This is not legal advice! What you are getting here is just general legal information. It is not a substitute for advice from an actual lawyer about your specific situation. If you need legal advice, we urge you to find a lawyer who can help you. See How to Find and Work With a Lawyer.
If you’re reading this, you’re probably considering filing a claim with WorkSafeBC because you want to be compensated for harms you suffered due to harassment in your workplace. This guide explains how to file a WorkSafe claim related to sexual harassment, and the pros and cons of this process, so you can decide whether it’s an avenue you want to pursue.
WorkSafeBC, created in 1917, is an independent B.C. 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 help getting back to work.
Facts about WorkSafeBC
- WorkSafeBC functions like an insurance provider. Employers pay premiums to WorkSafe for the people who work for them. As a result, those people are entitled to benefits if they suffer a workplace injury.
- About 95% of B.C. workers are covered by WorkSafeBC.
- Every year, about 145,000 workers in B.C. file a WorkSafeBC claim. WorkSafeBC approves 92% of those claims, on average within three weeks.
- However, most claims are for physical injuries. Only about 1% of injury claims are for mental disorders. A total of 2,200 of these claims were approved in 2020.
- When correctional officers, emergency medical assistants, firefighters, police officers, sheriffs, emergency-response dispatchers, health care assistants, and nurses make mental disorder claims, they are approved 95% of the time.
- In 2012, WorkSafeBC relaxed its rules for eligibility of mental disorder claims.
- Roughly 1,000 bullying and harassment claims are filed each year.
- Sources: WorkSafeBC Annual Report 2020, WorkSafeBC Statistics 2020, WorkSafeBC Review & Appeal, Workplace Safety and Insurance Board operational review report, Frequently Asked Questions: Mental Disorder Claims, Health Sciences Association, North Island Gazette
If you’ve been harmed by sexual harassment at work, you might think WorkSafeBC 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 WorkSafeBC normally does reimburse.
And so it might sound like a good idea to file a claim with WorkSafeBC.
But we need to warn you: WorkSafeBC may not help you.
WorkSafeBC 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 that WorkSafeBC 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 a 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 one of those two categories. And if your employer disputes your claim, which it probably will, WorkSafeBC is very unlikely to approve it.
Historically, WorkSafeBC 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 WorkSafeBC was designed for, and has a lot of experience handling.
WorkSafeBC has less experience with mental health harms. It has only accepted claims for bullying and harassment since 2012. About 1,000 claims of this type are made each year. It also accepts claims for mental disorders, which it defines as a reaction to traumatic events or significant work-related stressors. These claims represent about 1% of serious injury claims.
The success rate for claims involving mental health disorders, or bullying or harassment, is much lower than for physical injury claims. If you want to pursue the claim if you’re 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.
Your employer is supposed to report any injuries that occur in their workplace. But really most are unlikely to do this in sexual harassment cases, because they often deny the harassment occurred.
If you want to apply for disability insurance through your workplace provider, the insurer may require you to apply to WorkSafeBC first, and appeal if you are turned down.
Mental disorder claims
WorkSafeBC awards benefits due to the injury you sustained, which in your case would be damaged mental health. WorkSafeBC will be looking to see whether you developed a mental disorder from what you experienced. Grounds include reaction to a traumatic event as well as bullying and harassment. Every year about 1,000 workers make this a bullying and harassment claim.
You’ll need a diagnosis by a psychiatrist or psychologist.
Pros and cons of going to WorkSafeBC
- Making a WorkSafeBC claim isn’t as expensive or complicated as in other forums. You won’t have to pay for your employer’s legal costs if they appeal your claim and your appeal isn’t successful at the Workers’ Compensation Appeals Tribunal.
- If WorkSafeBC accepts your claim, the process to get money could be faster than in other forums.
- WorkSafeBC benefits can be generous, including 90% of net lost wages.
- You submit your claim directly to WorkSafeBC. No need to wait for your employer to investigate.
- Representing yourself is possible when first making a claim. But if your claim is denied, appealing is more complicated. There may be some legal resources to help if you still want to represent yourself.
- You can’t apply to WorkSafeBC secretly. Your employer will know about your claim, which means they will have information about your private health circumstances.
- Your employer will have the opportunity to dispute your claim. It’s very likely they will dispute it, in which case WorkSafeBC will be more likely to turn it down.
- If WorkSafeBC rejects your claim and you appeal, the appeal process may go on for years.
- Your employer will be updated about any changes to your claim. That means they will continue to know about your personal health situation, even if you don’t work for them anymore.
- If you are looking for someone to tell you that you were sexually harassed, and to punish the harasser or your employer for allowing the harassment, WorkSafe BC won’t give you that.
- To make a claim, you will need a psychiatrist or psychologist to say that you’ve suffered an injury. If you don’t have easy access to a medical professional who will do this, making a claim will be harder.
- Making a WorkSafeBC claim may mean you can no longer go to other legal forums.
Will WorkSafeBC accept my application?
- To be eligible for benefits and services under the WorkSafeBC process, you must be a “worker” employed in a business or industry that is covered by the Workers Compensation Act. About 95% of workers in B.C. are covered by WorkSafe.
- If you aren’t sure whether you’re covered by the Workers’ Compensation Act or WorkSafeBC, you can call the Teleclaim contact centre (1-888-967-5377), or seek advice from your union, a lawyer, or the Workers’ Advisers Office.
- WorkSafeBC will only accept your claim if the harassment was work-related. 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.
- WorkSafeBC 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 WorkSafeBC 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.
Contact WorkSafeBC’s Teleclaim contact centre (1-888-967-5377) 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
- paid or unpaid trainee
WorkSafeBC will look for these four things when it reviews your mental disorder claim:
- You have a mental disorder.
- The injury occurred in connection with your employment.
- A psychiatrist or psychologist has diagnosed the injury.
- Your mental disorder arose either from a reaction to one or more traumatic events, or was “predominantly caused” by a significant workplace stressor or stressors. If you had a pre-existing psychological condition unrelated to your work, WorkSafeBC will want proof that it was not the main cause of your mental disorder.
You may be able to get help from a lawyer for free of lower cost. Here are some places that offer free or less-expensive legal services:
- The Workers’ Advisers Office is a branch of the Ministry of Labour that provides free and confidential services about workplace injuries and compensation to non-unionized workers. This office can provide information and advice throughout the WorkSafeBC process. In some cases, it can help with representation during appeals. It also has an extensive network of supports for injured workers and may be able to direct you to other organizations that can help.
- There is a specialized program for people experiencing sexual harassment in the workplace run by the Community Legal Assistance Society (CLAS). It can give legal advice on sexual harassment cases, including B.C. and Canadian human rights complaints. You can apply for legal assistance through its Sexual Harassment Advice, Response, and Prevention (SHARP) Workplaces program.
- Access Pro Bono has a free lawyer referral service and several pro bono programs for low- or modest-income individuals in British Columbia.
- The Law Students’ Legal Advice Program assists low-income individuals who live in the Greater Vancouver Area. It can provide you with advice on WorkSafeBC matters.
- The Respect at Work Legal Clinic, a project of the Immigrant Services Society of B.C., provides legal advice to newcomers to Canada (regardless of status) who have experienced sexual harassment at work.
- 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 hire and work with a lawyer.
Social and health supports
- BC 211: This community and social services helpline is available 24 hours a day by phone (211 or 1-877-330-3213) or online. It can put you in touch with 15,000 services, supports, programs, and more.
First, you must decide if filing a claim with WorkSafeBC 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 B.C. Human Rights Tribunal—where you could have a better chance of success.
If you do choose to go to WorkSafeBC, you’ll find more information about work-related mental health disorders and the application process here. You must complete Form 6 (Application for Compensation and Report of Injury or Occupational Disease); the Reference Guide could be helpful. Submit the form electronically by following the directions on the WorkSafeBC website or mailing it to:
P.O. Box 4700 Stn Terminal
Vancouver, B.C. V6B 1J1
You can also make a Teleclaim by calling 1-888-967-5377.
You must file your application within one year of the injury. If your claim involves sexual assault or sexual harassment, call Teleclaim so you can be connected with a specialist in that area.
Once you’ve filed a claim, WorkSafeBC will assign you a claim number. If you make an online account, you can view information about how your claim is progressing. You will also be assigned a claims representative. This person may guide you through the next steps, though it’s not uncommon for applications to be dismissed at this stage.
Your employer’s report
You must give a copy of your Form 6 to your employer. As soon as you report an injury to them, they have to complete a Form 7 (Employer’s Report of Injury or Occupational Disease). This will include information about your job, your earnings, and your mental stress injury. They must submit the Form 7 to WorkSafeBC 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 physician’s report
A physician has to complete Form 8/11 (Physician’s Report) and submit it within three days of your visit. The form provides information on what your diagnosis is and how your ability to work is affected. It will also outline a treatment plan.
After the forms are filed
Once all of the forms have been submitted, an entitlement officer will take a detailed history and gather all relevant information. They then may carry out an investigation.
An independent health examination
If the WorkSafeBC entitlement officer believes the facts support your claim of a mental disorder, they will arrange a diagnostic appointment with a psychiatrist or psychologist for an assessment. They must identify a condition described in the Diagnostic and Statistical Manual of Mental Disorders-5.
If your claim is approved
See WorkSafeBC Benefits and Services for a detailed outline of what you might be eligible to receive from WorkSafeBC 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
WorkSafeBC requires you to grant access to a lot of personal information gathered by anyone who’s providing your health care or who you’re consulting about a workplace injury.
Returning to work
WorkSafeBC’s focus is on your getting back to work, and it emphasizes recovery at work. Your health professional is key to your return. WorkSafeBC will also contact your employer to develop a suitable plan. In the case of sexual harassment, this might include arranging that you work at a different location from the harasser or other modifications.
The thought of returning to work after the sexual harassment you experienced there can be stressful and overwhelming, as you’re going back to the place where you were harassed. Consider connecting with your support network, like friends, trusted loved ones, a therapist or support group. Read Build a Support Network for more information.
You may work with a vocational rehabilitation specialist, who will involve you, your employer, and your health professional, if necessary, to develop a return-to-work plan. If you don’t participate in a return-to-work process, you may lose access to benefits.
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 make suitable recommendations. The plan will be very detailed. It may also set out any permanent accommodations you might require.
If your claim is turned down
It’s likely that your WorkSafeBC claim for a mental disorder 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.
The first step you will want to consider is not quite an appeal—it’s called reconsideration by the case manager. This is not a formal process; you can just call or email and point out any evidence you feel they’ve overlooked, or let them know if there is new evidence. You’ll have to do this within 75 days of the decision. If you or your employer has already requested a review or filed an appeal, however, there can be no reconsideration. Requesting a reconsideration is not compulsory.
If you don’t ask for a reconsideration or if the reconsideration is unsuccessful, the next step is to request a review by the review division. File the Request for Review form within 90 days of the original WorkSafeBC decision. First read WorkSafeBC—Submitting a Request for Review. Most reviews involve written materials only. In some cases where the review officer really wants to hear from a witness, the review can involve oral evidence.
The review officer’s decision on your claim will be based on whether there was sufficient evidence to support the original decision, and whether the decision followed law or the policies.
You’ll typically hear the result of the review within 150 days.
If you weren’t successful, you will likely be able file a final appeal to the Workers’ Compensation Appeal Tribunal. You won’t be able to appeal on issues relating to vocational rehabilitation benefits or certain permanent disability benefits.
The Workers’ Compensation Appeal Tribunal
Workers’ Compensation Appeal Tribunal (WCAT) is the final level of appeal if you disagree with a WorkSafeBC decision. It’s independent from WorkSafeBC but applies WorkSafeBC policies in its decisions. You must have already gone through the WorkSafeBC review process to reach the WCAT. You have 30 days from the date of the WorkSafeBC decision to file an appeal to the WCAT. If you miss the deadline, you can request an extension.
You can find a detailed outline of the WCAT process on the B.C. government website. Appeal by completing the Notice of Appeal—Review Decision Compensation Decision form, which is available on the tribunal website. The form, with a copy of the WorkSafeBC decision you’re appealing, should be faxed to 1-604-664-7898 or mailed, couriered, or delivered in person to the WCAT at:
Workers’ Compensation Appeal Tribunal
4600 Jacombs Road, #150
Richmond, B.C. V6V 3B1
After you apply, you will receive a Notice of Appeal letter that gives you an appeal number and includes the date and details of the hearing. You may be asked to send in more information as well.
The WCAT will consider similar issues to the review division. There will typically be one decision-maker. In most of its cases, the WCAT releases its decisions within six months after the hearing has finished. It will mail you a copy of the decision.
WCAT decisions are final. You may request a reconsideration, but these requests are rarely granted. Or you may pursue a juridical 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. The provincial ombudsperson cannot change WCAT decisions but can make recommendations to the tribunal if they believe the tribunal’s policies meant you didn’t get a fair hearing.