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Despite New Rules, Mentally Injured and Bullied Workers Still Disadvantaged: Critics

Concerns raised that laws passed to fix BC's workers' compensation system miss the point.

By Tom Sandborn, 26 Jul 2012, TheTyee.ca

Worker

New regulations on work-related mental disorders came into effect at WorkSafeBC on July 1.

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Recent changes to the way B.C.'s workers' compensation board addresses claims involving mental disorder or trauma, as well as proposed changes to policies around harassment and bullying in the workplace, were intended to alleviate what some British Columbians saw as a broken system.

But some critics say the reforms are inadequate, and in some cases may make things worse for injured, bullied and harassed workers.

New regulations on work-related mental disorders came into effect at WorkSafeBC on July 1, and further rules around preventing harassment and bullying in B.C. workplaces are in the works.

The changes are the legacy of Peter Plesner, an injured BC Hydro worker who fought for more than half a decade to get the workers' compensation system to recognize his work-related post traumatic stress disorder (PTSD).

Psychologically damaged and traumatized by a workplace safety failure involving a broken natural gas pipeline and workplace evacuation in 2003, Plesner was unable to work.

Despite the assessment of his family doctor that he was suffering from PTSD, Plesner was denied compensation and spent six years working through WorkSafeBC appeals procedures and the provincial courts before a ruling by the BC Court of Appeals held that the language that WorkSafeBC relied upon in denying him benefits was unconstitutional.

The province passed legislation to address the defeat in court, Bill 14, earlier this year. It came into effect on July 1.

What's changed

Bill 14 creates new definitions for work-related "mental disorders" that can be compensated in B.C., and opens the door for new policies that will see some workers who suffer workplace harassment and bullying allowed to claim for compensation.

The bill amends the language the appeal court struck down as breaching Plesner's rights under Section 15 of the Canadian Charter of Rights, which guarantees equal protection of the law to all. The old law, the court ruled, imposed more stringent conditions on recognizing mental trauma than it did on recognizing physical damage done at work, subjecting Plesner and others who suffered PTSD from work-related events to discrimination.

The old law allowed compensation for workplace mental stress "only if the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment," while the new language passed this year allows compensation for "a reaction to one or more traumatic events arising out of and in the course of the worker's employment; or is predominantly caused by 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."

Bill 14 also raises the bar for approving claims by requiring that any compensable "mental disorder" be diagnosed by a psychiatrist or psychologist rather than by a general practice MD, which was allowed under the pre-Bill 14 regime.

Responding to the passage of Bill 14 on its website, WorkSafeBC announced the launch of a public consultation on proposed new regulations to prevent harassment and bullying at B.C. workplaces. Draft language for new regulations is posted on the website and workers, employers and taxpayers may provide input until Sept. 28.

Changes discriminate against psychological injuries: union critic

Responding to the bill, some worker advocates told The Tyee there is less to the reforms than meets the eye, and suggested that they may leave workers who experience workplace mental stress, harassment and bullying still unprotected.

Michelle Laurie, president of Local 258 of the International Brotherhood of Electrical Workers, was involved in the Plesner case during its early progress through the Workers' Compensation Board (now WorkSafeBC) appeals process, and followed the resulting legislation and policy changes with interest. 
    

"The Plesner case was a win," she said over the phone in mid-July, "but even after the court ruled, it took another two years for him to get the compensation he deserved for the psychological injury he had suffered, and that was with strong union backing and a supportive family. The WorkSafeBC process damaged him and made his life more difficult."
    

Although she says the Plesner case was "hugely important," Laurie cautions that the legislation rolled out by the government in response is not a cure-all for what ails WorkSafeBC and its treatment of those with work-related psychological injuries.

"The changes being brought in under Bill 14 -- the legacy of the Plesner case -- can look like the system is opening up a door for injured workers to get compensation, but if you read it carefully, you see the discrimination against psychologically injured workers," she said.

"For any other physical injury, the work cause need only be 'significant,' and if there were no disabilities due to the injury before the work accident/exposure, work is considered to be the cause. For psychological injury, however, the work related cause must be 'predominant,' which means the board can delve into the worker's private life and dig up any other stressors to blame for the condition, regardless of whether those issues were in any way disabling prior to the workplace stressors. This is just plain discriminatory."

Laurie said the requirement that a mental condition be diagnosed by a psychiatrist or psychologist, rather than a family doctor as it has worked in the past, is problematic.

"It takes a long time to get an appointment with a psychiatrist, even in urban centres, and even longer if the injured worker lives outside of the Lower Mainland. People should be outraged about how workers with psychological injuries are being treated."

Privacy risks raised

Sarah O'Leary, an experienced legal advocate for injured workers and co-author, with Stan Guenther and Janet Patterson, of a scathing critique of the changes brought in by the Liberals in 2002 called "Insult to Injury," shares many of Laurie's reservations about the way the B.C. government responded to their courtroom defeat in the Plesner case.

"It infuriates me," she told The Tyee on July 11. "They are saying, in effect, that they took away everything before and now [they'll] give us back a few crumbs."

O'Leary said that the BC Liberals brought in radical and hurtful changes to WorkSafeBC legislation early in their mandate and that the reforms in Bill 14 do not begin to address the damage done by those changes.

She is particularly critical of the new requirement that a workplace trauma must be determined to be the "predominant cause" of a mental disorder for it to be compensated by WorkSafeBC, suggesting this language could lead to invasions of worker privacy. She said the "predominant cause" language was added to the bill because of energetic lobbying by B.C. employers intent on controlling their costs from WorkSafeBC assessments.

"B.C. will be the only jurisdiction I am aware of that uses this language," she said.

An additional problem in O'Leary's view is that the new legislation, like the changes brought in by the BC Liberals in 2002, refuses to recognize trauma caused by discipline procedures or a labour dispute as compensable injury.

"Stress created by labour relations problems is explicitly excluded," said O'Leary. "All this opens the door to abuses and requires case managers to pry into non-work stressors in the worker’s life."

WorkSafeBC consulting 'widely': spokesperson

Susan Hynes, director of compensation and assessments policy for WorkSafeBC spoke with The Tyee on July 17 about Bill 14 and the flaws that critics suggest would mark its implementation.

Responding to concerns about the new requirement of a diagnosis by a psychiatrist or psychologist for compensation imposing delays on traumatized workers, Hynes said that WorkSafeBC was arranging contracts with psychologists that would expedite applications, with a 10-day turnaround for files once an injured worker is seen.

Hynes said that her organization consulted widely on the implementation of the Bill 14 inspired changes, and was currently consulting about the new regulations and a tool kit designed to reduce workplace bullying and harassment.

She acknowledged that WorkSafeBC heard a lot from workers and advocates criticizing the new "predominant cause" language, and that employer feedback focused on concerns with possible increases in claims and with questions about the new bullying and harassment policies.

Hynes said that employer concern about the new legislation leading to higher numbers of claims for mental disorders was particularly high in the health care and social service sector, which already accounts for 25 to 26 per cent of all current claims under that category. WorkSafeBC accepted 423 such claims in 2011, and expects that around 1,800 claims will be filed this year under the new regulations.

"It is great that we're working together on these issues," she said, "looking both at compensation and prevention."

Asked if WorkSafeBC had consulted with feminist and gay rights groups who've worked to give issues of harassment and bullying a higher profile, Hynes said her organization was consulting widely on the new regulations, speaking to unions and employer groups and with Bully Free BC.  [Tyee]

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