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Lawyers divided on WSIB stress-claim ruling

Appeals tribunal rules in favour of nurse bullied for 10 years
|Written By Yamri Taddese

In a decision that has divided employment lawyers, a Workplace Safety and Insurance Appeals Tribunal panel has found chronic workplace-related stress could be a valid claim under the province’s workplace insurance system.

‘It doesn’t follow that just because there has been a declaration on these provisions that all of a sudden it will be easy to put through a claim for mental stress,’ says Jason Beeho. Photo: Robin Kuniski

Some lawyers say the decision that found provisions restricting claims for work-related stress were unconstitutional may encourage people who are simply stressed out at work to pursue compensation.

But others say there’s no reason to panic and laud the decision for asking the Workplace Safety & Insurance Board to consider psychological injuries sustained on the job over time.

Currently, the Workplace Safety and Insurance Board only compensates workers for physical injuries suffered on the job or acute psychological injuries that follow a “traumatic” event.

But in the case of a nurse bullied by a doctor for more than 10 years, the tribunal found she should seek a claim for the depression and anxiety she suffered. The doctor would make demeaning comments, “shoo” her, close the door on her heels, and interrupt her interaction with patients, according to the ruling.

In  decision No. 2157/09, the tribunal rejected the Ontario attorney general’s argument that there was no way of establishing causation between mental-health issues and workplace factors.

“When weighing the deleterious effects of the impugned provisions against their salutary benefits, we find that there is an imbalance between the substantial harmful effects on the claimant group and the speculative net benefit created by the impugned provisions for the workplace insurance system,” the tribunal said.

The Ministry of the Attorney General says it’s reviewing the decision to see if it warrants a judicial review application.

For employment lawyer Howard Levitt, the decision completely ignores the nature of fraudsters.

“If you’re a person who is prepared to commit fraud and not work to recover money, it’s much easier to say you’ve got some mental stress or disability than to say you’ve got a broken back,” he says.

“They are more prone to be more fraudulent because it’s easier to fake. I know that with certainty because that’s what I find in my client base.”

Citing a 2012 WSIB independent review, Levitt says the board had already been facing $14.5 billion in unfunded liabilities and suggests “we can’t even begin to afford” more costs. “It’s outrageous,” he adds.

But to Jason Beeho, an occupational health and safety lawyer at Rubin Thomlinson LLP, the decision didn’t come as a surprise at a time of growing awareness around mental-health issues in the workplace. “My reaction to it is not one of panic; it’s not one of: ‘Good heavens, now employers are going to see claims brought right, left, and centre,’” he says.

While workers may be more likely to bring stress-related applications as a result of the decision, there’s nothing to suggest their claims will be easy to win, he adds.

“The upshot of this decision is that the tribunal is saying the board needs to be prepared to look at these complicated applications and sort them out on the same basis they would sort out any other claim for injury. It doesn’t follow that just because there has been a declaration on these provisions that all of a sudden it will be easy to put through a claim for mental stress.”

So far, Beeho adds, the work has been simple for the board by simply rejecting claims for chronic mental-health injuries.

“The literature establishes a relationship between acute traumatic events and mental disorders; the evidence also establishes a causal relationship between chronic stress and mental disorder,” the tribunal said in its findings.

But to Levitt, it would be both costly and difficult for the board to disprove claims of chronic mental illness associated with the workplace.

“How can you prove that somebody’s psychiatric illness, if it’s even that, wasn’t caused by not being adequately supported by their boss if that’s what they tell their psychiatrist?” he asks.

“So somebody has a dispute with a coworker and they don’t get support from their boss — sometimes for a good reason, by the way — and then they tell their psychiatrist: ‘My boss didn’t give me adequate support.’ I mean, imagine the opening for people who would love to not have to work.”

Levitt also takes issue with how the appeals tribunal has characterized non-traumatic workplace injuries.

The tribunal said: “The evidence demonstrates that workplace stressors are not limited to ‘job strain,’ but rather, there are many other types of non-traumatic workplace stressors that may be associated with mental disorders, including bullying, lack of managerial support, interpersonal conflicts, and humiliating events.”

Says Levitt: “Who could not claim one of those in the last year?”

But William LeMay, a lawyer at Hicks Morley Hamilton Stewart Storie LLP, has yet to draw conclusions about the case and what it could mean for future decisions.

“My impression of the vice-chair’s decision is that she thought she had some facts that were concerning to her in this case and those won’t arrive in every case,” he says.

Beeho, too, notes the tribunal’s decisions aren’t binding legal precedent and it doesn’t have to arrive at the same conclusion in similar cases.

“It’s not as though this is hard-and-fast precedent but it certainly is instructive,” he says.

LeMay says the message in this case is that employers need to make sure their violence and harassment policies are “up to date, enforced, and communicated.”

And when employers receive complaints from staff, it’s important to take them seriously, he says.

  • Wsib claims

    Pat rutter
    Not happy with the wsib
    And how they work I've been injured for at least 2 years
    And the process seems to be in their favor
    Whi knew that working in a hospital that I would of
    Treated that way not me here I am waiting again for appeal
    A verbal appeal and was sent home noncontact with union nor ever meet our para legal lawyer
    I hope this don't happen to you
    Now I'm depressed have chronic pain everyday
    I don't feel to go out can't walk good so many thing wrong
    But still waiting the wsib have watch dogs watching me like I'm not injured but that's not true they have all information on my injurys yet I still wait I'm upset with the whole process please help thanks
  • Serge Duval
    This is a pretty interesting concept. I'm sure the issue puts pressure on companies to make sure they are allowing their employees proper resources for relieving stress. I imagine these cases would be a bit subjective and the judgment call would depend on the specific situation. It's important to be well represented in these cases, that's for sure! Thanks for the article!
    www.yormaklaw.ca
  • Dave Oakes 13152209
    The service is shoddy , they will go as far as to fabricate fake medical information witch is a crime! Using it and distributing it is also a crime. The government should get out of the insurance business their more concerned about there fat salories and lush pensions , the don't care about injured workers....
    Hold please
  • darby dunn
    I have a question if an IW was granted psychological injury claim but later denied benefits for what WSIB claims is mental stress.
  • Jane Fairfax
    I know that these kinds of cases can be very confusing and stressful. My cousin is looking at one very soon, and he is not too excited. Right now, he needs to find a good lawyer to help him out. I know that will make things easier.

    http://www.yormaklaw.ca/services.html
  • Wanda Kowalski
    Unfortunately, there will always be people who would try to make fraudulent claims ... It is common right? But WSIB still provides for people truly unable to work. Why shouldn't that apply to folks seriously harassed on the job to the point where they are unable to function. The injuries of harassment are invisible but they are as serious as any physical injury
  • Darren MacKay
    You're right in most of your comment Wanda, Except for the part "WSIB still provides for people truly unable to work"... They only accept claims and string people along, long enough to stop a Rightful Lawsuit- then they leave Permanently and Seriously Injured Workers to fend for themselves.
  • Marc Bedard
    Yes it is essential to remember that WSIAT rulings do not set Legal precedent and cannot be cited or referenced in future decisions.

    If anything the Board in recent years are making psychological entitlement very difficult to claim. This approach will only get worst.
  • Frank Mucci
    @Marc Bedard - as an Appeals Resolution Officer for the WSIB, it is not surprising your comment as it pertains to the WSIB and WSIAT. More surprising is your syntax and grammatical errors.
  • WSIB Claim 20083667
    This is a Board employees stress claim that was denied. The first stressor is having the Board as the Employer adjudicate its own employees claims.
  • Evan Sorestad
    If you are going to criticize someone else's grammar and syntax, your credibility would be greatly enhanced if yours was correct...

    ("...it is not surprising your comment as it pertains...")
  • Evan Sorestad
    For the facts, it was probably the right decision. The biggest problem with the case is the fact that the adjudicator was very lazy with the language - equating "stress claim" with "disability" because it was in the commom parlance. What utter nonsense! "Stress" is not "depression", and "stress" is not a "disability". The language of the decision is not helpful at all and only serves to muddy the waters that are difficult enough already.
  • you suck
    Have you ever been harassed at work?guess what that leads to stress,I bet you must of been the bully at school.
  • wsib 13152209
    Workers Comp Stress Syndrone ! Is caused by years of over exposure to the beaucratic beast....
  • Young Lawyer
    The heading should be changed to reflect that this was a WSIAT (Tribunal), and not WSIB (Board) decision. These are two separate and independent adjudicative bodies.
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