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Employees must meet the required criteria to qualify for entitlement

By Malcolm MacKillop, Hendrik Nieuwland and Amelia Cooke, with assistance from Seth Holland

As of Jan. 1, 2018, Ontario workers will be entitled to claim benefits from the Workplace Safety and Insurance Board (WSIB) for chronic mental stress injuries arising out of and in the course of their employment.

This is a significant expansion of workers’ compensation entitlements, as up to this point the Workplace Safety and Insurance Act (WSIA) only provided benefits to workers with mental stress injuries arising from “an acute reaction to a sudden and unexpected traumatic event.” Starting in 2018, workers will be able to claim benefits from the WSIB for mental stress injuries caused by a “significant work-related stressor,” such as workplace harassment.

Scope of entitlement to benefits

While the WSIA will soon provide benefits for chronic mental stress injuries related to a worker’s employment, not all chronic mental stress injuries that occur in the workplace will be covered. Specifically, the WSIA will not apply to claims for mental stress injuries caused by the decisions or actions of employers relating to a worker’s employment. Therefore, an employer’s decision to change a worker’s duties, change the working conditions, carry out discipline or terminate a worker’s employment will not give rise to an entitlement under the WSIA.

Proving entitlement to benefits

As set out in more detail below, the WSIB recently released a new Chronic Mental Stress Operational Policy 15-03-14 (the “Policy”) which sets out what workers will need to show in order to qualify for benefits for chronic mental stress.

1. DSM diagnosis of mental stress injury from a qualified health practitioner

In accordance with the Policy, a physician, nurse practitioner, psychologist or psychiatrist must diagnose the worker with a mental stress injury in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) in order for the worker to be entitled to benefits. This might include a diagnosis of any number of disorders including anxiety or depressive disorder.

2. Presence of a substantial work-related stressor

A diagnosis from a qualified health practitioner is only the first step for establishing entitlement to benefits. A worker must also show that the mental stress injury was caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.

A substantial work-related stressor can be a number of different stressors or a series of cumulative work-related stressors, however it must be identifiable. A decision-maker must be able to corroborate the existence of the work-related stressor through information or knowledge provided by the worker’s colleagues, employer or others.

In addition to being identifiable, the work-related stressor must of course be substantial, which the Policy defines as “excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.” The Policy confirms that workplace harassment will generally be considered a substantial work-related stressor, whereas interpersonal conflicts that do not amount to workplace harassment or egregious or abusive conduct will not. However, it is important to keep in mind that not every worker who experiences workplace harassment will be able to make a claim for benefits, as workers will still need to show they have suffered a mental stress injury through a DSM diagnosis from a qualified health practitioner.

3. Substantial work-related stressor must be predominant cause of mental stress injury

Finally, the WSIB must be satisfied on a balance of probabilities that the substantial work-related stressor was the predominant cause of the mental stress injury, i.e., the “primary” or “main” cause of the mental stress injury in comparison to any other stressors. However, this does not necessarily mean that at least 50 per cent of the mental stress injury must be caused by the substantial work-related stressor. Per the Policy, the substantial work-related stressor could be considered the predominant cause of the mental stress injury even if it is ultimately outweighed by all of the other stressors when combined.

The predominant cause requirement is a conceptually tricky piece of the analysis. It may require identification of each stressor contributing to a mental stress injury and a determination of the impact of each stressor on the injury. This will not be a simple task in situations where workers are dealing with both substantial work-related stressors and stressors outside of work (e.g., divorce, elder care, loss of a family member, financial issues or illness). In those types of situations, it may be difficult to discern the level of impact the substantial work-related stressor has had on the worker’s mental stress injury in comparison to the others.

Potential retroactive effect

To add further complexity to the matter, the government recently proposed further changes to the WSIA which, if implemented, will allow workers who suffered chronic mental stress injuries between April 29, 2014 and January 1, 2018 to submit claims for chronic mental stress injuries. Adjudicating claims for mental stress injuries that occurred several years ago will further complicate the determination of whether the substantial work-related stressor is the predominant cause of the worker’s mental stress injury. The records, recollections and other information about these claims may be sparse in comparison to claims for chronic mental stress injuries arising after January 1, 2018.

Other implications

The WSIA is not the only legislation in Ontario that addresses injuries in the workplace. Specifically, the Occupational Health and Safety Act (OHSA) outlines requirements for employers to take in order to promote health and safety in the workplace. Employers who fail to adequately protect the health and safety of their workers risk being charged by the Ministry of Labour. While the OHSA traditionally applied to physical threats to health and safety in the workplace, recent amendments have expanded its application to address workplace harassment and violence, which often threaten a worker’s mental health. Similarly, the WSIB’s Policy acknowledges that workplace harassment will generally be a significant work-related stressor. As the WSIB identifies other significant work-related stressors, it will be interesting to see whether the OHSA is further expanded to contemplate these newly identified work-related threats to a worker’s mental health.

Finally, while these changes will almost certainly increase the WSIB’s already enormous case load and may result in further changes to the OHSA, they also have potential implications for other areas of employment law, including the ability to bring claims for long-term disability benefits, human rights applications and civil claims. Once the WSIB begins adjudicating claims for chronic mental stress injuries in accordance with the new provisions of the WSIA, this should provide some clarity on how the changes might affect these other areas of employment law. Until then, navigating this unchartered territory is sure to keep human resources professionals busy in the months to come. 

Malcolm MacKillop is a senior partner, Hendrik Nieuwland is a partner and Amelia Cooke is an associate at Shields O’Donnell MacKillop LLP. Seth Holland is an articling student at the firm.

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