Should you apply for workers comp?

The Workers’ Compensation Board, created in 1918, is an independent organization financed by employers 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 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 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, which can be hard to prove). It will only help you if the harm you’ve suffered fits into one of those two categories. And if your employer disputes your claim, which it probably will, proving your case before the WCB will be harder.

Historically, the WCB has mostly handled claims related to physical injuries suffered by workers in male-dominated fields like construction, manufacturing, and 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. It has less experience with mental health claims, which it classifies as psychological injuries.

If you apply for psychological injury benefits, you may 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 requires a diagnosis of conditions described in the Diagnostic and Statistical Manual of Mental Disorders-5, like depression, post-traumatic stress disorder, adjustment disorder, or anxiety. 

There are two categories of mental health injuries that might be caused by sexual harassment in the workplace.

Chronic onset psychological injuries or stress develop over time from ongoing work-related stressors. Being repeatedly harassed by a co-worker might lead to this type of injury. 

Traumatic onset psychological injury or stress results from a specific traumatic event, such as harassment that includes physical violence, the threat of physical violence, or a life-threatening situation. The incident itself is the source of the trauma. These claims are often based on a single traumatic event, but the WCB can also consider multiple incidents if the cumulative impact is traumatic.

The WSB has fact sheets on bullying and harassment and psychological injuries claims.

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. About 92% of workers in Alberta are covered by the WCB.
• If you aren’t sure whether you’re covered by the WCB, you can call (1-866-922-9221), or seek advice from your union, a lawyer, or the Advisor Office.  
• The WCB will only accept your claim if the harassment took place in the course of your 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 How to find and work with a lawyer.

Special situations

Contact the WCB (1-866-922-9221) to learn about the rules that apply if you are in one of these categories:

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

The WCB will look for proof of these five things when it reviews your chronic onset psychological injury or stress claim:

1. That you experienced sexual harassment during the course of your employment that gave rise to a psychological injury.

2. That you have a confirmed diagnosis that is recognized by the Diagnostic and Statistical Manual of Mental Disorders–5. Some examples include acute stress disorder, post-traumatic stress disorder, anxiety, or depression.

3. That work-related stressors or sexual harassment is the predominant—or chief—cause of your psychological injury.

4. There is an indication that the work-related stressors or sexual harassment is “excessive and unusual.” Though no amount of sexual harassment should be considered “acceptable,” the WCB will still have to consider the “excessive or unusual” element of the test for chronic onset psychological injury or stress.

5. There is objective confirmation of the events, such as emails, texts, or witness statements.

The WCB will look for proof of these four things when it reviews your traumatic onset psychological injury or stress claim:

1. That you have experienced a psychological injury that arises from a single traumatic work-related event or a cumulative series of traumatic work-related events. The WCB defines a traumatic event as “specific, sudden, frightening or shocking; and/or an actual or threatened death or serious injury to oneself or others or threat to one’s physical integrity.” This could mean violence was involved. It could also be related to workloads or interpersonal events that are “excessive and unusual.”

2. That you suffered a psychological injury. This requires a diagnosis that is recognized by the Diagnostic and Statistical Manual of Mental Disorders-5. Some examples: acute stress disorder, post-traumatic stress disorder, anxiety or depression.

3. There is an indication that the work-related stressors or sexual harassment is “excessive and unusual.” Though no amount of sexual harassment should be considered “acceptable,” the WCB will still have to consider the “excessive or unusual” element of the test for chronic onset psychological injury or stress.

4. There is objective confirmation of the events, such as emails, texts, or witness statements.

The WCB will consider whether the harassment you faced was “objectively” traumatic. This means that the incident would have to be generally considered as traumatic by the “average worker” or “reasonable observer.” Unfortunately, this overlooks how the sexual harassment has been traumatic for you. Being told that the harassment you experienced was something that the “average worker” wouldn’t think of as traumatic can affect you in a variety of ways. It’s a good idea to connect with mental health supports, which can 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 less expensive legal services:

• The 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 appeals process.
• At the Women’s Centre of Calgary female volunteer lawyers offer free legal advice clinics.
• Calgary Legal Guidance’s Sahwoo mohkaak tsi ma taas clinic provides Indigenous community members free legal advice on a variety of areas, including employment law. It may be able to offer free legal representation.
• Edmonton Community Legal Centre offers free legal advice and help to low-income individuals through its Civil Law program.
• You can get a consultation with a lawyer through the Lawyer Referral Service through the Law Society of Alberta. The first half hour is free. Request a referral online or by phone (1-800-661-1095). 
• 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 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 or cover part of your legal fees.

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

Social and health supports

• Alberta 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 thousands of 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 high turndown rate for claims involving psychological injury due to sexual harassment, there might be other forums—for example, the Alberta 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 work-related mental stress injuries and the application process here. See also submitting a report. You can submit the completed online form (Worker Report of Injury or Occupational Disease—Form C060) electronically (follow the instructional video on the WCB website), using the myWCB app, or by mailing the pdf version to:

WCB-Alberta
P.O. Box 2415
Edmonton, AB T5J 2S5

You must file your application within two years of the injury. If you are already past the two-year deadline, in some circumstances the WCB may extend this deadline.

Once you’ve filed a claim, the WCB will assign you a claim number.

Your employer’s report

You must give a copy of your Form C060 to your employer. As soon as you report an injury to them, they have to complete the Employer Report of Injury or Occupational Disease (Form C040). This will include information about your job, your earnings, and your injury. They must submit the Form C040 to the WCB and give you a copy. The form asks your employer whether they want to dispute your claim, in which case they will need to provide their reasons why. There is a very high likelihood that your employer will do this.

A health professional’s report

A physician must provide information on your diagnosis and how your ability to work is affected within 48 hours of learning of your injury.

After the forms are filed

Once all of the forms have been submitted, an eligibility adjudicator will consider your claim. If there’s an inconsistency between your version of events and your employer’s about whether the injury happened at work, a WCB investigator might contact any witnesses you listed on your form. They might also contact you to ask about the details. Many claims are disallowed at this stage.

If your claim is approved

Benefits are outlined on the WCB site and in the Worker Handbook, which also describes the claims process. If your claim has been successful you may be eligible to receive:

• 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 getting you back into the workplace. Except in specific industries, your employer has an obligation to re-employ you. 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 that you work at a different location from the harasser.

A staff member from the WCB (usually your case manager) will work with you, your employer, and your health professional, if necessary, to develop a return-to-work plan. If your WCB case manager requests one, you may have a special return-to-work coordinator from the WCB help you.

A return-to-work plan sets out the steps you’ll need to take in order to resume your job. A training-on-the-job plan is based on the fact that you’re not able to do your old job and have to be retrained for a new type of work. Fewer than 200 workers a year are retrained.

Because your return-to-work or training-on-the-job 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 make suitable recommendations. The training-on-the-job plan will be very detailed. It may also set out any permanent accommodations you might require.

If your claim is turned down

Claims for psychological injury due to sexual harassment are frequently denied. Appealing is lengthy and seldom successful.

If you are unsuccessful, the first step you might consider is to try to speak with the decision-maker and give any further information you think is relevant. You can also request a review of the decision. You have one year to do so. Once the WCB receives your request, a supervisor will work with you to discuss a possible resolution. If you still have concerns with the decision, the WCB will forward your request to the Dispute Resolution and Decision Review Body (DRDRB). This review can be through documents only, a telephone conference with you and your employer, or an in-person meeting. A resolution specialist will work with everyone to try to resolve the issue.

If you want a copy of your claim file at any point during the process, contact the claims centre at 1-866-922-9221.

If you still have concerns about the DRDRB decision, you may be able to go to the Appeals Commission.

Appeals Commission

The Appeals 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 commission. You have one year from the date of the WCB decision to file an appeal to the commission.

You are allowed to appeal these issues:

• decisions of a review body about compensation payable
• decisions of a review body about an assessment
• a decision of the WCB about whether you are entitled to compensation

You can also request a medical panel review your matter. You cannot appeal a return-to-work decision.

The Appeals Commission process usually includes an in-person hearing before a panel, but sometimes is handled through written submissions only.The panel will consider:

• the records of the claims adjudicator and the review body relating to the claim
• the records and information available to the WCB
• all relevant evidence submitted by a participant that relates to the appeal

The Notice of Appeal form is available on the commission website. The information about where the form should be mailed, couriered, or delivered in person is on the notice.

The commission will confirm receipt and will contact the WCB to get your file. It will send you a date for the hearing and assign an appeals officer to your case; you can ask them any questions about how the appeal process works. For a thorough explanation of all the next steps, see the Appeals Commission outline of the appeal process.

In most of its cases, the Appeals Commission releases its decisions within six weeks after the hearing has finished. The commission will send you a written copy of its decision.

Appeals Commission decisions are final—there’s no additional appeal. You may request a reconsideration, but these requests are rarely granted. In rare circumstances you might be able to 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.

---