The WSIB Chronic Mental Stress Policy What Employers Need to Know Labour, Employment and Human Rights February 6, 2018 David Marchione +1 416 868 3463 dmarchione@fasken.com Carla Oliver +1 416 868 7822 coliver@fasken.com
The WSIB Chronic Mental Stress Policy What Employers Need to Know David Marchione & Carla Oliver February 6, 2018 Agenda Background Chronic Mental Stress Policy Chronic Mental Stress vs. Traumatic Mental Stress Claim Reporting Requirements Investigation Tips Claims Management Tips 1
Background WSIA required proof of an acute reaction to a sudden and traumatic event to allow entitlement. Background Nurse employed by a hospital for 28 years Ongoing harassment by a Doctor (colleague) for 12 years Excluding her from conversation Embarrassing her in front of others Co-workers raised the issues to the employer no action Nurse raised the issue with her supervisor - demoted 2
Background WSIAT Decision No: 2157/09 Tribunal found that certain provisions of the WSIA related to Traumatic Mental Stress were unconstitutional Mental disability can occur over time Set the stage for changes to the legislation and the Chronic Mental Stress Policy Policy 15-03-14 Chronic Mental Stress 3
Policy 15-03-14 Applies to all accidents after January 1, 2018 May also apply to claims on or after April 29, 2014 if claim is filed on or before July 1, 2018 If claim is pending at WSIB or WSIAT on January 1, 2018 Claim falls under this policy, regardless of when the chronic mental stress occurred. Policy 15-03-14 Entitlement for chronic mental stress arising out of and in the course of the worker s employment Must be caused by a substantial work-related stressor Stressor must arise out of and in the course of the worker s employment 4
Policy 15-03-14 Not entitled to benefits for chronic mental stress caused by Employment decisions or actions Change in working conditions Discipline or termination Substantial Work-Related Stressor Work-related stressor generally considered substantial if it is excessive in intensity and/or duration in comparison to normal pressures and tensions experienced by workers in similar circumstances. 5
Substantial Work-Related Stressor Workplace Harassment A course of vexatious comment or conduct against a worker That is known or ought reasonably to be known to be unwelcome Includes bullying Occurs while in the course of employment Substantial Work-Related Stressor Jobs with a high degree of routine stress Claims may be allowed in some cases Consistent exposure to a high level of routine stress may qualify as a substantial work-related stressor Typically have the following characteristics Responsibility over matters involving life or death, or Routine work in extremely dangerous circumstances 6
Substantial Work-Related Stressor Interpersonal Conflicts Generally considered to be a typical feature of normal employment. Generally not considered to be a substantial workrelated stressor, unless the conflict Amounts to workplace harassment, or Results in conduct that a reasonable person would perceive as egregious or abusive Standard of Proof and Causation On a balance of probabilities, SWRS Arose out of and in the course of the worker s employment, and Was the predominant cause of an appropriately diagnosed mental stress injury 7
Appropriate Diagnostic Requirements Must be a diagnosis in accordance with the Diagnostic & Statistical Manual of Mental Disorders (DSM) and by a qualified regulated health care professional Acute stress disorder Posttraumatic stress disorder Adjustment disorder, or An anxiety or depressive disorder Employer Decisions Policy clearly excludes entitlement for conditions caused by an employer s decisions that are part of the employment function: Termination Demotions Transfers Discipline Changes in working hours/changes in productivity 8
Chronic Mental Stress vs. Traumatic Mental Stress Chronic Mental Stress vs. Traumatic Mental Stress Chronic mental stress generally occurs over time due to a substantial work related stressor Traumatic mental stress (Policy 15-03-02) Generally a specific event Sudden, unexpected and objectively traumatic i.e. criminal act, horrific accident, actual or perceived threat 9
Reporting Requirements WSIB Reporting Requirements Employers required to report workplace accident within 3 days of becoming aware that a worker received health care and/or Is absent from work Earns less than regular pay for regular work Requires modified work at less than regular pay Requires modified work at regular pay for more than 7 calendar days 10
WSIB Reporting Requirements Key Considerations When did the employer become aware that the worker Lost time from work Sought medical attention Potential administrative penalty and/or provincial offences charge for late reporting WSIB Reporting Requirements 11
WSIB Reporting Requirements Report when you become aware that any of the reporting requirements are met Do not self-adjudicate Dispute claim if you have concerns WSIB Reporting Requirements Workers required to make a claim within 6 months of injury or illness Legislation allows for extension of time Will likely allow time extensions in these cases 12
Investigation Tips Investigation Tips 1. How might you become aware of this type of injury/illness 2. What should you do when you become aware? 13
Investigation Tips What is the worker claiming is the cause of their condition? When did it occur? Is it ongoing? Who was involved? Was any action taken? Was anything reported or documented? Investigation Tips Gather as much information as possible from the employee (required for the Form 7) Gather witness statements Co-workers Supervisor Gather documentary evidence Company policies/procedures Emails, notes, etc. 14
Additional Steps Review internal policies and processes and training, update as necessary Proactively identify situations that may lead to chronic mental stress conditions and try to eliminate or control those hazards Provide information, instruction and training re: reporting and prevention Claims Management Tips 15
Claims Management Tips What steps can you take Before the entitlement decision is made After the entitlement decision is made Claims Management Tips Before the entitlement decision is made Gather as much information as you can about the alleged substantial work related stressor(s) Provide information to the WSIB either with the Form 7 or separately Ensure that the Form 7 is submitted within the legislated timelines 16
Claims Management Tips Before the entitlement decision is made Ensure you receive a copy of the worker s Form 6 (Worker s Report of Injury/Disease) Is the information consistent with what they reported to you? Advise the WSIB of any concerns you have with respect to whether the condition is work-related Claims Management Tips After the entitlement decision is made If the claim is denied, worker has the right to appeal 6 month time limit Employer has the right to participate in worker appeal Treat condition as a non-occupational issue Ensure that any duty to accommodate is met 17
Claims Management Tips After the entitlement decision is made If the claim is allowed Employer has the right to appeal the decision (within 6 months) Obtain information about the worker s functional abilities What are they able to do vs. what they cannot do Likely psychological limitations Claims Management Tips Obligation to assist the worker with returning to suitable work Re-employment and work reintegration (RTW) How can you accommodate the work or the workplace so that the worker can perform suitable work? What work are they able to perform? 18
Claims Management Tips Cannot force worker to return to work, but can offer suitable duties that are available WSIB will determine entitlement to health care and wage loss benefits Generally, workers are able to work while they receive treatment How can we manage the substantial work-related stressor? Claims Management Tips Discuss return to work with the worker Get their input and buy-in to try to ensure success Advise WSIB of any disputes or cooperation issues with return to work Utilize WSIB Return to Work Specialists to assist Ensure that all offers of work are in writing 19
Focus for Employers Limit and address stressors in the workplace Create modified work or return to work opportunities that include both psychological as well as physical restrictions. Document any ongoing mental stress cases Review current work procedures to prevent potential mental stress claims. Questions? 20
Thank you. David Marchione OHS Consultant/Paralegal dmarchione@fasken.com 416-868-3463 Carla Oliver OHS Consultant coliver@fasken.com 416-868-7822 21
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Biographies
David Marchione CONSULTANT Toronto +1 416 868 3463 dmarchione@fasken.com https://www.fasken.com/david-marchione Areas of Practice Labour, Employment & Human Rights Occupational Health and Safety and Workers Compensation Occupational Health and Safety (OHS) Prevention Services Education 2005, Certificate, Ryerson University 1998, BA (Hons), University of Toronto 1993, Law Enforcement, Seneca College Languages English David Marchione is an Occupational Health and Safety Consultant/Paralegal in Fasken s Toronto office, with an extensive background in policy and procedure development, workplace accident investigations, and legislative compliance audits. David is a workers compensation specialist with extensive experience assisting clients with managing workers compensation claims and limiting costs. Passionate about educating clients at all levels of an organization on health and safety, David develops and delivers presentations on Joint Health and Safety Committee Certification, Workers Compensation Claims Management, Workers Compensation Appeal Preparation and Health and Safety Due Diligence. Advising employers at all levels of the workers compensation system across Canada, he also assists clients with managing complex workers compensation claims and represents employers at all levels of workers' compensation appeals, including at the Workplace Safety and Insurance Appeals Tribunal. David is a member of the Board of Canadian Registered Safety Professionals (BCRSP) and a Certified Health and Safety Consultant. He is also a member of the Workers Compensation Section of the Ontario Bar Association. 1
Carla Oliver CONSULTANT Toronto +1 416 868 7822 coliver@fasken.com https://www.fasken.com/carla-oliver Areas of Practice Labour, Employment & Human Rights Occupational Health and Safety and Workers Compensation White Collar Defence and Investigations Education 1990, MBA, (United States) 1982, BA (Hons), (United States) Languages English Carla Oliver is an Occupational Health and Safety and Human Resources Consultant specializing in workplace investigations, occupational health and safety, environmental, risk management, government investigations, and workers' compensation law. Carla has worked for and with global organizations and provides practical advice and representation of employers regarding the planning, implementation and monitoring of a variety of different management systems. Carla conducts human resources training and gives courses and seminars to executives, management of employers on a variety of topics including risk management and due diligence for managers and supervisors, workers compensation claims management, workplace ethics, and the identification and assessment of hazards. Carla has conducted a variety of workplace investigations, workplace inspections and audits for OHS, environmental managements, risk management and corporate social responsibility systems. She has been directly involved on Joint Health and Safety Committees as a certified management member. Prior to focusing on workplace risk management, Carla worked in human resources and managed the benefit and pension programs. Carla assisted employees to return to work following workplace injuries and has been involved with developing and monitoring modified work plans. Carla worked for several years in the United States for a multinational employer and was involved in business needs assessments, marketing, business ethics, anti-corruption management systems and risk management. Carla achieved a Masters of International Business Management which strengthened her knowledge of global strategies, international corruption laws, and working in different business cultures. Carla has earned the Canadian Registered Safety Professional (CRSP) designation in 2011. Carla is an instructor at the University of Toronto, School of Continuing Studies for the Occupational Health and Safety program. 1