After three years of delay, things are moving quickly on chronic mental stress in Ontario. Two weeks ago, the government proposed changes to the Workplace Safety and Insurance Act that remove the bar to chronic mental stress claims. Last week, the WSIB published a draft policy (PDF) and opened an expedited consultation on it, which closes on July 7, 2017.

It’s vital that injured workers make their voices heard in the consultation. This blog contains a preliminary analysis of the policy, which I’m happy for any injured worker or advocacy group to adopt or adapt (or reject or ignore!) when developing their submissions.

The Background Information (PDF) the WSIB published with the draft policy sets out “three key entitlement criteria for chronic mental stress,” namely “diagnostic requirements,” “injuring process,” and “causation standard.” I’ll go through all three, and then discuss a fourth issue, the lack of transitional provisions.

1. Diagnostic requirements: a DSM diagnosis from “an appropriate regulated health care professional”

The draft policy sets out the following “diagnostic requirements” for entitlement to benefits:

Before any traumatic mental stress or chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

acute stress disorder
posttraumatic stress disorder
adjustment disorder, or
an anxiety or depressive disorder.

The WSIB will accept the claim for adjudication if an appropriate regulated health care professional provides the DSM diagnosis. However, the WSIB decision-maker may, at a later point, require an assessment by a psychiatrist or psychologist to confirm ongoing entitlement.

It seems fair for the WSIB to require a DSM diagnosis to establish a claim: it needs a way of determining that a worker’s experience of mental stress rises to the level of an injury, and the DSM, although not the only respected mental disorder classification, is without doubt the predominant one in Ontario.

A couple of details show the WSIB has listened to concerns about the diagnostic requirements in its existing policies.

First, the policy dispenses with the requirement that the diagnosis be made under a particular edition of the DSM. This compares favourably with the PTSD in First Responders policy (#15-03-13), which requires a DSM-5 diagnosis for injuries that occurred after October 2016, ignoring the reality that many psychiatrists and physicians continue to use the DSM-IV (its the version they trained with and used for many years before the DSM-5 was published). Hopefully the WSIB will amend this aspect of the PTSD policy in future.

Second, and more significantly, the draft policy allows for the initial diagnosis to be made by “an appropriate regulated health care professional,” a phrase that’s open for interpretation, but which crucially does not require the worker to see a psychiatrist or clinical psychologist before the claim is adjudicated (as is currently the case with for PTSD under policy #15-03-13, and delayed onset or cumulative traumatic mental stress under the current Traumatic Mental Stress policy (#15-03-02).

This is important because in many parts of Ontario psychiatrists and psychologists are in desperately short supply, and people can wait months for an appointment after their family doctor makes a referral. For someone off work because of a mental disorder, that kind of wait for the adjudication of her claim is a source of tremendous hardship. Again, I hope the WSIB will amend this aspect of the PTSD policy in future.

The draft policy does allow the WSIB to protect its interests by allowing it, “at a later point, [to] require an assessment by a psychiatrist or psychologist to confirm ongoing entitlement,” a provision that signals, I hope, that the WSIB will take responsibility for finding an available psychiatrist or psychologist and, when necessary, funding the worker’s travel to the appointment.

2. Injuring process: identifiable event(s) and a “substantial work-related stressor”

The draft policy limits entitlement to cases that caused by an “injuring process” that meets two criteria.

First, the injuring process must comprise one or more discrete, identifiable events:

In order to consider entitlement for chronic mental stress, including workplace bullying or harassment, the WSIB decision-maker must be able to identify the events which are alleged to have caused the chronic mental stress.

This means that the events can be confirmed by the WSIB decision-maker through information or knowledge provided by co-workers, supervisory staff, or others.

Second, the injuring process must comprise “a substantial work-related stressor.” (I’ll refer to this as a “SWRS” from now on.) The policy specifies that “workplace bullying” and “workplace harassment” are SWRS’s, and gives a detailed definition of each. In addition, the policy includes a general definition of a SWRS (i.e. for use in cases that aren’t bullying or harassment):

A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.

However, a claim for chronic mental stress made by a worker employed in an occupation, or a category of jobs within an occupation, reasonably characterized by a high degree of routine stress should not be denied simply because all workers employed in that occupation, or category of jobs within that occupation, are normally exposed to a high level of stress. In some cases, therefore, a high level of routine stress, combined with significant duration, may qualify as a substantial work-related stressor.

This definition sets up two categories of jobs: those “characterised by a high degree of routine stress” (which are positioned as the exception), and everything else. Let’s call these two categories “High Stress Jobs” and “Not-High Stress Jobs” for the purposes of discussion.

The definition also sets up two different tests for a SWRS. If you’re in a Not-High Stress Job, you have to show that you experienced stress that significantly greater than (“excessive in intensity and/or duration”) the “normal pressures and tensions” of your job. But if you’re in a High Stress Job, then your normal duties “may qualify” as a SWRS—just so long as you’ve been doing them for a “significant duration.”

I have two serious concerns about this.

First, it’s going to lead to a lot of litigation for at least the next five years (the minimum amount of time I estimate it will take to establish a consistent body of caselaw at the Tribunal). This will price many injured workers out their claims.

For example, one point of contention will be what constitutes a High Stress Job—given that appears to have an easier test to meet, there will be plenty of motivation for workers and employers to argue about whether a worker’s job is “characterised by a high degree of routine stress” or not. How are we to measure this? What kind of evidence are we to adduce? Will we need expert evidence about the characteristics of particular occupations? To what extent, if any, can we consider the worker’s experience of the stress in making this determination, given that the draft policy is aiming for an objective measure of a job’s stressfulness, but also taking into account that the worker is a witness with first-hand knowledge of the job she was doing? If we can’t consider the worker’s subjective experience of stress, to what extent can we consider personal characteristics, such as her level of experience and training, in determining whether the job was characterised by a high degree of routine stress? Take lawyering as an example—not a covered industry, but illustrative nonetheless. Most junior lawyers find their jobs very stressful: in the first five years of one’s career, based on my experience and those of my colleagues, practicing law is “reasonably characterized by a high degree of routine stress.” But a decade on, most of us find it much less stressful, even though the work itself hasn’t fundamentally changed. Would it be fair to define an occupation as High Stress or Not-High Stress per se without reference to the worker’s own circumstances?

And that’s just one of the questions will be hotly contested. Here are some more. How long is a “significant duration?” How much above normal is “excessive” (way more than reasonable, or just anything above the baseline)? How do we determine what the baseline “normal pressures and tensions experienced by workers in similar circumstances” are? How much do the words “in similar circumstances” allow (or require) a decision-maker to tailor the comparison to the personal circumstances of the worker? Are we going to be applying an average worker test again…?

You get the point.

My second concern is that the SWRS test still constitutes a bar to many legitimate chronic mental stress claims.

Let me preface this by saying that the draft policy is certainly a step forward from the current restrictions on entitlement for mental stress in the WSIA and board policy. To test this, let’s consider whether the three workers who had to bring a successful Charter challenge would have been entitled to benefits under the draft policy. I think they probably would:

• 2157/09 was a case of egregious workplace bullying
• 1945/10 involved a series of incidents that constituted unfair treatment and harassment by the employer
• 665/10 involved a child protection worker who worked for years in a workplace the Tribunal found was “objectively stressful” ( = a significant duration in a High Stress Job), and who experienced some particularly stressful situations prior to going off work because of his mental disorder ( = identifiable events).

So there is a cohort of workers with chronic mental stress who will be entitled to benefits under the new legislation and policy (if passed), whose claims would previously have been barred. That’s real progress.

However, the identifiable events and SWRS requirements will still bar a significant portion chronic mental stress claims. The epidemiological evidence about the relationship between mental disorders and work (canvassed by the Tribunal in 2157/09) shows that the primary burden of work-related mental disorders arises from “job strain” (work that has high psychological demands but allows low decision latitude for workers) and jobs with an “effort-reward imbalance” (work that requires high work effort with little reward in terms of salary, promotion, or esteem). We’re talking here about jobs where the stressor is inherent in the everyday working conditions (that is, they are part of the “normal pressures and tensions experienced by workers in similar circumstances.”) Even if we successfully characterize these jobs as High Stress Jobs (which would be a tall order, I suspect), such claims will still be denied because there aren’t specific, identifiable events to point to—it’s the everyday, routine grind that gives rise to the stress and causes the injury.

So although we’ve taken a step forward, we’ll still be treating mental disorder differently from physical disablement and occupational disease, without a clearly articulated, principled rationale for doing so. As a result, some workers with work-related chronic stress injuries will be denied benefits.

That’s a pity. There has been considerable progress in recognizing that workplace mental health is a significant public health challenge—but evidently we, as a society, are still not prepared to pay for the damage through our workers’ compensation system.

3. Causation standard: significant contribution?

On its face, the draft policy requires decision-makers to apply to mental stress the same legal test for causation that applies to other injuries, the significant contribution test:

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor, including workplace bullying or harassment, caused or significantly contributed to the chronic mental stress.

This is something of a relief. The proposed legislation would allow the WSIB to make policies setting different “evidentiary requirements” and “adjudicative principles” for “different types of entitlements,” which raised the possibility that the draft policy would set a higher threshold for causation, such as the “predominant cause” test that applies in Alberta. But that has turned out not to be the case.

However, I  concerned that, in practice, the SWRS requirements will result in different rules for causation than apply to physical injuries. For instance, I can’t see how the definition of SWRS for Not-High Stress jobs can be reconciled with the thin skull rule, which has been recognized as a fundamental principle in workers’ compensation law time and again by the Tribunal. This too will be a source of litigation, but if it turns out that the policy limits the application of the thin skull rule in mental stress cases, that will constitute differential treatment on the grounds of mental disability.

The absence of transitional provisions leaves many injured workers in limbo

The draft policy applies only to “accidents on or after January 1, 2018.” Therefore, as the WSIB’s consultation FAQ says, it only covers “people who first seek medical attention or are diagnosed… with a work-related chronic mental stress disorder on or after January 1, 2018.” This reflects the proposed legislation, which includes no transitional provisions providing relief for workers with claims arising before that date.

Thus anyone with mental stress claim already in the system, or who develops a mental stress injury in 2017, remains in limbo. It’s now up to the WSIB and the Tribunal to develop procedures that ensure that these workers’ claims are adjudicated under the current legislation expeditiously and in a manner that respects their constitutional rights. (I’ll make suggestions for how they might do this in a future post).

The absence of transitional provisions is inexcusable. When the government gave first responders relief from the statutory bar with its PTSD amendments, it included extensive transitional provisions that reached back 24 months, and allowed for the re-filing of claims under the new provisions of the legislation. I can see no principled reason for not allowing the same transitional period for workers in other occupations, and other work-related mental disorders. The government’s failure to offer relief to workers with cases already in the system perpetuates its discrimination against them.

In the absence of an explanation, a cynic might infer from the different approaches the government’s motivation in passing the two sets of amendments: in the case of PTSD, pleasing one of the Liberal party’s constituencies (the labour organizations of police officers and firefighters); in the case of chronic mental stress, reluctantly responding to repeated rulings by the Tribunal that legislation is unconstitutional.

To be clear, I am not suggesting that there is anything wrong with the PTSD amendments, or the efforts of police and firefighters’ associations in obtaining them. On the contrary: the presumption that PTSD in first responders is work-related is an important step forward, which I wholeheartedly support, and I applaud the advocacy work that made it happen.

But surely every worker is worthy of the same respect and the protection of our workers’ compensation system, regardless of their occupation. I hope the government will come to its senses and add transitional provisions before the legislation is passed.

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.