Upset woman in office

Our society is now more concerned than ever with how employees are treated and how they are coping within the workplace. Mental health claims have become more common, with more claims being submitted and approved by workers’ compensation boards (WCBs) across Canada. The increase in mental health awareness has contributed to the volume of claims we are witnessing and has called for WCBs to instill more policies specific to mental health. However, even with a renewed policy focus, the guidelines for what constitutes a reportable and an allowable mental health claim are often blurry.

How Decisions Are Being Made

Unlike a physical injury, before any chronic mental stress or traumatic mental stress claim can be adjudicated, a diagnosis is required, in accordance with the Diagnostic and Statistical Manual (DSM) of Mental Disorders. Each claim is unique and must be evaluated on an individual basis. As a general guideline, decisions are usually justified when the workplace stressor is substantial or predominant. In other words, if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by employees in similar circumstances, grounds for acceptance may be met.

Claims that involve an employer’s decisions or actions that are part of the employment function, such as interpersonal conflicts, terminations, demotions, discipline, changes in shifts, or performance expectations are typically not allowable, even though these are among the most common types of mental health claims submitted by employees. However, WCBs are now spending more time investigating mental health claims, especially those involving reports of harassment, which is resulting in more policies and guidelines specific to this area.

It is also becoming more common to see mental health components within physical injury claims. Mental health claims arising as a secondary condition in physical injury claims are often supported when there is evidence of significant levels of pain, especially in situations where a permanent impairment is identified. Similar to harassment claims, the WCB typically makes their decision based on how a normal individual would react and respond to the situation involved, and awards entitlement for events outside of reason. Some WCBs, such as the Workplace Safety and Insurance Board in Ontario, have even gone as far as automatically providing a set number of psychological treatment sessions in significant physical injury claims, before they make an official ruling on entitlement for the mental health component.

Considerations for Employers

As mental health continues to become more prominent, there is an increasing need for employers to utilize a robust internal investigation procedure for mental health claims. It is important for employers to have all information available during claim submission, in order to have the claim positioned correctly, with any concerns addressed. Withholding information can result in delays in treatment, unnecessary claims costs, and a lack of trust between all parties, which can be very detrimental to the duration of a claim and the employee’s return to the workplace.

It is important to be mindful of how an employee is coping when dealing with mental health claims, regardless of the claimed cause.  Employees often feel unsupported and attacked by their employer when gathering information, in addition to dealing with the bureaucracy of a WCB and delayed benefit payments. Further, if the communication becomes too strained between the employee and the employer or TPA, the employee can choose to have all communication go through the WCB until the reported incident is resolved, which adds challenges to the claim management and the availability of information.

The treating physician can also add complexities to the claim and how the employee is coping. Employees may feel that their mental health concern is work-related, whether or not that assumption is supported by medical evidence. It is essential to address any discrepancies between the clinical notes, if available, and the reported occurrence immediately to the WCB to ensure a concise and accurate decision is rendered quickly.

To Submit or Not Submit

Many employers are afraid to submit mental health claims to the WCB when it is unclear if the claim is work-related, as workers’ compensation claims can have significantly higher costs than short-term disability (STD) claims and require less investigation. Often, mental health claims are started as STD claims, as this is the path of least resistance; however, claims submitted through STD can change to a WC claim, resulting in additional administrative work and confusion for the employee. As soon as the doctor reports the mental health condition as having a work-related component, the insurance carrier must transfer the claim back to the WCB for initial assessment. If it is denied by the WCB, it can then transfer back to STD and be adjudicated accordingly. Unfortunately, it is the employee who feels like a “hot potato”, and it is important for the employer to be sensitive to these situations. This back and forth frequently results in employers lacking a process or having an inconsistent protocol when they submit mental health claims through WC.

To make things more complicated, decisions from the WCBs are often extremely slow as a result of the investigative process, which can leave employees without benefits for prolonged periods of time while they await the decision. Some employers offer STD benefits to employees while they wait for the WCB decision to reduce negative financial impact. However, it is important to have the employee sign an overpayment agreement in case the WCB claim is approved; in which case, the employee would be required to reimburse their employer, which can cause added complications. Releasing all pertinent information immediately can help to decrease the decision time so that the employee knows where they stand.

At the end of the day, the employee has the choice if they want to pursue a WC claim or go through STD. The employer is obligated to submit to WC if the employee has identified any connection to the workplace, but the employee has the final choice if they want to pursue the claim or not once it has been established.

The “new normal” of mental health claims in workers’ compensation is an ever-changing landscape requiring the employer to continuously adapt.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.