A recent decision of the Ontario Workplace Safety and Insurance
Appeals Tribunal ("the Tribunal") has significantly
expanded the scope of entitlement for workplace events that cause
traumatic mental stress.
Traditionally, traumatic mental stress benefits were only
granted when a claimant experienced a traumatic event which
presented a real or implied threat to a person's physical well
being. In Decision 483/11, the Tribunal held that a threat
to a person's physical welfare is not required for a finding of
entitlement to benefits based on traumatic mental stress.
The claimant in question was an educational assistant who sought
benefits for mental stress after being falsely accused of striking
a Grade 5 student in class. The claimant was suspended to allow the
school to investigate the allegation, and was reinstated after
being exonerated by the investigation. However, the claimant was
diagnosed with major depression and was unable to continue her
The Tribunal found that the false allegations and subsequent
events were objectively unexpected and traumatic, and resulted in a
disabling psychological condition. A report from the claimant's
treating physician indicated that the claimant experienced
flashbacks of the moment of her suspension, and avoided children
and places like schools and playgrounds. Medical evidence also
showed the claimant experienced sexual and emotional abuse in her
childhood, memories of which were triggered by the incident.
In an earlier decision released in May 2011,1 the
Tribunal found that the claimant would be entitled to benefits for
traumatic mental stress, but for an apparent requirement in the
applicable Workplace Safety and Insurance Board ("the
Board") policy2, that the traumatic event must
involve a real or implied threat to a person's physical
well-being. The Tribunal adjourned the claimant's application
to receive submissions from the Board on an apparent inconsistency
between the Board's traumatic mental stress policy and the
Workplace Safety and Insurance Act, 1997 on this point, as
well as inconsistencies within the Board policy itself. The
Tribunal also asked the Board to clarify whether a diagnosis of
post-traumatic stress disorder ("PTSD") is a
pre-requisite for entitlement under the Board's policy.
In response to the Tribunal's request, the Board advised
that a real or implied threat to a person's physical well-being
is not required to find entitlement to traumatic mental stress
benefits. The Board also clarified that PTSD is not the only DSM-IV
diagnosis that can form the basis for entitlement; any Axis I
diagnosis may suffice. After receiving the Board's response,
the Tribunal granted the claimant benefits for traumatic mental
Decision 483/11 is significant because it considerably
widens the scope of compensable events in traumatic mental stress
cases to situations that result in traumatic stress without the
presence of a threat to physical well-being. As a result of this
decision, employers should expect to receive more claims for
traumatic mental stress. Employers can take some comfort, however,
in the fact that all claimants seeking entitlement to traumatic
mental stress have a significant evidentiary burden to meet. To be
successful in a traumatic mental stress claim, it must be
demonstrated that the claimant was exposed to a workplace event
that is identifiable, objectively traumatic and unexpected in the
normal course of the worker's employment, and that a disabling
psychological injury occurred as a result, as demonstrated by an
Axis 1 DSM-IV diagnosis.
We understand that none of the parties to Decision
483/11 are seeking reconsideration or judicial review of the
Tribunal's decision. Decision 483/11 can be accessed
at the following website: http://canlii.ca/t/fmltw.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).