A worker employed as a lab technician who was subjected to intense harassment from two of his co-workers in the form of teasing, name calling, and other forms of intimidation has been awarded loss of earnings (“LOE”) benefits for absence from work as a result of related stress.
The worker, who had a history of seeking psychological counselling and treatment related to his low self-esteem, depression and stress-management abilities, filed a claim with the WSIB seeking LOE benefits for stress. However, his claim was denied by the Operating Branch because it could not be characterized as an accident. The denial was upheld by the Appeals Resolution Officer and ultimately appealed by the worker to the Appeals Tribunal, which allowed the appeal and held that the worker was entitled to 100% LOE benefits for stress stemming from the verbal harassment.
Under s. 2(1) of the WSIA, "accident" is defined as, "(a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment." Although the psychological effects of harassment may not at a first glance be characterized as an "accident", the Appeals Tribunal held that the definition was reasonably expansive. Further, the Appeals Tribunal relied on Operational Policy #15- 03-02, which states that a worker may be entitled to benefits for traumatic mental stress. Examples given of events that may cause traumatic mental stress include harassment.
The applicable test for mental stress was set out in an earlier decision (No. 422/96), and is sometimes referred to as the "average worker" test. The test is as follows:
- Is it reasonable that workers of average mental stability would perceive the workplace events to be mentally stressful?
- If so, would such average workers be at risk of suffering a disabling mental reaction to such perceptions?
The answer to both questions must be in the affirmative in order for the mental stress to be compensable. Decision No. 871/99, further modified this test, holding that the "thin-skull rule" applies: even if the employee suffers greater harm from the injury than an average employee would due to a pre-existing condition, so long as the working environment caused the injury it is compensable.
In this case, the appeals tribunal applied these tests to the evidence and concluded that the worker's psychological disability was the direct result of the harassment he was subjected to in the workplace, notwithstanding the worker's pre-existing vulnerable personality.
This case serves as an important reminder to employers that, along with other legal and moral reasons, there is also a financial imperative in providing a conflict-free work environment for all employees.