Bill 23, the Workers Compensation Amendment Act, 2020 received royal assent on August 14, 2020. The Bill made a number of changes to the Workers Compensation Act, including providing the Workers' Compensation Board ("WCB") with the ability to authorize preventative health care on pending claims in certain circumstances, and allowing the WCB to reconsider a decision after 75 days, if the decision contained an obvious error or omission.
Bill 23 also amended section 135(1) of the Act to specifically include compensation for mental disorders that do not result from a compensable physical injury, and amended section 151(3) of the Act to specifically include mental disorder claims within the one-year limit for filing claims.
BC's WCB, like other jurisdictions, considers claims for mental disorders when they arise from a work-related injury or when the mental disorder arises from a traumatic event or from a work-related stressor. However, it has been a longstanding issue for those claiming for benefits in these cases that the criteria for entitlement was perceived to be different than that in the case of a physical injury. The change in the legislation specifically recognizes that compensation for a mental disorder is payable "as if the mental disorder were a personal injury arising out of and in the course of employment."
On a practical level, the change in legislation does not represent a change in circumstances for employers in terms of the way claims for mental disorders are adjudicated. In all cases, the specific facts and circumstances of the mental disorder must be shown to be linked to either an accepted injury or disease (i.e. the accepted injury or disease must be a significant cause in the development of the psychological condition), or the diagnosed psychological condition must be a reaction to either:
- one or more traumatic work-related events; or
- a significant work-related stressor, or cumulative series of work-related stressors.
The onus is on the claimant and medical documentation to provide information, including a description of the circumstances leading up to the diagnosis, to make the necessary link for compensation to be payable. Generally, there is no entitlement to compensation if a mental disorder is caused by an employer's decisions relating to the worker's employment.
It is important for employers to conduct thorough investigations following reported incidents in order to ensure that they have a full understanding of the facts and circumstances of those incidents, so that the information can be provided to the WCB. It is also important for employers to ensure that workers report incidents immediately, so that such investigations can take place. In the case of "significant work-related stressors", which can include workplace harassment, the employer's investigation into any alleged events can help clarify whether the circumstances are those which may lead to compensation under the workers' compensation regime, or whether they would not.
Employers do have the right to appeal, or request a review of an entitlement decision if they disagree with it. Employers should be aware of any deadlines for appeal and ensure that a request for review is filed within the appropriate deadlines.