Mental Stress Changes in the WSIA and Policy

Recently the Workplace Safety and Insurance Act (WSIA) was amended with regard to mental stress claims.  The changes, which are effective January 1, 2018, will benefit some injured workers with chronic stress claims.
Changes to the WSIA
Until December 31, 2017, workers are only entitled to benefits for mental stress injuries that are an acute reaction to sudden and unexpected traumatic events that arises in and out of the workplace.  However, any mental stress that is caused by decisions or actions of the worker’s employer relating to the worker’s employment is not compensable.
As of January 1, 2018, the WSIA will continue to deny benefits for mental stress caused by an employer’s actions or decisions.  However, the recent amendments eliminate the need to show that the injury was an acute reaction to a sudden and unexpected traumatic event.  Instead any chronic or traumatic mental stress arising out of and in the course of the worker’s employment will be compensable.
New Draft Policy
The Workplace Safety and Insurance Board (WSIB) has prepared a draft policy on mental stress to deal with these changes to the WSIA.  There was a consultation in the spring of 2017 during which WSIB heard from worker and employer representatives what they thought about the policy.  Each side wanted to see different changes to the policy.
The OWA raised the following notable concerns:
·         Some sections of the policy might be misinterpreted to mean that a different and higher standard is needed to show that a chronic stress claim is work-related
·         The description of traumatic events is too narrow and a broader definition should be used
·         The definitions of bullying and harassment are too narrow and the WSIB should adopt the definitions used in the Occupational Health and Safety Act
·         Asking for a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) could create a difficult barrier for injured workers and should be removed
·         The limitation on entitlement for stress caused by an employer’s actions may not be constitutional and the WSIB should undertake a public review of this question.  In the alternative, the policy should interpret this limitation more narrowly
·         The policy should be applied retroactively to January 1, 1998 or, in the alternative, to 2008
It is anticipated that WSIB will finalize its policy later in 2017.
                                                                                                                                               August, 2017