Highlights of Noteworthy Decisions

Decision 214 10
06/06/2022
M. Crystal - M. Trudeau - Z. Agnidis
  • Post-traumatic stress disorder
  • Psychotraumatic disability (no physical injury)
  • Board Directives and Guidelines (stress, mental) (traumatic event)

The issue under appeal was whether the worker was entitled to benefits for TMS under the Board's policy document published on January 2, 2018, or whether the worker was entitled to benefits for CMS under the Board's policy document published on January 2, 2018.

The Panel concluded that the worker was entitled to benefits for PTSD pursuant to the Board's policy on TMS.
The Panel noted that it reached this conclusion on the basis of the medical evidence on file, which indicated that a work-related incident in 1992, when the worker witnessed events related to the death of a person who was both a company employee and a family friend, made a significant contribution to the development of the worker's PTSD in or about 2004. It was noted that the applicable policy on TMS provides that entitlement to benefits is in order where "the traumatic event(s), or the cumulative effect of a series of traumatic events… caused, or significantly contributed to, an appropriately diagnosed mental stress injury."
The Panel also considered the question of whether the worker was in fact a "worker" within the meaning of the Act, at the material times. It was noted that during the earlier part of the worker's time with the employer, he was in a management role. The Panel noted that although the case materials did not include original documentation disclosing whether the worker had personal coverage with the Board while he was playing a management role, it was noted in the previous ARO decision, dated December 15, 2005, that the worker was listed for personal coverage receiving optional insurance from 1991 to September 2003, and was considered a worker. The ARO decision also referred to the worker as an employee. The Panel concluded that the worker was a "worker" within the meaning of the Act at all material times.
Furthermore, with respect to the worker's entitlement to benefits for TMS, the Panel noted that the new policy document does not include a requirement that a worker experience "an acute reaction" to the subject stressful event. Given this clear change in the language of the policy, the Panel stated that it is no longer considered a requirement for entitlement to benefits for TMS under the new policy. In addition, it was noted that under the former policy, in the event of a delayed acute reaction, the policy imposed a standard of proof beyond the usual standard for entitlement decisions of "on a balance of probabilities", in that the former policy stated that "in the case of a delayed onset, the evidence must be clear and convincing that the onset is due to a sudden and unexpected traumatic event…" The Panel pointed out that this higher standard of proof, where there has been a delay in the worker's acute reaction, no longer applied in this appeal, due to the changes to the policy document which became effective on January 1, 2018.
The Panel also accepted that the stressful incidents which arose between 2000 and 2004 were primarily related to the worker's employment function, and would not by themselves provide a basis for TMS entitlement. However, when the incidents between 2000 and 2004 were considered together with the incident in 1992, in keeping with the medical information provided by the medical expert on file, the Panel was satisfied that the 1992 accident, which is a compensable factor, made a significant contribution to the development of the worker's PTSD in 2004.
With respect to the worker's entitlement to loss of earnings (LOE) benefits and health care benefits, the Panel noted that since it was a written appeal and there was a lack of recent information about the worker on file, the issue of the nature and extent of the worker's further entitlement would be remitted back to the Board for determination, with the usual full rights of appeal in favor of the worker. In addition, having allowed the worker's appeal on the merits, the Panel determined it was no longer necessary to consider the issues related to the worker's challenges in relation to the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms.