Decision #22/07 - Type: Workers Compensation
Preamble
This is an appeal by the worker of the Workers Compensation Board’s (WCB) denial of her claim for psychological injury.
On March 3, 2003 the worker filed a claim with the WCB for psychological injury as a result of exposure to graphic and disturbing information at work. Her claim was denied by primary adjudication at the WCB on the grounds that the injury was not covered by subsections 4(1), 1(1) or 1(1.1) of The Workers Compensation Act (the “Act”) or WCB Policy 44.20. This decision to deny her claim was upheld by Review Office in a decision dated August 17, 2004.
The worker appealed this decision to the Appeal Commission and a hearing was held on October 31, 2006. The worker appeared and provided evidence. She was represented by legal counsel. The employer’s representative also appeared. After the hearing, the panel decided to obtain further information from the employer and medical doctors who had seen the worker. Once received, the information was provided to the parties for comment. The panel then met on January 3, 2007 to discuss this case.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
Reasons
Chairperson Martin and Commissioner Day:
Introduction
As stated in the preamble, this case deals with a claim for psychological injury. The worker says that her job exposed her to graphic and disturbing information which caused her to develop Post-traumatic Stress Disorder (“PTSD”). Her employer disagrees. It says that this is simply a case of an individual whose psychological make-up renders her incapable of coping with the requirements of a job for which she was hired. It was the stress of the job and the worker’s inability to do that job took her off work. Stress from work and performance issues are not covered under the Act. The worker’s claim is therefore not acceptable.
This is a complex case due to the multiple and seemingly co-mingled issues the worker was faced with during her employment. It is for this panel to decide whether those issues are employment issues (which are not compensable) or workers compensation issues (which are compensable). To make this determination, it is essential to examine the events leading up to the worker’s claim for compensation and the medical evidence.
The Events Leading up to the Claim
The worker has no prior history of psychological illness or employment difficulties.
In July 2001 she began work as a direct voice entry (“DVE”) operator for an emergency response organization. This job entailed talking to emergency response personnel in real time at the scene of a crime, and electronically entering the information provided on the computer. In March 2002, the employer advised the worker that her performance in the DVE was not adequate and she was moved to another unit where she summarized the DVE information that had previously been entered by a DVE operator (the “Unit”). The content of the information she dealt with in both positions was detailed and sometimes included graphic and disturbing information of sexual assaults, murders, assaults and suicides.
The worker testified at the hearing that she found her job to be difficult on several levels - it was demanding, disturbing and unsupportive.
Demanding Level of the Job
The worker described herself as someone who took pride in her performance. When she was hired for the DVE position, it was her intention to do a good job. She admitted at the hearing that she found both the DVE and the Unit jobs difficult. The language used was specific to the job, there were codes to learn as well as the computer system. The job also required her to type quickly and accurately as the emergency response personnel were phoning in reports. There was no time to read over the reports once she had typed them in because there were always more reports being phoned in.
This caused some distress for the worker given her propensity to want to perform well. She was also dismayed and very critical that she was not better trained or supervised. At the hearing she commented that there did not appear to be one uniform way of entering reports; training staff were often critical of the training methods used by a prior person and the worker was told on one occasion to forget what she had been told previously. This lack of consistent training made it difficult for the worker to know exactly what she had to do.
The Disturbing Information
The worker testified that she also had difficulty doing her job because of the disturbing information she would have to put into the computer.
As indicated previously, the worker’s DVE job required her to take telephone calls from emergency response personnel who were on the scene of a crime. The worker would input this information in real time.
The worker testified she developed a very high appreciation for the emergency response personnel and the work they do. She found them very nice and supportive in her new position and she began to identify with them. She would feel quite tense if one of them was called back to a crime scene when talking to her. She described thinking that it was “so real” and she figured “these poor guys…look what they’re going through all the time”.
The worker was also dismayed and somehow shocked about the sheer amount of crime and the repeat offenders. However, she was also horrified about the violence done to victims. In this regard, the worker also testified at length about the impact some crime scene information had on her.
She explained that the information she entered into the computer in real time was quite detailed; it was information about the location, the suspects, what happened, the scene and the victim.
She found some crime scene information to be emotionally and physically disturbing. She would leave her desk and go to the bathroom where she would vomit, have diarrhea or cry. She would also get stomachaches, hot and cold sweats and the shakes. She became upset and would need to take time to calm herself down.
The physical and emotional responses spilled over to life outside of work. She became withdrawn and no longer enjoyed prior pleasures. Her appetite and sleep were affected and she began to avoid any information dealing with crime – television, movies, newspapers. She also began avoiding locations where crimes had taken place. Emergency response sirens caused startle responses. She would think about the victims and what happened to them. She would have nightmares. She began to feel “really inadequate” and “hopeless”. She would lose touch with her surroundings when driving and would have ‘flashbacks’ to incidents while in her own home.
At the hearing the worker expressed discomfort over relating these events. She became tearful and distraught and required breaks. She explained that relating these events made her feel what she had felt before.
The Work Environment
The worker did not find her work environment very supportive. No one asked her how she was doing and this was in spite of the fact that she often told them she was having a “hard time with the reports” and that she would leave her desk to go to the washroom repetitively. She thought that it would be obvious to anyone who took an interest to see that she was visibly distraught.
She also disliked some of her co-workers because she felt that they were too insensitive about the information. They would speak about “juicy” reports and laugh. To the worker, this was both disturbing and disrespectful to the victims.
The worker testified that she tried to reach out to her co-workers and superiors to discuss her difficulties. She told them that she was having a “hard time with the reports”. She was told that she would get used to it but never did. Instead, it got worse as she was moved to the Unit in March 2002.
She did not seek help from her husband or others outside of work given the confidential nature of her job. She was also too proud to admit that she was having problems. By September 2002 she began taking sick days because she felt she could not go into work. She finally decided to make an appointment with her family doctor when she had a fleeting thought of committing suicide.
Then on September 23, 2002 she was called into her supervisor’s office for an unannounced performance appraisal. She was told that her performance was not adequate and that she would remain on probation. She told them that she was having a “hard time with the reports” but was not questioned on this comment.
On October 15, 2002, the worker saw her family physician who took her off work. The family physician’s chart notes for this date indicate that the worker complained of work-related issues of work load and the performance appraisal. They also reference her physical difficulties but no specific reference is made to reactions to the reports she entered at work.
The worker was questioned at the hearing about the reasons for going off work in October 2002. She explained that she really wanted to perform and became stressed about it but felt unable to do so because she was psychologically ill already.
“It started like at zero and then, as I got into more and more reports, it kind of escalated, like the feelings I had and for the victims and the material that I read. It didn’t happen overnight. It was like a process that I went through. And when I was live, when I was really doing it…it was like I was there…it was a real place with real people and people were getting hurt and it bothered me, it bothered me immensely…
I was thinking about the person that it was done to. I—like they were real people with real families and I guess, being a mother, the ones that affected me a lot were of course the sexual assaults and the pedophiles and when things were done to the young people, in a way that was just upsetting.
It would sort of just like paralyse me. I don’t know how else to explain it. It’s like, man, just stop this madness. Like what are you people doing? ...before you know it…they’re walking the streets and doing it over and over again.
And after awhile, you find out this is the same person that it was before and the same person again that’s being arrested. You all of a sudden get to know that it’s a stream, you know…and I figured, man, can anybody ever quit this? Can they just stop doing it? But it doesn’t happen.
Like and even me typing the report, like how can I help these people? But I couldn’t help these people. And like it made me feel so helpless doing it and that upset me too.
And…sometimes when they dictated [the report] to me, I would just have to ask them to repeat it because I couldn’t take that information in. And sometimes the – it was so in detail that it just made me sick.
And the terminology is all different than you and I talking every day...[it] is very different and that is not something that you get used to overnight.
It penetrated deep into my heart and it just affected me to the point that I couldn’t function anymore eventually, you know.”
The Medical Evidence
As from November 2002, the worker was seen and treated by a psychologist. The psychologist diagnosed the worker with PTSD (see reports of March 17, 2003 and March 28, 2006).
He thought that the worker developed this disorder as a result of a series of vicarious exposures to significant traumatic events while working at the DVE. He also thought that this disorder coupled with the heavy workload led to performance difficulties.
The psychologist maintained this diagnosis even though the worker was not directly exposed to the trauma:
“It is acknowledged that one may develop PTSD symptoms following “learning about unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate (criterion A1)”. This suggests that direct personal experience is not necessarily essential for the development of Post Traumatic Stress Disorder…”
The psychologist provided a copy of the DSM IV 309.81 which was reviewed at the hearing.
The panel asked the psychologist to provide his chart notes which he did. The notes are consistent with the worker’s testimony at the hearing. In particular, there is reference to her reactions to the information as well as difficulties with the work load and the work environment. However, there is also reference to difficulties the worker experienced even going by the building she worked in, dreams she was having, and visceral reactions to thoughts of work. By May 2003 the chart notes indicate that the worker was improving and phasing out from information overload. A May 30, 2003 note makes reference to her resentfulness towards her employer for putting her in the position it did.
At the request of her employer, the worker was also seen by a psychiatrist in June 2003. The psychiatrist diagnosed the worker with a major affective disorder - depression and an adjustment disorder with disturbance of mood. Psychosocial factors affecting her were listed as “work related stress”. He thought that the worker should be able to return to alternate employment elsewhere but that she was jaded by her “inability to tolerate the content” of the information.
The psychiatrist was also asked by the panel to provide his chart notes; he did not have any as he only saw the worker on one occasion.
Analysis
To accept the worker’s appeal, we must find, on a balance of probabilities, that the worker suffered an accident within the meaning of subsections 4(1) and 1(1) of the Act. The majority is able to make that finding.
Subsections 4(1) and 1(1) of the Act provide that to be compensable, a worker must suffer personal injury by accident arising out of and in the course of employment. An accident is a chance event occasioned by a physical or natural cause. It includes any event arising out of and in the course of employment.
Subsections 4(1) and 1(1) do not exclude psychological injuries as long as they result from an accident. This is reiterated in WCB Policy 44.20.60, 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.”
Several non-exhaustive examples are listed which do not apply to the present case.
That said, subsection 1(1.1) clarifies that the psychological injury cannot and does not include psychological injury resulting from employment matters.
The parties have referred to subsections of the Act and other policies dealing specifically with occupational disease. We do not find these provisions applicable to the case at hand. This is not an occupational disease claim. An occupational disease is a disease arising out of and in the course of employment and resulting from causes and conditions peculiar to or characteristic of a particular trade or occupation or to that particular employment. The inquiry this panel must make is therefore whether or not there was an accident. As we do not find that this is an occupational disease claim, WCB Policy 44.20, Disease/General does not apply.
As stated previously, in the case at hand, we must determine whether there was an accident. This determination requires us to examine whether an event happened at work that could have caused the worker injury and whether the diagnosis is consistent with that mechanism of injury. In reviewing and weighing the evidence, we find on a balance of probabilities that the worker did suffer an accident.
The worker’s evidence is that while in the process of receiving and entering graphic and disturbing information into the computer she became physically and emotionally ill at that time. Though the employer seems to dispute the veracity of these events and reactions, no pertinent evidence was provided to dispute them other than the assertion that there was nothing in the performance appraisals to that effect. In particular, the employer was unable to refer us to any medical evidence to support this assertion. While it did refer to the content of information processed by the worker, this evidence was of little assistance. In the first place, it only dealt with thirteen reports that had been identified by a supervisor as having been created or modified by the worker. It is not a complete report and does not deal with reports that the worker processed while working in the Unit. Further, although the employer asserted that the nature of these reports were not likely to cause injury, we would like to emphasize that the test before this panel is not what is likely to cause injury to your average worker. It is whether this particular worker suffered an accident.
We accept the worker’s evidence about her reactions. It is consistent with her evidence about the progression of her symptoms as well as with her presentation at the hearing. Indeed, as stated previously, the worker was visibly distraught and expressed difficulty with recounting the disturbing episodes. The evidence is also consistent with the medical reports of the mental health practioners. The mental health practioners who are highly trained in this area did not dispute the veracity of the worker’s reports. For these reasons, we accept that the worker did experience psychological reactions to the disturbing information to which she was exposed.
We also find on a balance of probabilities that the accident caused the worker to suffer PTSD. Two different diagnoses appear in the medical reports - PTSD and adjustment disorder. The psychiatrist who treated the worker from November 2002 to May 2003 made the diagnosis of PTSD. However, by May 2003 he noted that she had improved. The worker did not see the psychiatrist until June 2003. His diagnosis which is referred to in an August 2003 report is adjustment disorder. As the psychiatrist does not deal with the psychologist’s earlier diagnosis of PTSD, it is unclear whether the psychiatrist disputes that diagnosis, whether it was still in play in June 2003 or whether the adjustment disorder was in addition to the PTSD. If the psychiatrist disputes the diagnosis of PTSD, we do not place much weight on this opinion. Indeed, the psychiatrist only saw the worker once, and this was in June 2003 after the worker was off work for eight months and had undergone both psychotropic and therapeutic treatment. Further, we find that the worker’s evidence supports a diagnosis of PTSD. Indeed, the evidence as to the worker’s reactions, symptoms and progression is consistent with the DSM IV information provided by the psychologist. Though the worker did not suffer direct trauma, we accept the psychologist’s opinion that direct exposure to trauma is not required for a diagnosis of PTSD. It is sufficient that a person be confronted with events that involve actual death or serious injury especially when, as in the case of the worker, that exposure is in “real time”. As the worker stated, receiving the information in real time was like being there and witnessing it. Finally, this diagnosis is entirely consistent with the mechanism of injury described by the worker at the hearing.
We have turned our minds to the impact the employment matters had on the worker and whether they were responsible for her PTSD or for taking her off work. In reviewing the medical evidence, we do not find any indication that the worker’s difficulties with the work environment caused her PTSD. The only indication we see is, as described by the psychologist, that it impacted on her ability to perform. This is clearly stated by the psychologist. He writes in his March 17, 2003 report that “it is the repeated vicarious exposure to significant traumatic events which resulted in Post-Traumatic Stress Disorder…” and in his March 28, 2006 report: “It is the repeated exposure to traumatic criminal events that led to her condition…”. This statement was made with full knowledge of the employment-related issues.
Whether the employment-related issues caused a concomitant non-compensable injury is not for this panel to decide. In any event, it does not preclude acceptance of a claim if it is determined that the worker suffered a compensable injury.
With respect to whether the employment issues took her off work, we find that we do not need to deal with that issue. “What took her off work” is a loss of earning capacity issue which is not before this panel. The only issue before this panel is whether the worker had an accident at work that is compensable.
For the reasons stated above, the majority find on a balance of probabilities, that the worker suffered psychological injury by accident arising out of and in the course of her employment and that therefore, her claim is acceptable.
Accordingly, her appeal is granted.
Panel Members
L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Martin - Presiding Officer
Signed at Winnipeg this 14th day of February, 2007
Commissioner's Dissent
Commissioner Finkel’s dissent:
The worker in this case is seeking to have a claim for psychological conditions accepted under the Act, as an accident arising of and in the course of her employment. Her claim had been denied at the adjudicative and Review Office levels, and she has appealed these decisions to the Appeal Commission.
After careful consideration of the evidence and arguments made during the hearing, the evidence on file, and the evidence gathered subsequent to the hearing, I have determined that, in the context of this case and the applicable legislation and policy, the worker’s psychological condition can only be accepted as a compensable accident when
(a) it is due to an event arising out of and in the course of employment; or
(b) it is an occupational disease that does not fall into the statutory exclusions.
I have found, on a balance of probabilities, that while the worker does suffer from psychological difficulties, these difficulties are not compensable under either of these criteria, and I would deny the worker’s claim. My reasons follow.
Legislation and Policy
Subsections 1(1) and 4(1) of the Act provide the framework for eligible workplace injuries under the Act.
Subsection 1(1) provides the following definition of an accident:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and(c) an occupational disease,
and as a result of which a worker is injured;
Subsection 1(1.1) of the Act, provides exceptions that specifically remove certain workplace-based events from being considered as compensable under the Act. It notes that:
The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.
Subsection 1(1) provides further insight for situations where accidents arise from general hazards particular to the employment, in particular where there is an “occupational disease.” Again, the legislation notes limitations, in that not all occupational diseases are considered to be compensable:
"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;but does not include
(c) an ordinary disease of life; and
(d) 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.
As well, the WCB Board of Directors has enacted WCB policy, Section 44.20.60, Psychological Conditions, which clarifies that psychological injuries can arise out of the workplace. It states, in part:
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.
This includes, but is not limited to psychological conditions incurred as a result of the following: …
b) A psychological reaction or condition which is a direct result of a serious compensable life-threatening injury/event (serious in this context means an accident that threatens life or direct involvement in a life threatening incident or event).
The Act also provides guidance for situations for occupational diseases where there are both compensable and non-compensable sources for the injury. Subsection 4(4) provides that:
Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.
Analysis
The worker was employed for many years in an administrative clerk position. There were no apparent performance issues or psychological problems while she was in that position. However things changed in July 2001, when the worker successfully applied for a transfer to an administrative position within an emergency response organization.
In her first position (“DVE”), the worker provided support services for emergency personnel in the field. This job required her to be in telephone contact with the personnel and to provide computer support to assist them in opening computer report files for the crimes they were investigating. As a byproduct of this job, the worker would be exposed, in varying degrees, to the content of the crimes that were under investigation, ranging from the mundane to the violent. The worker stayed in this position for eight months, but was not performing well during that time.
In March 2002, the worker was therefore transferred to another position which was more administrative in nature, and at another location. In this second position, she was no longer dealing with emergency response personnel directly, but was responsible instead for reading incident reports and for coding those incidents into a computer system. She stayed in this position until October 15, 2002, when she went off work. Five months later, the worker filed a WCB claim on March 14, 2003, attributing her departure from work in October 2002 to a significant reaction to the workplace incident reports to which she had been exposed.
From the evidence on file and at the hearing, it is apparent that there were two causes of emotional distress facing the worker, once she took the jobs in the emergency response organization. In broad terms, the first stressor dealt with organizational fit – her adaptation to the new position, whether she was the right person for the job, and how she fit into the organizational culture. The second stressor was the worker’s exposure and reaction to graphic details of the matters being investigated.
Both conditions were at play in the case at hand. Both were present at various points during her 15 months of work, and both were apparent in her later treatments by her treating medical professionals.
The central question is: did the second stressor cause the worker’s psychological condition?
The positions taken by the worker’s and employer’s advocates deal, for the most part, with a weighing of these stressors, in how they advocate whether there is an acceptable claim. The worker’s position is that she has been diagnosed with a post-traumatic stress disorder, which would qualify as a compensable workplace accident, as a result of her ongoing exposure to the details of a series of violent crimes. The employer’s position is that the worker had performance issues at work, had never discussed the specific content issues with her co-workers or supervisors, and that her departure on October 15, 2002, was ultimately a response to a poor performance evaluation she had received approximately three weeks earlier. As such, the employer argues that what took the worker off work was “stress,” which is not a compensable accident under the Act.
As noted earlier, I have concluded that the worker did in fact experience both stressors, but I find that the psychological difficulties that took her off work were the general workplace stressors, which are excluded from coverage as a workplace accident under the Act. While the worker did experience reactions to disturbing events at work, they did not reach the threshold of being acute or distinct chance events that would qualify as a workplace accident. In reaching this conclusion, I rely on the following evidence and analysis:
The delays in reporting: I would note firstly that this file has been complicated by the fact that the claim was not filed until March 14, 2003, some five months after the worker left her workplace. It was at that time that the worker first identified to the employer and to the WCB that she had been reacting to disturbing information while on the job. This delay has provided evidentiary challenges in trying to understand what factors were truly in play during the worker’s employment, particularly as we try to understand what was going on in the worker’s mind, and which factors actually took her off work.
The timing of the onset of the conditions: The background to this decision provides a recitation of the various problems that the worker encountered in the workplace. In my view, it is apparent that right from the outset, the worker was dismayed with the lack of training that she had received, how she felt about her co-workers and supervisors and them towards her, and that she had indeed received a poor performance appraisal in September 2002, just weeks before she left work.
The worker’s evidence is that the she responded poorly as well to the disturbing details of crimes that were being investigated, to the point of her having physical reactions (vomiting and trips to the washroom), and that this built up continuously to the point where she was forced to leave work for that reason.
It is this last evidence by the worker that is central to the acceptability of this claim. To accept her claim, I would have to find that the worker’s reaction to events at her workplace, went beyond being “incidents” to reaching the standard of an “accident” under the Act, either as an acute reaction to workplace events or a compensable occupational disease. This is discussed in greater length below.
The weighing of the medical evidence on the file: The worker’s advocate points to recent psychological reports of March 12, 2003 and March 28, 2006 as well as a psychiatric report that suggest a diagnosis of post-traumatic stress disorder (PTSD), and argues that this confirms the worker’s evidence on this point.
I note, however, that the worker has been continuously treated for psychological conditions by a psychologist starting in November 2002 (one month following her departure from the workplace). In reviewing the psychologist’s interview notes from his initial meetings with the worker, and his later reports, I note that there has been an evolution on what events the worker has focused on during those treatments, and ultimately on the diagnoses offered by the psychologist.
As a general commentary on the weighing of evidence, there are often challenges caused by the passing of time, in particular when memory or recall issues are at play. In the context of a claim dealing with psychological conditions and the full reliance by healthcare practitioners on the self-reporting of their patients as the basis of their diagnoses and treatment, this becomes a potentially even greater problem.
For these reasons, much as one would do in assessing a witness’ statement made close to the time of an incident against recently made statements, much of my analysis and understanding of what transpired is derived from comparing the earliest psychological reports available to the panel to the most recent, and providing greater weight to the earlier information, where there are discrepancies.
As a result, I have placed greater weight on interview notes provided by the worker’s psychologist dated November 12, 2002, and November 19, 2002 than the reports provided later. These meetings took place within a month of the worker’s departure from the workplace and several months prior to the initiation of a WCB claim. To my mind, they provide the best insight as to what the worker was thinking at that time, and as to what took her off work.
The relative impact of the two stressors on the worker: The interview notes identify both issues – general workplace issues and the disturbing content – immediately. What is apparent to me in the entire reading of the interview notes is that perhaps 90% of the workplace stressors described by the worker were exactly that – workplace stressors. The notes are extensive with respect to the significantly different work culture faced by the worker, different job duties and the immediate lack of appropriate training, and in particular, the series of performance and evaluation issues that she faced in her two jobs and the “last straw” performance evaluation meeting on September 23, 2002. The notes disclose that the worker was a perfectionist, and struggled almost immediately in her clerical position with the new coding required, and, in her mind, the lack of supervision or adequate training. She also had few friends in her new position, and felt that she was an outsider.
While the worker also refers to the disturbing incidents at work and her physical reactions to those incidents in those November 2002 interviews, I do have some difficulty in placing as much weight on those issues as being the primary reason for her departure from the work force. In particular, I note the following:
- The direct exposures to the crimes, via telephone and in some cases the typing of reports, occurred primarily in the first eight months of the job, which she left in March 2002. From that point on, the worker was in an administrative position which substantially buffered her from direct contact with emergency personnel and the direct and immediate exposure to the disturbing events that she had faced earlier.
- The worker has not provided any evidence regarding her exposure to any specific crimes in the last weeks or months before she left work on October 15, 2002. This tends to support a finding that any such acute reactions would have taken place in the early months in her DVE position, as compared to her later and more indirect exposures when dealing with written reports in her second position.
- The evidence discloses that the worker generally failed to discuss her reaction to the disturbing criminal matters with her co-workers during her eight months with DVE or subsequently in her coding position, or with her supervisors, or with her managers during her performance evaluations, or when she left her position, or when she was contacted several months later by a manager wanting to know how she was doing.
- Although the worker references her exposures to disturbing material in her comments to her psychiatrist on November 14, 2002, there is no mention of anything of a recent nature. She in fact states to him that her performance appraisal in September 2002 was “the last straw” that led to her departure in October 2002.
- There is also an issue as to what exactly the worker had been exposed to. During its deliberations, the panel asked the employer after the hearing to provide a list of incident or coding reports that she had worked on, which contained crimes of a potentially disturbing nature and the specific role that the worker had in each of those cases. While I am not entirely satisfied with the completeness of the list, it does nonetheless demonstrate that the worker’s duties for most of these reports would be to provide templates and the like to emergency response personnel, which I find to be administrative tasks having very little to do with the actual content of the crimes themselves, as compared for example to administrative job duties that involved taking notes or dictation from a police officer. Nonetheless, it is clear and I accept that the nature of the information, even if received indirectly, had the potential to be disturbing to administrative staff exposed to it. Again, while it was difficult to correlate the worker’s evidence on what she had been exposed to and when, with the employer’s list, for me the greater difficulty is that the worker has, over the years since she left the workplace, increased her reporting of the nature, variety, and severity of the incidents that she was exposed to in the workplace. The worker in fact introduced new incidents at the hearing that had not shown up on the file at any point in the previous five years.
- While the medical literature and indeed the psychologist’s reports acknowledge that there can be a delayed onset of acute reactions to post-traumatic events, I find that the evidence also supports that the worker has developed an acute reaction to her job as well, and in particular, that the worker has demonstrated over time, an increasing deep-seated psychological aversion to ever returning to work with the emergency personnel department. This is apparent from the evidence provided by the worker at the hearing as well as the medical reports that cover her treatment over time. While it is tempting to base this deeply held aversion on a diagnosis of PTSD or a variant on that psychological condition, it is fairly clear that everything about the workplace upset the worker. In my view, the worker’s transfer to that department in July 2002 was, in hindsight, a mis-fit of the worker’s skills, interests, temperament, and training with the culture and requirements of her new positions in that particular department. It is noteworthy that at no point in the file has the worker ever described the job as anything but a poor fit for her. In this context, I find that the entire workplace became a “poison” to the worker, based on a combination of the general workplace and performance stressors that she had, as well as the distasteful material that contributed a degree of stress as well. This accumulation built to a point where the workplace in its entirety became psychologically untenable for her to continue, leading to her departure in October 2002, and later the need for psychological treatment to deal with the damage done.
The combination of the factors listed above lead me to conclude that while the worker may well have had reactions to disturbing information at the workplace, including physical reactions, these were workplace incidents that did not reach the standard of being a workplace accident. I find that the worker’s reaction to her workplace – stress – was present from the moment she started in her new position, and worsened continuously until the “last straw” performance evaluation in September 2002 and her departure a few weeks later.
While this accumulating workplace stress was assisted along by her reactions to disturbing criminal matters, I find that this case really is about, on a balance of probabilities, the general or chronic workplace stress related to her performance and fit issues. This type of stress is excluded from coverage under subsection 1(1). I also find that there is no acute reaction to a traumatic event that would qualify the worker’s psychological condition under subsection 1(1). Accordingly, I find that there is no compensable injury under the Act and thus no accident.
I would therefore deny the worker’s appeal.
A. Finkel
Commissioner