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Bill
14 – Workers Compensation Amendment Act, 2011
Bill
14, Workers Compensation Amendment Act received
Royal Assent on May 31, 2012. Bill 14 includes amendments to the Workers
Compensation Act in the following areas:
§ Consumer Price Index (CPI) adjustments
§ Calculation of long-term average earnings for
apprentices and learners
§ Mental stress.
The
consumer price index updating is housekeeping and reflects the 2011 CPI
adjustments contained in the Board minutes.
The
long-term average earnings for apprentices and learners will reflect the
greater of either the time of injury earnings, or the earnings in the
twelve month period preceding the injury. If there is a permanent
disability the average earnings will be determined using a qualified
person’s gross earnings.
Policies to Implement Bill 14
Amendments
In order to implement these changes, WorkSafeBC
must bring its compensation policies in line with the new legislation,
which takes effect July 1, 2012. The Policy and Regulation Division has
therefore developed discussion papers and draft policies, and is seeking stakeholder input by June 15, 2012.
The WorkSafeBC Board of Directors will consider stakeholder
feedback before making a decision on the proposed amendments.
Mental
Disorder
April 30, 2009, the B.C. Court
of Appeal released its decision in Plesner v. British Columbia (Hydro
and Power Authority), [2009] B.C.J. No. 856 (C.A.). This case
involved a constitutional challenge to the mental stress provisions found
in section 5.1 of the Workers Compensation Act, R.S.B.C. 1996, c.
492 (the Act) and Policy Item 13.30 (the Policy) of the Rehabilitation
Services and Claims Manual, Volume II (“RS&CM”).
The majority of the BC Court of
Appeal declared that portions of the Policy were to be of no force and
effect. The portions of the Policy that were struck as unconstitutional
were those that were used to, first, provide guidance on what qualifies
as a traumatic event and, second, state that only mental stress arising
from “severely emotionally disturbing” events was compensable.
In
addition to the changes made in Policy, Bill 14 now makes significant
changes to the criteria for acceptable claims under the Workers
Compensation Act for mental disorders. The changes will allow for the
acceptance of claims for a mental disorder that is predominately caused
by work. Policy to enact the amendment is being developed now.
The
amendments to Bill 14 from the version of the bill originally introduced
in the legislature in November 2011 include three significant items of
note:
§ The “mental stress” referred to in section 5.1
of the Workers Compensation Act (the Act) is now
referred to as “mental disorder.”
§ Section 5.1(1)(b) of the Act now requires
a mental disorder to be diagnosed by a psychiatrist or psychologist.
Previously the requirement was for diagnosis of a mental stress by a
physician or a psychologist.
§ Expansion of the scope of workers’ claims under
section 5.1(1) of the Act. The original version of Bill 14 created
a new sub-category of mental stress (now mental disorder) to include
work-related stressors, or a series of cumulative work-related stressors.
This sub-category has been revised in two ways. First, a mental disorder
must be “predominantly caused by” the work-related stressors, as opposed to
simply a reaction to the work-related stressors. Second, the work-related
stressors now specifically include both bullying and harassment
The Act provides that a mental stress
reaction is not compensable when it is caused by a decision of the
worker’s employer relating to the worker’s employment, such as a decision
to change the work to be performed or the working conditions, to
discipline the worker, or to terminate the employment.
What does this mean for employers?
Costs to employers will increase. The conservative
estimate from government is and increase to compensation costs only of
$18 to $20 million per year. Additional costs will be incurred in
administration, including difficult adjudications and appeals, and
medical costs. Currently there is no formal tracking with respect to the
wait list to be seen by a registered psychologist. Anecdotal reports
indicate that the wait list to see a specialist is between six months and
one year. General practitioners are not routinely able to make a proper
diagnosis.
Regulation and Policy will have to be extremely
clear in order to ensure appropriate cases are referred and compensated
appropriately.
Districts will need to review existing policy
and regulation regarding harassment to ensure compliance with WorkSafeBC
once they have finalized their new policy.
Isolating mental stress reactions or mental
health problems that are directly related to a work cause will be a
difficult exercise. Mental health issues often begin early in life
and are the result of an individual’s entire life history, not merely
work connections.
Data from the BC teachers’ long-term disability
program indicate that mental health problems are the largest category of
claims and have been increasing steadily. The Canadian Mental Health
Association (CMHA) Mental Health Works confirmed mental health issues
have surpassed heart disease as the fastest growing category of
disability costs.
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It’s
also important to note the comments of the Minister of Labour taken from
the Hansard Blues during debate on Bill 14 with respect to her
direction to WorkSafeBC:
§
WorkSafeBC
will work on a policy on bullying and harassment. There will be
stakeholder consultation
§
WorkSafeBC
will expand the definition of violence and require employers to have
formal prevention plans
§
WorkSafeBC
will develop a prevention toolkit
§
Workers’
compensation will be expanded to include diagnosed mental disorders
caused by significant work-related stressors, including bullying and
harassment.
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OH&S
Principles for Principals
This resource
document provides uniform advice on managing
Occupational Health & Safety requirements as described in Part 3 of
the Workers Compensation Act and the OH&S Regulations. The online version
also supports principals and vice principals in referring issues for
appropriate school district resolution where necessary. The resource
provides guidance and support, but it does not supercede any Board
policies regarding occupational health and safety
procedures/requirements. BCPSEA has a limited number of hard copy flip
books available — please contact Sue Ferguson
(suef@bcpsea.bc.ca, 604 730 4502).
Click
the image below to access the complete interactive online version.
Navigate the document by clicking on the index tabs on the left. There
are also links to other relevant sources. When another page of the flip
has more information the page number is posted and you can move to that
page by clicking on the number.
Domestic Violence in the Workplace
From
WorkSafeBC’s new online risk assessment tool for
preventing domestic violence in the workplace, www.ohstrainingbc.com:
§
Learn to recognize the signs of
domestic violence and assess any identified
risks, so you can take the appropriate action
§
Involve the joint health and safety
committee or health and safety representative
in risk assessment
§
Establish a workplace policy that
addresses domestic violence
§
Call WorkSafeBC prevention officers or
the police for guidance in developing risk
assessments or addressing known safety concerns
§
Provide information about community
resources and employee assistance
programs
§
Discuss the issue of domestic violence
at staff safety meetings
§
Encourage employees to come forward to
share their concerns privately.
WorkSafeBC’s
new domestic violence in the workplace tool
kit
for employers is available online at
www.worksafebc.com/domesticviolence. For more
information and resources on violence in the workplace, visit
WorkSafeBC’s
new violence prevention portal at
http://www2.worksafebc.com/Topics/Violence/Resources-DomesticViolence.asp
“OH&S Providers” Online Directory
WorkSafeBC has announced a new online
directory for individuals to make
contact with OH&S training providers in BC. .
Loss of Earnings Policy Consultation
WorkSafeBC has
produced a discussion paper on the issues raised by the April 26, 2012
Court of Appeal decision that found existing WorkSafeBC policy
inconsistant with the Workers Compensation Act. The proposed Loss
of Earnings Assessment Policy will remove the three criteria and the
definitions for occupation and skills, and clarify how a significant loss
of earnings is determined. The consultation period ends June 22, 2012.
The draft policy and discussion paper can be found here.
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