Traumatic mental stress in the workplace:

Jeffrey Percival

Partner | Pallett Valo LLP

(905) 247-5002 | jpercival@pallettvalo.com

Most Ontario employers are required to have mandatory coverage under the Workplace Safety and Insurance Act (WSIA). A premium payment to the Workplace Safety and Insurance Board (WSIB), provides access to WSIB benefits for workers who are injured in the course of their employment and not able to work as a result.

A recent emerging area of WSIB entitlement relates to traumatic mental stress (TMS) experienced by Ontario workers. TMS is conceptually distinct from chronic mental stress claims, which are covered under a separate WSIB policy.

Who can claim TMS benefits?

The WSIB recently released its new Operational Policy 1503-02 regarding the initial entitlement adjudication of TMS claims.

In terms of this policy, a worker is not entitled to WSIB benefits for TMS caused by decisions or actions of the worker’s employer relating to their employment. Although such actions may have consequences under the Employment Standards Act or the Human Rights Code, they do not support TMS claims before the WSIB.

The policy provides that a worker will generally be entitled to TMS benefits if an appropriately diagnosed mental stress injury is caused by one or more sudden and unexpected traumatic events during the worker’s employment. The worker must have suffered or witnessed the traumatic event(s) first-hand or heard about it through direct contact with the traumatized individual(s). The policy makes allowance for the cumulative effect of multiple traumatic events. Each must have had some effect or life disruption on the worker, even if the prior event(s) did not functionally impair the worker.

Diagnosing mental stress

Before any TMS claim can be adjudicated, there must be a specific diagnosis using the Diagnostic and Statistical Manual of Mental Disorders, which may include acute stress disorder, post-traumatic stress disorder, adjustment disorder, or an anxiety or depressive disorder.

The WSIB decision-maker must be satisfied that the trauma arose during the worker’s employment and caused, or significantly contributed to, an appropriately diagnosed mental stress injury.

Employers, take note

If your business is covered by the WSIB and you have a worker who alleges that they have experienced TMS in the workplace or any other workplace-related injury, it is important to get timely legal advice to understand your reporting and claims related obligations to the WSIB. Failure to do so may have significant and costly consequences, both in relation to the WSIB and to your obligations to protect the health and well-being of your employees. Pallett Valo LLP has extensive experience in acting for employers on WSIB and Workplace Safety and Insurance Appeals Tribunal-related matters.