Copyright 2014, Hicks Morley Hamilton Stewart Storie LLP Page 1

Minimize Your Risk: Mental Stress And The WSIB

By Joseph Cohen-Lyons and Samantha C. Seabrook Mental health in the workplace has been the focus of both employer and legislative interest in recent years. As employers grapple with this increased focus and attempt to manage mental health issues that arise in the workplace, it is important that they understand how the Ontario workers’ compensation regime addresses work-related mental health problems or illnesses. This paper reviews the areas of entitlement for mental stress-related claims, provides guidance on best practices that employers should follow to minimize the risks and costs associated with these types of claims, and looks to possible future expansion of mental stress entitlement in Ontario.

The Workplace Safety and Insurance Act1 and Workplace Safety and Insurance Board (“WSIB”) policy currently allow for two areas of entitlement for work-related mental stress: psychotraumatic disability and traumatic mental stress. Each area of entitlement has specific eligibility criteria.

Psychotraumatic Disability Claims Psychotraumatic disability refers to mental illness that flows from a physical injury or illness in the workplace. The WSIB’s Psychotraumatic Disability Policy2 states that psychotraumatic disability arises as a result of one of the following:

Organic brain syndrome secondary to traumatic head injury, toxic chemicals including gases, hypoxic conditions, or conditions related to decompression sickness.

As an indirect result of a physical injury: an emotional reaction to the accident or injury, severe physical disability/impairment, or a reaction to the treatment process.

1 S.O. 1997, ch. 16 (“WSIA”).

2 WSIB Operational Policy Manual (“OPM”) Document No. 15-04-02.

Copyright 2014, Hicks Morley Hamilton Stewart Storie LLP Page 2

Related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.

Psychotraumatic disability benefits may be allowed where the worker has an emotional reaction to a workplace physical injury or illness, or for the treatment or consequences of that injury or illness. Where a diagnosis of psychotraumatic disability or impairment is work-related, entitlement may be granted provided the mental disorder manifests within five years of the injury or last surgical procedure.

Psychotraumatic disability resulting from workplace injuries can contribute to longer lost time periods, and corresponding increases in claims costs. Psychotraumatic disabilities may also play a significant role in the return to work process, as employers will have to consider any restrictions or limitations relating to the compensable mental disorder when making offers of modified work.

Traumatic Mental Stress The WSIB also allows entitlement for traumatic mental stress benefits. These are benefits that are provided where there is no actual physical injury in the workplace, but where the employee suffers from a work-related psychological condition.

Section 13(5) of the WSIA limits a worker’s traumatic mental stress entitlement to situations where there is “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.” Furthermore, it specifically prohibits entitlement for mental stress arising from an “employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.”

The WSIB’s approach to adjudicating traumatic mental stress claims is set out in its Traumatic Mental Stress Policy.3 This Policy implements section 13(5) of the WSIA by limiting entitlement to mental stress that arises from events that are clearly and precisely identifiable, objectively traumatic and unexpected in the normal or daily course of the worker’s employment or work environment.

The Traumatic Mental Stress Policy also requires that the traumatic event result in an “acute reaction,” which is defined as a “significant or severe reaction by the worker to the work-related traumatic event that results in a psychiatric or psychological response.” To be compensable, the psychiatric or psychological

3 OPM Document No. 15-03-02.

Copyright 2014, Hicks Morley Hamilton Stewart Storie LLP Page 3

response must result in an Axis I Diagnosis under the DSM-IV,4 including anxiety disorders like post-traumatic stress disorder, mood disorders, dissociative disorders and sleep disorders.

Finally, like section 13(5) of the WSIA, the Traumatic Mental Stress Policy excludes entitlement for mental stress caused by a worker’s reaction to an employer’s work-related decisions or actions.

The WSIB’s Traumatic Mental Stress Policy lists examples of “traumatic events”, including:

witnessing a fatality or a horrific accident;

being the object of physical violence;

being the object of death threats;

being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others; and

being the object of harassment that includes physical violence or threats of physical violence.

The Cases While the above examples illustrate situations that present real or implied threats to physical well-being, recent WSIAT decisions have broadened the scope of issues for which entitlement will be granted, and have concluded that entitlement is not limited to these type of events.

In Decision 483/11,5 the WSIAT considered “traumatic event” and decided that section 13(5) of the WSIA did not require a real or implied threat to physical well-being for entitlement to benefits for traumatic mental stress. In this case, the worker was an educational assistant who was accused of striking a student. In accordance with the school board’s protocol, the educational assistant was suspended pending an investigation of the allegation. The investigation eventually exonerated the worker; however, the allegations, coupled with the worker’s own experience of childhood physical abuse, were a “terrible blow” to the worker. She was diagnosed with depression. The WSIB denied the worker’s claim for traumatic mental stress entitlement on the basis that the events were not “traumatic” within the meaning of the Traumatic Mental Stress Policy.

The WSIAT Panel was satisfied that the worker suffered from depression, meeting the definition of an “acute reaction,” and that the allegation was a “sudden and unexpected traumatic event” within the meaning of section 13(5) of the WSIA. The Panel also found that, while the WSIA did not appear to limit

4 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.

5 2011 ONWSIAT 2257 (CanLII).

Copyright 2014, Hicks Morley Hamilton Stewart Storie LLP Page 4

sudden and unexpected traumatic events to events that are a real or implied threat to a worker’s physical well-being, WSIB policy appeared to require an actual or implied threat of physical harm. The WSIB provided submissions to the Panel on the intent of the Traumatic Mental Stress Policy, acknowledging that, while generally an actual or implied threat to physical well-being will be involved, it is not a requirement to find a “sudden and unexpected traumatic event.” The Panel accepted this reasoning, finding that the worker in this case experienced an acute reaction to a sudden and unexpected traumatic event, and therefore entitlement for traumatic mental stress was in order.

Prior to Decision No. 483/11, WSIAT decisions had required a real or implied threat to physical well-being in order to grant entitlement for traumatic mental stress. Decision No. 483/11 therefore expanded the scope of entitlement for traumatic mental stress benefits by broadening the definition of “traumatic event.” However, more recent WSIAT decisions have pushed back on this broadened definition of “traumatic event.”

In Decision No. 1791/12,6 the WSIAT Vice Chair found that while the list of examples of traumatic events in the WSIB policy was not exhaustive, it did provide a useful guide as to the type of traumatic events that would attract entitlement. Further, the Vice Chair found that the conclusion in Decision No. 483/11 was based on the merits of that case, and that other WSIAT decisions on traumatic mental stress were not narrow in their approach to the definition of a traumatic event.

In Decision No. 1791/12, a police officer was accused of sexual assault and was suspended pending investigation of the allegations. While off work, the officer exhibited what his doctor considered to be symptoms of post-traumatic stress disorder. The officer felt well enough to return to work when he was cleared of the allegations. The Vice Chair compared this situation with that in Decision No. 483/11, where the educational assistant did not recover once cleared of allegations, and in fact, manifested mental stress upon her attempt to return to work. The Vice Chair also found that the police officer did not receive an Axis I DSM-IV diagnosis. Further, the events in this case involved use of force, for which an investigation should be expected to take place. The police officer was found not to be worried about the investigation because, in his view, he had behaved appropriately. The Vice Chair concluded that, while the accusation was upsetting to the police officer, it was not traumatic.

The competing lines of case law at the WSIAT leave employers with an unclear definition of “traumatic event.” This definition is further clouded when we consider that the WSIB Traumatic Mental Stress Policy excludes entitlement for chronic

6 2013 ONWSIAT 2277 (CanLII).

Copyright 2014, Hicks Morley Hamilton Stewart Storie LLP Page 5

mental stress, or mental stress that develops “gradually over time due to general workplace conditions.” For example, in Decision No. 1252/12,7 the worker’s job involved meeting with sex offenders, reviewing their records and reading about their crimes. The Vice Chair acknowledged that the worker suffered stress from the emotional grind of her job. However that stress was chronic stress and was not an acute reaction to a traumatic event. The worker did not meet the criteria for entitlement.

Conclusion Despite some inconsistencies in the WSIAT case law, there are a few common elements which provide guidance on handling mental stress claims.

First, while a real or implied threat of physical harm may not be required, there still must be a traumatic event that is objectively traumatic and identifiable before entitlement will be granted.

Second, the cumulative effects of an employment relationship or hazardous workplace do not warrant entitlement for traumatic mental stress. These situations will generally be considered to create chronic stress, and not an “acute reaction” to a sudden and unexpected traumatic event as required by section 13(5).

Finally, the nature of the workplace and the worker’s position will be important in determining entitlement. In this regard, adjudicators at the WSIB and WSIAT will look at what the worker should have expected to occur in the normal course of his or her employment to ensure the claim meets the requirements of section 13(5) for a “sudden and unexpected” traumatic event.

Addressing Mental Health In The Workplace Mental stress claims should be approached with the same objectives of accommodation and return to work used for physical injuries, with some important adjustments in implementation. The nature of mental health issues or illnesses means they have an element of individuality which must be assessed when considering offers of modified work and return to work plans. Mental health issues and illnesses may not be conducive to “common” restrictions, like those associated with a back injury. With this in mind, employers are best served by working with the worker and his or her treating doctor, psychologist, or psychiatrist to determine how best to reintegrate the worker into the workplace.

Having said this, prudent employers will implement an overall strategy for addressing mental health in the workplace. The Canadian Standards Association’s Psychological Health and Safety in the Workplace standard (the

7 2013 ONWSIAT 2453 (CanLII).

Copyright 2014, Hicks Morley Hamilton Stewart Storie LLP Page 6

“CSA Standard”) is a useful resource for implementing strategies to address workplace mental health issues. The Canadian Mental Health Commission has also released “Psychological Health and Safety: An Action Guide For Employers,” a companion guide to the CSA Standard. Both documents have detailed information on steps employers can follow to assess mental health in the workplace, and put in place systems to improve and monitor psychological health and safety programs.

Implementing strategies to address workplace mental health now may place Ontario employers ahead of potential developments in workers’ compensation for mental stress. Recently, British Columbia expanded the scope of entitlement for work-related mental health illness when it amended the Workers’ Compensation Act to include compensation for mental disorders predominantly caused by a “significant work-related stressor, including bully or harassment.”8 These amendments were the result of constitutional and human rights challenges to limited entitlement for traumatic mental stress. Like the cases that precipitated change in British Columbia’s workers’ compensation regime, Ontario is experiencing a number of constitutional and human rights challenges to section 13(5) of the WSIA and the WSIB’s Traumatic Mental Stress Policy. Of most concern are those challenges aimed at the exclusion of entitlement for chronic stress claims. These challenges seek to expand entitlement to include situations of chronic stress. Employers which address psychological health and safety in the workplace now may be cultivating an environment that will limit future claims for chronic stress, if this becomes an area of entitlement in Ontario.

8 Workers’ Compensation Act, R.S.B.C. 1996, ch. 492, s. 5.1.