A new mental health policy at the provincial workers compensation board leaves workplace accident victims “in a worse position than they have ever been,” according to a coalition of legal experts and injured worker advocates.

The policy, announced last week, requires workers making claims for chronic mental stress to meet a higher standard of proof to get compensation than those with other kinds of work-related injuries. In a letter sent this week to Premier Kathleen Wynne, a coalition of 12 legal clinics and private practice lawyers said this violates the charter rights of workers with mental health issues, denying them equal protection under the law.

“The (Workplace Safety and Insurance Board’s) policy will set workers with mental disabilities back decades. Most workers with mental disabilities will not be able to get WSIB support because of this new policy,” said Maryth Yachnin, a lawyer with the Industrial Accident Victims Group of Ontario, a signatory of the letter.

The policy affects workers who believe they have suffered prolonged trauma on the job: for example, a nurse who has experienced years of sexual harassment and subsequently developed depression.

Such workers were previously excluded from making compensation claims at all, which the WSIB’s independent appeals tribunal ruled to be unconstitutional. Earlier this year, the provincial government passed new laws to remove the exclusion.

But the legislation also gives the WSIB latitude to create its own guidelines on how to administer legislative requirements. The board’s new chronic mental health policy will require workers to prove their workplace was the “primary or main cause” of their illness — a different standard than other injured workers must meet.

Usually, workers need only prove their workplace was one significant contributing cause to their injuries in order to receive compensation — a principle that is “firmly established” in tort law, according to the letter.

“This new test directly discriminates against workers with mental injuries,” it adds.

The WSIB said its new policy, including the predominant cause test, is modelled on existing coverage in British Columbia, Alberta, Saskatchewan and Quebec.

“We want anyone dealing with work-related mental stress to get the help and support they need,” board spokesperson Christine Arnott said in an email.

“We will carefully monitor this new service as we help support mentally healthy workplaces across Ontario.”

Karl Crevar, who injured his back on the job in 1987 and has been an injured worker advocate ever since, says workers who are already vulnerable or precariously employed will struggle the most to meet the board’s new requirements on chronic stress claims.

“You’re going to have a lot of people impacted by this,” he said. “People are suffering. And those types of claims should not be treated any differently than any other claim.”

The WSIB’s new guidelines were formed after consultation with both employers and worker representatives. According to one submission from an employer association, “stress cases are not the same as ‘other’ kinds of workplace injuries,” and treating them as such is a “momentous miscalculation and policy design error.”

But the coalition’s letter argues: “The Supreme Court of Canada and the Workplace Safety and Insurance Appeals Tribunal have rejected the wrong-headed notion that mental injuries are less real, more subjective and more suspect than physical ones.

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“Imposing a more restrictive standard for mental injury entitlement sends a message that workers claiming entitlement for these conditions are a greater risk for fraud or that their conditions are ‘all in their head.’”

The WSIB policy on chronic mental stress will come into effect in January next year.