- Second Injury and Enhancement Fund {SIEF} (severity of accident)
- Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)
- Preexisting condition (psychological condition)
The worker, a registered nurse, reported to the employer that she experienced several instances of sexual harassment by a male physician from November 2016 to October 2017. The WSIB granted the worker initial entitlement for Traumatic Mental Stress (TMS). The employer sought SIEF cost relief based on the worker's prior history of anxiety and treatment in connection with life stressors. The issue under appeal was whether the employer was entitled to an increase in the SIEF relief for the costs of the worker's claim from 25% to 90-100%.
The Vice-Chair denied the appeal.The Vice-Chair noted that the factors to be considered in evaluating incident severity are potentially wide-ranging and the significance of each factor can vary greatly depending on the specific circumstances. Without attempting to identify an exhaustive list of factors, the Vice-Chair considered the following: a) The length of time, timing, and frequency with which the incidents occurred; b) The worker's position of vulnerability or trust in relation to the perpetrator; c) The workplace environment in which the worker was liable to be subjected to the perpetrator's conduct; d) The language used by the perpetrator, whether subtle or sexually explicit; and e) Unwanted physical contact of a sexual nature by the perpetrator. The incidents of sexual harassment occurred over a 12-month period and the seriousness of the harassment increased over time, which included incidents of sexual assault. The mental and emotional impact of such comments by a physician on the worker, who was in a vulnerable position given their work environment, was considered the most significant factor in this analysis. As a newly hired nurse, she was in a position of vulnerability in relation to the work environment and to the male physician who held a position of authority and trust over her. The Vice-Chair did not accept the employer's argument that the worker's delay in reporting the harassment showed a minimal mental or emotional impact on her. The medical reporting indicated that she felt victimized and powerless to change the situation because she needed the job. The worker's silence and delay in reporting the incidents was due to her desire to maintain a good working relationship, and her fear of the public shame that came with the investigation. This did not diminish the severity of the incidents in terms of the disability they were expected to cause. The Vice-Chair found that, viewed objectively, these circumstances of harassment and sexual assault were serious in nature and were expected to cause a disabling injury. The severity of the incidents of sexual harassment and assault was moderate. The Vice-Chair concluded that the worker's prior history of low mood and stress with her family circumstances made the worker slightly more liable to develop a disability of greater severity than a normal person. The worker's prior history was of minor medical significance in relation to the development of MDD and PTSD attributed to the workplace incidents.