A recent decision of the Workplace Safety and Insurance Appeals Tribunal provides helpful guidance on the best approach to advocating for entitlement under the WSIB Chronic Mental Stress Policy (“the Policy”) when the claim arises from workplace harassment.
In Decision No. 298/24, a longstanding injured worker, with an allowed claim in 2001 that resulted in a permanent impairment, made a claim for benefits alleging that he was harassed at work as a result of that impairment. The employer’s investigation found that the allegations were unsubstantiated. The Workplace Safety and Insurance Board also investigated. The investigator found that some witnesses supported and some denied that there was workplace harassment. The Board denied entitlement on the basis that there was “little evidence to support the worker was subject to workplace harassment.”
The methodical approach of the Panel was to first reiterate the standard of proof required in workers’ compensation matters. The benefit of doubt is resolved in favour of the worker when the issue cannot be decided because the evidence is equal in weight.
According to the Policy, entitlement to chronic mental stress requires, “…an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.”
Having established the evidentiary hurdle, the Panel turned to the definition of workplace harassment. While the Workplace Safety and Insurance Act, 1997 doesn’t define “workplace harassment” it is defined in the Policy. The Panel noted the similarity between the definition in the Policy and the one found in the Occupational Health and Safety Act. This included recognition that reasonable managerial actions are not harassment. Interpersonal conflicts are also not harassment unless the conflict amounts to workplace harassment.
The next issue for deliberation was what amounts to vexatious conduct. The Panel relied on decisions of the Human Rights Tribunal of Ontario to provide further context in defining the term.
The Panel found the worker credible with extensive testimony on the name-calling and insinuations that his impairment was not work related. The worker helped his appeal by having a witness confirm his version of events. Based on the evidence, the Panel found the supporting statements on file consistent with the worker’s evidence. Those statements countering the worker came largely from individuals the worker had accused of harassment. The Panel made specific reference to the worker being referred to as a “cripple” and “gimp” – evidence on file that was not addressed in the Board Appeals Resolution Officer’s decision.
Based on the evidence, the Panel allowed the appeal. The worker had, as per the Policy, “a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders.” With the Panel having found the worker had endured workplace harassment, the Policy recognises that workplace harassment “will generally be considered a substantial work-related stressor.” The high evidentiary bar of substantial work-related stressor is met once workplace harassment is accepted.
This decision provides helpful pointers for worker representatives in presenting their appeal. The first is that employer investigations are not determinative. If the worker has a supporting diagnosis as required by the Policy, the appeal will likely turn on the nature of the behaviour endured. Consistent evidence, ideally with supporting statements or witnesses, will strengthen the appeal. If there are countering statements it is important to emphasise the presumption in favour of the worker or alternatively, provide a reason for opposing statements. If there are other “interpersonal conflicts” or disputes over managerial decisions, while they do not necessarily negate the impact of workplace harassment, supporting medical evidence would help to make the connection between the worker’s condition and workplace harassment.
Be sure to consider the approach taken by this Panel in allowing this appeal if you are arguing entitlement for workplace harassment.
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