A recent decision of the Workplace Safety and Insurance Appeals Tribunal highlights the importance of context in assessing workplace harassment under the WSIB Chronic Mental Stress Policy. The decision also provides insight on the Tribunal’s consideration of workplace investigations in the adjudication of chronic mental stress claims.
In Decision No. 1254/24, a police officer (the “Worker”) claimed he was subject to workplace harassment, involving a series of incidents between November 2020 and January 2021, which resulted in the development of a mental stress condition. The Worker sought entitlement under the Chronic Mental Stress Policy (the “Policy”). The Panel ultimately allowed the Worker’s appeal.
The Panel summarized the key elements to establish entitlement under the Policy. A worker must be exposed to a “substantial work-related stressor” in the course of their employment, which is the “predominant cause” of the resulting mental health condition that is diagnosed under the Diagnostic Statistical Manual (“DSM”) by a qualified health care professional. The Panel also noted that under the Policy, a substantial workplace stressor is excessive in intensity and duration beyond those typically experienced by workers in similar circumstances. Further, workplace harassment is generally considered a substantial workplace stressor, however, interpersonal conflict is generally not.
1. The Worker was Subject to Workplace Harassment
The first issue to be determined was whether the Worker was subject to workplace harassment between November 2020 and January 2021. The Worker testified as to the incidents that took place, which included co-workers accessing and tampering with the Worker’s locked desk, tampering with his police-issued winter jacket, tampering with his desk name card, leaving a derogatory picture and notes around his work area, and placing items around his work area (including garbage, used Kleenex tissues, and an empty water bottle).
The Panel found that the series of incidents specifically targeted the Worker and amounted to vexatious conduct that was known or ought to be known to be unwanted, thus meeting the definition of workplace harassment under the Policy. The Panel took note of the fact that none of the incidents described by the Worker were disputed. Further, the incidents were known to be unwanted because the Worker told his co-workers that it upset him, and his Staff Sergeant cautioned co-workers to stop the conduct on more than one occasion.
Notably, the Panel emphasized the context of the COVID-19 pandemic and stated that given the specific incidents, such as leaving garbage, used tissues, and a water bottle, during a time in which there was heightened concern about the COVID-19 virus, the incidents were “even more egregious than they might have been in different circumstances.”
Another key takeaway is that the Panel did not adopt the conclusions of the workplace investigator, who found that the incidents did not constitute workplace harassment. The Panel held that the investigator’s opinion was not determinative and that it was for the Panel to determine whether the incidents amounted to workplace harassment under the Policy.
2. The Workplace Harassment Caused the Worker’s Mental Health Condition
Having found that workplace harassment did occur, the Panel then assessed whether the workplace harassment caused the Worker to develop a mental stress condition.
The Panel relied on two clinical notes and a Health Professional’s Report (Form 8) from the Worker’s family physician from February 2021, which indicated that the Worker developed anxiety and insomnia as a result of workplace harassment. The Panel also relied upon a May 2023 letter from the family physician, written in support of the WSIB claim, in which the family physician confirmed his opinion that the Worker’s symptoms met the DSM criteria, despite initial medical reporting not specifically referencing the DSM.
With respect to the Employer’s arguments, the Panel did not find it significant that the initial diagnosis made by the family physician occurred after only a 30-minute phone call with the Worker. The Panel also rejected the Employer’s argument that the family physician confirmed the DSM diagnosis two years after the initial diagnosis and did not explain any of the DSM criteria in arriving at the diagnosis. The Panel also did not find it significant that subsequent progress notes from a registered psychologist provided no diagnosis for the Worker.
Overall, the Panel found that the clinical notes from the family physician were sufficient in establishing the Worker’s entitlement to benefits under the Policy. The medical evidence supported that the workplace harassment caused the Worker to develop anxiety and insomnia. Both conditions are considered DSM diagnoses and were made by a family doctor, a regulated health professional under the Regulated Health Professions Act, 1991, and thus qualified under the terms of the Policy.
Takeaways
This Decision is an important reminder to employers that workplace investigation findings will not be dispositive in Chronic Mental Stress claims, and that it is ultimately up to the Tribunal to decide whether workplace harassment is established. The Decision also highlights the importance of context in the Tribunal’s assessment of whether workplace harassment occurred. Lastly, the Decision provides helpful insight into the type of medical evidence that will be deemed sufficient to establish these types of claims.
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