The effect of new legislation on work-related mental disorders

As you are likely aware, new provincial legislation came into effect in July 2012 broadening the scope of WorkSafeBC coverage for mental disorder claims and requiring the development of specific policies related to workplace bullying and harassment. In the year following the legislated changes, 2500 mental disorder claims were filed. This was more than double the number filed the previous year. Of those completed between July 2012 and July 2013, about 600 were accepted, and an equal number were ultimately withdrawn or did not require a decision. 

WorkSafeBC disallowed the remainder of the claims, primarily for the following reasons:

The events precipitating the claim were associated with employer decisions about the worker’s employment, such as decisions regarding his or her working conditions, workload, performance management, discipline, or termination. The law and related policy make it clear that these factors are excluded as a basis for coverage.

The assessing psychologist or psychiatrist could not diagnose a condition described in the latest Diagnostic and Statistical Manual of Mental Disorders (DSM).

While not associated with the employer decisions described above, the events precipitating the claim did not meet the legal or policy thresholds associated with significant stressors or traumatic events. Typically, the patient reported some conflict with co-workers, managers, or supervisors—but WorkSafeBC could not equate these behaviors with workplace bullying or harassment or other forms of abusive or threatening behaviors.

Prior to July 2012, WorkSafeBC could only accept such a claim if it determined the worker’s mental condition was an acute reaction to a sudden and unexpected traumatic event. However, since the legislative changes, WorkSafeBC can cover a worker’s mental disorder if either of the following applies:

The cause is one or more traumatic events arising out of and in the course of employment. 

The predominant cause is a significant work-related stressor, including bullying or harassment, arising out of and in the course of employment. 

As well, the law says that a psychiatrist or psychologist must diagnose the mental disorder as a condition described in the most recent DSM, and the cause cannot be an employer decision about the worker’s employment.

Hypothetical examples
Acceptable claim: A worker reports systematic workplace harassment, including unflattering and obscene comments about him on a worksite bulletin board, avoidance by other workers, exclusion from social gatherings, missing tools, sand, or liquids in his tool box, flattened tires, and a threatening note. This claim would be acceptable because it involves significant stressors that appear to be instances of bullying and harassment.

Unacceptable claim: A retail store manager is having trouble sleeping and concentrating because a district manager is currently reviewing her employment status. While the district manager’s behaviors are not abusive or threatening, the worker describes being singled out for biweekly meetings that are tense and unfriendly. The employer reports that meetings with managers are common and necessary to address lagging sales. This claim would not be acceptable because the employer is managing work performance—one of the legislated exclusions.

Your role as the physician
Under the new legislation, your role as the patient’s primary caregiver remains unchanged. With support from physicians, psychologists, and other providers, our specialized Mental Health Claims Unit (MHCU) staff assist and support workers with eligible claims. Where a patient presents with a mental disorder that you feel may qualify, please:
•    Provide normal treatment. 
•    Send a Physician’s Report (Form 8/11) to WorkSafeBC that includes your working diagnosis. 
•    Ask the worker to call WorkSafeBC at 1 888-WORKERS to file a claim.
•    If immediate critical incident support is required, call WorkSafeBC and ask to speak to our critical incident response team.

WorkSafeBC will obtain a psychologist’s or psychiatrist’s diagnosis as required. Decisions on these types of cases are made in 4 to 6 weeks, but can take longer if a detailed investigation into allegations of bullying or harassment is required. If the claim is accepted, WorkSafeBC’s MHCU staff will work with you and arrange for your patient to receive supplemental treatment through a psychologist, psychiatrist, or multidisciplinary program.

To discuss your patient’s mental health-related case before or after initiating a report, please call 604 231-8888 or 1 888 967-5377, and speak to a physician in WorkSafeBC’s MHCU.
—Joe Pinto
Senior Program Manager, WorkSafeBC Mental Disorders Program

Prevention of workplace bullying and harassment 
Effective 1 November 2013, a new, enforceable WorkSafeBC policy came into effect that requires every employer in BC to have policies and processes in place to prevent bullying and harassment. The WorkSafeBC policy also creates certain obligations for supervisors and workers to prevent workplace bullying and harassment. For more information, visit worksafebc.com/bullying.

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This article is the opinion of WorkSafeBC and has not been peer reviewed by the BCMJ Editorial Board.