Worker v. Employer, 2022 CanLII 112729

decision number:

20220128

worker

REPRESENTED by:

self-represented

employer

REPRESENTED by:

employer representative.

HEARD by:

n. mazza, appeals resolution officer

DATED: JULY 18, 2022

ISSUE

The worker is objecting to the Case Manager’s (CM) decision of February 18, 2022 that denied entitlement to Traumatic Mental Stress (TMS) and Chronic Mental Stress (CMS).

BACKGROUND

This now 39-year-old teacher, has been employed since September 1, 2016. The worker filed a claim for both TMS and CMS, which they attribute to their employer’s failure to provide them with the proper tools they needed to succeed, resulting in a deterioration of their mental health.

The worker first reported their concerns to the employer on March 28, 2021. On May 17, 2021, they were placed on a paid leave, due to concerning comments they made about their well-being.

On May 19, 2021, the worker sought medical attention with a nurse practitioner. A diagnosis was not provided and the worker was cleared to resume their pre-injury work. However, they did not return due to an ongoing investigation into their psychological capacity to work.

The decision dated February 18, 2022 denied entitlement to TMS as there was no evidence of an objectively traumatic event. The decision also denied entitlement to CMS, as the issues raised by the worker appeared to be actions and decisions by the employer that are part of the employment function.

The worker objected to the decision and provided additional information regarding their mental health decline. A medical report was received on February 28, 2022, which queried the diagnosis of bipolar disorder, making a recommendation for further mental health evaluations. The letter dated March 21, 2022 acknowledged the new submissions and upheld the decision of February 18, 2022.

AUTHORITY

Operational Policy Manual

Published

15-03-02 Traumatic Mental Stress 15-03-14 Chronic Mental Stress

January 2, 2018 January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that entitlement for TMS and CMS is not in order, as the criteria of the respective policies has not been met.

Worker’s Position

In their March 3, 2022 submission, the worker argues that their claim should be allowed as their physician has diagnosed them with a mental health disorder and prescribed new medication. The worker notes they will be seeing additional medical professionals. They remain unable to work, as their medications make them dizzy and sleepy. The worker also notes that their mood changes instantly.

Employer’s Position

In their June 7, 2022 submission, the employer notes the worker’s claim for benefits, acknowledging their heightened stress as a result of staff changes at the school board, perceived lack of resources, as well as the COVID pandemic. The employer argues that the February 18, 2022 decision was appropriately adjudicated. The employer notes that there is no evidence to support that the worker was subjected to a substantial work-related stressor or the subject of workplace harassment.

Review of Evidence

The May 17, 2021 correspondence from the employer to the worker notes that the worker was placed on a paid leave, effective May 17, 2021, due to concerning comments they made about their well-being. The letter specifies the worker is not to have any further contact with students, staff or trustees. A meeting would be scheduled, between the worker and employer with union representation. Until then, the worker was instructed to keep the contents of this letter confidential and is not to be discussed. The worker was also to refrain from any form of public communication, including social media that may cause reputational harm to the employer.

The May 19, 2021 medical note from the worker’s nurse practitioner, notes that the worker was assessed and cleared to resume work.

The May 31, 2021 correspondence from the employer to the worker outlines a response to the worker. It notes that insufficient details were received regarding the worker’s complaints; therefore, the employer was not in a position to make an informed decision. It was also noted, while on a paid leave, the worker failed to follow the instructions set out in the letter of May 17, 2021, and made disparaging remarks on social media, which may suggest “a lack of good faith”. The employer requested an independent medical examination. Compliance in this assessment was “expected”. It was noted the worker’s leave status would be adjusted to illness/medical effective June 1, 2021 and the employer required a medical note to support a claim for sick benefits. If the worker’s physician does not support their claim for sick benefits, the worker will continued on a paid, non-disciplinary administrative leave, until sufficient medical information is obtained and discussed.

The June 2, 2021 correspondence from the employer addressed to the worker notes receipt of the worker’s June 1, 2021 letter. It notes that he worker’s complaints will be sent to a third party investigator to complete a threshold assessment.

The July 21, 2021 correspondence from the employer’s legal representative, addressed to the worker’s union notes the following:

The worker has not filed any medical documentation to support their eligibility for sick leave benefits. The only medical information obtained supports that the worker is medically fit. The employer asks that the union assist in relaying these concerns to the worker, otherwise the worker will be taken off sick-leave and transferred to unpaid leave, pending further medical documentation, if the worker “ceases engaging in misconduct.”
It was noted that serious misconduct, on the part of the worker, including harassment and making highly defamatory allegations with serious reputational harm were noted. This may compromise the worker’s current and/or future employment obligations.
It was noted on July 18, 2021, the worker contacted the local police suggesting the superintendent was suicidal. As a result, the police attended the superintendent’s home while absent. The superintendent’s spouse endured a traumatic event and an egregious breach of privacy due to the worker’s mischief. These episodes have “irreparably harmed any viable employment relationship.” It was noted those defamed may choose to seek damages.
The union was asked to contact the worker and ensure they comply with the requests that have been made. Should the worker fail to comply, the employer may consider the worker to have abandoned their employment and/or may decide that further accommodation may constitute undue hardship. Further the worker would be required to show cause why they should not be disciplined for their previous and continuing misconduct.

The September 1, 2021 correspondence outlines grievances filed on behalf of the worker by their union, against the employer.

The employer’s acceptance of the worker’s “resignation”, by communication on July 26, 2021. Since then, the union has raised concerns regarding the reliability of the “resignation” due to the real prospect of mental health concerns. It is noted the employer was aware of the worker’s mental health concerns per their letter of June 21st, but failed to satisfy their duty to inquire on the member’s well-being.
The union argues the resignation should not have been accepted in the face of the information available to the employer. They argued additional inquiry was needed to ensure the resignation could be accepted in good faith and would not be a breach of human rights.
The union notes violations of the collective agreement and asserts that the worker’s human rights were breached.
The union listed their terms of remedy on behalf of the worker, which included reinstating the worker’s employment.

The Worker’s Report of Injury (Form 6) dated February 12, 2022, documents a workplace injury in relation to their mental health. The worker notes a new employee was not provided time for equity training. The worker was referred to others, before meeting with the superintendent who “worked with (the employee) to remove me from the board.” The worker notes feeling overly stressed when two colleagues left, as well as issues tied to the COVID pandemic-related restrictions. The worker began reading books in their extra time and felt the students also needed to read more. Therefore, the worker asked for book to be purchased, believing this would assist with people’s stress levels. The worker reports sending several emails related to this and becoming “obsessed” with their work. They note that their physician identified signs of bipolar disorder.

The Employer’s Report of Injury (Form 7) dated February 18, 2022, states that the worker was placed on a paid leave of absence due to the behaviours they were exhibiting. The worker was asked to provide

medical documentation to explain the behaviours; however, no satisfactory medical information was received. The employer continues to investigate the claim, but argues that it does not meet the criteria for CMS. The date of accident is noted as May 17, 2015. The employer first learned of the WSIB claim on February 15, 2022.

The February 21, 2022, “Feeling Better Now” online mental health assessment notes a questionnaire taken by the worker. This is not a medical document.

The Intent to Object (ITO) form undated, received on February 23, 2022, further notes a decline in mental health due to working conditions. The worker notes that the following:

This is not just a workplace issue. [The superintendent] is refusing to follow Board policies, the union’s guidance and the contract. [The superintendent] is refusing to follow the lead of Stephen Lecce and Justin Trudeau. [The superintendent] is not providing a safe and inclusive work environment.

The worker goes on to note being “silenced” by the superintendent, which caused a lot of stress. The worker is dealing with anxiety, depression and questioning the purpose of life because of the way the superintendent treated them. Their severe decline started once the worker asked the superintendent to show empathy and the superintendent decided to remove the worker from their position without any grounds. The worker was then taken to HR and falsely accused of creating a toxic work environment.

The Health Professional’s Report (Form 8) dated February 28, 2022, documents an accident from March 28, 2021. The injury is described as, “targeted by many acts of hate”. The worker is queried for bipolar disorder, triggered by work-related stress. A return to work is not recommended.

The worker’s March 10, 2022 submission notes the following details regarding their claim for benefits:

The worker’s mental health has been slowly declining over the years. However, after the departure of a co-worker the worker notes a rapid decline. The worker then realized they needed to use their voice, as their “voice had power”. Therefore, the worker started “talking to everyone especially people in power.” The worker notes speaking with superintendents, emailing them, and sharing information their superintendent wrote on Facebook and Twitter. No one told the worker to stop using social media at that time.
The worker documents that they then began asking for more things, “as I felt material items could bring me happiness.” The worker notes being directed from one person to the next. The worker started asking other educators in different roles to meet to discuss their issues and the worker started attending more classes to teach about equity. The worker did not realize this was not within the scope of their role.
The worker eventually was able to meet with their superintendent to ask for the items they felt they needed. The worker notes, “I didn’t realize at the time that I needed a therapist or severe medical attention. I thought [the superintendent] could help me with all my issues. It got to a point where I was obsessed with [the superintendent] and [their] family that [they] filed harassment changes against me. That’s when I started to realize maybe it’s me.”
The worker notes seeking professional assistance thereafter.
The worker goes on to explain the impact their work obsession has had on their personal relationships. Finally, the worker outlines several other issues they feel have been impacted by their mental health decline in general.

The worker issued a revised version of the above noted letter on March 15, 2022, with additional attachments including apology letters to colleagues and correspondence from family members confirming the worker was experiencing manic episodes which were causing them to become concerned.

Assessment of Evidence

The WSIB policy 15-03-02, Traumatic Mental Stress, states that a worker will generally be entitled to benefits for traumatic mental stress if an appropriately diagnosed mental stress injury is caused by one or more traumatic events arising out of and in the course of the worker’s employment. In most cases, a traumatic event will be sudden and unexpected. However, in all cases, the events must arise out of and in the course of employment and be:

o clearly and precisely identifiable, and

o objectively traumatic

The policy goes on to explain that traumatic events include, but are not limited to:

witnessing a fatality or a horrific accident
witnessing or being the object of an armed robbery
witnessing or being the object of a hostage-taking
being the object of physical violence
being the object of death threats
being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
being the object of workplace harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse), and
being the object of workplace harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).

In addition to this, policy 15-03-14, Chronic Mental Stress, indicates that a worker will generally be entitled to benefits for chronic mental stress if 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.

A work-related stressor is generally 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 all cases, the substantial stressor must be the predominant cause of the mental stress injury. The predominant cause means that the substantial stressor is the main cause of the mental stress injury, when compared to other individual stressors.

Both policies note that a worker is not entitled to benefits for mental stress caused by decisions or actions of the employer relating to the worker’s employment. This would include, but is not limited to terminations, demotions, transfers, discipline, changes in working hours, or changes in productivity expectations. An employer’s decisions or actions that are not part of the employment function such as workplace harassment or conduct that a reasonable person would perceive as egregious or abusive may be considered as substantial stressors.

In this case, the worker is attributing their declining mental health to what appears to be a combination of issues which began after two colleagues left the workplace, combined with the impact of the COVID pandemic and challenges in acquiring resources to teach others about equity.

In their ITO, the worker also raises concerns regarding the way they were treated by the superintendent. The worker reports being “silenced” by the superintendent and alleges that the superintendent falsely accused the worker of creating a toxic work environment and removed the worker from their position without any grounds, when the worker appealed for empathy.

In considering the issues raised by the worker, I am unable to identify any traumatic events occurring in the workplace. Neither the staffing changes, impact of the COVID pandemic, nor lack of resources from the employer regarding equity materials, would rise to the level of being objectively traumatic in nature. While I note the worker has provided submissions detailing how they were impacted by their declining mental health status, they were unable to clearly and precisely identify any specific traumatic events.

The worker did raise a concern in relation to their superintendent; however, this issue appears to be more appropriate for review under policy 15-03-14. Nevertheless, from the limited details provided, it does not appear that the worker was the object of physical violence or threats of physical violence, nor the object of workplace harassment in relation to the interactions identified with their superintendent. For these reasons, and in accordance with policy 15-03-02, I am unable to allow the claim for entitlement to TMS.

Similarly, I do not find that the worker’s report of injury would meet the criteria outlined in policy 15-03-14 for CMS. While the worker relates their mental health condition to events and interactions which occurred in the workplace, there is a lack of evidence to support that the worker was exposed to a work-related stressor which was excessive in intensity and/or duration, when compared to the normal pressures and tensions experienced by workers in similar circumstances.

The worker vaguely discussed a number of issues in relation to their employer. One was their implication that the employer was unable to provide the worker with the tools they felt were necessary for success. From the combined information on file, it does appear that the worker may have been advocating for additional books and resources, during the COVID pandemic, as they believed reading may support their mental wellness. The worker appears to have reached out to colleagues, supervisory staff and senior leaders in the workplace, including their superintendent. However, in the process of this self-driven campaign and per the worker’s March 10, 2022 submission, the worker began experiencing manic episodes. The worker reports becoming “obsessed” with this undertaking, which appears to have led to their own misconduct, disciplinary action with their employer, and legal concerns.

As per the employer’s letter of May 17, 2021 it appears that the worker was placed on a paid leave, due to concerning comments they made about their own well-being. The letter specifies the worker is not to have any further contact with students, staff or trustees, and was to refrain from any form of public communication, including social media that may cause reputational harm to the employer. Per the subsequent letter of May 31, 2021, it appears the worker acted outside of the terms set and made disparaging remakes on social media. The worker was asked to undergo an independent medical examination to assess their capacity to work while off on their leave.

The subsequent correspondence of July 21, 2021, noted that the worker had also engaged in serious misconduct, including harassment and making highly defamatory allegations with serious reputational harm against the superintendent, which may compromise the worker’s current and/or future employment. The worker was asked to supply appropriate medical documentation to support their ongoing leave. Failure to comply could lead to the assumption of job abandonment.

It is not clear what transpired following the letter of July 21, 2021, however, I note the union’s grievance correspondence against the employer dated September 1, 2021, where the worker’s resignation was called under question, given the status of their mental state at the time.

While the worker’s ITO raises concerns regarding their work environment and way they were treated by their superintendent, there does not appear to be any examples provided to demonstrate how the work environment was unsafe or any instances of maltreatment. While I note that the worker suggests they were terminated from their position without any grounds, I note that the union’s grievance letter suggests that the employer accepted the worker’s verbal resignation. The matter of the worker’s employment status would not be sufficient grounds for benefit consideration as it is not within the scope of criteria covered under policy 15-03-014, as it would be an action and decision of the employer related to the employment function.

Similarly, the worker’s concerns regarding not being provided with the tools necessary for their success, while vague in its description, would appear to fall within the actions and decisions of the employer in relation to the employment function. It was noted that the worker was asking for “material” objects from those in power, but did not appear to be successful in this effort. While this may have been disappointing for the worker, it would not meet the criteria of a substantial work-related stressor as defined in policy 15- 03-14.

For these reasons, and in accordance with policy 15-03-14, I am unable to allow the claim for entitlement to CMS.

CONCLUSION

I conclude that:

The worker is not entitled to benefits for TMS.
The worker is not entitled to benefits for CMS.

The worker’s objection is denied

DATED July 18, 2022.

Nancy Mazza

Appeals Resolution Officer

Appeals Services Division