Construction industry stakeholders are saying they’re going to have to wait and see how the new Workplace Safety and Insurance Board (WSIB) Chronic Mental Stress Policy plays out now that it’s officially in effect and could impact the jobsite.
“It will be interesting to see over the next few years what happens in the construction industry in terms of chronic mental stress claims,” said Ian Cunningham, president of the Council of Ontario Construction Associations, adding the province is not the first to provide this benefit. “My sense is in pricing it into the 2018 rates, it wasn’t thought to be an enormous factor and I guess they can look at the data in other provinces. Once the benefit becomes entrenched, it will be interesting to see how claims turn out going forward.”
Bill 127, introduced during the 2017 Ontario budget process in the spring, proposed amendments to the Workplace Safety and Insurance Act that, for the first time, allow for entitlement to claims for chronic mental stress.
To be eligible for WSIB benefits, the chronic mental stress must be predominantly caused by a substantial stressor in the workplace. If a claim is allowed, the board will help with recovery and return to work. WSIB benefits can include psychological assessment, treatment, prescription medications and wage replacement.
We think that the WSIB have thoroughly indicated that the board of directors aren’t there to do their job,
— Patrick Dillon
Provincial Building and Construction Trades Council of Ontario
“Of course we’re going to have concerns. This is a whole new field for compensation and we’ll have to see how it comes out,” said David Frame, director of government relations for the Ontario General Contractors Association.
“One of the complex issues tends to be work relatedness even with physical issues. The concern we continue to have is, it will be difficult to determine work relatedness with stress which is probably one of the reasons why the ministry and the WSIB have been so reluctant to go down that road. A lot of it is wait and see what happens, see how the board responds.”
Patrick Dillon, business manager for the Provincial Building and Construction Trades Council of Ontario, is concerned with the WSIB’s recent decision to deviate from “significant contributing factor” and relying on “predominant cause” when adjudicating claims for chronic mental stress.
“We think that the WSIB have thoroughly indicated that the board of directors aren’t there to do their job to look after the entitlements of injured workers, they are there to look after the employers’ interests,” claimed Dillon, who sat on the board of directors for the WSIB for 16 years.
“The board of directors are appointed to the WSIB to pay out legitimate entitlements to injured workers. They are not there banking for the employer groups, but they are using the banking philosophy to guide their entitlement principles and policies.”
Dillon said he expects the policy to be reviewed.
“The mentality behind this decision by the board is that they want to ensure that the floodgates don’t open on mental stress claims and it’s wrongheaded,” he said.
The WSIB conducted an extensive consultation process prior to implementation and stakeholders were invited to provide feedback.
“To their credit they had quite a fulsome discussion around the policies and they were quite responsive on the policies they put together. They listened to some of the ideas that were out there. We were encouraged by the moves they made on that through the consultation process,” Frame noted.
One of the challenges is that the legislation will be retroactive to 2014.
“The government participated widely on it. We knew it was coming, we knew the government was committed to it. I guess the win that we had was that the workplace has to be the predominant cause,” explained Cunningham. “There may be a wave of claims registered. It’s a big guess. It will take a number of years until they can determine with some precision the cost of chronic mental stress claims.”
Frame said it is anticipated the WSIB will be flooded with claims in the first few months and will need to have people in place to deal with that.
“They have had to put experts in place that are going to be able to deal with cases and we’re sure there is going to be hundreds of cases come to the forefront,” Frame noted.