The Workplace Safety and Insurance Board is expanding its work-related mental-stress policy following decisions at the appeals tribunal that found the limits currently placed on entitlement criteria are unconstitutional.

Over the last few years, the Workplace Safety and Insurance Appeals Tribunal has issued several decisions that determined the provisions in the Workplace Safety and Insurance Act limiting entitlement only to mental stress that “arises from an acute reaction to a sudden and unexpected event” violate the equality guarantee in the Canadian Charter of Rights and Freedoms and are, therefore, unconstitutional.

Read: WSIB, Ontario sued over treatment of chronic mental stress claims

As a result of the tribunal’s decision and resulting lobbying efforts by various stakeholders, changes to the WSIB’s operational policies will take effect on Jan. 1, 2018.

The approved policy changes are broader in scope and more inclusive, making access to benefits significantly easier to obtain as long as the stress arises out of and in the course of employment. The provisions don’t include employer decisions or actions related to discipline or termination. Some examples of the broadened scope include 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; and facilitating eligibility for employees with high-stress jobs.

Read: WSIB seeking input on work-related chronic mental stress policy

Recently, there has been a proposed change to allow workers diagnosed with mental stress on or after April 29, 2014, who haven’t previously filed a claim, to be able to submit one with the WSIB before July 1, 2018. In addition, if an employee files a claim for mental stress before Jan. 1, 2018, and the claim remains pending at the WSIB on that date, the worker may be entitled to benefits under the new policy. Currently, the proposed change has only passed second reading at the Ontario legislature.

Traumatic mental stress

A provision for traumatic mental stress exists under the WSIB’s current operational policies, and the changes to take effect on Jan. 1, 2018, are amendments to it. It currently says that unless a worker has an acute psychological response within four weeks, there must be clear and convincing evidence to demonstrate it was from a sudden and unexpected traumatic event. The provision has had the effect of limiting entitlement to workers who delay seeking treatment due to stigma and those who take longer to develop psychological symptoms. One of the amendments is to remove the requirement for an acute reaction from the policy criteria.

Read: WSIB shares experience implementing PTSD legislation

The WSIB is also removing the requirement for the traumatic event to be unexpected in the normal or daily life of an employee. The change will allow 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 ineligible under the post-traumatic stress disorder policy for first responders and the current provision for traumatic mental stress. In addition, the amendments have removed the criteria that excludes employees who develop mental stress gradually over time due to general work conditions, thus making way for chronic mental-stress claims.

Chronic mental stress

The WSIB is also introducing an entitlement for employees with chronic mental-stress claims. The policy creates three steps to entitlement:

  • Employees must obtain a diagnosis under a version of the Diagnostic and Statistical Manual of Mental Disorders from an appropriate health-care professional.
  • The chronic mental stress must be due to a substantial work-related stressor, which could include bullying and harassment. However, the policy outlines two other definitions: for workers in low-stress positions, chronic mental-stress entitlement will be available for one or more stressors that are excessive in intensity and/or duration when compared to the normal pressures experienced by employees in similar situations. The definition is different for employees in high-stress positions, where entitlement to chronic mental stress extends to workers with a consistent exposure to a high level of stress over time.
  • The stressor needs to be a predominant cause in the development of the work-related chronic mental stress. As the provision is a new causation test in Ontario, the WSIB has elaborated and defined the predominant-cause requirement. Predominant cause means that the substantial work-related stressor is the primary or main factor in the mental-stress injury. Therefore, the stressor can still count as the predominant cause of the mental-stress injury, even though all of the other factors, when combined, may outweigh it.

While the WSIB created an exclusion for interpersonal conflicts, it left the definition of work-related stressor relatively open-ended and undefined. Without further clarification, the work-related stressor could be the job itself or factors associated with it, such as the work environment or conditions. The employee would have to show that the stressor was work-related and was the predominant cause in the development of the condition in order to qualify for benefits.

Implications and concerns

It’s important to note that the changes can and will affect an employer’s annual WSIB premiums as the rates will rise to account for the additional costs. Since the new experimental experience rating program isn’t rolling out until 2019, there could also be cost consequences on an employer’s rebate or surcharge position. 

Read: Sounding Board: Employers fear WSIB mental-health claims will put them out of business

In general, the problem with this policy is it lacks specifics, which will lead to added costs for employers and employees as they drag out a claim, lose earnings and bear the legal burden of appealing the claim through the compensation system.

Expanding the policy to allow workers to obtain a diagnosis with mental stress from any regulated health-care professional dispenses with the current requirement to see a psychiatrist or psychologist before adjudicating the claim. While that raises the possibility of excessive medicalization, it address the barriers facing people in rural areas without access to a mental-health professional.

For employers that worry the change makes it too easy to obtain a diagnosis with a mental-health problem, the WSIB has built in a condition that ongoing entitlement may require confirmation by a psychiatrist or psychologist. The provision could limit claims costs, which could have a substantial impact under both the new experimental experience rating program and the new proposed experience rating system.

Furthermore, given the lack of clarity in the predominant-cause test, the changes should have included greater control over diagnostic requirements. 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, as well as the impact of each of them on the development of the mental stress.

The problem with the second part of the entitlement criteria for chronic mental-stress claims is, ultimately, the distinction between high- and low-stress jobs. There’s a lack of clarity on the criteria for determining what is a high-stress job and whether a worker’s subjective experience of stress is a factor in deciding whether a position falls into the harder-to-meet low-stress category. 

Read: Looking to create a mental-health strategy? Ask your employees first

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 employers and employees without a solid foundational understanding of entitlement for those conditions. Over the next few years, then, adjudicators and case managers will be without clear direction on which criteria to use to assess whether a job is high or low stress, what’s considered to be overtime and whether to consider a worker’s subjective experience of the stressor, including increased susceptibility stemming from pre-existing psychological trauma.

As a result, it’s likely more of the decisions will end up at the appeals tribunal, leading to additional costs for employers if they have to hire a legal representative for claims or combat workers’ interpretations of high stress. In addition, the lack of specificity will increase the backlog at the tribunal, dragging out already-lengthened claims and creating significant cost implications for employers if their matter falls outside the claim window during the appeals process as cost recovery becomes virtually unachievable.

Tony Culhane is president and chief executive officer of TeksMed Services Inc. Kelly Allen is a paralegal at Quikcare Paralegal Professional Corp.

Copyright © 2018 Transcontinental Media G.P. Originally published on benefitscanada.com

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