Critics say Workplace Safety and Insurance Board has power to enact change immediately.
This is a Toronto Star article by Sara Moitehedzadeh printed November 25th
The province’s worker compensation board says it is discussing ways to reform current laws that prevent injured workers with chronic mental stress from receiving benefits, but says it cannot reverse its policy of denying compensation without legislative change.
In a letter to the Star, Workplace Safety and Insurance Board (WSIB) executive Brian Jarvis said the organization “has been in discussion with the Ministry of Labour on possible options” for its policy on compensation for workers struggling with mental health issues because of prolonged workplace trauma.
Currently, such workers are not entitled to benefits.
“The WSIB has a long history of adjudicating claims for workers with mental illness and takes this responsibility very seriously,” reads the letter from Jarvis, who is the board’s chief operating officer.
“We have specialized teams of case managers and nurse consultants dedicated to managing mental stress claims in a timely and compassionate manner,” Jarvis said.
In a statement, the WSIB said it could not provide further details on its discussions with the ministry, but said they were “expected to continue.”
“Should the government introduce and pass amendments to the Workplace Safety and Insurance Act, the WSIB will revise its policies to align with those changes.
“In the meantime, the WSIB is required to evaluate each claim based on the current policies and legislation,” Jarvis said.
But Ron Ellis, a respected legal expert who served as chair of the board’s own independent appeals tribunal for 10 years, called that position misleading.
As first reported by the Star, Ellis – along with a coalition of Toronto-based legal clinics and lawyers – has asked the provincial government watchdog to investigate the WSIB over what it called systematic discrimination against workers with chronic mental stress.
The complaint has also been submitted to the Ontario Human Rights Commission.
“The absurdity of the situation and the grim consequences for workers warrant your office’s urgent attention,” the ombudsman complaint said.
Under Ontario law, the board must compensate mental stress injuries resulting from “an acute reaction to a sudden and unexpected traumatic event at work,” for example witnessing a death on the job.
But workers who develop psychological conditions from prolonged workplace trauma, such as ongoing bullying, are not entitled to benefits unless they are first responders.
Two years ago, a nurse who endured a decade of harassment by her supervisor – resulting in anxiety and depression – successfully challenged the WSIB’s refusal to award her benefits.
According to the board’s independent tribunal, her constitutional right to equality was violated by the decision to deny compensation, which the board was forced to overturn. Two subsequent rulings on separate appeals in 2015 and 2016 reached the same conclusion.
But Jarvis said the tribunal “does not have the power to strike down legislation, so the relevant provisions remain in effect and are the current law in Ontario.”
He said the board was required to continue to apply the law until it was amended by government.
Ellis said the board’s statement was “not true.”
In a 2003 workers’ compensation case, Ellis notes, the Supreme Court of Canada ruled that any government agency with the ability to determine questions of law can also decide on the constitutionality of the legislation guiding its overall operations.
Government agencies are not obliged to apply laws found to be unconstitutional.
In a statement to the Star, the board acknowledged it had the jurisdiction to “consider the Charter in appropriate cases” but said it made decisions “on a case-by-case basis.”
That still leaves “large numbers of mentally ill workers to many years of living without the benefits to which they are entitled, for reasons the board knows will not withstand scrutiny on appeal,” Ellis explained.
“The board is ignoring both its legal obligations and its duties arising from its role as the steward of the workers’ compensation system,” he added. “Turning a blind eye is not a lawful option. Neither is it a respectable one.”