Cause and trigger

Background
Entitlement to workers’ compensation benefits for mental illness has been on the rise, but assessing it can be more tricky than with physical injuries. This is a particular concern for emergency workers such as police, firefighters and paramedics, who can experience many traumatic events while carrying out their duties.

An official diagnosis by a mental health professional can be a key element of determining entitlement for a psychological injury. However, this type of injury can result not only from a single traumatic event but can also accumulate over time. For the latter, it’s important to distinguish between an event that may cause such an injury and one that triggers a pre-existing one.

A Saskatchewan worker for a police service has regained his claim for workers’ compensation benefits after a court found the rejection of his claim was based on a failure to distinguish between a cause and a trigger.

The 45-year-old worker was a police officer with the Estevan Police Service (EPS) in Estevan, Sask. since 1998. After completing a training program in forensic examination in 2001, he became a forensic examination technician in the criminal investigations department. He worked in that role for 14 years.

The worker’s duties as a forensic examination technician included conducting criminal investigations, processing crime scenes and preparing reports on investigation outcomes. Over the course of his 14 years in the role, he had to work at crime scenes that sometimes were gruesome.

In 2015, the EPS transferred the worker to a traffic services officer position. He then became a community services officer in 2016. However, during this time he was still finishing up some of the investigation reports from his forensic examination work.

On Feb. 17, 2017, the worker had an argument with his deputy chief about an investigation report that needed to be completed. The report was for a case involving the body of a young man who had apparently died while in a drug-induced state, which had been a stressful case to work and the worker was struggling to complete the report.

The deputy chief told the worker that if he didn’t complete the report, he might be disciplined for tardiness. This upset the worker, as he had many years of service with a high standard of work. He felt betrayed and began feeling acute stress reactions such as his heart pounding, sweating and a pressure in his head.

The worker sought medical attention and was diagnosed with hypertension. He was advised to take a couple of days off, but when he returned to work, he experienced the same symptoms and took more time off.

PTSD, anxiety diagnosis
The worker began seeing a psychiatrist who identified generalized anxiety disorder and post-traumatic stress disorder (PTSD). A second psychiatrist confirmed the PTSD diagnosis and the worker made a claim for workers’ compensation benefits.

While the worker was off work, he started having recollections of traumatic events he had experienced — there were six particular crime scenes that had stuck with him involving two suicides, two fatal fires, processing the remains of someone he knew personally and the post-mortem of an elderly woman. He began suffering from depression and panic attacks, which led to symptoms of re-experiencing the events, hypervigilance and nightmares.

A mental health assessment of the worker was performed in July 2017. The psychologist performing the assessment determined that the worker had “certain obsessive traits” that helped him in the forensic investigation work, of which the worker said he enjoyed the responsibility placed upon him despite the stress involved. The doctor also noted that the worker had ongoing anxiety issues that started after the premature birth of his son and continued after a medical emergency involving the son. The doctor concluded that there was a period of symptoms leading up to his current episode of anxiety that “likely gradually evolved and is based on a mixture of work-related events and some personal incidents” and the threat of discipline from his supervisor triggered a panic attack that “turned on the switch” for PTSD symptoms.

The assessment determined that the worker’s symptoms were slowly improving due to the worker’s efforts to overcome them, treatment and medication, noting that the worker was “very motivated to get back to work.”

Symptoms triggered by disciplinary discussion
The Saskatchewan Workers’ Compensation Board (WCB) had its psychological consultant evaluate the worker’s case. The consultant said it was his “understanding” that the discipline discussion with the supervisor triggered the worker’s psychological symptoms and that “without labour relations issues, the psychological trauma is not likely to be present.” The consultant acknowledged, however, that the worker’s “cumulative experiences might have eventually led to a claim without the disciplinary issue” and that while the worker’s PTSD hand increased in severity because of non-work-related issues, his work-related diagnosis had gotten worse.

The WCB denied the worker’s claim, finding that the disciplinary discussion with the supervisor was a reasonable action related to management that was a normal part of employment and not a traumatic event, stating that “the daily pressures or stressors of the work” and “performance corrective actions” were a normal part of employment in police services and forensic investigation.

The worker appealed the decision and found a more sympathetic position from an appeals officer, who used the initial evaluation from the worker’s July 2017 mental health assessment. The officer concluded that the worker “was more likely than not experiencing PTSD symptoms prior to the work event on Feb. 16, 2017” as he “was exposed to horrific traumatic events and a high level of stress and responsibility to the victims, the families and the community for 20 years.”

However, the EPS appealed this decision to the WCB Appeal Tribunal, arguing that the worker had a history of high blood pressure, he wanted to continue as a forensic investigator and no symptoms were noted until he was confronted with work performance issues.

The tribunal agreed with the EPS and reversed the appeal officer’s decision, finding that the worker’s injury was directly related to the disciplinary interaction the worker had with his supervisor. The tribunal pointed to the WCB consultant’s determination that, without the stress of the disciplinary discussion, the worker’s symptoms would not likely have led to the worker’s claim for benefits.

With his claim for benefits once again denied, the worker took his case to the Saskatchewan Court of Queen’s Bench.

The court noted that The Workers’ Compensation Act, 2013 includes PTSD in its definition of “psychological injury” and, if a worker is diagnosed with a psychological injury by a psychiatrist or psychologist, it’s presumed to be an injury that arose out of and in the course of employment unless proven otherwise.

However, the court found that the tribunal’s rejection of the claim seemed to disregard the presumption outlined in the act and the diagnosis of the worker’s condition by two different psychiatrists.

“The evidence unequivocally established the diagnosis of the [worker’s] PTSD, a diagnosis made by a psychiatrist and confirmed by two psychologists, one of whom acted on the [WCB’s] request,” said the court. “As these professionals possessed the necessary qualifications required by… the act, the only reasonable interpretation of that provision was that the tribunal had to accept the diagnosis at face value.”

The court noted that, based on the act’s provisions, the EPS had to prove the worker’s condition was not work related, but the EPS didn’t provide any comparable psychological evidence.

The court found that the tribunal focused on the WCB consultant’s comments regarding the triggering of the worker’s symptoms and the musing that the claim may not have been filed without the discussion with his supervisor to determine that it was more likely that the worker’s psychological injury was caused by the incident. However, the tribunal misunderstood that this didn’t necessarily mean the worker didn’t already have PTSD that was work related, said the court, adding that the WCB consultant made his evaluation without seeing the worker.

“The tribunal’s comments reflect a misunderstanding of the nature and significance of the diagnostic evidence it received,” said the court. “In particular, the tribunal failed to distinguish between events that ‘cause’ a psychological condition and from those which ‘trigger’ it.”

The court overturned the tribunal’s decision — which it described as not demonstrating “an internally coherent and rational chain of analysis that is justified in relation to evidence it received — and remitted the EPS appeal back to the tribunal for reconsideration, noting that this re-established the worker’s entitlement to benefits until such time that the tribunal may find otherwise.

For more information, see:

• Pierson v. Estevan Board of Police Commissioners, 2020 SKQB 144 (Sask. Q.B.).