APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230104
OBJECTING PARTY:
worker
REPRESENTED by:
unrepresented
RESPONDENT:
EMPLOYER.
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEOCONFERENCE – July 14, 2023
HEARD by:
DATED:
maria rizzuto, appeals resolution officer
AUGUST 9, 2023
ISSUE
The worker is objecting to the Case Manager’s (CM) December 7, 2021 decision, which denied entitlement to a mental stress injury under policy 15-03-02, Chronic Mental Stress (CMS).
BACKGROUND
The worker’s claim was established by the Employer’s Report of Injury dated November 29, 2021. The report states the worker, a manager in customer service and administration, is claiming CMS following the implementation of the employer’s COVID-19 vaccination policy.
The CM denied the claim on December 7, 2021, stating the issues identified by the worker relate to decisions made by the employer that are part of the normal employment function and do not constitute a substantial work-related stressor.
The worker objects to this decision. The matter is with the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
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. I find that entitlement for chronic mental stress (CMS) is not in order, as the policy criteria has not been met.
Worker’s Position
The worker disagrees with the CM’s decision dated December 7, 2021 and argues that not all of the information they provided was considered appropriately. The worker argues the CM’s decision seemed to have been based on the worker not accepting the employer’s policy; however, this was not the case. The worker clarified the employer’s policy is not what caused their workplace stress and anxiety, it was everything else leading up to it as well as discrimination once they signed the policy. The worker noted that in addition, the employer kept changing their requirements to make it more difficult to work onsite and the worker felt they did not deserve the disrespectful treatment. The worker indicated they were undermined, intimidated and coerced.
The Employer’s Position
It is the employer representative’s position that the worker should not have entitlement to CMS.
The representative submits that the employer did not discriminate against the worker or treat them any differently as the vaccination policy was implemented, without exception, company wide. The employer created a vaccination policy based on a careful evaluation of their workplace requirements and that it was not based on arbitrary evaluative factors.
The representative submits the employer denies the allegations of workplace harassment or any other improper conduct implementing or enforcing its COVID-19 related policies and procedures and is of the view the worker’s position has been revised to potentially to fit into the CMS policy 15-03-14.
The representative submits that it appears the worker is claiming the disagreement with the management decisions has contributed to their stated mental stress; however, these types of management level decisions are not considered chronic stress under the chronic mental stress policy.
Relevant Claim Details
The Worker’s Testimony
The worker testified they have been employed as a manager with the employer for twenty-one years.
They confirmed they have never had any problems in the twenty-one years they worked for the employer prior to the COVID-19 vaccination issue.
The worker testified they experience harassment leading up to the employer’s vaccination policy.
The worker testified that once the COVID-19 vaccination was available the employer kept asking if they had received the vaccination. The worker indicated they spoke with the employer about this and told them they needed to stop asking. The worker indicated the vice-president stopped; however, the president and another colleague continued to ask.
After they signed the employer’s vaccination policy they felt they were discriminated against because they were treated differently, which the worker provided various examples of.
The worker testified they were the only employee who signed the vaccination policy because they were the only one in the company who did not get vaccinated. The worker indicated they received emails from the employer indicating their decision to not get vaccinated caused undue damage; however, the worker confirmed these emails were not submitted to the claim file.
The worker indicated after signing the employer’s vaccination policy the employer stopped talking to them and would only communicate with them through email.
The worker indicated they felt their position as a manager was undermined. One example suggested that when they asked to take vacation, the employer had them check with one of their own staff members to see if it was okay before their vacation request would be considered.
The worker testified they used to be the one putting together all the policies and procedures for customer service; however, after they signed the vaccination policy, the employer began changing policies and procedures without letting them know.
The worker indicated their request to work from home was denied, yet other employees were permitted to work from home. They were of the view the employer let some of the employees with young children work from home to help them with child care. The worker indicated their reason for wanting to work from home had to do with feeling stressed about how they were being treated at work and when they asked why they could not work from home, they were not provided with an answer. They felt the employer was not trying to help them in any way.
The worker testified that the employer’s vaccination policy required the whole company to be swabbed for COVID-19 once a week; however, because they were not vaccinated they were required to swab twice per week. The worker indicated this requirement later changed to three times per week and had to be tested at a pharmacy. The worker believed the employer went out of their way to come up with reasons why they could not self-swab. The worker indicated they felt the employer was finding excuses not to accommodate them and that there was no compromise or any help given to alleviate their stress.
The worker indicated they were required by company policy to wear a mask at all times, except when they were eating or on the phone with a customer. The worker indicated one day they were approached by the employer and told they were seen not wearing a mask; this made them believe the employer was hovering outside their office watching them.
The worker testified they left work in November 2021 because they could not take it anymore. They indicated after they left work the employer continued saying and doing more things to make them more stressed out. In their view, the employer was not looking after them, the employer did not have their back, especially their boss. They did not feel supported by their boss in any way.
The worker indicated their work environment became toxic, as if the employer was trying to push them out and make them quit because of they did not want to get vaccinated. When asked, the worker confirmed the employer never indicated they wanted them to quit.
The worker confirmed being assessed by Dr. Wilson in November 2021, who agreed they were experiencing stress and anxiety.
Analysis of the Evidence
The WSIB policy 15-03-14, Chronic Mental Stress, indicates that a worker will generally be entitled to benefits under this policy if all of the following criteria are met;
A regulated health care professional has provided a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders (DSM).
The worker must have experienced one or more substantial work-related stressors
The work-related stressor must be the predominant cause of the appropriately diagnosed mental stress injury.
Has the diagnostic requirement been met?
As stated in policy 15-03-14, before any CMS claim can be adjudicated, there must be a diagnosis in accordance with the DSM, which may include but is not limited to:
Acute stress disorder
Post-traumatic stress disorder
Adjustment disorder, or
An anxiety or depressive disorder
In this case, although the worker indicated they were diagnosed with stress and anxiety, there is a lack of medical records in the claim file and therefore no medical evidence to support a DSM diagnosis.
Noting there is no DSM diagnosis, I find this policy criteria has not been met.
Did the worker suffer a substantial work-related stressor?
Policy 15-03-14 (Chronic Mental Stress) indicates the term “work-related stressor” is meant to include multiple work-related stressors, as well as a cumulative series of work-related stressors.
In order to consider entitlement for chronic mental stress, the WSIB decision-maker must be able to identify the event(s), which are alleged to have caused the chronic mental stress. This means that the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others can confirm the event.
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.
Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict
amounts to workplace harassment, or
results in conduct that a reasonable person would perceive as egregious or abusive
Workplace harassment occurs when a person or persons, while in the course of the employment, engage 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.
Policy goes on to state there is no entitlement for chronic mental stress caused by an employer’s decision, or actions that are part of the employment function.
However, workers may be entitled to benefits for CMS due to an employer’s decision 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
In this case, although the worker has provided examples of perceived harassment and discrimination, I must determine if these incidents constitute substantial work-related stressors.
The worker is claiming their CMS arose after they signed the employer’s vaccination policy; however, I consider the actions taken to be the result of decisions or actions of the employer as part of the employment function. The policy provides that workers may be entitled to benefits for CMS due to 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.
I acknowledge that the worker strongly believes how they were treated by their employer after signing the vaccination policy constitutes harassment and discrimination; however, from an objective standpoint there needs to be some element of threat or abuse in the employers conduct, or in the interactions to rise to the level of harassment. The evidence in this case has not led me to such a conclusion.
As stated in the policy, interpersonal conflicts between workers and their supervisors are generally considered a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor. In this case, while I acknowledge the incidents described by the worker were unpleasant and may have caused them additional stress, I do not find the events equate to workplace harassment or conduct that a reasonable person would perceive as egregious or abusive. Within the context of the CMS policy, I find they qualify as typical features of normal employment and are not considered to be a substantial work-related stressor.
I find the criteria for a substantial work-related stressor has not been met.
The work-related stressor must be the pre-dominant cause of the appropriately diagnosed mental stress injury.
Noting I have concluded the evidence does not support a substantial work-related stressor, or a diagnosed mental stress injury, it is not necessary to address the question of predominant cause.
For the reasons noted above, the requirements set out in Policy 15-03-14 have not been met and I am unable to allow the claim for entitlement to CMS.
CONCLUSION
The worker’s objection is denied.
The worker does not have entitlement to benefits for CMS.
DATED August 9, 2023
Maria Rizzuto
Appeals Resolution Officer
Appeals Services Division