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

A controller of a food producing operation asked me recently, “What do you think is the next trend in group benefits affecting employers?” One issue came to mind: workplace-caused mental stress.

Currently, the Workplace Safety and Insurance Board of Ontario doesn’t cover mental-health issues caused by a workplace issue unless it’s an acute reaction to a traumatic event. However, there has recently been a significant pushes to change that. In November, a group of labour lawyers and the retired chair of the WSIB independent appeals tribunal submitted a complaint to the Ontario ombudsman. And in its 2017 budget released in April, the Ontario government tabled a bill to allow compensation for work-related chronic mental stress.

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

Chronic is the key word, which would set new precedent for claims. According to the WSIB website, employees suffering from acute traumatic mental stress (such as a factory worker who witnesses a horrific workplace accident) or chronic mental stress (such as employees who are bullied by their co-workers) would likely be entitled to benefits. Exclusions would likely include employees under stress because of terminations, demotions, transfers, discipline and changes to work hours or productivity expectations.

The WSIB further explains that an appropriate health professional, such as a physician, would need to provide a diagnosis from the Diagnostic and Statistical Manual of Mental Disorders. The diagnosis would have to show that the stressor was work-related, such as workplace harassment or bullying, and was the cause of the chronic mental stress.

This noble attempt to protect workers has nevertheless stirred up the skeptics in the plan sponsor community. Questions from sponsors include: What will this mean for small businesses? How much more will this cost in WSIB premiums? And, most frequently, how will WSIB know if these are genuine claims or people trying to get out of work? On whom does the burden of proof rest?

Read: 2017 Group Benefits Providers Report: Insurers playing a role amid rising emphasis on mental health

Recently, I spoke to the general manager of a contract labour provider who preferred to remain anonymous. “If I’m not being named and you really want to know what I think, this would be a nightmare for us,” he said. “As a company with 700 employees to take care of, my first question is: How do we know if a chronic mental issue is pre-existing? How do I know if it’s a combination of factors at home? How can a company be held responsible if there is no body scan or blood test to diagnose mental illness?”

The general manager noted the cost of a death at work can wreak havoc on a company’s WSIB costs. “What is the cost of suicide to a business if it was not work-related and how can this be proven? How do we defend ourselves if the family decides to sue the employer? As a company, we can’t afford to defend frivolous claims.”

At workshops held with employers over the years, every time a WSIB slide comes up, the stories start to unfold. “We have a guy who has been paid for two years for an injured thumb and we know he’s not in the country. But what can I do?” one woman said. “He and his brother left work at the same time, for the same issue, and we are still paying for it.” This story has repeated itself across many small businesses.

Employers, however, unanimously support mental-health claims in certain clear-cut scenarios, such as those from first responders or employees who witness a workplace death. It’s the grey areas that cause so much frustration.

Read: WSIB shares experience implementing PTSD legislation

Employers overwhelmingly ask about how causation will be proved. They believe it’s up to the employee to prove the injury occurred at work, just as is the case with physical injuries. They also ask how an employer can protect against pre-existing conditions.

“An ounce of prevention really is worth a pound of cure,” says Lucinda Mungy, senior health claims advisor at the Beneplan Co-operative. “If employers are incentivized to not allow harassment, they will create a workplace environment that prevents it. This includes no longer being passive about employees harassing each other or allowing harassment from customers.”

On the private insurance side, group disability contracts do cover mental-health issues, although they deal with mental illness arising from both the workplace and the home.

Read: Study reveals management practices that can reduce mental-health claims

“Given the prevalence of workplace factors associated with mental-illness disability claims, one would expect WSIB should be reviewing its position,” says Roger Friesen, director of life and disability claims at the Co-operators Group. He notes that in 2016, 21 per cent of the Co-operators’ long-term disability claims, 19 per cent of its short-term disability claims and 25 per cent of its medical leave adjudication files were related to mental illness.

The human in me remembers the phrase, “A civilization is judged on how it treats its most vulnerable people.” Yet the skeptic in me can still hear the general manager of the contract labour firm: “I simply can’t afford to stay open. I’ve been doing this for 30 years, pay half a million dollars towards WSIB each year and I’ve never seen a WSIB rate go down. If this affects my costs, I might have to close my doors.”

Yafa Sakkejha is the general manager of the Beneplan Co-operative.