Bus driver returned to work without any issues following incidents with passengers; Didn’t start reporting mental health issues until disciplinary incident and investigation
An Ontario transit worker’s claim for traumatic mental stress benefits has been denied because the stress was the result of his employer’s actions related to his employment, not a sudden or unexpected traumatic event at work, the Ontario Divisional Court has ruled.
Aston Reid was hired by the Toronto Transit Commission (TTC) in 1979 to be a bus driver. For much of his tenure, the bus route Reid drove was in a rough part of Toronto, which contributed to several disputes with passengers who may have been looking for trouble.
One particular incident happened in June 2005 following an increase in fares. Four female patrons who were angry with the fare increase attacked Reid after they boarded his bus. More than three years later, in November 2008, a passenger refused to pay the fare after he boarded Reid’s bus and, following an argument, pulled a knife and threatened Reid.
In August 2011, an undercover TTC investigator found Reid eating an apple while driving a bus and tried to take the bus out of service. Reid refused to give up control of his bus at the time and police were called. Following this incident, Reid said he was told the TTC wanted to fire him, but after an investigation the TTC didn’t issue any discipline. However, he claimed he felt nervous at work all the time and wasn’t able to drive a bus anymore.
Reid planned to retire in January 2012 after 34 years of service with the TTC. However, the August 2011 incident with the investigator affected him and he had to take time off work in November due to stress and depression. He decided to claim sick benefits and received the benefits until his retirement date of Jan. 7, 2012.
Claim for traumatic mental stress following retirement
Eight months after his retirement date, Reid filed an injury report to the Ontario Workplace Safety and Insurance Board (WSIB) claiming he was suffering from traumatic mental stress stemming from flashbacks to the 2005 attack and 2008 knife incident, as well as his nervousness after the August 2011 incident that prevented him from being able to drive a bus.
The WSIB determined Reid didn’t meet the two criteria for traumatic mental stress benefits under the Ontario Workplace Safety and Insurance Act: “an acute psychological reaction to a sudden or unexpected traumatic event arising out of or during employment; or a final psychological reaction to a series of sudden and traumatic events arising out of and during employment (the cumulative effect of such events).”
The WSIB found that the 2008 knife incident may have contributed to an acute psychological condition, but Reid returned to normal work duties afterwards without any problems and didn’t receive any psychological treatment until 2011. There was no medical evidence indicating any ongoing mental stress before the 2011 incident with the investigator. The worker only reported feeling nervous at work after the August 2011 incident, so his claim for traumatic mental stress could only apply to the more recent incident.
However, the WSIB noted that workers were not entitled to traumatic mental stress benefits if the stress was related to an employer’s employment decisions or actions. The investigator’s decision to try to take Reid’s bus out of service and the TTC’s decision to investigate that incident were employment-related decisions, said the WSIB in denying Reid’s claim.
Reid appealed the decision, but an appeals resolution officer agreed with the WSIB that there was no evidence the worker had any psychological issues requiring treatment until the TTC’s investigation in August 2011.
Reid appealed to the Workplace Safety and Insurance Appeals Tribunal, but was again unsuccessful. The tribunal found Reid wasn’t entitled to traumatic mental stress benefits because:
• Reid’s psychiatrist reported that Reid’s mental health issues in 2011 were likely because of non-work-related reasons, such as “legal stressors and financial burdens associated with the breakdown of (Reid’s) marriage.”
• Medical information from Reid’s treating physicians indicating he didn’t have an acute stress reaction to the 2005 attack.
• There were no indications Reid’s daily life was affected.
• Discrepancies between Reid’s initial report blaming his stress on the 2005 and 2008 incidents and his statements to the WSIB that the August 2011 investigation was the main culprit.
• Evidence that Reid didn’t have any serious issues until the August 2011 incident, making it the more likely culminating incident — which was from the TTC’s actions related to Reid’s employment and therefore ineligible for benefit entitlement.
Reid asked for a reconsideration after providing a new medical report dated Nov. 1, 2016, that he argued was “substantial new evidence” that could have produced a different result at the original hearing. He also said the tribunal didn’t properly weigh the evidence and therefore made an error in law. However, the tribunal determined the new report was “more evidence on the same issue,” not a new fact, that was produced after its initial decision and likely wouldn’t have produced a different result. There was also no indication there was an error in law and Reid was trying to “re-argue the appeal,” said the tribunal.
Reid took his case to the Ontario Divisional Court. The court found that the tribunal considered the new psychological report and didn’t unreasonably reject it; the report was based in large part on Reid’s self-reporting and contradicted another report that was already part of the evidence. It was reasonable for the tribunal to evaluate the medical opinions and find the newer one not persuasive, said the court.
“The tribunal understood the evidence of (the newer medical report),” said the court. “The tribunal did not accept (the) diagnosis and gave its reason for that conclusion.”
The court also found that it was reasonable for the tribunal to conclude that the August 2011 incident with the undercover investigator and the subsequent investigation by the TTC was the culminating incident that caused Reid to stop working in November 2011 — as well as determine that the incident wasn’t eligible for traumatic mental stress benefits under the act.
The court dismissed Reid’s appeal and ordered him to pay the TTC’s costs from the proceedings.
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