A worker is entitled to benefits for mental stress that is an "acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment".  However, a worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate employment. This decision may change all that!

Mental stress claims brought on by the workplace are not considered compensable by the Workplace Safety & Insurance Board. However, in a recent decision released by the  Workplace Safety and Insurance Appeals Tribunal (WSIAT), a worker has won her case for mental stress.  A case precedent, which will likely set the tone for similar claims in the future.

Although each case is unique, and subject to Merits and Justice, this decision is certainly noteworthy, in that, the Tribunal found that workplace mental stress is inconsistent with the Charter of Rights and Freedoms and as a result unconstitutional.

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In this case, a nurse alleged that she was subject to ill treatment by a doctor who worked with her over a period of 12 years.  This included yelling at the worker and making demeaning comments in front of both colleagues and patients.  Subsequently, she sought medical and psychiatric treatment and diagnosed with an adjustment disorder with mixed features of anxiety and depression brought on by workplace stressors.

The worker filed a WSIB claim for mental stress.  The claim was denied as the worker did not have "an acute reaction to a sudden and unexpected traumatic event" as required under Board policy for Traumatic Mental Stress and subsection 13(4) and (5) of the Workplace Safety and Insurance Act (WSIA).

The worker appealed the decision claiming that it violated the equality guarantee of section 15 of the Canadian Charter of Rights and Freedoms which states in part:

...Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability...

At the Hearing, the Ministry of the Attorney General took the position that statutory and policy provisions are not discriminatory, and are consistent with the purposes of the WSIA, specifically, its purpose to provide compensation only for injuries caused by personal injury by accident arising out of and in the course of employment. Counsel for the Attorney General argued that there are no valid and reliable clinical methods for evaluating work-relatedness in individual mental stress cases.  

The Tribunal disagreed, finding that WSIB treated workers with mental disabilities differently than workers with physical disabilities. Specifically, the Tribunal found that subsections 13(4) and (5) of the WSIA [an acute reaction to a sudden and unexpected traumatic event] restricts entitlement to an acute reaction to a sudden and unexpected traumatic event infringes the worker's right to equality under section 15 of the Charter.  

It seems to this writer, that this decision may be an impetus to change the Board's policy affecting mental stress claims.  Employer's are strongly encouraged to take workplace harassment complaints seriously. Proper investigation, documentation and remedial action will help to provide a defense should an employee claim WSIB benefits in the future.   

Clink here to read more: WSIAT Decision 2157/09