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Date:
2012.02.16

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THE EMPLOYERS' EDGE

Are You Ready for a Spike in Traumatic Mental Stress Claims?

Until recently, benefits for traumatic mental stress were only granted when an employee demonstrated that such stress was the result of a traumatic event that posed a risk of physical harm to him or her. However, in a recent decision, Ontario’s Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) expanded the scope of entitlement to benefits for traumatic mental stress.

The employee in this case was an educational assistant who was accused of striking a grade 5 student in class. The school confronted the employee with the allegations, and then suspended her pending an investigation by the Children’s Aid Society. The investigation exonerated the employee and she was reinstated. However, she was so devastated by the accusations that she was diagnosed with major depression, having been unable to function since the allegations surfaced. She was avoiding children and places like schools and playgrounds, and had started experiencing flashbacks of sexual and emotional abuse that she experienced as a child.

The employee applied for traumatic mental stress benefits, claiming that she experienced an acute reaction to the sudden and unexpected accusations, which she said amounted to a traumatic event within the definition of the Workplace Safety and Insurance Act, 1997 (the “Act”). Whereas in the past the WSIAT would have denied the employee’s claim because the stress she experienced did not result from a traumatic event that posed a risk of physical harm to her, in this case the WSIAT found that a real or implied threat to a person’s well-being is not required to find entitlement to traumatic mental stress benefits. An employee need only establish that the event giving rise to the traumatic mental stress is clearly and precisely identifiable, is objectively traumatic and is unexpected in the normal or daily course of the worker’s employment, all of which were established in this case.

Implications for Employers

This decision is clearly significant for employers because it expands the scope of compensable events, thereby potentially increasing the number of claims and types of situations that would lead to a successful claim for traumatic mental stress benefits. Successful claims normally increase the employer’s cost statement, reduce rebates or increase employers’ annual premiums. However, claimants seeking traumatic mental stress benefits have a high evidentiary burden to meet, that is they will have to show that an objective but unexpected event in the workplace resulted in a psychological condition that was so sever, it amounted to traumatic mental stress as it is prescribed by the Act. In addition, an increase in the number of WSIB claims should be accompanied by a decrease in lawsuits for traumatic mental stress, as entitlement to WSIB benefits is granted in lieu of an employee’s entitlement to file a civil claim against the employer.

Our lawyers can assist employers in addressing claims for traumatic mental stress benefits and providing advice on the implications employers may face as a result of such claims.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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