Mental Stress Provisions of WSIA are Unconstitutional
Recently, the Workplace Safety and Insurance Appeals Tribunal (“the Tribunal”) issued a decision significantly expanding employees’ entitlement to workplace safety and insurance benefits for mental stress.
Subsections 13 (4) and (5) of the Workplace Safety and Insurance Act (the “Act”) provide, in part, that a worker is not entitled to collect benefits for mental stress unless the stress is caused by an acute reaction to a sudden and unexpected event arising out of and in the course of his or her employment. The types of sudden events that have led to benefits being paid in the past were serious such as an assault at work. Previously, benefits were often denied if mental distress was caused by an employer’s decision to change the work performed, or the working conditions, or to discipline the worker.
In this case, a nurse 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 treated badly by a fellow doctor for a period of 12 years. She claimed benefits under the Act. 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 event.
The Tribunal concluded that parts of subsections 13 (4) and (5) of the Act and the WSIB’s Traumatic Mental Stress Policy violated section 15(1) of the Charter and could not be saved by section 1. That is, the sections are unconstitutional because they treat workers with mental disabilities differently than workers with physical disabilities. The Tribunal decided not to apply these sections to the nurse’s circumstances and found that she could receive WSIB benefits for mental stress.
Technically, other Tribunal members are not required to follow this decision. However, it is likely to be quite persuasive in future mental stress cases at the Tribunal.
If it is relied on in the future, it will significantly broaden the claims that employees can make for mental stress benefits to the WSIB. Employees may also elect to claim WSIB benefits for mental stress instead of EI sickness benefits.
It also means that employees may be able to require the employer to accommodate them in a new position if they have been receiving WSIB benefits for mental stress. 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 her 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 you are unsure whether to file a workplace injury compensation claim, or if you think something at work has caused a mental health disorder and you want to know whether you are entitled to workplace injury benefits, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).
For additional blogs about workplace safety, see here.
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