Legislative Update: WSIB Claims for Chronic Mental Stress
On December 14th, 2017, Bill 177, Stronger, Fairer Ontario Act, (Budget Measures) 2017, received Royal Assent. As a result, significant amendments came into force on January 1, 2018 surrounding WSIB claims for mental stress under the Workplace Safety and Insurance Act (“WSIA”).
Prior to the implementation of these amendments, entitlement to mental stress claims was limited to cases where there was an “acute reaction to a sudden and unexpected event”. The Workplace Safety and Insurance Tribunal ruled that the limitation on claims for mental stress was unconstitutional. As a result, workers will be entitled to WSIB benefits if chronic or traumatic mental stress arises out of and in the course of the worker’s employment. The amendments significantly lower the threshold for entitlement to benefits arising from mental stress in the workplace. In addition to the lower threshold, transitional rules have been implemented to ensure that existing claims for mental stress will be adjudicated based upon the new provisions and new policy concerning chronic mental stress in the workplace. Lastly, workers will be entitled to make claims for mental stress that arose between April 29, 2014 and January 1, 2018, and will have until July 1, 2018 to file a claim.
To be eligible for WSIB benefits, chronic mental stress must be predominantly caused by a substantial work-related stressor or series of stressors, beyond normal workplace management decisions. Three criteria must be satisfied in order to be eligible for benefits: (1) a medical diagnosis from a regulated health professional; (2) the person has experienced a substantial work-related stressor (this can comprise of a cumulative series of work-related stressors), including workplace bullying or harassment; and (3) the substantial work-related stressor was the predominant cause of the diagnosed mental stress injury. The policy is clear, however, a worker is not entitled to benefits if the mental stress is caused by decisions or actions of the worker’s employer relating to the worker’s employment, such as changes to working conditions, discipline or termination of employment. Notably, the policy provides that interpersonal conflicts between workers and supervisors are features of normal employment, and will not generally be considered to be a substantial work-related stressor.
These changes are significant for employers. The impact is twofold: (1) as a result of the transition rules, claims dating back to April 2014 may emerge during the fresh six-month window that has been created, along with the lowering the threshold for such claims; (2) employers may now face increased costs of dealing with claims for chronic mental stress. While the Policy limits entitlement to “substantial” workplace stressors, concepts such as harassment and bullying are often confused with legitimate management actions in the workplace.