- Causation (medical evidence) (standard of proof) (stress, mental)
- Child protection worker
- Stress, mental (chronic)
The sole issue under appeal was whether the worker had entitlement to benefits for Chronic Mental Stress (CMS).
The appeal was allowed.The Panel noted that the test for entitlement under the CMS policy does not require that the triggering incident be objectively traumatic, sudden or unexpected. Furthermore, the mental stress condition need not reflect an acute reaction to a specific triggering incident. Rather, entitlement for CMS requires that a substantial workplace stressor or stressors be the predominant cause of the psychiatric condition. When the provisions of the CMS policy were applied to the facts in this case, the Panel found that the worker's regular job duties as a front line child protection worker were substantial workplace stressors.The Panel noted that the CMS policy also states that a workplace stressor will "generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances." The policy also notes that a claim for chronic mental stress made by a worker employed in an occupation with a high degree of routine stress "should not be denied simply because all workers employed in that occupation, or category of jobs within that occupation, are normally exposed to a high level of stress." The CMS policy describes jobs with a high degree of routine stress as having one or both of the following characteristics: (a) responsibility over matters involving life and death, or (b) routine work in extremely dangerous circumstances. The Panel determined that a front line child protection worker's job involves responsibility over matters involving life and death, as their decisions have a major life and death impact on a child. As such, it was concluded that the worker's job in child protection was one that involved a high degree of routine stress.Moreover, when determining whether a worker has entitlement for traumatic mental stress, Tribunal jurisprudence has typically held that the question is whether the events in question would be considered traumatic to an average worker in the general labour pool, not an average worker preforming the same kind of work (see Decision No. 1839/07). In this case, the worker's regular duties involved notably high levels of stress, as well as concerns for his safety, potential violence, and at times, actual threats of violence. Additionally, the Panel accepted that these substantial workplace stressors caused the worker to develop a mental stress reaction, that being depression and anxiety, documented as early as 2003. It was not until 2007 that the worker's conflict with the supervisor was reported, which was contributing to the worker's already existing issues with depression and anxiety resulting from his job duties, and made these conditions worse. The Panel noted although the worker's condition was made worse by the interpersonal conflict with his supervisor, this did not preclude his entitlement as the mental stress condition was evident and diagnosed years before this conflict began. It was also, according to his treating psychiatrist, the result of his concerns in his front line job with respect to his personal safety, perceived and actual threats of violence, and the distress associated with the very nature of the job. The Panel therefore found that the worker had entitlement to benefits for CMS.The employer's representative submitted that the clinical notes on record indicated that the worker was able to perform his full duties in 2008 when working under a different supervisor. The Panel noted that the worker's ability to work, or the lack thereof, was not determinative of the issue of initial entitlement. The issue before the Panel was to determine whether the worker sustained a mental stress injury as a result of a substantial workplace stressor(s) that was the predominant cause in the development of the condition. For all of the above reasons, it was found that the worker did sustain such an injury.Finally, Decision No. 1187/20 was referenced by the employer's representative, which notes that the test for the "predominant cause" set out in the WSIB CMS policy departs from the Tribunal's standard test for causation, that being the "significant contributing factor." As the Panel had found that the worker's job duties were substantial workplace stressors, which were the predominant cause of his mental stress condition, it was not necessary in this case to address the diverging standard from that applied by the Tribunal in assessing causation, as created in the WSIB's CMS policy.In summary, the medical opinions, and the associated findings and conclusions of Decision No. 371/17I, were made in the context of the previous TMS policy, which required an acute reaction to a sudden and unexpected, as well as objectively traumatic event, in order to establish entitlement. The test for entitlement to benefits for mental stress changed with the legislative amendments in effect from January 2018, to remove the requirement that an objectively traumatic triggering incident had to be sudden and unexpected to establish entitlement for TMS, and to provide for entitlement for CMS in cases where the workplace stressors were substantial, and which resulted in a recognized injuring process.