Ontario Administrative Tribunal Declares Legislation Denying Benefits to Workers with Mental Disabilities Unconstitutional

On April 29, 2014 the Ontario Workplace Safety & Insurance Appeals Tribunal (“the Tribunal”) concluded that part of sections 13 (4) and 13(5) of the Workplace Safety & Insurance Act (“the Act”)  is unconstitutional because this law treats workers with mental disabilities differently than workers with physical disabilities.

Section 13 of the Act

Section 13 (4) and 13(5) of the Act provide, in part, that a worker is not entitled to collect benefits for mental stress unless it is an acute reaction to a sudden and unexpected event arising out of and in the course of his or her employment. Benefits are not granted if the mental distress is caused by the employer’s decisions or actions relating to the worker’s employment including a decision to change the work performed, or the working conditions, or to discipline the worker or to terminate the employment.

The Facts

In this case, a nurse, claimed workers compensation benefits because she was unable to work because of an adjustment disorder with mixed features of anxiety and depression that was caused by a co-worker. In particular, she claimed she was subject to ill treatment by a doctor for a period of 12 years. Initially she was denied benefits because she did not satisfy the conditions of section 13 of the Act; that is; her mental stress was not caused by an acute reaction to a sudden and unexpected event.

Implications of this Decision

Until now, most employees claim for benefits for mental stress under an employer’s sick leave policy, short-term disability plan, or long-term disability plan if such plans exist.

If no such plan exists then the employee is placed on an unpaid sick leave and the employee can apply for employment insurance (EI) sick benefits.

1. Employees may start filing workers compensation claims instead of filing for EI sickness benefits.

If this decision is not overturned, it could have SIGNIFICANT implications on small employers in the private sector who usually provide minimal (if any) sick or disability benefits for workplace absences caused by mental disabilities.

In our experience, employees go on sick leave because of the mental stress caused by work for various reasons. It may be because of the way a co-worker or supervisor is treating the employee as the nurse alleged in this case.  Or because the employee’s workload is not manageable.  Or because of a poisoned work environment that is caused by sexual or other harassment. The list goes on and on.

The number of recognized mental disorders has increased significantly in recent years as evidenced in the Diagnostic and Statistical Manual of mental Disorders, 5^th Edition which was published in 2013.

If an employer does not offer sick benefits or disability benefits then we anticipate that employees will start filing for workers compensation benefits in these scenarios because workers compensation benefits are much more generous than EI sickness benefits.

If these claims are granted then employer worker compensation costs will increase.

2. Employees with mental stress will start asking to return to jobs other than the pre-injury job

Under the Act, an employer who employs 20 or more employees generally has a duty to re-employ an injured worker who has at least one year continuous service.

In particular, under section 41 of the Act provides that if a worker is medically able to perform the essential duties of her pre-injury employment, then the employer shall, among other things, offer to re-employ the worker in the position that the worker held on the date of injury. If however the worker cannot perform the essential duties of her pre-injury employment then the employer must offer the worker the first opportunity to accept suitable employment that may become available with the employer.

If a worker claims that his supervisor is causing the mental stress then this worker will no doubt be seeking suitable employment in a different job and/or department. In our experience, a worker’s doctor will provide a medical opinion which provides that a supervisor is causing the worker’s mental stress, if asked.

If these requests are accepted by the WSIB then an increased burden will be placed on organizations who employ 20 or more employees to find suitable work for mentally stressed employees. This could cause organizational havoc in some workplaces.

Doug MacLeod has been advising Ontario employer’s for over 25 years. If you have questions about your organization’s obligations in connection with a disabled or injured employee under the Act or the Ontario Human Rights Code, he can be reached at [email protected] or 416 317-9894.