Many employees who are injured or become ill because of their job may claim for benefits from the Worker’s Safety and Insurance Board (WSIB). If the claim is successful, WSIB benefits may include compensation for lost earnings, future economic loss, or health care benefits.
While mental health issues are becoming more prevalent, it continues to be difficult to prove that the workplace has caused mental stress. Currently, the Workplace Safety and Insurance Act (the “Act”) limits claims for mental stress to acute reactions to a sudden and unexpected traumatic event during employment. For example, witnessing a colleague severely injured in the workplace. Employees struggling with mental health issues because of prolonged workplace trauma continue to face obstacles accessing WSIB benefits.
As I have written before, the section of the Act dealing with mental stress was found to be unconstitutional by the Workplace Safety and Insurance Appeals Tribunal. However, the Act still includes the restriction on claims for mental stress and the WSIB continues to follow the Act.
A recent article reported that the WSIB is discussing amendments to the Act with the Ministry of Labour. Such amendments would allow greater access for employees who suffer mental health issues because of workplace trauma.
This is certainly a positive step for disabled employees. However, I would argue that even now the WSIB does not have to follow the mental stress provision of the Act because it has been found unconstitutional. By continuing to apply this restriction, the WSIB is treating physical and mental disabilities differently and discriminating against employees suffering from mental illnesses.
Even though claims for mental stress in the workplace are limited through the WSIB, employees may have other legal avenues to pursue. For example, employees can claim discrimination under the Ontario Human Rights Code if an employer is treating them differently because of a mental health disability.
If you are unsure whether to file a WSIB claim, or if you are dealing with a mental health issue at work and need legal advise, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).
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