WSIB and Mental Illness
Ed Canning Aug 18, 2014
Most workers in Ontario are clearly entitled to Workers’ Compensation payments if they lose income as a result of an injury or illness caused by work. When it comes to mental health issues, however, “illness” has always been defined as “an acute reaction to a sudden and unexpected traumatic event.” That is what the legislation says.
Traditionally, what that meant was that you would not receive Workers’ Comp for mental health issues unless you had witnessed something truly extraordinary at work. If you were robbed at gunpoint or witnessed a maiming or fatal accident in the workplace, and had a reaction to it, you would get coverage.
That traditional interpretation appears to be changing. Donna worked for the same hospital for 28 years and was described by her co-workers as a caring and competent nurse. For the last 12 years of her employment she was treated very badly by a doctor who worked with her. This included yelling at her and making demeaning comments in front of colleagues and patients. Concerned co-workers brought this mistreatment to the attention of management but nothing was done.
This treatment culminated when the doctor began interrupting her when she was trying to take history from patients, shooing her out of the room and closing the door on her heels. When Donna complained the next day, her team leader told her that her responsibilities would be reduced. Donna was demoted. She felt pushed around, battered, humiliated and discredited and she sought medical help. She was diagnosed with an adjustment disorder with mixed features of anxiety and depression.
When Donna went off work and applied for WSIB, she was denied because she had not had an acute reaction to a sudden and unexpected traumatic event as required by the Act.
Donna challenged the legislation under the Charter of Rights and Freedoms of Canada which guarantees equal treatment under the law on the basis of her disability.
Donna won her case. She argued successfully that the legislation treated people with a gradual onset of mental stress as a result of workplace issues differently from those who had a reaction to a particular traumatic event. Fundamentally, the question she posed to the court is why should the person who witnesses a violent accident be entitled to coverage but the person whose mental health is diminished slowly but steadily as a result of workplace events cannot? Two sets of people with mental health issues arising from workplace events or factors are being treated differently.
The WSIB Tribunal hearing the appeal agreed and held that the provisions of the Act requiring the mental health issue to have arisen from an acute re-action to a traumatic and unexpected event were unconstitutional. The government’s arguments that it would be impossible the determine whether slowly emerging mental health issues were actually caused by work did not prevail.
This decision is not binding on future decision-makers but if it is a sign of a new trend, I predict an increase in WSIB premiums for employers. This potential change in the law would open up the field to a whole raft of claims for mental distress that WSIB has never had to deal with before.
Every job in the world involves stress. Many people hold positions where every night, year oafter year, when they go home, there is still a mountain of work left undone. Even if their boss is not a bully’s like Donna’s was, the stress of always being behind can wear some people down.
While others may be able to walk away and forget work until the next morning, some people are more tightly wound and cannot let things go. If this stress eventually leads to anxiety and then full blown depression then according to the decision in Donna’s case, they will be entitled to WSIB payments. Donna’s case did not turn on the fact that her condition was recklessly caused by the employer. More claims cost more money and the money has to come from somewhere.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at firstname.lastname@example.org