Introduction

The Workplace Safety and Insurance Board (WSIB) is conducting consultations into Work-Related Mental Stress policies that would come into effect on January 1, 2018. The point of these policy consultations is to allow employers and workers to voice specific concerns over the proposed changes. The proposed changes extend benefit entitlement to a worker for traumatic or chronic mental stress arising out of and in the course of employment; this does not include decisions or actions of employers relating to discipline or termination.

The WSIB is undertaking to expand the Work-Related Mental Stress policy as there have been decisions at the Tribunal that have found the limits currently placed on entitlement criteria to be unconstitutional. While Vice-Chairs at the Tribunal are not bound by other WSIAT decisions and each appeal is decided on its own merits, over the past few years the Tribunal has issued several decisions (i.e. Decision No. 2157/09) that determined that the provisions in the Workplace Safety and Insurance Act, 1997 (WSIA) limiting entitlement only to mental stress that “arises from an acute reaction to a sudden and unexpected event” violate the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms (Charter) and are therefore unconstitutional.

Under section 15 of the Charter, every individual is considered equal under the law without discrimination based on mental or physical disability. The WSIA and WSIB Operational Policies discriminate as they limit entitlement to mental disability arising from an acute reaction to a sudden and unexpected event and do not permit entitlement to chronic mental stress. As a result, they can be said to violate section 15 of the Charter. It has become necessary to change WSIA and the policy to account for this discrimination and collect money through increased premium rates in order to fund the costs of entitlement to these conditions; costs that would have been paid through increased premiums regardless of implementation, as the cost of paying down the unfunded liability is spread across all employers.

As a result of the Tribunal’s decision and resulting lobbying efforts by various stakeholders, amendments to the Act have been proposed. This policy change is broader in scope and more inclusive, whereby it makes access to benefits significantly easier to obtain. Some examples of this broadened scope are: allowing any regulated health care professional to make a diagnosis, eliminating the restriction on using a particular version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) and allowing workers with high stress jobs to be more easily covered.

Although the requirement to use a particular version of the DSM or an Axis 1 diagnosis was removed, the diagnostic criteria remained the same where workers need to be diagnosed with a condition in accordance with the DSM, including but not limited to:

• Acute stress disorder
• Post-traumatic stress disorder
• Adjustment disorder
• Anxiety or depressive disorder

Unlike the general trend among the various Workers’ Compensation Boards involving expanded benefit entitlement for mental health issues, the amendments to WSIA will not be retroactive. It will apply to claims with accident dates on or after January 1, 2018[1].

Traumatic mental stress

Under the current WSIB Operational Policies, there exists a policy for traumatic mental stress. The changes that are set to take place January 1, 2018 for traumatic mental stress are amendments to the current policy. As with the overall policy change, the amendments to the traumatic mental stress policy favour inclusivity.

One of the amendments is to remove acute reaction from the policy criteria. The traumatic mental stress policy currently says that unless a worker has an acute psychological response within four weeks, the response is considered delayed and there must be clear and convincing evidence to demonstrate that the response is from a sudden and unexpected traumatic event. This has had the effect of limiting workers who delay seeking treatment due to stigma and those that take longer to develop psychological symptoms.

While the criteria for a traumatic event has remained the same, there is no longer a requirement for there to be a sudden and unexpected traumatic event – there simply has to be a traumatic event. The WSIB has also removed the requirement for the traumatic event to be unexpected in the normal or daily life of a worker; this change has the effect of allowing the policy to be applicable to professions such as nurses and social workers, who experience traumatic events as a regular part of their job, but are excluded under the PTSD policy for first responders and current traumatic mental stress policy.

Similarly, the criteria for workers to develop mental stress gradually over time due to general work conditions has been removed as well, presumably to make way for chronic mental stress claims.

Chronic mental stress

The chronic mental stress policy proposes three steps to entitlement.

First, worker’s must obtain a diagnosis under a version of the DSM from an appropriate health care professional.

Second, the chronic mental stress needs to be caused by a substantial work-related stressor; a substantial work-related stressor includes bullying and harassment, but the proposed policy outlines two other definitions. For workers in low stress positions, chronic mental stress entitlement will be granted for one or more stressors that are excessive in intensity and/or duration when compared to the normal pressures experienced by workers in similar situations. This definition is modified for workers in high stress positions, where entitlement to chronic mental stress is extended to workers with a high level of stress combined with significant exposure to that stressor.

Third, the stressor needs to be a significant contributing factor in the development of the chronic mental stress. A contributing factor is significant when it’s contribution that is one of considerable effect or importance and more than de minimis. This means that the stressor need not be the only cause of the chronic mental stress, but one that has made a relatively important contribution to the development of the condition. Without further clarification, the work-related stressor could be the job (i.e. high stress, low stress) or factors associated with the job (i.e. people, environment, conditions). The worker would have to show that the stressor was work-related and has significantly contributed to the development of their condition to qualify for benefits.

PTSD

While the PTSD policy for first-responders will remain in place, this proposed policy change will no longer exclude workers not employed in designated positions. An unintended consequence of this, is it creates a two-pronged approach for certain workers; for workers that have their claim denied under the PTSD legislation, as an alternative, they might be able to meet the easier test under the traumatic mental stress policy. The problem with expanded coverage is that it increases premium rates across the spectrum of classes. Some employers have voiced criticism of this new policy with concern that it could put them out of business due to the rising cost of premiums.

Discussion and Concerns

For the sake of transparency, it is important to note that this can and will affect an employer’s annual WSIB premium. In order to implement this change, employer premium rates will increase to account for this additional expenditure as costs are shared across the system. If the new experience rating system is not rolled out by 2019, there could be cost consequences on an employer’s rebate or surcharge position under NEER. If the new experience rating system is in place, employers will experience high class level premium rates and could experience increased volatility in risk band movement.

In general, the problem with this policy is that is lacks specifics, which, without addressing during the consultation process, will lead to added expenses to employers and workers as they drag out a claim and accrue loss of earnings and bear the legal costs of appealing the claim through the compensation system as a whole.

Expanding the policy to allow workers to be diagnosed with mental stress by any regulated health care professional dispenses with the requirement of workers under the current traumatic mental stress or PTSD policy to see a psychiatrist or psychologist before the claim can be adjudicated. While this makes for the possibility of over-medicalization, it means that individuals in rural areas that don’t have access to a mental health professional are not unfairly excluded. For employers that worry this access makes it too easy to be diagnosed with a mental health problem as workers aren’t diagnosed by a mental health expert, the WSIB has built in a condition that ongoing entitlement may need to be confirmed by a psychiatrist or psychologist; this could limit claim costs if ongoing entitlement is not confirmed, which could have a substantial impact under both NEER and the new proposed experience rating system.

The problem with the second part of the entitlement criteria for chronic mental stress claims, is ultimately the distinction between high stress and low stress jobs. While it is an important distinction to make, the lack of specificity in this policy is questionable. For example, what is considered a high stress job? It will be important to flush this out in the policy consultations as the test for high stress jobs is easier to meet than the test for low stress jobs. There is also a lack of clarity on what criteria will be used in determining what is considered to be a high stress job and whether a worker’s subjective experience of stress is accounted for in determining whether a job is said to be a high stress job or if it falls into the harder-to-meet low stress job. One problem of not using specifics is that it leaves the WSIB without direction.

Ultimately, the problem is that without specifics, the Tribunal will have to establish new, foundational case law. With the current Tribunal backlog, it will be at least a few years for claims to get to the Tribunal, leaving the majority of workplace parties without a solid foundational understanding of entitlement for these conditions. Meaning, while Vice-Chairs establish the case law over the next few years, adjudicators and case managers will be without clear direction on the questions of what is considered a high stress job, what criteria is used in assessing this, and whether a worker’s subjective experience of the stressor makes it more high stress (i.e. increased susceptibility stemming from pre-existing psychological trauma). Cyclically, more of these decisions will be appealed to the Tribunal resulting in additional expenses for employers if they have to hire a legal representative for claims at the Tribunal or combat workers’ interpretation of high stress. The lack of specificity will additionally increase the backlog at the Tribunal, dragging already lengthened claims out, which will have significant cost implications for employers if their claim falls outside the claim window during the appeals process as cost recovery becomes virtually unachievable.

[1] Draft WSIB policy