Standard for benefits for mental injuries from work approaching that for physical injuries
By Jeffrey R. Smith
Mental health awareness is on the rise as people try to erase the stigma associated with mental illness and ensure those who suffer receive the treatment and care they need. This awareness extends to the workplace where employers are being encouraged to identify and accommodate employees who are affected by mental illness. This includes stress above and beyond what can normally be expected from the job.
Accommodation of mental health issues is becoming increasingly important for employers, not just for legal reasons but also for the good of employees and workplace morale.
Steps are being made to make mental stress deserving of workers’ compensation benefits as well. Mental stress is now widely recognized in Canadian jurisdictions as warranting workers’ compensation benefits; however, until recently, employees making such claims were largely required to prove the stress was the result of a specific traumatic event and the cause was beyond what can reasonably be expected in the course of employment. However, this is slowly changing as well.
Recently, Ontario made moves to make post-traumatic stress disorder (PTSD) easier for first-responders to claim benefits for. If proposed legislation passes, PTSD in such workers would be presumed to be work-related, eliminating the need for them to prove as such and making it easier for them to be approved for benefits.
Mental stress benefits are also gradually being opened up to other types of workers as well. While the requirement of proof is still around in most places, workers’ compensation bodies are becoming a little more generous in terms of determining if employees meet those requirements.
Recently, an educational assistant (EA) in Ontario filed a workers’ compensation claim for mental stress that came out of her job assisting special needs students. The EA was targeted by an eight-year-old student who kept assaulting her. The student had been prone to violent outbursts for some time, but things escalated over a three-month period to the point where the EA was assaulted every day. Finally, she had a breakdown and went off work.
An appeals resolution officer initially denied the EA’s claim, finding such incidents were to be expected in the course of employment for a special needs EA. In addition, the officer found the EA’s stress developed over time, not because of a traumatic incident.
However, the province’s Workplace Safety and Insurance Appeals Tribunal thought differently, finding the level of abuse the EA suffered went above and beyond what could reasonably be expected in her job, and her breakdown came as a result of the more recent escalation of assaults, particularly three traumatic incidents the week of her breakdown — including one that day. The EA was entitled to workers’ compensation benefits for mental stress: See Decision No. 177/16, 2016 CarswellOnt 1995 (Ont. Workplace Safety and Appeals Trib.).
It’s becoming more common for employees to receive benefits for mental injuries suffered as a result of their work. In many cases, such injuries can be just as debilitating — or even more so — as physical injuries.
There are numerous cases of employees being unable to work due to psychological issues from something that happened at work — such as PTSD for first responders. As we move towards a reality where mental injuries are treated the same as physical injuries sustained in the course of employment, the question remains: Is this the right course of action? Should mental injuries have the same burden of proof as physical injuries, since they can be harder to detect?