Legal News

The Petrie Report Part 3 – Mental disorders

In the first article in this series we told you that, on April 25, 2018, Paul Petrie provided his report – Restoring the Balance: A Worker- Centred Approach to Workers’ Compensation Policy – to the Board of Directors of the Workers’ Compensation Board. We also explained how Mr. Petrie adopted a “worker-centred approach” to his review of, and recommended changes to, the Rehabilitation Services and Claims Manual, Volume II (the “Claims Manual”). In the second article, we took a closer look at one of Mr. Petrie’s 41 recommendations – his recommendation on chronic pain. In this article, we will discuss Mr. Petrie’s recommendations on mental disorders, some of which became effective July 23, 2018.

With the creation of section 5.1 of the Workers Compensation Act on July 1, 2012, the mental stress conditions eligible for workers compensation coverage under the Act were expanded. Since that time, both the number of mental disorder claims registered with the Board, and the number of those claims accepted, has been increasing. Mr. Petrie’s recommendations for changes to the Claims Manual related to mental disorders have the potential to further increase the number of mental disorder claims accepted by the Board.

Pursuant to section 5.1 of the Act, a mental disorder claim may be accepted where the following criteria are met:

(1) the mental disorder is diagnosed by a psychologist or psychiatrist as a mental disorder under the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;

(2) the mental disorder is either:

(i) a reaction to one or more traumatic events arising out of and in the course of the worker’s employment, or

(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment,

(3) the mental disorder was not caused by a decision of the worker’s employer relating to the worker’s employment (i.e., a decision to change working conditions, discipline, terminate, etc.)

For the purposes of this article, we will focus on the second and third requirements above.

Prior to July 23, 2018, the Claims Manual defined a “traumatic event” as being “an emotionally shocking event, which is generally unusual and distinct from the duties and interpersonal relations of a worker’s employment”. A “work-related stressor” was described as being “significant”, when it “is excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment”.

Mr. Petrie found both definitions used workplace norms as an objective standard – i.e., was an event unusual for that worker’s employment. Mr. Petrie points out that under the Claims Manual, “normal work is effectively exempted from compensation for mental stress”. Mr. Petrie then recommended that this “barrier” to compensation be eliminated by removing the provisions of the Claims Manual requiring events or stressors to be “unusual” or outside of “normal” conditions, and instead asking whether, in all of the circumstances, the conditions were reasonably likely to have traumatized the worker. This recommendation was accepted in part by the Board of Directors. Specifically, the definition of a “traumatic event” was revised and reference to “unusual” was removed. These changes became effective July 23, 2018. The definition of “work-related stressor” has not yet been amended.

In addition, Mr. Petrie recommended that point 3 of the above criteria – commonly known as the “labour relations exclusion” – be amended to clarify that the provision only excludes mental disorder claims that are a reaction to the decision itself. An example provided by Mr. Petrie in support of this recommendation is that a worker forced to work long hours in stressful conditions due to their employer’s downsizing, should not be excluded from consideration on the basis of the “labour relations exclusion”. Whereas a mental disorder arising in the person who was actually downsized, would be excluded. This recommendation has not yet been accepted by the Board of Directors.

As noted at the outset, these recommendations – particularly the recommendation to remove the requirement that events or stressors be “unusual” – have the potential to increase the number of claims accepted for mental disorders, as the amendments may result in the acceptance of some claims that would be denied under the Claims Manual as previously worded.

The Report can be viewed here.

For questions relating to this article, please contact Alan D. Winter