Psychological Disabilities and the Workplace: WSIB … · notwithstanding incapacity due to a...

Psychological Disabilitiesand the Workplace:

WSIB and Human Rights Implications

March 11, 2015

Psychological Disabilitiesand the Workplace: WSIBand Human Rights Implications

Elizabeth KosmidisSamantha SeabrookJoseph Cohen-Lyons

Agenda

• Psychological Conditions and Litigation

• Managing Psychological Conditions in the

Workplace

• Decision 2157/09 – What Does it Mean?

Legal Consequences, Practical Implications

Psychological Disabilities and the Workplace: WSIBand Human Rights ImplicationsMarch 11, 2015

Legal Consequences, Practical Implications

• Managing Employees Who Have Psychological

Conditions

• Rules of Professional Conduct

Psychological Conditions and Litigation

Allowed Lost Time Claims for 2013 MentalDisorders or Syndromes

• Schedule 1 179 representing .4% of lost time

claims up from .2% in 2004.

• Schedule 2 399 representing 3.1% of lost time

claims up from 1.3% in 2004.

Types of Compensable Psychological Injury

1. Psychotraumatic Injury

2. Chronic Pain Disability

3. Traumatic Mental Stress

Psychotraumatic Disability OPM 15-04-02

• Diagnosis of a psychological condition that

emerges as an indirect result of a physical injury

• Can arise from an emotional reaction to the

accident or to a severe physical disability

• The disability is related to extended disablement

and to non-medical socioeconomic factors

• Must manifest within five years

Chronic Pain Disability OPM Policy 15-04-03

• Physical injury followed by pain which lasts

beyond the normal healing time with marked life

disruption

• Policy sets out specific criteria

Entitlement usually results in a permanent

• Entitlement usually results in a permanent

impairment award

Traumatic Mental Stress – "PTSD"

• Traumatic Event is commonly defined as an

incident that has an element of physical harm,

violence or threats of physical violence

Mental Stress

• Entitlement for "mental stress" limited to PTSD

• No entitlement for chronic mental stress

• Defined in the WSIA and OPM

Traumatic Mental Stress - WSIA

• Section 13(5):

• 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

• 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 the employment

Adjudicators must identify a sudden and

unexpected traumatic event which:

• Arises out of or occurs in the course of

employment,

Is clearly and precisely identifiable,

• Is clearly and precisely identifiable,

• Is objectively traumatic, AND

• Is unexpected in the normal course of the

worker's employment or work environment

• Workers will be entitled to benefits where they

have suffered or witnessed a sudden and

unexpected traumatic event

• Must have an acute reaction to the work-related

traumatic event that is significant and severe

• Acute reaction must result in an Axis I diagnosis

in accordance with the DSM – IV

• Acute reaction can be either immediate or delayed

• If acute reaction delayed, clear and convincing

evidence must link the delayed onset with the

traumatic event

• TMS based on nature of occupation also

recognized

• No requirement that most recent event be the most

traumatic in the series

Decision 2157/09 –

The Constitutional Decision

Facts and Findings

Facts of Decision No. 2157/09

• Nurse worked in a hospital for 28 years

• Nurse alleged that from 1990 to 2002 "Dr. L":

• yelled and made (undisclosed) demeaning

comments to her in front of colleagues and patients

interrupted her history-taking with patients

• interrupted her history-taking with patients

• told her to "shoo"

• closed door on her heels

• No assault, no threat of any physical violence

Facts of Decision No. 2157/09

• Spring 2002: co-workers reported Dr. L's

mistreatment of worker to team leader – no action

was taken and Dr. L's conduct continued

• June 13, 2002: worker complained to team leader

her duties were reduced the next day

• her duties were reduced the next day

• effectively a demotion

• Worker went off work on June 14, 2002 claiming

mental stress

WSIB Claim and Appeal

• Worker filed claim for mental stress with WSIB

• Claim denied

• Worker appealed – WSIAT would have granted

entitlement but for ss. 13(4) and (5) of the WSIA

and TMS Policy

• Worker pursued Charter challenge

• discriminatory to treat entitlement for mental vs

physical disabilities differently

WSIAT's Findings on Expert Evidence

• Battle of experts – Dr. Gnam (MAG) vs Dr.

Stansfeld (worker)

• Panel accepted the opinion of the worker's expert

Dr. Standsfeld that:

a moderate association exists between job strain

• a moderate association exists between job strain

and mental disorder; and

• psychiatric clinicians can determine causation

through history-taking and otherwise

WSIAT's Section 15 Charter Analysis

• Enumerated ground: mental disability

• Comparator group: workers who have suffered

work-related physical disability

• followed approach adopted in BCCA's Plesner

(mental stress) and SCC's Martin (chronic pain)

constitutional challenge cases

WSIAT's Section 15 Charter Analysis

• WSIA and TMS Policy:

• create a distinction based on the enumerated

ground of mental disability

• are substantively discriminatory against mental

stress claimants

• breach of section 15 not justified under section 1 of

the Charter

Basis for Finding of Discrimination

• Provisions deprive mental stress claimants of the

benefit of the "historic trade-off"

• Impose an additional burden by reducing mental

stress claimants' options to a tort remedy

e.g. increased complexity, costs, requirements to

• e.g. increased complexity, costs, requirements to

prove negligence etc.

• Grievance procedure remedies insufficient

Basis for Finding of Discrimination

• Implicit message: mental disabilities are not "real"

• Assumption of increased cost/fraud perpetuates

stigma of mental illness

• No evidence to support "skyrocketing costs" or

"blanket coverage"

• "Objective proxy" for causation argument rejected;

physical causation can also be challenging

No Justification under Section 1

• Ensuring work-relatedness of eligible claims is

sufficiently pressing and substantial objective

• financial purpose rejected; no evidence of crisis

• MAG failed to prove proportionality

• no logical or rational connection

• impairment is not minimal (see AB and SK)

• interests of group are not advanced by exclusion

• no proof of prospect of overcompensation

Remedy

• WSIAT declined to apply sections 13(4), (5) or

TMS Policy in the appeal

• Worker's appeal allowed

Decision No. 2157/09

Potential Legal Consequences

The Legislation/Policy Has Not Changed

• Section 13(5) is still in force

• Decision 2157/09 is only applicable to that claim

• WSIB must apply the WSIA, and is not bound by

WSIAT decisions

WSIB Can Decide Constitutional Questions

• While the WSIB is bound to apply the WSIA, and

is not bound by WSIAT decisions, the WSIB has

jurisdiction to consider the Charter

WSIB Appeals Branch relies on s. 118(1) of the

• WSIB Appeals Branch relies on s. 118(1) of the

WSIA and the SCC's decision in Martin for

constitutional jurisdiction

Current & New TMS Claims at WSIB/WSIAT

• WSIB Operating Level: Likely no change

• WSIB Appeals Branch: May consider the Charter

• WSIAT: Likely to follow Decision No. 2157/09

Charter Challenge to the Rest of s. 13(5)?

• Decision 2157/09 specifically did not address

remainder of s. 13(5):

13(5) 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, the 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 the employment.

Possibilities for Legislative Change

• Attorney General is not considering judicial review

• Ontario Government could also amend s. 13(5)

• If legislation is amended what would that look like?

Chronic Stress In AB, SK, and BC

• Alberta, Saskatchewan, and British Columbia

have policies similar to Ontario's Traumatic

Mental Stress Policy.

• However, they also have entitlement for Chronic

Stress when it is a reaction to:

a) an accumulation, over time, of a number of work-related

stressors

b) a significant work-related stressor that has lasted for a long

Factors for Chronic Stress Entitlement

• Work-related events that are excessive or unusual

in comparison to those experienced by the

average worker in a similar occupation

• Work-related events or stressors are the

predominant cause of the injury or disability

• Confirmed psychological or psychiatric diagnosis

• Objective confirmation of events

• Normal labour relations issues are excluded

Non-Occupational Case Law

Shah v. Acklands Grainger 2013 HRTO 2084

• Applicant developed a stress-related disability

due to discrimination

• WSIB denied claim

• The Code does not exclude stress that is alleged

to result from employment-related factors

• WSIB did not appropriately deal with the

substance of the Application

• Kissoon v. VON and College of Nurses 2013

HRTO 1479

• Employer concerned that Applicant's mental

health made her unfit to work

Code does not require an employer to allow an

• Code does not require an employer to allow an

employee to work where it has reasons to believe

that employee is incapable of performing duties,

notwithstanding incapacity due to a disability

• Does a disability exist?

• Liquor Control Board of Ontario 2011 HRTO 1429

• Important in psychological cases

• Changes to the DSM

• Can you performance manage an employee?

• TCHC v. Local 416 (Knight Grievance)

• Gombos v. Goodrich Aerospace Canada Ltd. 2011

HRTO 978

What information will establish a disability?

• What information will establish a disability?

Managing Psychological Conditions

• Statistics:

• In any given week, more than 500,000 Canadians

will not go to work due to mental illness

• 30% of disability claims and 70% of disability costs

are attributed to mental illness

• Estimate $51 billion annual cost to Canadian

economy due to mental illness

Mental Health Commission Canada

• CSA Standard Z1003-13

• Psychological health and safety in the workplace is a

voluntary standard intended to provide systemic

guidelines for Canadian employers to help develop

and maintain psychologically safe and healthy

environments for employees

• The business case for improving workplace

psychological health and safety:

• consider risk mitigation

• cost effectiveness

recruitment and retention

• recruitment and retention

• organizational excellence and sustainability

• Establish a psychological health and safety

management system with the following elements:

1. commitment, leadership and participation

2. planning

implementation

3. implementation

4. escalation and corrective action

5. management review

Best Practices

• Implementation and integration

• Train supervisors to recognize and address

possible psychological health issues

• Educate employees about policy and respectful

compliance principles

• Early intervention through EAP

Practical Strategies: Minimize Risk

• Harassment policy with procedures must be

enforced

• Management must be responsive to complaints

including completing investigation in a timely

manner

• Availability of a support system for complainant

• Educate managers to be supportive

• Discipline for inappropriate behaviour

• Deal with interpersonal issues at work involving

coworkers and/or supervisor

• A nationally representative study of the adult

population found that job strain, high effort reward

imbalance and lower levels of social support at

work were independent predictors of common

mental disorders

Chronic Stress

• Tribunal accepted evidence from scientific studies

that there is an association between job strain and

the onset of mental disorders such as depression

• Job strain and associated depression risks represent

a substantial, preventable and inequitably distributed

health problem

• Must be proactive in developing intervention

strategies to reduce job strain

• Consider whether working conditions can

increase risk of depression and anxiety disorders

Best Practices

• Eliminate or assess level of risk

• Manage and collect data but confidentiality must

be maintained

• Evaluation and corrective action

Rules of Professional Conduct

• Rule 1

• Conduct unbecoming a barrister and solicitor means

conduct that tends to bring discredit on the legal

profession including:

• taking improper advantage of the ill health of another

• Rule 2.1-1

• Standards of the Legal Profession

• a lawyer has a duty to carry on the practice of lawand discharge all responsibilities to clients, tribunals,the public and other legal practitioners honourably

and with integrity

• special responsibility to protect the dignity ofindividuals and to respect human rights laws

• Rule 3.2-7

• A lawyer shall not:

• knowingly assist in or encourage any dishonesty,fraud, crime, or illegal conduct

• Rule 3.2-7

• Knowledge can be actual or in the form of wilful

blindness or recklessness

• If course of action is pursued despite lawyer's

advice, lawyer shall withdraw from acting

• Rule 3.2-9

• When a client's ability to make decisions is impaired

because of mental disability, the lawyer shall, as far

as reasonably possible, maintain a normal lawyer

and client relationship.

Managing Employees with PsychologicalConditions

• Capacity and Consent to Settle

• Effect of a Full and Final Release where mental

incapacity is alleged

• Can be an issue for both sides

Rules of Civil Procedure/Professional Conduct

• Rules of Civil Procedure/Professional Conduct

Bjelakovic v. Accenture Global Services, 2008

CanLII 32802 (ON SC)

• Court held that a contract is binding on a person of

unsound mind unless:

1. the person of unsound mind was incapable of

1. the person of unsound mind was incapable ofunderstanding what was being done; and

2. the other party had knowledge, either actual orconstructive, of the incapacity

• Onus is on the person asserting the incapacity to

establish both incapacity and the other party's

actual or constructive knowledge of that

incapacity

• If you have a suspicion that a party lacked

capacity and deliberately refrained from inquiring

about this, constructive notice will be established

Scott v. Teranet Inc. 2012 HRTO 2315

• Applied Bjelakovic test in determining whether

Release is unenforceable where an allegation of

incapacity is made

• No basis to conclude Applicant lacked legal capacity

Kassab v. UPS SCS Inc. 2013 HRTO 1431

• Applicant sought to set aside Minutes of Settlement

as he was under medication which "affected him"

• To set aside, must establish that the Applicant's

condition resulted in a form of incapacity

Responding to a Claim

• Worker's past attendance records

• Worker's non-compensable medical file

• Worker's employment history

• Does the worker have any prior psychiatric

history: thin skull or crumbling skull

• Is there a DSM diagnosis or is this a transitory

emotional response

• Are work-related events excessive or unusual in

comparison to the normal pressures and tensions

experienced by the average worker in a similar

occupation

• Is there a workplace injuring process or is this a

worker's misconception of events

• Co-existing or prior non-work stressors present

• Temporal connection

• Do medical professionals have a complete history

and accurate facts

Psychological Disabilitiesand the Workplace:

WSIB and Human Rights Implications

March 11, 2015

Psychological Disabilities and the Workplace: WSIB … · notwithstanding incapacity due to a...

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