APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230137
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
D. Bowker, appeals resolution officer
NOVEMBER 30, 2023
ISSUES
The worker is appealing the case manager’s decision dated January 13, 2022 that denied entitlement to traumatic mental stress (TMS) and chronic mental stress (CMS) as the worker did not meet the time limit to file a claim.
BACKGROUND
This supervisor and seasonal historical interpreter at a historical site was travelling on a work-related trip to a trade show with their supervisor from March 16 to 18, 2016. On March 16, 2016, the worker was reviewing information from the trade show with their supervisor when the supervisor unexpectedly exposed themselves to the worker, took pictures of their penis with the worker’s cell phone and sent the pictures to another co-worker.
The worker completed their 2016 contract with the employer. In 2017, they were transferred to a different work site in a lower-paying role.
The worker saw their family physician on May 19, 2017 for symptoms of anxiety after changes at work. The worker was off work on an unpaid leave of absence from May to September 2018. They reported the March 2016 incident to the employer in June 2018. The worker registered a claim with the WSIB, seeking entitlement to either TMS or CMS on October 21, 2021.
The case manager’s January 13, 2022 decision found the worker did not meet the transitional provision to make a claim under the policies for TMS and CMS as they did not file their claim prior to January 1, 2018 or on or before July 1, 2018. The case manager determined there was no entitlement to either TMS or CMS as the transitional provisions to make a claim were not met.
The objection to this decision forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
15-03-02 Traumatic Mental Stress 15-03-14 Chronic Mental Stress 15-01-03 Workers’ Requirement to Claim and Consent
January 2, 2018 January 2, 2018 April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker. My reasons for this finding follow.
Worker Position
The worker representative submits WSIB policy 15-01-03 Workers’ Requirement to Claim and Consent allows the WSIB to extend the six-month deadline if, in the WSIB’s opinion, it is just to do so. The representative notes the policy indicates a claim can be accepted past the six-month deadline in cases where the worker did not file a claim but the employer did not report the injury and Stakeholder Compliance Services determines the employer created a coercive environment which resulted in the worker waiving or foregoing any benefits to which they were entitled.
The representative submits the policy provides a list of exceptional circumstances that may justify extending the time limit, including whether the worker reported their accident to the employer, a health care professional or co-workers. The representative notes the worker clearly reported the incident with their supervisor to a co-worker on the evening the incident occurred. The worker texted their co-worker and later spoke to them in a phone call.
The worker representative submits the text messages and verbal conversations between the worker and their co-worker meet the exceptional circumstances set out in policy 15-01-03 Workers’ Requirement to Claim and Consent and amount to a reporting of the accident within the time limits.
The representative notes the worker did not understand they had the right to claim benefits for a psychological injury and did not know or understand the WSIB provided coverage for harassment under the traumatic mental stress policy and the chronic mental stress policy.
The worker representative submits the worker’s direct supervisor knew of the March 2016 incident as they were a party to it. The worker also feels their general manager was aware of the March 2016 incident as they asked them how their direct supervisor behaved on their trip to the trade show and did not ask about the conference itself.
The representative further submits the worker felt guilt, shame, embarrassment and anxiety about the incident in addition to concerns the employer would not believe them if they reported it. The representative notes the employer is a sophisticated entity with ample resources to know their reporting obligations. The representative further notes the employer did not complete an Employer’s Report of Injury when the worker reported the incident in June 2018 or in September 2018, when the worker advised they were going an unpaid leave of absence due to a psychological illness resulting from the supervisor’s actions.
The representative is seeking an extension to the time limit to file a claim. The representative submits that in reporting the incident to their co-worker and with their direct supervisor as the instigator of the incident, the worker met their reporting obligations.
Employer Position
The employer representative submits the worker did not meet the transitional provisions to make a claim under the policies for TMS and CMS. The representative states the employer does not agree an exceptional extension of the six-month time limit to make a claim should be allowed.
Assessment of the Evidence
Based upon my review of the claim file and policies 15-03-02 Traumatic Mental Stress, 15-03-14 Chronic Mental Stress and 15-01-03 Workers’ Requirement to Claim and Consent, I find the transitional provisions in policies 15-03-02 Traumatic Mental Stress and 15-03-14 Chronic Mental Stress do not allow for a discretionary provision to extend the timeline to file a claim.
According to WSIB policy 15-03-02 Traumatic Mental Stress, 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.
Policy 15-03-14 Chronic Mental Stress states 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.
The WSIB polices for traumatic mental stress and chronic mental stress came into effect on January 1, 2018. The transitional provisions apply to cases where a worker experienced either traumatic mental stress or chronic mental stress after April 29, 2014 and before January 1, 2018.
The transitional provisions contained in policies 15-03-02 Traumatic Mental Stress and 15-03-15 Chronic Mental Stress specify that a worker who has traumatic mental stress or chronic mental stress that occurred on or after April 29, 2014 and did not file a claim before January 1, 2018 can pursue a claim as long as such claim is filed on or before July 1, 2018.
Chart notes from the worker’s physician indicate they presented with symptoms of anxiety following changes at work at an appointment on May 19, 2017. On July 11, 2018, the worker requested to see a counsellor due to stress at home and at work.
During a conversation with the case manager on November 3, 2021, the worker explained when they reported the March 2016 incident to their employer in June 2018, an external investigator was hired to review the supervisor’s behavior as there had been complaints about them from other staff members.
In an affidavit provided on January 30, 2023, the worker stated they met with their employer on June 15, 2018 as other co-workers had come forward with complaints against the supervisor and the worker was asked if they had any information to add concerning the supervisor’s behavior. The worker formally reported the March 2016 incident at that meeting.
The worker further noted they went off work on an unpaid medical leave of absence in May 2018 due to the anxiety and stress they were experiencing due to the March 2016 incident and the work environment. The worker stated they returned to work in September 2018,
I acknowledge the worker’s statements they were not aware they could make a claim for a mental stress injury. I also note the worker representative’s argument the worker should be entitled to an extension of the timeline to file a claim as they did advise a co-worker and their general manager of the incident. It is evident from my review of the claim file the worker experienced a significant event and has provided evidence to the employer and the independent investigation about this event, in addition to the WSIB case manager.
Policies 15-03-02 Traumatic Mental Stress and 15-03-15 Chronic Mental Stress are clear, however, that in order to qualify for benefits under the transitional provision in the policy, a claim must be filed on or before July 1, 2018.
Policy 15-01-03 Workers’ Requirement to Claim and Consent permits WSIB decision-makers the discretionary authority to extend a worker’s six-month time limit to file a claim for benefits in certain exceptional circumstances. Neither policy 15-03-02 Traumatic Mental Stress nor 15-03-15 Chronic Mental Stress 15-03-14 (Chronic Mental Stress) contain such a discretionary provision that allows decision makers to extend the July 1, 2018 deadline for filing new TMS or CMS claims.
Therefore, as the claim was not filed with the WSIB on or before July 1, 2018, the worker does not meet the applicable criteria for a new claim for traumatic mental stress or chronic mental stress under the transitional provisions in 15-03-02 Traumatic Mental Stress and 15-03-15 Chronic Mental Stress.
I am unable to grant entitlement to either a traumatic mental stress or a chronic mental stress claim.
CONCLUSION
The worker’s objection is denied.
DATED NOVEMBER 30, 2023
D. Bowker
Appeals Resolution Officer
Appeals Services Division