“Critics tired of “foot-dragging” on injured worker discrimination : Ontario’s ombudsman will not investigate workers’ compensation for ‘unconstitutional’ stress policy” / Sara Mojtehedzadeh (Toronto Star, February 13, 2017)
Injured workers suffering from psychological conditions brought on by long-term workplace issues are still excluded from compensation benefits – two years after the Workplace Safety and Insurance Appeals Tribunal’s 2014 Decision 21578/09 determined the WSIB policy to be unconstitutional. Two subsequent WSIAT decisions have confirmed the finding, yet the failure to address required law or policy changes (with the exception of an amendment creating presumptions for first responders with post-traumatic stress disorders) means other workers with chronic mental stress face lengthy legal battles for entitlement to benefits.
In response to its questioning of the Ontario Ombudsman why the Office has not launched a formal investigation following a formal complaint submitted November 2016 by three legal clinics, a private practice lawyer specializing in workers compensation and Ron Ellis (former WSIAT chair), the Toronto Star was informed that the Ministry of Labour is currently considering options and that the provincial watchdog “anticipates ‘government direction’ on the issue in the next few months.” (see also Antony Singleton’s May 24 2016 Just Compensation blog post, asking the Minister of Labour why, after two years, the government has decided not to challenge the WSIAT decision through judicial review but not sought legislative amendments to fix the problem. The Minister’s response is included).
Workers left in limbo
Although the Ministry insists it is listening to the concerns being raised about the issue, Laura Lunansky, a lawyer with Injured Workers’ Consultants Community Legal Clinic, notes she has yet to hear of injured worker advocates being consulted on potential reforms. Moreover, that in the absence of changes to the law, the Board “could independently chose not to apply policies that its Tribunal has already declared unconstitutional.” The case of a current client Margery Wardle, denied compensation for mental health injuries resulting from years of workplace sexual harassment, highlights the dilemma facing many. While the Board says they may recognize entitlement based on the cumulative impact of a series of sudden and traumatic events, the continuing lack of clarity and action leaves workers with chronic mental stress claims in limbo. If unsuccessful in appeals on these grounds to the Board , injured workers remain forced to undertake lengthy Charter challenges at the Tribunal to win their entitlement.