Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2019 CSR | January 2019 | News One particular incident hap- pened 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 undercov- er 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. Follow- ing this incident, Reid said he was told the TTC wanted to fire him, but after an investigation the TTC didn't issue any disci- pline. 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 Janu- ary 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 de- pression. 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 retire- ment date, Reid filed an injury report to the Ontario Workplace Safety and Insurance Board (WSIB) claiming he was suffer- ing from traumatic mental stress stemming from flashbacks to the 2005 attack and 2008 knife inci- dent, 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 psycho- logical reaction to a series of sud- den 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 contrib- uted to an acute psychological condition, but Reid returned to normal work duties afterwards without any problems and didn't receive any psychological treat- ment until 2011. There was no medical evidence indicating any ongoing mental stress before the 2011 incident with the investiga- tor. 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 re- cent incident. However, the WSIB noted that workers were not entitled to traumatic mental stress ben- efits if the stress was related to an employer's employment deci- sions or actions. The investiga- tor's decision to try to take Reid's bus out of service and the TTC's decision to investigate that inci- dent were employment-related decisions, said the WSIB in de- nying 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 requir- ing treatment until the TTC's in- vestigation in August 2011. Reid appealed to the Work- place Safety and Insurance Ap- peals Tribunal, but was again un- successful. 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 reconsidera- tion after providing a new medi- cal 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 ini- tial 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 On- tario Divisional Court. The court found that the tribunal considered the new psychologi- cal report and didn't unreason- ably 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 rea- sonable for the tribunal to eval- uate the medical opinions and find the newer one not persua- sive, said the court. "The tribunal understood the evidence of (the newer medical report)," said the court. "The tri- bunal did not accept (the) diag- nosis 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 in- vestigator and the subsequent investigation by the TTC was the culminating incident that caused Reid to stop working in November 2011 — as well as de- termine that the incident wasn't eligible for traumatic mental stress benefits under the act. The court dismissed Reid's ap- peal and ordered him to pay the TTC's costs from the proceed- ings. For more information see: • Reid v. Workplace Safety and Insurance Appeals Tribunal, 2018 CarswellOnt 18522 (Ont. Div. Ct.). Returned to normal duties without treatment after attacks Worker's stress < pg. 1 Credit: Shutterstock/Gustavo Frazao

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