Can an Employer Challenge a WSIB Psychological Injury Award in Ontario?

Can an Employer Dispute a Worker’s WSIB Psychological Injury Rating?

Yes — an employer can appeal a WSIB Non-Economic Loss (NEL) rating to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), but overturning a rating supported by clinical medical evidence is very difficult. In Decision No. 295/26, 2026 ONWSIAT 810 (CanLII), the Tribunal dismissed an employer’s challenge to a 20% NEL award for a worker’s permanent psychological impairment, finding that the medical record clearly supported the rating.

The worker had suffered a partial finger amputation in a 2016 workplace accident. He was later found to have developed Post-Traumatic Stress Disorder and Major Depressive Disorder as a direct result of that injury. Two independent medical professionals documented his condition in detail, and the Board assigned a 20% NEL award — the lowest end of the “moderate” impairment class under the applicable rating scale.

The employer argued the worker had exaggerated or fabricated his psychological symptoms and pointed to Facebook photographs as evidence he was healthy and social. The Tribunal rejected that argument.

Does Social Media Evidence Disprove a WSIB Psychological Injury Claim?

Not on its own. The Tribunal found that photographs of a person attending social events — without any reliable information about how long they stayed, how they felt, or how their condition was affected — are too speculative to override detailed clinical assessments. The Tribunal also noted that the treating psychologist had herself documented the worker’s limited capacity to socialize in 2017, including that he attended parties but left early due to how he felt. The Facebook posts were therefore consistent with, not contradictory to, the medical record.

For workers and employers alike, this is an important reminder: psychological conditions are assessed on the basis of clinical evidence, not curated social media snapshots. A person can appear happy in a photograph while still experiencing significant ongoing impairment.

What Is the WSIB Rating Scale for Psychological Impairments?

The Board uses a specific rating scale for permanent psychological impairments that runs from Class 1 (no impairment, 0%) through Class 2 (mild, 5–15%) and Class 3 (moderate, 20–45%), with higher classes for more severe conditions. A worker is placed in the class whose description most closely matches their overall psychological functioning — not every symptom in that class needs to be present.

In this case, the Tribunal found the worker displayed several Class 3 characteristics — episodic anxiety, fear of re-injury, depressive episodes, and sleep disruption — while remaining largely independent in daily activities. That placed him at the lowest end of Class 3, corresponding to a 20% rating. The Tribunal confirmed there was no basis to move him down to Class 2 or up within Class 3.

Can an Employer Terminate LOE Benefits by Claiming Modified Work Was Available?

An employer can raise that argument, but it must be supported by contemporaneous documentation. The Tribunal found that the employer’s claim — that modified work had been available to the worker in April 2017 — was unsupported by any records from that time. The only evidence offered consisted of written statements from the employer’s own family members, provided five years after the fact, and a claimed phone conversation with a Board representative that appeared nowhere in the Board’s claim file.

By contrast, the worker’s representative had written to the Board in 2017 confirming the employer had not responded to the worker’s requests for modified work, and the worker had independently secured an apprenticeship to mitigate his wage loss. The Tribunal accepted that contemporaneous record over the employer’s later assertions.

What Happens to LOE Benefits When an Injured Worker Takes a Lower-Paying Job?

Partial LOE benefits remain payable when a worker returns to work but still earns less than their pre-injury wage because of their injury. Under the WSIA, LOE benefits are calculated as 85% of the difference between the worker’s pre-injury net average earnings and their post-injury earnings. In this case, the worker’s physical and psychological impairments prevented him from returning to concrete labour, and the apprenticeship bricklaying work he found paid less and posed its own injury-related challenges. He remained entitled to partial LOE benefits for that period.

Our Ontario employment law lawyers regularly advise workers and employers navigating WSIB benefit disputes, including situations where a return to work does not fully restore pre-injury income. If you are in the Hamilton or Burlington area, our Hamilton employment law team can discuss your specific circumstances.

What Role Does Medical Evidence Play in a WSIB Psychological Injury Appeal?

Medical evidence is the foundation of any NEL rating for a psychological condition. The Tribunal was clear that the key question is what the clinical record shows — not what an employer suspects or what social media might suggest. In this case, two qualified medical professionals assessed the worker at different points in time, in two different countries, and both confirmed ongoing psychological impairment. That consistency carried significant weight.

Workers pursuing psychological injury claims should understand that thorough, well-documented medical assessments are essential. Employers challenging such claims face a high bar when the clinical record is consistent and credible.

Questions and Records to Discuss with a Lawyer

• What medical documentation exists to support or challenge the degree of psychological impairment?
• Is there contemporaneous written evidence — from 2017 or whenever the relevant period occurred — about modified work offers or the worker’s attempts to contact the employer?
• Has the worker reported all changes in circumstances, including relocation and income from new employment, to the Board?
• What does the Board’s claim file actually contain about communications between the parties and the Board at the relevant time?
• Has every applicable ARO decision been identified, and which ones are actually within the Tribunal’s jurisdiction to review?

If you have questions about a WSIB appeal, a psychological injury rating, or LOE benefits entitlement — whether you are a worker or an employer — the team at UL Lawyers is available to discuss your situation. You can reach us through our contact page.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.