In a ground-breaking decision, the Workplace Safety and
Insurance Appeals Tribunal has found that a provision in the
Workplace Safety and Insurance Act (the
"Act"), which denied benefits to workers
suffering from non-traumatic mental stress, is
The Act is designed to provide benefits to employees
who have sustained personal injury in the course of their
employment. However, the Act provides that employees are
not entitled to benefits for mental stress unless the stress is
"an acute reaction to a sudden and unexpected traumatic
event" in the course of employment.
This is seen by many as unjust. The Ministry of Labour has
indicated that approximately 30% of disability claims involve
mental illness. Nevertheless, employees suffering from workplace
stress, unlike employees who have suffered physical injury, are
denied access to workers' compensation benefits.
This decision involved a claim by a nurse who worked at the same
hospital for 28 years. For 12 of those years she claims she was
subjected to mistreatment by a doctor who worked with her. She
claimed the doctor yelled at her and made demeaning comments to her
in front of both colleagues and patients. Coworkers brought her
mistreatment to the attention of management, but no steps were
taken to deal with the issues and the doctor's behaviour
After a particularly difficult incident, the nurse complained to
management about her treatment by the doctor. The hospital
responded by demoting her. The worker was so distressed that she
sought medical attention. She was diagnosed with an adjustment
disorder with anxiety and depression attributable to the stress she
suffered in the workplace.
The WSIB denied the claim because the nurse's condition was
not the result of an "acute reaction to a sudden and
unexpected traumatic event."
The case was appealed to the Workplace Safety and Insurance
Appeals Tribunal. The Tribunal concluded that the nurse would have
been entitled to benefits but for the restriction on awarding
benefits as a result of mental stress.
The Tribunal went on to find that the provisions of the
Workplace Safety and Insurance Act which deny benefits for
mental stress violated the guarantee of equality under the
Charter of Rights and Freedoms.
Implications of Decision
Although the Workplace Safety and Insurance Board is not bound
to follow the decisions of the Tribunal it is expected that this
case will form the basis of a new policy by the WSIB to accept
claims based on mental stress.
In 2011, the WSIB allowed 677 claims for traumatic mental
stress. The potential claims arising out of
"non-traumatic" mental stress will no doubt greatly
exceed this number. The Government of Ontario has stated that 1 in
5 Canadians are affected by mental illness every year. Certainly
not all mental illness arises because of workplace stress. However,
if the WSIB allowed 677 claims for traumatic mental stress in 2011,
it is a reasonable assumption that there are many more
"non-traumatic" claims for workplace mental stress.
Concerns have been expressed that the increased number of claims
expected as a result of this ruling will result in sky-rocketing
increases in WSIB premiums at a time when employers are already
complaining about the high cost of WSIB coverage.
The Appeals Tribunal addressed those arguments. It noted that
there was little evidence regarding the cost of mental stress
claims in Ontario. It also noted that any argument that people with
mental stress claims would put an unjustified burden on the
workplace insurance system merely served to "exacerbate the
historical disadvantage faced by persons with mental
disabilities" because it assumes that they are not deserving
of benefits and places the burden on society.
It is likely that the Ontario government will challenge this
ruling in the Divisional Court. In the meantime, applications for
benefits based on non-traumatic mental stress are likely to be
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