Mental Health Claims

Since the pandemic of 2020, there has been much talk about the impact on people’s mental health. Challenges with mental health range from relatively innoxious emotions to psychiatric illnesses. We are all in this together includes how we manage the varying degrees of emotional well-being s to diagnosable mental health conditions.

Work-related mental health claims are managed differently than physical injuries. The WSIB website includes links for workers, JHSC, unions, and employers. The resources are prevention focused.

https://www.wsib.ca/en/injured-or-ill-people/claims/work-related-mental-stress-injuries

While prevention should always be the first approach, unfortunately, work-related mental stress injuries are becoming more common. These types of claims require a different approach in returning an employee to work. WSIB provides entitlement for mental health conditions when the legal criteria are satisfied. There are 3 types of entitlements:

1. Traumatic Mental Stress (OPM 15-03-02),

2. Chronic Mental Stress (OPM 15-03-14), and

3. Post-traumatic Stress Disorder In First Responders and Other Designated Workers (OPM 15-03-13)

While the criteria for entitlement may have different factors to consider, the challenges facing employers in managing the claim and their employee’s ongoing impairment is not.

• With an organic (physical) injury, the employer community is accustomed to the use of FAFs (functional abilities forms) to gather information which assists in helping to identify what duties should be offered to an injured employee.

• With non-organic (psychological) injuries, there is no such form. The employer community has little opportunity to understand their employee’s functional capabilities which restricts the identification of appropriate work opportunities.

The WSIB is aware of this challenge but my office’s experience in having to regularly communicate these concerns to WSIB management for many years is not bringing about change.

An employer has the duty to accommodate. This obligation is two-fold when it’s a work-injury. Both the WSIA, 1997 and the Ontario Human Rights Code speak to the issue of accommodation. To fulfill this obligation, the employer needs to know:

1. How does the psychological condition impact the employee’s ability to do their job duties?

2. What are the employee’s capabilities to do other duties?

3. What is the employee’s prognosis for recovery?

To this end, employers choosing a “best-practice” approach create their own functional abilities form for psychological injuries. A complimentary sample is available by contacting my office.

The employer should also ask the front-line Case Manager to provide:

1. Barriers to return to work

2. Activities of daily living

3. Why the employee is unfit to work, in any capacity

4. Date of latest medical report from the treating psychologist

5. Period of approved treatment

a. the number of treatment blocks, duration of treatment block

From experience, the mental health medical reports are not necessarily detailed causing an employer to request the WSIB clarify with the treating psychologist answers to questions 1 and 2. The employer should maintain contact with their employee and ask similar questions in order to help identify whether appropriate work can be identified (and therefore, offered, writing). Employers should identify the most appropriate person to maintain contact with the employee. The person should have a good relationship with the employee. Show the employee support:

• Clarify with all employees that it is policy to stay in touch during leave.

• Be patient as this contact may be difficult for the employee during the acute phase of illness but valued as the employee begins to recover and think about returning to work.

• Ask if there is anything you can do to help.

• Avoid questions that may be interpreted as an investigation of the employee's absence.

• Share information about organizational events and news that are not specifically related to the employee's job or tasks. This is to avoid increasing stress related to feelings of worry or anxiousness about the work.

• Communicate in the way the employee prefers – phone calls, voicemail messages or e-mails.

• As the employee becomes well, ease the transition back to work by including the employee in workplace events and celebrations.

• Ensure that an employee off work due to mental illness receives the same acknowledgement (cards, flowers or greetings) as an employee off work for a physical illness.

Obstacles in obtaining functional information, the treatment plan or connecting with the employee, seek out the assistance of an expert (legal or medical). If your workplace is unionized, involve the union.

Although an employee’s mental health may not qualify for entitlement under the Workplace Safety & Insurance Act, 1997, the absence of an employee for non-organic reasons is costly (to the employee and the employer). Manage employee’s absences the same regardless of the cause.

While COVID-19 may be the impetus for some employees’ suffering with mental illness, their return to the workplace should undergo the same process as if an employee’s mental stress arose out of and occurred in the course of their employment. A sample psychological injury FAF is available from my office.