Psychological Injuries - background

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1 Psychological Injuries Policy Bully-Free Workplaces International Conference June 11-13, 2014 Psychological Injuries - background Injuries caused by exposure to workplace stress has received significant attention in recent years. Fall 2011, Board received a presentation on the compensability of stress, and areas of risk for constitutional challenge. Board directed staff to review this issue and provided recommendations. Staff conducted extensive research, and gathered internal and external legal opinions on risks and potential mitigation strategies. Workplaces International Conference 1

2 Psychological Injuries - background While each jurisdiction has its own unique approach to determine what is compensable, three categories of stress emerged; Acute onset: an acute response to a traumatic event. Cumulative onset: a response to multiple traumatic events. Involves multiple events that, while meeting the minimum definition of traumatic, did not result in an acute reaction; however, the accumulation of events over time resulted in the reaction to the final event causing a psychological injury. Gradual onset: an accumulation over time of a number of work related stressors that do not fit the definition of traumatic, or a significant work related stressor that has lasted for a long time and does not fit the definition of traumatic. Psychological Injuries Legislation Nova Scotia Workers Compensation Act Section 2(a) accident includes i. a willful and intentional act, not being the act of the worker claiming compensation, ii. a chance event occasioned by a physical or natural cause; or iii. disablement, including occupational disease, arising out of and in the course of employment; But does not include stress other than an acute reaction to a traumatic event. Workplaces International Conference 2

3 Psychological Injuries Legislation Federal Employees - GECA The Government Employees Compensation Act (GECA) operates to apply the provincial WCB law to federal employees. Section 2 of GECA provides: accident includes a willful and intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or a natural cause. Psychological Injuries Legislation All workers covered by workers compensation are eligible for compensation for acute onset/traumatic stress. Effectively a different definition of accident under the Nova Scotia Workers Compensation Act than under GECA. Only federal employees may claim compensation for gradual onset/chronic stress as the federal legislation does not expressly exclude chronic or gradual stress from the definition of accident. Workplaces International Conference 3

4 Psychological Injuries Consultation Exclusions in both Policies Mental or physical conditions are not compensable when caused by labour relation issues or routine employment actions such as: A decision to change the worker s working conditions A decision to discipline the worker A decision to terminate the worker s employment Interpersonal relationships and conflicts Performance Management Work evaluation Scope of Impact Between WCB received; 107 GECA claims (18 approved, 17%) 345 claims (42 approved 12%) under the Provincial legislation. 112,000 total claims (28,700 approved time loss, 26%). The magnitude of stress claims represents less than 0.5% of total claims volume. Workplaces International Conference 4

5 Psychological Injuries Consultation April 24 th policy consultation on Compensability of Workplace Stress was issued for feedback. Paper recommended two specific areas of policy development; a) Creation of new Provincial policy on stress; Current definition of accident under the Provincial legislation, Section 2(a) (iii) limits compensable stress. b) Revisions to GECA Policy 1.3.6; Modernize language around use of examples for traumatic event and wording of unusual and excessive as defined in the current policy. Psychological Injuries Policy Consultation closed on October 31, Significant feedback was received and based on feedback, staff provided policy options for the Board to consider. The Board accepted the recommendations and approved the final policy revision in March Workplaces International Conference 5

6 Significant issues raised via consultation Concerns around the use of the words cumulative traumatic events and the classification as a separate type of stress. Bases of assessing traumatic event Objectively and reasonably assessed. Citing extreme workplace harassment as an example traumatic event. Psychological Injury Policy Policy Statement The WCB will consider claims for compensation under the Nova Scotia Workers Compensation Act when the condition results from stress that is a reaction to one or more Traumatic Events and the specified criteria outlined below are satisfied. Traumatic Event(s) Is defined as a direct personal experience of an event or directly witnessing an event that is: Sudden; Frightening or shocking; Having a specific time and place; and Involving actual or threatened death or serious injury to oneself or others or threat to one s physical integrity. Workplaces International Conference 6

7 Psychological Injury Policy Criteria for Traumatic Onset Stress Claims for psychiatric or psychological injuries resulting from Traumatic Events may be compensable if all of the following four criteria are satisfied: i. There must be one or more Traumatic Event(s) as defined herein; ii. The Traumatic Event(s) must arise out of and in the course of employment; iii. The response to the Traumatic Event(s) has caused the worker to suffer from a mental or physical condition that is described in the DSM; and iv. The condition is diagnosed in accordance with the DSM and by a health care provider being either a psychiatrist or a clinically trained psychologist registered with the Nova Scotia Board of Examiners in Psychology. Thank You Questions? Workplaces International Conference 7

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