We endeavor to keep employers updated on current employment law developments. A recent claim has the potential to allow WSIB benefits for workplace harassment stress claims.

A worker filed a claim for WSIB benefits due to gradual workplace harassment stress which resulted in a psychological condition. The claim was denied by WSIB.

The Board's policy on Traumatic Metal Stress allows claims for an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. An acute reaction is a significant or severe reaction by the worker to a work-related traumatic event that results in a psychiatric or psychological response. Examples of a sudden and unexpected event include, but are not limited to witnessing of a fatality, being the object of harassment that includes physical violence or threats of physical violence. It could include being the object of harassment that includes being placed in a life-threatening or potential life-threating situation (e.g. tampering with safety equipment; causing a worker to do something dangerous).

Historically, WSIB has denied mental harassment stress claims resulting over a peroid of time which resulted in psychological disorders.

In the claim that was denied by WSIB, the worker made an application before the Human Rights Tribunal essentially auguring that WSIB policy on disability related to mental stress (which limits entitlement to a disability that was the result of a specific, sudden and unexpected event in the workplace), was discriminatory. The worker argued that WSIB denied his claim for Loss of Earnings ["LOE"] on the basis that his disability, which was caused by workplace harassment and discrimination, developed gradually over time.

The question before the Human Rights Tribunal is whether the Application falls within the Tribunal's jurisdiction. The Tribunial has been clear that it will not hear Applications to review specific decisions under benefit programs (e.g. WSIB) unless their was an allegation of discrimination under the Human Rights Code.

In reaching their decision, the Human Rights Tribunal concluded that the worker was not challenging the specific WSIB decision, rather the Application contended that the denial of WSIB benefits under the Traumatic Mental Stress policy was discriminatory because the statutory provision in the Workplace Safety and Insurance Act violated the Human Rights Code. That is, workers who sustain psychological injuries and their related conditions are treated differently than physical injuries, and this constituted discrimination.

In allowing the challenge, the Tribunal ruled that WSIB benefits are a "service" within the meaning of the Human Rights Code. Before proceeding with a Hearing the Tribunal has requested arguments from the Applicant, Respondent and Intervenors setting out each parties position.

We will keep you posted as this challenge proceeds. To read and view the full decision click on the link below for further information.

Seberras V. Workplace Safety and Insurance Board,2012

For more information, please contact Greg Sathmary (Ottawa) at 613-260-0600 or Industrial Mediation Professional Corporation at 1-800-660-3554.