Decision No. 259/08
[Names of Parties are Not Published]
Ontario Workplace Safety and Insurance Appeals Tribunal
Panel: R. Nairn, Vice-Chair; J.J.
Donaldson, Member Representative
of Employers; M. Ferrari, Member Representative of Workers
Tribunal Summary:
Stress, mental -- Board Directives and Guidelines (stress, mental) (traumatic event). The worker worked for a department that administered a social assistance program. The workeroverheard a client being verbally abusive to a co-worker who worked in an adjacent cubicle. Theworker told the client that he would have to leave. As she escorted the client off the premises, theclient was verbally abusive to her and spit directly in her face. The worker appealed a decision ofthe Appeals Resolution Officer denying entitlement for traumatic mental stress.
The worker suffered an acute reaction to a sudden and unexpected event. The Panel was alsosatisfied that the event was traumatic in nature. Traumatic mental stress is not limited to incidentswhich involve potential serious injury or death. Entitlement may still be granted if a worker isinvolved in an event which is objectively traumatic or generally accident as being traumatic. In thiscase, the worker was the victim of a criminal act, for which the client was convicted of assault.
Statutes, regulations and rules cited:
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, s. 13(5).
Operational Policy Manual, Document No. 15-03-02.
Cases cited:
Tribunal Decisions Considered:
Decision No. 929/04, [2004] O.W.S.I.A.T.D. No. 2285 consd.
On appeal from:
WSIB ARO decision dated April 21, 2005.
For the worker: Mr. M. Wright, Lawyer.
For the employer: Mr. R. Boswell, Lawyer.
Interpreter: None.
At the time of the events under consideration here, the worker was employed as a case manager in the Income Support Division of the employer's Social Services Department. She had been withthe employer since approximately 1990. The Income Support Division administers Ontario Worksand the Ontario Disability Support Program, the province's two social assistance programs.
Visitors to the workplace first walk into a reception area. There is a clerical area located
directly behind the reception area, behind a glass and drywall wall. The worker worked out of oneof many pods located behind this wall.
On February 2, 2004, the worker was working in her pod when she overheard a client, "EF", being verbally abusive to another case manager who was working in an adjacent pod. The workerwent to the assistance of her co-worker and advised EF that he would have to leave the premises. Asthe worker indicated in testimony provided at this hearing, as she escorted EF from the pod to thereception area, EF was verbally abuse towards her. As the worker directed EF out through the doorinto the reception area, he turned and spat directly into her face. EF then left the premises.
Immediately after the incident, the worker washed her face and then reported the incident to her supervisor. The worker went home for the day and arrangements were made for her to speak withpolice the following morning. The worker returned to her regular duties.
On February 12, 2004, the worker began to experience a variety of symptoms while interviewing another client in her pod. The symptoms included pain and tightness throughout herbody and she also felt confused. She excused herself from the interview and stood up to leave. Shetook several steps and began hyperventilating, sweating and trembling. She was guided to a restingposition by co-workers. An ambulance was called and she was taken to a local hospital. She wasadvised to stay home. Shortly thereafter, she saw her family physician, Dr. Jawahair, who advisedthat she stay off work and rest. Between February 16, 2004 and March 10, 2004 inclusive, she usedup her sick leave benefits.
The worker applied for Employment Insurance sick benefits on March 11, 2004 and her claim was approved effective March 14 until May 22, 2004.
On May 10, 2004, the worker returned to work, part-time, working four hours per day. On or about September 23, 2004, she increased her hours to six per day which she worked until November24, 2004. On or about November 24, 2004, she returned to her regular duties, working about 35hours per week.
EF was arrested on or about March 30, 2005, and was charged with assault contrary to section 266 of the Criminal Code. He appeared in court on or about April12, 2005 and pled guilty. He wasfined $350.
The worker requested that the Workplace Safety and Insurance Board (the "Board") recognize
her lost time as compensable. In Memo #8 dated April 19, 2004, the Claims Adjudicator indicatedin part: From a review of the claim file, C/A has established that the wker is claimingthat as a result of the Feb 2/04 incident, the welfare client was verbally abusive and spat at [the worker], she broke down due to hypertension and depression.
Low back pain also developed, due to her psychological condition.
C/A noted the wker did not develop low back pain from a specific work relatedincident such as a fall at work.
All disability appears to be linked to the Feb 2/04 incident.
The incident of Feb 2/04 was certainly unacceptable behaviour from the welfareclient and it is understandable that the wker would feel upset and feel anxious.
However, based on the WSIB policy for traumatic stress the Feb 2/04 incidentwould not be considered a sudden and unexpected traumatic event that, for thepurposes of the Act, would have to be, life threatening or horrific in nature.
As a result, I am unable to allow the wker's claim for mental stress and low backdisability, as the Feb 2/04 incident does not meet the WSIB policy criteria fortraumatic mental stress.
The worker objected to the conclusion of the Claims Adjudicator and the matter was eventually referred to an Appeals Resolution Officer ("ARO"). In a decision dated April 21, 2005,the ARO denied the worker's appeal and concluded: [.] When the client however spit into [the worker's] face while she had hermouth open before he left the building however could not be considered to be anexpected event in the worker's daily routine. One would be hard pressed to thinkof an occupation where one could expect to be spit upon on any given day.
Someone spitting into another's face does not appear to be anything that theworker or her co-workers had ever had to endure before and surely one could notreasonably conclude that [the worker] could have anticipated being spat upon.
This is certainly a sudden and unexpected event.
The problem however arises when one considers whether or not being spit uponcould be considered to be "traumatic" given the confines of the policy.
Examples provided in policy all have an element of threatened or actual violence.
This leads one to conclude that a traumatic event can be considered where thereis a threat of physical violence or death or there is actual physical violence ordeath. This is the intent of the policy. In [the worker's] case, although being spitupon was inappropriate and certainly disgusting, it could not be considered to bea physical threat. The client never approached [the worker] and although he lefthesitantly, he did leave and continued to make his way to the door. While theprofane language continued, there was never any evidence of any verbal threatsbeing uttered, either.
Given the findings outlined in this decision, while I am satisfied that there was asudden an unexpected event on Feb 2, 2004 when a client spat upon the worker,this event could not be considered to be objectively traumatic, as intended bypolicy. While I have no doubt that the worker's eventual collapse was attributedto the incident of February 2, 2004 because the events of February 2, 2004 do notmeet the criteria required by policy, I have no choice but to confirm the denial ofentitlement for TMS and in turn for the worker's low back problems, whichappeared to be related to the worker's stress condition.
Issue on appeal
The issue to be determined on this case is whether the worker has initial entitlement to benefits for traumatic mental stress which she claims can be causally related to an incidentoccurring at work on February 2, 2004.
On behalf of the worker, Mr. Wright advised that he was seeking Loss of Earnings ("LOE") benefits, less time worked, between approximately February 13 and November 23, 2004. Heindicated that the worker was not requesting entitlement to a Non- Economic Loss ("NEL") award.
The worker's testimony
In her testimony, the worker confirmed that on February 2, 2004, she was working in her pod when she heard a client, being interviewed by a neighbouring co-worker, start to become verballyabusive towards that co-worker. The client had apparently been applying for some type of socialassistance and the co-worker had suggested that before benefits could be granted, she would have tomake some additional inquiries from his last place of employment. At this point, the client becameverbally abusive.
Believing that her co-worker required some assistance, the worker went to the nearby pod and advised the client that his language would not be tolerated, the interview was over and he wouldhave to leave the premises. She then accompanied the client from the pod to the door whichseparated the work area from the reception area. During the walk from the pod to the door, theclient continued to be verbally abusive. When they arrived at the exit door, the worker pushed itopen for the client to pass through and as he did so, he turned and spat directly into her face from adistance of about four inches. The client was a 24- year-old male who was approximately the sameheight as the worker - 5 foot 9 inches tall. Immediately after being spat upon, the worker felt"absolutely disgusted, shocked, violated, scared" and was "panicked about his fluids touching hers".
She went immediately to the washroom and put her head in the sink, gargled and splashed water inher eyes. She went from the washroom to the work area and advised her supervisor that she hadbeen assaulted.
The worker was asked a number of questions by both representatives regarding the frequency of this type of occurrence in her workplace. She testified that while there were often clients who
became angry and frustrated and occasionally used profane language, there were many clients who
were very respectful of she and her co-workers. She did confirm however, that she had never been
spat on in the past, nor had she ever been criminally assaulted. Similarly, she was not aware of any
other workers ever having been spat upon.
The worker was sent home after the incident and made arrangements to speak with police the next morning. After the assault, she felt scared and was afraid she would see this client again. Shedid not sleep particularly well over the next few days and had difficulty concentrating.
On February 12, 2004, the worker was in the course of interviewing another client when she began to feel unwell and this included experiencing low back pain. She excused herself from theinterview and started to walk towards the printer area. On the way however, she collapsed andfortunately was caught by co-workers who guided her to the ground. An ambulance was called andshe was taken to hospital. She stayed there until approximately midnight and then was sent home.
The next day, February 13, 2004, she went back to work but had difficulty concentrating. She was still scared and shaking over the incident. On February 16, 2004, her condition had reached thepoint where she could no longer continue at work and her physician advised her to stay off.
The worker confirmed information on file which suggested that she used up her sick leave benefits to cover lost time between February 16 and March 10, 2004. Thereafter, she receivedEmployment Insurance sick benefits. The worker also confirmed that she remained off work untilapproximately May 10, 2004, when she went back to work part-time, working four hours a day.
This continued until September 23, 2004, when she increased her work hours to six per day. ByNovember 24, 2004, she was back to her regular 35 hours a week.
The worker testified that since the incident, she is no longer the same person that she once was. While she used to be outgoing, she is now more introverted and usually stays at her desk and does her work. She gets a "jolt" if she hears any problems in the workplace because this brings
back memories of her assault. She tends to stay away from crowds and continues to take Effexor, an
antidepressant. She no longer has any desire to participate in extracurricular activities.
In addition to her Effexor, the worker also takes medication for a kidney condition and blood pressure, as well as Trazadone, which assists with mood stabilization and sleep. Under questioningfrom Mr. Boswell, the worker indicated she had been taking Trazadone for a number of years. Ithad first been prescribed to help "even out things" and assisted with her sleep. She found themedication to be of assistance and she took it only at night, never during the day.
The worker also confirmed that she had previously been provided with a prescription for Effexor after going through a relatively difficult time in 2003. Her father passed away suddenlyfrom a heart attack in June 2003 and later that same year, her mother was placed in hospital with aserious life threatening cardiac problem. The worker advised she never filled the Effexorprescription but was able to continue working full-time and carried out her various obligations as amother and wife. She had never experienced any lost time from work because of these problems.
Section 13(4) of the Workplace Safety and Insurance Act, 1997, provides:
A worker is entitled to benefits for mental stress that is an acute reaction to asudden and unexpected traumatic event arising out of and in the course of his orher employment. However, the worker is not entitled to benefits for mental stresscaused by his or her employer's decisions or actions relating to the worker'semployment, including a decision to change the work to be performed or thework conditions to discipline the worker or to terminate the employment.
Board Operational Policy Manual Document No. 15-03-02 entitled "Traumatic Mental A worker is entitled to benefits for traumatic mental stress that is an acutereaction to a sudden an unexpected traumatic event arising out of and in thecourse of employment.
A worker is not entitled to benefits for traumatic mental stress that is a result ofthe employer's employment decisions or actions.
Sudden and unexpected traumatic event
In order to consider entitlement for traumatic mental stress, a decision-makermust identify that a sudden and unexpected traumatic event occurred. Atraumatic event may be the result of a criminal act, harassment or a horrificaccident and may involve actual or threatened death or serious harm against theworker, a co-worker, the worker's family members or others.
In all cases, the event must arise out of and occur in the course of theemployment and be unexpected in the normal or daily course of the worker'semployment or work environment.
can be established by the WSIB by information or knowledge of theevent 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 subject of an armed robbery witnessing or being the object of a hostage taking being the object of threats of physical violence where the workerbelieves 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 orthreats of physical violence (the escalation of verbal abuse intotraumatic physical abuse) being the object of harassment that includes being placed on a lifethreatening or potentially life threatening information (e.g.
tampering with safety equipment; causing the worker to dosomething dangerous).
Acute reaction
Acute reaction is a significant or severe reaction by the worker to the workrelated traumatic event that results in a psychiatric/psychological response. Sucha response is generally identifiable and must result in an Axis I Diagnosis inaccordance 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 thetraumatic event.
Diagnostic requirements
Immediate acute reaction
When the acute reaction is immediate, the WSIB will accept the claim if anappropriately regulated health care professional confirms the worker is sufferingfrom an Axis I Diagnosis which may include but is not limited to in accordance with the DSM-IV. The decision maker may, at a later point,require an assessment by a psychiatrist or a psychologist to confirm ongoingentitlement.
As indicated above, in order to be successful in this appeal, the worker must establish that the symptoms she experienced were an acute reaction to a sudden and unexpected traumatic eventwhich arose out of and in the course of her employment. It is clear to the Panel that this particularincident arose out of and in the course of her employment on February 2, 2004. The spittingincident occurred in the course of the worker's workday and happened while she was escorting aclient from her work area, something which we believe is reasonably incidental to her employmentas a case manager.
Being satisfied that the incident arose out of and in the course of employment, the Panel must also be satisfied that the symptoms experienced by the worker were an "acute reaction" to an eventthat not only was "sudden and unexpected" but was also "traumatic" in nature. With respect to theissue of an "acute reaction", Board policy suggests that an acute reaction is said to be "immediate" ifit occurs within four weeks of the traumatic event. In this case, the worker had an onset ofsymptoms which required hospitalization on February 12, 2004, only 10 days after the initialincident. The policy also notes that where an acute reaction is immediate, the Board will accept aclaim if "an appropriately regulated health care professional confirms the worker is suffering froman Axis I Diagnosis which may include [.] post traumatic stress disorder". In her report of June 10,2004, Dr. N. Nyhous, a psychiatrist, provided an Axis I Diagnosis of "post traumatic stressdisorder". Dr. Nyhous added that the worker's "primary diagnosis would be post traumatic stressdisorder, a condition that came on with the assault that she experienced on 2004/02/02". In ourview, the symptoms exhibited by the worker satisfy the requirement of being an immediate andacute reaction to the events of February 2, 2004.
With respect to the question of whether or not the incident on February 2, 2004 was "sudden and unexpected", we agree with the ARO that it clearly was. In her testimony, which was deliveredin a straightforward and credible manner, the worker noted that this had never happened to her inthe past and she was unaware of it ever happening to any of her co-workers. We would agree withthe ARO's conclusion that: One would be hard pressed to think of an occupation where one could expect tobe spit upon on any given day. Someone spitting into another's face does not appear to be anything that the worker or her co-workers had ever had to endurebefore and surely one could not reasonably conclude that [the worker] could haveanticipated being spat upon. This is certainly a sudden and unexpected event.
In light of the above, the only issue which remains to be determined is whether this sudden and unexpected event was "traumatic" in nature. The employer's representative has submitted that
while the incident was certainly disgusting, it was not traumatic as that term is used in Board policy.
Mr. Boswell took the position that in order to be considered traumatic, the event would have to be
of the same severity as the other items listed in the policy which included fatalities, horrific
accidents, armed robbery and hostage taking etc. He submitted that the intent of the policy was to
limit entitlement in traumatic mental stress cases to incidents which involved threats of physical
violence or death.
After considering all of the evidence before us, including the submissions provided by the representatives, the Panel is satisfied that this particular incident satisfies the legislative and policyrequirement of being "traumatic" in nature. As Mr. Wright noted, a number of Tribunal decisions(see for example Decision Nos. 669/02, [2003] O.W.S.I.A.T.D. No. 735, 2056/04 and 929/04,[2004] O.W.S.I.A.T.D. No. 2285) have held that the list of sudden and unexpected traumatic eventsprovided in Board policy is not exhaustive. In Decision No. 929/04, [2004] O.W.S.I.A.T.D. No.
2285, a Panel granted entitlement to benefits noting that a wrongful charge of sexual assault would"generally be accepted as objectively traumatic". As noted earlier, the Board policy in question alsouses the phrases "objectively traumatic" and "generally accepted as being traumatic". In our view, aclaim for traumatic mental stress is not limited to incidents which involve potential serious injury ordeath. Entitlement may still be granted if a worker is involved in an event which is objectively orgenerally accepted as being traumatic.
In this case, the worker was the victim of a criminal act with the client eventually being convicted of assault. In our view, the profane language with which this worker was bombarded andthe culminating spit in the face from about four inches away, clearly satisfies the requirement ofbeing objectively traumatic in nature.
As a result, we are satisfied that on February 2, 2004, the worker was the victim of a sudden and unexpected traumatic event which arose out of and in the course of her employment. She
experienced symptoms of post traumatic stress disorder about 10 days later which her treating
psychiatrist has concluded were "a direct result of the workplace incident". The worker experienced
a loss of earnings because of her post traumatic stress symptoms from approximately February 16 to
November 24 and is therefore entitled to be compensated.
Finally, while the employer's representative raised the issue of the worker having a pre-existing condition, we do not believe that there is sufficient evidence available to justify such aconclusion. While it is true that the worker did have some prior problems for which sheoccasionally took Trazodone, the evidence suggests the problem was never severe enough to have caused any lost time from work or effected her activities of daily living. In addition, while it appearsthe worker had been prescribed Effexor in late 2003, the evidence was that this had been providedto help her deal with a specific situation namely, the death of one parent and the serious illness ofanother. In any event, the evidence before us was that the worker never actually filled herprescription for Effexor and was able to continue with her employment and activities of daily living.
The worker is entitled to benefits for traumatic mental stress arising from the incident at work on February 2, 2004. She is entitled to LOE benefits from approximately February 16 to November24, 2004. The issue of the exact quantum of those benefits will be returned to the Board for furtheradjudication.
SIGNED: R. Nairn, J.J. Donaldson, M. Ferrari ---- End of Request ----Download Request: Current Document: 8Time Of Request: Saturday, May 21, 2011


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