Canadian Occupational Safety

14 Canadian occupational safety www.cos-mag.com By dAVid mArChione ComPeNsaTioN WaTCH trAining legAl ConneCtion Psychological claims debunked Conditions for compensable mental health related claims m any employers are frustrated by psychological entitle- ment issues in the workers' compensation realm. ere seems to be a lack of understanding by both the worker and employer communities about what is compensable and what is not. From a worker perspective, there is a general idea that the general work environment, workload and even employer disciplinary activity should be compensable if they result in a person being unable to work. e compensation boards generally agree with this position, while employers do not. e compensation boards take the view that the following types of scenarios may lead to a compensable psychological condition: • an acute reaction to a sudden and traumatic event while in the course of employment • an acute reaction to cumulative trau- matic events while in the course of employment (including bullying and harassment) • a psychological reaction to treatment required for a compensable injury • a psychological reaction to the compensable injury itself. Decisions by the employer in the normal course of the work envi- ronment, including workload and disciplinary scenarios, are not usually considered to have caused an "injury," a factor that must be present in order for a condition to be compensable. However, there have been cases where a supervisor has disciplined a worker, and has done so in an objectively threatening manner — such as stand- ing over the worker, using expletives and pointing — that were considered compensable. e actions of the supervisor in such a case caused the employee to fear for his safety and were determined to be objectively traumatic. Usually, the compensation boards will require a worker to have been assessed by either a psychiatrist or psychologist, and there must be a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, published by the Ameri- can Psychiatric Association. Employers should not self adjudicate these claims. Reports must be fi led with the compensation boards upon learn- ing of a worker's injury or condition. If you disagree with the worker's position and do not feel his condition is work-related, please be sure to advise the compensation board of your rea- sons for disagreement. For example, let the board know if you are aware of details in a worker's life that may be rel- evant to their situation (such as recent personal tragedy or loss at home). e psychological condition must have arisen out of and in the course of employment, or be somehow related to a compensable injury in order for ben- efi ts to be allowed. All information must be provided to the compensation board so it may make the best decision possible. David Marchione is an OHS consultant and paralegal with Toronto-based law fi rm Gowlings. You can contact him at david.marchione@gowlings.com. The nationwide search for the most outstanding safety professional is on! Canadian Occupational Safety is now accepting nominations for 2013 Safety Leader of the Year. If you know an OHS professional who deserves to be recognized for outstanding leadership, we would like to hear from you. Visit cos-mag.com for nomination details. The 2013 Safety Leader of the Year is sponsored by: Jim Duthie Health, safety and environment manager Valeant Pharmaceuticals 2012 Safety Leader of the Year COS (5693).indd 1 13-03-18 9:57 AM THe PsyCHologiCal CoNDiTioN mUsT Have aRiseN oUT oF aND iN THe CoURse oF emPloymeNT, oR Be someHoW ReLAteD to A ComPeNsaBle iNjURy iN oRDeR FoR BeNeFiTs To Be alloWeD

• Cover