Two groups that represent injured workers in Ontario and a former Ottawa employee have launched legal proceedings against the Workplace Safety & Insurance Board and the provincial government over the treatment of chronic mental stress claims.
The application, filed by the Ontario Network of Injured Worker Groups, Injured Workers Consultants and Margery Wardle on June 29, aims to have Ontario’s Superior Court of Justice deem ss. 13(4) and 13(5) of the Workplace Safety and Insurance Act to be unconstitutional and strike down laws that exclude chronic mental stress claims in the workplace, says Christine Davies, a lawyer at Goldblatt Partners LLP who’s part of the legal team representing the applicants. None of the allegations have been proven in court.
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Currently, the WSIB must compensate injured workers suffering from mental stress if they did so as a result of “a sudden and expected traumatic event” in the workplace, according to the legislation. Ontario also introduced new legislation last year that makes the claims process easier for first responders who suffer from post-traumatic stress disorder.
But claimants with chronic mental stress like Wardle are out of luck when it comes to getting their claims approved. A former heavy equipment operator for the City of Ottawa, Wardle left work in 2005 after allegedly enduring years of sexual harassment from her male colleagues. She has since been unable to return to the workplace and has lived off government benefits and financial support from her family.
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Wardle says she has been trying to get her claim approved for more than a decade and is still waiting for a review by the Workplace Safety and Insurance Appeals Tribunal, the independent body that reviews claims denied by the WSIB.
“For many injured workers, especially those with mental stress claims, I have to conclude, based on my own experience, that a lot of people would just give up their claims,” says Wardle. “Every time WSIB denies a claim . . . we’re left sort of just swinging in the breeze and if we don’t have the personal resources to pay for our own treatment, our situations worsen.”
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While Ontario plans to change the law so that workers with chronic mental stress can receive compensation after Jan. 1, 2018, the reforms won’t benefit workers who make claims before that date, says Davies.
“There’s still hundreds of claims that predate 2018 that are in the system that need to be dealt with appropriately, and those people won’t be helped by the new legislation or the new policy because [they] only address the situation of the people whose accidents fell after Jan. 1, 2018,” says Davies.
She notes the Workplace Safety and Insurance Appeals Tribunal has already declared the current provisions excluding chronic mental stress to be unconstitutional in three instances.
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Despite those findings, many employees who file claims for chronic mental stress still have to go through years of appealing their cases. According to the notice of application in the lawsuit, there are currently about 173 pending mental stress claims for the appeals tribunal to review and many of the claimants have to wait for more than two years for their matters to proceed.
While the WSIB declined to comment on the lawsuit, it notes Ontario recently decided to make work-related chronic mental stress eligible under the Workplace Safety and Insurance Act. “We have been holding public consultations on our proposed policy, which will come into effect on Jan. 1, 2018,” wrote spokesperson Christine Arnott in an email to Benefits Canada. “We look forward to supporting Ontarians dealing with work-related chronic mental stress and helping them return to a healthy and safe workplace.”