SCOPE OF ENTITLEMENT TO BENEFITS
While the WSIA will soon provide benefits for chronic mental
stress injuries related to a worker’s employment, not all chronic
mental stress injuries that occur in the workplace will be covered.
Specifically, the WSIA will not apply to claims for mental stress
injuries caused by the decisions or actions of employers relating
to a worker’s employment. Therefore, an employer’s decision to
change a worker’s duties, change the working conditions, carry out
discipline or terminate a worker’s employment will not give rise to
an entitlement under the WSIA.
PROVING ENTITLEMENT TO BENEFITS
As set out in more detail below, the WSIB recently released a new
Chronic Mental Stress Operational Policy 15-03-14 (the “Policy”)
which sets out what workers will need to show in order to qualify
for benefits for chronic mental stress.
1. DSM DIAGNOSIS OF MENTAL STRESS INJURY
FROM A QUALIFIED HEALTH PRACTITIONER
In accordance with the Policy, a physician, nurse practitioner, psychologist
or psychiatrist must diagnose the worker with a mental
stress injury in accordance with the Diagnostic and Statistical
Manual of Mental Disorders (DSM) in order for the worker to be
entitled to benefits. This might include a diagnosis of any number
of disorders including anxiety or depressive disorder.
2. PRESENCE OF A SUBSTANTIAL
WORK-RELATED STRESSOR
A diagnosis from a qualified health practitioner is only the first
step for establishing entitlement to benefits. A worker must also
show that the mental stress injury was caused by a substantial
work-related stressor arising out of and in the course of the worker’s
employment.
A substantial work-related stressor can be a number of different
stressors or a series of cumulative work-related stressors,
however it must be identifiable. A decision-maker must be able
to corroborate the existence of the work-related stressor through
information or knowledge provided by the worker’s colleagues,
employer or others.
In addition to being identifiable, the work-related stressor must
of course be substantial, which the Policy defines as “excessive in
intensity and/or duration in comparison to the normal pressures
and tensions experienced by workers in similar circumstances.”
The Policy confirms that workplace harassment will generally be
considered a substantial work-related stressor, whereas interpersonal
conflicts that do not amount to workplace harassment or
egregious or abusive conduct will not. However, it is important to
keep in mind that not every worker who experiences workplace
harassment will be able to make a claim for benefits, as workers
will still need to show they have suffered a mental stress injury
through a DSM diagnosis from a qualified health practitioner.
3. SUBSTANTIAL WORK-RELATED STRESSOR MUST BE
PREDOMINANT CAUSE OF MENTAL STRESS INJURY
Finally, the WSIB must be satisfied on a balance of probabilities
that the substantial work-related stressor was the predominant
cause of the mental stress injury, i.e., the “primary” or “main” cause
of the mental stress injury in comparison to any other stressors.
However, this does not necessarily mean that at least 50 per
cent of the mental stress injury must be caused by the substantial
work-related stressor. Per the Policy, the substantial work-related
stressor could be considered the predominant cause of the mental
stress injury even if it is ultimately outweighed by all of the other
stressors when combined.
The predominant cause requirement is a conceptually tricky
piece of the analysis. It may require identification of each stressor
legal words
IN ADDITION TO BEING
IDENTIFIABLE, THE WORKRELATED
STRESSOR
MUST OF COURSE BE
SUBSTANTIAL.
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14 ❚ CONFERENCE ISSUE 2018 ❚ HR PROFESSIONAL
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