A new complaint to Ontario’s ombudsman is demanding an investigation into WSIB’s “discriminatory” and “unconstitutional” treatment of mentally ill workers. (FRANCIS VACHON / THE CANADIAN PRESS FILE PHOTO)
By SARA MOJTEHEDZADEHWork and Wealth reporter
Mon., Nov. 14, 2016
Mentally ill workers are being systematically denied benefits because of discriminatory and unconstitutional practices at the province’s Workplace Safety and Insurance Board, according to a new complaint sent to Ontario’s government watchdog. The 138-page submission obtained by the Star calls for an investigation into the WSIB for its treatment of workers with chronic mental stress injuries due to workplace trauma. Such workers are not currently entitled to compensation — even though the board’s own independent appeals tribunal has already deemed the policy unconstitutional.
“It is untenable that this group of vulnerable workers remain excluded from the compensation to which they are constitutionally entitled,” the complaint sent to the Ontario Ombudsman says. The complaint was submitted Thursday by three Toronto-based legal clinics, a private practice lawyer specializing in workers’ compensation, and Ron Ellis, the highly respected retired chair of the WSIB’s independent tribunal.
“The absurdity of the situation and the grim consequences for workers warrant your office’s urgent attention,” the complaint says. The WSIB did not respond to the Star’s request for comment. In response to questions from the Star, Minister of Labour Kevin Flynn said fair benefits for injured workers, including those living with mental stress, were a priority.
Wendy Knelsen, shown with her dog, Tucker, says she was diagnosed as having chronic post-traumatic stress after what she described as ongoing bullying and harassment at work.
“We are committed to treating injured workers with the fairness, dignity and respect they deserve, and to providing them with the help they need when they need it. We are listening to the concerns being raised regarding this issue, and are currently reviewing legislative options to address it,” he said.
Under existing legislation governing the WSIB, the board must compensate mental stress injuries resulting from “an acute reaction to a sudden and unexpected traumatic event at work.” Ontario’s Liberal government also recently introduced new laws that make it easier for first-responders to claim compensation for post-traumatic stress disorders. But workers in other professions who develop psychological conditions from long-term workplace issues such as prolonged harassment have no right to compensation at all.
Wendy Knelsen says she was diagnosed by her psychiatrist as having chronic post-traumatic stress after what she described as ongoing bullying and harassment by her supervisors at a London-area fire department. She was also tasked with dealing with an investigation into the death of a firefighter, a job she says she received no training for and describes as traumatic.
“I don’t think anything could prepare you when you see your coworkers — these tough firefighters — breaking down trying to tell their story, and you type every word over and over. It’s very hard,” she said. But even though her psychiatrist diagnosed her with work-related anxiety and depression, the WSIB denied her claim because it is not required to compensate chronic mental stress injuries. Knelsen says she has spent 10 years appealing the decision, and has still not received an answer. Labour Minister Kevin Flynn said fair benefits for injured workers, including those living with mental stress, are a priority for his government.
“Basically dealing with this system has been horrific, she said. “It’s intimidating, it’s difficult to get answers, and they are untrained for dealing with mental stress.” “The impact is financial, it’s emotional, and it’s social,” adds John Bartolomeo of the Workers’ Health and Safety Legal Clinic, one of the signatories of the complaint. Two years ago, a nurse who endured a decade of harassment by her supervisor resulting in anxiety and depression successfully challenged the WSIB’s refusal to award her benefits. According to the board’s independent tribunal, her constitutional right to equality was violated by the decision to deny compensation, which the board was forced to overturn. Two subsequent rulings on separate appeals in 2015 and 2016 reached the same conclusion.
But tribunal rulings are only binding in the specific cases before them — so the board has continued its policy of denying benefits for chronic mental stress, according to the ombudsman complaint. That means workers are forced to launch lengthy legal battles to win their entitlements. “The cost of mounting a Charter challenge, both financial and emotional, are simply too high for many workers to bear,” the letter to the watchdog says, noting that severe backlogs mean it takes years to get a tribunal hearing. “That is very stressful,” said Toronto workers’ compensation lawyer Anthony Singleton. “People feel very betrayed by the system. They are stuck in the system.” The ombudsman complaint also faults government for failing to fix the loophole in its current legislation, arguing the Ministry of Labour is “aware that parts of the Workplace Safety and Insurance Act have been deemed unconstitutional but has taken no remedial action.”
According to Ron Ellis, who served for over a decade as chair of the WSIB’s independent tribunal and is the author of Unjust by Design. Canada’s Administrative Justice System, a government would usually either challenge a tribunal decision finding its legislation unconstitutional — or change the law in question. In this case, the Ontario government has done neither. “The question is why,” says Ellis. “It gives the appearance of being a tactical decision to stymie the constitutional challenge process in order to prevent the board having to assume the financial obligations implicit in the chronic stress benefit entitlement.”
This is the second time this year advocates have demanded an investigation into the WSIB. As first reported by the Star, a group of doctors, lawyers, and labour advocates submitted a formal request for the ombudsman in January to probe the board for ignoring the medical opinions of injured workers’ doctors. The number of complaints made to the provincial watchdog by ordinary citizens has also jumped by almost 20 per cent over the past year, according to statistics requested by the Star. Knelsen, who was spurred to activism by her own decision, wants to see action from both the board and government.
“I call it the war within — because PTSD really is,” she said. “It’s tearing families apart, forcing them into poverty, some (workers) are killing themselves. And their response is, workers with stress can wait.”