The Workplace Safety and Insurance Appeals Tribunal (WSIAT) has denied an employer’s appeal seeking an increase in Second Injury and Enhancement Fund (SIEF) cost relief for a workplace injury claim involving a nurse who developed mental health conditions following prolonged sexual harassment by a physician.
The tribunal upheld the Workplace Safety and Insurance Board (WSIB)’s decision to grant the employer 25% cost relief, rejecting arguments that the worker’s pre-existing mental health history justified a higher reduction in claim costs.
Background
The case involved a registered nurse who reported experiencing sexual harassment by a male physician from November 2016 to October 2017. The employer investigated the allegations, terminated the physician, and placed the worker on paid leave during the investigation.
The worker was later diagnosed with Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD), Single Episode. The WSIB granted her initial entitlement for Traumatic Mental Stress (TMS).
The employer sought SIEF cost relief based on the worker’s prior history of anxiety and use of antidepressant medication related to personal life stressors, including a divorce and family-related challenges.
The WSIB allowed 25% cost relief, categorizing the worker’s pre-existing condition as of minor medical significance and the workplace incidents as of moderate severity. The employer appealed, arguing that the pre-existing condition was of major significance and that the severity of the workplace incidents was minor, entitling them to 90-100% cost relief.
Tribunal’s analysis
Severity of the workplace incident
The tribunal assessed the severity of the sexual harassment incidents based on WSIB Policy 14-05-03, which categorizes incidents as minor, moderate, or major. The employer contended that the incidents were minor because the worker initially did not object to the physician’s comments, did not report the harassment until it was witnessed by a supervisor, and that her existing mental health conditions, rather than the harassment itself, contributed to her distress.
However, the tribunal found that the harassment escalated over time, involved explicit sexual remarks, unwanted physical contact, and lasted nearly a year. The physician made repeated inappropriate comments, including graphic sexual references, and engaged in physical acts such as cornering the worker at her desk and pressing his pelvis against her back. The tribunal noted that the incidents amounted to sexual assault and were severe enough to warrant intervention from a co-worker, who persuaded the worker to file a complaint.
The tribunal determined that the employer’s argument—that the worker’s delayed reporting indicated a minimal impact—was unfounded. Instead, it accepted medical evidence that the worker delayed reporting due to fear of workplace consequences and a sense of helplessness. The tribunal concluded that the severity of the harassment was moderate, as it was expected to cause disabling injury.
Medical significance of pre-existing condition
To determine the medical significance of the worker’s pre-existing mental health history, the tribunal examined multiple psychological assessments. The evidence showed that while the worker had been prescribed antidepressants for nine years prior to the harassment, she had never been formally diagnosed with a mental disorder before the workplace incidents. Medical reports indicated that her symptoms of PTSD and MDD began following the harassment and were exacerbated by the employer’s workplace investigation.
The tribunal found that, although the worker had prior experiences of stress and anxiety related to personal life circumstances, her pre-existing condition was of minor medical significance in comparison to the severity of the diagnosed PTSD and MDD that resulted from the workplace incidents. It noted that her mental health conditions worsened significantly after the harassment, leading to multiple suicide attempts and ongoing psychological distress.
Decision
The tribunal upheld the WSIB’s original assessment that the incidents of sexual harassment were of moderate severity and that the worker’s pre-existing condition was of minor medical significance. Under WSIB Policy 14-05-03, this assessment warranted a 25% cost relief, not the 90-100% sought by the employer. The tribunal dismissed the appeal and confirmed that the employer was not entitled to additional cost relief under the SIEF program.
For more information, see Decision No. 1466/24, 2024 ONWSIAT 1950 (CanLII).
