The landscape of workplace injury claims in Alberta has significantly transformed after the introduction of Bill 47, particularly concerning recognizing and handling psychological harm. While physical injuries often manifest in readily observable ways, psychological injuries, encompassing conditions such as stress, anxiety, and depression stemming from adverse workplace experiences, are frequently less tangible yet equally debilitating. These “invisible wounds” can profoundly impact an individual’s overall well-being, affecting their personal life, social interactions, and ability to maintain employment.

The legal framework governing these claims has been notably shaped by Bill 47 (Ensuring Safety and Cutting Red Tape Act, 2020), which introduced key amendments to the Workers’ Compensation Act. This comprehensive analysis delves into the intricate nature of workplace psychological injuries, thoroughly examines the ramifications of Bill 47, and provides crucial insights for both employees and employers navigating this complex legal terrain.

Understanding Workplace Psychological Injuries: More Than Just “Stress”

Workplace psychological injuries, often referred to as mental health injuries or mental stress claims, are not simply instances of everyday workplace stress. They represent diagnosable conditions arising from specific workplace stressors or a cumulative effect of negative workplace experiences. These stressors can manifest in various forms, including:

• Pervasive Harassment and Bullying: This encompasses persistent negative behaviour, intimidation tactics, verbal abuse, or threats that systematically undermine an individual’s psychological well-being and create a hostile work environment.
• Excessive Work Demands and Unrelenting Pressure: Unrealistic deadlines, an unmanageable workload, and constant pressure to perform beyond reasonable capacity can contribute to chronic stress, anxiety disorders, and burnout.
• Exposure to Traumatic Events: Employees in certain professions, such as first responders (police, firefighters, paramedics) and healthcare providers, may be directly or indirectly exposed to traumatic events that can precipitate post-traumatic stress disorder (PTSD) or other trauma-related conditions.
• Experiences of Unfair Treatment and Discrimination: Instances of discrimination or unfair treatment based on protected grounds under human rights legislation (e.g., race, gender, religion, disability) can inflict substantial psychological harm, leading to feelings of isolation, devaluation, and anxiety.

The Impact of Bill 47: A Shift in the Legal Landscape

Bill 47 introduced pivotal changes to Alberta’s Workers’ Compensation Act, as well as the Occupational Health and Safety Act, significantly impacting the assessment and adjudication of mental health claims. Key changes included:

The “Direct and Proximate Cause” Requirement:

This stricter test mandates that the psychological injury must be a direct and immediate consequence of a specific workplace event or a clearly defined series of events. This implies a more stringent causal link, requiring demonstrable evidence that the workplace occurrence was the primary and immediate cause of the resulting psychological harm.

Reduced Appeal Time:

The time limit to appeal a Workers’ Compensation Board (WCB) decision to the Appeals Commission was reduced from two years to one.

Removal of Employer Obligations:

Employers were no longer legally required to reinstate injured workers or contribute to their health benefits during their absence. Instead, a “duty to cooperate” was introduced, mandating employers and workers to facilitate early and safe return-to-work initiatives. Workers failing to cooperate may face reductions or suspensions of benefits.

Reinstating a Maximum Insurable Earnings Cap:

A maximum earnings cap was reinstated in 2021, limiting the compensation available to injured workers.

Discontinuation of Mandatory Cost-of-Living Adjustments:

Automatic adjustments based on the Alberta Consumer Price Index are no longer required. Adjustments may be made at the Workers Compensation Board’s discretion

The Exclusion of “Reasonable Management Action”:

A critical and often debated aspect of Bill 47 is the explicit exclusion of mental stress arising from an employer’s “reasonable management action.” This provision encompasses actions such as performance evaluations (even if negative), disciplinary measures taken in good faith, and legitimate adjustments to work assignments or operational procedures. This exclusion has been a source of legal contention due to its potential for subjective interpretation and the difficulty in definitively determining what constitutes “reasonable” action.

Emphasis on Diagnosable Conditions:

While not explicitly codified in the legislation, the practical application of the Workers’ Compensation Act following Bill 47 has placed a greater emphasis on diagnosable mental health conditions recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM). This reinforces the need for professional medical assessment and diagnosis in supporting claims for psychological injuries.

Changes to the Occupational Health and Safety Act (OHSA)

Narrowing the Definition of Unsafe Work:

The right to refuse unsafe work is limited to situations involving an “undue hazard,” defined as a serious and immediate threat. This change reduces protections for workers facing long-term hazards or systemic risks, such as those posed by COVID-19.

Weakened Joint Health and Safety Committees (JHSCs):

Bill 47 removes requirements for JHSCs on multi-employer worksites and allows employers to dominate these committees. The minimum standards for inspections, meetings, and other safety measures are also eliminated, reducing the committees’ efficacy.

Elimination of Mandatory Health and Safety Program Elements:

Employers with 20 or more workers must still implement safety programs, but mandatory program elements have been removed, providing employers with greater flexibility but less oversight.

Challenges in Establishing Causation and Proving Psychological Injuries

Establishing the validity of psychological injury claims within the workers’ compensation system presents inherent evidentiary challenges. The subjective nature of mental health conditions makes it difficult to provide purely objective, quantifiable evidence in the same way as with physical injuries. Such challenges include:

Demonstrating a Clear Causal Link:

Establishing a direct and proximate causal link between a specific workplace event or series of events and the reported psychological injury can be particularly complex. This is especially true when considering the potential influence of pre-existing conditions, personal stressors outside of the workplace, or the gradual accumulation of workplace stressors over time.

Gathering Sufficient and Compelling Evidence:

Gathering compelling evidence to support a mental health claim often relies heavily on subjective self-reporting from the affected employee, corroborated by professional medical assessments from psychiatrists, psychologists, or other qualified mental health professionals. This reliance on subjective accounts can introduce complexities in the evidentiary process.

The Influence of Pre-Existing Mental Health Conditions:

The presence of pre-existing mental health conditions can further complicate claims. It can be challenging to isolate the specific contribution of the workplace event or events to the exacerbation or worsening of the pre-existing condition, requiring careful assessment by medical professionals.

Guidance for Employees Seeking Compensation

For employees who believe they have suffered a workplace psychological injury, several crucial steps should be taken to protect their rights and pursue compensation:

Meticulous Documentation:

Maintain detailed records of all events believed to have contributed to the psychological injury. This includes keeping a journal or log with dates, times, specific descriptions of the incidents, and any witnesses present.

Prompt Medical Attention:

It is always prudent to seek professional medical attention from a qualified healthcare provider, such as a family physician, psychiatrist, or psychologist. Obtaining a formal diagnosis and establishing a documented medical record of the condition is vital for supporting a claim.

Formal Reporting to the Employer:

Report the injury to the employer as soon as reasonably possible, adhering to established company reporting procedures. This creates an official record of the incident within the workplace.

Filing a Claim with the WCB:

File a formal claim with the Workers’ Compensation Board (WCB) of Alberta. Be prepared to provide detailed information about the events leading to the injury, medical documentation, and any other relevant evidence.

Seeking Legal Counsel:

Consult with a lawyer specializing in workers’ compensation or employment law. Legal counsel can provide invaluable guidance throughout the claims process, ensuring that the employee’s rights are protected.

Obligations and Best Practices for Employers

Employers bear a significant legal and ethical responsibility to cultivate a safe and healthy work environment, which protects employees from psychological harm. Proactive measures are essential for prevention and effective management of these issues:

Proactive Prevention Strategies:

Implement clear policies and procedures to prevent workplace harassment, bullying, excessive workloads, and other known stressors. These policies should be clearly communicated to all employees and consistently enforced.

Comprehensive Training and Education:

Provide regular training and education to both employees and managers on recognizing and addressing potential workplace psychological hazards. This training should cover topics such as respectful communication, conflict resolution, stress management, and recognizing signs of mental distress.

Fostering a Supportive and Respectful Work Culture:

Cultivate a work environment characterized by open communication, mutual respect, and psychological safety. Employees should feel comfortable reporting concerns without fear of reprisal or negative consequences.

Prompt and Fair Handling of Complaints:

Establish clear procedures for reporting and investigating complaints of harassment, bullying, and other workplace stressors. Ensure that all complaints are taken seriously, thoroughly investigated in a timely manner, and addressed fairly and impartially.

Calgary and Strathmore Business Lawyers Advise Clients on Complex Employee Matters

Through their decades of experience, the labour and employment lawyers at Getz Collins and Associates advise on a variety of legal matters. From understanding workplace policies to just constructive dismissals, our team is here to help. Based in Calgary and Strathmore, Getz Collins and Associates proudly represents clients in all surrounding communities, including Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, and Hussar. To schedule a consultation, please contact us online or call 587-391-5600.