Previously entitlement to benefits for a claim "was limited to instances where there was a real or implied threat on a person's physical well-being"
It seems as though Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) has expanded the scope of entitlement to benefits arising from traumatic mental stress (TMS) claims.
Previously, an entitlement to benefits for a TMS claim “was limited to instances where there was a real or implied threat on a person’s physical well-being.”
WSIAT decision 483/11 changed, or at the very least provided clarity to, what will now be considered a traumatic event worthy of compensation.
The employee in this case was an educational assistant with a school board who was accused of striking a nine-year old Grade 5 student in the course of her employment.
The school followed established protocol informing the employee of the allegations and suspending her pending the outcome of an investigation by the Children’s Aid Society.
The investigation absolved the employee, she was reinstated and attempted to return to work about two months after she was confronted. The employee, however, was devastated since being faced with the allegations.
She was avoiding children, schools and playgrounds and started having flashbacks of sexual and emotional abuse she experienced during her childhood.
In fact, the employee received an AXIS I diagnosis from her psychiatrist which revealed she was experiencing major depression.
The employee applied for TMS benefits under section 13 of the Workplace Safety and Insurance Act, claiming in accordance with subsection five that she experienced an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of her employment.
The Workplace Safety and Insurance Board’s (WSIB) policy 15-03-02 defines a “sudden and unexpected traumatic event” as being clearly and precisely identifiable, objectively traumatic and unexpected in the normal or daily course of the worker’s employment or work environment.
The policy further states sudden and unexpected traumatic events include:
•witnessing a fatality or a horrific accident
•witnessing or being the object of an armed robbery
•witnessing or being the object of a hostage-taking
•being the object of physical violence
•being the object of death threats
•being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (such as, bomb threats or being confronted with a weapon)
•being the object of harassment that includes physical violence or threats of physical violence (such as, the escalation of verbal abuse into traumatic physical abuse)
•being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (such as, tampering with safety equipment; causing the worker to do something dangerous)
WSIAT determined the list above was non-exhaustive, though illustrative of the situations in which most mental stress entitlements arose.
In fact, the employee was found to have met the policy requirements and to have “experienced what would be considered objectively traumatic by the average worker and unexpected in the normal course of the worker’s employment.”
As such, the employee was granted TMS and loss of earnings benefits. This decision is a considerable shift from previous decisions which refused to grant benefits on account of an event not objectively posing a threat to an employee’s physical well being.
WSIAT is clearly stating through this decision that lack of a real or implied threat to an employee’s physical well-being will not in of itself preclude the employee from receiving an entitlement under section 13.
Despite this decision, employers can seek some comfort in the remaining evidentiary burden the employee must meet to be granted an entitlement under the act.
The employee must have experienced, within the course of employment, a clearly and precisely identifiable, objectively traumatic and unexpected event.
They must also have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual and not suffered the injury as a result of an employment decision.
Moreover, TMS benefits will not be awarded as a result of an employer’s decisions to terminate, demote, transfer, discipline, change working hours or change productivity expectations.
In this case the worker’s suspension pending an investigation was not found to be a major contributor to the worker’s mental stress, the stress reaction was found to be linked principally to the allegation of physical assault.
This decision is significant for employers as it expands the scope of compensable events, thereby potentially increasing the number of claims and certainly the types of situations that lead to a successful claim for TMS benefits.
Successful claims normally increase the employer’s cost statement, reduce rebates or increase employers’ annual premiums.
The silver lining, however, is that while this decision has the potential to increase the number of claims and benefits awarded for TMS this effect should be accompanied by a decrease in the employee’s ability to sue for traumatic mental stress in other legal forums, as entitlements to WSIB benefits are generally granted in lieu of an employee’s ability to seek entitlements elsewhere.
