It is an issue that divides organized labour and employers, and will have significant impact on how Ontario Workers Compensation Insurance Board (WSIB) claims are adjudicated beginning in just a few months – while touching on somewhat arcane legal definitions and constitutional court challenges.
Yet the definition and criteria of the qualifications for benefits for work-related chronic stress injuries will undoubtedly influence the direction (and claims demand) on the WSIB premium pool for the construction industry for many decades ahead.
The issue is being expressed through court battles, with a June 29 application to Ontario’s Superior Court of Justice from the Ontario Network of Injured Workers Groups, Injured Workers Consultants and Margery Wardle seeking to have provisions of the Workplace Safety and Insurance Act declared unconstitutional.
Currently, the WSIB must compensate injured workers suffering from mental stress if the stress results from a “sudden and expected traumatic event” in the workplace. The province introduced new legislation last year that makes the claims process easier for first responders who suffer from post-traumatic stress disorder.
These claims don’t help workers like Wardle, however. The former heavy equipment operator for the City of Ottawa left work after “allegedly enduring years of sexual harassment from her male colleagues,” Benefits Canada reports in an article about the court challenge. “She has since been unable to return to the workplace and has lived off government benefits and financial support from her family.”
Wardle asserts that she has been trying to get her claim approved for more than a decade and is still waiting for a review by the Workplace Safety and Insurance Appeals Tribunal.
“For many injured workers, especially those with mental stress claims, I have to conclude, based on my own experience, that a lot of people would just give up their claims,” she said. “Every time WSIB denies a claim . . . we’re left sort of just swinging in the breeze and if we don’t have the personal resources to pay for our own treatment, our situations worsen.”
The provincial government plans to change the law so that workers with chronic mental stress can receive compensation after Jan. 1, 2018 – but there are disputes in defining who should qualify for benefits, especially in the construction industry. (And the court battle will continue because this provision is not retroactive.)
Construction employers groups, represented by the Construction Employers Coalition – backed by more than 12 construction associations – are concerned that the expansion of entitlements would introduce broad new mechanisms which could result in WSIB covering situations for stressors outside the workplace. Meanwhile, the Provincial Building and Construction Trades Council, says employers are resisting progressive legislation because they have a “floodgate” mentality.
The issue: Should the proposed determination of stress entitlement be where the chronic stress is caused by a “substantial” work-related stressor, or the tougher “predominant” cause.
David Frame, the Ontario General Contractors Association’s director of government relations, said in a published report that the difference in the number of claims that could be awarded in the two different causation scenarios is significant.
“A substantive test is generally meant to be more than 20 per cent or more of causation,” Frame said, explaining how the lawyers explained it to him. “The predominance test is greater than 50 per cent. So there is a fair difference between the two.”
Employers are concerned that workers will seize on the “substantial” stressor argument and file claims that would never have been considered before – even though the primary cause of their life stress and mental health challenges is significantly outside of the workplace.
“It is quite possible under the significance test that somebody who had a huge event in their personal life plus an event of a lesser degree in their work life will be compensated because of the way the the test breaks down,” Frame said in the published interview. “We are worried about being able to properly adjudicate it. There is a big temptation, because it is a richer system, to place more and more things through the workplace.”
These views are shared by Ian Cunningham, president and CEO of the Council of Ontario Construction Associations, who observed that the WSIB is not designed as a “universal health care system.”
“It is paid for by employers for disease and illness and injuries that are caused by the workplace,” Cunningham has been quoted as saying. “So in our view the connection to the workplace must be the predominant contributor, not just a substantial contributor.”
Not surprisingly, workers’ advocates want the looser definition – and are taking the issue to court to broaden the fundamental qualification for workplace stress beyond what the WSIB plans to introduce in 2018.
Carmine Tiano, director of occupational services for the Building Trades, noted in a published interview that the “significant contributing factor” rather than “predominant” is the criteria used for all other WSIB claims. She argues this would be unconstitutional under the Charter of Rights and Freedoms, because two sets of claimants would be treated differently.
This issue isn’t before the courts yet – because the WSIB hasn’t decided on the rules.
However, it is likely the historical claim filed on June 29 will impact the overall rules about the level of contribution of workplace stress to qualify for benefits next year.
“We have been holding public consultations on our proposed policy, which will come into effect on Jan. 1. 2018,” WSIB spokesperson Christine Arnott wrote in an email to Benefits Canada. “We look forward to supporting Ontarians dealing with work-related chronic mental stress and helping them to return to a healthy and safe workplace.”
With this uncertainty, it is unclear how the work-related stress provisions will impact WSIB rates, and what the rules will be for applying for these benefits. It is certain, however, that the change will significantly impact the WSIB claims process – in industries like construction, far beyond fist responders and emergency service workers.
