It’s been called the biggest change to Ontario’s workplace safety compensation system this century but hardly anyone knows it’s coming.
Ontario’s budget bill this spring introduced amendments to the Workplace Safety and Insurance Act that, for the first time, allow for entitlement to claims for chronic mental stress.
With a deadline for implementation of the new policy slated for Jan. 1, 2018, the Workplace Safety and Insurance Board (WSIB) reached out to workplace stakeholders for input — and with the deadline for submissions recently closed, significant differences of opinion within the construction sector have emerged, accompanied by strong rhetoric.
On one side is the Construction Employers Coalition (CEC), representing over a dozen construction associations, whose submission expressed concern that the expansion of entitlements will introduce broad new mechanisms that could require compensation for stressors originating outside the workplace; on the other, the Provincial Building and Construction Trades Council of Ontario, representing trades workers, which accuses the employers of adopting a floodgates mentality and resisting progressive legislation.
David Frame, director of government relations for the Ontario General Contractors Association and signatory of the CEC report as its chair, said the new WSIB mandate was buried deep in Bill 127 and has not received enough attention.
"This has slid right under the radar," said Frame. "It is the largest and most fundamental change to happen to the WSIB in 20 years. Where the focus has been on physical injuries and occupational disease, this is a whole new area that the WSIB is going to cover, and that is a huge change.
"The WSIB now has a very short time period to get its head around a very complex issue."
A second issue Frame identified is causation of chronic mental stress. The WSIB discussion paper identifies a threshold of entitlement where the chronic stress is caused by a "substantial" work-related stressor, while Frame and the CEC are advocating the tougher threshold of "predominant" cause.
The difference in the number of claims that could be awarded in the two different causation scenarios is significant, Frame explained.
"The lawyers explained it to me this way," he said. "A substantive test is generally meant to be 20 per cent or more of causation. The predominance test is greater than 50 per cent. So there is a fair difference between the two."
Using the predominance standard keeps costs down, he said, and it also reduces the likelihood of the system being subject to abuse because the bar is higher.
Carmine Tiano, director of occupational services for the Building Trades, emailed comments to the Daily Commercial News and was subsequently interviewed.
"It is evident that the employer lobby, spearheaded by the usual suspects, the Canadian Federation of Independent Business and the Chamber of Commerce etc., want to preclude all entitlements," said Tiano. "These groups have never supported any type of progressive legislation and have a ‘floodgate’ mentality: ‘If entitlements were granted, the system would be bankrupted.’ They want us to go back to the gilded age when employers could do whatever they wanted to workers."
Beyond the causation standard are other similar issues integrally related to causation. Tiano points out that in Ontario, as in most other jurisdictions, the "significant contributing factor" test is currently used to determine whether a worker’s injury or illness is compensable.
The employers advocate for the higher predominant cause test for chronic stress, but that’s unconstitutional, against the Charter of Rights and Freedoms, he argued, because the two sets of claimants would be treated differently.
Tiano also made the point that where the work is not the sole contributing factor to the injury, the "thin skull" principle, which states that a victim should not be denied compensation by virtue of other pre-existing conditions including conditions unrelated to the workplace, should be used. The CEC argues for the "average worker" test.
Commented Frame, "It is quite possible under the significance test that somebody who had a huge event in their personal life plus an event of a lesser degree in their work life will be compensated because of the way the test breaks down.
"We are worried about being able to properly adjudicate it…There is a big temptation, because it is a richer system, to place more and more things through the WSIB."
Compensating workers whose stress is caused only in part by the workplace and in part by other stressors represents an inappropriate extension of the WSIB’s mandate, said Ian Cunningham, president and CEO of the Council of Ontario Construction Associations.
"People who are suffering from chronic mental stress deserve to get the best treatment the province can afford," he said.
"But the WSIB is not a universal health care system. It is paid for by employers for disease and illness and injuries that are caused by the workplace. So in our view the connection to the workplace must be the predominant contributor, not just a substantial contributor."
New WSIB rates for 2018 that incorporate the expected hikes in premiums due to the addition of chronic stress entitlement are expected to be announced in August.
Frame said he expected the WSIB to have its new chronic stress policies, including on other controversial topics such as whether medical doctors will be allowed to diagnose chronic mental stress, determined possibly by September.
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