Tribunal expands entitlement to traumatic mental stress benefits

Jan 23, 2012

Tribunal Expands entitlement to traumatic mental stress benefitsBy Charlotte Willson

A recent decision of the Ontario Workplace Safety and Insurance Appeals Tribunal has significantly expanded the scope of entitlement for benefits arising from workplace events that cause traumatic mental stress.

Traditionally, traumatic mental stress benefits have been granted only when a claimant experienced a traumatic event that presented a real or implied threat to a person’s physical well-being. In Decision 483/11, the tribunal held that a threat to a person’s physical welfare is not required for a finding of entitlement to benefits based on traumatic mental stress.

The claimant in question was an educational assistant who sought benefits for mental stress after being falsely accused of striking a Grade 5 student in class. The claimant was suspended to allow the school to investigate the allegation, and was reinstated after being exonerated by the investigation. However, the claimant was diagnosed with major depression and was unable to continue her duties.

The tribunal found that the false allegations and subsequent events were objectively unexpected and traumatic, and resulted in a disabling psychological condition. A report from the claimant’s physician indicated that the claimant experienced flashbacks of the moment of her suspension, and avoided children and places like schools and playgrounds. Medical evidence also showed the claimant experienced sexual and emotional abuse in her childhood, memories of which were triggered by the incident.

Policy clarification allows for benefits

In an earlier decision released in May 2011,1 the tribunal found that the claimant would have been entitled to benefits for traumatic mental stress except for a Workplace Safety and Insurance Board policy suggesting that the traumatic event must involve a real or implied threat to a person’s physical well-being.2

The tribunal adjourned the claimant’s application to receive submissions from the board on an apparent inconsistency between the board’s traumatic mental stress policy and the Workplace Safety and Insurance Act, 1997 on this point, as well as inconsistencies within the board policy itself. The tribunal also asked the board to clarify whether a diagnosis of post-traumatic stress disorder (PTSD) is a prerequisite for entitlement under the board’s policy.

In response to the tribunal’s request, the board advised that a real or implied threat to a person’s physical well-being is not required to find entitlement to traumatic mental stress benefits. The board also clarified that PTSD is not the only DSM-IV diagnosis that can form the basis for entitlement; any Axis I diagnosis may suffice.3 After receiving the board’s response, the tribunal granted the claimant benefits for traumatic mental stress.

The implications

Decision 483/11 considerably widens the scope of compensable events in traumatic mental stress cases to include situations that result in traumatic stress without the presence of a threat to physical well-being. However, claimants seeking entitlement to traumatic mental stress benefits have a significant evidentiary burden to meet. To be successful in a traumatic mental stress claim, it must be demonstrated that

  • the claimant was exposed to a workplace event that is
    • identifiable
    • objectively traumatic, and
    • unexpected in the normal course of the worker’s employment
  • a disabling psychological injury occurred as a result, as demonstrated by an Axis 1 DSM-IV diagnosis.

We understand that none of the parties to Decision 483/11 are seeking reconsideration or judicial review of the tribunal’s decision. Decision 483/11 can be accessed at http://canlii.ca/t/fmltw.

Charlotte Willson is an associate in Heenan Blaikie LLP's Labour and Employment Group; cwillson@heenan.ca, 416-643-6909.

Preventing mental stress

“This case effectively demonstrates the disruptive and damaging effects of traumatically stressful situations on workers and the workplace,” says Andrew Harkness, a healthy workplace specialist with Workplace Safety & Prevention Services (WSPS). “Unhealthy, unsafe and stressful workplaces are estimated to cost Canadian employers billions of dollars in workers compensation, absenteeism, presenteeism, turnover, short- and long-term disability, and lost productivity.

Harkness describes the situation as “almost a perfect storm. We’re seeing a much greater emphasis on mental health issues. Litigation and judgments are increasingly finding in favour of plaintiffs in civil suits and arbitration, and with decisions like this one compensation systems are recognizing the impact of organizational culture factors on workers’ mental health.”

“The best way to avoid the storm,” says Harkness, “is to create a psychologically safe and healthy environment.”

How we can help

A number of WSPS resources are available to workplaces, ranging from the tactical (conference sessions on conflict resolution) to the strategic (developing violence and harassment policies and programs). See below for examples.

Conferences and trade shows. Our spring events, which get underway April, include Canada’s largest annual health and safety event, taking place in Mississauga. Check the website for additional information as it becomes available.

Consulting. WSPS healthy workplace consultants work with you to develop a planned, target-driven approach to implementing excellence in healthy workplaces.

e-Learning programs that include:

  • Dealing With a Hostage Situation (1 hour e-course; aussi disponible en français)
  • Dealing with Difficult or Hostile Customers (1 hour e-course; aussi disponible en français)
  • Dealing with Robbery (1 hour e-course; aussi disponible en français)
  • Developing Your Workplace Violence and Harassment Program in Ontario (2 hour e-course)
  • Stress in the Workplace (1 hour e-course; aussi disponible en français)
  • Violence in the Workplace: Establish a Prevention Program (1.5 hour e-course; aussi disponible en français)
  • Violence in the Workplace: Recognize the Risk and Take Action (1 hour e-course; aussi disponible en français)
  • Violence in the Workplace: Awareness, a free sample e-course

Public or on-site training (each contains a Violence Module):

Resources

1 Decision No. 483/11I, 2011 ONWSIAT 1231, [2011] O.W.S.I.A.T.D. No. 1012.
2 WSIB, “Traumatic Mental Stress,” Operational Policy Manual, OP 15-03-02, online: www.wsib.on.ca.
3 “DSM-IV” refers to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. “Axis I” refers to clinical disorders, including major mental disorders, learning disorders, and substance use disorders.