In a decision that is sure to be relied upon, scrutinized and judicially reviewed, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional.
Accordingly, in the case considered below, the WSIAT declined to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, the result of which being that an employee who made a claim to the WSIB for benefits following years of workplace harassment might actually receive WSIB benefits.
Summary of the Decision by WSIAT
The decision being considered is Decision No. 2157/09, 2014 ONWSIAT 938
According to the summary provided on WSIAT’s webpage:
The worker was a nurse at a hospital. The worker claimed entitlement for mental stress resulting from harassment by one of the doctors from 1990 to June 2002 and from her treatment by the hospital after she stopped working in June 2002. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for mental stress.
In Decision No. 2057/09I, the Panel found that, under the pre-1997 Act, the worker would have had entitlement for mental stress but, under the WSIA which applied to the claim, the worker did not have entitlement for mental stress. The worker raised a challenge to the stress provisions in s. 13 of the WSIA based on the Charter of Rights. This decision now considered the Charter challenge.
The Charter challenge pertained to the provision of s. 13(5) of the WSIA which limits entitlement to mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.
The effect of s. 13(4) and (5) of the WSIA is that the general definition of accident does not apply to mental stress claims, in that it does not permit mental stress claims by way of disablement, and sets out further requirements that the injuring process be traumatic, sudden and unexpected.
Experts generally agreed that epidemiological evidence demonstrated an association between job strain and mental disorders, although they disagreed regarding the strength of the association and as to whether clinicians are able to determine accurately whether a mental disorder is causally related to workplace stressors. Much of the literature focused on the association between job strain and development of mental disorders. The Panel noted that mental stress claims at the Tribunal did not fit within the parameters of job strain but, rather, often involve some elements of hostile interactions in the workplace or harassment, as in this case. The Panel also noted that a determination under s. 15 of the Charter does not turn on the strength of the epidemiological evidence but, rather, on consideration of whether the evidence of work-relatedness of mental disorders is distinguishable from physical injury claims to the extent that it warrants different treatment from physical injury claims.
On consideration of the evidence regarding the strength of association between job strain and mental disorder, the Panel found that the strength of association was moderate. Regarding ability of clinicians to give reliable opinions about causation of mental disorder, the Panel accepted that the temporal sequence of the stressor and mental health effects can be ascertained by careful history-taking from the subject and others. The Panel also noted that there is no "gold standard" for determining work-relatedness for the vast majority of physical injury claims.
The Panel reviewed authorities regarding equality claims under s. 15 of the Charter, in particular recent Supreme Court of Canada decisions, R. v. Kapp and Withler v. Canada (Attorney General). To determine whether the impugned provisions infringe s. 15 of the Charter, it must be determined whether s. 13(4) and (5) of the WSIA creates a distinction based upon an enumerated or analogous ground, and whether the distinction is substantively discriminatory in that it perpetuates disadvantage or stereotyping.
Where reference to a comparator is required for the analysis, the Panel found that the appropriate comparator group is workers with claims for physical injuries. The enumerated ground in s. 15 of the Charter in this case is mental disability. Section 13(4) and (5) of the WSIA creates a distinction based on that enumerated ground, as the effect of the provisions is to preclude workers with mental stress disabilities from establishing claims for an injury by accident by way of disablement and to limit claims by workers with acute onset of mental disabilities to a narrow set of circumstances in which entitlement may be granted.
Substantive inequality may be established in one of two ways: by showing that the impugned law perpetuates disadvantage to members of a group on the basis of personal characteristics within s. 15(1) of the Charter; by showing that the disadvantage imposed by law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant group.
There are two groups affected: workers with gradual onset stress claims; workers with acute mental stress attributed to traumatic events that are not unexpected in their type of employment. The impugned provisions deprived these claimants of the historic trade-off of the no-fault workers' compensation scheme and exacerbated their disadvantage by reducing their options to a tort remedy with increased complexity and cost, a requirement to prove negligence and a lack of security of payment. Further, the evidence indicated that the stigma against persons with mental illness includes the stereotype that mental illness is caused by personal weakness. The unsupported assumption that mental illness claims will place a greater and unwarranted financial strain on the workplace insurance system than physical disability claims perpetuates the notion that persons with mental illness are underserving of equal recognition under the workplace insurance scheme.
The Panel concluded that the impugned provisions were substantively discriminatory by perpetuating the historical disadvantage of the claimant group.
In considering whether there was an ameliorative purpose to the law, the Panel rejected an argument of skyrocketing costs, finding that this is not the type of ameliorative purpose contemplated and, further, that there was little evidence regarding the cost of mental stress claims in Ontario and impact on the insurance fund.
In an inquiry under s. 15 of the Charter, it is important to maintain focus on whether the impugned provisions correspond with the needs and circumstances of the affected group in a way that is consistent with the distinction in treatment created. Physical injury claims also present challenges with multifactorial causation and lack of an objective method for determining causation. That does not preclude entitlement under the WSIA. The impugned provisions are underinclusive and run counter to the overarching purposes of the WSIA, which include provision of compensation to workers with work-related conditions and injuries, and special features of the WSIA, specifically the benefit of doubt and the merits and justice. The rationale for singling out mental stress claims from physical injuries was not supported by the evidence.
The Panel was also not persuaded by the suggestion that the thin skull principle, which applies to physical injuries, would result in blanket coverage if applied to mental stress claims. Many conditions are multifactorial. In determining causation of mental stress claims, factors to be considered include: whether there is a DSM diagnosis, whether there was a workplace injuring process, whether there are co-existing or prior non-work stressors, whether there is prior psychiatric history that is in the nature of a crumbling skull, whether there is a temporal connection, whether medical professionals have a complete and accurate understanding of the work and non-work factors and whether there are inferences that can be drawn from the worker's employment history.
The Panel concluded that the impugned provisions were substantively discriminatory, that the lines drawn by the provisions were not consistent with the evidence, and that the impugned provisions did not represent a reasonable or equitable approach to the identified purpose of establishing work-relatedness of mental disorders.
The Panel then considered whether the limitations in s. 13(4) and (5) of the WSIA were reasonable and could be demonstrably justified pursuant to s. 1 of the Charter. Two criteria must be established: the objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom, at a minimum the objective must relate to concerns which are pressing and substantial; if a sufficiently significant objective is recognized, the means chosen must be reasonable and demonstrably justified.
In this case, the asserted purpose of the provisions is to ensure that, consistent with the broader purposes of the legislation, no-fault compensation is provided for injuries that arise out of and in the course of employment. This is a sufficiently pressing and substantive objective, in that the WSIA creates an employer-funded insurance scheme which is intended to cover workplace injuries and facilitate return to work.
However, it was not established that the limits imposed were proportionate to the extent of infringement on the claimant group's right to equality. To meet the requirement of proportionality, it must be shown that the means chosen to meet the objective: is rationally connected to the objective of the legislation; is reasonably considered to impair minimally the right in question; and affords a proportionality between any harmful effects of the measure and its salutary objective.
As noted above, there is moderate evidence of an association between job strain and mental disorders, and that clinicians are able to give reliable opinions on causation of mental disorders. Thus, there is a lack of rational connection between the mental stress provisions and their stated purpose. Even if the Panel were to accept that there is a rational connection, the provisions do not impair the protected Charter right as little as possible, in that there are alternative policy approaches, as noted by evidence as well as policy and legislation from other provinces. Finally, there was no proportionality between the harmful effects of the measure and its salutary objective.
The Panel concluded that s. 13(4) and (5) of the WSIA, and related Board policy, infringe the worker's right to equality as guaranteed by s. 15(1) of the Charter of Rights and that the infringement was not justified by s. 1 of the Charter. Accordingly, the Panel declined to apply s. 13(4) and (5) of the WSIA and the related Board policy to the appeal. As previously concluded in Decision No. 2157/09I, the worker's appeal would have succeeded but for s. 13(4) and (5) of the WSIA and the related Board policy. Accordingly, the worker had initial entitlement for mental stress.
In reaching this decision, the Panel noted that the Charter challenge only pertained to the limitation of entitlement to mental stress that is an acute reaction to a sudden and unexpected traumatic event. The further provision of s. 13(5) of the WSIA that excludes entitlement for mental stress caused by the employer's decisions or actions was not before the Panel in this appeal.
The appeal was allowed.
Commentary
I really must thank whomever it was at WSIAT that summarized the decision. The decision itself is 79 pages and quite dense. While I have read the entire decision, the summary above does an excellent job of summarizing what happened.
For readers that also may have glossed over the summary set out above, what is important to highlight is that the worker’s claim related not to a single incident, but rather 10 years of mistreatment in her workplace with which she could no longer cope. (Para 171.)
In that sense then, the panel of the WSIAT hearing the appeal compared claims for mental stress over time to those of physical injuries that occur over time, such as carpal tunnel syndrome. In reviewing the Tribunal’s approach to evidence of causation, the panel noted the following:
[220] …To determine causation, this Tribunal generally considers whether the workplace injuring process made a “significant contribution” to the development of the injury or condition.
That, the panel found, was all that was required in order for benefits to be provided: that the workplace made a “significant contribution” to the development of the condition complained of.
Given that the impugned provisions (subsections 13(4) and 13(5)) did not provide claimants with any ability to attempt to prove that their workplace significantly contributed to their condition, the panel was forced to make the following decision:
[260] …we find that the impugned provisions are substantively discriminatory, as the effect is to deprive gradual-onset mental stress claimants of the opportunity to present evidence regarding their individual circumstances in a manner that does not correspond to the actual characteristics and circumstances of the claimant group. The impugned provisions treat workers with gradual onset mental stress claims as a monolithic whole: they provide no opportunity for consideration of the nature of their claims, their health history, or the medical evidence in their particular case. We find that the evidence does not support that the impugned provisions correspond with the actual needs, characteristics, or circumstances of the claimant group.
In earlier posts, Claims to the WSIB for Mental Stress (November 11, 2012) and Top Five Cases of Importance to Ontario Employment Lawyers [2012] I made reference to the Seberras v. Workplace Safety and Insurance Board case, which is making its way through the Human Rights Tribunal of Ontario. In late 2012 I commented that:
Seberras is important for a number of reasons. First, with respect to the decision cited, [2012 HRTO 115] the decision affirms that the Human Rights Tribunal of Ontario has jurisdiction over a statutory body, in this case, the Ontario Workplace Safety and Insurance Board (WSIB).
Of greater importance however is why Mr. Seberras is bringing his application, which is currently stayed pending the resolution of a matter before the Ontario Workplace Safety and Insurance Appeals Tribunal (see 2012 HRTO 1513). Mr. Seberras is seeking to advance the position that sections 13(4) and 13(5) of the Ontario Workplace Safety and Insurance Act, 1997 are discriminatory and violate his Charter-protected rights. The case is the Ontario continuation of the decision taken in late 2009 by the British Columbia Court of Appeal in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188.
Seberras will be one to watch in 2013 to see what the WSIAT does, what the HRTO does (if required to act) and how the legislature reacts. Claims for mental stress will be, in my opinion, one of the most important areas for workers compensation in the next five to ten years. If Seberras falls in line with Plesner, then in my opinion there will be a flood of applications for benefits in the near future.
I do not think I was exaggerating when I said that, claims for mental stress will be one of the most important areas for workers compensation in the next five to ten years. The statistics have only served to confirm that workplaces are becoming more stressful, not less.
And, while I may have selected the wrong case as the case to watch in 2013 (and perhaps the year wrong as well), the conclusion then reached was correct: someone was going to declare subsections 13(4) and 13(5) of the WSIA unconstitutional.
Where does this Decision Leave those with Labour Pains?
As mentioned above, Decision 2157/09 is sure to be judicially reviewed and then likely appealed after that. It could be years before this case is finally over. A trip to the Supreme Court of Canada is certainly not out of the question given the issues at stake.
For those reading this post now wondering whether they should make claims to the WSIB for mental stress, it is difficult to say. Obviously every case must be evaluated on its individual merits on the basis of the medical evidence available, but if the primary reason that a claim was denied was because of subsections 13(4) and 13(5) of the WSIA, then Decision 2157/09 certainly raises the prospects of success.
If you are a worker in Ontario and you believe that you may have a claim to the WSIB for workplace stress, it may now be prudent to seek professional legal advice. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
If you are an employer in Ontario and you are subject to the provisions of the WSIB, you should be aware that your employees may now have the ability to make a whole new class of claims. If you require assistance with a claim made to the WSIB by one of your employees, whether for mental stress or something else, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
Contact Us
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
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