Workplace Safety and Insurance Act Amended to Allow Benefit Entitlement for Chronic Mental Stress
Date: May 29, 2017
The government’s budget implementation legislation, Bill 127, Stronger, Healthier Ontario Act, recently received Royal Assent. Bill 127 includes amendments to the Workplace Safety and Insurance Act, 1997 (WSIA) to allow entitlement to chronic mental stress for workplace injuries that occur on or after January 1, 2018. Previously, subsections 13(4) and (5) of the WSIA and operational policy limited entitlement to benefits for mental stress that was “an acute reaction to a sudden and unexpected event.”
This amendment addresses the uncertainty created as a result of Decision No. 2157/09 of the Ontario Workplace Safety and Insurance Appeal Tribunal (Tribunal). In that decision, the Tribunal ruled that limiting entitlement to only traumatic mental stress as set out in subsections 13(4) and (5) of the WSIA and the Workplace Safety and Insurance Board’s (WSIB) Operational Policy Traumatic Mental Stress violated the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms and were unconstitutional.
The Tribunal reasoned that sections 13(4) and (5) of the WSIA and the Traumatic Mental Stress Operational Policy improperly placed additional restrictions on granting benefits to workers with mental disabilities that do not exist for workers with physical disabilities.
The WSIB has developed a new draft Traumatic or Chronic Mental Stress Operational Policy (Draft Policy) to reflect these amendments. The Draft Policy would replace the existing Traumatic Mental Stress Operational Policy, and as the name suggests, address initial entitlement for both traumatic and chronic mental stress.
Under the proposed approach, the WSIB would create a new, dedicated claims intake process to expedite decision-making for chronic mental stress claims.
Entitlement to chronic mental stress would require a substantial work-related stressor(s) and may include workplace bullying or harassment. Stressor(s) must be excessive in comparison to normal pressures/tensions experienced by workers in similar circumstances and must have significantly contributed to the chronic mental stress. Workers who routinely experience high levels of stress due to the nature of their job will not be excluded simply because all workers in their job experience high levels of stress.
Initial entitlement for work-related chronic mental stress would require a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) by an appropriate regulated healthcare professional, which may include, but is not limited to:
- acute stress disorder
- posttraumatic stress disorder
- adjustment disorder, or
- an anxiety or depressive disorder
The Draft Policy states that ongoing entitlement may require an assessment by a psychologist or psychiatrist at a later date, which suggests that an initial DSM diagnosis by a family physician will be accepted by the WSIB in the normal course.
Workplace bullying is defined in the Draft Policy as unreasonable or inappropriate behaviour directed towards a worker, or group of workers, that creates a risk to health and safety. Such behavior may be repeated over time or may manifest itself in a single incident. In addition, workplace bullying usually involves:
- repeated incidents or a pattern of behaviour that is intended to be offensive or discriminatory towards a particular person or group of people, and
- a real or perceived power imbalance between the person(s) doing the bullying and the person(s) who is the victim of the bullying.
The Draft Policy attempts to exclude entitlement based on “interpersonal conflicts” in the workplace unless the conflict results in threats, abuse, bullying or harassment. It also mirrors the definition of “workplace harassment” in the Occupational Health and Safety Act.
The proposed legislation and Draft Policy would maintain the existing exclusion from benefits for mental stress caused by an employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed, working conditions, disciplinary decisions and termination. The Draft Policy, however, would allow benefits for traumatic or chronic mental stress due to an employer’s actions or decisions that are not part of the employment function (e.g. violence or threats of violence). It would also allow benefits for traumatic or chronic stress that the worker attributes to a combination of the employer’s decisions and other work-related stressors as long as the other workplace stressors are a significant contributing cause of the traumatic or chronic mental stress.
The Bill 127 amendments to the WSIA do not create transitional provisions and would only apply to injuries that occur on or after the coming into force of the provisions on January 1, 2018.
Implications for Employers
These amendments and the Draft Policy will have a significant impact on all Ontario employers covered by the WSIA. A significantly expanded scope of entitlement for mental stress under WSIA will put increased pressure on employers to limit and address stressors in the workplace and to create modified work opportunities that take into account psychological (as opposed to purely physical) restrictions. All employers, specifically those with stressful workplaces, will need to take additional steps to reduce workplace stress and ensure that their workplaces are free from harassment and bullying in order to limit costly and complicated stress-related lost time claims.
Employers who have ongoing mental stress cases should ensure that the events giving rise to these cases have been, and continue to be, well-documented. More generally, employers should be reviewing their practices, policies and procedures in order to ensure that they are protecting themselves to the extent possible from potential mental stress claims.
The WSIB is currently accepting written submissions to the Draft Policy until July 7, 2017. It will be important for employers to remind the WSIB of the importance of clear evidence and a careful review of files in assessing psychological entitlement.
If you require a copy of the Draft Policy, or wish to discuss its potential implications for your business, please contact Hossein Moghtaderi at 416.864.7502, Jodi Gallagher Healy at 519.931.5605, or any member of our Workplace Safety and Insurance Group or your regular Hicks Morley lawyer.
The article in this Client Update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©