WSIB Chronic Mental Stress Claims Being Denied at Unexpected Rates

Asha, July 4, 2019

In December of 2018, the Toronto Star reported that over 90% of chronic mental stress (“CMS”) claims were being denied by the WSIB with only 10 of 159 claims approved from January to May 2018. Fast forward to 2019 and the approval rate of CMS claims remain low. The most commonly cited reasons for the denial was a finding that the workplace event(s) were not “substantial work-related stressors” and either constituted interpersonal conflict or reasonable employer actions as part of the normal employment function. Other cited reasons for the denial was the failure of the worker to provide appropriate medical documents.

To date, there have been 10 reported Appeals Resolution Officer (“ARO”) decisions between late 2018 and May 2019. The claim for CMS was approved in two of those cases.

A review of the decisions illustrates the approach the ARO’s have been taking when adjudicating CMS claims.

Anxiety Due to Work-Related Stressors – Claim Approved

A police office officer’s claim was approved after he was able to show that he experienced cumulative stressful events on the job. In particular:

  • he provided evidence that over the course of several years, he was involved in number of grisly calls
  • he went on sick leave as a result and underwent a comprehensive psychiatric assessment in which he was diagnosed with anxiety due to work-related stressors

The ARO placed significant weight on this report in approving him for CMS benefits because the psychiatric assessment was comprehensive and documented a full understanding of the officer’s past medical and psychiatric history and personal stressors. Further, the ARO determined that even though the officer’s job required consistent exposure to routine stress, that did not preclude him from being approved for CMS entitlement.

Bullying and Harassment – Claim Denied

In another case, a worker claimed he was subjected to bullying and harassment by his supervisor stemming back many months. In support of his claim, the worker provided a doctor’s note which stated “Worker seen today. It is my clinical opinion that he is presently totally disabled to perform his own occupation as a result of work-related stress”.

In denying the claim, the ARO determined that this was not an “appropriately diagnosed” condition.

Bullying and Harassment – Claim Approved

A 37-year-old female staff sergeant at a detention centre claimed to be overwhelmed and in a “constant state of anxiety” after experiencing various forms of harassment and discrimination by members of senior management, particularly during her pregnancy.

The employer retained an external investigator to investigate the allegations. The investigator concluded that some, but not all, of the worker’s claims amounted to harassment.

The worker provided medical documents that she was diagnosed with PTSD by a psychologist.

Despite all of this, the ARO concluded that the incidents “were normal decisions and actions” stemming from the employment function and denied the worker’s claim.

Excessive Workplace Stress – Claim Denied

A recruiter claimed she experienced anxiety and depression due to an excessive workload and was exposed to a “consistent exposure to high levels of routine stress”. She said her stress levels increased after the employer reduced its workforce from three recruiters to one and led evidence that her employer denied her request for additional support.

The ARO concluded that although the worker’s doctor attributed her anxiety to the workplace, she did not experience a “substantial work-related stressor” that was excessive in intensity compared to the normal pressures of her job.

Importantly, the ARO noted that employees who claim consistent and routine stressors on the job must be able to show their job entails responsibility over life and death matters or they work in extremely dangerous conditions. Since the worker was not able to establish this, her claim was denied.

Take-Aways

Here are the takeaways that can be gleaned from these cases:

  • The WSIB will carefully examine the temporal sequence of events and the quality and sufficiency of medical documentation provided in deciding whether CMS benefits should be granted.
  • Adjudicators are not bound by the findings of investigators even when allegations of harassment are substantiated when assessing whether CMS benefits should be approved.
  • It is difficult to establish that workplace stressors constitute a “substantial work-related stressor”. It appears that workers must not only show that they experienced harassment but that the conduct of the employer was “egregious and abusive”.
  • In cases where workers allege they are experiencing excessive workloads, adjudicators may consider whether the worker’s responsibilities involve matters involving life and death and whether they work in extremely dangerous working conditions.
  • To date, there are no reported decisions from the WSIB or WSIAT. It remains to be seen whether higher-level adjudicators will uphold the stringent approach taken by ARO’s in determining CMS entitlement.

We will continue to monitor developments and keep you updated on this evolving area of the law.

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