WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190101
OBJECTING PARTY: Worker
RESPONDENT: Employer
HEARING: Hearing in Writing
HEARD by: C. Cirinna, Appeals Resolution Officer
DATED: May 8, 2019
ISSUE
The worker objects to the case manager decision dated May 28, 2018, which denies entitlement in this claim under the chronic mental stress (CMS) policy.
BACKGROUND
The worker was employed as an administrative assistant and had worked with this mining company since 2007. This claim was established with an accident date of May 15, 2018 when the worker stopped working and reported an onset of mental stress as a result of a company restructuring that was announced by the employer.
The worker indicated that as a result of the changes the employer was in the processing of implementing, which included the fact that her job became a bargaining unit position, she faced uncertainty regarding her future employment and was required to bid against other unionized employees in order to secure a position. This caused her a great deal of emotional stress and reached the point where she was unable to continue working.
Based on the information gathered by the case manager, entitlement under the chronic mental stress (CMS) policy was denied in a decision dated May 28, 2018. This decision was based on the finding that the employer’s actions and decisions in this case relating to its employees and business operations is not covered under the CMS policy.
AUTHORITY
15-03-14 Chronic Mental Stress
ANALYSIS
In arriving at my decision, I had regard for the information contained in the file, the applicable policy, and the written submissions from the worker and employer.
The main policy statement relating to the CMS policy (15-03-14) states that a worker may be entitled to benefits for chronic mental stress (CMS) arising out of and in the course of the worker’s employment. However, a worker is not entitled to benefits for CMS caused by decisions or actions of the employer relating to the worker’s employment; including a decision to change the work to be performed or the working conditions, discipline of the worker or the termination of employment.
As part of her written submission that accompanied the Appeal Readiness Form (ARF), the worker acknowledges the employer had the right to restructure its business and to change her position from non-bargaining to bargaining as it sees fit. However, the worker indicates the reason she was off on stress leave was because of the manner in which these changes were implemented. The worker believes she was treated in a discriminatory manner, and the employer displayed a lack of empathy regarding her situation. This caused her emotional stress, chest pain, an inability to sleep and great difficulty just being in the workplace.
According to the worker, the employer could have negotiated with the Union to place workers in her position directly into a unionized position as had been done previously with frontline administrators. Instead, she along with other administrative staff were required to reapply for their positions while others in similar positions were apparently exempted from this process. She indicates that during this timeframe she faced uncertainty not knowing if she would have a job once the changes were implemented.
The employer’s written submission dated April 1, 2019 cites parts of the CMS policy and explains why the worker’s situation does not meet the necessary criteria under the policy. Specifically, the employer acknowledges that the worker may have experienced some situational stress as a result of restructuring decisions made by the employer that may have ultimately affected the worker’s role within the company. The employer pointed out that the restructuring involved all of its Ontario operations and affected many employees. The employer also noted that the CMS policy clearly states decisions made by an employer that form part of the employment function including change to the work or working conditions, discipline, and termination do not fall under the CMS policy.
Review of Medical Information on File
The policy states that before any CMS claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to, acute stress disorder, posttraumatic stress disorder, adjustment disorder, or an anxiety or depressive disorder.
The first doctor’s note in this claim is dated May 16, 2018 and simply states the worker required four weeks off work due to medical issues. This report does not make any reference to the nature of these medical issues that prevented the worker from continuing to work.
A further medical report also dated May 16, 2018 indicates the worker suffered a “situational crisis” when she was advised that her job was redundant and notes that if she were to join the Union, she would incur a pay cut. The worker expressed feeling poorly treated at work and not having any job security.
A further medical report dated May 28, 2018 indicates the worker was not sleeping well, was constantly worried about her work, and had poor concentration. This report suggests the worker had been doing well with respect to her mood and anxiety and taking less medications, however she had increased her use of Ativan since the work events. The report went on to indicate the worker did have baseline anxiety issues relating to her mother, but these issues had apparently resolved and work stressors had become the major issue affecting her mood.
The short term disability medical report completed for the employer’s insurance carrier provided a diagnosis of anxiety/situational crisis. The report indicates the worker’s anxiety symptoms were improving until the recent stressors at work. The worker was prescribed antidepressant medications and her prognosis for recovery was considered to be good.
The letter from worker’s family physician dated September 23, 2018 indicates that she had been off work since May 2018 due to anxiety stemming from work related stress.
Although the medical information relating to the worker’s stress symptoms is somewhat limited and may have been compounded by a pre-existing condition, for the purpose of adjudicating this claim I accept there was sufficient information on file for a diagnosis of anxiety disorder.
Decision
I find that entitlement in this claim under the CMS policy is not warranted.
Reasons for the Decision
In order to consider entitlement for CMS, the WSIB decision-maker must be able to identify the event(s) alleged to have caused the chronic mental stress. The incident in question in this particular case is that on April 18, 2018, all employees working for this company in Ontario were advised of a company restructuring which the employer identified as an attempt to create a “Fit for Purpose Organization”. This communication provided a high-level summary of the changes to be made as part of the company’s restructuring. The announcement by the employer included messaging around the consolidation and realignment of plant level administrative functions, which was the role that the worker held at the time.
As a result of this announcement, the worker’s employment situation was somewhat uncertain and she ultimately learned that her position would become a unionized job and that she would have to apply for and compete against other unionized employees. It was as a result of this memo that the worker claimed an onset of stress due to the employer’s actions and the manner in which these changes were implemented.
As outlined in the CMS policy, decisions or actions of an employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions will not result in CMS entitlement. In this case, the medical reporting suggests that the diagnosed anxiety was in large part due to the restructuring announcement by the employer within its Ontario operations.
Although the worker acknowledges that the employer has the authority to make changes to its business as it sees fit, it is the worker’s belief that she was treated in a discriminatory manner, and the employer displayed a lack of empathy regarding her situation, and this caused her unnecessary emotional stress. The worker is of the view that the employer could have negotiated with the Union to place workers in her position directly into a unionized position as had apparently been done previously with frontline administrators, rather than requiring her to go through the uncertainty of re-applying for her position. Although the worker’s primary concern relates to the manner in which the employer implemented these changes, the fact remains this also falls under the control/responsibility of the employer. The policy clearly states that the employer’s decisions or actions and decisions to change work performed and working conditions will not result in CMS entitlement.
In terms of the worker’s claim that she was treated in a discriminatory manner by the employer when these changes were implemented, I note that the restructuring changes affected all of the employer’s Ontario operations. The employer followed a process that it announced to all of its employees on the same date and the worker was not individually singled out or treated any differently than any other employee in her category of jobs.
CMS entitlement can also be considered in cases where there is workplace harassment or a substantial workplace stressor. The policy defines workplace harassment as occurring when a person in the course of employment engages in a course of vexatious comment or conduct against a worker including bullying, that is known or ought reasonably to be known to be unwelcome. A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. In this case, no incident of workplace harassment is alleged to have occurred as based on information contained in the file, the worker acknowledged that she had not been threatened or harassed in any way while in the workplace. Also, although it would generally be considered to be a typical feature of normal employment, in this particular case there was also an absence of any interpersonal conflicts between the worker and supervisors/co-workers within the workplace. In other words, there were no other possible factors within the workplace that could have contributed to the onset of the workplace stress.
The only work-related stressor identified by the worker was the manner in which the restructuring was implemented and the uncertainty this caused regarding her future employment with the company. Although this uncertainty would understandably create stress due to the worker’s employment and financial uncertainty, there is nothing substantial or excessive about this particular situation that would be different from any other company restructuring that would cause an uncertainty with employees subjected to such changes.
CONCLUSION
I find the worker has no entitlement in this claim under the chronic mental stress (CMS) policy.
The worker’s objection is therefore denied.
DATED: May 8, 2019
C. Cirinna
Appeals Resolution Officer
Appeals Services Division