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The injuries we don’t see

Mental injuries are receiving more attention for workers’ compensation and the threshold is changing

By Jeffrey R. Smith

Things happen at work and in life that can really stress people out.

Sometimes, if something really bad happens, that stress can be more serious and lead to depression or post-traumatic stress disorder. Someone who suffers from such a condition may have difficulties functioning in everyday life, and that includes going to work.

When someone has such high levels of stress that cause psychological illness, should they be treated as if they were physically injured? It may be a psychological injury can hurt a person’s ability to work as much, or more, than a physical injury. If the cause of that injury stems from the person’s job, should that person be eligible for workers’ compensation benefits as they would if physically injured?

It seems the answer is increasingly becoming yes. While many Canadian jurisdictions have allowed for mental stress to be compensable under workers’ compensation legislation, in most cases there are restrictions. In many jurisdictions, people who only suffer mental stress arising out of an “acute reaction to a traumatic event” at work to be eligible for benefits. But this is changing.

Some courts are starting to find that gradual, cumulative stress can be eligible, too. The British Columbia government is planning on changing its workers’ compensation benefits to include cumulative stress, a change from the current law using the traumatic event standard.

The Ontario Workplace Safety and Insurance Tribunal recently made its own reconsideration of benefits, finding the province’s old standard of only granting claims for stress from life-threatening events or witnessing horrific accidents wasn’t enough. The tribunal decided any stress-causing event that is unexpected and causes a certain level of psychological reaction could be eligible for benefits.

Courts, tribunals and workers’ compensation boards have made it clear normal workplace stresses that are expected and part of the workplace environment are not eligible for benefits. But what is the threshold? In cases where something unexpected causes stress that affects a person psychologically, should it just be treated like a physical injury in terms of workers’ compensation benefits? Should a person’s psychological makeup be a factor? Should there be a higher bar to prove mental injury than physical injury or is that discriminatory?

The workers’ compensation landscape is changing as awareness of stress and mental illness increases, and as more jurisdictions follow B.C.’s lead there is likely going to be an increase in this type of claim. Which might make sense, because sometimes the worst injuries can be under the surface.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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