Workers Health & Safety Centre

Restricting comp claims for chronic mental stress violates Canada’s Charter

Restricting comp claims for chronic mental stress violates Canada’s Charter
Affected workers may now be entitled to compensation from Ontario’s Workplace Safety and Insurance Board (WSIB) for work-related chronic mental stress.
 
A recent decision (No. 2157/09) by Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) has ruled that limiting entitlement to compensation for mental stress caused only by an “acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment” violates the equity guarantee in part 1, section 15 of the Canadian Charter of Rights and Freedoms (the Charter). 
 
These entitlement limits are set out in subsections 13(4) and (5) of the Workplace Safety and Insurance Act (WSIA) and the WSIB’s Traumatic Mental Stress (TMS) policy.
 
The affected worker in this ground-breaking case had filed a claim for benefits with the WSIB because of mental stress. The claim was denied based on WSIA subsection 13(4) and (5) and the TMS policy. An appeal was launched and the Tribunal Panel found that the worker would be entitled to benefits if not for the entitlement limitations in the WSIA. The affected worker challenged these findings based on the Charter.
 
The worker’s position focused on how the WSIA treats persons with mental injuries different than those with physical injuries.
 
The Tribunal Panel hearing this case decided they would not apply the WSIA subsections in question or the TMS policy as they “infringe the workers right to equality under section 15 of the Charter.”  As mentioned, the Tribunal Panel had previously concluded (Decision No. 2157/09I) that the worker’s appeal would succeed but for these subsections and the policy. As such, the worker’s appeal was allowed.
 
Many expect this ruling will lead to the revival of claims previously denied on the basis of WSIA subsection 13(4) and (5) and scores of new claims. 
 
Without preventive actions at the workplace level, mental stress will continue to be a significant burden on affected workers and employers.
 
For affected workers, mental stress can be extremely debilitating on its own leading to depression, anxiety and sleep disorders. Research also suggests stress is a significant contributing factor to health impacts ranging from the common cold and musculoskeletal disorders to heart disease and cancer.
 
For businesses, mental illness is estimated to cost the Canadian economy in excess of $50 billion dollars annually. Direct cost to business in lost productivity and turnover is more than $6 billion dollars. Mental illnesses account for approximately 30 per cent of short and long-term disability claims. In fact, they are the fastest growing disability claim in Canada.
 
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.
 
For our part, the Workers Health and Safety Centre continues to assist workplace parties through training programs and information services aimed at raising awareness about work-related mental stress and targeting prevention at the workplace level.
 
Want to read the WSIAT Decision No. 2157/09?
 
Want to learn more about related WHSC training?  Contact WHSC and ask to speak with a Training Services Representative.
Call:   1-888-869-7950
Visit:   www.whsc.on.ca
Email: contactus@whsc.on.ca