Mental Health and the Workers Compensation Act

Mental Health and the Workers Compensation Act

depressionMoveUP works with employers to improve mental health literacy and, concurrently, educates members to recognize mental health disorders in themselves, colleagues, friends or family members.

Stigma surrounding mental health often prevents individuals from speaking up or seeking help.

According to the Mental Health Commission, one in five Canadians will experience a mental health problem or illness in any given year, with a cost of over $50 billion to our economy. In any given week, 500,000 Canadians are unable to work due to mental health problems or illnesses.

This information below provides a comprehensive guide of mental disorders, Employee and Family Assistance Program (“EFAP”) and Section 5.1 (Mental Disorders) of the Workers Compensation Act (“WCA”).

WorkSafeBC (“WCB”) has two main mandates: to prevent injuries (Occupational Health & Safety or “OH&S”) and to compensate people injured at work (Claims).

 

OH&S – Mental Health

Psychosocial risks at work are considered an OH&S issue. Psychosocial risks include psychological stressors. Psychosocial risks should be assessed, managed, and treated essentially the same way any other type of OH&S risks are dealt with in the workplace – by the Joint OH&S Committee conducting risk assessments, investigating, and recommending solutions to eliminate or minimize the psychosocial stressors.

Psychological stressors include experiencing traumatic events, bullying and harassment, abuse from customers, having an impossible workload, and so on. Each local Joint OH&S Committee or Worker Safety Representative deals with psychological stressors in the workplace differently, but what is important is that there are effective measures in place to eliminate or minimize those stressors.

Every employer should have a bullying and harassment policy in place. The policy sets out that employees must immediately report any form of bullying and/or harassment they witness or experience. The policy sets out who to report to (including an alternate if the person you report to is the bully), who investigates the complaints, and who follows up. It is important that witness statements be collected with an independent (i.e. no conflict of interest) worker safety representative involved. This is to protect the integrity of the witness statement amid complicated pressures and the employer’s reluctance to find and deal with bullying and/or toxic environment in their workplace.

To learn more about toxic work environments, see these articles:

“The Workplace Is Killing People and Nobody Cares” (Stanford Business)

The hostile work environment checklist: How toxic is yours? (Monster)

Nonprofits, we need to talk about mental health and suicide (Nonprofit AF)

If you have any questions or concerns related to psychosocial stressors at your workplace, you should contact Barb Gibson (bgibson@moveuptogether.ca) or the WCB prevention line at 1-888-621-7233.

If the complaint is related to bullying and harassment, generally all the WCB prevention officer can do is visit the work site and ensure the employer has a bullying and harassment policy in place. The prevention officer will not investigate the specific incident of bullying and harassment. See the WorkSafeBC’s Bullying & Harassment page for more information about this.

If your local Joint OH&S Committee/Worker Safety Representative is not sure how to deal with a bullying and harassment situation, please ask them to contact their union representative or Barb Gibson for advice.

 

CLAIMS – Sections 135 and 135.1 of the WCA

There are two ways to have a psychological condition/mental disorder accepted by the WCB. The first is as a consequence of a work injury under Section 5, Compensation for Personal Injury, of the WCA.

For example, a worker suffers a shoulder injury at work and, after a few months of dealing with pain and the change of life, they develop depression. If the WCB accepted the shoulder injury, the WCB may also accept the depression as a compensable consequence of the shoulder injury. An exception to this is if the mental disorder is caused by the WCB’s treatment of the worker or the appeal process itself. Generally, the WCB will not accept a mental disorder caused by their actions or the appeal process.

The second way a mental disorder can be accepted is under Section 5.1, Mental Disorders, of the WCA. That section reads that a worker is entitled to compensation for a mental disorder (other than a compensable consequence) only if the mental disorder is:

(1) a reaction to one or more traumatic events at work or;

(2) predominantly caused by a significant work-related stressor or series of significant stressors arising out of and in the course of work

 

Circumstances

  • You react to one or more traumatic events arising in and out of the employment (e.g. what some first responders witness); or
  • Your mental disorder has been predominantly caused by significant work-related stressors (e.g. bullying and harassment); and
  • You have a Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis (only a psychiatrist or psychologist can provide such diagnosis); and
  • Your mental disorder wasn’t caused by a decision of the employer (e.g. change in working condition, disciplinary actions, performance reviews, workload or termination)

Employees can’t sue their employers for work injuries. Rather, employees are entitled to fair compensation and health care in exchange for giving up the right to sue. Remember that the WCB often denies benefits that people are entitled to in the hopes that those people won’t appeal. This is how they ultimately save money for the accident fund and/or employers despite having the clear mandate to fairly compensate workers for work-related injuries.

 

Actions

  • Report the traumatic event or significant work-related stressor to your employer as soon as possible. Ensure a worker representative from your Joint OH&S Committee is involved with the investigation and that they are standing up for your rights.
  • If you’ve developed a mental disorder as a result of workload alone, as an example, the WCB will deny your claim and it will likely not be successful on appeal. Although workload is recognized as a psychosocial stressor on the OH&S side of the WCB, the claim side does not consider workload a significant work-related stressor, so you wouldn’t meet this part of the Section 5.1 test.
  • Seek treatment from your doctor and ask for a referral for a psychological assessment/diagnosis. Ensure your doctor is taking accurate notes and if they think the mental disorder is caused by work, ask them to note that with reasons.
  • Use your Employee Assistance Program and/or extended psychological benefits to pay for psychological treatment until the WCB decides to accept or deny your claim.
  • File a claim to the WCB within one year following the last incident/significant stressor or else you will be barred from making a claim. You can file a claim by calling the Teleclaim line or fax an “Application for Compensation” form to the WCB.
  • If your mental disorder developed as a result of bullying and harassment, you should ensure all witnesses to the problem behaviour are interviewed closely about what they witnessed ASAP so that the employer cannot minimize or mischaracterize the events as “interpersonal conflict.” In deciding whether or not to accept these types of claims, the WCB often just relies on the employer’s investigation report, which may minimize or mischaracterize what occurred. Because of this, a worker representative from the Joint OH&S Committee should be directly involved with the interviewing of witnesses. This person should not be the “bully” or friends with the “bully.” Rather, this person should be viewed as independent.

 

After a WCB claim is accepted

  • Treatment should be provided and wage loss benefits should be paid for period of time disabled from working as a result of the work injury.
  • If the psychological condition is permanent (i.e. symptoms don’t fully go away) then the employee may be entitled to a small permanent monthly pension to compensate for their “impairment in earning ability” as a result of the work injury.
  • The WCB case manager decides whether the employee can return to their pre-injury job. If not, they need to decide whether the employee is able to return to another position with the employer. Generally, it is best to get back working with the pre-injury employer because the employer will have to fulfill their duty to accommodate under human rights law which is much stronger than the WCB’s power under the vocational rehabilitation process.
  • Nurse advisers and/or vocational rehabilitation consultants may become involved.
  • Generally, the WCB must issue all decisions impacting entitlements/benefits in writing and every person has the right to appeal within 90 days of the decision date. If you receive a written decision and don’t understand what effect it has on your entitlements/benefits, contact the union before the appeal deadline to discuss.
  • Claim acceptance is not the only issue that comes up. Wage loss benefits, pension, and health care treatments are also WCB decisions that can be appealed.
  • The Joint OH&S Committee and/or the employer’s Return to Work department should address the bullying, work stress, etc. to ensure the employee returns to a healthy and safe workplace.

 

MoveUP recognizes the importance of your mental health and will continue to provide support through your job stewards, union representatives and our expert, Barb Gibson, on Occupational Health & Safety and WCB Appeals.