Worker v. Employer, 2022 CanLII 44781

decision number:

20220051

worker

REPRESENTED by:

worker representative

employer, not participatING

HEARD by:

Stephanie Waters, appeals resolution officer

Dated: APRIL 28, 2022

ISSUES

The worker objects to the following Case Manager (CM) decisions dated:

July 26, 2018 that denied entitlement under the chronic mental stress (CMS) policy.
February 21, 2019 that denied entitlement under the amended traumatic mental stress (TMS) policy.
December 6, 2019 that denied entitlement under the previous TMS policy because the claim was not filed within six months of the accident.

BACKGROUND

On June 14, 2018, the worker filed a Worker’s Report of Injury/Disease (Form 6) to claim a mental stress injury from their employment. The worker attributed their injury to public harassment from colleagues. In a letter dated August 14, 2018, the worker highlighted multiple statements and actions from colleagues primarily between 2007 and 2008, as well as a blog site that was taken down in 2017.

The worker reported first having problems with this condition in January 2006 and seeking medical attention at that time. The worker indicated this stress and harassment led them to resign in 2007, and contributed to their heart attack in January 2010. The worker saw a psychologist on June 4, 2010. In a letter of February 23, 2017, the psychologist documented that the worker and their spouse recall the psychologist stating in June 2010 that the worker had posttraumatic stress disorder (PTSD). The worker documented that they reported this injury to their employer on June 14, 2018.

In the letter of July 26, 2018, the CM denied entitlement for CMS. They explained the CMS policy came into effect on January 1, 2018, and the transitional provisions only allowed a review of claims with accident dates as early as April 29, 2014. The CM stated they were unable to allow entitlement for CMS because the events that caused the worker’s mental stress occurred before April 29, 2014. The CM reconsidered and confirmed this decision in a letter of September 19, 2018. In that letter the CM determined the date of accident to be June 4, 2010, when the worker saw a psychologist and received a diagnosis for their mental stress injury. The CM further explained that many events reported by the worker did not occur in the course of the worker’s employment because they happened after the worker resigned.

The worker’s representative argued the harassment amounted to a traumatic event and requested the worker’s entitlement be considered under the TMS policy. In a decision of February 21, 2019 and a reconsideration of May 7, 2019, the CM denied entitlement under the amended TMS policy that came into effect on January 1, 2018. The CM explained the date of accident predates the legislated retroactive application of this policy. The CM also stated they were unable to identify an objectively traumatic event arising out of and in the course of the worker’s employment.

The worker’s representative requested the worker’s entitlement be considered under a previous version of the TMS policy. In a decision dated December 6, 2019, and reconsiderations dated March 30, 2021 and January 10, 2022, the CM confirmed the denial of entitlement under the TMS policy. They explained the claim needed to be filed within six months of the date of accident to consider entitlement under previous versions of the TMS policy. The CM determined the worker did not file a claim within six months after June 4, 2010, and did not satisfy the exceptional circumstances for an extension of the time limit to claim benefits.

The worker’s representative objected to these decisions and submitted an Appeal Readiness Form.

AUTHORITY

Workplace Safety and Insurance Act, 1997 (The Act) Section 13, Section 22

Operational Policy Manual

Published

11-01-04 Determining the Date of Injury

15-01-03 Workers’ Requirement to Claim and Consent

February 15, 2013

15-03-02 Traumatic Mental Stress

October 12, 2004

15-03-02 Traumatic Mental Stress

January 2, 2018

15-03-14 Chronic Mental Stress

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. There is no entitlement under the post-2018 mental stress policies because the mental stress occurred before April 29, 2014. There is no entitlement for mental stress under the pre-2018 TMS policy. The claim was not filed within six months of the accident and there are no exceptional circumstances warranting an extension of the time limit to claim.

The worker’s appeal is denied.

Employer’s Position

The employer confirmed they would not be participating in the appeal in a letter dated February 9, 2022.

Worker’s Position

It is the worker representative’s position that the WSIB should extend the time limit for the worker to file a claim for both traumatic and chronic mental stress and allow the matter to be adjudicated on its merits. The worker’s representative argued the worker’s situation satisfies the criteria of exceptional circumstances for extending the time limit to file a claim despite the transitional provisions. They stated the employer was aware of the work-related harassment from 2007 until at least February 2015 so there would be no prejudice to the employer. The representative also argued the worker’s co-workers were aware of the harassment, and the worker reported their issues as work-related to the psychologist.

In an earlier submission of January 30, 2019, the worker’s representative argued the harassment amounts to a traumatic event because of the length of harassment and the power of the employer.

Timeline of Events

The worker began with the employer on March 2005. According to the Form 6, the last day worked was August 3, 2007.

The worker submitted a copy of an email they sent to multiple colleagues on June 4, 2007 that alluded to workplace harassment. In this email, the worker stated they “tried several times to take time off from work to catch up over time worked and to get back to the doctor related to the stress invoked on the job" and “the harassment investigations are necessary to protect myself from an evil presence fixated on destroying my life and a demented self-serving agenda.”

During a session on June 4, 2010, a psychologist documented that the worker reported “it’s the external environment (bullying, harassment, defamation) that has stirred my problems. It is the egregious conduct that they’ve done.” Within their chart notes, the psychologist documented that the worker mentioned one particular meeting in 2007 when people came, yelled, and asked questions. The worker stated X allowed them to be unruly and then they stormed the table. The psychologist noted that the worker stated they did not feel physically threatened, but were frustrated and unable to fight back.

The worker provided a letter on August 14, 2018 and stated “Include with this letter is a listing of the events post-employment that Y used to CONTINUE their on the job harassment of myself despite leaving the employment… The Post Traumatic Stress Disorder syndrome has been in effect since 2006 and exacerbated by the continuing egregious conduct of the municipality.”

I will not quote the events referenced by the worker in their entirety since the worker’s detailed statement is included on file. However, I will note that the worker highlighted statements made by the X on August 15, 2007, September 7, 2007, September 13, 2007, September 18, 2007, October 14, 2007, December 10, 2007, March 1, 2008, and March 26, 2008. The worker stated X “has further published the false statements in verbal conversations, e-mail and other written communications”. The worker highlighted statements made by a Z on August 14, 2007, August 15, 2007, August 16, 2007, January 4, 2008, April 29, 2008, and August 19, 2008.

The worker stated on August 3, 2007, that X and Z “posted a blog site… This website remained on the internet up to and including 2017 meant to harass and interfere with the ability to get any job in the world.” The worker stated “the efforts of the former employer were to intentionally inflict has much stress with the hope that I would die or become bankrupt.” The worker also stated “These people if nothing else are relentless in their continued pursuit of destroying my ability to earn a living, ruining a stellar reputation, and causing deep and personal problems related to both physical and mental health.”

The worker also included an order from the Ontario Superior Court of Justice dated February 19, 2015. That order indicated the worker was the plaintiff in a civil action against X, Z and the municipality of Town A. The order noted the court declared certain blog postings as prima facie defamatory and ordered they be removed.

Legislative History

A brief legislative history of mental stress claims under the Act may be instructive in this case. Prior to January 1, 2018, section 13 of the Act limited mental stress claims to those caused by a traumatic event. Work-related mental stress due to other causes was not eligible for compensation.

Policy 15-03-02 (Traumatic Mental Stress) or some iteration of it has been in place for many years and guides entitlement for TMS. I will refer to those versions of the policy as the pre-2018 TMS policy.

Effective January 1, 2018, the legislature amended section 13 to include chronic mental stress. The amendments were prompted by a landmark decision from the Workplace Safety and Insurance Appeals Tribunal (WSIAT) that determined the traumatic mental stress limitations of section 13 violated the Canadian Charter of Rights and Freedoms. The date of that decision was April 29, 2014.

Following the amendments, policy 15-03-14 (Chronic Mental Stress) was created and policy 15-03-02 (Traumatic Mental Stress) was substantially changed. Both policies came into effect on January 1, 2018. I will refer to these two policies as the post-2018 mental stress policies.

The changes to section 13 included specific rules for applying the amendments to claims for mental stress that occurred before the amendments coming into effect. These rules are found in section 13.1 of the Act. These rules are further delineated in the post-2018 mental stress polices and are referred to as the “transitional provisions”. I am paraphrasing, but the rules are as follows:

If the claim was already filed with the WSIB before January 1, 2018, decision-makers can apply the provisions of the post-2018 mental stress policies regardless of when the mental stress occurred.
If the claim was filed between January 1, 2018 and July 1, 2018, decision-makers can apply the provisions of the post-2018 mental stress policies if the mental stress occurred on or after April 29, 2014.
If the claim was filed after July 1, 2018, decision-makers can apply the provisions of the post-2018 mental stress policies if the mental stress occurred on or after January 1, 2018.

Findings – Date of Accident

As a preliminary matter, I will review the date of accident that was set in the letter of September 19, 2018. The date of accident in this case is of critical importance as it establishes the timeline for when the worker was required to file the claim under section 22 of the Act. It is also determinative of whether the case can be considered under the post-2018 mental stress policies.

The date of injury is established using policy 11-01-04 (Determining the Date of Injury). The date of injury (also known as the date of accident) varies based on the type of claim and can refer to the date:

of the actual incident
on which an unexpected result of working duties occurs
of first medical attention, or
of diagnosis.

In a chance event claim, which occurs when an identifiable, unintended event causes an injury, the date of injury is the date of the actual incident.

In an unexpected result disablement claim, the date of injury is the date that the unexpected result of working duties occurs.

In a gradual onset disablement claim, the date of injury is established using the date of first medical attention which led to the diagnosis, or the date of diagnosis, whichever is earlier.

It is notable that neither policy 11-01-04 (Determining the Date of Injury), nor the mental stress policies include direction on establishing the date of accident for mental stress claims. In this case, the CM set the date of accident in a manner consistent with a gradual onset disablement claim. The date of accident was chosen based on when the worker sought medical attention. For the reasons that follow, I find that approach is not the most appropriate.

The worker is alleging specific conduct and events led to their mental stress injury. This most closely resembles a chance event claim, where an identifiable event causes an injury. In that case, the date of the event or, in the case of a cumulative effect of multiple events, the last event should be used as the accident date.

The challenge in this case is the worker has not clearly articulated the specific conduct that occurred while they were still employed. They made vague references to harassment, a workplace investigation, and a difficult meeting, but there are few details of what occurred or when it occurred. Therefore, the only date I can reasonably use is the last date of the worker’s employment, August 3, 2007. That is the last possible date the worker could have been exposed to any events that could give rise to a work-related mental stress injury.

It is clear the worker attributes their mental stress injury to the conduct of the employer that occurred after their employment ceased as evidenced by their detailed submission of August 14, 2018. However, I cannot consider any of those events or use them to set the date of accident. In order for an injury to be considered work-related, the accident that caused the injury (or in this case, the specific events) must arise out of and occur in the course of the employment. Events that took place after the employment relationship was severed cannot be considered to have occurred in the course of the employment.

For these reasons and for the purposes of this decision, the date of accident and the date the mental stress occurred is set as August 3, 2007.

Findings – No entitlement under the post-2018 mental stress policies

It is the worker representative’s position that the WSIB should consider entitlement under the post-2018 mental stress policies because there are exceptional circumstances. I cannot grant the worker representative’s request. Based on the date of accident (August 3, 2007) and the date the claim was filed (June 14, 2018) there is no authority to apply the provisions of the post-2018 mental stress policies.

As I explained before, the amendments to section 13 of the Act detail the transitional rules. The transitional rules state, for new claims filed between January 1, 2018 and July 1, 2018, there is no ability to claim under the provisions of the post-2018 mental stress policies if the mental stress occurred before April 29, 2014.

The intent of the transitional provisions was to establish a retroactivity framework for mental stress claims. It was the expressed intent of the legislature that claims be limited to mental stress occurring on or after April 29, 2014. There is no language in either section 13 or in the post-2018 mental stress policies that provides for any discretion to consider a mental stress claim under these policies if the mental stress occurred before April 29, 2014 and the claim was filed between January 1, 2018 and July 1, 2018.

In this case, the worker filed their claim on June 14, 2018. The date of accident is August 3, 2007. It is clear the transitional provisions bar the worker’s claim based on when the mental stress occurred and when the claim was filed.

The worker’s representative argued the transitional provisions do not affect the WSIB’s discretion under section 22(3) of the Act. I disagree. Section 22(3) states the WSIB may extend the time limit to file a claim if “in the opinion of the Board, it is just to do so”. This is not a matter of a time limit to file the claim. The CM did not deny the claim under the post-2018 policies due to a missed time limit. Instead, the claim was denied because the worker’s mental stress injury occurred before the retroactive application date of the policies. The legislature intended to limit retroactive claims to those occurring on or after April 29, 2014. The discretionary authority found in section 22(3) is not applicable to the transitional provisions and cannot be used to subvert the clearly expressed will of the legislature.

For these reasons, there is no entitlement to benefits under the post-2018 mental stress policies.

Findings – No entitlement under the pre-2018 TMS policy

This policy was published on October 12, 2004 and applies to any single traumatic event, or in the case of the cumulative effect, the most recent traumatic event, occurring on or after January 1, 1989. The policy states a worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s employment. Section 22 of the Act is applicable to the decisions made under this policy and the CM denied the claim because the worker did not file the claim within six months of the accident.

The worker’s representative argued the worker’s situation satisfies the criteria for exceptional circumstances for extending the time limit to claim benefits. Information on file does not support this position.

When making my decision, I considered policy 15-01-03 (Workers’ Requirement to Claim and Consent), which explains the exceptional circumstances that may lead to the WSIB extending the deadline for a worker to file a claim for benefits:

If a worker fails to file a claim by the respective deadline, the WSIB allows the claim to be filed at a later date if the worker can show that exceptional circumstances existed at the deadline. Exceptional circumstances can include

compelling personal reasons, such as serious health problems or accident (experienced by the party or the party’s immediate family), or the party leaving the province/country due to the ill health or death of a family member
the worker’s ability to understand the time limit requirements and consequences of not meeting them, and
whether the worker reported the accident to the employer, health care professional, or co-workers.

Section 22(3) of the Act gives the WSIB discretionary authority to extend the time limit to file a claim if “in the opinion of the Board, it is just to do so”. I do not find it is just to extend the time limit for the worker to file a claim in this case.

The worker’s representative argued the employer and co-workers were aware of the harassment, and the worker reported their mental stress as work-related to the psychologist. I find there is some evidence the worker reported the harassment and their mental stress to co-workers as of 2007, and to a healthcare professional in 2010. However, I find these circumstances do not warrant an extension of the time limit to file a claim.

Prior to the landmark decision of April 29, 2014 and the amendments to section 13, there was no right to compensation for chronic mental stress. There was no avenue under the Act for the worker to be compensated for harassment or mental stress that arose from non-traumatic events. In other words, there was no compensable accident the employer or healthcare professional were obligated to report to the WSIB.

I will not use my discretion to waive the time limit to file a claim because I find the events identified by the worker as the cause of their mental stress would be most appropriately considered under policy 15-03-14 (Chronic Mental Stress). Although this policy cannot be used because the worker’s mental stress predates the policy’s legislated retroactive application date by a significant period, this is clearly not a traumatic mental stress issue. The worker is claiming mental stress from events that do not meet the pre-2018 policy’s standard for objectively traumatic events that occurred in the course of employment.

The pre-2018 policy explains:

A worker is entitled to benefits for traumatic mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.

In order to consider entitlement for traumatic mental stress, a decision-maker must identify that a sudden and unexpected traumatic event occurred. A traumatic event may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others.

In all cases, the event must arise out of and occur in the course of the employment, and be

clearly and precisely identifiable
objectively traumatic, and
unexpected in the normal or daily course of the worker’s employment or work environment.

The pre-2018 policy provides examples of traumatic events, including witnessing a fatality or horrific accident, being the object of an armed robbery, hostage-taking, or death threats, or being the object of harassment that includes physical violence or threats of physical violence. This is not an exhaustive list but is intended to show the gravity of the type of situation that would be considered objectively traumatic. To be objectively traumatic, the average person would need to find the facts of the situation traumatic or horrific.

In this case, sometime in 2007 the worker was at a meeting where individuals asked questions, yelled, and were unruly. There are also multiple events of colleagues making public statements regarding the worker between August 2007 and August 2008, and posting a website about the worker from 2007 until 2017. The worker’s representative argued the harassment amounts to a traumatic event because of the length of harassment and the power of the employer. The worker also indicated these events were traumatizing from their subjective experience.

This policy requires me to evaluate the events from an objective standpoint, not from the unique perspective of the worker, and find the events to be objectively traumatic. I do not find this to be the case. The worker confirmed they did not feel physically threatened during the 2007 meeting. The other events describe adverse interactions with colleagues. Regardless of the length of harassment or the employer’s power, evidence does not show that the worker was an object of actual or threatened physical violence, harm, or death during any of these events. I find the events identified by the worker do not meet the standard for objectively traumatic events as described under this policy.

Additionally, I find the balance of evidence shows the majority of events identified by the worker occurred after they resigned their employment. The date of the 2007 meeting is not clearly identified in the documentary evidence on file. Contemporaneous evidence also confirms the worker did not feel physically threatened by this event. The worker confirmed in their August 14, 2018 letter that the other events, including public statements and the website, occurred after they resigned.

The policy requires a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment for entitlement to be considered. I find that while these events may have arisen out of the worker’s employment, the events identified by the worker in their written statement did not occur in the course of the worker’s employment.

In summary, I find the circumstances of this case do not warrant an extension of the time limit for the worker to file a claim and I will not use my discretion to waive the time limit. The worker attributes their mental stress injury to events that are clearly distinct and separate from the standard required by the pre-2018 policy of objectively traumatic event(s) arising out of and in the course of employment.

CONCLUSION

There is no entitlement under the post-2018 TMS and CMS policies because the mental stress occurred before April 29, 2014. There is no entitlement for mental stress under the pre-2018 TMS policy. The claim was not filed within six months of the accident and there are no exceptional circumstances warranting an extension of the time limit to claim.

The worker’s appeal is denied.

DATED April 28, 2022

Stephanie Waters

Appeals Resolution Officer

Appeals Services Division