Recent decision could dramatically change the law when it comes to psychological injuries
By Stuart Rudner
Until recently, there was a very clear and important distinction between physical and psychological injuries when it came to Workplace Safety and Insurance Board (WSIB) claims in Ontario. Simply put, employees could apply for WSIB benefits due to physical injuries, but were precluded from doing so for psychological ones.
That may have changed with the recent decision in Workplace Safety and Insurance Tribunal (“WSIAT”) Decision No. 2157/09, which has the potential to dramatically change the law and offer new avenues of recourse to workers who are psychologically harassed or bullied at work.
The prevailing wisdom has been that an employee subjected to harassment or a poisoned work environment would likely have to pursue a constructive dismissal claim in order to have any legal recourse. As we all know, attempting to prove constructive dismissal in that type of situation will be arduous, time-consuming and risky. No employer will make it easy and the individual is typically forced to leave work, give up her regular income and commence a costly and lengthy legal battle.
Now, as a result of this recent decision, another option may exist: Claiming WSIB benefits.
WSIB Operational Policy No. 15-03-02 requires that workers have an “acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment” in order to be entitled to benefits. The policy requires that the events be:
•clearly and precisely identifiable
•unexpected in the normal or daily course of the worker’s employment or work environment.
Similar provisions exist in other jurisdictions. Five years ago, a provision of the British Columbia Worker’s Compensation act was successfully challenged due to the fact that, like Ontario, it required that those coming benefits for psychological injuries meet a higher threshold than those who suffered from physical injuries. The British Columbia Court of Appeal rejected such a standard in Plesner v. British Columbia Hydro and Power Authority, holding that it was a breach of section 15 of the Canadian Charter of Rights and Freedoms.
As we all know, bullying and harassment have received extensive attention in recent years, and a spotlight has been shone on the issue recently due to Jian Ghomeshi. While situations like that are deplorable, one silver lining is that the media attention has served to remind employees they do not have to remain silent when they are being abused, and to remind employers they cannot allow such conduct to continue.
Decision No. 2157/09 related to a nurse with 28 years of service who had been diagnosed with adjustment disorder with mixed features of anxiety and depression after being subjected to 12 years of abuse by a doctor in the hospital. She testified that the doctor humiliated her in front of others, excluded her from conversations, required her to communicate through written notes and often told her to “shoo” or “get out” in front of patients.
In fact, other employees raised concerns with the management of the hospital, but nothing was done and the abuse continued unabated. The nurse eventually raised the issue with a team leader, who responded by telling her that her responsibilities would be significantly reduced. The demotion was the last straw, so to speak, and she did not return to work.
The medical documentation supported her claim that her condition was caused by workplace stressors, but WSIB denied her claim on the basis of the wording of the act, which reads as follows:
“(4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.
(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including the decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.”
The nurse appealed and in an interim decision, the tribunal determined that, but for subsections 13(4) and (5) of the act, the worker’s claim for mental stress would have been allowed. She then challenged the constitutionality of those sections of the act, alleging that they violate section 15 of the Canadian Charter of Rights and Freedoms, which provides that:
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Her appeal was successful. As a result, workers compensation legislation like that in Ontario may now be interpreted so as to provide a remedy for a worker who suffers psychological damages as a result of bullying or harassment. Workers in such a situation may be better off filing a claim for WSIB benefits which would allow them, if the claim is accepted, to avoid a loss of income. They would receive benefits and, ultimately, there may be a requirement that the employer accommodate their safe return to work by transferring them to a different department or location, away from those who caused the problem.
Of course, pursuing a WSIB claim would not allow the employee to seek other damages that might be available in civil courts, such as punitive and extraordinary damages or damages for mental distress. There is a greater potential recovery in court. However, pursuing a civil claim would also involve more time, cost and risk. At the very least, this case likely provides abused employees with another option to consider.
Employees who are being victimized should immediately seek advice from an employment lawyer to assess the best way to remove themselves from an unhealthy situation and protect their rights.
Employers should be aware they should not only take steps to eliminate bullying and harassment, but employees may be able to collect workers’ compensation if they are subjected to such conduct.
At the same time, employers may now have a new defence available against tort claims. They may be able to argue that an employee’s remedy for damages arising out of harassment is via workers’ compensation legislation and that they are therefore precluded from filing a civil action.
Of course, every situation is fact-specific and the rights and obligations of both parties must be assessed in context by a lawyer who specializes in that area of law.