The 2017 Budget included some unexpected good news for injured workers: the government is planning to remove the statutory bar to chronic mental stress claims, effective January 1, 2018. Does this mean an end to discrimination against injured workers with chronic mental stress? Well, maybe…
At present, Ontario’s workers’ compensation legislation bars claims for “mental stress” (the government’s label for mental illness caused by work that isn’t preceded by a physical injury), with one narrow exception: you can only get benefits if your mental stress is “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of [your] employment.”
Three years ago, the Workplace Safety and Insurance Appeals Tribunal ruled that the bar on chronic mental stress claims is discriminatory and violates the Charter, but government inaction left the unconstitutional legislation in place and mentally ill injured workers in limbo.
If the proposed Budget legislation passes, it will amend the Workplace Safety and Insurance Act to remove the unconstitutional provisions. Here’s a table comparing the legislation now, and what it will look like once the Budget legislation is passed:
|Current legislation||Proposed legislation|
|13(4) Except as provided in subsection (5)… a worker is not entitled to benefits under the insurance plan for mental stress.||13(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.|
|13(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.||13(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment|
Does this mean an end to discrimination against injured workers with chronic mental stress? Well, maybe…
Without doubt, removing the statutory bar is a significant step forward, and the injured worker groups who advocated for this change over the last two decades deserve credit for their tremendous effort in bringing it about.
However, it seems certain that mental stress injuries will still be treated differently to physical injuries, and given Ontario’s track record on this issue, that differential treatment may well be discriminatory. In addition to removing the unconstitutional provisions, the Budget legislation licences the WSIB to make policies setting different “evidentiary requirements” and “adjudicative principles” for “different types of entitlements”:
8 (1) Subsection 159 (2) of the Act is amended by adding the following clauses:
(a.1) to establish policies concerning the interpretation and application of this Act;
(a.2) to establish policies concerning evidentiary requirements for establishing entitlement to benefits under the insurance plan;
(a.3) to establish policies concerning the adjudicative principles to be applied for the purpose of determining entitlement to benefits under the insurance plan;
(2) Section 159 of the Act is amended by adding the following subsection:
(2.1) A policy established under clause (2) (a.2) or (a.3) may provide that different evidentiary requirements or adjudicative principles apply to different types of entitlements, where it is appropriate, having regard to the different basis for and the characteristics of each entitlement.
These provisions give the WSIB the express authority to establish a policy like the Alberta WCB’s, for example, which limits entitlement to cases that meet a set of extra criteria, two of which are as follows:
- The work-related events or stressors must be “the predominant cause of the injury.” (Predominant cause is defined as “the prevailing, strongest, chief, or main cause of the chronic onset stress.” This is a significantly higher threshold test for causation than the “significant contributing factor” test that generally applies in workers’ compensation, so if adopted in Ontario would constitute differential treatment.)
- The work-related events must be “excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation.” (This looks a combination of the “average worker test” that was rejected by the WSIAT in 665/10I2, and the “unexpected” component of the existing mental stress provisions that the WSIAT ruled violate s. 15 of the Charter in WSIAT Decision 2157/09, 1945/10; and 665/10.)
I don’t know what the WSIB’s plans are for a chronic mental stress policy—there has been no consultation with injured worker groups that I am aware of. However, I’m sure that they do have a plan, and I suspect they have new policies already written and ready to go.
However, there is still time to try and influence the development of the final policy, as the change to mental stress provisions won’t come into effect until January 1, 2018. I hope the WSIB will immediately consult its stakeholders, but in any event, injured workers and their advocates must make our voices heard once more, and demand that the policies treat mentally ill injured workers with dignity and respect, and without discrimination.
This blog contains general information and should not be relied on as legal advice in an individual case. If you need advice about a WSIB claim or appeal, please visit the website of my law office, asingletonlaw.ca, and book a consultation.