Highlights of Noteworthy Decisions

Decision 901 20
Z. Onen
  • Sexual assault
  • Stress, mental

The worker and her husband were employed by a property management company as live-in superintendents. The worker provided a plumbing contractor with access to a resident's unit in order that he could carry out work. The plumbing contractor assaulted the worker sexually. The contractor was criminally charged and found guilty of sexual assault.

The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress.
The Vice-Chair noted that ARO accepted that the worker experienced a sexual assault based on the findings in Decision No. 808/15, which determined that the worker's right to bring an action against the employer was taken away on the basis that the worker was within the scope of employment at the time of the assault.
The Vice-Chair also noted that s. 22.1(1) of the Evidence Act provides that proof that a person has been convicted in Canada is proof that the crime was committed, absent evidence to the contrary. The Vice-Chair found that there was no contrary evidence in this case. Further, sexual assault fell under the definition of "accident" under s. 2(1) of the WSIA, as a wilful and intentional act, not being the act of the worker.
The Vice-Chair found that the sudden and violent sexual assault was a traumatic event within Board policy. The traumatic mental stress policy requires a diagnosis in accordance with DSM IV criteria. The worker's treating psychologist provided a diagnosis of post-traumatic stress disorder (PTSD), depression and anxiety but stated that the worker required a comprehensive assessment to confirm the exact diagnosis. The comprehensive assessment was not carried out because the worker lacks the funds for it. None the less, the Vice-Chair found that there was sufficient certainty and reliability in the psychologist's diagnosis that it qualified as a medical opinion of a mental stress injury in accordance with the DSM-IV for the purpose of the policy.
The appeal was allowed.