What will you do if a worker submits a claim for chronic mental stress?

December 17, 2017

​​Ontario’s Workplace Safety and Insurance Board (WSIB) new policy for Chronic Mental Stress Policy # 15-03-14 comes into force January 1, 2018. Ontario isn’t the only province or the first to cover chronic mental stress. B.C., Alberta, Saskatchewan, and NWT and Nunavut have covered chronic mental stress for a few years already. Employers I have talked with in Alberta and Saskatchewan are already struggling with claims. This is not surprising, considering the high rate of mental illness in Canada.

 

We know that WSIB is in the process of training a couple of hundred case managers to handle the influx of claims. We can expect to see WSIB costs increase, particularly with the new rating system coming in force in 2018. Yet, many employers are unaware of the new policy and the huge impact that it may have on their organization. I have talked with many Disability and Claims Managers, and OH&S and HR professionals who have said that they don’t have a clear understanding of the new policy or how to prevent and manage the claims that are likely coming their way. Surprisingly, a few have even said they are waiting to see how the WSIB handles the first few claims. 

 

Knowing what is in the policy is one thing. Understanding how to prevent and manage chronic mental stress claims is another.

 

Believe me. I understand that this is a complex and uncomfortable area to get into.  But employers really don’t have a choice. We are entering a new era in workers’ compensation. This is happening. Being prepared will help lessen the negatives impacts on the organization and the worker.

 

Accident Date May Be Retroactive
The WSIB policy will cover chronic mental stress claims with accident dates on or after January 1, 2018. The accident date is the date that the worker receives a diagnosis of a mental illness by a regulated health care professional:

  •     Physician;

  •     Nurse practitioner;

  •     Psychologist; or

  •     Psychiatrist.

 

Complex cases and ongoing entitlement will require assessment by a psychiatrist.  This requirement is straightforward.

However, on November 14, 2017, the WSIB announced that additional amendments to the Workplace Safety and Insurance Act have been introduced. If passed, the policy will be amended to provide potential entitlement to:

  • workers who were diagnosed with a work-related chronic mental stress disorder on or after April 29, 2014; and

  • workers have not yet received a final decision on their mental stress claim by the WSIB and/or the WSIAT as of January 1, 2018.


The retroactive date would put WSIB more in line with other provinces that already cover claims for chronic mental stress.

 

Access to Mental Health Services
Many employers and worker advocates expressed concern and frustration over the lack of available mental health services during the consultation period for the draft policy.

Thankfully, WSIB has responded by taking action to help workers gain access to psychological assessment and treatment through the WSIB’s new Community Mental Health Program, which they developed in partnership with the Ontario Psychological Association. This benefit, aimed at helping with early and safe return to work, is only available to the worker once their claim is approved.

Commendable, yes. But…

 

Does the Policy Discriminate Against Workers with Mental Illness?
While it is high time that workers are compensated for the disabling effects of chronic mental stress from their work, news of this new policy has stirred up much controversy and even anger. Many feel the new policy discriminates against workers with mental illness by requiring a higher standard of causation than for those with physical injuries. They fear that workers who truly need help will be denied.

Workers who launch claims may find themselves stuck in a sort of claims purgatory as the parties argue about whether there was a substantial work-related stressor and whether the stressor was the predominant cause of the mental illness, particularly if the worker has a pre-existing mental illness. Unless the causation is very clear (e.g. harassment or bullying).

This is a higher threshold than that required for a physical injury.

 

Impact on the Worker

This presents several problems. A worker with mental illness may not have the ability or energy to do what is necessary to prove their claim. If the worker is waiting for treatment for their mental illness while initial entitlement is being decided, they may be at risk of their symptoms worsening.

We already know that the longer a worker is off work, the more difficult it is to get them back. It may be very difficult to facilitate an early and safe return to work if the focus is on proving whether the substantial work-related stressor was the predominant cause of the mental illness. The worker could suffer deterioration of their condition while awaiting a decision if they do not have early access to mental health services. Therefore, employers need to step up to help the employee gain access to employer-sponsored or community mental health services.

 

 

What is a Substantial Work-Related Stressor?
​​Herein lies another issue. The definition for what the WSIB policy considers a substantial work-related stressor is not clear.

  • WSIB defines a substantial work-related stressor as one that is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.

  • Harassment and bullying will be considered substantial (but we know from experience that harassment and bullying may be difficult to prove).

  • Employer’s decisions or actions relating to employment are typically not covered, unless the worker can show that they constitute harassment or are egregious. The same holds true for interpersonal conflict in the workplace.

  • In some cases, consistent exposure to a job with a high degree of routine stress may qualify. It depends on the WSIB Case Manager’s assessment of the merits of the individual claim. The WSIB Policy states that jobs with a high level of routine stress would typically involve responsibility for decisions over life and death or routine work in extremely dangerous circumstances. Again, these terms are not defined.

 

Employers should not sit back and wait to see how the WSIB case managers navigate this minefield of possibilities. My heart goes out to them. I would not want to be in their shoes.

 

Knowing how to prevent and manage chronic mental stress claims is essential business strategy.

 

Here are some recommendations that are sure to help:

  • Become familiar with Policy 15-03-14 and the WSIB’s webpage on Mental Health in the Workplace

  • Get training on how to the understand the policy and how to manage and prevent chronic mental stress claims

  • Assess the potential impact of chronic mental stress on the organization

  • Establish an integrated mental stress disability and claims management program

  • Ensure workplace harassment and bullying policies are effective and enforced

 

The cost of doing nothing is just too high to ignore.

 

According to the WSIB,

 

“Prevention doesn’t have to be costly. But doing nothing can be. Without proper support for mental health at work, you could be putting your employees at risk of personal suffering which can impact employee morale, engagement and retention. Absenteeism, occupational mental stress claims and expenses for replacement staff all have an impact on your bottom line.” ■

 

Would You Like Help?

Hale Health and Safety Solutions offers training and consulting to help you prevent and manage chronic mental stress claims.

Relevant Training Workshops (see upcoming public dates):

 

Free Guide:

 

 

ABOUT THE AUTHOR

Liz Horvath is the Founder of Hale Health and Safety Solutions. Her 20+ years of experience in occupational health and safety combined with experience in disability and claims management help clients significantly reduce incidents and claims costs, while improving business results. Liz has helped many organizations through difficult situations involving psychological health and safety. In her previous roles, she developed and delivered basic and advanced level training on Workers’ Compensation Claims Management to hundreds of participants across Canada. She also helped to create the National Standard of Canada on Psychological Health and Safety in the Workplace. She is a sought-after speaker on integration of occupational and psychological health and safety and leadership for in-house and public events. Her recent talks for the Conference Board of Canada and Global Leading Voices generated significant interest.

 

For more information, visit halehealthandsafety.com or contact Liz Horvath directly at ehorvath@halehealthandsafety.com.

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