Should you apply for workers comp?

The Workers’ Compensation Board of Nova Scotia, created in 1917, is an independent Nova Scotia government agency that 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 doesn’t investigate or adjudicate workplace sexual harassment claims. It’s 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 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 mental stress (less rare in sexual harassment cases, but hard to prove). It will only help you if the harm you’ve suffered fits into one of those two categories.

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.

But the Nova Scotia Workers’ Compensation Act only recognizes claims for psychological injuries that are the result of “an acute reaction to a traumatic event.” Realistically, it’s likely that if you apply for psychological injury benefits, 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, which can take a long time.

However, in 2019 the Workers’ Compensation Appeals Tribunal ruled that the WSB’s failure to recognize gradual onset stress injuries as accidents is discriminatory. So there’s hope that the Workers’ Compensation Act will be revised to be more inclusive.

Psychological injury claims

The WCB currently does not cover chronic stress injuries like sexual harassment. It’s possible you might be able to make a claim for traumatic onset stress, caused by involvement in or witnessing a sudden frightening or shocking event that involves actual or threatened death or serious physical injury.

A claim requires a diagnosis by a psychiatrist or a psychologist based on the Diagnostic and Statistical Manual of Mental Disorders-5.

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 covered by the Workers’ Compensation Act. About 74% of workers in Nova Scotia are covered by the WCB.
• If you aren’t sure whether you’re covered by the WCB, you can call (1-800-870-3331) or seek advice from the Office of the Worker Counsellor.
• 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, you aren’t eligible to file a claim.
• If you are diagnosed with PTSD, you have a year to file a claim with the WCB.
• As a general principle, the law says 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 the decision-maker in one of them will wait until the case has been decided in the other forum, or reject 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.

Special situations

Contact the WCB (1-800-870-3331) to learn about the rules that apply if you are in one of these categories:

• independent contractor
• non-resident worker
• undocumented or don’t have a work permit
• foreign agricultural worker
• work for an employer with fewer than three employees
• business owner or partner

What to include in your WCB claim

If you decide to file a claim, you need to prove you experienced trauma. The WCB’s definition of traumatic is a “sudden, frightening, or shocking” event that happened at a specific place and time, and involved actual or threatened physical injury or death.

In your claim you will have to show:

• The injury happened at work, while you were performing work duties.
• You suffered a psychological injury as described in the Diagnostic and Statistical Manual of Mental Disorders-5.
• Your condition has been diagnosed by a psychiatrist or psychologist.

If the WCB investigates your claim, it will consider whether the injury you experienced was “objectively” traumatic. This means the incident must generally be considered as traumatic by a “reasonable person.” Unfortunately, this overlooks how the harassment has been traumatic for you. Being told your experience was something a ”reasonable person” wouldn’t think of traumatic can affect you in a variety of ways. It’s a good idea to connect with mental health supports to help you through this difficult situation.

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:

• You can contact legally trained counsellors through Legal Info Nova Scotia who provide free, practical information about Nova Scotia law. Its Safe at Work program offers up to four hours of free legal advice for those who’ve experienced workplace sexual harassment. It also provides lawyer referral services for a small fee. The Lawyer Referral Service can put you in contact with a lawyer who will offer a 30-minute initial consultation for a fee of no more than $20.
• If your claim was denied and you want to pursue an appeal, the Workers’ Advisers Program offers free legal services for eligible applicants. The government-funded WAP is independent from the WCB. It can help you appeal a WCB or Workers’ Compensation Appeals Tribunal decision. It will assess your case and only represent you if an adviser thinks you are likely to win.
• The Office of the Worker Counsellor, a project of the Nova Scotia Federation of Labour, provides assistance to people dealing with the workers compensation system in the province.
• Nova Scotia Legal Aid offers low-income individuals advice and support but not representation for WCB-related issues.
• 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’ 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.

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

Social and health supports

• 211 Nova Scotia: This community and social services helpline is available 24 hours a day (211 or 1-855-466-4994) or online. It can put you in touch with over 5,000 services, supports, programs, and more.

Applying

First, you must decide if filing a claim with the WCB is the right choice for you. Because the definition of psychological injury is very narrow, there might be other forums—for example, the Nova Scotia Human Rights Commission or civil court—where you could have a better chance of success.

If you do choose to go to the WCB, you’ll find more information about the application process here.

Once the WCB receives an accident report or appropriate health-care provider form indicating an injury has occurred, you will be assigned a claim number. A case worker then gathers all the information and supporting documentation from you, your employer, and your health-care provider.

Your employer’s report

You and your employer must submit a WCB Injury Report, which you complete together. The WCB must receive the report within five business days after the injury was reported to the employer.

A health professional’s report

In cases of psychological injury, a psychologist or psychiatrist must fill out an assessment form. This asks for information about your diagnosis, your ability to function in your job, and your treatment plan.

After the forms are filed

The WCB may request that a physician employed by the board provide an opinion if there is conflicting medical evidence in your claim.

The medical advisor will review your medical file and interview you about your psychological injury and medical history. They may also conduct additional tests.

Once all the forms and supporting documents are submitted, your claim will be reviewed and a decision about your eligibility for benefits made. Many claims for psychological injury are denied at this stage.

If your claim is approved

See WCB Claim Benefits and Services for a detailed outline of what you might be eligible to receive from the WCB if your claim is 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

The WCB’s focus is on trying to get you back into the workplace. Your health professional is key to this step. The WCB will also contact your employer to develop a suitable return-to-work plan. In the case of sexual harassment, this might include arranging for you to work at a different location from the harasser.

Your case worker will help you, your health-care provider, and your employer develop a return-to-work plan. A return-to-work assistant may be assigned to work with the case worker. The return-to-work plan will set out the steps you’ll need to take in order to resume your job.

Because your return-to-work plan will be guided by what your health professional says about your health, it’s a good idea to tell them about any concerns you have. They might be able to advocate on your behalf and request suitable recommendations.

The plan may also set out any permanent accommodations you might require. Your employer has a duty to accommodate your early and safe return to work, but only to the point where it would create undue hardship for them.

If your claim is turned down

It’s very likely your WCB claim for psychological injury 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.

If you disagree with a decision made by the WCB, you first should discuss this with your case worker. After that, you can file a Notice of Appeal to Hearing Officer within 30 days of receiving the written decision. Your appeal is not for a reconsideration; it is to review oversights or errors in the decision.

You can complete and file the form online. If you are submitting a paper copy, mail it and all documentation to:

WCB Internal Appeals Department, WCB of Nova Scotia
P.O. Box 1150
Halifax, NS B3J 2Y2

Once you submit this form, your appeal will be reviewed by a hearing officer, who will decide whether the best way to handle your appeal is by a paper review or by an oral hearing.

For more information, see A Guide to the WCB Appeals Process.

When the paper review or oral hearing is complete, the hearing officer will issue a written decision within 60 days. This is the final decision of the WCB.

If you aren’t successful, you can file an appeal to the Workers’ Compensation Appeals Tribunal.

The Workers’ Compensation Appeals Tribunal

The Workers’ Compensation Appeals Tribunal (WCAT) is the final level of appeal if you disagree with a WCB decision. It is independent from the WCB but applies WCB policies in its decisions. While the WCB is unlikely to approve your claim for psychological injury, the WCAT accepts appeals for such cases.

You must have already gone through an appeal before a WCB hearing officer before you can appeal to the WCAT. You have 30 days from the date you are notified of the hearing officer’s decision to file an appeal. It is up to the appeal commissioner to decide whether the hearing will take place in writing or in person.

To start the appeal process, you must file a Notice of Appeal form, explaining why you are appealing and including a copy of the hearing officer’s decision.

Only specific errors or oversights in the claim decision will be reviewed by the tribunal. Submit your Notice of Appeal form to:

Workers’ Compensation Appeals Tribunal
1465 Brenton Street
Suite 201
Halifax, NS B3J 3T4

For a thorough explanation of all the next steps, see the WCAT outline of the appeal process.

To get help appealing a decision at this level, or for legal advice following a denied claim with WCB, contact the Workers’ Advisers Program, a legal clinic offering services for injured workers who have been denied WCB benefits. In 2021, the program represented 71% of WCAT appeal cases.

In 2021 about 25% of WCAT decisions took six months and 50% took more than 11 months to resolve. Almost half of all WCAT appeals were at least partly allowed.

You can only appeal a WCAT decision to the Nova Scotia Court of Appeal on a question of law or a question about the jurisdiction of the WCAT. You need the Court of Appeal’s permission to appeal, which you must seek within 30 days of receiving WCAT’s written decision. If you are considering this, you should contact the Workers’ Advisers Program or discuss your case with a lawyer to review your options. See How to hire and work with a lawyer.

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