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WSIB Coverage for Chronic Mental Stress

On January 1, 2018, amendments to the Workplace Safety Insurance Act ("WSIA") came into effect to create coverage for work-related chronic mental stress.  The changes have prompted some to ask whether we will see a flood of claims for chronic mental stress.  As a lay observer on matters of WSIB coverage, I am inclined to think that these changes will not prompt a flood of claims, at least not yet.  

 

The scope of coverage for work-related chronic mental stress is defined by the WSIB's new Operational Policy for Chronic Mental Stress[1].  The policy provides that 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.  The policy says that the WSIB must be able to identify the particular event or events that gave rise to chronic mental stress: 

 

“In order to consider entitlement for chronic mental stress the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress.  This means that the event(s) can be confirmed by the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others.” 

 

Furthermore, the policy indicates that chronic mental stress brought on by “routine stress” will only succeed where the claimant’s employment exposes him or her to extreme danger or matters of life or death:   

 

“In some cases, therefore, consistent exposure to a high level of routine stress over time may qualify as a substantial work-related stressor.

Jobs with a high degree of routine stress would typically have one or both of the following characteristics:

  • responsibility over matters involving life and death, or
  • routine work in extremely dangerous circumstances.”

Reading between the lines, the policy is really geared to claims for mental stress sustained by first responders and front line emergency room staff.  No doubt we will see an increase in claims by workers in those professions.  However, the policy largely excludes claims for chronic mental stress brought on by routine stress in workers in other professions.  As such, the new policy is unlikely to trigger a flood of new claims. 

 

The real question, I think, is not whether the policy is too broad, but whether it is too narrow to withstand a Charter challenge.  Section 15 of the Canadian Charter of Rights and Freedoms prohibits legislation from discriminating upon various grounds, including mental and physical disabilities.  The Ontario Government extended WSIB coverage to include claims for chronic mental stress in response to a 2014 decision of the Workplace Safety and Insurance Tribunal which concluded that the blanket prohibition on compensation for mental stress that had existed up until that time violated the section 15 of the Charter[2]. If a blanket policy of excluding claims for work-related mental stress violates the Charter, it strikes me that a policy that excludes claims for work-related stress suffered by a worker other than a first responder or front line hospital staff may be equally difficult to defend.  The new policy may not survive a Charter challenge.  We may yet see a flood of mental health claims.   

 

Fil Mendes is a civil litigator at Madorin, Snyder.  Madorin, Snyder LLP is a full service law firm servicing Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  

    

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

 

[1]  www.wsibresources.ca/CMSPolicyPDFS/150314advanceversion.pdf

[2]  Decision No. 2157/09, 2014 ONWSIAT 938

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