Ontario could see spike in mental stress claims

Requirement of physical threat when granting benefits eliminated in tribunal decision
By Amanda Silliker
|Canadian HR Reporter|Last Updated: 01/26/2012

Employers in Ontario may be seeing more workers’ compensation claims for traumatic mental stress benefits due to a recent decision by the province’s Workplace Safety and Insurance Appeals Tribunal (WSIAT).

In the past, traumatic mental stress benefits were only granted when a claimant experienced a traumatic event that presented a real or implied threat to her physical well-being. Decision 483/11 held that a physical threat was not required, said Julie-Anne Cardinal, a lawyer at Heenan Blaikie in Toronto.

“The decision is significant because it effectively widens the number of claims that can be made,” she said. “Before, it had to be a physical event that triggered it, but now what they’re saying is it doesn’t have to be a physical event… so this is widening the circumstances under which an employee might be able to get compensation.”

In the case at hand, the claimant was an education assistant who sought benefits for mental stress after she was falsely accused of striking a Grade 5 student in class. The claimant, who was in her 50s and had been an educator for decades, was suspended while the school investigated the allegation. She was then reinstated after being completely exonerated.

A report from the claimant’s physician showed she experienced flashbacks of the moment of her suspension and avoided children, schools and playgrounds. The incident also triggered memories of the sexual and emotional abuse she experienced in her childhood. And the claimant was subsequently diagnosed with major depression.

Although there was no threat to her physical well-being, the tribunal found the events were “objectively unexpected and traumatic,” and resulted in a disabling psychological condition, so it granted the claimant benefits for traumatic mental stress.

“An allegation like that in the context of a teacher can lead to several major repercussions: One, she could be criminally charged; two, she could be precluded from ever teaching again… and three, her reputation will be destroyed in newspaper articles and otherwise, so there’s no question that what happened to her falls within the definition (for traumatic mental stress benefits),” said Howard Levitt, a senior partner at Levitt law firm in Toronto.

To apply for traumatic mental stress benefits, the claimant must first be diagnosed by a physician with an Axis 1 diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). While post-traumatic stress disorder (PTSD) has most often been associated with these claims, this decision confirmed it is not the only diagnosis required for benefits entitlement.

“Any diagnosis under Axis 1 will do. (It does not include) personality disorders but general clinical disorders such as PTSD, major depression, autism, schizophrenia — that sort of thing,” said Cardinal. “So what the board has done is confirmed that ‘Yes, in fact we’re not limiting mental stress to PTSD, which has the physical element in it — any Axis 1 will do.’”

To be eligible for these benefits, the claimant must also prove the event was identifiable, objectively traumatic and unexpected in the normal and daily course of employment, said Stephen Roberts, a partner specializing in workplace safety and insurance law at McTague Law Firm in Windsor, Ont.

Events such as changing work conditions, demotions or performance improvement plans would not meet the criteria, said Levitt. These events are expected in the course of employment and the traumatic event must be “totally unrelated to the employer’s workplace decisions,” he said.

This decision also broadens the allowable Workplace Safety and Insurance Board (WSIB) claims because it considers a whole category of events that occur in the workplace that would previously not have been allowed, said Roberts.

“Maybe it’s a customer reacting adversely to them, maybe it’s a co-worker, maybe it’s a third party, a supplier,” said Levitt. “It’s going to be a field day compared to what there’s been before because they don’t need to show any physical risk which, frankly, would cut off 98 per cent of those claims before.”

This decision means employers might see more claims — and more successful claims — but they’ll have to wait and see what decisions will be made and which claims will be successful, said Cardinal.

“When there is a change in the law, there tends to be a bit of a dust-up initially, because no one is quite sure how the dust will settle and where,” she said. “So, there’ll be an increase in claims to a certain extent and, over the course of the next little while, we’ll see where the dust settles.”

Employers should make sure workplace investigations are conducted in a fair manner, said Roberts. They should also offer all implicated employees any counselling they may need, he said. Encouraging employees to use employee assistance programs (EAPs) and seek mental health assistance can help them manage their stress and reduce the impact on employers, said Cardinal.

“Employers should bear in mind the trend in workers’ compensation is it’s no longer limited to just physical injuries. Mental health is, to a certain extent, just as important to a human’s well-being, so having the right programs and support in place is a really great positive step to minimizing any insurance premiums and compensation that may have to be paid out,” she said.

And having an inviting and positive work environment that employees want to return to will help reduce the likelihood of these claims, said Levitt.

“Most of these bogus claims in this area and all others are because the workplace is so inimical that employees don’t want to work there and they are looking for excuses to get free compensation,” he said. “So having a happier workplace with positive morale is going to prevent 90 per cent of these cases.”

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