Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) has ruled in favour of a delivery driver, finding that workplace harassment was a substantial stressor that led to the worker’s diagnosed anxiety disorder. The ruling grants the worker entitlement to benefits under the Workplace Safety and Insurance Board’s (WSIB) chronic mental stress (CMS) policy, with the tribunal directing the WSIB to adjudicate the nature and duration of the benefits.
The driver, who has worked for his employer since 1997, successfully appealed a denial of benefits for chronic mental stress. The worker, now 53, claimed he experienced ongoing harassment and discrimination at his workplace, following a 2001 wrist injury that resulted in a permanent impairment and a 13% non-economic loss (NEL) award.
Name-calling and unfair treatment allegations
The appeal, focused solely on entitlement to benefits under WSIB’s CMS policy, stemmed from the worker’s claim that his permanent wrist impairment led to name-calling and unfair treatment by both co-workers and management.
In January 2020, the worker’s initial claim for CMS benefits was denied, with a case manager determining there was insufficient evidence to substantiate the allegations of workplace harassment. This decision was upheld on reconsideration, and again by an Appeals Resolution Officer (ARO) in March 2021, who noted that while there was interpersonal conflict, it did not amount to harassment.
However, the WSIAT disagreed with the ARO’s findings, determining on the balance of probabilities that the worker was indeed subjected to workplace harassment, which contributed significantly to his anxiety disorder.
“We find, on a balance of probabilities, that the worker was subject to workplace harassment. This harassment was a substantial work-related stressor that resulted in a psychological injury and a diagnosis of anxiety disorder,” the ruling stated.
‘Foreman of the gimp parade’
The tribunal considered witness testimony and several statements from the WSIB’s investigation, some of which supported the worker’s claims of verbal abuse. One witness, identified as M.A., confirmed that the worker was called derogatory names, including “cripple” and “the foreman of the gimp parade,” by a manager referred to as B.P. The tribunal found M.A.’s testimony credible, as it was consistent with other evidence. The witness described the workplace as having a “culture of harassment,” noting that management, including B.P., participated in the inappropriate behaviour.
In its ruling, the tribunal acknowledged that while some workplace conflict is to be expected, the conduct towards the worker went beyond typical interpersonal disputes.
“We find the impugned conduct, such as name calling, was ‘annoying, distressing’ and ‘agitating’ to the worker,” the decision stated. Furthermore, the tribunal highlighted the power imbalance between the worker and management as an aggravating factor, with B.P.’s behaviour being deemed particularly inappropriate given the worker’s vulnerability due to his impairment.
The tribunal also considered evidence showing that the worker had made efforts to minimize interactions with others at the workplace by bidding for jobs with limited contact, a coping mechanism that was partially effective. Additionally, it was noted that after the workplace injury, the nature and frequency of the teasing became more intense, particularly as it related to the worker’s physical impairment.
Medical reports
Medical reports further supported the worker’s claim, including assessments from Dr. F. Esan, a psychiatrist, who diagnosed the worker with complex post-traumatic stress disorder (PTSD) and generalized anxiety disorder, linking these conditions to “significant levels of discrimination and abuse in the work environment.”
In contrast, a June 2019 report from Dr. Cherniak, another medical professional involved in the case, suggested that non-work-related stressors could be sufficient to explain the worker’s anxiety and depression. However, the tribunal preferred the opinion of Dr. Esan, finding it to be more consistent with the broader body of evidence.
“We are satisfied that the workplace harassment and ensuing conflict… was the predominant cause for the worker’s generalized anxiety disorder,” the tribunal concluded. While acknowledging the presence of some non-work-related stressors, the WSIAT ruled that these did not negate the worker’s entitlement to compensation under the CMS policy.
As a result of the tribunal’s findings, the worker’s entitlement to benefits for his anxiety disorder was granted, with the WSIB directed to determine the nature and duration of those benefits, subject to further appeal rights.
With this ruling, the case will now return to the WSIB for further adjudication, where the precise duration and amount of benefits will be determined.
For more information, see Decision No. 298/24, 2024 ONWSIAT 1023 (CanLII).
