Decision #164/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 12, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on December 12, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In May 2000, an Employer's Report of Injury or Occupational Disease form was filed with the Workers Compensation Board (WCB) for post traumatic stress disorder which the claimant related to several work related incidents.

Subsequent information contained a sworn statement from the claimant dated August 23, 2000 which described several events which took place during and after working hours commencing in December 1999, while employed as an emergency response operator. Also on file is a job description of response operator along with a medical report from a psychologist dated October 31, 2000 and from the claimant's attending physician dated November 2, 2000. Ultimately, the claimant was diagnosed with Acute Stress Disorder DSMIV-308.3 and later, Post Traumatic Stress Disorder DSMIV 309.81.

In a letter dated December 11, 2000 primary adjudication determined that the claim for the compensation was unacceptable. Specifically, primary adjudication noted that in the claimant's sworn statement there was a lot of tension surrounding the handling of calls by emergency response operators which may have contributed to the death of two women. The events that transpired soon after the incident resulted in the claimant's absence from work. It was the opinion of the WCB that the position of an emergency response operator was and is stressful on a regular basis and that the events leading up to her lay off in February 2000 was not a departure from what could be expected on any given day. It was therefore concluded that a traumatic event had not been established and that the criteria outlined in section 1(1) of The Workers Compensation Act (the Act) had not been satisfied.

In March 2001, the claimant's representative provided primary adjudication with a copy of the company's policy that relates to post traumatic incidents. It was the representative's position that the claimant sustained a workplace injury which was confirmed by the treating psychologist who diagnosed the injury and her family physician.

On April 17, 2001, primary adjudication acknowledged that the claimant was not of the same psychological state as she was prior to the start of her shift on the day of the incident however, this, in itself, did not constitute acceptance of a stress claim. The claimant's activities on the day of the incident were not substantively different than what could be expected for an emergency response operator. It was confirmed that no change would be made to the WCB's decision of December 11, 2000. On May 7, 2001, the claimant's representative appealed the decision to Review Office.

In a decision dated June 15, 2001, Review Office pointed out that in order for a claim to be compensable there would have to be one specific significant incident involved that was felt to have led to the psychological scenario described on file by the psychologist. Review Office noted that the overwhelming theme of the claimant's 26 page statement was the anxiety, tension, anger and tears associated with the environment in the workplace after the double homicide. Review Office was satisfied that there was overwhelming evidence that employer/employee relationship and the build up of stressors in the call centre over incidents outlined in the claimant's statement was the primary foundation and background behind the understandable need for the psychological assessment and treatment from the psychologist and her family physician.

Review Office concluded that the case did not meet the criteria outlined through legislation and policy (i.e. Sections 4(1), 1(1), 1(1.1) and WCB policy 44.20 and 44.20.60) and therefore the claim was not acceptable.

Subsequent to the above decision, Review Office received several communications from the treating psychologist and from the claimant's legal counsel who supported the contention that the claim was acceptable. In letters dated July 12, 2001, August 16, 2001 and September 28, 2001, Review Office upheld its decision of June 15, 2001. On October 5, 2001, legal counsel representing the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker employed as an emergency response operator, who has been diagnosed as suffering from Acute Stress Disorder (ASD) and Post-Traumatic Stress Disorder (PTSD).

She filed a claim with the WCB, which claim was denied on the basis that she did not meet the requirements of The Workers Compensation Act (the Act) and/or board policy. She requested reconsideration by the Review Office, which upheld the earlier decision. She has appealed the Review Office decision to this Commission.

The issue before the Panel was whether or not the claim is acceptable.

For her appeal to be successful, the Panel would have to determine that her ailment, ASD/PTSD, occurred as a result of a workplace incident. We have so determined.

Relevant legislation and policy:

Pursuant to subsection 4(1) of the Act, compensation is payable where a worker incurs personal injury as a result of an accident "arising out of and in the course of employment."

Subsection 1(1) of the Act includes the following definitions, relevant to our consideration:

    "accident" means a chance event occasioned by a physical or natural cause; and includes
    1. a wilful and intentional act that is not the act of the worker,
    2. any
      1. event arising out of, and in the course of, employment, or
      2. thing that is done and the doing of which arises out of, and in the course of, employment, and
    3. an occupational disease,

    and as a result of which a worker is injured.

    "occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions:

    1. peculiar to or characteristic of a particular trade or occupation; or
    2. peculiar to the particular employment;

      but does not include

    3. an ordinary disease of life; and
    4. stress, other than an acute reaction to a traumatic event.

There are, also, two Board Policies that are relevant to this case. They are Policy No. 44.20, Disease/General and Policy No. 44.20.60, Psychological Conditions.

Policy No. 44.20 elaborates on the definition of "an acute reaction to a traumatic event", as set out in the Act:

    Referring to stress, an acute reaction is a reaction that creates a condition in the worker that is clearly discrete from the condition previous to the event. The traumatic event is an identifiable physical or psychological occurrence, occurs in an identifiable time frame that is normally of brief duration, is not a series of minor occurrences, and is capable of causing serious physical or psychological harm consistent with the acute reaction.

Policy No. 44.20.60 notes the following in respect of psychological conditions:

    Where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.
    ......

    Accidents prior to January 1, 1992:
    Stress or psychological conditions said to be a result of a non-specific event or events and, therefore, cumulative in nature are considered to be chronic stress, and in the absence of a specific identifiable compensable event or events are to be adjudicated on the individual merits and circumstances of the case.

    Accidents on or after January 1, 1992:
    Stress is not an occupational disease as defined under The Workers Compensation Act, except as an acute reaction to a traumatic event.

Discussion:

In the case before the Panel, the claimant was involved in a series of stressful events within a two-month period. These included: a particularly stressful encounter in which she had to deal with a suicidal person; a second encounter with the same person, again threatening suicide; the stressful workplace environment which followed the murder of two women who had called the emergency service; and, finally, dealing with the dispatch of assistance to a scene where a young man was being viciously assaulted (resulting in his death).

This series of events led the initial adjudicator and the Review Office to conclude that her illness was "chronic stress", a condition not accepted by the board as a compensable injury since 1992.

Review Office set the test for acceptance of this claim as requiring one specific significant incident that was felt to have led to the psychological condition afflicting the claimant.

Our review of the statue and policies confirms that this is the correct test.

However, we have come to a different conclusion than did the Review Office. We have found that there was the required "one specific significant incident."

In coming to this conclusion, we had the advantage of an oral hearing, in which we heard directly from all of the parties involved, including the claimant, her legal counsel and the representative of the employer. We note that the employer supported the claimant in this case, and that the employer's representative also happened to be her treating psychologist.

Counsel for the claimant presented an argument before us showing, in his opinion, how the statute and policies would allow for acceptance of this claim. In essence, he set out the same test noted above.

The employer's representative, the claimant's psychologist, then explained his diagnosis of the claimant's condition. He noted that the claimant met the diagnostic criteria for Acute Stress Disorder DSMIV-308.3 and Post-Traumatic Stress Disorder DSMIV- 309.81. These are diagnostic criteria accepted throughout North America.

He further stated that it was his professional judgment that the claimant's disorders came about as a result of one single precipitating event, that being the beating death of a boy (originally thought to be 10-years old, later confirmed to be 18).

There is no medical evidence on file disputing this diagnosis or offering any alternative diagnosis. Nor was any presented before the Panel. Thus, we find no reason not to accept this diagnosis.

Having concluded that there was a single precipitating event, we find that the claimant meets the test set out in the Act and in board policies. Therefore, the claim is acceptable.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of December, 2001

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