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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.



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  Decision 3235 17
R. McCutcheon - E. Tracey - C. Salama

  • Words and phrases (claim)
  • Recurrences (compensable injury) (stress, mental)
  • Referral to Board (first responder) (post-traumatic stress disorder)
  • Referral to Board (stress, mental)

The worker was a registered nurse at a community health centre. In November 2009, she was attacked by a patient who hit her in the face and head, pulled her hair and attempted to choke her. The Board granted the worker entitlement for mental stress under the provisions of the WSIA in effect at the time. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for a recurrence or a new accident in August 2012.
The worker started a graduated return to work in February 2010, and, eventually returned to full pre-accident duties and assignments. In August 2012, the worker was involved in another incident with a patient, when the worker was struck on the side of the head, resulting in the worker having flashbacks to the 2009 incident. The Board denied entitlement finding that the worker was the aggressor in that she threw a paper cup and moved her leg in a kicking motion.
The hearing of this appeal took place in October 2017. The hearing was complete but the Panel had not yet released its decision by January 1, 2018. Thus, the issue was raised as to whether the case should be referred back to the Board on the basis of amendments to the WSIA, either on the basis of s. 13.1(8) regarding claims for mental stress that are pending at the Tribunal as of January 1, 2018, or s. 14(16) regarding claims regarding first responders (including nurses) for post-traumatic stress disorder.
The Panel considered the principles of statutory interpretation and concluded that the worker's claim for a recurrence was not a claim before the Tribunal within the meaning of the applicable provisions. Rather, the statutory language refers to a new claim for initial entitlement for mental stress or post-traumatic stress disorder. In reaching this conclusion, the Panel first considered the ordinary meaning of the term "claim" in the workplace insurance context. Based on first impression and noting that initial entitlement in 2009 was not an issue, the Panel found a claim for recurrence of the 2009 claim is not a pending claim at the Tribunal. Next, the Panel considered the larger statutory context, and found that it reinforced the Panel's interpretation.
Therefore, it was not appropriate to refer the matter back to the Board.
On the merits, the Panel found that the worker had entitlement for a recurrence. The worker did not take herself out of employment in the incident in 2012. She did not assault the patient or initiate a physical confrontation. At most, she might have displayed impatience with a verbally abusive patient by insisting that the patient throw away her own cup. Video surveillance shows that the worker did not kick the patient but, rather, that she acted defensively. Her defensiveness was understandable when placed in the context of her unresolved symptoms related to the attack in 2009.
There was clinical compatibility between the initial assault in 2009 and the events in 2012. There was an interaction between the aftereffects of the first incident and the worker's reaction to, and perception of, the second incident.
The worker had entitlement for the recurrence in 2012 of her 2009 mental stress claim. The appeal was allowed.