November 16, 2011

The HR Space is edited by Lyne Duhaime, Karen M. Sargeant and Brian P. Smeenk.

Earlier this month, the BC Government introduced legislation that, if passed, will expand workers' compensation coverage for mental stress claims.

The Current Experience

As it stands now, a worker in BC is entitled to compensation for mental stress not resulting from an injury for which the worker would otherwise be entitled to compensation only if the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment. In addition, the condition:

• has to be diagnosed by a physician or a psychologist and described in the DSM-IV manual; and
• cannot be caused by a decision of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions or to discipline the worker or terminate the worker's employment.

Other provinces like Ontario have similar language, the result being that few claims for mental stress are compensable.

Potential Changes in BC

But that could all change if Bill 14 – 2011 Workers' Compensation Amendment Act, 2011 is passed in BC.  Bill 14 would eliminate the requirement that the mental stress be an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment. In its place, a worker would have to demonstrate that the mental stress is a reaction to:

• one or more traumatic events arising out of and in the course of the worker's employment; or
• a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment.

These amendments would change the landscape in two material ways:

• a BC worker would only have to show that one or a combination of traumatic events has occurred without reference to an acute reaction to a sudden and unexpected traumatic event. This appears to be a legislative change meant to comply with the 2009 BC Court of Appeal Plesner decision; and
• an entirely new sub-category of mental stress would be created in BC.  If a worker could show that mental stress is a reaction to a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment, the worker could obtain mental stress compensation.

The BC government has said that the old qualification, that mental stress cannot be caused by a decision of the worker's employer relating to the worker's employment, is supposed to continue to apply.

Impact on Employers

How will this affect employers in BC?  The BC government has provided the following examples of mental stress claims that would likely be compensable if Bill 14 is passed:

• emergency service personnel who gradually develop post-traumatic stress or another recognized stress disorder as a reaction to the traumatic events they may regularly experience as part of their job.
• exposure to workplace violence or bullying.
• ongoing sexual harassment.

What the BC government has not addressed, however, is whether performance management issues and attendance management issues, for example, may fall within the words "significant work-related stressor(s)". As demonstrated in Plesner, it may be that the Courts will ultimately determine the scope of coverage that this statutory change brings.

Whether or not other provinces follow BC's lead remains to be seen.  We will keep you posted.

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