Mental Stress the New Landscape...2. PEI Workers Compensation Act contains similar definition in s. 1 that only PTS is compensable. This is the model for other provinces that exclude

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Mental Stress – the New

Landscape

Michael Zacks

Office of the Employer Adviser

27th Schedule 2 Employers

Group Conference

October 5-6, 2016


Mental Stress Entitlement in Play

• Bill 163 – presumptive PTSD leg for first responders

• WSIAT allows chronic mental stress (CMS) entitlement following

Charter challenges

2


Mental Stress Landscape

• All provinces compensate for psychotraumatic disability

• Ontario OP 15-04-02

• worker entitled to benefits when emotional disability/impairment

results from a work-related personal injury by accident

• All provinces compensate for post traumatic stress disorder

(PTSD)

• Six provinces compensate for Chronic Mental Stress (CMS)

3


NATIONAL MENTAL STRESS

SCENE

NFLD PEI NS NB QBC ONT MAN SAK ALB BC

Post

Traumatic

12

11

7

Psycho

Traumatic

Chronic X1 X2 X X 3 X4 X

5

6

8

4

Yukon NUN

Post

Traumatic

Psycho

Traumatic

Chronic 9

10


5

1. Workplace Health, Safety and Compensation Act, Nfld., s. 2(1)(o):

“injury” …..does not include stress other than stress that is an acute reaction to a sudden and

unexpected traumatic event

(2) Notwithstanding paragraph (1)(o), stress that may be the result of an employer’s decision

or action relating to the employment of a worker including a decision to change the work to be

performed or the working conditions, to discipline the worker or to terminate the worker’s

employment does not constitute an injury.

2. PEI Workers Compensation Act contains similar definition in s. 1 that only PTS is compensable.

This is the model for other provinces that exclude chronic mental stress.

3. Stress related to work organization, overload, or pressure, climate of tension, work beyond

normal scope, long lasting with little or no control by worker, may be compensable. Stress from

legitimate use of management rights not compensable. [Qbc]

4. WSIA and WSIB policy preclude CMS but WSIAT approved it in Charter decisions

5. Entitlement for chronic stress claims granted if the work-related events were excessive or

unusual in comparison to the normal pressures and tensions experienced by the average worker in

the same or similar occupation or work environment. For chronic stress claims to be accepted,

workers must be employed in jobs involving events, or a series of events, considered traumatic to

the general population. Non-traumatic chronic stress psychological claims may also be

accepted that have arisen due to work relations, work load, or interpersonal conflicts. All

chronic psychological injury claims generally will require a confirmed Mental Health Assessment

including a DSM IV diagnosis by a doctoral psychologist or psychiatrist. [Sask]


6. Alberta grants entitlement for chronic stress including an emotional reaction to significant work-related stressor

that has lasted for a long time and does not meet the definition of a traumatic incident with a DSM-IV diagnosis

and where the work stressors are the predominant cause of the injury. There must be objective confirmation

of the events causing stress, and must be excessive or unusual in comparison to the normal pressures and

tensions in worker’s occupation. Excludes routine labour action taken by employer.

7. Alberta Act provides presumption for first-responders so that if a worker who is or was an emergency medical

technician, firefighter, peace officer or policy officer is diagnosed with post-traumatic stress disorder (PTSD) by a

physician or psychologist, the PTSD is presumed to be an injury that arose out of and occurred in the course of

employment, unless the contrary is proven.

8. BC compensates for chronic stress that is predominantly caused by a significant work-related stressor,

including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in

the course of the worker's employment. Requires a DSM diagnosis, and not caused by a decision of the

worker's employer 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 worker's employment.

9. Yukon WCB compensates for chronic stress that is not caused by employer’s employment decisions.

Must be objective evidence on a balance of probabilities that work factors caused disablement.

10.Nunavut compensates for chronic stress on similar criteria to Yukon.

www.awcbc.org

11 Manitoba government has passed Bill 35. Proposes presumptive PTSD legislation for all workers.

Amendment deems PTSD trigger to be an occupational disease.

12 Ontario passed Bill 163 for first responders on April 6, 2016.

6


Provincial PTSD Strategy for FRs

• A radio and digital campaign to increase awareness about PTSD

amongst FRs, their families and communities and eliminating the

stigma that may prevents those in need from seeking help

• An annual leadership summit hosted by the Minister of Labour to

highlight best practices, recognize leaders, and monitor progress in

dealing with PTSD

• An online toolkit with resources on PTSD tailored to meet the needs

of employers and each of the first responder sectors

• Grants for research that supports the prevention of PTSD

7


New PTSD Environment

2 PTSD Streams

1st Responders

Bill 163 (s. 14) Process

Non - 1st

Responders

Section 13 Process

8


Purpose of Bill 163

• Provides a presumption for 12 specified groups of workers that their

PTSD condition arose out of and in the course of employment

• If a worker covered by the legislation is diagnosed with PTSD by a psychiatrist

or a psychologist and makes a claim for benefits, the WSIB must presume the

condition is work-related, unless the contrary is shown

• If worker not entitled to presumption, then s. 13 PTSD stream

applies

9

Who is a First Responder?

10

Listed First

Responders

[s.1(2)]

Definition Comments

1. Full-time

firefightersA worker who is a

firefighter, regularly

employed on a

salaried basis, and

scheduled to work

average of 35 hours or

more per week

Firefighter defined

• S. 1 of Fire Protection and

Prevention Act 1

• Worker employed by a band

council to undertake fire

prevention on a reserve, or as a

volunteer or for nominal amount

2. Part-time

firefighters

excludes volunteer firefighter or full-time firefighter

3. Volunteer

firefighters

Meets definition of firefighter in FPPA

1. “firefighter” means a fire chief and any other person employed in, or appointed to, a fire

department and assigned to undertake fire protection services, and includes a volunteer firefighter;


11

4. Fire

investigators

• Appointed under the Fire Protection and Prevention Act, Fire

Marshals Act, or by a band council

5. Police officers • chief of police, any other police officer or a First Nations

Constable

• Doesn’t include a special constable, a municipal law

enforcement officer, or auxiliary member of police force

6. Membres of an

emergency

response team

• person who provides first aid or medical assistance in an

emergency, either as a volunteer or for a nominal

consideration, honorarium or training or activity allowance,

and who is dispatched by a communications officer to

provide the assistance

• does not include an emergency medical attendant, a

firefighter, a paramedic or a police officer;


12

Worker Class Comments

7. Paramedics • a person employed by or a

volunteer in an ambulance

service who meets the

qualifications for an emergency

medical attendant as set out in

the regulations, and who is

authorized to perform one or

more controlled medical acts

under the authority of a base

hospital medical director

• does not include a physician,

nurse or other health care

provider who attends on a call

for an ambulance

• Referenced from

definition in the

Ambulance Act

13

Worker Class Comments

8. Emergency

medical

attendants

• a person employed by or a

volunteer in an ambulance

service who meets the

qualifications for an emergency

medical attendant as set out in

the regulations

• does not include a paramedic

or a physician, nurse or other

health care provider who

attends on a call for an

ambulance

• Referenced from the

Ambulance Act

9. Communications

officers

• communications officer for the

purposes of the Ambulance Act

4. (1) The Minister has

the duty and the power,

(a) to ensure the

existence throughout

Ontario of a balanced

and integrated system of

ambulance services and

communication services

used in dispatching

ambulances;


14

10. Workers in a correctional

institution

• A “correctional institution” means a correctional

institution as defined in section 1 of the Ministry of

Correctional Services Act or a similar institution

operated for the custody of inmates

11. Workers in a place of secure

custody or place of secure

temporary detention.

• “place of secure custody” has the same meaning as in

subsection 3 (1) of the Child and Family Services Act

• “place of secure temporary detention” means a place of

temporary detention in which the Minister has

established a secure detention program

12. Workers whose duties

include dispatching the

workers described in

paragraphs 1 to 5

• 911 operators


OP 15-03-13

• PTSD in First Responders (FR)

• Essentially rewords Bill 163

• Applies to decisions made on or after April 6, 2016, for accidents on

or after January 1, 1998

15


Is worker entitled to the presumption?

• Worker in one of the 12 FR categories

• Employed as FR for at least one day on or after April 6, 2014

• Worker has a DSM 5 diagnosis• Was the worker diagnosed with PTSD by a psychiatrist or psychologist ?

• If yes to the above, then PTSD is presumed to have arisen out of and

in the course of the first responder's employment, unless the contrary

is shown

16


Rebutting Presumption (15-03-13)

• The presumption may be rebutted if it is established that the

employment was not a significant contributing factor in causing

the first responder's PTSD.

17


Exception for Employment Decisions

• PTSD not compensable if caused by employer HR actions• terminations

• demotions

• transfers

• discipline

• changes in working hours, or

• changes in productivity expectations

• Expect this to be challenged under the Charter

18


Transitional Claims Entitled to Presumption

• Pending Claims - PTSD claims from FRs before the WSIB or the

WSIAT on April 6, 2016

• Claim file at WSIB but no decision made

• Decision made at WSIB and a notice of objection filed within appeal time frame

• An appeal to WSIAT filed within appropriate time frame

• New PTSD claim filed by October 6, 2016 whether or not worked as

a FR after April 6, 2016 can be DSM 4 / 5

• FR ceases to be employed as FR in transitional period but worked at

least 1 day after Apr 6/14 diagnosis made between Apr 6/14 and Apr

6/18

• DSM 4 only if claim filed by October 6/16 – after Oct 6 must be a DSM 5

diagnosis19


Does the worker have a DSM diagnosis?

• PTSD is a disorder, as described in the DSM-5 and DSM-4

• Must be diagnosed by a psychiatrist or psychologist

• A psychiatrist is a physician who holds a specialist’s certificate in

psychiatry issued by The Royal College of Physicians and

Surgeons of Canada or equivalent qualification

• A psychologist means a member of the College of Psychologists

of Ontario who holds a certificate of registration for a psychologist

authorizing autonomous practice, or an individual who has a

similar status in another province or territory of Canada

20


The Move from DSM 4 to DSM 5

• DSM 5 criteria identify triggers to PTSD as exposure to

actual or threatened death, serious injury or sexual violation

– must result from one or more of following - worker must

• directly experiences the traumatic event

• witnesses the traumatic event in person; learns that the traumatic

event occurred to a close family member or close friend (with the

actual or threatened death being either violent or accidental), or

• experiences first-hand repeated or extreme exposure to aversive

details of the traumatic event (not through media, pictures,

television or movies unless work-related)21


DSM-5

• American Psychiatric Association released DSM-5 in 2012

• DSM-5 moves to a nonaxial documentation of diagnosis, combining the former

Axes I, II, and III, with separate notations for psychosocial and contextual

factors (formerly Axis IV) and disability (formerly Axis V) under the DSM 4

• Would require a change in policy to have a DSM 5 diagnosis or as some

provinces say a diagnosis under the most current DSM guide

• Many other provinces use the DSM-5 standard

22


Decided Cases

• A worker who filed a claim for PTSD that was denied by the Board or

by the Appeals Tribunal in the past, may not refile the claim under Bill

163

23


How to Rebut the Presumption

• Was the diagnosis made by appropriate clinician

• Is the worker in one of the designated classes of FRs

• Does worker have a DSM 5 diagnosis

• If a worker has a DSM 4 diagnosis does it come within the transition

rules

• Is PTSD caused by employer work decisions such as demotion or

discipline – no entitlement under any stream

• The entitlement may be rebutted if it is established that the

employment was not a significant contributing factor in causing the

first responder's PTSD

• If presumption rebutted, then worker entitled to go under s. 13 stream 24


Strategic Considerations

• Is there any benefit to rebut the presumption?

• Is the fundamental issue whether or not the worker is suffering from PTSD?

• The critical issue is seeing the medicals

• Unless the worker provides them or consents to their release, employer must

object to entitlement

• Once the psychiatric / psychological report is reviewed decisions can

be made re continuing the objection on the merits

25


S. 13 Stream – Mental Stress Provision

S. 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.

26


Entitlement Criteria for s. 13 mental stress

• To have entitlement the mental stress must be

1. An acute reaction

2. To a sudden and unexpected

3. Traumatic event

4. Arising out of and in the course of employment

• Excludes benefits for mental stress caused by employer’s decisions

or actions relating to the worker’s employment

• Must be a DSM 4 diagnosis

27


How does WSIB Mental Stress Policy

15-03-02 flesh this out?

• The sudden and unexpected traumatic event must be identifiable

• May be a result of a criminal act, harassment, or a horrific accident

• May involve actual or threatened death or serious harm against the

worker, a co-worker, a worker’s family member, or others

• The worker must have suffered or witnessed the traumatic event first

hand, or heard the traumatic event first hand through direct contact

with the traumatized individual(s) (e.g., speaking with the victim(s) on

the radio or telephone as the traumatic event is occurring)

28


Harassment

• Sudden and unexpected traumatic event includes being the object of

harassment

• Harassment includes physical violence or threats of physical violence

(e.g., the escalation of verbal abuse into traumatic physical abuse)

and includes being placed in a life-threatening or potentially life-

threatening situation (e.g., tampering with safety equipment; causing

the worker to do something dangerous)

29


Does DSM5 Include Sexual Harassment

• Trigger includes exposure to actual or threatened sexual violence

• DSM5 arguably an expansion for considering sexual harassment as

a PTSD trigger

• DSM-5 use of vague term noncontact sexual abuse arguably

elevates behaviors such as fondling or exhibitionism to qualifying

trauma for PTSD*

• Experts taking this position might then be called on to explain how

noncontact sexual abuse is a traumatic stressor equivalent to the

kidnapping or torture examples described in the text

30*DSM5 Diagnostic Features


Mental Stress Diagnostic Requirements

• Immediate acute reaction

• WSIB accepts entitlement if health care professional confirms worker suffering

from acute stress disorder, post-traumatic stress disorder, adjustment disorder,

or an anxiety or depressive disorder, in accordance with the DSM-IV

• Delayed onset or onset due to cumulative effect

• Must be a DSM-IV Axis 1 diagnosis

• by a psychiatrist or psychologist before the claim is adjudicated

31


Chronic Mental Stress in WSIA

• S. 13 – WSIA excludes entitlement for CMS(4) Except as provided in subsection (5), a worker is not entitled to benefits

under the insurance plan for mental stress.

(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.

32


WSIAT Charter Cases

• Have been 3 CMS cases to date that successfully argued entitlement

based on Charter of Rights

• WSIAT bifurcates Charter cases

• Stage 1 deals with the facts – assuming the statutory / policy impediment is

removed would the worker be entitled to benefits?

• If answer is yes, then Stage 2 takes place to determine if statute and / or policy

breach Charter

• If yes, then WSIAT makes decision as if impugned provisions are of no force or

effect on worker’s case

• Decision does not directly apply to other workers or cases

• Are long (years) cumbersome cases, involving expert technical

evidence 33


Decision 2157/09

• Involved a registered nurse at hospital subjected to years of rude and

demeaning treatment by another worker

• Went off work and claimed WSIB benefits based stress

• Entitlement denied at all levels of WSIB

• Worker appealed to WSIAT and was successful

• No judicial review

34


What did Decision 2157/09 conclude?

• Ss. 13(4) and (5) of the WSIA and the TMS policy breached worker’s

section 15(1) Charter rights equality rights15. (1) 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.

• WSIAT declined to apply subsections 13(4) and (5) of the WSIA and

the TMS policy to this appeal

• Worker's claim for initial entitlement for mental stress was granted

and sent back to WSIB for determination of benefits

35


Decision 1945/10

• Worker a correctional officer who suffered a stress related

disablement arose out of and in the course of employment

• Worker developed CMS as a result of actions by the employer that

discriminated against the worker for reasons that were not justified by his job

performance

• Not entitled to benefits per s. 13(4) and (5)

• No contrary submissions from AG who withdrew from appeal and no

employer submissions

• Panel followed analysis and findings of Decision 2157/09

• Concluded s. 13(4) and (5) breached Charter, declined to follow

sections, and granted worker entitlement36


Decision 665/10

• Worker child protection worker

• Worker was becoming more and more stressed by his workload

demands and the nature of the job

• Worker successful in raising the Charter

• WSIAT ordered benefits be paid to worker

37


WSIB Response

• WSIB continues to deny CMS claims so they go to the WSIAT

• May be a legislative response to this

38


Thank you

(416) 314-8735

[email protected]

Documents

Mental Stress the New Landscape...2. PEI Workers Compensation Act contains similar definition in s. 1 that only PTS is compensable. This is the model for other provinces that exclude