Employer Alert: Change to WSIA as of January 1, 2018

As of January 1, 2018, an employee can claim workers compensation benefits for chronic or traumatic mental stress that is predominantly caused by workplace harassment

In May 2014 I blogged about an administrative tribunal case which concluded that subsections 13 (4) and (5) of the Workplace Safety and Insurance Act (WSIA) were unconstitutional.

January 1, 2018 Change to WSIA

On January 1, 2018 – almost 4 years later – these subsections were repealed and they were substituted with the  following:

(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer 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.

Implications of the Administrative Tribunal Case and the Change to WSIA

As mentioned in my earlier blog, as a result of the administrative tribunal case and the subsequent change to WSIA I believe (i) Employees may start filing workers compensation claims instead of filing for Employment Insurance sickness benefits; and (ii) Employees with chronic or traumatic stress may start asking to return to jobs other than their pre-injury job.

What is Chronic Mental Stress?

The WSIB  has prepared an Operational Policy document (i.e Policy 15-03-14) on chronic mental stress and it was amended on January 2, 2018.  It does not have the force of law but sets out the WSIB’s interpretation on this issue. Of particular interest are the following excerpts from this Policy:

A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a “substantial” “work-related stressor”arising out of and in the course of the worker’s employment.

Workplace harassment will generally be considered a substantial work-related stressor

Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.

Interpersonal conflicts

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict:

• amounts to workplace harassment, or
• results in conduct that a reasonable person would perceive as egregious or abusive.

Standard of proof and causation

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor 

• arose out of and in the course of the worker’s employment, and
•  was the predominant cause of an appropriately diagnosed mental stress injury.

For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury—as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.

Diagnostic requirements

Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

• acute stress disorder
• posttraumatic stress disorder
• adjustment disorder, or
• an anxiety or depressive disorder.

In most cases the WSIB will accept the claim for adjudication if an appropriate regulated health care professional provides the DSM diagnosis. However, in complex cases, for example where there is evidence that a non-work-related stressor(s) may have caused or contributed to the injury, the WSIB decision-maker may require a further assessment, including an assessment by a psychiatrist or psychologist, to help clarify initial or ongoing entitlement.

Operation Policy 15-03-02 which was amended January 2, 2018 sets out the WSIB’s interpretation of Traumatic Mental Stress

Relationship between Mental Stress Claims under WSIA and Harassment Allegations under the Occupational Health & Safety Act

Based on the WSIB’s  Policy 15-03-04, one could argue that if a workplace investigator concludes an employee was subject to workplace harassment and the WSIB concludes this harassment was the predominant cause of an appropriately diagnosed mental stress injury then it appears that the employee would be entitled to workers compensation benefits for chronic mental health stress under the WSIA.

As a result of the recent amendments to Section 13 (4) and WSIB Policies 15-03-04 & 15-03-01 I expect there to be an increase in the number of WSIB mental stress claims.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]