All Stressed Out! Schedule 2 Employers Group Annual Conference. Presented by Stephen C. Roberts McTague Law Firm LLP October 8, 2013

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1 All Stressed Out! Schedule 2 Employers Group Annual Conference Presented by Stephen C. Roberts McTague Law Firm LLP October 8, 2013

2 How Stress and Mental Health Issues Affect the Workforce Every day, 500,000 people in this country are absent from the workplace because of mental health problems. Someone suffering a mental illness will be absent from work on average twice as long as someone with any other disability. - Mental Health Commission of Canada

3 How Stress and Mental Health Issues Affect the Workforce (ctd.) Mental health illnesses account for approximately 30 per cent of short- and longterm disability claims and 17 per cent of overall costs. In 2011, lost productivity in Canada due to mental health illnesses was estimated at more than $6 billion. - Mental Health Commission of Canada

4 How Stress and Mental Health Issues Affect the Workforce (ctd.) Within two decades, the leading cause of disability is anticipated to be mental health and that the total cost to society could be greater than the entire cost of the health care system in Canada. - The Canadian Institute for Health Research

5 Workplace Safety and Insurance Act Section 13 Exception, mental stress (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress. Same (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.

6 Traumatic Mental Stress WSIB Policy A worker is entitled to benefits for traumatic mental stress that is an acute reaction to a sudden and unexpected event arising out of and in the course of employment, and the event must be Clearly and precisely identifiable; Objectively traumatic; and Unexpected in the normal or daily course of the worker s employment or work environment

7 Traumatic Mental Stress WSIB Policy Sudden and unexpected traumatic events include: Witnessing a fatality or horrific event 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 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

8 Traumatic Mental Stress WSIB Policy An employer s work-related decisions or actions 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 Demotions Transfers Disciplines Changes in working hours, and Changes in productivity expectations

9 Psychotraumatic Disability WSIB Policy A worker is entitled to benefits when a disability/impairment results from a work-related personal injury by accident. Disability/impairment = both physical and emotional Disability/impairment must become manifest within 5 years of the injury, or last surgical procedure

10 Chronic Pain Disability WSIB Policy The WSIB will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability The following conditions must exist: Work-related injury occurred Chronic pain is caused by the injury The pain persists 6 or more months beyond the usual healing time of the injury The degree of pain is inconsistent with organic findings The chronic pain impairs earning capacity

11 Chronic Pain Disability WSIB Policy Chronic Pain Disability Is the term used to describe the condition of a person whose chronic pain has resulted in marked life disruption Chronic Pain Is pain with characteristics compatible with work-related injury, except that it persists for 6 or more months beyond the usual healing time for the injury

12 Usual Healing Time Chronic Pain Disability WSIB Policy Is defined as the point in time, following an injury, at which the worker should have regained pre-accident functional ability, or reached a plateau in physical recovery Marked Life Disruptions The only useful measure of disability or impairment in chronic pain cases. Marked life disruption indicates the effect of pain experienced by the worker and the effect on the worker s activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships.

13 Return to Work Issues (Psychological Disability/Condition) Section 40 (1) of the WSIA The employer of an injured worker shall cooperate in the early and safe return to work of the worker by, (b) attempting to provide suitable employment that is available and consistent with the worker s functional abilities and that, when possible, restores the worker s pre-injury earnings

14 Section 41 of the WSIA Return to Work Issues (Psychological Disability/Condition) (5) When the worker is medically able to perform suitable work (although he or she is unable to perform the essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to accept suitable employment that may become available with the employer. Duty to accommodate (6) The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

15 Work Reintegration Principles, Concepts and Definitions WSIB Policy Accommodation means any modification to the work or the workplace, including but not limited to reduced hours, reduced productivity requirements, and/or the provision of assistive devices, that results in work becoming available that is consistent with the worker s functional abilities and that respects applicable human rights legislation. Suitable work means post-injury work (including the worker s pre-injury job) that is safe, productive, consistent with the worker s functional abilities, and that, to the extent possible, restores the worker s pre-injury earnings.

16 Responsibilities of the Workplace Parties in Work Reintegration WSIB Policy All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship. This duty arises through the obligation to re-employ set out in the Act or the associated Construction Regulation, and/or the Ontario Human Rights Code ( the Code ) or the Canadian Human Rights Act. If a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the employer undue hardship, the employer must provide the accommodation. A worker s accommodation requirements may be temporary or permanent.

17 New Diagnostic and Statistical Manual of Mental Disorders (DSM-5) The DSM-5 is the leading text on mental disorders for medical professionals DSM-5 recognizes new mental disorders such as caffeine withdrawal, cannabis withdrawal, mild neurocognitive disorder, premenstrual dysphoric disorder, and extended grief for the loss of a loved one Why DSM-5 is important to employers It is authoritative for psychiatrists and insurers It recognizes new mental disorders, and changes the criteria for some existing disorders May lead to increased costs for sick leave, disability insurance and drug plans

18 Case Law Review Traumatic Mental Stress Decision No Facts: The worker was an educational assistant accused of striking a student An investigation was conducted and the worker was exonerated. Decision Panel obtained submissions from the Board and was satisfied that the worker suffered depression as a result of the allegation made against her. The allegation was a sudden and unexpected traumatic event within s. 13(5) of the WSIA. The worker experienced an acute reaction to the sudden and unexpected traumatic event and the claim was allowed.

19 Case Law Review Traumatic Mental Stress Decision No (cont d.) The Panel noted that the legislation does not appear to limit sudden and unexpected traumatic events to those that are threatening to a worker s physical well-being

20 Case Law Review Traumatic Mental Stress Decision No Facts: The worker was a housekeeping assistant at a hospital. The employer assigned her to clean a different office building belonging to the hospital. The worker claimed entitlement for traumatic mental stress on the basis that she was afraid to work alone in the building Decision: The worker was denied entitlement

21 Case Law Review Traumatic Mental Stress Decision No (cont d.) The Panel found that the assignment to work in the building was not unexpected or outside the normal course of the worker s duties. No reasonable person would view the assignment to work in the building as objectively traumatic

22 Decision No Facts: Case Law Review Traumatic Mental Stress The worker was a correctional officer at a secure facility for young offenders. The officer was escorting a resident back to his room and when he looked away the resident attacked the worker and punched him repeatedly in the head. The officer was then diagnosed with PTSD. The employer submitted that the claim for PTSD should have been assessed with reference to the Board s traumatic mental stress policy rather than psychotraumatic disability policy

23 Case Law Review Traumatic Mental Stress Decision No (cont d.) Decision: The Board granted the worker entitlement for the accident and later also granted entitlement for posttraumatic stress disorder. The worker was attacked in an objectively traumatic incident. The employer submitted that the incident was not unexpected; however, the panel found that there is a significant difference between being required to restrain a resident and being the subject of a physical assault.

24 Decision No Facts: Case Law Review Traumatic Mental Stress The worker worked for a transit authority. He related his claim to three prior incidents and a culminating incident. The culminating incident involved the worker being verbally abused, along with his co-workers on the picket line, by three teenagers during a one day strike Decision: Panel found that the culminating incident was not objectively traumatic and that the prior incidents did not meet Board policy

25 Decision No Facts: Case Law Review Traumatic Mental Stress The worker was a health care aide at an extended care facility and testified that she became aware that residents in the facility were subject to abuse. She claimed entitlement for traumatic mental stress based on her reaction to the lack of response from management to her reports of abusive treatment of residents by staff and also as a reaction to harassment to which she was subjected by management and staff.

26 Decision No (cont d.) Decision Case Law Review Traumatic Mental Stress According to Board policy, frustration, anxiety or other emotional responses experienced by a worker to the fact that the employer has not, in the eyes of the worker, taken appropriate action to correct reported problems will not generally attract entitlement under the policy. The policy requires identification of a sudden and unexpected traumatic event. The event must be clearly and precisely identifiable, objectively traumatic and unexpected in the normal course of the worker's employment or work environment. The Panel found that the employer's failure to respond affirmatively to the worker's concerns was not objectively traumatic, would not be expected to cause emotional trauma requiring medical treatment, and would not be considered unexpected in the normal course of employment.

27 Case Law Review Psychotraumatic Disability Decision No Facts: An aircraft mechanic was struck on the head when a disengaged propeller unexpectedly turned. The injury was significant enough to also cause a neck injury and likely a closed-head injury. The worker described symptoms that were consistent with a concussion. Decision Board policy on psychotraumatic disability allows entitlement where physical injury leads to psychological symptoms. The worker likely had psychological symptoms prior to the accident but the symptoms were not disabling. Medical evidence clearly showed much more disabling presentation after the accident. The worsening symptoms were the result of either an organic brain injury or a psychological reaction. Under Board policy, either explanation would result in entitlement to benefits for psychological disability. The appeal was allowed.

28 Case Law Review Psychotraumatic Disability Decision No Facts: The worker suffered a low back injury in June The medical evidence established that the worker developed a psychiatric disability as a result of his treatment in a modified work program following the compensable back injury. This mistreatment included suggestions by his supervisor that he was faking his injury, isolation by co-workers and being followed to his home.

29 Case Law Review Psychotraumatic Disability Decision (cont d.) Decision: Tribunal jurisprudence establishes that a worker is entitled to benefits for psychotraumatic disability where the psychiatric condition results from mistreatment by a supervisor or co-workers in a medical return-to-work program related to a compensable physical injury. The worker's psychiatric condition was not predominantly attributable to the disciplinary process but, rather, to humiliating treatment from his supervisor, unfounded attacks on his integrity and the legitimacy of his claim, being ostracized by colleagues and unwarranted surveillance at his home. This mistreatment was directly related to the worker's compensable physical injury and the subsequent modified work program. The employer s appeal was dismissed.

30 Case Law Review Chronic Pain Disability Decision No Facts: The worker suffered face and neck injuries in a compensable motor vehicle accident. He was diagnosed with a right mandibular condyle (jaw) fracture, a cervical strain, a head contusion and laceration of his tongue and chin. He also lost two teeth. Decision: The Vice-Chair found that the worker had entitlement for chronic pain disability and noted that the chronic pain resulted in marked life disruption, within the meaning of Board policy. The worker was fortunate to have employers who had been willing to accommodate his chronic pain condition. If not for the particular employment relationship, he would likely have had to work reduced hours. Therefore, the Vice-Chair was satisfied that the worker's capacity to earn a livelihood had been impaired.

31 Case Law Review Chronic Pain Disability Decision No Facts: A nurse in a hospital was on her unpaid lunch break in October She had eaten her lunch in a parkette on hospital property, then went on to a public sidewalk for a cigarette, then was returning to work when she was struck by a car on a road that was part of the hospital property. The accident occurred on the employer's premises during the course of the worker's shift. The worker was engaged in activity that was reasonably incidental to employment. Decision: The Vice-Chair found that the worker was in the course of employment at the time of the accident and that she had entitlement for the accident. On the evidence, the worker was also entitled to benefits for chronic pain disability. The Panel found that the worker s soft tissue pain had been compounded and prolonged by non-organic factors and her pain was not consistent with her organic injuries.

32 WSIB vs. STD/LTD Most mental stress claims will not be allowed by the WSIB but workers may have coverage under their employers STD/LTD policy depending on the wording contained in the policy. It is sometimes very difficult to manage/accommodate mental stress claims due to the lack of sufficient medical information.

33 Tips for Return to Work with Stress Claims The first steps toward a psychologically positive workplace are raising awareness, reducing stigma and seeking the appropriate training. The goal is to have all staff possess some knowledge of mental health issues and equip them with training that enables them to create applicable workplace solutions. Camille Quenneville, CEO of the Canadian Mental Health Association, Ontario.

34 Tips for Return to Work with Stress Claims (ctd.) Training includes: identifying what is mental health versus mental illness, its prevalence and impact; encouragement to question assumptions about mental health; and learning what one can say or do to help support mental well-being in the workplace. Corporations that focus on mental health in the workplace report higher productivity, increased morale, decreased absenteeism, lower health care costs and less employee turnover. Camille Quenneville, CEO of the Canadian Mental Health Association, Ontario.

35 Tips for Return to Work with Stress Claims (cont d) Try and get more detailed medical information to assist in accommodating worker Offer to provide psychological counseling to help worker deal with mental stress issues Continue to communicate with the worker and offer any accommodations that will assist in return to work. 34

36 Case Studies Worker goes off work and you just get a note which says Off work due to stress What should you do? 35

37 Case Studies Worker experiences a traumatic event in the workplace and is diagnosed with PTSD and has an allowable WSIB claim. What steps should you take to get the worker back to work? 36

38 Case Studies Worker has a work related head injury and WSIB claim is allowed. The worker then develops depression as a result of his injury and his inability to function like he could before his work injury and is authorized off work. The WSIB allows psychtraumatic disability entitlement. What should you do? 37

39 Case Studies 55 year old worker who has performed heavy physical labour for many years claims a gradual onset low back injury and it is allowed as a WSIB claim. His pain increases and persists for over 2 years even though he is off work and he starts to develop pain in other areas of his body too. The WSIB allows the claim for CPD entitlement? What should you do? 38

40 39 Questions???

41 Thank You Stephen C. Roberts McTague Law Firm LLP Barristers & Solicitors 455 Pelissier Street Windsor, Ontario, N9A 6Z9 Direct Tel: Direct Fax:

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