Benefits for recurrence of mental stress injury 3 years after incident

An Ontario worker who received benefits for a mental stress injury is entitled to additional benefits for a recurrence of the injury stemming from a less-serious incident three years later that prompted similar symptoms, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.

The 56-year-old worker was a personal support worker in a nursing home. She was hired by the home in 1989.

On March 27, 2010, the worker was performing her job duties caring for residents in the home. One of the residents became agitated and grabbed her, punching her repeatedly in the face, head, chest, and upper body before others could intervene. In addition, she was unable to fully defend herself against the blows because workers at the nursing home were prohibited from harming residents under the home’s policies. The worker sustained a black eye and several bruises from the assault and was crying and shaking afterwards because she felt her life had been threatened.

The worker took one week off work to let her injuries heal and then returned to her regular job duties as a personal support worker. Her black eye and bruises faded, but she continued to experience psychological effects from the attack, particularly when any residents became aggressive around her. Whenever such an incident occurred, it triggered stress and anxiety.

The Ontario Workplace Safety and Insurance Board (WSIB) granted the worker entitlement for traumatic mental stress —finding she met the entitlement requirement under the Workplace Safety and Insurance Act that compensable mental stress be “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment” — and referred her to the psychological trauma program at the Centre for Addiction and Mental Health (CAMH). Reports from the program indicated the worker had anxiety disorder with features of post-traumatic stress disorder (PTSD) in relation to the workplace.

In April 2011, just over one year after the attack, another resident in the home began showing signs of increasing aggression towards her. One day, the resident grabbed the worker’s arm and wouldn’t let go, yelling at her about his wife and showing his fist to her. After the incident, the director of nursing at the home spoke to the shaken worker and let her go home for the day to recover. However, the incident awakened more mental trauma for the worker — she began having difficulty sleeping, poor concentration, mood swings, shakiness, crying spells, and flashbacks to the March 2010 assault. She had to stop working following the second incident due to the seriousness of her psychological symptoms.

A WSIB return-to-work specialist evaluated the worker and reached an agreement with the nursing home to have the worker re-integrate back into the workplace starting with two shifts a week, eventually progressing to regular shifts. The worker would perform modified duties including administrative tasks in an office, feeding residents in the lounge, and participating in the nursing rehab program with small groups of residents.

However, the worker suffered another flare-up of her mental stress symptoms in May 2012 when she saw aggressive residents hitting staff members. She soon found herself waking up mornings crying, shaking, and feeling mentally drained. A psychologist observed that the worker experienced a “dissociative state” when witnessing assaults in the workplace. The WSIB granted entitlement to benefits for a second recurrence of the workplace mental stress injury.

The worker expressed a desire to work in a retirement home adjacent to the nursing home, where her exposure to potentially aggressive residents would be limited and she felt safer. A return-to-work plan was developed in August 2012 that involved the worker working mostly in the retirement home’s laundry room.

The worker worked in the laundry room for several months until April 17, 2013. On that date, a resident came up behind her in the laundry room when she was alone and startled her. This was unexpected as the door to the laundry room was supposed to be locked and residents weren’t supposed to have access. However, the lock was broken and the resident was able to enter the room.

The worker’s stress symptoms increased because of this incident and the worker once again had to stop working. Her family physician reported that she had symptoms of stress and anxiety and had been diagnosed with PTSD, recommending that she “needs to work in guaranteed safety.” The worker was off work for nearly five months until September 2013, when she returned to accommodated work duties at the retirement home following WSIB-approved psychological treatment. She continued to work in the laundry room with the lock on the door repaired, along with certain other tasks that limited her exposure to residents.

The worker again applied for entitlement for benefits for a recurrence of her mental injury and loss-of-earnings benefits for the five months she was off work following the April 2013 incident. However, the WSIB denied her claim on the grounds there was insufficient evidence her condition had significantly deteriorated. The worker appealed the decision to the Workplace Safety and Insurance Appeals Tribunal.

The tribunal referred to the WSIB policy document on recurrences that stated “workers are entitled to benefits for a recurrence of a work-related injury where there is a clinical compatibility between the original injury and the current condition, or a combination of clinical compatibility and continuity.”

The tribunal found that after the April 2013 incident, the worker felt nervous, started crying, and had to go home. Her family physician’s report mentioned stress, anxiety, and PTSD, which “clearly establishes compatibility of the diagnosis and symptoms with the worker’s initial diagnosis of PTSD,” the tribunal said. The incident itself was not a significant event, but the worker’s emotional reaction to it was likely related to the initial mental stress injury suffered in March 2010, said the tribunal.

The tribunal also found that at the time of the April 2013 incident, she had been performing ongoing modified work due to her symptoms. This demonstrated a “continuity of symptoms after the original mental stress injury.”

In addition, the medical evidence indicated the worker was unable to return to work during the five months following the recurrence without treatment, and required accommodation when she did return in September 2013.

The tribunal noted that the WSIB’s decision-making in this matter didn’t point to any evidence that suggested a lack of compatibility with the original mental stress injury and the recurrence suffered by the worker in April 2013. As a result, it determined the incident induced a recurrence of the original injury and warranted entitlement to benefits under the WSIB recurrences policy.

The WSIB was ordered to provide the worker with loss-of-earnings benefits for the period from the recurrence in April 2013 until she returned to accommodated work in September 2013.