WCB Consultation Compensability of Workplace Stress

Transcription

1 WCB Cnsultatin Cmpensability f Wrkplace Stress Please nte, this is nt the OEA submissin in relatin t the cmpensability f psychlgical injuries. On April 24, 2013, the Wrkers Cmpensatin Bard released a paper titled, Prgram Plicy Backgrund Paper: Cmpensability f Wrkplace Stress. The WCB has granted a submissin deadline extensin t all emplyers until June 30, The Prgram Plicy Backgrund Paper: Cmpensability f Wrkplace Stress can be fund at: The purpse f this paper is t identify the WCB prpsed plicy changes that may affect yu and prvide infrmatin that may assist emplyers with the drafting f individual submissins. On May 17, 2013, the OEA met with representatives f emplyers, business grups, and assciatins t discuss the WCB s prpsed plicy draft. Flwing frm this cnsultatin, emplyers identified the fllwing issues and activities fr the OEA t undertake: 1. A Freedm f Infrmatin and Prtectin f Privacy (FOIPOP) request was filed with the Wrkers Cmpensatin Bard respecting the prfile f current psychlgical injury claims; 2. The OEA will meet with WCB t discuss cncerns respecting the cnsultatin prcess and timelines; 3. The OEA is attempting t meet with the Wrkers Advisrs Prgram t determine if there are any cmmn cncerns with labur; 4. OEA is seeking an pinin resecting the impact that a Psychlgical Injury Plicy culd have n the utcme f the Charter Challenge that will be heard by the Nva Sctia Curt f Appeal in the near future. On Wednesday June 5, 2013, the OEA will a secnd emplyer cnsultatin at the Museum f Industry in Stellartn, frm 10 am until nn. On Friday June 7, 2013, the OEA will cnduct a 3 rd emplyer cnsultatin at Canada Pst, Cnfederatin Bard Rm, 6135 Almn Street frm 9:30 am until 12:00 nn. As the OEA cllects new infrmatin, the presentatin material will be updated t reflect the same. Please visit ur website at fr further infrmatin. The OEA als encurages emplyers t make individual submissins n this imprtant issue. The fllwing summary is designed t assist yu with this effrt. This paper is divided int three sectins: Sectin 1 is fr all emplyers and it cntains a high-level summary f the key issues. Sectin 2 is fr all emplyers and it cntains a discussin relating t the unfunded liability, financial risk and ther issues. 1

2 Sectin 3 is fr emplyers wh are cvered by the Wrkers Cmpensatin Act (and als applies t GECA). Sectin 4 is fr emplyers f federal gvernment emplyees cvered by the Gvernment Emplyees Cmpensatin Act. Sectin 1 Summary f Issues This sectin cntains a summary f the mst salient issues arising frm the prpsed Psychlgical Injury plicy draft and prpsed changes t Plicy that applies t federal gvernment emplyees. Issue #1: Csts and the Unfunded Liability Csts assciated with the prpsed plicy are incnsistent with the stability in benefit structure that is necessary t eliminate the unfunded liability. Issue #2: Definitin f Traumatic Event WCB prpsed criteria that will be used t assess the traumatic event(s) that triggers the psychlgical injury. The event must be reasnably and bjectively assessed but these wrds are nt defined. Other prvinces, ntably New Brunswick, state that the event(s) must be unusual and excessive in cmparisn t events experienced by an average wrker in the same r similar ccupatin. These wrds have a specific meaning that has been cnsidered by the Curt f Appeal in Nva Sctia. Issue #3: Example f Traumatic Events Examples f Traumatic events may include, but are nt limited t: (a) incidents f extreme wrkplace harassment. Extreme wrkplace harassment is nt defined by the plicy. Issue #4 Prpsed Changes Affecting Federal Gvernment Emplyees The prpsed changes t Plicy (GECA), mean that WCB wuld change the adjudicatin criteria fr a grup f claims that were, histrically, adjudicated under gradual nset. The test fr this grup f claims has changed frm unusual and excessive in cmparisn t the wrk-related events experienced by an average wrk in the same r similar ccupatin t reasnably and bjectively assessed (which is nt defined by the plicy). WCB has prpsed a new standard (reasnably and bjectively assessed), despite the fact that the current standard unusual and excessive in cmparisn t the wrk-related events experienced by an average wrk in the same r similar ccupatin has been reviewed by the Curt f Appeal in Nva Sctia n mre than ne ccasin. 2

3 Issue #5: Getting Ahead f the Curt f Appeal It appears that WCB has created a prpsed plicy that is intended t reslve a Charter Challenge that will be heard by the Nva Sctia Curt f Appeal in the near future. WCB has nt explained hw the prpsed plicy wuld impact the Curt s analysis. Issue #6 Authrity t Adpt this Plicy The prpsed plicy is incnsistent with the definitin f accident under the Wrkers Cmpensatin Act. Pursuant t sectin 183(2) f the Act, the WCB Bard f Directrs des nt have authrity t adpt this plicy. Sectin 2 - The Unfunded Liability, Financial Risk and Other Issues The Unfunded Liability As f December 31, 2013, the unfunded liability was $604,386,000. Unfunded liability means future payment bligatins exceed present value f funds available t pay them. In a WCB paper titled, WCB Discussin Dcument, Funding Strategy , WCB states: Given the aging wrkfrce and incidence f chrnic pain in Nva Sctia these benefits represent a significant area f risk fr WCB. See: y_2013.pdf In the same paper, WCB states: Relative stability in benefit structure and rates is necessary t eliminate the unfunded liability. In early 2012, a presumptin in favur f firefighters suffering frm an ccupatinal disease was intrduced by gvernment. In April 2013, gvernment changed t the Wrkers Cmpensatin Act t ensure pre- Charter widws wuld receive apprximately 14 years f survivr benefits. In May 2013, we see the intrductin f a prpsed psychlgical injury plicy expanding the scpe f traumatic event beynd acute reactin. These changes are incnsistent with the stability in benefit structure that is necessary t eliminate the unfunded liability. We ask WCB t disclse the financial risk assciated with all three changes and/r prpsed changes. Authrity t Adpt the Prpsed Plicy Sectin 183(2) f the Wrkers Cmpensatin Act states that the WCB Bard f Directrs may adpt plicies that are cnsistent with the Act. The definitin f accident excludes cmpensatin fr psychlgical injury unless it is an acute reactin t a 3

4 traumatic event. The prpsed plicy intrduces cumulate reactin t traumatic event(s). Since cumulative reactin t traumatic event(s) is nt cmpensable under the current definitin, the WCB Bard f Directrs wuld nt have the authrity t adpt the prpsed plicy unless the legislatin is changed. WCB has indicated that the legislatin will nt be changed. The Prblem WCB is Trying t Fix - Charter Challenge f the Exclusin in Nva Sctia A wrker was denied cmpensatin fr a psychlgical injury because the symptms arse gradually as a reactin t a number f events ver the years. There was n acute reactin t a traumatic event. The Wrker argued that the Wrkers Cmpensatin Act impses differential treatment upn injured wrkers wh have a mental disability which is nt an acute reactin t a traumatic event. The questin befre WCAT was: Des s.2(a) f the Act ffend s.15(1) f the Charter? WCAT fund that althugh s.2(a) draws a distinctin n the basis f an enumerated grund f discriminatin (disability), this distinctin des nt amunt t discriminatin because it des nt create a disadvantage by perpetuating a prejudice r steretype (WCAT AD) The Wrker asked the Nva Sctia Curt f Appeal t review WCAT s decisin. The NSCA agreed t hear the issue but n date has been set. It appears that WCB wuld like t reslve the issue befre the Nva Sctia Curt f Appeal by adpting this prpsed plicy. Hwever, WCB has nt explained hw the adptin f this plicy wuld affect the utcme. The OEA is explring this questin in mre detail s that we may prvide emplyers with specific directin. It is imprtant t keep in mind that irrespective f the utcme in this specific instance, ther charter challenges are waiting t be heard. 4

5 Sectin 3: Prpsed Psychlgical Injury Plicy - Wrkers Cmpensatin Act Prpsed Plicy Language Sectin 2 f the Wrkers Cmpensatin Act states that an accident des nt include stress ther than an acute reactin t a traumatic event. Issues Sectin 183(2) f the Wrkers Cmpensatin Act states that the WCB Bard f Directrs may adpt plicies that are cnsistent with the Act. The definitin f accident excludes cmpensatin fr psychlgical injury unless it is an acute reactin t a traumatic event. The prpsed plicy intrduces cumulate reactin t traumatic event(s). Since cumulative reactin t traumatic event(s) is nt cmpensable under the current definitin, the WCB Bard f Directrs wuld nt have the authrity t adpt the prpsed plicy unless the legislatin is changed. On May 24, 2013 the WCB stated that the legislatin wuld nt be changed. Preamble The purpse f this plicy is t establish criteria fr the individualized adjudicatin f psychlgical injury claims under the Wrkers Cmpensatin Act. The language has changed frm stress which is nt a medical diagnstic term t psychlgical injury. Definitins 1. The DSM is the mst current editin f the Diagnstic and Statistical Manual f Mental Disrders, which is a cmpendium f psychiatric diagnses prduced by the American Psychiatric Assciatin. The manual cdes and describes all recgnized psychiatric diagnses and is regarded as the definitive wrk n the subject. (Surce: The Canadian Health Care Glssary). DSM criteria are widely used by health care prviders in Nrth America. Definitins 2. Traumatic Event(s) is defined as a direct persnal experience f an event r directly The wrds reasnably and bjectively assessed are nt defined r explained in the prpsed plicy Generally, subjective means frm the perspective f the individual 5

6 witnessing an event that, reasnably and bjectively assessed, is: Sudden Frightening r shcking Having a specific time and place; and Invlving actual r threatened death r serius injury t neself r thers r threat t ne s physical integrity. Generally, bjective means frm the perspective f a reasnable neutral bserver In Saskatchewan, traumatic event includes the wrds: the event will be unexpected fr type f emplyment cncerned In Yukn, traumatic event includes the wrds: the event will be cnsidered uncmmn with respect t inherent risks f the ccupatin In New Brunswick, traumatic event includes the wrds: the event must be unusual and excessive in cmparisn t events experienced by average wrker in same r similar ccupatin The language cntained in New Brunswick s definitin is the same as language cntained in the Stress Plicy that applies t federal gvernment emplyees in Nva Sctia. This is imprtant t cnsider because the Nva Sctia Curt f Appeal has upheld the language cntained in the plicy n mre than ne ccasin. In 2008, NSCA cnsidered whether it was crrect t assess nature f wrkplace events and stressrs frm an bjective perspective under gradual nset (Embanks 2008). In 2012, NSCA cnsidered an average wrker in the same r similar ccupatin (Bishp 2012). Which means that when yur wrker argues that s/he was expsed t unusual and excessive events WCB must cnsider a cmparisn between yur wrker and wrkers in similar ccupatins acrss Nrth America (fr example). Examples f traumatic events may include, but are nt limited t: A direct persnal experience f an event that invlves actual r threatened death r serius injury; An actual r threatened vilent physical assault; Incidents f extreme wrkplace harassment Witnessing r experiencing a hrrific accident; Witnessing r being invlved in a hstage taking; and The OEA cnducted a jurisdictinal scan, and 5 prvinces explicitly state that harassment is cmpensable under the psychlgical injury plicy. One prvince, Yukn, explicitly excludes a claim that is the result f allegatins f harassment. Nva Sctia des nt define r describe incidents f extreme wrkplace harassment The Centre fr Occupatinal Health & Safety defines harassment as: any behavir that demeans, embarrasses, humiliates, annys, alarms r verbally abuses a persn and that it is knwn r wuld be 6

7 Witnessing r being invlved in an armed rbbery. expected t be unwelcme. This includes wrds, gestures, intimidatin, bullying, r ther inapprpriate activities Ontari and Nrth West Territries define harassment as: Being the bject f harassment includes physical vilence r threats f physical vilence (e.g the escalatin f verbal abuse int traumatic physical abuse) Being the bject f harassment that includes being placed in a life-threatening r ptentially life-threatening situatin (e.g. tampering with safety equipment; causing the wrker t d smething dangerus). Criteria Claims fr psychiatric r psychlgical injuries resulting frm Traumatic Events may be cmpensable if all f the fllwing fur criteria are satisfied: All fur criteria must be met. There must be ne r mre Traumatic Event(s) as defined herein; The traumatic event must arise ut f and in the curse f emplyment; The acute r cumulative respnse t the Traumatic Event(s) has caused the wrker t suffer frm a mental r physical cnditin that is described in the DSM; and The cnditin is diagnsed in accrdance with the DSM and by a health care prvider being either a psychiatrist r a clinically trained psychlgist registered with the Canadian Register f Health Service Prviders in Psychlgy. Nn-Cmpensable Wrk-Related Events Mental r physical cnditins are nt cmpensable when caused by labur relatin issues such as a decisin t change the wrker s wrking cnditins; a decisin t discipline the wrker; a decisin t This means that psychlgical injuries arising frm labur relatins are nt cmpensable. Alberta s plicy includes the wrds: In additin t the 7

8 terminate the wrker s emplyment r rutine emplyment related actins such as interpersnal relatinships and cnflicts, perfrmance management, and wrk evaluatin. duties reasnably expected by the nature f the wrker s ccupatin, nrmal pressures and tensins include interpersnal relatins and cnflicts, health and safety cncerns, unin issues and rutine labur relatins. New Brunswick s plicy includes the wrds: Examples f pressures and tensins nrmally experienced may include: interpersnal relatinships and cnflicts; health and safety cncerns; unin issues; rutine labur relatins Sectin 4 Prpsed Changes t Plicy 1.3.6: Cmpensability f Stress as an Injury Arising ut f and in the Curse f Emplyment - Gvernment Emplyees Cmpensatin Act (GECA) In additin t the issues identified in Sectin 2 f this paper, the fllwing items are specific t Plicy 1.3.6: Prpsed Changes Issues Preamble The purpse f this plicy is t establish criteria fr the individualized adjudicatin f stress claims psychlgical injury claims under the Gvernment Emplyees Cmpensatin Act (GECA). Definitins This plicy and the definitins cntained herein have their fundatin in medical literature including the American Psychiatric Assciatin s Diagnstic and Statistical Manual f Mental Disrders 4 th editin (DSM IV). 1. The DSM IV is the mst current editin f the Diagnstic and Statistical Manual f Mental Disrders, which is a cmpendium f psychiatric diagnses prduced by the American Psychiatric Assciatin. The manual cdes and describes all recgnized psychiatric diagnses and is regarded as the definitive wrk n the subject. (Surce: The Canadian Health Care Glssary). 8

9 2. Traumatic Event(s) has all f the fllwing elements 1[1] : The persn has experienced, witnessed r was cnfrnted with an event that invlved actual r threatened death r serius injury r a threat t physical integrity f self r thers; and The persn s respnse invlved intense fear, helplessness, r hrrr. is defined as a direct persnal experience f an event r directly witnessing an event that, reasnably and bjectively assessed, is: Sudden Frightening r shcking Having a specific time and place; and Invlving actual r threatened death r serius injury t neself r thers r threat t ne s physical integrity. Examples f traumatic events may include, but are nt limited t: A direct persnal experience f an event that invlves actual r threatened death r serius injury; An actual r threatened vilent physical assault; Incidents f extreme wrkplace harassment Witnessing r experiencing a hrrific accident; Witnessing r being invlved in a hstage taking; and Witnessing r being invlved in an armed rbbery. Plicy Statement Stress is nt an accepted medical diagnstic term, but is a cmmnly used term that describes an individual s nn-specific physical and psychlgical The current GECA Stress Plicy adpted by WCB in 2005 cntains tw categries f cmpensable psychlgical injury claims: (a) acute reactin; and (b) gradual nset. The prpsed plicy purprts t create a 3 rd categry 9

10 respnse t the events r changes that ccur in his r her life. These events are knwn as stressrs. Sme level f stress is healthy. Hwever, when a persn s ability t cpe with the stressrs is verwhelmed, distress, a negative frm f mental stress, can develp and result in diagnsable psychlgical r psychiatric injuries as defined by the DSM IV. The WCB will cnsider claims fr cmpensatin under the GECA when the cnditin results frm ne f the fllwing: Stress that is a reactin in respnse t ne r mre Traumatic Event [Traumatic Onset Stress]; r Stress that is a reactin t unusual r excessive wrk-related stressrs acting ver time [Gradual Onset Stress] when the specified criteria utlines belw are satisfied. In ther wrds, the WCB will cnsider claims fr cmpensatin under the GECA in respect f: (a) acute respnse t a Traumatic Event; (b) cumulative respnse t Traumatic Events; and (c) gradual nset stress. Fr greater certainty: (a)an acute respnse t a Traumatic Event is the mst easily identified type f stress, which invlves witnessing r experiencing a single event that is bjectively traumatic. called cumulative reactin. Histrically, cumulative respnse t traumatic event was adjudicated under gradual nset. This means that a grup f claims nce adjudicated under gradual nset wuld be adjudicated under cumulative respnse if the plicy is adpted as it is currently written. Under the current plicy, gradual nset claims will be accepted if the wrk-related events r stressrs experienced by the wrker are unusual and excessive in cmparisn t the wrk-related events experienced by an average wrk in the same r similar ccupatin. The prpsed plicy states that cumulative traumatic event(s) must be reasnably and bjectively assessed Therefre, the test has changed frm unusual and excessive in cmparisn t the wrk-related events experienced by an average wrk in the same r similar ccupatin t reasnably and bjectively assessed (which is nt defined by the plicy). We are cncerned that WCB has prpsed a new standard (reasnably and bjectively assessed) given that the current standard unusual and excessive in cmparisn t the wrk-related events experienced by an average wrk in the same r similar ccupatin has been reviewed by the Curt f Appeal in Nva Sctia n mre than ne ccasin. In ther wrds, we have very gd directin frm the Curt f Appeal respecting the test t be applied in the adjudicatin f gradual nset claims. (b)a cumulative respnse t Traumatic Event invlves a respnse t multiple Traumatic Events. Pssible examples wuld include a paramedic wh develps Pst Traumatic Stress Disrder after respnding t a number f fatal traffic cllisins, r a drugstre pharmacist after multiple rbberies. (c)gradual nset stress is an accumulatin ver time f a number f wrk related stressrs that d nt fall within the definitin f Traumatic Event(s), r a significant wrk related stressr that has lasted fr a lng time but des nt therwise fall within the definitin f Traumatic Event(s). Pssible examples wuld include certain types f bullying and harassment. 10

11 Traumatic nset stress that is a reactin in respnse t a traumatic event; r Gradual nset stress that is a reactin t unusual and excessive wrk-related stressrs acting ver time and the specified criteria utlined belw are satisfied. Criteria fr Traumatic nset Stress Claims fr psychiatric r psychlgical injuries resulting frm traumatic nset stress events may be cmpensable if all f the fllwing fur criteria are satisfied: i. There must be ne r mre a traumatic event(s) as defined herein; ii. The traumatic event(s) must arise ut f and in the curse f emplyment; iii. The wrker is diagnsed with a mental r physical cnditin that is described in the DSM IV; and The acute r cumulative respnse t the Traumatic Event(s) has caused the wrker t suffer frm a mental r physical cnditin that is described in the DSM; and iv. The cnditin is diagnsed in accrdance with the DSM IV by a health care prvider being either a psychiatrist r a clinically trained psychlgist registered with the Canadian Register f Health Service Prviders in Psychlgy. Criteria fr Gradual Onset Stress Claims fr psychlgical r psychiatric injuries resulting frm gradual nset stress may be cmpensable if all f the fllwing fur five criteria are satisfied: The prpsed plicy als changes the test frm unusual and excessive t unusual r excessive. i. An accumulatin, ver time, f a number f wrkrelated stressrs that d nt fall within the definitin f Traumatic Event(s), r a significant wrk-related stressr that has lasted a lng time but des nt fall within the definitin f Traumatic Event(s) 11

12 ii. The wrk-related events r stressrs experienced by the wrker are unusual AND OR excessive in cmparisn t the wrk-related events r stressrs experienced by an average wrker in the same r similar ccupatin; iii. The wrker is diagnsed with a mental r physical cnditin that is described in the DSM IV; iv. The mental r physical cnditin is caused by the wrk-related events r stressrs; and v. The cnditin is diagnsed in accrdance with the DSM IV by a health care prvider being either a psychiatrist r a clinically trained psychlgist registered with the Canadian Register f Health Service Prviders in Psychlgy. Nn-Cmpensable Wrk-related Events Mental r physical cnditins are nt cmpensable when caused by labur relatin issues such as a decisin t change the wrker s wrking cnditins; a decisin t discipline the wrker; a decisin t terminate the wrker s emplyment r rutine emplyment related actins such as interpersnal relatinships and cnflicts, perfrmance management, and wrk evaluatin. Regards, Office f the Emplyer Advisr May 24,