Canadian HR Reporter

CanaDian hr reporTer July 14, 2014 EmPlOymENt lAw 5 CPASource.com CPAs are Canada's most knowledgeable, skilled and respected accounting and business professionals. And this is where to find them. HIRE A PRO. Are you ready for a flood of stress-related compensation claims? Ontario tribunal rules workplace-related stress could be valid workers' compensation claim in a decision that has divided em- ployment lawyers, a workplace safety and Insurance Appeals tribunal panel has found chronic workplace-related stress could be a valid claim under On- tario's workplace insurance system. Some lawyers say the decision that found provisions restrict- ing claims for work-related stress were unconstitutional and may encourage people who are sim- ply stressed out at work to pursue compensation. But others say there's no reason to panic and laud the decision for asking Ontario's Workplace Safety and Insurance Board (WSIB) to consider psychological injuries sustained on the job over time. Currently, the WSIB only com- pensates workers for physical in- juries suffered on the job or acute psychological injuries that follow a traumatic event. But in the case of a nurse bul- lied by a doctor for more than 10 years, the tribunal found she should seek a claim for the depres- sion and anxiety she suffered. e doctor would make demeaning comments, "shoo" her, close the door on her heels and interrupt her interactions with patients, ac- cording to the ruling. In decision No. 2157/09, the tribunal rejected the Ontario at- torney general's argument that there was no way of establishing causation between mental health issues and workplace factors. "When weighing the deleteri- ous effects of the impugned pro- visions against their salutary benefits, we find that there is an imbalance between the substan- tial harmful effects on the claim- ant group and the speculative net benefit created by the impugned provisions for the workplace in- surance system," said the tribunal. e Ministry of the Attorney General said it's reviewing the de- cision to see if it warrants a judi- cial review application. For Toronto-based employ- ment lawyer Howard Levitt, the decision completely ignores the nature of fraudsters. "If you're a person who is pre- pared to commit fraud and not work to recover money, it's much easier to say you've got some men- tal stress or disability than to say you've got a broken back," he said. "ey 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 indepen- dent review, Levitt said the board had already been facing $14.5 bil- lion in unfunded liabilities and suggested "we can't even begin to afford" more costs. "It's outra- geous," he said. But to Jason Beeho, an occupa- tional health and safety lawyer at Rubin omlinson in Toronto, 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 heav- ens, now employers are going to see claims brought right, left and centre,'" he said. While workers may be more likely to bring stress-related ap- plications now, there's nothing to suggest their claims will be easy to win, said Beeho. "e upshot of this decision is that the tribunal is saying the board needs to be prepared to look at these complicated ap- plications 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 sud- den it will be easy to put through a claim for mental stress." So far, he said, the work has been simple for the board by sim- ply rejecting claims for chronic mental-health injuries. "The literature establishes a relationship between acute traumatic events and mental disorders; the evidence also es- tablishes a causal relationship be- tween chronic stress and mental disorder," said the tribunal 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 some- body'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 said. "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." Non-traumatic injuries Levitt also took issue with how the appeals tribunal has charac- terized non-traumatic workplace injuries. The tribunal said: "The evi- dence demonstrates that work- place stressors are not limited to 'job strain' but, rather, there are Yamri Taddese Legal View NO > pg. 6

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