Psyching-out Employers

Having attended WCB’s newly-developed seminar entitled ‘Psychological Injuries in the Workplace’, thought I’d take the liberty of sharing a few of the more pertinent take-aways.  

This particular seminar was a focus-test of sorts, the first of its kind, and so the excellent WCB presenters were still working out the kinks and soliciting feedback for improvement. If you haven’t attended a WCB seminar, I highly recommend it, as the presenters are always experienced and the group discussions shed light on how other employers manage their WCB affairs. 

That this seminar was jam-packed on a day that saw temps plunge to -40C says something of the unrest surrounding mental injuries in the workplace. Worried faces dotted the room, attendees anxiously hoping for any semblance of clarity the speakers could provide. Discussion around presumptive coverage and traumatic incidents got the ball rolling, kicking off what was to be an eventful day. 

What is presumptive coverage?

When a worker experiences trauma on the job and suffers psychologically as a result, there’s a probable entitlement to benefits. Seems straightforward and fair, right? Well, when claim acceptance was strictly limited to ‘acute’ trauma, presumptive coverage was a good policy. In other words, if you weren’t a first responder, or engaged in some other high-risk form of employment, your PTSD claim was likely destined for the shredder.   

Historically speaking, workers’ comp agencies across the nation have been vehemently opposed to accepting psych claims on the basis of ‘chronic’ or ‘progressive’ stress. Hence the concept of ‘trauma’—in the context of workers’ comp—-has been rigidly confined to specific, sudden, and otherwise horrifying experiences traceable to a definite time, place, and cause. Any dilution of that high threshold was (and still is) considered by many to be a terrible error in policy, as the liberalizing of ‘trauma’ could unleash holy hell on employers. Just imagine, for instance, the flood of entitlements if the ‘Monday Blues’ suddenly became compensable.

It’s about to get interesting

By virtue of recent legislative changes, the interpretation of grounds for mental injury have suddenly become far more liberal. According to WCB’s Employer Fact Sheet, “traumatic incident(s) may now include workload or work-related interpersonal incidents that are excessive or unusual”, including “chronic onset psychological injury or stress”. 

Take a minute and let that sink in. 

In plain language, employers are now suddenly on the hook for ‘chronic’ trauma, i.e; stress and anxiety arising from excessive workloads, tension between coworkers, and anything approximating intimidation, bullying, or name-calling. In this context there is no such thing as “trivial harm” to mental health at work any more than there is in the context of physical health at work.

Perhaps the most serious aspect relates to diagnosis of these injuries. Even for the most experienced of therapists, untangling the true origins of emotional disturbance is a daunting undertaking. It can take months, if not years of intensive therapy, to get at the root of mental pathologies. It’s no easy task to isolate the stress caused by home life versus work strife, or separating the distress stemming from unresolved personal issues versus the regular bump and grind of daily life. Where does one stressor end and the other begin?

Exploding entitlements 

Circling back to presumptive coverage, this doctrine asserts that any claim stemming from ‘trauma’ is automatically compensable, unless the employer can prove the injury wasn’t work related.  So there’s no onus on a claimant to establish causality between work and a mental injury, and hence the employer inherits the burden of disproving a presumption of validity.  Hard on the head isn’t it?

Predictably, the volume of mental injury claims has shot up 2700% since 2010.  This spike largely explains the 7-10% yearly rise in claims costs (the green line) that will soon eclipse assessable earnings, meaning the system will incur huge yearly deficits for which employers are exclusively liable. The same trend can be seen in Ontario where the unfunded worker’s comp liability has reached $14 billion. This debt became so untenable that WSIB (Ontario workers’ comp) recently required an emergency bailout to help offset soaring premiums. 

“No more than ten years ago, only egregious acts of harassment and bullying resulting in catastrophic psychological harm could give rise to legal actions for mental injury.  We’ve now arrived at a point where even the chronic infliction of excessive work demands can be the subject of such claims.  Employers who ignore the omens are increasingly at risk of liability for mental injuries sustained by employees.” –Martin Shain, “Stress, Mental Injury and the Law Canada.”

Back to the seminar

Most of the employer delegates in attendance that day shared their stories, most of which were gut wrenching. While they struggle to survive in a brutal market, employers are now hit with a barrage of bureaucratic curveballs and federal environmental taxes. There was a palpable sense of desperation in the room.

I noticed that a large and well-known heavy equipment reseller had three representatives in the audience. After the seminar concluded, I struck up conversation with them and gently inquired into their workers’ comp situation. They didn’t hold back, saying the volume of psychological injuries in their workplace is set to surpass musculoskeletal claims. An ominous sign indeed, as claim cost and recovery times associated with psych usually exceed musculoskeletal (sprains, strains, inflammation) claims by orders of magnitude.

But for construction companies, perhaps the most disturbing of all is the impact on TRIF scores. Total Recordable Injury Frequency, or TRIF, is of paramount importance to construction companies, a statistic that can make or break you. It’s also a fatally flawed metric, especially for companies with fewer than 100 employees. For small to mid-size companies, a single injury can have profound impacts on TRIF as compared to a larger operation.  And for this reason, smaller scale companies must guard TRIF with their lives.

Historically speaking, for the most part, construction companies just had to worry about job-site safety.  After all, serious hazards to health don’t normally exist in office settings, so the risk exposure was largely confined to field work.  But what if, supposing construction crews make every effort to ensure zero incidents on site, meanwhile an A/R clerk in their office goes off work for generalized anxiety?  Well, as far as that cold, hard TRIF score is concerned, that work-related anxiety claim might as well be a broken leg or a severed arm. 

Final word 

Legally enforceable standards for the protection of employees’ mental health and for the promotion of civility and respect at work are being set increasingly high. Meanwhile, psych injuries are already causing great difficulty for employers and it’s still early days. There’s much yet to learn, but there are ways to mitigate the risks involved. A few tips include:

  • Early intervention: don’t ignore warning signs of mental distress, i.e. disengagement, isolation, hygiene, absence 
  • Don’t forget the managers: Managers are paid more to deal with stress, but they’re people too.  Watch that they’re not burning themselves out.
  • One-on-one’s: Managers need to engage their staff frequently to take a pulse.  Consistent communication goes a long way in preventing these claims.
  • Document, document, document: employees have up to seven legal remedies to pursue damages for mental injury suffered on the job (WCB, Human Rights, OHS, common law, etc). Most courts have concluded that management has a responsibility for employee well-being and will ask what steps the employer’s taken to help an employee cope with stress.

 

Call (780)-340-5727 to speak with our 541 Eagleson Wynd, Edmonton T6M 0Y4 team for free.
Ben Barfett

Ben Barfett

Ben Barfett, Principal and Consultant, has spent his life in the construction sector, specifically heavy civil, enviro, commercial, and energy. Having held senior roles in business development, technical advisory, and regional management, he earned his stripes in the field and in head office. Conscious of the interplay between commercial, legal, and execution aspects of construction, his business insights are informed by expertise in WCB policy and enhanced with disability-specific training.

Ben Barfett

Ben Barfett

Ben Barfett, Principal and Consultant, has spent his life in the construction sector, specifically heavy civil, enviro, commercial, and energy. Having held senior roles in business development, technical advisory, and regional management, he earned his stripes in the field and in head office. Conscious of the interplay between commercial, legal, and execution aspects of construction, his business insights are informed by expertise in WCB policy and enhanced with disability-specific training.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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