Mental distress compensation awarded by Ontario tribunal

Standard restricting workers compensation for mental stress to that caused by sudden and unexpected events discriminatory

The limits on chronic mental stress claims in the Ontario Workplace Safety Insurance Act (WSIA) are contrary to the Canadian Charter of Rights and Freedoms, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The tribunal refused to uphold the legislation’s limits on mental health claims, allowing workers with mental stress claims not based on sudden, traumatic and unexpected events to receive compensation under the WSIA.

The claimant worker was a nurse at a hospital who was mistreated by a physician for 12 years. The physician yelled at the nurse and made demeaning comments about her in front of both colleagues and patients. However, there was no physical mistreatment. Even though the nurse and co-workers complained about the physician’s behavior to management, no action was taken against the physician. Instead, management advised the nurse that her duties would be reduced, though her job title and classification would not change. The nurse claimed workplace stressors led to her diagnosis of adjustment disorder with mixed features of anxiety and depression.

The nurse brought an application for damages due to mental stress to the Ontario Workplace Safety and Insurance Board (WSIB), but her application was denied. She appealed, alleging that the mental stress provisions in the WSIA violated her section 15 equality rights under the charter.

Workers compensation

To be eligible for compensation through the WSIA, claimants only need to show they fall under the provision of the WSIA. Unlike civil claims, compensation is not based on fault; there is no need to show the employer was negligent. As all employers contribute to the compensation scheme, workers also do not have to worry their claims will not be paid out. However, in exchange for these benefits, workers whose claims fall under the WSIA are precluded from suing their employer in civil court.

The current WSIA legislation and associated policy manual differentiates between claims for physical injury and mental stress. Sections 13(4) and 13(5) exclude mental stress claims from compensation, unless 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.” This means workers with mental injuries that are gradual onset or workers whose acute mental stress is attributed to traumatic events that are not unexpected in their type of employment are not eligible for compensation under the WSIA.

Stress provisions violate charter guarantee

Section 15 of the charter guarantees that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” The tribunal found that the legislation drew a distinction between workers with physical injuries and workers with mental injuries that was “substantively discriminatory” and therefore violated the charter.

The law creates a disadvantage for workers with mental stress claims that are not traumatic, sudden and unexpected. It deprives claimants of immediate financial compensation; to receive compensation for their injury, a worker must pursue a more costly and complex avenue for compensation — a tort remedy, where the worker must prove the employer’s negligence and has no security of payment.

The tribunal also recognized that by limiting mental stress claims, the legislation perpetuates the stereotype that mental illness is due to personal weakness, and those with mental illness are undeserving of protection by workplace insurance schemes.

The tribunal also found that the WSIA limits mental health claims based on a false belief that it is more difficult to establish the work relation of mental stress claims. It concluded the work-relatedness of mental injury claims is not distinguishable from the work-relatedness of physical injury claims. Both types of claims are challenging and there is no agreed-upon test on how to determine causation, said the tribunal.

The tribunal concluded that the limitations of mental stress claims under the WSIA violate s. 15 of the charter and cannot be justified. The tribunal thus refused to limit compensation of mental health claims to claims based on sudden, traumatic and unexpected events and awarded the nurse compensation for her mental stress claim.

Lessons for employers

Although the tribunal decision is not binding, only persuasive, chronic mental stress claims can be compensated. As a result, employers may no longer be exposed to civil claims for emotional distress along with claims for moral, punitive and aggravated damages when an employee suffers mental distress in the workplace. Employers are well advised to review their policies and procedures for health-related claims. How this will effect WSIB premiums will depend on whether future applications for mental distress benefits under the tribunal will be successful.

Lessons for employees

The decision means that employees with chronic mental distress claims may be entitled to compensation under the WSIA. Employees with mental stress claims who proceed under the WSIA may lose their right to bring a civil claim and other claims for additional damages. However, employees would not need to prove negligence and can receive compensation for their losses pursuant to the WSIA.

For more information see:

• Ontario Workplace Safety Insurance Appeals Tribunal Decision No. 2157/09, 2014 CarswellOnt 6239 (W.S.I.A.T.).

Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique located in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.

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