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EMPLOYMENT LAW
Oct 21, 2014

Stressing over workers’ compensation

Eliminating the difference between claims for mental stress and physical injuries
    

By Jeffrey R. Smith

If you’re having a bad day, it can sometimes seem like everything is conspiring against you — especially at work. If you have several bad days, the cumulative effect can be daunting. If it gets to the point where you feel you’re so stressed, you can’t function, is it an injury?

There has been a lot of effort to get mental health awareness in the spotlight in recent times. There’s no doubt when someone is not at optimum mental health, it can be a serious situation. And there can be a difference between a serious mental health issue and stress that comes from work or problems at home. But if work-related stress gets to be overwhelming for an employer, is that tantamount to a workplace injury? The answer to that seems to be increasingly yes.

Workers’ compensation regimes in most Canadian jurisdictions allow mental stress in certain circumstances to be claimed as an injury for compensation. However, it’s common that the requirements are different than that for physical injuries. For example, in Ontario, the Workplace Safety and Insurance Act stipulates a worker claiming mental stress is only eligible for compensation if the stress is an “acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment,” essentially ruling out stress that develops from long-term factors or from a traumatic event that could be expected — such as an incident during a fire for a firefighter.

However, this requirement was recently challenged as unfair and discriminatory, since there was no such bar set for physical injuries. An Ontario nurse’s claim for psychological stress from verbal abuse and bullying by a doctor over 12 years was denied by the province’s Workers’ Insurance and Safety Board, but this was overturned by the Workers’ Safety and Insurance Appeals Tribunal. The tribunal agreed with the nurse that it was unfair to apply different standards for mental injuries, which perpetuated the idea that mental injuries weren’t as legitimate as physical injuries and violated the Charter of Rights and Freedoms: see Ontario Workplace Safety Insurance Appeals Tribunal Decision No. 2157/09, 2014 CarswellOnt 6239 (W.S.I.A.T.).

Similar decisions are starting to pop up in other jurisdictions with similar differentiation between physical and mental injuries and their eligibility for workers’ compensation. And, as mental health awareness advocates say, mental illness needs to be taken seriously. But, unfortunately, it isn’t always as easy to identify as a physical injury, so should there be any differentiation?

Most workers face some level of stress at work and everyone handles it differently. What some workers can handle may be too much for others. What’s the threshold where stress can be bad enough that it incapacitates the worker to the point where she can’t work and needs workers’ compensation?

Mental illness can be a tricky thing, and it may not be possible to have a consistent threshold where workers might be eligible for compensation due to mental stress. It may be a situation where one of the most common rules in employment law applies – every case must be evaluated on its own circumstances. And regardless of those circumstances, the worker’s charter rights can’t be violated.

    
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