A recent decision (205 14) by the Workplace Safety and Insurance Tribunal (WSIAT) is causing headaches for employers trying to provide opportunities for fun or fitness in their workplace.
An employee was granted WSIB benefits following an accident where he slipped and hurt himself while playing volleyball on the employer's premises during his lunch break.
This controversial and precedent-setting decision brings into question the historically agreed upon definition of what activities can be considered outside the regular course of employment.
Specifics of this case: (for the full decision, click here)
If an employer is now responsible for any potential injuries to their employees on recreational and/or fitness equipment in their workplaces, what's next?
Should we be closing down the workplace gyms, folding up the ping pong tables, and tearing down the volleyball nets?
This decision certainly is a controversial one within the HR community. Many fundamentally disagree that the mere presence of this equipment on your premises makes them incidental to employment. Clear Path's Michelle Strassburger says this decision expands the definition of "in the course of employment" too widely. She gives an example of an employee on a smoke break who flicks a cigarette butt against a wall that bounces back and hits them in the face. Is that eligible for WSIB benefits?
Many are also concerned about the message this decision sends to employers who are trying to find creative and fun ways to build team morale and improve health outcomes for their employees.
Rather than removing the equipment, Clear Path HR consultant Kelly Auld says that the best course of action for an employer may be to have each employee sign a waiver that:
Whether or not this would be sufficient considering this WSIAT decision is still to be determined.
Want to learn more about WSIB claims management or the WSIB appeal process? Register for one of Clear Path's upcoming workshops. You can also contact Anna Aceto-Guerin at (519) 624-0800 if you have any questions.
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Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently made a significant decision regarding entitlement limits for workplace mental stress claims. The tribunal declared that most of the legal restrictions placed on Workplace Safety and Insurance Board (WSIB) mental stress claims are unconstitutional and a violation of equality rights under section 15 of the Charter of Rights and Freedoms (Source: Mondaq).
Hicks Morley, a local law firm, explains this decision is likely to have a significant impact on employers of all sizes and will likely increase the number of claims filed by employees who allege that they have suffered mental stress as a result of the regular stresses of the workplace.
The case involved a nurse who alleged that she was subjected to abusive behaviour at work for a period of 12 years. She suffered mental health effects as a result of this abusive behaviour but her claim for benefits under the WSIA was repeatedly denied by the WSIB. The WSIB relied on the mental stress entitlement restrictions outlined in subsections 13(4) and (5) of the WSIA:
Subsection 13 (4): Except as provided in subsection 5, a worker is not entitled to benefits under the insurance plan for mental stress.
The worker then appealed the decision and the Tribunal held that the mental stress exception constituted an unjustifiable infringement on equality rights under the Charter. Based on that conclusion, the Panel declined to apply subsections 13(4) and (5) of the Act and allowed to worker’s appeal (Source: Gowlings).
Implications for Employers
Although this decision only has an immediate impact on this specific appeal, it will be highly persuasive in any future appeals regarding mental stress. Joseph Cohen-Lyons from Hicks Morley explains that, from the Tribunal’s perspective, the WSIA no longer limits entitlement for mental stress to traumatic mental stress claims. Chronic mental stress claims are now eligible for compensation.
It is important to note, however, that until such a decision becomes the subject of a judicial review or the government decides to amend the legislation, there will remain a level of uncertainty as to whether such a claim or appeal for mental stress benefits will succeed (Source: Mondaq).
Regardless of this uncertainty, employers will still be under increasing pressure to limit and address the causes of workplace stress as a result of this decision. Employers should be reviewing their current practices, policies and procedures in order to ensure they are protecting themselves from potential mental stress claims. Documentation is key throughout this entire process (Source: Hicks Morley).
Clear Path’s team of disability management experts and medical professionals is specifically equipped to assist employers through the WSIB claims management and appeal process. If you have a question about a specific claim, including mental health, please contact Anna directly at email@example.com or 519-624-0800.
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Recently an article was posted in the Canadian HR Reporter, “Ontario could see spike in mental stress claims”. This article was very detailed in explaining the nature of the Workplace Safety and Insurance Appeals Tribunal’s decision on eliminating the requirement of physical threat when granting benefits for mental stress claims. We have summarized and highlighted the main points below:
In January the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decided to eliminate the requirement of physical threat when granting benefits for mental stress claims. (Decision 483/11,)This will widen the number of claims being made, now that a physical event does not have to be the trigger for the mental stress claim. This opens the door for a variety of circumstances under which an employee might be able to receive compensation. It is estimated that 98% of mental stress claims would have been rejected prior to this decision, due to the absence of a physical threat.
The case that changed the nature of eligibility for mental stress benefits involved a female education assistant who sought benefits after she was falsely accused of striking a Grade 5 student in class. This individual had been an educator for more than 20 years, and was suspended while the school investigated the allegation. She was reinstated, however the worker’s physician reported that she experienced flashbacks of the moment of her suspension and avoided children, schools and playgrounds. The incident triggered memories of sexual and emotional abuse she experienced in her childhood. She was subsequently diagnosed with major depression. The tribunal found that the events she experienced were “objectively unexpected and traumatic” resulting in a disabling psychological condition.
Howard Levitt from Levitt law firm in Toronto agreed that “an allegation like that in the context of a teacher can lead to several major repercussions: one she could be criminally charged; two she could be precluded from ever teaching again…and three her reputation will be destroyed in newspapers, articles and otherwise, so there’s no question that what happened to her falls within the definition for traumatic mental stress benefits”.
While it has been long associated with mental health claims the board has decided that Post Traumatic Stress Disorder (PTSD) is no longer the only required diagnosis to qualify for benefits entitlement. To apply for traumatic stress benefits the claimant, must first be diagnosed by a physician with an Axis 1 diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Any diagnosis under Axis 1 is acceptable such as general clinical disorders (PTSD), major depression autism, schizophrenia etc.
To be eligible for benefits the following must be proven:
Increasingly we are seeing that worker’s compensation claims are no longer limited to physical injury, and now with Decision 483/11 mental health, depression and stress claims will become more common. They are often more complex and difficult to resolve vs. physical injury claims. Minimize the possibility of mental health claims in your workplace by encouraging wellness, and offering appropriate support programs. The Great West Life Centre for Mental Health has a great website that offers workplace strategies for mental health.
If you have questions about handling a mental health claim, or managing a difficult claim please contact Anna Aceto-Guerin directly at firstname.lastname@example.org or by phone 519-624-0800.
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