Rock v. Workplace Safety and Insurance Board, 2012 HRTO 2052

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerald Rock

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Maureen Doyle Date: October 26, 2012 Citation: 2012 HRTO 2052 Indexed as: Rock v. Workplace Safety and Insurance Board

APPEARANCES

Gerald Rock, Applicant Self-represented

Workplace Safety and Insurance Board, Respondent Gurjit Brar, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability.

1Following a review of the Application, a Case Assessment Direction (“CAD”) was issued by the Tribunal on April 18, 2012, directing that a Summary Hearing take place. The Summary Hearing was held by conference call on July 31, 2012.

DECISION

2For the reasons that follow I find that this matter has no reasonable prospect of success and the Application is dismissed on that basis.

ANALYSIS

Summary Hearings

3In a summary hearing, the issue is whether the application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

5The CAD directing that a summary hearing take place in this matter stated that it “appears that this Application alleges merely the misapplication of the rules of a program”. The CAD cited paragraph 5 of the Tribunal’s decision in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (“Seberras”):

An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code, A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot reasonably be considered to amount to a Code violation and has no reasonable prospect of success.

Application to the Facts

6In his Application, the applicant alleged that he was injured at work in 1990 and that he subsequently suffered from depression. He stated that for three years, apparently in or around the first half of 2008, the respondent accepted his psychological condition as being connected to his workplace injury and awarded him certain benefits. He complains, however, that in 2011, the respondent advised him that it had made a clerical error. He alleges that the respondent concluded that it was “not responsible for my psychological condition and they felt I could work despite the medical documentation saying I could not”. He alleges that the respondent reduced the benefits payable to him to “a partial benefit” and that “more importantly they denied the psychological and as a result denied coverage for my medications”. He alleged that this had placed him in “extreme emotional distress”. By way of remedy, the Application seeks the reinstatement of benefits to the level the respondent had previously paid, payment of benefits to cover his medications and counselling “as needed” and monetary compensation for “pain and suffering”.

7In applications to the Tribunal where there are allegations of discrimination in the provision of goods, services and facilities, applicants are asked to complete supplemental Form 1-C. This form asks individuals to answer question C2 only if their “Application is about a practice or policy”. The question asks the applicants to tell the Tribunal “what the practice or policy you are complaining about is and explain how it relates to equal treatment with respect to services, goods and facilities”. The applicant left this portion of his Application blank. The following question, C3, asks applicants to complete it “only if your Application is about a law”. The question asks applicants to tell the Tribunal “what the law you are complaining about is and explain how it relates to equal treatment with respect to services”. The applicant wrote as follows:

More of a question than a complaint. With WSIB knowing I was suicidal and by them cutting me off benefits was a definite stressor to push me to suicide, just wondering what if I would of [sic] killed myself could WSIB of [sic] been charged with manslaughter.

8The applicant attached several documents to his Application, including the June 2, 2011 letter from the respondent, denying him benefits, several reports from medical care providers and correspondence from his representative to the respondent in which she made submissions for, among other things, reinstatement of entitlement for his psychological conditions.

9The June 2, 2011 letter communicated the denial of entitlement for “Psychotraumatic Disability” and also cited the respondent’s policy Number 15-04-02. The policy was quoted as follows:

If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure.

10The letter from the respondent goes on to indicate that upon review of the applicant’s medical file, the Case Manager “did not find any evidence of either a diagnosis or treatment for depression within the first 5 years from the date of your low back injury”. The letter stated that “as a result of this review, I am overturning previous decisions to grant you entitlement to psychotraumatic disability and to the psychotraumatic NEL award”.

11Subsequent to the April 18, 2012 CAD which indicated that an Application which alleges merely the misapplication of the rules of a program has no reasonable prospect of success, the applicant wrote to the Tribunal in which he purports to challenge the policy as discriminatory, stating:

A letter was sent to the HRTO in late April, early May. I am challenging the WSIB 5 year rule of showing depression from the date of one’s accident. Men and women do not deal with depression the same way. Pull up any information by punching in how men and women differ with depression and all studies show the same. Men will go longer without being diagnosed. Therefore, the timelines set by WSIB is discriminatory to men. Men feel it’s a sign of weakness so we bury it with alcohol, drugs and anger all I which I can prove I did. So I handled my depression exactly as I should of [sic] which their rules refuse to acknowledge and this is discriminatory.

12Prior to the summary hearing, on June 13, 2012, the applicant sent several documents to the Tribunal, including copies of five one and two page articles he had printed from the internet regarding depression in men and women. The applicant highlighted passages from these articles.

13Broadly stated, the internet articles assert that rather than seek help, men may turn to alcohol or drugs when depressed, may become angry, or may engage in other risk-taking behaviour. The articles also state that men may avoid talking about their feelings to their friends and family, and that they may experience their depression differently from the way in which women experience it. In particular, one article asserts that men may be more likely to “acknowledge fatigue, irritability, loss of interest in work or hobbies, and sleep disturbances rather than feelings of sadness, worthlessness, and excessive guilt”. Another article asserts that men and women may experience different symptoms of depression, and that “symptoms including anger, irritability and feeling discouraged are more common in men than symptoms of hopelessness or helplessness”, making it potentially more difficult to recognize depression in men. One article quotes a doctor who contends that more men will go undiagnosed because they do not “generally display the outward signs of depression, such as crying or expressing a sense of hopelessness”.

14Medical reports included in the documentation provided by the applicant include a June 12, 2011 report from a Registered Social Worker who indicates that she has been providing “psychological care” to the applicant, an August 9, 2011 letter from his family doctor, some nursing notes from 1990-1991, a psychiatrist’s report from February 21, 2011 and reports dated April 2, 2010, September 17, 2010 and June 17, 2011 from a psychologist.

15In her report, the family doctor who indicates that she has been treating the applicant since 1996, states that “Over the years he seemed embarrassed and humiliated to admit that he thought he had been depressed, for quite some time”. She stated that “in hindsight”, she could “see many barriers to him accessing treatment for his depression when it first started. He was a young male, who considered asking for help as a weakness or flaw in his character”. She also indicated that she wondered if having a male physician at the time of his injury made him less likely to have asked for help. She opined that “it is well known in the treatment world of mental health issues that in general it takes much longer for men to ask for psychological help than it does women, and this would have made it more difficult for Gerald to access the care he deserved as quickly as he should for his depression”.

16As noted above, the applicant also included correspondence from his representative to the WSIB, in which she made submissions seeking the reinstatement of his entitlement for his psychological condition. In her correspondence, she cites the above-noted policy of the respondent, regarding psychological entitlement. She noted that his current counsellor opined that he had been suffering from “depressive symptoms” since his injury, and that these feelings had lead him to “consider suicide on numerous occasions”. She asserted that the applicant had sought psychological counselling in 1993, submitted that he had serious thoughts of ending his life in early 1992 and attempted suicide later in 1992, and also asserted that he had abused alcohol and drugs and experienced irritability, problems sleeping, and difficulty concentrating. She submitted that the applicant had been suffering from symptoms of depression for many years, but had been unable to seek help as that he would have considered that a sign of failure. She submitted that though he had not been diagnosed with depression in the first 5 years following his accident, there was “evidence that he was referred for treatment that would be related to typical male symptoms of depression”. Additionally, in a September 15, 2011 letter to the respondent, she provided medical reporting and “witness statements”, and submitted that the latter “reveal emotional liability [sic], depressed mood, substance abuse, significant reaction to stress and lack of control, which are signs and symptoms of depression and anxiety”. She submitted that the medical reporting, though provided by professionals who treated him subsequent to 1995, “supports the idea that Mr. Rock’s depression existed in the early to mid-1990s”. She submitted that some of the documentation “clearly shows psychological difficulties by 1993, which was severe enough to warrant a referral for psychological care”.

Oral Submissions

17At the summary hearing, the applicant submitted that the fact that the respondent’s policy number 15-04-02 requires that psychological disability be manifest within 5 years of the date of injury, has a discriminatory effect on men, who experience depression differently than women. In particular, he submitted that his response to depression was a secret suicide attempt in 1992, abuse of alcohol, anger and irritability, and that this response was “typical for men”. He submitted that men will “suffer silently for years” and then experience a “total breakdown”. He submitted that his symptoms were hidden in the first 5 years after his injury and that as a result, he must struggle to obtain entitlement from the respondent for his psychological condition.

18He submitted that the issue in his Application is the law itself, as it does not permit him to “show” his depression the way the “research” says he should “show” it. He submitted that the law gives more opportunity to women to be diagnosed and treated. He submitted that the internet pages he submitted show that men have a harder time dealing with the stigma of depression and are more likely to drink, use drugs and engage in risky behaviour, but will avoid talking about their depressed feelings. He submitted that the law does not allow enough time for men to “show” their symptoms, as the respondent only considers depression within the first 5 years after injury, and ignores the opinions of his treating professionals who relate his depression to his injury. He submits that the law has discriminated against him as it has limited him to the first 5 years.

19The applicant submitted that to establish a link between the respondent’s actions and discrimination contrary to the Code, he would rely upon evidence provided by one of his health care professionals, whose area of particular expertise is the “differences between women and men in mental health”, he believes.

20The respondent cited the Tribunal’s decision in Seberras, supra and submitted that as this Application is merely an allegation that a decision of the respondent was wrong, it should be dismissed as having no reasonable prospect of success.

21The applicant had not provided his May 23 2012 correspondence and accompanying documentation to the respondent, in which he indicated that he proposed to challenge the respondent’s “5 year rule”. It was agreed at the summary hearing that should the Tribunal require submissions from the respondent regarding this question, the applicant would be required to provide the documentation and the respondent would be given the opportunity to make submissions regarding this question. At the summary hearing, however, without conceding that this issue is properly before the Tribunal, counsel for the respondent made some limited submissions regarding the issue of the “5 year rule”. He submitted that the policy speaks of when “symptoms become manifest” and that this does not discriminate between men and women. He submitted that the policy only requires that individuals prove that the disability became manifest within 5 years.

CONCLUSIONS

22The applicant argues that by virtue of the respondent’s policy, he has been discriminated against as a male, because there are differences in the way men and women experience depression. He argues that as a man, the “5 year rule” should not be applied to him. Based on the evidence before me, on its face, the respondent’s policy does not state a requirement for a diagnosis or treatment within the first five years, but rather as counsel for the respondent submitted, it states a requirement that the “psychotraumatic disability/impairment became manifest within 5 years of the injury”. According to the documentation provided by the applicant, it is evident that he has taken the position, in his representative’s submissions to the respondent, that he in fact falls within its policy, as his depression was manifest within the first 5 years after his injury. He alleges that he had been suffering from “depressive symptoms” and was referred for psychological counselling within the first 5 years after his injury, and therefore argues that he falls within the respondent’s policy for entitlement and its “5 year rule”. He does not argue that the policy has an adverse impact on him as a male and he does not take the position in his submissions to the respondent that his fact situation is such that the policy excludes him from entitlement. Rather, he takes the position that on the facts, he fits squarely within the policy. This is a factual dispute that the applicant has with the respondent. It is evident, therefore, that what the applicant alleges is that the policy has been mis-applied to him.

23In essence, therefore, he takes the position that by ignoring evidence of the manifestation of his psychological symptoms and his history of referral for psychological care within the first five years after his accident, the respondent has misapplied its policy. In these circumstances, it is incongruous for him to take the position at the Tribunal that he has been discriminated against because of the existence of the “5 year rule” and his Application has no reasonable prospect of success.

24For the above reasons, there is no reasonable chance of the applicant being able to establish that the policy has an adverse impact on him, by virtue of his sex or disability. Accordingly, this Application has no reasonable prospect of success and it is dismissed on that basis.