Should you apply for workers comp?

The Workplace Safety and Insurance Board, created in 1914, is an independent Ontario government agency that operates at “arm’s length” from the Ontario Ministry of Labour, Training and Skills Development. It gives benefits and supports to people who’ve been injured at work. These can include replacement of lost wages, health care (including rehabilitation, counselling, and medications), and, in certain situations, retraining.

If you’ve been harmed by sexual harassment at work, you might think the WSIB will help you.

• Maybe after you were harassed, you took time off work and so lost income.
• Maybe the harassment damaged your mental health, and you ended up needing to spend money on medication for anxiety or depression.
• Maybe the harassment had such an effect on you that you had to leave a male-dominated industry and ended up needing to retrain for a new type of work in a different field. 

Those are the kinds of expenses—replacement of lost wages, medication costs, retraining costs—that the WSIB normally does reimburse.

And so it might sound like a good idea to file a claim with the WSIB.

But we need to warn you: the WSIB is very unlikely to help you. 

The WSIB doesn’t investigate or adjudicate workplace sexual harassment claims. It’s not going to say, “Yes, you were harassed, and you were punished for reporting it. Here is some money to make up for the pay you lost.” It’s not going to say, “We agree with you that your industry is unfriendly to people like you, and that it makes sense for you to retrain for a different job where you’re less likely to be harassed. We will fund your retraining.”

All the WSIB can do is to give you benefits and supports if you have suffered a physical injury at work (rare in cases of sexual harassment) or mental stress (less rare in sexual harassment cases, but hard to prove). It will only help you if the harm you’ve suffered fits into one of those two categories.

Historically, the WSIB has mostly handled claims related to physical injuries suffered by workers in male-dominated industries like construction and manufacturing, and in uniform occupations like policing and firefighting. If you slip at work and break your ankle, or are struck by a falling object, or are injured in a fire or explosion: that is the kind of situation the WSIB was designed for, and has a lot of experience handling.

The WSIB has less experience with mental health harms. It has only accepted claims for chronic mental stress (with no physical injury) since 2018. And for these types of claims, the WSIB requires you to prove that your workplace was the “predominant” cause of your injury, whereas proof for other claims is only that the workplace was a “substantial” cause. That higher standard, worker advocates say, is another reason, in addition to the established WSIB culture, why so few harassment claims to the WSIB are successful.

Realistically, it’s likely that if you apply for chronic mental stress benefits, you’ll be turned down. If you want to pursue the claim after being denied, you’ll need to be prepared to go through an appeal process. Appealing can take a long time, and of the few appeals that are heard, many are denied.

Mental stress claims

The WSIB awards benefits due to the injury you sustained, which in your case would be damaged mental health. This could be a diagnosis of conditions like depression, post-traumatic stress disorder, or anxiety.

There are two categories of mental health injuries that might be caused by sexual harassment in the workplace. For either, you’ll need a diagnosis by a psychiatrist, psychologist, physician, or nurse practitioner.

Chronic mental stress (CMS) covers injuries from ongoing events where the injury develops over time. This might apply to a case where you are repeatedly harassed by co-workers. 

Traumatic mental stress (TMS) results from a specific traumatic event, such as harassment that includes physical violence, the threat of physical violence, or a life-threatening situation. The incident itself is the source of the trauma. While TMS claims are often based on a single traumatic event, the WSIB can also consider multiple incidents if the “cumulative impact” is traumatic. This means that, if events are looked at on their own and aren’t traumatic, they may be considered traumatic when looked at together.

Historically, the WSIB is more likely to accept traumatic mental stress claims than chronic mental stress claims. But the acceptance rate is low for both.

Pros and cons of going to the WSIB

Will the WSIB accept my application?

• To be eligible for benefits and services under the WSIB process, you must be a “worker” employed in a business or industry that is covered by the Workplace Safety and Insurance Act. About 75% of workers in Ontario are covered by the WSIB.
• If you aren’t sure whether you’re covered by the WSIB, you can call 1-800-387-0750, or seek advice from your union, a lawyer or paralegal, or the Office of the Worker Adviser.
• The WSIB will only accept your claim if the harassment took place “in the course of your employment.” Meaning, harassment only counts if it takes place at work, during your work hours (or within a reasonable period before or after work), and while you are performing your work duties. If you live on your employer’s property, harassment that takes place outside work hours may still be covered. Similarly, if your work requires you to go to different places, you may be covered while travelling and at the different locations.
• The WSIB won’t cover every kind of mental stress that arises at work. If you develop a mental health condition caused by your employer making changes to your shifts or other working conditions, for example, or firing you, or due to interpersonal conflicts that don’t involve harassment, you aren’t eligible to file a claim.
• As a general principle, the law says that you can’t have the same issue decided twice in two different places. If you start a case for the same problem in more than one forum, it’s possible that the decision-maker in one of them will wait until the case has been decided in the other forum or reject it altogether. People often try the WSIB first. However, it’s best to speak with a lawyer or paralegal about your options, as the facts of your case may allow you to approach more than one forum.

Special situations

Contact the WSIB (1-800-387-0750) to learn about the rules that apply if you are in one of these categories:

• non-resident worker
• non-status or don’t have a work permit
• foreign agricultural worker
• paid or unpaid Ontario Works trainee

The WSIB will look for proof of these five things when it reviews your CMS claim:

1. You’ve experienced sexual harassment.
2. The harassment occurred in connection with your employment.
3. There’s a mental stress injury. This requires a diagnosis by a physician, psychiatrist, psychologist, or nurse practitioner that is recognized by the Diagnostic and Statistical Manual of Mental Disorders-5. Some examples: acute stress disorder, post-traumatic stress disorder, anxiety, or depression.
4. In some cases, a second assessment and diagnosis by a psychiatrist or psychologist could be required.
5. An indication that the workplace sexual harassment is the predominant cause of your mental stress injury.

The WSIB will look for proof of these five things when it reviews your TMS claim:

1. The sexual harassment you experienced included a traumatic event. WSIB defines a traumatic event as “an event that is clearly and precisely identifiable and that is objectively traumatic.” This could mean violence was involved.
2. The traumatic event occurred in connection with your employment.
3. You suffered a traumatic mental stress injury. This requires a diagnosis by a physician, psychiatrist, psychologist, or nurse practitioner that is recognized by the Diagnostic and Statistical Manual of Mental Disorders-5. Some examples: acute stress disorder, post-traumatic stress disorder, anxiety or depression.
4. In some cases, a second assessment and diagnosis by a psychiatrist or psychologist could be required.
5. An indication that the traumatic event or events caused or significantly added to the diagnosed mental stress injury.The WSIB will determine if it can identify the particular incident or series of incidents that led to the injury.

The WSIB will consider whether the harassment you faced was “objectively” traumatic. This means that the incident would have to be generally considered as traumatic by the “average worker” or “reasonable observer.” Unfortunately, this overlooks how the sexual harassment has been traumatic for you. Being told that the harassment you experienced was something that the “average worker” wouldn’t think of as traumatic can affect you in a variety of ways. It’s a good idea to connect with mental health supports, which can help you through this difficult situation.

Legal help

You may be able to get help from a lawyer for free or at lower cost. Here are some places that offer legal services:

• Pro Bono Ontario has a Workplace Sexual Harassment Hotline (1-855-776-1855). The lawyers there can help you determine what your legal issues are and aid you in drafting letters and basic legal documents. They may also be able to refer you to pro bono and other lawyers; the pro bono service is dependent on your income level.
• Community Legal Assistance Sarnia’s Sexual Harassment in the Workplace project offers free legal advice and information to affected people across the province. Free legal representation may be available, depending on your income level.
• You can get a free 30-minute consultation with a lawyer or paralegal through the Law Society Referral Service. Request a referral online and LSRS provides you with the name of someone who can help you identify your legal options.
• The Office of the Worker Adviser is an independent government agency that provides free and confidential services about workplace injuries and compensation to non-unionized workers. This office can provide information, advice, and help with representation to you throughout the WSIB process. It also has an extensive network of supports for injured workers and may be able to direct you to other organizations that can help.
• There are several specialty Legal Aid Ontario clinics that provide free services to low-income individuals. If you’re below the financial threshold, which in 2021 was just under $23,000 for a single person, these may provide you with representation or legal advice:
  • Industrial Accident Victims Group of Ontario (IAVGO) is particularly concerned about migrant workers and offers services in a number of languages.
  • Injured Workers Community Legal Clinic focuses on WSIB matters.
  • Workers’ Health and Safety Legal Clinic helps low-income, non-unionized workers with WSIB, health and safety, human rights, and employment reprisal cases.
• JusticeNet is a not-for profit service for those whose income is too high to qualify for legal aid but too low to afford regular legal fees. To qualify you must have a family income under $90,000 and be experiencing financial difficulties. Participating lawyers’ and paralegals’ reduced rates vary depending on your family size and income.
• Your workplace union, association, or Employee Assistance Program may be able to help you find legal services or cover part of your legal fees.

For advice on hiring a lawyer or paralegal, see How to find and work with a lawyer.

Social and health supports

• Ontario 211: This community and social services helpline is available 24 hours a day by phone (211 or toll-free 1-877-330-3213) or online. It can put you in touch with over 60,000 services, supports, programs, and more.

Applying

First, you must decide if filing a claim with the WSIB is the right choice for you. Because there is a very high turndown rate for claims involving sexual harassment, there might be other forums—for example, the Human Rights Tribunal of Ontario or civil court—where you could have a better chance of success.

If you do choose to go to the WSIB, you’ll find more information about work-related mental stress injuries and the application process here. See also Submitting an Injury or Illness Report. You can submit the completed Form 6 (Worker’s Report of Injury/Disease) electronically by following the directions on the WSIB website or mailing it to:

Workplace Safety and Insurance Board
200 Front Street W.
Toronto, ON M5V 3J1

You must file your application within six months of the injury. If you are already past the six-month deadline, there are circumstances where the WSIB extends this deadline. If your employer did not report your injury, the WSIB, through its Stakeholder Compliance Services, will look at whether your employer created a coercive workplace which led you to waiving or forgoing claiming WSIB benefits. If they find your employer did so, the WSIB will give you 30 days to file your claim.

Once you’ve filed a claim, the WSIB will send you a claim number and the name of the case manager looking after your claim. This person may guide you through the next steps, though it’s not uncommon for applications to be rejected at this stage.

Your employer’s report

You must give a copy of your Form 6 to your employer. As soon as you report an injury to them, they have to complete a Form 7 (Employer’s Report of Injury/Disease). This will include information about your job, your earnings, and your mental stress injury. They must submit the Form 7 to the WSIB and give you a copy. The form asks your employer whether they want to dispute your claim, in which case they will need to provide their reasons why. There is very high likelihood that your employer will do this.

A health professional’s report

A physician or nurse practitioner has to complete Form CMS8 (Health Professional’s Report for Occupational Mental Stress). It provides information on what your diagnosis is and how your ability to work is affected. It will also outline a treatment plan.

After the forms are filed

Once all of the forms have been submitted, an eligibility adjudicator will consider your claim. They will be looking into two things. First, is the injury caused by sexual harassment that happened at work? Second, is your mental health condition caused by workplace sexual harassment? If there’s an inconsistency between your version of events and your employer’s about whether the injury happened at work, a WSIB investigator might contact the witnesses you listed on your form. They might also contact you to ask about the details. Many claims are disallowed at this stage.

An independent health examination

The WSIB may ask you to undergo an independent health examination if it thinks more medical information is necessary to make a decision in your case.

The independent health professional may not agree with your health professional’s diagnosis. If so, the WSIB may use that opinion as a reason to deny you benefits.

If your claim is approved

See the WSIB Benefits, Services and Responsibilities—Worker Edition for a detailed outline of what you might be eligible to receive from the WSIB if your claim has been successful. This includes:

• health-care benefits like therapy and prescription drugs
• money to replace income you’ve lost due to your injury
• retraining, if necessary

Returning to work

The WSIB’s focus is on trying to get you back into the workplace. Your health professional is key to this step. The WSIB will also contact your employer to develop a suitable return-to-work plan. In the case of sexual harassment, this might include arranging that you work at a different location from the harasser.

A return-to-work specialist at the WSIB will work with you, your employer, and your health professional, if necessary, to develop a return-to-work plan or work transition plan.

A return-to-work plan sets out the steps you’ll need to take in order to resume your job. A work transition plan is more complicated. It’s based on the fact that you’re not able to do your old job and have to be retrained for a new type of work.

Because your return-to-work or work transition plan will be guided by what your health professional says about your health, it’s a good idea to tell them about any concerns you have. They might be able to advocate on your behalf and make suitable recommendations. The plan will be very detailed. It may also set out any permanent accommodations you might require. If you and the WSIB agree to a work transition plan, the WSIB will cover the costs of this training and your benefits will continue while you retrain.

If your claim is turned down

It’s very likely that your WSIB claim for chronic mental stress or traumatic mental stress due to sexual harassment will be denied. A high number of these claims are denied at an early stage in the process, often after only brief consideration. Appealing is lengthy and seldom successful.

You may still decide to appeal, and if you do, you must file an Intent to Object Form within six months. (First read the Worker Instruction Sheet: Intent to Object Form.) You’ll receive a copy of your claim file automatically when you file the Intent to Object, which will include any notes from the review or investigation process. Occasionally, when given more documents or information, the WSIB changes its decision.

For a full outline of the appeals process, see the WSIB’s Appeals Services Division Practices and Procedures document.

An appeals resolution officer will send a written copy of their decision to all of the parties within 30 days. A successful appeal will include details on what you are eligible for, how much you should receive, and how long you should collect benefits.

If you weren’t successful, you can file a final appeal to the Workplace Safety and Insurance Appeals Tribunal.

The Workplace Safety and Insurance Appeals Tribunal

The Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal if you disagree with a WSIB decision. It’s independent from the WSIB but applies WSIB policies in its decisions. You must have already gone through the WSIB appeal process to reach the WSIAT. You have six months from the date of the WSIB decision to file an appeal to the WSIAT.

The WSIAT process usually includes an in-person hearing, but sometimes is handled through written submissions only.You have the option to take part in mediation before the hearing if your employer agrees to participate.

The Notice of Appeal for Workers form is available on the tribunal website. The form, with a copy of the WSIB decision you’re appealing, should be faxed to416-326-5164 or mailed, couriered, or delivered in person to the WSIAT at:

Mailroom
Workplace Safety and Insurance Appeals Tribunal
505 University Avenue, 5th floor
Toronto, ON M5G 2P2

For a thorough explanation of all the next steps, see the WSIAT outline of the appeal process.

In most of its cases, the WSIAT releases its decisions within 120 days after the hearing has finished.

WSIAT decisions are final—there’s no appeal. You may request a reconsideration, but these requests are rarely granted. Or you may pursue a judicial review of the decision, which is a limited and technical review through the civil court system. If you are considering this, you should discuss your case with a lawyer to review your options. See How to find and work with a lawyer.

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