Should you apply for workers comp?

The Workers Compensation Board of Manitoba, established in 1917, is an agency that operates “at arm’s length” from the government of Manitoba. It gives benefits and supports to people who’ve been injured at work. These can include replacement of lost wages, health care (including rehabilitation, counselling, and medications), and, in extreme situations, retraining.

If you’ve been harmed by sexual harassment at work, you might think the WCB will help you.

• Maybe after you were harassed, you took time off work and so lost income.
• Maybe the harassment damaged your mental health, and you ended up needing to spend money on medication for anxiety or depression.
• Maybe the harassment had such an effect on you that you had to leave a male-dominated industry and ended up needing to retrain for a new type of work in a different field. 

Those are the kinds of expenses—replacement of lost wages, medication costs, retraining costs—that the WCB normally does reimburse.

And so it might sound like a good idea to file a claim with the WCB.

But we need to warn you: The WCB is very unlikely to help you. 

The WCB is not going to say, “Yes, you were harassed, and you were punished for reporting it. Here is some money to make up for the pay you lost.” It’s not going to say, “We agree with you that your industry is unfriendly to people like you, and that it makes sense for you to retrain for a different job where you’re less likely to be harassed. We will fund your retraining.”

All the WCB can do is to give you benefits and supports if you have suffered a physical injury at work (rare in cases of sexual harassment) or psychological injury (less rare in sexual harassment cases, but hard to prove). It will only help you if the harm you’ve suffered fits into that category.

Historically, the WCB has mostly handled claims related to physical injuries suffered by workers in male-dominated industries like construction and manufacturing, and in uniform occupations like policing and firefighting. If you slip at work and break your ankle, or are struck by a falling object, or are injured in a fire or explosion: that is the kind of situation the WCB was designed for, and has a lot of experience handling.

The WCB has less experience with mental health harms. It requires you to prove that your injury would not have occurred but for work-related factors. Work doesn’t have to be the only reason but it must be at least part of the reason. 

Realistically, it’s likely that, if you apply for benefits because of a psychological injury, you’ll be turned down. If you want to pursue the claim after being denied, you’ll need to be prepared to go through an appeal process. Appealing can take a long time, and of the few appeals that are heard, many are denied.

Psychological injury claims

The WCB awards benefits due to the injury you sustained, which in your case would be damaged mental health. This could be a diagnosis of conditions like depression, post-traumatic stress disorder, or anxiety.

Sexual harassment in the workplace can cause psychological injuries. The WCB recognises that psychological injuries can occur from:

• someone intentionally harming you
• a traumatic event, or cumulation of traumatic events, related to your work or workplace

According to WCB policy, traumatic events typically involve direct exposure to actual or threatened violence or harm and cause an acute reaction. An acute reaction means that the traumatic event causes a severe outcome. It does not necessarily have to happen right after the event.

The WCB considers traumatic events to be sudden, unexpected, or shocking. A cumulative series of traumatic events can result in a psychological injury. The traumatic event or events leading to a psychological injury does not have to be identified in the Diagnostic and Statistical Manual of Mental Disorders-5 unless you are claiming that post-traumatic stress disorder is presumed to be a personal injury from an accident arising out of and in the course of employment.

Pros and cons of going to the WCB

Will the WCB accept my application?

• To be eligible for benefits and services under the WCB process, you must be a “worker” employed in a business or industry that is covered by the Workers Compensation Act.
• If you aren’t sure whether you’re covered by the WCB, you can call (1-855-954-4321), or seek advice from your union, a lawyer, or the Worker Advisor Office.
• The WCB will only accept your claim if the harassment arose “out of and in the course of employment.” Meaning harassment only counts if it takes place at work, during your work hours (or within a reasonable period before or after work), and while you are performing your work duties. If you live on your employer’s property, harassment that takes place outside work hours may still be covered. Similarly, if your work requires you to go to different places, you may be covered while travelling and at the different locations.
• The WCB won’t cover every kind of mental stress that arises at work. If you develop a mental health condition caused by your employer making changes to your shifts or other working conditions, for example, or firing you, or due to interpersonal conflicts that don’t involve harassment, you aren’t eligible to file a claim.
• As a general principle, the law says that you can’t have the same issue decided twice in two different places. If you start a case for the same problem in more than one forum, it’s possible that the decision-maker in one of them will wait until the case has been decided in the other forum or dismiss it altogether. People often try the WCB first. However, it’s best to speak with a lawyer about your options, as the facts of your case may allow you to approach more than one forum. See You’re being sexually harassed at work. What are your options?

Special situations

Contact the WCB (1-855-954-4321) to learn about the rules that apply if you are in one of these categories:

• non-resident worker
• undocumented or don’t have a work permit
• foreign agricultural worker

The WCB will look for proof of these three things when it reviews your psychological injury claim:

1. The sexual harassment you experienced was the willful and intentional act of another person, or an acute reaction to a traumatic event or series of events. According to WCB policy, traumatic events are usually “sudden, unexpected, or shocking” and cause an acute reaction. Traumatic events typically involve direct exposure to actual or threatened violence or harm.

2. The willful or intentional act or traumatic event(s) occurred in connection with your employment. You suffered a psychological injury. If your claim is for post-traumatic stress disorder, and you are claiming that it is presumed to be a personal injury from an accident arising out of and in the course of employment under subsection 4(5.8) of the act, it must be diagnosed by a physician or psychologist according to the Diagnostic and Statistical Manual of Mental Disorders-5.

3. An indication that “but for” the act or traumatic event or events the psychological injury would not have occurred.

Legal help

You may be able to get help from a lawyer for free. Here are some places that offer free or lower-cost legal services:

• The Worker Advisor Office is an independent government agency that provides free and confidential services about workplace injuries and compensation to workers. This office can provide information, advice, and help with representation to you throughout the WCB process. It also has an extensive network of supports for injured workers and may be able to direct you to other organizations that can help.
• The Workplace Sexual Harassment Project of the Community Legal Education Association has a hotline staffed by a lawyer who can provide legal information, advice, and referrals.
• The Community Legal Education Association also offers a Law Phone-In and Lawyer Referral Program. The two lawyers on staff offer general legal information and advice. They can refer you to a lawyer, and the first interview (up to 30 minutes) is free.
• The Legal Help Centre provides help to people who are not eligible for legal aid and whose gross family income is between $50,000 and $75,000, depending on family size. It offers legal information, summary advice, or referrals via telephone appointments.
• JusticeNet is a not-for-profit service for those whose income is too high to qualify for legal aid but too low to afford regular legal fees. To qualify you must have a net family income under $90,000 and be experiencing financial difficulties. Participating lawyers’ and paralegals’ reduced rates vary depending on your family size and income.
• Your workplace union, association, or Employee Assistance Program may be able to help you find legal services or cover part of your legal fees.

For advice on hiring a lawyer, see How to hire and work with a lawyer.

Social and health supports

• Manitoba 211: This community and social services helpline is available 24 hours a day by phone (211) or online. It can put you in touch with more than 4,000 services, supports, programs, and more.

Applying

First, you must decide if filing a claim with the WCB is the right choice for you. Because there is a very high turndown rate for claims involving sexual harassment, there might be other forums—for example, the Manitoba Human Rights Commission or civil court—where you could have a better chance of success.

Report your injury to your employer, either by using their own internal form or the Notice of Injury to Employer form from the WCB. Next, you need to go to your health care professional and receive whatever treatment is required. Your health care provider will fill out and provide a form to the WCB about your injury and treatment.

Then report your psychological injury to the WCB. You’ll find more information about work-related psychological injuries here, and more about the process to file a claim here. You can report by phone (1-855-954-4321) or submit the Worker Incident Report form directly online or mail it to:

Workers Compensation Board of Manitoba
333 Broadway
Winnipeg, MB R3C 4W3

You must file your application within one year of the injury. If you are already past the one-year deadline, there are circumstances where the WCB extends this deadline if not doing so would result in an “injustice.”

Once you’ve filed a claim, the WCB will send you a claim number and the name and contact number of the adjudicator looking after your claim. This person may guide you through the next steps.

Your employer’s report

Give a copy of the Notice of Injury to Employer form to your employer, or fill out your workplace’s internal reporting form. Your employer must complete the Employer Incident Report form within five days of your injury or when you report your injury to them. This will include information about your job, your earnings, and your psychological injury. They must submit the form to the WCB and give you a copy. They may disagree with your claim when describing your injury themselves.

After the forms are filed

Once all of the forms have been submitted, an adjudicator will consider your claim. A WCB adjudicator might contact you to ask about the details. Many claims are disallowed at this stage.

An independent health examination

The WCB may ask you to undergo an independent health examination if it thinks more medical information is necessary to make a decision in your case.

The independent health professional may not agree with your health professional’s diagnosis. If so, the WCB may use that opinion as a reason to deny you benefits.

If your claim is approved

See the Benefits Guide FAQ for a detailed outline of what you might be eligible to receive from the WCB if your claim has been successful. This includes:

• health care benefits like therapy and prescription drugs
• money to replace income you’ve lost due to your injury
• retraining, if necessary

Returning to work

A case manager at the WCB will work with you, your employer, your health professional, and your union representative or worker advocate to develop a return-to-work plan. This will set out the steps you’ll need to take in order to resume working. It might involve modified or alternative duties.

If you are no longer able to do your old job, a vocational rehabilitation consultant will be involved to look for alternatives.

The WCB’s Worker Handbook outlines the return-to-work process.

If your claim is turned down

It’s very likely that your WCB claim for psychological injury due to sexual harassment will be denied. A high number of these claims are dismissed at an early stage in the process, often after only brief consideration. Appealing is lengthy and seldom successful.

If you are unhappy with the decision, the first thing you can do is to discuss your case with the adjudicator. You can indicate any new information and explain why you think your claim should have been approved. Occasionally, when given more documents or information, the WCB changes its decision.

If you are not successful at this stage, you can request a file review at the WCB Review Office by filling out the Request for Review form.

There is no time limit to apply. You can also ask for a copy of your claim file at any time in the process by asking your adjudicator, or by calling the WCB’s file access department at 1-204-954-4453. You can also call the Worker Advisor Office to help you with your claim.

This will be a written process only. A review officer will make the decision. They may ask you or your employer to send in more information before they decide. The WCB’s Review Office FAQ document outlines the review process thoroughly.

Typically, decisions are made within 60 days, though they can take up to eight weeks. You will receive the decision in writing. If you disagree with it and you feel you have new information that might change the decision, you have the option of making a final appeal to the Appeal Commission.

The Appeal Commission

The Appeal Commission is the final level of appeal if you disagree with a WCB decision. It’s independent from the WCB but applies WCB policies in its decisions. You must have already gone through the WCB appeal process to reach the Appeal Commission. There is no time limit for filing an appeal.

The Appeal Commission process usually includes an in-person hearing, but sometimes is handled through written submissions only. You can request a certain format, but the commission will make the final decision. A panel of three commissioners will be the decision-makers.

There are two types of appeals. First, you can appeal the process of the decision (for example, that you weren’t given a fair opportunity to provide information or to respond to things that were said by someone else). Second, you can appeal the basis of the decision itself, by arguing the decision was incorrect on the facts (for example, because the medical evidence established that you had a psychological injury).

You start your appeal by submitting a Worker Appeal of Claims Decision form.

For a thorough explanation of all the next steps, see the Appeal Commission’s web page on the appeal process and this FAQ page.

In most of its cases, the Appeal Commission makes its decisions within 60 days after the hearing has finished. You’ll receive a copy in writing.

Appeal Commission decisions are final—there’s no other appeal. You may request a reconsideration, but these requests are rarely granted. You may pursue a judicial review of the decision, which is a limited and technical review through the civil court system. If you are considering this, you should discuss your case with a lawyer to review your options. See How to find and work with a lawyer.

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