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Bill 14, or the Workers’ Compensation Amendment Act, 2011 received Royal Assent on May 31, 2012. Among other things, the Act expressly addresses bullying and harassment, and amends section 5.1 of the Workers’ Compensation Act. Section 5.1 currently requires that, in order to receive workers compensation benefits for a mental disorder, the mental disorder must have been an acute reaction to an event in the workplace. Come July 1, 2012, an employee will have a compensable claim for mental stress resulting from: traumatic events in the workplace; a significant work-related stressor; or a cumulative series of significant work-related stressors.
WorkSafeBC, the entity tasked with the administration and implementation of the Workers’ Compensation Act, must bring its Policies (which are applied by the Officers of the Workers’ Compensation Board in the course of adjudicating claims) into line with these changes to Section 5.1.
To this end, WorkSafeBC’s Policy and Regulation Division has developed a draft Policy which addresses the changes to the way claims of mental disorder are adjudicated. The Discussion Paper accompanying the draft Policy identifies the challenges of adjudicating claims of gradual onset stress, and notes the lack of experience with such claims at the Workers’ Compensation Board. However, the Policy, among other things, attempts to put some limits on the stress claims that may be advanced by employees by requiring that the stressor complained of must exceed the intensity or duration expected of the normal pressures associated with the workplace, and excludes interpersonal conflicts to the extent those conflicts do not include threatening or abusive behaviour such as bullying or harassment. Regardless however, it appears that Officers of the Board will retain a fair bit of discretion as to what stressors will, and will not, be accepted in the context of the new Section 5.1 and Policy, and employers can expect that the bounds of this discretion will be the subject of challenge at at least the Board and the Workers’ Compensation Appeal Tribunal.
In contrast to British Columbia’s new and broad approach to claims of mental disorder, Ontario, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, New Brunswick and Manitoba have all implemented legislation which limits an employee’s ability to claim compensation for gradual onset stress.
WorkSafeBC estimates that the acceptance of claims under the new Section 5.1 will result in the acceptance of an additional 300 wage-loss claims annually, with an estimated cost impact of $18 to $20 million dollars.
WorkSafeBC is currently accepting stakeholder feedback on the proposed new Policy until June 15, 2012. The Discussion Paper and draft Policy can be accessed at: http://www.worksafebc.com/regulation_and_policy/policy_consultation/assets/pdf/Bill14/Bill14MentalDisorder.pdf