The provincial workers’ compensation board has denied 94 per cent of chronic mental stress cases since new legislation extended benefits coverage to employees experiencing long-term trauma or harassment on the job, according to an internal Workplace Safety and Insurance Board audit obtained by the Star.

Previously, workers could only seek compensation for mental health injuries caused by a traumatic incident, not those triggered by ongoing trauma in their workplace — which labour advocates and legal experts described in a 2016 ombudsman complaint as unconstitutional and discriminatory. Subsequent legal changes mean workers can now file claims for work-related chronic stress issues.

But between January and May, just 10 of the 159 claims for work-related chronic mental stress were approved, the audit conducted by the WSIB shows.

Maryth Yachnin, a lawyer with the Toronto-based legal clinic Industrial Accident Victims of Ontario, said advocates already had concerns about existing barriers to winning chronic mental stress claims — but said she was “stunned” by the denial rate.

“I cannot imagine a world where they should be denying upwards of 90 per cent of the cases,” she said.

In a statement to the Star, WSIB spokesperson Christine Arnott said the board wanted “anyone dealing with work-related chronic mental stress (CMS) to get the help and support they need.”

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She said workers were entitled to compensation if they met the board’s criteria, which includes evidence of a “substantial work-related stressor” and abusive workplace behaviour that rises to the level of workplace harassment. (Workers are not entitled to chronic stress compensation for problems stemming from discipline, demotions, transfers or termination.)

“We will continue to monitor our new chronic mental stress program as we help support mentally healthy workplaces across Ontario,” Arnott said.

Yachnin said the board’s approach to chronic mental stress creates unique and unreasonable barriers for people with “harassment-type injuries.”

Workers filing for chronic mental stress, for example, must prove their workplace was the “predominant cause” of their illness — while workers with physical injuries must simply show their workplace was a significant contributing factor.

“That’s subject to a higher legal test than any other workers in Ontario,” Yachnin said, adding in court workers only have to prove employer negligence was one factor in a workplace injury.

Like all workers filing WSIB claims, those with chronic mental health injuries give up their right to sue their employer if they initiate a case at the compensation board.

“All workers with these chronic stressors have been stripped of their right to sue their employer. The replacement right has to mirror the right you took away,” Yachnin said.

The board’s current 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.”

In the WSIB statement to the Star, Arnott said the nature of mental stress injuries are “complex and differ from physical injuries.”

“The use of the predominant cause test is consistent with other workplace compensation boards (Alberta, Quebec, Saskatchewan and British Columbia) across Canada that also compensate for CMS,” she said.

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Last year, a coalition of 12 legal clinics and private practice lawyers decried the “predominant cause” test before it came into effect in a letter sent to former premier Kathleen Wynne.

“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,” the letter said.

According to the WSIB’s chronic mental stress policy, a work-related stressor is considered “substantial” if it is excessive compared to “the normal pressures and tensions experienced by workers in similar circumstances,” although the policy says workers can’t be denied compensation simply because they work in a routinely high-pressure environment.

“In some cases … consistent exposure to a high level of routine stress over time may qualify as a substantial work-related stressor,” the policy says.

Yachnin said logic runs contrary to how physical injuries are treated, where constant exposure to stress or risk would be seen as “positive evidence of causation.”

Board adjudicators must also “be able to identify the event(s) which are alleged to have caused the chronic mental stress,” through “information or knowledge” provided by co-workers or supervisors, according to board policy.

“When you think about harassment in a small workplace, the person harassing you is very likely your employer,” Yachnin said. “Who else in the workplace is going to provide confirmation?”

The low number of claims registered to date may reflect a lack of awareness about legislative changes, Yachnin said — but could also indicate workers see the barriers to winning compensation as insurmountable.

That prevents the employer-funded workers’ compensation system from functioning properly, she added: if employers’ insurance premiums go up because of high injury rates, there is a financial incentive to rectify the safety risks.

“(The costs) are properly borne by the employer community because they were generated by workplace risks,” Yachnin said.

“The system is designed to point out the canary in the coal mine and show where there are health and safety risks factors,” she added. “But you can’t do that if at the front door you’re basically auto-denying them. I don’t know what else to call this.”

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