If you are an employer in Ontario and you are subject to the provisions of the WSIB, you should be aware that your employees may now have the ability to make a whole new class of claims, due to Decision 2157/09. For businesses, mental illness is estimated to cost the Canadian economy in excess of $50 billion dollars annually. The direct cost to business in lost productivity and turnover is more than $6 billion dollars. Mental illnesses account for approximately 30 percent of short and long-term disability claims. In fact, they are the fastest growing disability claim in Canada. With the possible further changes to the legislation, employer costs may keep rising.

What does it mean for employers?

Decision 2157/09 has the potential to have a significant impact on employers in Ontario. It opens the door for claims that were previously not allowable under WSIB. The two main areas of concerns are: 1) the ability of the WSIB to adequately assess and manage mental health claims; 2) the creation of a new category of medical claims under WSIB will obviously increase costs to employers; While WSIB has previously assessed and managed mental health claims secondary to traumatic events in the workplace, these claims have had a clear trigger, which can be linked to the causation of symptoms, and severity can be assessed through viewing medical assessments and care that were required and initiated immediately following the traumatic event. This will not be the case with claims that may occur secondary to Decision 2157/09. These mental health claims are likely to have symptoms that occur over time, with no single event trigger. The employee may have a predisposition or past history of mental health issues, which the board should investigate, but may not have the experience to investigate. Unfortunately, the board has neither assessed nor managed these claims previously, which implies that there will be a steep learning curve for them, which will cost you, the employer!

What Employers can proactively do?

Penny Buckner, RN, Director of Workplace Medical Corp. Disability Management Division says this new legislation could have a significant impact on employers:
Proactively, employers should ensure that they have policies in place to prevent harassment and bullying, and all managers should receive training regarding these policies to ensure that they are adhered to. Employers should also review the status of their resources and support systems in place to manage the medical issues that may arise through these claims,” advises Penny.
Employers should ensure that they are protecting themselves to the greatest extent possible from potential mental stress claims. They can do this by:

  • Employers who have ongoing mental stress cases should ensure that the events giving rise to these cases have been, and continue to be, are addressed and well documented.
  • Adopting and enforcing policies against illegal discrimination and sexual harassment;
  • Ensuring that managers and supervisors know that actions that cause emotional distress, even if they are related to a covered injury, can result in civil liability

What constitutes a claim of mental stress?

The panel compared claims of mental stress over time to those of physical injuries over time. To determine causation, the tribunal considered whether the workplace injuring process made a “significant” contribution to the development of the injury or condition.
The tribunal said: “The evidence demonstrates that workplace stressors are not limited to ‘job strain,’ but rather, there are many other types of non-traumatic workplace stressors that may be associated with mental stress.” The panel noted that a determination is more a consideration of whether the evidence of work-relatedness of mental disorders is distinguishable from physical injury claims to the extent that it warrants different treatment from physical claims.

The kinds of work which has been shown to contribute to mental distress:
  • Imposition of unreasonable demands
  • Withholding of adequate levels of materially important information, whether deliberately or by neglect
  • Refusal to allow the exercise of reasonable discretion over the day to day means, manner, and methods of work
  • Failure to acknowledge or credit contributions and achievements
  • Failure to recognize and acknowledge the legitimate claims, interests, and rights of others (unfairness, or justice at work)

Changes in the legislation:

The Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional. The panel found that chronic workplace-related stress could be a valid claim under the province’s workplace insurance system. Currently, the Workplace and Safety and Insurance board only compensates workers for physical injuries suffered on the job or acute psychological injuries that follow a “traumatic” event.

  • Other workplace stressors are not limited to ‘job strain,’ but rather, with mental disorders, including bullying, lack of managerial support, interpersonal conflicts, and humiliating events.
  • The WSIB will only consider paying benefits for physiological conditions where the worker’s doctor or psychologist has diagnosed a psychiatric condition.
  • A claim of mental stress cannot arise solely from an employment decision, such as termination, demotion, transfer or disciplinary action.

What to expect from your medical department

Employers should utilize their Company Doctor or medical department to provide confidential services to support employees. Your medical department should also serve as an intermediary between the employee and employers, as well as between the employee’s family doctor and your medical department. Your medical department can also provide independent medical advice and support concerning potential workplace stressors. If an employee goes on leave, your medical department can perform a Time Loss Review to assess the amount of time off required, and assist in workplace accommodation and return to work plans if necessary Decision 2157/09 has opened the door to further potential legislative changes – in relation to claims for mental stress; and it has served to highlight the ever-increasing importance of promoting and protecting mental wellness in Ontario workplaces. Many resources are available to aid workplaces seeking to address the psychosocial hazards responsible for work-related mental stress. A new workplace mental health Standard was published in 2013. The standard, entitled Psychological health and safety in the workplace—Prevention, promotion, and guidance to staged implementation (CAN/CSA-Z1003-13), was developed by the Canadian Standards Association (CSA) and the Bureau de normalisation du Quebec (BNQ). It was commissioned by the federally-funded Mental Health Commission of Canada (MHCC). Another resource is the Mental Injury Prevention Tool Kit developed by the Occupational Health Clinic for Ontario Workers (OHCOW) in partnership with several unions, academics, and others.

To read the official documents detailing the ruling, click here. WSIB official site: http://www.wsib.on.ca