no diagnosis. The ARO also referred to evidence of longstanding problems. The Worker s Report of Injury (Form 6) noted that she had pain problems since 2004 and ongoing physiotherapy for 15 to 20 years. The ARO further noted that there were two previous claims for entitlement which were denied. The ARO found that the entitlement criteria for CPD and psychotraumatic disability were not met. (iv) Law and policy [17] As noted above, the WSIA applies to this appeal. The worker s claim for entitlement for physical injuries is governed by the general entitlement criteria set out in section 13. Pursuant to section 13, a worker is entitled to benefits under the WSIA for a personal injury by accident arising out of and in the course of employment. [18] The worker s claim for PTSD is subject to the limitations on mental stress claims set out in subsections 13(4) and (5) of the WSIA.

5 Page: 4 Decision No. 698/14 [19] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [20] The WSIB provided a statement of applicable policy pursuant to section 126 of the WSIA. The Panel has considered the relevant statutory provisions and policies as relevant, in the analysis of the issues, below. (v) Background information about PTSD [21] The record in this appeal included the Tribunal s Discussion Paper, Post Traumatic Stress Disorder, (February 2010), prepared by Dr. Diane Whitney, associate professor of psychiatry at the University of Western Ontario. 3 The Discussion Paper includes the following definition of PTSD: Trauma: For PTSD to develop, the person must have suffered or witnessed an event that involved actual or threatened death or serious injury to self or others. According to Diagnostic Statistical Manual IV (DSM IV) of the American Psychiatric Association, the person s response must have included intense fear, helplessness or horror. Thus, there is now a subjective aspect to the trauma with the emphasis being shifted from the severity of the trauma to the person s reaction to the trauma in this version of the DSM. There are likely to be further revisions related to the DSM V. Symptom Clusters: There are 3 symptom clusters according to DSM IV, which define Post Traumatic Stress Disorder. The clusters are re-experiencing the traumatic event, avoidance & emotional numbing and increased arousal. The symptoms must be present for at least one month and cause significant distress and/or impair functioning. The traumatic event is re-experienced in 1 or more of the following ways: Recurrent & intrusive distressing recollections and dreams of the event Acting or feeling as if the trauma was reoccurring Psychological distress and/or physiological reactivity when exposed to cues that resemble an aspect of the traumatic event. Avoidance of stimuli associated with trauma and a general numbing of responsiveness indicated by 3 or more of the following: Avoidance of thoughts, feelings or conversation associated with the trauma Avoidance of activities that will arouse recollection of the trauma (places or people) Inability to recall an important aspect of event Markedly diminished interest in significant activities 3 This Discussion Paper provides general information. It is intended to provide a broad and general overview of a medical topic that is frequently considered in Tribunal appeals. Each medical discussion paper is written by a recognized expert in the field, who has been recommended by the Tribunal s medical counsellors. Each author is asked to present a balanced view of the current medical knowledge on the topic. Discussion papers are not peer reviewed. They are written to be understood by lay individuals. Discussion papers do not necessarily represent the views of the Tribunal. A vice-chair or panel may consider and rely on the medical information provided in the discussion paper, but the Tribunal is not bound by an opinion expressed in a discussion paper in any particular case. Every Tribunal decision must be based on the facts of the particular appeal. Tribunal adjudicators recognize that it is always open to the parties to an appeal to rely on or to distinguish a medical discussion paper, and to challenge it with alternative evidence: see Kamara v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2009] O.J. No (Ont Div Court).

6 Page: 5 Decision No. 698/14 Feelings of detachment Restricted range of mood Sense of foreshortened future Symptoms of increased arousal as indicated by 2 or more of the following: Difficulty falling or staying asleep Irritability or outbursts of anger Difficulty concentrating Hyper-vigilance Exaggerated startle response [22] The PTSD Discussion Paper also reviews different sub-types of PTSD, including delayed-onset PTSD: In some situations, PTSD symptoms may develop long after the traumatic event and it is classified as delayed onset if symptoms begin 6 months after the event. Unfortunately there is not an accepted time limit between experiencing the trauma and the development of PTSD. In some circumstances PTSD develops decades after the initial trauma and may be triggered by a reminder of the trauma (i.e. World War II veterans developing PTSD 30 years later) or after experiencing another trauma (i.e. early childhood trauma with no apparent PTSD and subsequent development of PTSD following sexual harassment as an adult). [23] Dr. Whitney also provides background information on PTSD, noting that trauma has long been associated with psychological symptoms and disability. Various labels have been used for war-related trauma including: Irritable Heart in US Civil War, Shell Shock in World War I, Battle Fatigue in World War II, and Post Traumatic Stress Disorder in the Vietnam War. According to Dr. Whitney, since the Vietnam War, the diagnosis of Post-Traumatic Stress Disorder has been extended to non-war trauma including work place accidents, natural disasters and motor vehicle accidents. In addition, the sequelae of childhood sexual and physical abuse are understood as a form of PTSD that affects personality development, interpersonal relationships, and affect regulation (ability to deal with various feelings) extending into adulthood. (vi) Analysis [24] The appeal is allowed in part for the reasons set out below. (a) Entitlement for mental stress [25] The worker s appeal on this issue is allowed. The Panel finds that the worker s claim meets the statutory and policy entitlement criteria for mental stress. In reaching this conclusion, the Panel finds that the worker s mental stress condition was not related to employment decisions, which are excluded from entitlement under the WSIA. (1) Relevant statutory provisions and policy [26] As noted above, subsections 13(4) and (5) of the WSIA excludes entitlement for mental stress, except in specified circumstances. Pursuant to section 126 of the WSIA, the Board provided a statement of applicable policy, which included Operational Policy Manual (OPM)

7 Page: 6 Decision No. 698/14 Document No , Traumatic Mental Stress (the TMS Policy ). That policy sets out the following guidelines for mental stress entitlement: Policy A worker is entitled to benefits for traumatic mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. A worker is not entitled to benefits for traumatic mental stress that is a result of the employer's employment decisions or actions. Guidelines Sudden and unexpected traumatic event In order to consider entitlement for traumatic mental stress, a decision-maker must identify that a sudden and unexpected traumatic event occurred. A traumatic event may be a result of a criminal act, harassment, 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 all cases, the event must arise out of and occur in the course of the employment, and be clearly and precisely identifiable objectively traumatic, and unexpected in the normal or daily course of the worker's employment or work environment. This means that the event can be established by the WSIB through information or knowledge of the event provided by co-workers, supervisory staff, or others, and is generally accepted as being traumatic. Sudden and unexpected traumatic events include 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 harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse) being the object of 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 traumatic event first hand, or heard the traumatic event 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 is occurring).

8 Page: 7 Decision No. 698/14 [27] The Tribunal s case law stands for the proposition that the list of examples provided in Board policy is not exhaustive, although the types of examples listed in the policy ought to be considered instructive in determining whether a particular case meets the policy requirements. [28] The TMS Policy also sets out guidelines for interpreting the term acute reaction : An acute reaction is a significant or severe reaction by the worker to the work-related traumatic event that results in a psychiatric/psychological response. Such a response is generally identifiable and must result in an Axis I Diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). An acute reaction is said to be immediate if it occurs within four weeks of the traumatic event. An acute reaction is said to be delayed if it occurs more than four weeks after the traumatic event. In the case of a delayed onset, the evidence must be clear and convincing that the onset is due to a sudden and unexpected traumatic event, which arose out of and in the course of the employment. Workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits. (2) The Panel s findings of fact and determination of causation [29] In allowing the appeal on this issue, the Panel accepts the worker s credible testimony that she felt that her condition was triggered by two specific gun calls. The worker has been consistent in attributing her condition to these incidents throughout this claim and her credibility was not undermined in cross-questioning. [30] The first incident occurred on April 1, There was a call from a plainclothes officer who was not logged in at the scene; the plainclothes officers were running with firearms. A staff sergeant at the scene took over the call, making it impossible for the worker to obtain details and make sure the officers at the scene had the necessary information. There was a danger in the inability to communicate because the officers were in plainclothes carrying firearms and the uniformed officers arriving on the scene could potentially mistake them for suspects. The worker felt that this was unusually stressful because, in her words, those were my guys, whose lives were in danger and she had no control over the situation. The worker had a long employment history with the police force and felt a close connection with her colleagues. [31] Later that day, the worker s neck and shoulders seized up, leading to her claim for a physical injury. The worker testified that she eventually realized that this seizing up was caused by stress. [32] The second incident occurred in January 2009, with a call related to a shooting at a coffee shop. The officers were in pursuit of suspected armed robbers. Shots were fired and it was unclear if the officers were hurt. The worker then described that she physically seized up at work after a seemingly mundane call. [33] The worker testified regarding her subsequent attempts to return to work following her physical injury claim. When she approached the work location, she became panicked, and that was when she began to realize that her condition was related to stress. [34] In addition, in her testimony and a letter provided to the WSIB with her Form 6, the worker described numerous other traumatic calls and incidents. These included a murder/decapitation, domestic violence/murders, and horrific accidents involving children. For

9 Page: 8 Decision No. 698/14 example, one call related to a father who killed his two children and then killed himself; the worker learned that she had grown up with his wife. The worker noted several people have died while she was on the phone with them and trying to get them help. In the letter attached to the Form 6, the worker concluded: I have worked on many murders, beatings, shootings, serious accidents, etc. and was always very good at my job. I don t know why I can t take the stress anymore. That scares me and embarrasses me. I don t want to write anymore. [35] In denying the claim, the WSIB focused upon a reference in the medical notes to the worker s annoyance with a staff sergeant. On May 5, 2008, the doctor noted that the worker was dealing with situational stress. The worker testified that the comment in the clinical notes regarding interpersonal issues referred to the situation when police constables were not on the radio and the situation with the sergeant taking over the radio. The next clinical note indicated that therapy helped. A clinical note dated February 5, 2009 indicated that the worker was a dispatcher who had stress and referred to a supervisor. Ativan was prescribed. Shortly after the coffee shop gun call, the worker seized up. The worker testified that she told the doctor of the stressful work events, but it was not noted at that time. The worker described the stressful events in her testimony. When she sought treatment, it was related to her overall stressors related to her work. [36] Subsequently, the clinical notes reflect a focus on physical complaints and an unsuccessful return to work. The worker testified that she did not understand what was happening until she tried to return to work and felt fearful to enter the building. She could not return to the radio room and she began to understand what was wrong. The clinical note of November 11, 2009 diagnosed PTSD attributed to violent calls. The worker reported nightmares and other symptoms and was referred to a psychiatrist. The referral note states that the referral was made to rule out a diagnosis of PTSD. [37] Taking into account the worker s testimony and the documentary evidence, the Panel finds that the worker s reaction was not related to an employment decision, but rather, the worker was upset that the staff sergeant s actions during the April 2008 call potentially put the officers in danger and interfered with her ability to do her job in providing information that was relevant to their safety. As a result of those actions, the worker lost control over the call and felt helpless to provide assistance to the officers at the scene. The worker s perception of the staff sergeant s actions played a role in the dangerous situation created during the April 2008 call, but her irritation with the staff sergeant was not itself the primary contributor to the worker s condition. [38] The medical evidence demonstrates that these events significantly contributed to the development of the worker s diagnosis of PTSD. In particular, we rely upon the psychological assessment report from Dr. J. Gouws, dated July 22, This report was based upon a detailed history-taking, as well as the administration of a number of tests, including the Beck Depression Inventory, the Trauma Symptom Inventory-2, and the Post-Traumatic Stress Diagnostic Scale. The results of these tests were described as valid and reliable. Dr. Gouws summarized the conclusions in part: [The worker] presents with a direct consequence of continued trauma, in that the stressful events she experienced while working as a Communications Operator indeed meet the traumatic diagnostic criterion and with the continuing unpleasant circumstances following from that (the residual pain symptoms, the cognitive deficits and the general

10 Page: 9 Decision No. 698/14 mood fluctuations) are the primary and overriding causal factors in her presentation which would not have occurred without the impact these events and the accompanying stressors. In this regard, she meets the diagnostic criteria of Posttraumatic Stress Disorder, in that she continues to evidence protracted response to the stressful events, which for her was of very threatening and catastrophic nature and still causes her pervasive distress. During this assessment she presented with repeated emotional distress related to the reliving of these trauma events in the form of intrusive memories, a sense of numbness and emotional blunting, detachment from other people, anhedonia, and avoidance of activities and situations reminiscent of these events. She also reported evidence of autonomic hyperarousal, which includes startle reaction and insomnia. As is commonly found in PTSD, anxiety and depression form part of her presentation. [39] The Axis I Diagnosis under the DSM-IV-TR included Post-traumatic Stress Disorder, Chronic. At that time, the worker s Global Assessment of Functioning (GAF) was 45. Dr. Gouws also noted that the worker had no significant pre-accident stressors or traumas that may have caused her current psychological impairment. [40] The record also includes the clinical notes of Dr. Dziurdzy, a psychologist, who started seeing the worker in December Dr. Dziurdzy s clinical notes describe the nature of her job and the two gun calls leading up to her inability to continue working. Dr. Dziurdzy s clinical notes contain several references indicating that the worker was terrified of her job; she had developed fear of putting officers at risk and had a loss of confidence; she was afraid that someone would die because of her screw-up. In January 2010, the worker had suicidal thoughts and was feeling helpless. Dr. Dziurdzy provided an initial narrative report which did not provide a diagnosis of PTSD; however, the report also notes that the worker s job involved taking calls regarding murders, hostage taking, and people dying while talking to her. In addition, Dr. Dziurdzy s clinical notes refer to PTSD on several occasions and that the worker had a phobia about returning to the place of employment. By March 2011, the worker continued to feel that she could not go back to that job in that room. [41] In a narrative report dated November 9, 2010, Dr. Dziurdzy noted that the worker was verging on having nightmares, panicked at the thought of returning to her previous position, and had symptoms of PTSD. [42] As noted above, we find that the worker s credibility was not undermined in cross-questioning. Much of the employer's representative s cross-questioning focused on more recent medical reporting, which indicated that the worker s condition has improved. The employer's representative has also argued that the worker s mental condition was related to financial stressors rather than traumatic events at work. The Panel is unable to give effect to these submissions for two main reasons. First, to the extent that the recent medical reporting suggests that the worker s psychiatric condition has improved, it is evident that this is due to the fact that the worker eliminated from her life the main trigger for her psychiatric condition: namely, her employment. Indeed, it appears that the worker has made attempts to minimize all forms of stress in her life to the extent possible. [43] In addition, it is evident that the worker s psychiatric condition continues to be prone to exacerbation with stress. For example, the worker testified that she required intervention from her mental health practitioners following the first day of hearing due to her distress that her hearing would not be completed that day. Secondly, with regard to the employer's representative s reference to financial stressors, there is no evidence that financial stressors were the triggering cause for her diagnosis of PTSD. The worker did not have financial problems

11 Page: 10 Decision No. 698/14 until she was no longer able to work due to her PTSD. Financial problems became an additional source of stress after she stopped working, but there is no evidence of any substance that the worker s financial problems caused or contributed to the onset of her PTSD. [44] The employer's representative relied on the report of Dr. D. Heath, a psychiatrist who provided a report to the employer s insurer dated June 29, The employer's representative noted that Dr. Heath stated that there is no evidence that she has a specific diagnosis like PTSD or major depression. It appears that Dr. Heath relied upon the clinical notes from Dr. Dziurdzy in this regard. The Panel is unable to give significant weight to this statement for several reasons. Dr. Heath s statement that there was no evidence of a diagnosis of PTSD is inaccurate. As noted above, Dr. Dziurdzy s notes contain numerous references to PTSD and several indications that the worker was terrified of returning to her job. Furthermore, in her later narrative report dated November 9, 2010, Dr. Dziurdzy noted that the worker was on the verge of nightmares and had symptoms of PTSD. The Panel finds Dr. Heath s report is contradictory and confusing in this regard. Although Dr. Heath stated that there was no indication of a diagnosis of PTSD, Dr. Heath also notes that the worker experienced the job as stressful for several years; her last day sounded very stressful as she lost control of a situation and felt helpless and frustrated, and lost confidence. Dr. Heath also stated that my impression is that she is like many people who only become aware of stress in hindsight; before that they experience it by somatic symptoms and don t make the connection. Finally, given that Dr. Heath did not examine the worker, we give little weight to his statement that there was no evidence that the worker had PTSD. [45] The employer's representative also submitted that entitlement to mental stress attributed to employment decisions is excluded by the WSIA. This assertion is correct, but no employment decisions have been identified as the overwhelming cause of the worker s mental stress. The Panel accepts the worker s testimony that a reference to interpersonal conflict in the clinical notes related to the gun call in which the sergeant interfered with her ability to handle a call, potentially putting officers in danger. This is properly characterized as a workplace interaction, rather than an employment decision analogous to the list of examples in Board policy, such as transfer, demotion, discipline, or termination. [46] The employer's representative argued that the worker s reaction was not acute because it was delayed. The PTSD Discussion Paper explains that the onset of PTSD may be delayed and provides examples. The TMS policy also recognizes entitlement for a delayed reaction where the evidence is clear and convincing that the onset is due to a sudden and unexpected traumatic event which arose out of and in the course of the employment. For all of the above reasons, the Panel finds that there is clear evidence that the worker s stress reaction was related to workplace events. (3) Whether the workplace events were unexpected and traumatic [47] The Panel has accepted that the worker had an acute reaction to the events at work. Her claim meets the diagnostic requirements of Board policy in that she has been diagnosed with PTSD, which is causally related to her work duties, specifically, two gun calls that eventually led to her inability to continue working. [48] In order to qualify for entitlement under the WSIA, the worker s mental stress condition must be related to sudden and unexpected traumatic events that arose out of and in the course of her employment. The TMS Policy provides for entitlement to workers who hear the traumatic

12 Page: 11 Decision No. 698/14 event 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 is occurring). This provision applies to 911 call operators such as the worker, who did hear the events of the two particular calls first hand, and also described numerous other incidents of handling calls from victims who were injured or died during the course of the call. [49] Due to the nature of the worker s employment as a 911 call operator, the Panel must consider the interpretation of traumatic and unexpected in the context of employment which regularly involves exposure to traumatic and/or dangerous situations. [50] Some Tribunal decisions have found that the traumatic event must be one that was unusual and unexpected in the worker s particular line of work or industry. That is to say, the point of view for determining whether the event was traumatic is the average worker with the same occupation (See, for example, Decision No. 509/07). Other decisions have adopted the position that the proper application of the average worker test should be by reference to an average worker in the general labour pool, rather than an average worker doing the same kind of work as a claimant (See, for example, Decision Nos. 1313/14 and 1839/07). [51] The Panel prefers the latter approach, particularly because it is consistent with the cumulative effect provision of the TMS policy, which states: Cumulative effect Due to the nature of their occupation, some workers, over a period of time, may be exposed to multiple, sudden and unexpected traumatic events resulting from criminal acts, harassment, or horrific accidents. If a worker has an acute reaction to the most recent unexpected traumatic event, entitlement may be in order even if the worker may experience these traumatic events as part of the employment and was able to tolerate the past traumatic events. A final reaction to a series of sudden and traumatic events is considered to be the cumulative effect. The WSIB recognizes that each traumatic event in a series of events may affect a worker psychologically. This is true even if the worker does not show the effects until the most recent event. As a result, entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic (significant). In considering entitlement for the cumulative effect, decision-makers will rely on clinical and other information supporting that multiple traumatic events led to the worker s current psychological state. Also, there may be evidence showing that each event had some effect or life disruption on the worker, even if the worker was not functionally impaired by the effect or life disruption. [Italics added] [52] In the Panel s view, the approach exemplified in Decision No. 1839/07 is consistent with the foregoing terms of Board policy, which recognize that some occupations, by their very nature, involve frequent exposure to various types of traumatic events. The policy does not suggest that the traumatic events experienced by these workers are subject to a higher standard, but rather, sets the terms for such entitlement: namely, that the worker has an acute reaction to the most recent traumatic event. Furthermore, the policy specifically recognizes that entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic (significant). This Tribunal is required to apply Board policy pursuant to section 126 of the WSIA; therefore, the Tribunal must give effect to the terms of Board policy when interpreting subsections 13(4) and (5) of the WSIA.

13 Page: 12 Decision No. 698/14 [53] Furthermore, in considering the appropriate interpretation of subsections 13(4) and (5), the Panel notes that workers involved in emergency responder occupations, by the very nature of their work, are more likely to be exposed to events that meet the diagnostic criteria for PTSD. As noted in Dr. Whitney s Discussion Paper, the evolution of the diagnosis of PTSD began with so-called shell shock experienced by combat soldiers. Although traumatic experiences were not unexpected in war, the Discussion Paper suggests that this factor is irrelevant for the diagnosis. In the Panel s view, it is unlikely that the Legislature intended to exclude claims that meet the diagnostic criteria for PTSD in the true sense. To use the language of Decision No. 1839/07, it does not make sense from a public policy point of view to penalize workers whose jobs, by their very nature, entail exposure to objectively traumatic events. The Panel finds that such an interpretation is counterintuitive and likely does not give effect to the Legislature s intention. As noted in Decision No. 2157/09 (paragraphs ), the enactment of subsections 13(4) and (5) was meant to limit entitlement to mental stress that arises out of and in the course of employment; the focus of the provisions is to ensure workplace causation. In the Panel s view, limiting the scope of the interpretation with respect to emergency responders does not give effect to this intention, since causation is usually not in dispute in these cases and such workers are clearly exposed to multiple objectively traumatic events. [54] Tribunal decisions, such as Decision No. 1839/07, have also considered whether the traumatic events were unexpected in the worker s employment. Given that the legislative intention of subsections 13(4) and (5) is to focus upon causation, the Panel finds that the term unexpected should not be construed strictly in this context. The PTSD Discussion Paper, cited above, notes that the diagnosis is associated with an event in which the person s response involved a sense of fear, helplessness, and horror. In this case, the April 2008 event involved a significant degree of fear helplessness, in that the worker was not able to communicate over the line and assist the officers due to the sergeant s actions and their lives were in danger. Although the worker was accustomed to handling dangerous situations over the phone, it was unexpected that there would be interference in her ability to perform her job and provide assistance to the officers on the line. The clinical notes of Dr. Dziurdzy demonstrate that the two particular gun calls at issue undermined her confidence and caused her to question her ability and fear that she would make an error that would lead to the deaths of her officers. [55] For all of the above reasons, the Panel finds that the worker s claim meets the eligibility requirements of subsections 13(4) and (5) of the WSIA and falls within the cumulative effect provisions of the TMS policy. (b) Ongoing entitlement for the neck, including a permanent impairment assessment under Claim #1 (c) Entitlement for the bilateral shoulders, upper extremities and low back under Claim #1 [56] The Panel will consider these two issues together, as they both require review of similar medical evidence. The worker s appeal is denied on these issues since the worker had a longstanding history of pain requiring treatment. The WSIB correctly limited entitlement for neck on an aggravation basis. The decision to deny entitlement for the other areas claimed was correct as there was a lack of an identifiable workplace injuring process related to those conditions.

14 Page: 13 Decision No. 698/14 [57] Section 13 of the WSIA provides that a worker is entitled to benefits for a personal injury by accident arising out of and in the course of employment. The definition of accident includes a disablement, which in turn includes a condition that emerges gradually over time or an unexpected result of working duties (OPM Document No ). Section 13 provides that an injury occurring in the course of employment is presumed to have arisen out of the employment, but this presumption does not apply to disablement injuries: see, for example, Decision No. 1672/04 (2009), 88 W.S.I.A.T.R. (online). [58] OPM Document No , Aggravation Basis, is relevant to the worker s claims for physical injuries and states in part: In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. [59] The policy stipulates that entitlement is not limited in cases where there is no pre-accident impairment, or the severity of the accident/exposure on its own would have resulted in additional impairment. [60] According to the policy, a pre-accident impairment is a condition that has produced periods of impairment/illness requiring health care and has caused a disruption in employment. (Although the period of time cannot be defined, a decision-maker may use a one to two year timeframe as a guide.) The policy goes on to provide further guidance for determining whether there is a pre-accident impairment: Before the allowance on an aggravation basis is considered, decision-makers must determine if a pre-accident impairment exists. Evidence of this includes, but is not limited to, a worker having a previously identified and symptomatic medical condition/impairment, medical precautions/restrictions and performing modified work prior to the accident, receiving regular health care treatments prior to the accident, lost time from work prior to the accident. This information can be obtained by reviewing prior health care documentation (e.g., x-rays, hospital records, operative reports) prior claim(s) statements from the worker, the employer, or co-workers employment records. [61] In this case, the Panel finds that the WSIB correctly limited entitlement for the neck on an aggravation basis and denied entitlement for the other areas. The worker had a long history of treatment for various areas of pain going back to 2004, or earlier. The worker s pain conditions pre-dated the change in the worker s job duties (the addition of the third screen), which was the basis for granting entitlement for a disablement injury.

15 Page: 14 Decision No. 698/14 [62] The Panel notes that it is unclear that a Health Professional s First Report (Form 8) was filed in respect of this claim. As a starting point, this makes it difficult to assess the nature of the diagnosis of the worker s physical conditions and their relationship to the nature of the worker s job duties. In the Form 6, the worker identified numerous areas of pain: head, face, ears, teeth, neck, chest, upper back, lower back, abdomen, pelvis, and bilateral shoulders, arms, elbows, forearms, wrists, hands, fingers, hips, and toes. There is a lack of medical information to attribute these multiple areas of pain to a workplace injuring process, in particular, the addition of the third screen to the workers desk. [63] The record demonstrates that the worker had a well-established history of pre-existing physical problems requiring treatment prior to the workplace injury: 1981: Injury to the right hip in a motor vehicle accident. October 17 to December 16, 1983: The worker initially went through the training course to become a police constable, but she was unable to complete any of the physical or self-defense testing for medical reasons. During the course, her injuries included a sore knee, a sore shoulder, and a broken rib. March 29, 1999: The worker filed a claim for a bilateral injury to her lower arms, wrists, and hands. A decision letter dated September 13, 1999 indicated that there was insufficient information to grant entitlement. It appears that there was no follow-up on the matter. The medical information also indicated that the worker first required treatment for joint pain in her hands in 1996, and it was not reported as work-related at that time. April 1999, WSIB Investigation report: The worker stated that she occasionally received chiropractic treatment for her neck and back prior to that time. In April 1999, she experienced increased episodes of symptoms in her hands and wrists, for which she also received chiropractic treatment. She also saw her family doctor for joint problems and her doctor told her that she had bursitis and tendonitis in many of her joints, such as hips, ankles, elbows and shoulders. April 7, 2003: A note from the chiropractor s office indicates that the worker had been under treatment for back pain since March 28, March 2006: A chest x-ray showed anterior wedging of T8 and T9 that probably represented old compression fractures and mild degenerative changes in the mid thoracic vertebrae. January 22, 2009: The x-ray of the cervical spine showed mild scoliosis convex to the left with a loss of normal cervical lordosis. There was mild narrowing of the discs at C5-6. There were prominent anterior and lateral marginal spurs at multiple levels. There were spurs projecting into the intervertebral foramina from C5 to C7. The spurs on the left side were more prominent. It was possible that the left nerve roots might be compressed. April 4, 2009: MRI of the cervical spine showed diffuse degenerative changes causing multilevel mild central spinal stenosis without cord impingement. In addition, there was multilevel neural foraminal narrowing with nerve root impingement as described. At C3-4, there was a small extruded central disc herniation abutting the cord.

16 Page: 15 Decision No. 698/14 February 12, 2009: Dr. K. Bowler, neurologist, noted that the worker complained of neck discomfort. She had treated her hands with night splints for approximately 12 years, but did not have a formal diagnosis of carpal tunnel syndrome (CTS). February 12, 2009, EMG report: The EMG showed no evidence of CTS on either side, but there was positive evidence of right C5-6 nerve root impingement. The study showed chronic changes in the right C5-6 innervated muscles suggesting proximal nerve root impingement. Since the changes were chronic, it is likely that they pre-existed the onset in August 25, 2010: According to the Functional Restoration Program (FRP) report, the worker reported that she had ongoing problems with her right arm for about 15 years, which would date back to [64] In addition, the Form 6 indicates that the worker s condition began in 2004, and she received treatment from a registered massage therapist, chiropractor, osteopath, homeopath, and her doctor. We do not have detailed notes or reports from these health professionals to shed further light on the nature and history of the worker s prior symptoms. Therefore, the Panel infers that the worker s prior symptoms and problems were not work-related. Accordingly, pursuant to the terms of the Aggravation Basis policy, the worker had a pre-accident impairment and it was appropriate to limit her entitlement for the neck on an aggravation basis. [65] The Panel accepts the opinion of Dr. Steinnagel, WSIB Medical Consultant, who reviewed the relevant medical information and gave the following opinion in May 2009: This worker has entitlement for the neck. She s a 911 dispatcher monitoring three computer screens at all times. The third screen was added about 18 months ago. An MRI shows significant DDD of the c-spine. The current EMG findings and MRI findings are not likely to have been solely caused by the work environment. There was no specific accident. Noting how widespread the MRI findings are, and how severe, this MC [medical consultant] would suggest that the workplace may have aggravated, but did not in and of itself cause the MRI findings. [66] The Panel notes that there a lack of any specialist opinion supporting that the worker s ongoing neck condition and other claimed areas of entitlement are related to her work, but rather, the reports suggest that the worker s pain was due to underlying conditions: The Massage Therapist Treatment Extension Request, dated June 15, 2009, noted that the working diagnosis was degenerative change in the cervical spine at multiple levels. A Functional Abilities Form, dated July 13, 2009, indicates that the worker had neck pain due to OA [osteoarthritis], as well as associated upper back pain; numbness bilateral hands and forearm due to neck OA; associated shoulder and elbow (bilateral) pain [with] neck. In March 2011, Dr. V. Chari, physiatrist, noted that the worker was assessed for chronic neck pain due to spondylosis. The impression was regional myofascial pain syndrome involving the neck/upper extremities with underlying cervical spondylosis and query of degenerative arthropathy in her shoulders.