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By Kevin MacNeill and Samantha Seabrook (De)stressing workers' compensation claims Claims for psychological injuries and chronic stress on the rise. T he nature of workers' compensation claims is changing. Gone are the days where employers were only concerned with preventing physical injuries. Instead, we are seeing more claims for psychological impairments. With the advent of work-related psychological injuries, it is important employers understand entitlement criteria in their jurisdiction and how best to prevent and contain these claims. With this in mind, we provide an overview of workers' compensation entitlements for psychological claims. In all Canadian jurisdictions, workers can receive benefits for "traumatic mental stress" (the terminology may vary). Simply put, traumatic mental stress claims are allowed where there is an acute reaction to a sudden traumatic event. An "acute reaction" is a significant or severe reaction to the traumatic event, which includes such diagnoses as post-traumatic stress disorder, anxiety disorders, or depressive disorders. The definition of "sudden or unexpected traumatic event" has been the subject of a number of workers' compensation decisions. Generally, it is a precisely identifiable event that is objectively traumatic and unexpected in the normal or daily course of a worker's employment. Despite the arguably vague nature of this description, most examples of traumatic events found in workers' compensation board policies are centered on being the object of or witnessing physical harm, violence, or threats of violence. For example, most policies refer to traumatic events such as witnessing a fatality or a horrific event, being the object of physical violence, receiving threats of physical violence, or witnessing or being the object of an armed robbery. However, this focus on real or implied physical harm is starting to shift. Recent decisions in Ontario have found the enabling legislation does not require an element of physical harm for entitlement. Therefore, reading the policy to imply such a requirement is inconsistent with the legislation and not enforceable. Another basis for entitlement is "psychotraumatic disability," which refers to psychological injuries that are an indirect result of a physical injury, the treatment process, or related to an extended disablement or other non-medical, socioeconomic factors. Employers should be aware of the potential for psychotraumatic disability claims following a physical injury for two reasons. First, psychological impairment following an injury can greatly extend lost time from work. Second, employers must account for the psychological impairment when preparing a return to work plan and offering accommodation. Some jurisdictions also allow claims for "chronic mental stress," namely British Columbia, Alberta, Saskatchewan, and Quebec. Chronic stress claims are generally allowed when the stress is a reaction to an accumulation over time of a number of work-related stressors, or a significant work related stressor that has lasted for a long time. Work-related stressors are events that are excessive or unusual in comparison to the normal pressures experienced by the average worker in a similar occupation. It is notable that British Columbia's legislation expressly includes bullying and harassment in its definition of "work-related stressor." If a worker's stress is related to normal pressures or tensions he or she will generally not be entitled to compensation. Normal pressures and tensions include interpersonal relations and conflicts, health and safety concerns, routine labour relations actions, discipline, and terminations. In addition, workers must generally show the following to receive entitlement for chronic mental stress: • he work-related events or stressors t are the predominant cause of the injury or disability • onfirmed psychological or psychiatc ric diagnosis • bjective confirmation of the events. o In Quebec, workers must show chronic stress fits within the statutory definition of "accident" or "occupational disease." Each definition has its own entitlement criteria, although the above considerations generally apply. While chronic stress entitlement is limited to these four provinces, other jurisdictions may join the fold. There is a Charter and human rights challenge to Ontario's exclusion of chronic stress claims. With the number of claims for psychological injuries and chronic stress on the rise, employers should plan for how to prevent and accommodate these claims. A good starting point is the Canadian Standards Association's Psychological Health and Safety in the Workplace standard. This guide sets out the steps organizations can take to promote psychological health and safety in the workplace. The standard is a complex document that outlines a staged approach to the promotion of a psychological health and safety at work. In the next issue we will outline the key features of the standard, and provide tips on implementing the recommendations. IH Kevin MacNeill is a partner and Samantha Seabrook an associate with Heenan Blaikie LLP in Toronto. w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E october 2013 • 11

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