Worker returned to work following incident; subsequent incidents not related to PTSD
An Ontario worker’s stress-related psychological condition is not related to a workplace assault and therefore is not eligible for workers’ compensation, a tribunal has ruled.
The worker started working for the Toronto Transit Commission (TTC) as a temporary subway janitor on July 5, 1995. Four days later, he was attacked by three people in the subway station where he was assigned. One of the people slashed his shirt with a box cutter and told him he was going to “stick” him. The worker thought he was going to die, but the attackers suddenly fled. The janitor called 911 and went to his supervisor’s office, where he said he didn’t want the job anymore and wanted to go home.
The worker was offered some time off, but he refused and said he could work at night as long as he didn’t work alone. The TTC transferred the worker to a larger station that required two janitors. However, the worker testified he became housebound and he couldn’t go anywhere alone. He spoke with a counsellor a few times but didn’t see his doctor. The worker testified he kept the incident buried inside him.
While working at the new station, two more incidents took place that rattled the worker. On one occasion, the worker was closing up the station when he heard glass breaking, apparently from someone kicking in a glass door. The worker locked himself in the janitor room and called security.
A few days later, an individual on the other side of the glass at the station put his hands on the window and threatened to kill the worker. The worker called security and it was discovered the person who threatened him had psychiatric problems.
The worker’s temporary employment ended in October 1995 and he was rehired as a trackman from April to December 1996 and again from April to October 1997. Following the second trackman stint, the worker was transferred back to subway janitor at the same station where he was attacked.
When he was transferred, the worker expressed concerns about working alone and requested a partner. His supervisor called him a “basket case” but later apologized. He was laid off in November and filed a worker’s compensation claim that his psychological issues were the result of the July 1995 attack. His claim was denied as not compensable under the traumatic stress policy of the Workers’ Safety and Insurance Board (WSIB), as was his initial appeal to the appeals resolution officer. The worker then appealed to the Workers’ Safety and Insurance Appeals Tribunal (WSIAT), arguing the 1995 assault was a “sudden, unexpected and traumatic event” that met WSIB’s traumatic mental stress policy.
Around this time, the worker saw his family physician for psychological problems. The worker was diagnosed with depression and authorized to take time off. In 1999, the physician said he would be fine to return to work but with the limitations of no night shift and no working alone. However, the TTC terminated his employment for being away without leave, which added to the worker’s stress. A psychiatrist diagnosed the worker with post-traumatic stress disorder (PTSD) and major depressive disorder and, after a grievance was filed, the worker was reinstated by the TTC.
The tribunal found there was no doubt the worker was distressed following the 1995 assault to the point where “he was prepared to abandon his job when he saw his supervisor that same evening." However, he returned to work after a couple of days off and was “informally accommodated” by being moved to a larger station where he could work with a partner. At this new station, the worker was able to work without medical attention and didn’t make any additional accommodation requests, said the tribunal.
The tribunal also found the worker didn’t see his physician about the incident and didn’t seek help in its aftermath, which was strange since he claimed to be housebound. The tribunal also noted the worker “eagerly” returned to work for the TTC when he was recalled for more temporary work.
“If the worker was so traumatized as to be secluded at home, as he testified, he would not likely have been prepared to return to work with the accident employer in 1996 and 1997,” said the tribunal.
