Recently, in Decision No. 2157/09, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) found the limits on chronic mental stress claims in the Workplace Safety Insurance Act (WSIA) to be contrary to section 15 of the Canadian Charter of Rights and Freedoms (“Charter“). The Panel refused to uphold the legislation’s limits on mental health claims, allowing workers with mental stress claims not based on sudden, traumatic and unexpected events to receive compensation under the WSIA.
The worker was a nurse at a hospital, who was mistreated by a physician for twelve years. The physician yelled at the nurse and made demeaning comments about her in front of both colleagues and patients. However, there was no physical mistreatment. Even though the nurse and co-workers complained about the physician’s behavior to management, no action was taken against the physician. Instead, management advised the nurse that her duties would be reduced, though her job title and classification would not change. The nurse alleges workplace stressors led to her diagnosis of adjustment disorder with mixed features of anxiety and depression.
The nurse brought an application for damages due to mental stress to the Workplace Safety and Insurance Board (WSIB), but her application was denied. She appealed again, alleging that the mental stress provisions in the WSIA violated her section 15 equality rights under the Charter.
To be eligible for compensation through the WSIA, claimants only need to show that they fall under the provision of the WSIA. Unlike civil claims, compensation is not based on fault; there is no need to show that the employer was negligent. As all employers contribute to the compensation scheme, workers also do not have to worry that their claims will not be paid out. However, in exchange for these benefits, workers whose claims fall under the WSIA are precluded from suing their employer in civil court.
The current WSIA legislation and associated policy manual differentiates between claims for physical injury and mental stress. Sections 13(4) and 13(5) excludes mental stress claims from compensation, unless the stress is an “acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”. This means that workers with mental injuries that are gradual onset or workers whose acute mental stress is attributed to traumatic events that are not unexpected in their type of employment are not eligible for compensation under the WSIA.
Stress provisions violate Charter guarantee
Section 15 of the Charter guarantees that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…” The Panel found that the legislation drew a distinction between workers with physical injuries and workers with mental injuries that was “substantively discriminatory” and therefore violated s.15 of the Charter.
The law creates a disadvantage for workers with mental stress claims that are not traumatic, sudden and unexpected. It deprives claimants of immediate financial compensation; to receive compensation for their injury, a worker must pursue a more costly and complex avenue for compensation – a tort remedy, where the worker must prove the employer’s negligence and has no security of payment.
The Panel also recognized that by limiting mental stress claims, the legislation perpetuates the stereotype that mental illness is due to personal weakness, and that those with mental illness are undeserving of protection by workplace insurance schemes.
The Panel also found that WSIA limits mental health claims based on a false belief that it is more difficult to establish the work relation of mental stress claims. The Panel concluded the work-relatedness of mental injury claims is not distinguishable from the work-relatedness of physical injury claims. Both types of claims are challenging and there is no agreed-upon test on how to determine causation.
The Panel concluded that the limitations of mental stress claims under the WSIA violate section 15 of the Charter and cannot be justified. The Panel thus refused to limit compensation of mental health claims to claims based on sudden, traumatic and unexpected events awarding the nurse compensation for her mental stress claim.
Lessons for Employers
Although the WSIAT decision is not binding, being only persuasive, chronic mental stress claims to the WSIAT can be compensated. As a result Employers may no longer be exposed to civil claims for emotional distress along with claims for moral, punitive and aggravated damages when an employee suffers mental distress in the workplace. Employers are well advised to review their policies and procedures for health related claims with their Employment Law counsel. How this will effect WSIB premiums will depend on whether future applications for mental distress benefits under the WSIA will be successful.
Lessons for Employees
The WSIAT decision means that employees with chronic mental distress claims may be entitled to compensation under the WSIA. Employees with mental stress claims who proceed under the WSIA may lose their right to bring a civil claim and other claims for additional damages; however, employees would not need to prove negligence and can receive compensation for their losses pursuant to the WSIA. Employees should discuss the WSIA option and the civil claim option with their Employment Law counsel in determining the best manner to obtain compensation.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or employee, we can help. Contact us to see how.
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