Compensating psychological injury

Whether the result of trauma or chronic pain, workplace psychosocial hazards such as harassment, or frustrations in dealing with the compensation system, stress and other mental health conditions take a huge toll.  Here are some brief updates on related events from across the country….

This July Ontario MPP, Cheri di Novo (NDP-Parkdale) reintroduced her  bill amending  the  Workplace Safety and Insurance Amendment Act to make  post-traumatic stress disorder a presumptive condition for emergency services workers  (firefighters, police and paramedics).  If passed, Ontario would join Alberta, which in passing its 2012 amendment led the way in enabling first responders to more easily establish PTSD claims. With the Manitoba WCB report on the issue expected this fall, Manitoba may introduce similar legislation (“Emergency responders across Canada seeking better treatment for PTSD”, July 27 2014).  Meanwhile, soldiers and veterans with PTSD continue to struggle for their benefits…. (“Injured veterans’ frustration with Ottawa shows no sign of abating”, Globe and Mail, June 18, 2014)

Workplace cumulative and gradual onset stress were addressed in Nova Scotia’s 2013 consultation on psychological injury  however the March 2014 final policy reflected employers’ responses to broadening coverage.

A number of recent court decisions in Western courts have ruled employees suffering stress from workplace bullying or harassment cannot sue their employers if the workplace is covered by workers compensation. While the reasoning in these decisions is rooted in the historic trade-off, Daniel Bokenfohr of McLennan Ross questions “To what extent does workers’ compensation legislation insulate employers from liability?”(Spring 2014). In a related article, David Harris and Ken Alexander (“Does workers’ compensation undermine other civil remedies?”, Law Times, Jan. 13, 2104) discuss other Charter challenges and responses to various provincial laws in Nova Scotia, BC and Ontario on harassment and mental stress.

While the March Supreme Court of Canada decision Martin v Alberta (Workers’ Compensation Board) [2014] 1 S.C.R. 546  on chronic onset stress dealt with provincial jurisdiction in federal workers’ claims, restrictions on benefit entitlement to psychological injuries as a constitutional issue were not part of the formal challenge.

In April an Ontario Appeals Tribunal decision 2157/09 did rule the statutory limits on mental stress entitlement to be a breach of equality rights under the Charter. The case, involving workplace abuse over a period of 12 years, found chronic workplace-related stress could be a valid claim though it left lawyers divided on WSIB stress claim ruling (Law Times, June 9 2014).

And for Ontario workers facing workplace stress, a reminder that Occupational Health Clinics for Ontario Workers has a  guide to rights and legal protections in the online “Mental Injury Toolkit”, prepared by OHCOW and the OFL.