Legislation that for two decades has prevented injured workers with mental health issues caused by long-term trauma on the job from receiving compensation should immediately be declared invalid, a new lawsuit argues.

The suit filed against the Workplace Safety and Insurance Board and the Ministry of Labour by the prominent Toronto-based labour law firm Goldblatt Partners seeks to prevent the board from using the legislation to reject current chronic stress claims — and could open the door to claims rejected over the past 20 years being re-adjudicated.

The Star has previously highlighted what critics call systematic discrimination against workers who suffer from mental health concerns as a result of issues such as sustained harassment, who previously were ineligible for compensation.

In May, the provincial government took action to remove the ban on such claims, which the WSIB’s independent tribunal has declared unconstitutional on three occasions since 2014.

But the legislative reforms will not take effect until 2018 and are not retroactive — so they won’t impact injured workers who made claims before that time. The lawsuit seeks to reverse that and provide some relief for workers whose cases were denied or are already in the system.

“Certainly, I’m thrilled that they’re taking this giant leap forward finally,” said Margery Wardle, a former heavy equipment operator who has been fighting the WSIB for some 13 years to have her mental stress claim recognized after what she calls prolonged sexual harassment on the job.

“But what about those of us in the meantime? What about all of the older claims?”

In response to the notice of application received Tuesday, a Ministry of Labour spokesperson said the document was being reviewed.

“As this matter is before the court, it would not be appropriate to comment further,” Janet Deline said.

In a statement to the Star, WSIB spokesperson Christine Arnott said the board has been “holding public consultations on our proposed policy which will come into effect on Jan. 1, 2018.”

“We look forward to supporting Ontarians dealing with work-related chronic mental stress and helping them return to a healthy and safe workplace,” she said.

The WSIB is already required to compensate mental stress injuries resulting from “a sudden and unexpected traumatic event at work.” Ontario’s Liberal government also introduced new laws that make it easier for first responders to claim compensation for post-traumatic stress disorders.

But workers in other professions who developed psychological conditions from long-term workplace issues had no right to compensation, even though the WSIB’s independent tribunal ruled in three separate cases that the policy was unconstitutional.

Tribunal rulings are only binding in the specific cases before them — so the board continued to deny benefits for chronic mental stress. As first reported by the Star, the issue was the subject of a complaint to the provincial ombudsman last year.

The lawsuit claims that its application “raises a serious issue relating to the appropriate constitutional remedy” and says retroactive justice for those impacted by an unconstitutional policy “raises matters of public interest and public confidence in the administration of justice in the workers’ compensation system.”

“We took this case on because this is an issue that injured worker advocates have been pressing for several years at all avenues without being afforded any kind of effective change until the very recent changes… which was in itself insufficient,” said Goldblatt lawyer Christine Davies, who is working on the case on behalf of Wardle, the Injured Workers Consultants legal clinic and the Ontario Network of Injured Workers Groups.

“Unfortunately and despite the efforts of injured worker advocates, there simply hasn’t been a satisfactory response.”

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As it stands, people who suffered chronic stress injuries that occur before 2018 will only be able to win compensation by appealing their cases all the way to the board’s independent tribunal.

Due to significant backlogs, that process often takes years — and many claimants are financially or emotionally unable to see the appeals through, Davies said. There are currently about 173 appeals before the tribunal dealing with chronic stress cases, according to the lawsuit.

“A person who is physically unable to do something will generally receive some recognition of that lack of ability. But for those of us with a mental disability trying to get that recognition of that lack of ability is extremely difficult,” Wardle said.

“In my experience, the stigma is alive and well, unfortunately.”