Mind over matter in workers’ compensation

By Jeffrey R. Smith ([email protected])

Mental stress and psychological problems are getting more recognition as legitimate reasons for taking time off work. Stress leave has become fairly common as employers recognize stress can be as debilitating as a physical injury for a worker and legal decision-makers acknowledge the rights of employees to take time to recover from it.

But what does this mean for workers’ compensation? An employee who gets physically hurt at work and either needs time to get better or can’t work because of the injury is compensated for the income loss through a workers’ compensation claim. But what if an employee is psychologically affected by something that happens at work? Should this be equally compensated as a physical injury? How should it be measured to determine if it warrants compensation? Can it even be measured?

There are provisions for mental injuries in many workers’ compensation regimes in Canada. For example, British Columbia’s workers’ compensation legislation and its board’s policy allow for compensation for mental stress if it was caused by “an acute reaction to a sudden and unexpected traumatic event” that was experienced or witnessed firsthand by an employee. The Ontario Workers’ Safety and Insurance Board’s Operational Policy Manual features an almost identical requirement for mental stress.

However, last year a worker challenged the B.C. requirements after his claim was rejected, claiming they were too restrictive and discriminated against mental injuries compared to physical injuries. The worker suffered from post-traumatic stress disorder and was unable to work, but the board and its appeals tribunal both denied his claim because they found he wasn’t directly involved in the incident that caused his stress and therefore didn’t meet the requirement of an acute traumatic event.

The B.C. Court of Appeal found this requirement was discriminatory because it set the bar higher than physical injury claims, which were evaluated on a case-specific basis. For physical injury claims, workers only had to prove it was work-related, while for mental stress claims, workers had to show a specific cause.

The requirements for issuing workers’ compensation for mental stress in various jurisdictions have likely been put in place at least in part because of the greater difficulty in proving genuine mental stress and differentiating it from normal work stress. Should claims for mental stress have a higher bar because they could be abused, or should workers be able to receive compensation just as easily as for an obvious physical injury?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly newsletter that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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