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BC Supreme Court decides workers' compensation bullying claim

On May 25, 2016, the Supreme Court of British Columbia rendered a decision in a workers' compensation case that is getting media attention in the Vancouver area. The Court sent the case back to the Workers' Compensation Appeal Tribunal ("WCAT") requiring that entity to reconsider the case. The case involves a claim made to WorkSafeBC for compensation arising out of bullying and harassment at work under s. 5.1 of the British Columbia Workers Compensation Act (the "Act").

A sales employee developed a progressive speech disorder (eventually diagnosed as amyotrophic lateral sclerosis or ALS) that caused slurred speech, but did not impact his cognitive function or ability to perform his job. His employer allowed him to continue to work using email and text to communicate. The worker alleges that his immediate supervisor made derogatory comments about the employee's intelligence, spoke to him condescendingly, called him a liar and sent him a racially offensive cartoon. 

The harassing treatment culminated in an offensive text message sent by the supervisor to the worker on Christmas 2013 in which the supervisor used a derogatory term for people with developmental disabilities as well as repeated profanity. 

According to the court's decision, after receiving the message, the employee never returned to work and experienced "headaches, poor focus, anger, humiliation, sadness, depressed mood and poor sleep." His treating physician diagnosed major depressive disorder.

The employee filed for workers' compensation under BC law for compensation for a work-related injury based on a mental disorder that arose after "traumatic events that constituted bullying and harassment." The claim was denied and on review by WCAT the denial was upheld, finding that the offensive email and other events were not traumatic events or significant work stressors. The review officer found that the receipt of the text message was not serious enough to be a "traumatic event." 

The Supreme Court reviews WCAT decisions for "patent unreasonableness," which has been interpreted to mean clear irrationality or bordering on the absurd. A mental disorder is defined under BC workers' compensation law as compensable if it is a reaction to a work-related traumatic event or a "significant work-related stressor, including bullying or harassment." WorkSafeBC's policy defines a traumatic event as an "emotionally shocking event" and conflict with a supervisor is a significant stressor if it involves "threatening or abusive" behavior. Other conditions must also be in place, including a DSM-V diagnosis from a recognized medical practitioner.

The Court sent the case back to WCAT for reconsideration, finding conclusions made by WCAT to be patently unreasonable, requiring fresh consideration on the merits. Notably, the Court also directed that the worker should be interviewed and assessed by a mental health professional if WCAT challenged the treating doctor's opinion, implying that it was inappropriate for the Vice-Chair at WCAT to prefer her own expertise of what a "significant workplace stressor" is rather than to ceding to the opinion of the worker's doctor, or requesting an independent medical evaluation.

Further developments in this case will be useful in helping define some of the terms used in evaluating workers compensation claims and the way that WorkSafeBC and WCAT process these claims, which are, historically speaking, still relatively new.

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