Canada: The WSIB Discriminates Against Worker With Mental Health Issues

Last Updated: September 14 2017
Article by Andrew Cogswell

In a recent unique case before the Ontario Human Rights Tribunal, the Workplace Safety and Insurance Board (WSIB) (responsible for enforcing the Workplace Safety and Insurance Act and adjudicating worker injury claims) was found to violate the Human Rights Code on the ground of disability. The case, Lawson v. Workplace Safety and Insurance Board, involved a permanently injured worker and the WSIB's processes for entitlement to health benefits. Mr. Lawson alleged that he was unable to access services provided by the WSIB due to his disability and the WSIB failed to accommodate him.

Between 2002 and 2010 Mr. Lawson and the WSIB had a tumultuous relationship consisting of long delays between adjudicative decisions, failed labour market re-entry attempts, and many appeals. This tumultuous relationship exacerbated Mr. Lawson's mental health issues, and led to threats of violence against WSIB staff and himself. In 2006 the WSIB instituted a restriction on communication, forbidding Mr. Lawson from communicating through telephone and voicemails.

The basis of the human rights application was focused on events between 2010 and 2014 that amounted to treating Mr. Lawson in a manner similar to all other injured workers and failing to accommodate his mental health needs, therefore creating barriers to accessing health benefits. In particular, the constant need for updates to approve access and funding for narcotics and other medications led to extreme anxiety and increased pain. As an example, due to the treatment of narcotics as potentially addictive, WSIB policy would require a new form to be completed every three months. Other medications that were introduced to wean Mr. Lawson off his long-term use of narcotics were only approved for a trial period – leaving little hope of success according to his physician. At other times drugs would not be covered despite being approved by the WSIB. Overall the constant interim decision making by the WSIB leading to temporary coverage "pending further investigation" had a profoundly negative effect on Mr. Lawson's condition. The paperwork required of Mr. Lawson's family physician (Dr. Watterud) and the constant questioning of her medical opinion led to a breakdown in that relationship.

In 2013 Mr. Lawson's counsel wrote directly to the WSIB's COO requesting accommodation in the manner the WSIB deals with him. The WSIB did not respond to the request for accommodation. Over the following year Mr. Lawson repeatedly requested ongoing entitlement for psychological treatments. Rather than requesting an update from Mr. Lawson's long serving psychologist the WSIB asked for, what the Tribunal described as, a full comprehensive assessment.

Vice-Chair Brian Cook summarized Mr. Lawson's experience as follows:

"the experience included contradictory requests for information, contradictory information about what was allowed and what was not, very extensive delays, lack of explanation for various decisions that were made, and seemingly arbitrary and excessive demands for information that was not necessary."

The Tribunal's jurisdiction does not include evaluating whether particular decisions of the WSIB regarding entitlement are correct, but it is within their power to determine the impact of how the decisions were communicated to a worker with well-known anxiety issues. The description of Mr. Lawson's experience is unfortunately common and not discriminatory in and of itself. However, the processes were found to be discriminatory when viewed in light of their effect on Mr. Lawson. He suffered from extreme anxiety and his disability was well known to the WSIB.

This decision, released on July 12, 2017, did not reach any conclusions on the appropriate remedy for the WSIB's breach of the Code. The parties are scheduled to re-attend to provide submissions on the appropriate remedy and CCPartners will be sure to provide an update on this particularly unique case.

Accommodating injured workers can be a challenging experience, but a workplace injury presents additional issues - an employer must deal with the worker and the WSIB. Employers must wear dual hats when a worker is injured on the job, upholding their duty to accommodate and duties pursuant to the Workplace Safety and Insurance Act. As evidenced by this decision it is not wise to assume compliance with WSIB obligations will protect you from a Human Rights Code violation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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