The Human Rights Tribunal of Ontario has heard many cases brought by injured workers against the Workplace Safety and Insurance Board (“WSIB”). The vast majority of these cases essentially amounted to contentions that decisions made by WSIB Case Managers or the Appeals Branch were discriminatory. Such cases are almost always dismissed by the Tribunal on the basis the Tribunal does not have the legal right to review the decisions made by another legal body.
However, as the recent decision in Lawson v. Workplace Safety and Insurance Board illustrates, the Tribunal does have the power to adjudicate whether the way the WSIB dealt with a claim was discriminatory (allegations relating to the various decisions of the WSIB in the claim were dismissed on jurisdictional grounds).
The case involved a worker who suffered from several psychological conditions including Anxiety Disorder, Depression marked by suicidal ideation, a Pain Disorder with psychiatric features, Personality Disorder and Attention Deficit Disorder.
The worker suffered anxiety about the timing of direct deposits of his benefits and frequently complained to the WSIB about this issue. A key aspect of the case involved “Drug Verification Forms” which were sent to the worker (but not his Doctor) directly by WSIB every three months. Inconsistent Drug Verification Services form letters were issued during the claim. In one instance, two were sent on the same day listing different medications. The WSIB also rejected numerous medications proposed by the worker’s Doctor, without any explanation.
The worker was also subject to a prohibition on contacting the WSIB by telephone, which made managing his claim very challenging. Eventually, the worker’s legal representative formally wrote to the WSIB seeking accommodation of the worker’s disability relating to the issue of his “…dealing with the WSIB.” The letter also addressed substantive issues related to the claim. The WSIB responded to the letter but did not address the request for accommodation under the Human Rights Code.
The worker brought an application before the Tribunal. Finding in the worker’s favour, the Tribunal held that he experienced “…contradictory requests for information, contradictory information about what was allowed and what was not, very extensive delays, lack of explanation for various decisions that were made, and seemingly arbitrary and excessive demands for information that was [sic.] not necessary.” The Tribunal concluded that the WSIB “…failed to consider the impact of its administrative processes and poor communication of decisions on the applicant in light of the special needs he has as a result of his disabilities.”
The case does not likely represent the opening of the floodgates for WSIB liability under the Code, as it turned on very specific facts. The worker had a very specific disability which was aggravated by the administrative processes of the WSIB as they existed at the time. Clearly, the WSIB should not have ignored the written request for accommodation from a legal representative. The Tribunal held that the WSIB does not need to fully engage the accommodation process for every inquiry characterized as a human rights issue, but must have a formal process in place for responding.
The case includes lessons for the broader employer community, particularly in light of the revised WSIB mental stress policies which will take effect next year. The way an employer communicates with a worker with a traumatic mental injury is particularly important and may require some adjustment from the employer’s standard procedures. Obviously, any request for accommodation must be taken seriously and be properly assessed. Any decisions about what measures the employer is taking should be communicated to the worker and the worker’s medical team.
