When the Ontario Government passed Bill 163 on April 5, 2016, there was a collective sigh of relief among First Responders and their advocates. The expectation was that this new legislation would facilitate access to benefits and treatment for First Responders diagnosed with PTSD. But what happens in situations where a First Responder may suffer from elements of PTSD, but does not meet diagnostic criteria for a formal diagnosis? Or if a First Responder is diagnosed with another type of mental stress injury, that is attributable to the generally stressful nature of their work?
On January 1, 2018, the WSIB Chronic Mental Stress Policy (15-03-14) came into effect. This policy allows for benefits when it is established that an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of a worker’s employment.
The Policy states that this can be one event or a cumulative series of work-related stressors, but the events must be confirmed, and must meet the threshold of a “substantial work-related stressor”, which is defined as “excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. For example, workplace harassment is generally considered to be a substantial work-related stressor, but interpersonal conflict is not. It should also be noted that entitlement is not granted in situations where the mental stress injury is in response to decisions or actions of a worker’s employer relating to the worker’s employment, like a decision to change the work performed or working conditions, or discipline or termination of the employment.
The Policy also acknowledges that there are occupations or categories of jobs within an occupation that are reasonably characterized by a high degree of routine stress that should not be denied simply because all workers employed in that occupation or category of jobs in the occupation, are normally exposed to a high level of stress. Therefore, in some cases a high level of routine stress over time can qualify as a substantial work-related stressor. Examples of such stress can include having responsibility over matters involving life and death, or routine work in extremely dangerous circumstances.
The caveat is that the substantial work-related stressor must be established as the predominant cause of the diagnosed mental stress injury. That does not mean that the presence of other non-work-related stressors precludes entitlement under the Policy, but that it must be shown that the work-related stressor is the main element of the mental stress injury.
You may have seen the media reports in late 2018 that claimed the WSIB denied over 90% of chronic mental stress claims. That can be a very discouraging statistic to someone who has filed a mental stress claim and received a denial letter from the WSIB. But a recent decision released by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) and the interpretation of the CMS Policy in the context of occupational stress in law enforcement is encouraging.
WSIAT Decision No. 1269/20, released on November 18, 2020, involved the appeal of a Special Constable who worked providing security at the courts, and who was diagnosed with a stress-related disorder that was attributed to his duties at work. In this case, there was no dispute that the diagnosed disorder was due to work, but rather, whether the circumstances of his case gave rise to entitlement under the Chronic Mental Stress (CMS) Policy.
The WSIB Appeals Resolution Officer had denied this worker’s claim as he/she was not persuaded that the job duties of a Special Constable in Court Services involve a high degree of routine stress with responsibility over matters involving life and death and/or involve routine work in extremely dangerous circumstances.
The WSIAT Panel, however, viewed the circumstances of the workers job quite differently, and pointed to what they considered to be the “most obvious indication” that the job of a Special Constable is routinely dangerous. At paragraph 13 of the decision they wrote,
“It is difficult to see how workers who are mandated by the terms of their employment to wear bullet-proof vests can be said to be engaged in work that is not dangerous.”
The Panel found that the job duties were akin to those of a Police Officer. Special Constables have the powers of arrest, and the individuals of whom they have legal charge are often angry and aggressive, and sometimes pose a flight risk. There is a regular and consistent prospect of being the subject of physical violence. They found that the appellant was employed in an occupation “reasonably characterized by a high degree of routine stress”, and that because of this stress, developed a diagnosed stress disorder. His appeal was allowed.
As appeals involving chronic mental stress continue to be adjudicated at the WSIAT, I anticipate we shall soon see the rapid development of further jurisprudence on the CMS Policy as it applies to mental stress injuries arising out of law enforcement, and other high stress occupations in general. However, this case sets an encouraging precedent for those currently waiting for their appeals to be heard.