By Marino Sveinson

It has been six months since Bill 14 came into effect on July 1, 2012 along with WorkSafeBC’s corresponding compensation policy on mental disorder claims (C3-13.00).  Bill 14 expanded the scope of compensable mental disorders arising out of workplace events that are not linked to a physical injury.

For the most part, adjudicators have been applying the limits contained in the legislation. Initial claims’ decisions are not publicly published.  However, both the Review Division and WCAT publish their decisions.  There were approximately 91 Review Division decisions in this area between July 1, 2012 and January 8, 2013.  Only 10 of these claims were accepted and nine were returned to the Board for further investigation.

Some trends and guidance are evident from the published decisions, but some questions remain.  On January 2, 2013 WorkSafeBC published an Interim Practice Directive for Mental Disorder Claims to provide further guidance to Board officers in making initial claims’ decisions.

It is evident that claims are rightly being rejected if there is not a proper psychiatric diagnosis by a psychologist or psychiatrist which is a primary threshold criteria.  Many claims have also been rejected because the alleged traumatic event is not “unusual or distinct from the duties and interpersonal relations of the worker’s employment” or the alleged significant stressor(s) is not “excessive in intensity and duration from what is experienced in the normal pressures or tensions of a worker’s employment”.

However, it is challenging to determine what will be considered usual or normal with respect to any particular worker’s position.  In one case, the Review Division rejected a claim by a female worker who was inappropriately touched in her groin by a male dementia patient because it was not unusual to encounter such behavior in her position.  In another claim it was accepted that a traumatic event had occurred when a summer camp leader was informed by two children that another child well known to the camp leader was sexually abused by an adult relative.

The practice directive attempts to add clarity by describing non-compensable claims as those involving events that are “common and/or predictable for that occupation”, but the directive also notes that there may be an “element of danger or intensity” to events in some occupations that support a conclusion that the event was emotionally shocking and thus compensable.  The practice directive further indicates that even if a worker has previously endured a particular type of event, a subsequent similar event can still constitute a traumatic event.

Many claims have been rejected because the alleged traumatic event or significant stressor is a decision of the employer relating to the worker’s employment.  This is crucially important as stressors arising from day-to-day human resources management by supervisors and managers should not be the basis of compensable claims unless the manager acts abusively or threatening or in a manner that otherwise constitutes bullying and harassment.  The practice directive reinforces this position by recognizing that “heated exchanges or emotional conflict at work over matters such as discipline, performance or the assignment of duties are not uncommon”.

Claims have also been rejected because the alleged bullying and harassment stressor(s) is simply interpersonal conflict.  In that respect, a distinction was made in one decision between simply rude behaviour and abusive behavior that may include threats, profanity and raised voices.  The practice directive correctly indicates that “both bullying and harassment reflect a pattern of behaviour that is intended to, or should reasonably have been known would, intimidate, humiliate or degrade an individual”.  Further, even if interpersonal conflict fits this definition it still may not be compensable if the conflict is about a personal matter because then it should be found that the mental disorder did not arise “out of employment”.

Marino Sveinson is moderating a panel discussion on Navigating WorkSafeBC Mental Disorder Claims and Bullying & Harassment at the HRMA Conference + Tradeshow in Vancouver on Thursday, May 2, 2013.

Marino Sveinson is a partner at Roper Greyell LLP where he provides strategic result-oriented advice and representation with respect to workplace law in unionized and non-union environments in both the provincial and federal sectors. Read his blog at workplacelegalpost.com.