- Second Injury and Enhancement Fund {SIEF} (vulnerability)
The employer appealed a decision of the ARO, which denied entitlement to cost relief under the Second Injury Enhancement Fund (SIEF). The worker was granted entitlement under the chronic mental stress (CMS) policy. The case manager determined that the worker was subjected to workplace harassment. The WSIB recognized a permanent psychological impairment for anxiety and major depressive disorder with an MMR date of August 24, 2022. The worker's psychological impairment was assessed at 25%.
The Vice-Chair denied the appeal.The primary question in this appeal was whether the worker had a pre-existing impairment or condition that impacted the severity of the worker's psychological condition and/or prolonged her recovery. The worker did not have a pre-existing condition within the meaning of WSIB policy. The worker also received a 25% NEL for the compensable psychological condition where it was determined that there was no measurable or significant pre-existing impairment, condition or co-existing condition. The Vice-Chair was bound by these findings.The employer submitted that the worker possessed psychological vulnerabilities based on a transient reference to adolescent trauma in the reporting and mild stress associated with being a single parent. While it is possible that prior psychic trauma may result in a psychological vulnerability, evidence of such vulnerability and its impact on the compensable condition would still need to be established on a balance of probabilities. In addition, while establishing evidence of a pre-existing psychological vulnerability may be challenging; this does not negate the requirement for evidence of such vulnerability (see Decision No. 198/22). The Vice-Chair adopted the reasoning of Decision No. 1435/21 in determining this appeal. While Decision No. 431/89 suggested that there is a lower threshold in establishing evidence of a prior psychological condition or vulnerability, Decision No. 1435/21 was of the view that this reasoning did not provide "a persuasive analytical framework to the determination of SIEF entitlement". The Panel noted that this analytical framework "answers the first part of the SIEF test with a conclusion as to the second: the determination of a "prolonged and enhanced recovery" which is substituted, by inference, for evidence of a "pre-existing condition"" which is inconsistent with OPM Document No. 14-05-03. This "would result in a single factual determination of whether the period of recovery was prolonged or enhanced since the analysis then infers that a pre-existing condition was present". The evidence did not establish that the worker had a pre-existing psychological vulnerability prior to the workplace accident, nor that the worker's psychological condition was enhanced or prolonged as a result of any pre-existing vulnerability. There was no evidence of significance that the incidents of adolescent trauma played a material role in the development of her condition or was the focus of any treatment. The Vice-Chair was not persuaded that the stress associated with being a single mother of a special needs child would necessarily give rise to a psychological vulnerability. The worker's reaction to the employer's comments were part of a series of comments about the worker that constituted workplace harassment.