BC Workers’ Compensation Claim for Mental Disorder Arising from Impacts of COVID-19 on Work Environment Ruled Non-Compensable
Employers concerned about whether employees can make workers’ compensation claims for mental disorders as a result of COVID-19 can take some guidance from a recent decision of the WorkSafeBC Review Division.
Section 135 of British Columbia’s Workers Compensation Act (the “Act”) provides that a worker may receive compensation for a mental disorder where it is either a reaction to one or more traumatic events arising out of and in the course of a worker’s employment, or predominantly caused by a significant work related stressor or a cumulative series of significant work-related stressors. In Review Reference #R0269567, WorkSafeBC’s Review Division considered whether a mental disorder allegedly arising from the impacts of COVID-19 on the worker’s work environment was compensable.
The worker, who was employed in food service at a correctional institute, stated that she developed a mental disorder due to work events that occurred from April 2020 to July 2020. In April 2020, the worker’s workplace was affected by an outbreak of COVID-19. She and her co-workers had to isolate for two weeks because of the potential COVID-19 exposure. The worker said that, despite the isolation requirement, her supervisor asked her to work during this time. This upset the worker. Due to the outbreak of COVID-19, the correctional institute entered a lockdown that lasted about three months. This increased the workload and job duties of the food service employees. Usually, inmates of the correctional institute would assist in the kitchen. Due to the outbreak, however, the inmates were not allowed to assist, resulting in significant staffing shortages. The worker said that (i) her workload increased and her routine changed on a daily basis, (ii) she had to work strenuously to keep up, (iii) there was little time for breaks; and (iv) she and other staff were not allowed to take vacation days. In the worker’s view, her supervisor did not take appropriate action to lessen the workload.
In July 2020, the worker went off work due to increased stress. The worker’s supervisor called her to ask “what was going on with her medically”. The worker told her supervisor that she preferred not to talk about her medical history or personal information. The supervisor said that a co-worker had seen the worker at the lake, and asked how that fit with the worker’s inability to work. The supervisor said that he brought up the lake because the worker’s co-workers were asking him questions about it. The worker said she was upset by the questions and started crying, ending the call.
The worker filed a claim with the Workers’ Compensation Board (the “Board”), which operates as WorkSafeBC, for compensation of a mental disorder that she attributed to these work events. The Board disallowed the worker’s claim. The worker requested a review of the decision.
The Review Division Decision
After considering the submissions of the worker and employer, the Review Division confirmed the Board’s decision. In applying section 135 of the Act, the Review Division was guided by Policy item C3-24.00, which outlines five factors to be considered in determining whether a worker has an acceptable mental disorder claim:
- The worker must be diagnosed with a disorder described in the American Psychiatric Association’s most recent Diagnostic and Statistical Manual of Mental Disorders;
- There must have been one or more events, or a stressor, or a cumulative series of stressors;
- The mental disorder must not be caused by a decision of the employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker, or to terminate the worker’s employment;
- The event must be “traumatic” or the work-related stressor “significant”; and
- The mental disorder must be caused by the stressor, and the stressor must arise out of and in the course of the worker’s employment.
The Review Division found the second and third factors to be determinative in this case. Starting with the second factor, Policy item C3-24.00 specifies that the event(s), stressor or cumulative series of stressors must be identifiable. The Review Division was satisfied that identifiable events occurred, based on the evidence of the worker and employer.
Next, the Review Division turned its attention to the third factor, guided by Interim Practice Directive C3-3, Mental Disorder Claims, which provides that an employer has the prerogative to make decisions regarding the management of the employment relationship, although this does not mean that decisions can be communicated in any fashion. The fact that decisions of the employer were communicated in a manner that was upsetting to the worker is not determinative. Heated exchanges or emotional conflict at work over matters such as discipline, performance or the assignment of duties are not uncommon. Overall, it should be considered whether the conduct of the person communicating the decision of the employer was in some way abusive or threatening.
Applying the Practice Directive, the Review Division found that the work events constituted decisions of the employer. They related to matters such as workload, job duties, and attendance, which are all typical matters of labour relations. The Review Division also considered whether the supervisor was in some way abusive or threatening. It found the supervisor was not. The Review Division acknowledged that the worker found the work events to be upsetting and stressful, but that did not mean there was abuse. The supervisor explained that he telephoned the worker because he had faced questions from co-workers about pictures the worker posted on social media. The supervisor said he felt that it was his duty as a supervisor to call the worker that day. The third factor was not satisfied, so the work events could not give rise to a compensable mental disorder claim under s. 135 of the Act. The Review Division confirmed the Board’s decision to disallow the worker’s claim.
Takeaway for Employers
A compensable claim for a mental disorder under BC’s Workers Compensation Act will not be accepted by WorkSafeBC if the disorder is caused by a decision of the employer relating to the worker’s employment, absent harassment or abuse. The manner of the employer’s communication to the worker is a factor – the communication cannot be abusive or threatening. In this case, the work events were decisions relating to the worker’s employment, and the supervisor’s communications to the worker did not rise to the level of being abusive or threatening.
If you have any questions about this decision, please contact one of the members of McCarthy Tétrault’s Labour & Employment team.