May 26, 2014
The Workplace Safety and Insurance Appeals Tribunal (“the Tribunal”), in Decision no. 2157/09, has declared that certain provisions under the Workplace Safety and Insurance Act (“WSIA”) related to traumatic mental stress are unconstitutional.
The worker in this case was employed as a nurse with the same hospital for 28 years. During her last 12 years of employment, she was consistently subjected to ill treatment by a doctor who worked with her. Concerned co-workers brought this mistreatment to the attention of the team leader but no action was taken and the doctor’s behaviour continued. The worker eventually brought her concerns directly to the team leader who advised her that her responsibilities would be significantly reduced. The worker was effectively demoted, although her job title and classification stayed the same.
The worker was unable to continue working after these events and was diagnosed with an adjustment disorder with mixed features of anxiety and depression, which her treating health practitioners attributed to workplace stressors. The worker’s claim for mental stress was denied by both the Workplace Safety and Insurance Board (“WSIB”) and the WSIB Appeals Branch because the worker did not have “an acute reaction to a sudden and unexpected traumatic event” as required by subsections 13(4) and (5) of the WSIA and the WSIB’s Traumatic Metal Stress Policy.
The worker appealed the decision of the Appeals Branch to the Tribunal claiming that subsections 13(4) and (5) of the WSIA violated her rights to equality as guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”).
The Tribunal concluded that these sections violated the Charter as it was discriminatory to subject mental stress claims to strict entitlement criteria while physical claims were permitted consideration on the basis of their individual merits. Furthermore, the Tribunal accepted expert evidence that medical professionals were capable of determining the causation of mental stress (whether work related or not).
The Tribunal further commented that the Alberta and Saskatchewan Workers’ Compensation Board’s policies regarding mental stress “reflect an approach that permits flexibility and consideration of the needs and circumstances of the claimant group.” For example, in Alberta, mental stress claims are granted in circumstances where the workplace is the “predominate cause” of the condition and the events causing the stress are “excessive or unusual”. Given these comments, it is possible that the WSIB may revise its current policy on Traumatic Mental Stress to reflect Alberta’s approach.
While any decision of the Tribunal is binding only on the parties to the appeal, it remains to be seen how other Panels of the Tribunal will address this issue. If the decision is followed in subsequent cases or if changes are made to Board Policy this decision could expand the circumstances in which a worker’s claim may be allowed due to mental stress.
If you have any questions about the impact of this decision or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer or Compclaim consultant.
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