Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 19-12-2023

JudgeK. Iima : Vice-Chair S.T. Sahay : Member Representative of Employers M. Tzaferis : Member Representative of Workers
Judgment Date19 December 2023
Judgement NumberReleased_Decisions
Hearing Date23 May 2023
IssuerWorkplace Safety and Insurance Appeals Tribunal of Ontario
Decision No. 790/23

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 790/23

BEFORE: K. Iima : Vice-Chair

S.T. Sahay : Member Representative of Employers

M. Tzaferis : Member Representative of Workers

HEARING: May 23, 2023 at

Post-hearing activity completed on September 6, 2023

DATE OF DECISION: December 19, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1914

DECISION(S) UNDER APPEAL: WSIB decision dated March 31, 2021

APPEARANCES:

For the worker: M. Zare,

For the employer: J. Illingworth,

Tribunal Counsel Office: S. Pope, Lawyer

Interpreter: Not applicable

REASONS

(i) Introduction

  1. The worker appeals a decision of the , which concluded that the worker did not have entitlement to benefits for traumatic mental stress as a result of a sexual assault in May of 2017. The ARO also concluded that the worker did not have entitlement for chronic mental stress, based on the worker’s claim that the employer failed to provide a safe working environment and she experienced harassment and reprisals after the May 2017 sexual assault.
  2. A hearing was held by videoconference on May 23, 2023. The worker and the employer attended the hearing with their representatives, Ms. M. Zare and Mr. J. Illingworth, respectively.
  3. At the outset of the hearing, the parties made a joint submission requesting a bifurcation of the appeal proceedings. The parties submitted that, if the Tribunal were to grant entitlement for traumatic mental stress in relation to the May 2017 incident, it would be unnecessary to hear the remainder of the issues on appeal (i.e., entitlement for mental stress resulting from the alleged failure to provide a safe working environment, and the harassment and reprisals experienced by the worker following the May 2017 sexual assault).
  4. After hearing testimony from the worker regarding the circumstances surrounding the incident in May 2017, as well as submissions from the representatives, the Panel granted the parties’ request to bifurcate the appeal proceedings.

(ii) Issue

  1. The issue before the Panel is whether the worker is entitled to benefits for traumatic mental stress.
  2. The parties in this case agree that the incident in May 2017 was objectively traumatic. It is also not disputed that the medical evidence supports the worker was diagnosed with a DSM diagnosis that is directly attributable to the May 2017 incident (although not the only factor to the DSM diagnosis).
  3. The issue of whether the worker is entitled to benefits for traumatic mental stress in relation to the May 2017 incident therefore turns on whether the incident “arose out of and in the course of the worker’s employment,” in accordance with the Board’s Traumatic Mental Stress policy, Operational Policy Manual (OPM) Document No. 15-03-02.

(iii) Background

  1. The worker has been employed as a police officer since 2001. In November 2017, the worker reported to her employer that she was sexually assaulted by an Inspector, DJ, on May 11, 2017, while attending a retirement party for a work colleague.
  2. According to the Worker’s Report of Injury (Form 6), DJ was criminally charged in December of 2017 and since that time, the worker had faced reprisals and a series of cumulative workplace harassment over the next 2.5 years. She initially stopped working when her employer brought DJ back to work, prior to conducting a Police Services Act investigation. Another police service was assigned to investigate DJ after the criminal charges were withdrawn due to a technicality.
  3. The worker returned to work after DJ was placed on suspension, but stopped working again due to a cumulative series of workplace harassment creating an inability to work.
  4. Following the investigation, the worker’s allegation of sexual harassment was found to be substantiated, and a finding of Discreditable Conduct was made against DJ.
  5. In September 2020, the Workplace Safety and...

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