Critics tired of “foot-dragging” on injured worker discrimination

Ontario’s ombudsman will not investigate workers’ compensation for “unconstitutional” stress policy.

Thestar.com
Feb. 13, 2017”
By Sara Mojetehedzadeh

Ontario’s ombudsman will not launch an investigation into unconstitutional treatment of people with chronic mental stress at the province’s worker compensation board because it anticipates “government direction” on the issue in the next few months, the Star has learned.

Responding to a formal complaint launched by legal experts late last year, the provincial watchdog said the Ministry of Labour “has been studying this issue and is currently looking at options” to address what critics call discriminatory mental health policies at the Workplace Safety and Insurance Board.

Only employees who sustain mental stress injuries as a result of a “sudden” traumatic event in the workplace are currently entitled to receive benefits under existing legislation. But the vast majority of workers who develop psychological conditions from long-term workplace issues do not have the right to compensation.

“The deputy minister ... advised that the ministry anticipates that it will receive some government direction within the next few months on this issue,” the director of the ombudsman’s special response team, Gareth Jones, said in a letter obtained by the Star.

The letter says the watchdog is intended as a body of last resort although it adds that the complaint could be re-examined once “all other efforts to resolve an issue have been exhausted.”

But the complainants, who include Toronto-based legal clinics and the former chair of the WSIB’s own independent appeals tribunal, say they are frustrated with “the clear history of this government’s persistent foot-dragging on this issue.”

More than two years ago, the board’s appeals tribunal ruled that the policy violated the constitutional right to equality of an injured worker who had appealed a decision to deny her benefits for a chronic mental stress. Two subsequent rulings on separate appeals in 2015 and 2016 reached the same conclusion.

But tribunal rulings are only binding in the specific cases before them. So in the absence of legislative change, workers are forced to launch lengthy legal battles to win their entitlements.

The Ontario government did amend the legislation in question last year, making it easier for first-responders like police officers to claim compensation for post-traumatic stress disorders. But it did not address the loophole that excludes other workers with chronic mental stress from benefits.

“Workers’ advocates have heard these vague government reassurances about pending changes to this chronic stress legislation before, but nothing has come of them,” the complainants, who demanded a formal investigation into the matter in November, told the ombudsman.

In a statement to the Star, Michael Speers, a Labour minister spokesperson, said the government was “committed to treating all injured workers with the fairness, dignity and respect they deserve, and to providing them with the help they need when they need it.”

“We are listening to the concerns being raised regarding this issue,” he added. “While we cannot comment on decisions made by the ombudsman, we are currently examining options to address the issue of mental stress.‎

Laura Lunansky, a lawyer for the Injured Workers’ Consultants Community Legal Clinic, said she was not yet aware of injured worker advocates being consulted on potential reforms.

“Part of the issue is, how long are we expected to wait?” she said.

Her client, 57-year-old Margery Wardle, is appealing the WSIB’s decision to deny her compensation for mental health issues stemming from what she calls “the culmination of years and years of workplace sexual harassment.”

Wardle, a former heavy equipment operator who now works for the Ontario Network of Injured Workers Groups, said she was subject to a range of distressing behaviours in her male-dominated workplace, including pornographic pictures being deliberately placed around women’s time cards and on their desks.

“I was spat at, I was grabbed from behind, sexualized jokes would be made in our presence, very foul sexualized language in our presence,” Wardle said.

She says a psychiatrist advised she should not return to work after she was swarmed and threatened by two male colleagues who she says called her “a g-----n dyke” and hurled other sexually charged expletives at her. But her WSIB claim for mental health injures was denied.

Lunansky said she is arguing the incident constitutes a “sudden” traumatic event, which under current legislation could entitle Wardle to benefits. Otherwise, she will be forced to mount a charter challenge at the WSIB’s appeals tribunal to seek compensation. Currently this is the only recourse for workers whose injuries stem from prolonged workplace issues and the process can take years.

“It’s a drain of resources at the tribunal to have to adjudicate each of these cases, and we know the tribunal has a big backlog,” Lunansky said.

In a statement to the Star, a WSIB spokesperson, Christine Arnott, said the board “has a long history of adjudicating claims for workers with mental illness and takes this responsibility very seriously.”

“The legislation requires that a mental stress injury be an ‘acute’ reaction to a traumatic event. Any changes to the legislation are within the purview of the provincial government. Only a court of law can strike down legislation as unconstitutional. This has not happened,” Arnott added.

Lunansky said in the absence of legislative change, the WSIB could independently choose not apply policies that its tribunal has already declared unconstitutional.

Arnott said the board did recognize that workers could be psychologically affected by “a series” of “sudden and unexpected” traumatic incidents and that “entitlement may be accepted because of the cumulative effect.”

But the lack of clarity - and, according to critics, the lack of action - means workers like Wardle are too often left in limbo.

“It destroyed me personally - I’m still trying to get back to somewhere near the person I need to be. It certainly destroyed my career. I was very proud of being a blue-collar woman,” she told the Star.

“There’s a certain amount of validation that might come from a successful claim or appeal. Whereas when it’s denied - for people to just say what happened to me really isn’t that important - personally, it just adds to the hurt,” she said.

“What keeps me insisting on going forward with this, not just letting it go, is there were young women coming up behind me - the next generation. And I’d see what was happening to them too,” she added.

“If I don’t fight back and try and put some sort of a stop to this, then what’s going to happen to the younger ones next, the ones coming after me?”