Introduction & Background

The Workplace Safety and Insurance Board (WSIB) conducted consultations into Work-Related Mental Stress policies. The WSIB has undertaken 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 that were in place before this consultation, were said to be discriminatory as they limited entitlement to mental disability arising from an acute reaction to a sudden and unexpected event and did not permit entitlement to chronic mental stress. As a result, these policies violated section 15 of the Charter. It had become necessary to change the WSIA and the Mental Stress policies 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, there have been amendments to WSIA and WSIB Operational Policies. The Mental Stress policy changes are coming into effect January 1, 2018.

The approved policy changes are broader in scope and more inclusive, whereby they make access to benefits significantly easier to obtain so long as the stress arises out of and in the course of employment; this does not include decisions or actions of employers relating to discipline or termination. 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

Recently, there has been a proposed change to allow workers diagnosed with mental stress on or after April 29, 2014 who have not previously filed a claim, to be able to file a claim with the WSIB before July 1, 2018. In addition, if a worker filed a claim for mental stress before January 1, 2018, and the claim remains pending at the WSIB on January 1, 2018, the worker may be entitled to benefits under the new policy.

Currently this proposed change has only passed a Second Reading at the Ontario Legislature.

Traumatic mental stress

Under the current WSIB Operational Policies, there exists a policy for traumatic mental stress. The changes that are taking place January 1, 2018 for traumatic mental stress are amendments to the current policy.

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 entitlement to 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 or the accumulation of several traumatic events.

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.

In addition, the criteria that excludes workers who develop mental stress gradually over time due to general work conditions has been removed under the amendments, so as to make way for chronic mental stress claims.

Chronic mental stress

The WSIB is introducing entitlement for workers with chronic mental stress claims. The chronic mental stress policy creates 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 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 consistent exposure to a high level of stress over time.

Third, the stressor needs to be a predominant cause in the development of the work-related chronic mental stress. As this is a new causation test in Ontario, the WSIB elaborated and defined the predominant cause test:

Predominant cause means that the substantial work-related stressor is the primary or main cause of the mental stress injury – as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.

The introduction of the predominant cause test as the standard of proof in mental stress adjudication is in contrast to the significant contributing factor test previously proposed in the consultation process. Under the predominant cause test, the work-related stressor needs to be the primary or main cause of the mental stress – this is a more stringent standard of proof than the significant contributing factor test where the work-related stressor doesn’t need to be the only cause of the chronic mental stress, but one that has made a relatively important contribution to the development of the condition.

During the consultation process, it was suggested by various stakeholders that the WSIB amend the standard of proof in chronic mental stress to be similarly aligned with other Canadian jurisdictions – thus borne the predominant cause. The definition the WSIB chose to implement appears to be conceptually founded by the BC Practice Directive #C3-3

Of note, one interesting item that has been left out of the predominant cause definition is how decision makers will determine what is considered to be a primary or main cause. The BC practice directive provides clarity by outlining that a psychological assessment will provide evidence with respect to the weight of various stressors. By leaving this sort of clarity out of the WSIB definition, this has a propensity for misinterpretation by decision-makers, especially when there is more than one stressor involved.

While it might seem relatively straightforward that decision makers should adduce the impact of stressors from psychological assessments, there is no particular requirement for them to do so; thus, decision makers might rely on a description of the work-related stressor(s) and non-work-related stressor(s) in deciding initial entitlement. Of further concern is the fact that this loose definition is paired with an equally loose diagnostic requirement whereby a worker can be diagnosed by an “appropriately regulated” health professional; the concern being that there is a lack of psychological commentary on the stressors involved.

While the WSIB created an exclusion for interpersonal conflicts, they left the definition of work-related stressor relatively open-ended and undefined. 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. environment, conditions). The worker would have to show that the stressor was work-related and was the predominant cause in the development of their condition in order to qualify for benefits.

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. As the new experience rating system is not being rolled out in 2019, there could be cost consequences on an employer’s rebate or surcharge position under NEER. When 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 having been addressed 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.

Furthermore, given the lack of clarity in the predominant cause test, greater control over diagnostic requirements should have been implemented. As it stands now, initial entitlement decision-makers can consult a primary health care provider’s clinical notes in weighing work-related versus non-work-related stressors and the impact of each on the development of the mental stress. However, the distinction of psychiatrist and primary physician is an important one that was overlooked in the consultation process; psychiatry is a specialized branch of medicine that requires “comprehensive biological, psychological and social evaluation to understand the illnesses” in order to diagnose and treat[1]. A concern is that primary health care providers will not be able to appropriately identify the impact of each stressor on the development of the mental stress injury.

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? 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, what is considered to be “over time”, 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] https://www.cma.ca/Assets/assets-library/document/en/advocacy/Psychiatry-e.pdf