Clear Path was recently awarded an objection to initial entitlement for one of our customers based on the WSIB's Traumatic Mental Stress policy (15-03-02). Even though our efforts proved successful, this case provides a valuable lesson for other employers helps to illuminate what meets -- and what does not -- the definition of a traumatic event according to the WSIB.
What is policy 15-03-02?
The WSIB policy on Traumatic Mental Stress entitles a worker to benefits for traumatic mental stress that occurs suddenly in an event arising out of and while in the course of employment.
The event that occurs may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member or others. For the event or incident to be considered traumatic it must be clearly and precisely identifiable, objectively traumatic, and unexpected in the normal or daily course of the worker’s employment or work environment.
There are some restrictions to this policy. There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function such as terminations or demotions. As well, workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits.
What is the criteria to be covered under policy 15-03-02?
What was the scenario for this particular claim?
The worker claimed that he was suffering from stress after a physical altercation that was started by another employee. Following the altercation, he left the workplace and returned later in the day to deliver a doctor’s note that would allow him a month off.
The worker returned to work the following week, providing his employer with a Form 6 stating that he wished to commence a WSIB claim. The employer offered the worker modified work with arrangements to work from home after the employee indicated through a Functional Abilities Form (FAF) from his doctor that he would be too stressed to come to work. The worker rejected the modified work further stating that he would be unable to work from home as a result of the stress.
Possible outcomes for this case?
A claim for Traumatic Mental Stress can cost a company hundreds of thousands of dollars. Here’s what Clear Path team member Jessica Masse says about it.
“One month of loss of earnings is the tip of the iceberg. Those who are granted LOE under this policy, Traumatic Mental Stress can rack up costs in the form of healthcare and LOE benefits. In this case, one month could have easily turned into two and so on. The result of all these costs will stay on a company’s NEER statement for four years.”
Why doesn’t this case translate into entitlement for the employee?
In the Form 6, the worker stated that he "had merely brushed the arm of the work crew member after he had received his work assignment." When the employer investigated the incident, witnesses told a different story. Five witnesses that had seen the event claimed that the worker was providing inaccurate information and that the worker in question grabbed the arm of the other employee -- which initiated the altercation.
The altercation described above does not meet the criteria of the WSIB's policy, as it does not qualify as traumatic and a person feeling insulted by another employee does not translate to harassment.
The WSIB agreed that there was no basis for the worker’s claim of being approached aggressively or harassed. The worker who filed the claim was the individual who initiated inappropriate physical contact by grabbing the work crew member’s arm.
As a result of this false claim and the company's policy related to workplace violence and harassment, the employer found grounds for termination of the employee.
What other HR lessons can we learn from this case?
Even though the company avoided the potentially high WSIB claim costs when the claim was denied, there are some additional things to consider from an HR perspective.
When a situation occurs that involves workplace violence or harassment, employers will be in a better position to take action if they are fully compliant with the amendments to the Ontario Occupational Health & Safety Act in 2010 (also known as Bill 168). By having up-to-date policies realted to workplace violence and harassment, you have a policy in place to ensure the termination of a violent employee. In this case, the company did have such a policy in place and was able to take appropriate actions against the offending employee.
Another wrinkle in this case is the fact that the employee attempted to file a claim both through the WSIB and the company's Short-Term Disability program for the same incident (which was also denied). Employers should be aware of such "double dipping" attempts by employees and take appropriate actions accordingly.
If you have any questions about WSIB claims management, including how to object to the initial entitlement of a claim, we would love to hear from you. Contact Anna Aceto-Guerin at firstname.lastname@example.org or toll free at (888) 336-0950.
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