On April 27, 2017, the Ontario Government introduced Bill 127 - the Stronger, Healthier Ontario Act (Budget Measures), 2017. Among amendments to several other statutes, Bill 127 will result in significant amendments to the Workplace Safety and Insurance Act, 1997 (WSI Act) which are set out in Schedule 33 of the Bill.
The most notable change to the WSI Act will expand the scope of entitlement for mental stress. It is anticipated that the Bill will be passed quickly. The mental stress amendments will then be in force on January 1, 2018 without retroactive application. These amendments will repeal subsections 13(4) and (5) of the WSI Act which currently read as follows (with emphasis added):
Exception, mental stress
(4) Except as provided in subsections (5) and 14 (3), a worker is not entitled to benefits under the insurance plan for mental stress.
(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
In recent years, a few claim appeals before the Workplace Safety and Insurance Appeals Tribunal (WSIAT) have challenged these provisions as being contrary to section 15 of the Charter of Rights and Freedoms. In April 2014, the first and now leading decision of the WSIAT on this issue, WSIAT Decision No. 2157/09, determined that the provisions did infringe the Charter and entitlement to benefits was granted in a case where the traumatic mental stress threshold was not met. We previously wrote about that decision here.
Despite this line of WSIAT decisions, the WSI Act was not amended to bring it into compliance with the Charter. WSIB policy and decision making practice on mental claims has remained unchanged over the past three years.
Although Ontario introduced presumptive entitlement to benefits for PTSD for First Responders in April 2016, only now have they addressed the impact of the WSIAT case law. With Bill 127, subsections 13(4) and (5) of the WSI Act will read as follows (again, with emphasis added):
(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker's employment.
(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
The terms "chronic mental stress" and "traumatic mental stress" are not defined in the WSI Act and Bill 127 does not include new definitions for these two terms. The WSIB has already established operational policy respecting traumatic mental stress which has been applied over the past 20 years. In response to Bill 127, the WSIB has now released a draft policy respecting chronic mental stress for consultation. Submissions on the draft are due by July 7, 2017.
Expanded benefit coverage for mental stress will have wide ranging implications for Ontario's workers and workplaces. Mental health injuries and disabilities are a significant cause for insured disability benefit claims, absence from work, and requirements for workplace accommodation. An expanded role of the WSIB in respect of injuries and illnesses that previously have been excluded from coverage could affect the cost of insured benefits and cost of WSIB insurance. Adjudication to benefits under the WSI Act could bring many mental health claims outside of grievance arbitration of civil litigation, and will move benefit decisions from private insurers to the WSIB. These changes will undoubtedly involve the WSIB in worker health care management, return to work, and disability accommodation for cases that they previously had no involvement.
We anticipate that the absence of a definition of "chronic mental stress" in the WSI Act will lead to more disputes over adjudication of entitlement and an increase in claim appeals. It will be important that employers conduct a thorough investigation into any claim of mental stress, traumatic or chronic.
The lawyers of CCPartners are pleased to assist clients in the understanding of these amendments, in the preparation of submissions to the WSIB in respect of its draft policy, and in preparation for investigation, reporting and managing cases of occupational mental stress. Click HERE for our team members who can assist you with your WSIB questions.
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.