Since January 1, 2018, the Workplace Safety and Insurance Board (WSIB) has been considering claims of chronic mental stress. Under the Chronic Mental Stress policy, a worker may be entitled to benefits if a diagnosed mental stress injury is caused by a “substantial work-related stressor.” The policy specifically contemplates that workplace harassment can be a substantial work-related stressor.
In light of the continued prevalence of workplace harassment claims and investigations, employers are well served to refresh themselves on the circumstances in which the Chronic Mental Stress policy may apply and when an employer should file a WSIB Form 7 following the completion of a workplace harassment investigation.
In order for a worker to be entitled to benefits under the Chronic Mental Stress policy, three eligibility requirements must be met:
1.The worker must have a mental stress injury that has been diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM).
This can include acute stress disorder, posttraumatic stress disorder, anxiety or depression, among other diagnoses. The diagnosis must also come from a regulated health care professional qualified to provide a DSM diagnosis, which includes a physician, nurse practitioner, psychologist and psychiatrist.
2. There must be a substantial work-related stressor.
The WSIB adjudicator must be able to identify the event(s) which are alleged to have caused the chronic mental stress, relying on information or knowledge provided by the worker, co-workers, supervisory staff and others, as applicable.
A work-related stress is generally considered to be substantial if it is excessive in intensity and/or duration in comparison to the normal pressures a worker may experience. Workplace harassment will generally be considered a substantial work-related stressor.
3. The standard of proof and causation must be met.
The WSIB adjudicator must be satisfied, on a balance of probabilities, that the substantial work-related stressor:
- Arose out of and in the course of the worker’s employment; and
- Was the predominant cause of an appropriately diagnosed mental stress injury.
Given that the policy, on it’s face, indicates that workplace harassment will generally be considered a significant work-related stressor, the question arises as to whether an employer is required to file a Form 7 every time a workplace investigation results in a finding of workplace harassment. The short answer is no.
Pursuant to the WSIB’s policy on Employers’ Initial Accident-Reporting Obligations, employers are required to report a work-related accident or injury to the WSIB when a worker requires health care and/or:
- Is absent from regular work;
- Earns less than regular pay for regular work (e.g. part-time hours);
- Requires modified work at less than regular pay; or
- Requires modified work at regular pay for more than seven calendar days following the date of accident.
This means that where an workplace harassment investigation has resulted in a finding that workplace harassment has occurred, before being required to file a WSIB Form 7, the employer should first consider whether the workplace harassment complainant required, as a result of the workplace harassment, time off work or health care. The WSIB defines health care as services requiring the professional skills of a health care practitioner, services provided at a hospital or health facilities or prescription drugs.
An employer must file a Form 7 in the event that a worker files a Form 6 seeking entitlement under the Chronic Mental Stress policy.
If you have questions about whether you should submit a Form 7 following a workplace harassment investigation or questions about how to respond to a worker’s Form 6, please reach out to Karina Pylypczuk.