By: Bob Hopkins
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Mental Health Issues – Post-Traumatic Stress Disorder (PTSD) and Chronic Stress (CMS)
The hot topic is the summer of 2017 is how the WSIB will adjudicate Mental Health claims.
Earlier this year we started to hear about PTSD – Presumptive Traumatic Stress Disorder, which applies to First Responders who can show that either a single event or a series of events, within their course of employment, have led to a mental health issue that prevents the worker from being at work.
The WSIB is currently developing a formal policy for both Traumatic Stress and Chronic Stress that will become effective for new claims after January 1, 2018.
Traumatic Stress – a workplace incident that would not be expected within the normal working conditions of an employee that leads to mental health issues. These types of incidents include explosions, accidents to another worker with severe results such as fatality or dismemberment. The worker may have suffered or witnessed the event.
The WSIB can grant entitlement to Loss of Earnings Benefits for mental stress under the following criteria:
- An acute reaction
- To a sudden and unexpected
- Traumatic event
- Arising out of and in the course of employment
An employer will be aware of the traumatic event.
The area of concern for Ontario employers will be the policy involving Chronic Stress (CMS). Chronic Stress is the outcome of harassment in the workplace. This type of stress can be described as follows:
- Physical violence or the threat of physical violence
- Bullying and other forms of harassment by other workers
- Being placed in a life-threatening or potentially life-threatening situation
- Tampering with safety equipment
- Causing a worker to do something dangerous
- Immediate Acute Reaction
- WSIB accepts entitlement if a health care professional confirms worker suffering from acute stress disorder, PTSD, adjustment disorder or anxiety or depressive disorder
- Delayed onset or onset due to cumulative effect
- A WORKER IS NOT ENTITLED TO BENEFITS FOR MENTAL STRESS CAUSED BY THE 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 EMPLOYMENT
- A worker cannot claim mental health disorders as a result of normal business decisions or by the worker violating company policies and the employer taking expected actions.
While it is unknown at this time how the WSIB will adjudicate CMS claims after January 1, 2018, there are some assumptions that are expected to be part of the Adjudicator’s decision maker’s process:
- The worker reported the harassment to their employer (Direct Supervisor or above, or the Human Resources manager)
- The events must be identifiable
- A substantial stressor is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances
- Does not exclude employees in a high-stress environment/occupation
- A high level of routine stress, combined with significant duration, may qualify as a substantial work-related stressor
- Interpersonal conflicts between an employee and another employer, the supervisor could apply to the CMS policy if the conflict results in abusive behavior
It is this policy that should be of concern to Ontario employers, however, it is also somewhat preventable if employers are diligent in their application of the regulations of Bill 168 regarding workplace violence.
Employers must be prepared to show their due diligence in their implementation and enforcement of these policies. For companies with Human Resources managers, we recommend due diligence audits of any/all complaints that could be considered harassment. Did the company investigate and take corrective action for the instances of workplace harassment? All new complaints must be resolved in accordance with these policies as well.
For companies that do not have Human Resources managers, it is recommended (or for companies that do not feel they have met the Bill 168 requirements) that they hire an outside Human Resources consultant to develop, implement and monitor enforcement.
CMS claims are likely to be very expensive in both the current experience rating models (NEER/CAD-7) and the proposed Rate Reform model.
Area of greatest concern: Just as SE-GA and other management consulting firms represent employers there are a great number of Worker representatives in Ontario who earn their fees representing injured workers at appeals for WSIB benefits. These new policies, particularly for Chronic Mental Stress, represent a new opportunity for worker representatives to fight these benefits. While the actual policy, and the application of the policy, is unknown the on-going fight for benefits is something most Ontario employers have had to defend their company against. As the WSIB determines how to adjudicate these types of claims many appeals will be launched with the hope that the WSIB grants entitlement for the worker representative’s clients.
Disclaimer: Information contained in this website is intended as general introductory information only. The information contained on this website is not legal advice. It should not be construed as legal advice and should not be relied upon as such. No solicitor-client relationship arises as a result of accessing or reading the information contained on this website.