This webinar is brought to you by
Your Legal Rights: a website of legal
information for people in Ontario.
www.yourlegalrights.on.ca
Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.
"Work-related Psychological Injury:
When and How to Seek WSIB Benefits"
Airissa Gemma, Community Legal Worker
Maryth Yachnin, Staff Lawyer
IAVGO Community Legal Clinic
CLEONet Webinar
November 24, 2011
Please Note:
The content of this webinar is based on law that
was current on the date the webinar was
recorded. Your Legal Rights webinars contain
general legal information. They are not intended to
be used as legal advice for a specific legal problem.
For more information on how to find a lawyer or
to contact your local community legal clinic visit:
www.yourlegalrights.on.ca/find-services
Your Legal Rights is a project of CLEO and funded by the Law Foundation of
Ontario.
About our facilitators…
Airissa Gemma has been an advocate at IAVGO for more
than 30 years, and has represented hundreds of injured
workers in navigating the complex legal and policy
framework of workers' compensation in Ontario.
Maryth Yachnin joined IAVGO full-time in 2009, after
practicing at a litigation boutique and working with two
public inquiries. She was called to the bar in 2005.
Your Legal Rights is a project of CLEO and funded by the Law Foundation of
Ontario.
IAVGO Community Legal Clinic


IAVGO is a community legal clinic founded in 1975 to advocate
alongside injured workers. IAVGO provides free legal services to
low-income injured workers, and engages in law reform regarding
workers’ compensation in Ontario, as well as public legal
education.
This presentation provides general information only. For specific
legal questions, please contact a lawyer or call IAVGO for advice
specific to the case.
IAVGO Community Legal Clinic
489 College St., Suite 203, Toronto ON M6G 1A5
(416) 924-6477
www.iavgo.org
Types of Psychological Injury Compensable
 What kinds of psychological (non-organic) injury are
recognized by the Workplace Safety & Insurance
Board (WSIB)?
Psychotraumatic Injury
o (OPM Document 15-04-02)
Chronic Pain Disability (CPD)
o (OPM Document 15-04-03)
Traumatic Mental Stress
o (OPM Document 15-03-02)
Basic Workers’ Compensation
Principles Apply
Was the work one significant contributing
factor to the psychological injury, on a balance
of probabilities?
 Thin skull rule – You take your victim as you
find them
 Merits and justices
 Benefit of the doubt

Excluded Injuries – Chronic Mental Stress

What kinds of psychological injury are not
compensable by the WSIB?
• “Chronic” mental stress
o
Workplace Safety and Insurance Act, s. 13(4)&(5):
13 (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.
o
o
only a bar where the chronic mental stress is not secondary to a
physical work-related injury, but rather is caused by “mental” work
conditions (e.g. overwork, harassment, witnessing traumatic events
without suffering physical injury, etc.)
Statutory limitation only applies to post-1998 injuries. Although the
WSIB policy 15-03-02 states it applies to all injuries after 1989, the
WSIAT should not apply it to pre-98 injuries.
Categories of Injury: Cause and Effect
• Physical-Physical
Claims
o
o
o
o
sudden onset
gradual onset or disablement
occupational disease
some chronic pain
disabilities
• Physical-Mental Claims
o
o
o
o
head injuries
exposure to neurotoxins
psychological reactions to
physical injuries (and
their consequences)
some chronic pain
disabilities
• Mental-Physical Claims
o
heart attack secondary to
mental stress (no limits on
compensability)
• Mental-Mental Claims
o
o
acute reaction to a
sudden, shocking or lifethreatening event
chronic mental stress
“Psychotraumatic” Injury

Psychological Disability - 
lay definition =
any impairment in
psychological functioning.
Psychotraumatic Disability - WSIB
definition = a secondary condition
which impairs worker’s
psychologically and is related to a
work-related physical injury and/or
its sequalae.

Not a medical term

Term has led to some adjudicators
and board doctors to deny
psychological entitlement because
an accident was not “traumatic” totally wrong in law and not what
policy says
Psychotraumatic Disability: Policy
Requirements

OPM Document 15-04-02, Psychotraumatic Disability:
o
o
o
o
o
Psychotraumatic disability must manifest within 5 years of injury or
last surgical procedure (some evidence of condition within 5 years).
Psychotraumatic disability can arise from an emotional reaction to
the accident or injury or treatment process, or to a severe physical
disability.
Psychotraumatic disability is also compensable if it “is shown to be
related to extended disablement and to non-medical, socioeconomic
factors, the majority of which can be directly and clearly related to
the work-related injury.”
Organic brain injuries also compensated under this policy.
The WSIB can pay for health care for non-work-related psychological
injuries if it will assist in reducing costs.
Psychotraumatic Disability: Practical Tips

Many workers who suffer work-related injuries and loss of
employment suffer some psychological harm, so advocates
should be alert to the issue in every case.
o Broach either CPD or psych disability with sensitivity to the
stigma attached to mental health issues. It can help to put it
in context of that many workers develop these conditions
after a work accident, and that the law compensates for this.
o If your client develops a psychological injury after having
suffered a physical workplace injury, much better to claim as
a psychotraumatic injury than as traumatic mental stress.
o Psychotraumatic injury is often the additional injury that can
allow a worker to be considered “severely impaired” by the
WSIB, and possibly be entitled to full loss of earnings and
other additional benefits.
Psychotraumatic Disability: Practical Tips
(Cont’d)

Although not specifically required by the policy, workers must generally
have a DSM-IV diagnosis by a psychiatric specialist to be considered for
entitlement.
o

In requesting a medical report, be sure to clarify the legal standard (more
likely than not that the work or its sequalae were one significant contributing
cause of the injury) as well as the policy requirements where helpful.
WSIB adjudicators are supposed to recognize warning signs for
psychotraumatic injury, but in practice rarely if ever do so until the
situation escalates to a severe level or the worker expressly raises the
issue.
o
If your client is having trouble accessing psychiatric care, you might try to convince the
WSIB to fund some temporary psychological counselling. Adjudicators are encouraged
in their internal training materials to fund treatment where an emerging non-organic
condition is becoming a barrier to recovery, return-to-work or successful labour market
re-entry. In these cases, the WSIB can pay for a psychiatric or psychological assessment
regardless of whether entitlement is accepted for the psychological condition. Practically
speaking, the treatment sessions may found the evidentiary basis for entitlement.
Psychotraumatic Entitlement: Hearing Tips

What to cover with the worker at an oral
hearing?
o
o
o
o
o
o
o
Pre-accident work history
Pre-accident hobbies and social activities
Description of injury and its psychological effect
History of development of psychological concerns
Other non-work-related stressors (e.g. family)
What are worker’s symptoms? Sleep, concentration,
etc. What is the worker’s daily routine since the
psychological disability started?
Medical treatment
“Chronic Pain Disability”

WSIB definition = a pain syndrome which begins with
a physical injury to the body, followed by pain which
last beyond the normal healing time for that injury
and is accompanied by marked life disruption.

Not always the same as medical understanding of
chronic pain, so be careful assuming client has WSIB
CPD because doctor diagnoses chronic pain.
Chronic Pain Disability: Policy Requirements

OPM 15-04-03, Chronic Pain Disability:

If pain is predominantly attributable to an organic cause or to
the psychiatric conditions of post-traumatic stress disorder or
conversion disorder, the worker will be compensated
pursuant to the WSIB's policy on that organic or psychiatric
condition. If the chronic pain arises predominantly from
psychological sources or undetected organic sources, the pain
will be considered under the CPD policy.

If workers receives CPD entitlement, assumed to have a
permanent impairment (as opposed to psychotraumatic,
which is assumed to be temporary)
Chronic Pain Disability: Policy
Requirements (Cont’d)

Under the policy, must meet ALL of the following criteria:
o
o
o
o
o
A claim for compensation for an injury has been submitted and accepted.
Chronic pain is caused by the injury, as proven by:
o
subjective or objective medical or non-medical evidence of the worker's
continuous, consistent, and genuine pain since the time of the injury, AND
o
a medical opinion that the characteristics of the worker's pain (except its
persistence and/or its severity) are compatible with the worker's injury, and
are such that the physician concludes that the pain resulted from the injury.
The pain
persistsPain
6 or more
months beyond
usual healing time of the injury,
Chronic
Disability:
PolicytheRequirements
proven by subjective or objective medical or non-medical evidence of the worker's
continuous, consistent and genuine pain for 6 or more months beyond the usual
healing time for the injury.
The degree of pain is inconsistent with organic findings, with medical opinion
which indicates the inconsistency.
The chronic pain impairs earning capacity, with subjective evidence supported by
medical or other substantial objective evidence that shows the persistent effects of
the chronic pain in terms of consistent and marked life disruption. Marked life
disruption must be evident in the worker’s occupational, social and home life.
Specific Conditions Covered under CPD
Policy

OPM 15-04-03, Chronic Pain Disability:
• Fibromyalgia, somatoform pain disorder and disabling head
pain following minor head trauma with no organic findings
are compensated under the CPD policy
• Characteristics of fibromyalgia include:
 chronic diffuse pain of unknown aetiology attributable to
either undetected organic condition or psychogenic
sources
 the presence of "tender points" in predictable, and usually
symmetrical, locations
 fatigue and sleep disorders.
Chronic Pain: Practical Tips



The genuineness of pain is one of the criteria for CPD,
so worker’s credibility is crucial.
In preparing for hearing, see the “Checklist for chronic
pain claims” in Chapter 10 of the Workers’
Compensation: A Manual for Workers’ Advocates (3rd
ed.), published by IAVGO and CLEO, available at
www.yourlegalrights.on.ca.
Consider downside risk before pursuing CPD where a
worker already has an organic permanent impairment
award, especially a high one. The new permanent
impairment award for CPD will generally replace the
organic award (with some exceptions for
fibromyalgia).
How To Advise Injured Worker –
Psychotraumatic or CPD?

Psychotraumatic?
o
Looking at the medical
information:
o
o
o

CPD?
o
terms like anxiety or
depression, or sometimes
adjustment disorder, mood
disorder
Presence of a significant organic
impairment
Where the medical evidence is not
clear, preference for psych because
of global rating principle in CPD.
For CPD, there is one permanent
impairment (PI) award based on a
psychiatric assessment of the
worker’s level of functioning. For
psychotraumatic entitlement,
worker gets both an organic PI and
one for the psychological injury.
Looking at the medical
information:
o
o
o
terms like functional
impairment, chronic pain,
myofascial pain, pain
syndrome, somatoform pain
disorder
Extended period of disability and
pain beyond normal healing time
& failed attempts at getting
treatment for the pain & a
comparatively small amount of
organic impairment compared to
pain
In some cases, appropriate to ask
for CPD or psychotraumatic as
alternatives and see what sticks
Mental Stress: Policy Requirements

OPM Document 15-03-02, Traumatic Mental
Stress:
• A traumatic event may be a result of a criminal act,
harassment, or a horrific accident, and may involve actual or
threatened death or serious harm against the worker, a coworker, a worker’s family member, or others.
• In all cases, the event must arise out of and occur in the course
of the employment, and be
• clearly and precisely identifiable
• objectively traumatic, and
• unexpected in the normal or daily course of the worker’s
employment or work environment.
• The event is generally accepted as being traumatic.
Mental Stress: Policy Requirements (Cont’d)

Sudden and unexpected traumatic events include (not
exclusive):
o
o
o
o
o
o
o
o
witnessing a fatality or a horrific accident
witnessing or being the object of an armed robbery
witnessing or being the object of a hostage-taking
being the object of physical violence
being the object of death threats
being the object of threats of physical violence where the worker
believes the threats are serious and harmful to self or others (e.g.,
bomb threats or confronted with a weapon)
being the object of harassment that includes physical violence or
threats of physical violence (e.g., the escalation of verbal abuse
into traumatic physical abuse)
being the object of harassment that 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).
Mental Stress: Policy Requirements (Cont’d)


Cumulative effect: Due to the nature of their occupation, some workers, over a
period of time, may be exposed to multiple, sudden and unexpected traumatic
events resulting from criminal acts, harassment, or horrific accidents. If a worker
has an acute reaction to the most recent unexpected traumatic event, entitlement
may be in order even if the worker may experience these traumatic events as part
of the employment and was able to tolerate the past traumatic events. A final
reaction to a series of sudden and traumatic events is considered to be the
cumulative effect.
Where the acute reaction is immediate, the WSIB will accept the claim if an
appropriately regulated health care professional confirms the worker is suffering
from an Axis I diagnosis which may include but is not limited to




acute stress disorder
post-traumatic stress disorder
adjustment disorder, or
an anxiety or depressive disorder,
in accordance with the DSM-IV. The decision-maker may, at a later point, require
an assessment by a psychiatrist or psychologist to confirm ongoing entitlement.
Current State of the Law on Mental Stress
at the WSIAT

Entitlement has been granted in the following types of situations at the
Workplace Safety and Insurance Appeals Tribunal (WSIAT):
 Physical acts with potential for violence (angry supervisor put hand
on worker's shoulder)
 Sexual harassment and investigation into that harassment by
employer (not just actions in employment function)
 Excessive scrutiny by supervisor (not justified as normal staff
directions) and vexatious pursuits by co-workers
 Near miss situations
 Wrongful accusations of wrongdoing (e.g. false accusation of sexual
assault)
Current State of the Law on Mental Stress
at the WSIAT (Cont’d)

But, more recently Tribunal is taking a more restrictive
approach; more in line with the plain language of WSIB
policy.
o


E.g, Decision No. 3022 07, "The types of traumatic events that may form the basis for entitlement
are broader than those listed in Board policy but the list in the policy should be considered
instructive, although not necessarily exhaustive, of the kinds of events that fall within the policy.
The items on the list suggest that entitlement applies when the circumstances are very serious,
and where a threat to personal security is at least implicit. This must be considered from an
objective perspective and not solely from the perspective of the aggrieved party. The policy does
not apply when the facts amount only to unpleasant or hostile interactions between co-workers.
Further, management actions must go beyond an employer's decisions that are part of the
employment function. The actions of management have to be egregious or carried out in bad
faith. Overzealous scrutiny carried out for the purposes of accomplishing work functions is
insufficient to come within the provisions of the Act for entitlement.“
A number of cases have found there must be objective physical
threat to personal security.
Recently, one Panel asked the WSIB for submissions on whether the
policy, which appears to require actual or implied threat of physical
violence, is consistent with the Act; Decision No. 483 11 I (false
accusation case)
Average Worker Test:
The WSIAT’s Limitation on Entitlement

Even prior to the statutory bar, the Tribunal often
imposed a different test on mental stress claims, called
the average worker test.

It is usually formulated as follows:


1. Is it reasonable that workers of average mental stability would
perceive the workplace events to be mentally stressful?
2. If so, would such average workers be at risk of suffering a
disabling mental reaction to such perceptions?
Challenges to Constitutionality of the
Mental Stress Limitations


A number of challenges are going ahead at the
Tribunal arguing that the statutory bar on entitlement
is discriminatory and violates the Charter; see e.g.
Decision No. 2157 09 I2
Case bolstered by B.C. Court of Appeal Plesner
decision and subsequent proposed changes to their
policy and legislation, expanding scope of entitlement
to cover harassment and bullying.
Tips for Arguing TMS Cases
● Like all other cases, stress must be work-related - so e.g. not harassment
because of personal relationships.
● Consider downside risk of claiming WSIB benefits for harassment type
cases without elements of threat of violence (or other unlikely to succeed
mental stress cases). If worker also has a separate cause of action (e.g.
human rights), consider if a negative WSIB decision on the facts could
present an obstacle in the other claim.
 Don’t focus too much on concepts like human rights violations, etc.,
since the most important question is always work-relatedness of injury,
and the WSIB and WSIAT are not very good at these issues in any event.
Assessing Permanent Impairment Awards
for Psychological Injury

For post-1990 cases, NELs assessed using the chart in OPM Document
18-05-11, Assessing Permanent Impairment Due to Mental and
Behavioural Disorders

For pre-1990 cases, pensions assessed using the chart in OPM Document,
15-04-02, Psychotraumatic Disability

% of NEL/pension award important for what it says about employability

More success usually in appeals of psych/CPD pensions or NELs than or
organic awards.
Useful Resources
WSIB policies – www.wsib.on.ca
 WSIAT decisions – www.wsiat.on.ca or
CanLii
 Workers’ Compensation: A Manual for
Workers’ Advocates (3rd ed.), published
by IAVGO and CLEO, is available at

yourlegalrights.on.ca.
This webinar was brought to you by
Your Legal Rights: A website of legal information
for people in Ontario
For more information visit the Employment and
Work section of Your Legal Rights at
www.yourlegalrights.on.ca
For more public legal information webinars visit:
www.yourlegalrights.on.ca/training
Download

Adjudicating the work-relatedness of chronic