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 or paralegal about your specific situation. If you need legal advice, we urge you to find a legal representative who can help you. See How to Find and Work With a Lawyer.
If you’re reading this, you’re probably considering a workers’ compensation claim with WorkSafeNB because you want to be compensated for harms you suffered due to harassment. This guide explains how to file a 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.
WorkSafeNB is a provincial Crown corporation 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.
Facts about WorkSafeNB
- WorkSafeNB 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.
- Because most employers legally have to belong to WorkSafe, a large majority of New Brunswick workers are covered.
- In 2020, close to 6,000 workers in New Brunswick received WorkSafe benefits.
- However, most claims are for physical injuries. The kind of mental stress injuries that are covered are “traumatic psychological injuries”—like something that a first responder might experience, for example. Almost 90% of TPI claims are made by public-sector workers.
- About 93% of claims in 2020 were accepted. If your WorkSafe claim is turned down, you can appeal to the Decision Review Office. About a quarter of rejections are overturned there. If you are unsuccessful at the DRO, you can take your appeal to the Workers’ Compensation Appeals Tribunal, where roughly half of all appeals succeed.
- Sources: WorkSafeNB 2020 annual report, Workers’ Compensation Appeal Tribunal 2021 annual report, Tableau Public
If you’ve been harmed by sexual harassment at work, you might think WorkSafeNB 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 you need 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 WorkSafeNB normally does reimburse.
And so it might sound like a good idea to file a claim with the WSIB.
But we need to warn you: WorkSafeNB is very unlikely to help you.
WorkSafe 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 WorkSafe 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 “traumatic psychological injury,” which is very narrowly defined. It will only help you if the harm you’ve suffered fits into one of those two categories.
Also, historically, WorkSafe 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 WorkSafe was designed for, and has a lot of experience handling.
The category that a sexual harassment injury might fit into is traumatic psychological injury, but realistically, it’s likely that if you apply for TPI benefits, you’ll be turned down. WorkSafeNB defines traumatic event as only including experiencing or witnessing:
- threat of death
- actual or threatened serious injury
- actual or threatened sexual violence
Pros and cons of going to WorkSafeNB
- Making a WorkSafe 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 Workplace Safety and Insurance Appeals Tribunal.
- If WorkSafe accepts your claim, the process to get money could be faster than in other forums.
- WorkSafe benefits can be generous.
- You submit your claim directly to WorkSafe. 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. The Workers’ Advocates service helps you with the process for free.
- You can’t apply to WorkSafe 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 WorkSafe will be more likely to turn it down.
- Claims for mental stress, which is categorized as a traumatic psychological injury, must be due to experiencing an extreme event.
- 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.
- WorkSafe doesn’t investigate or adjudicate whether you were sexually harassed. 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 won’t give you that.
- To make a claim, you will need a physician to say that you’ve suffered an injury.
Will WorkSafeNB accept my application?
- You must file your application within one year of the date of the incident. The sooner you start the process, the better.
- To be eligible for benefits and services under the WorkSafe process, you must work for an employer insured under WorkSafeNB. You’ll likely be covered if your workplace has three or more workers.
- If you aren’t sure whether you’re covered by WorkSafe, you can call 1-800-999-9775, or seek advice from your union or the office of Workers’ Advocates.
- WorkSafe will only accept your claim if the harassment took place “in the course of your employment.” Meaning it must take 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.
- 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 WorkSafe first. However, it’s best to speak with the office of the Workers’ Advocates about your options, as the facts of your case may allow you to approach more than one forum.
Contact WorkSafe (1-800-999-9775) 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
You can get free assistance at the final appeal stage of a WorkSafe claim:
- Workers’ Advocates is an independent government agency that provides free information, advice, and representation if you are appealing a decision of the Workers’ Compensation Appeals Tribunal.
- 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
- New Brunswick 211: This community and social services helpline is available 24 hours a day by phone (211 or 1-855-258-4126) or online. It can put you in touch with services, supports, programs, and more.
First, you must decide if filing a claim with WorkSafeNB is the right choice for you. Because it is difficult to qualify claims involving most kinds of mental stress, there might be other forums—for example, the New Brunswick Human Rights Commission or civil court—where you could have a better chance of success.
If you do choose to go to WorkSafe, you’ll find more information about the application process here. You can submit the completed Application for Workers’ Compensation Benefits electronically by emailing it or mailing it to:
1 Portland Street
P.O. Box 160
Saint John, NB E2L 3X9
Once you’ve filed an application, WorkSafeNB will review it and determine whether it can accept your claim. WorkSafeNB will contact you in writing to inform you whether your claim has been accepted.
Your employer’s report
As soon as you report an injury to WorkSafeNB, your employer has to complete an Employer Report of Injury or Illness. This will include information about your job, your earnings, and your injury. The form asks your employer whether they want to dispute your claim, in which case they will need to provide their reasons why.
A health professional’s report
A psychologist must complete an Initial Psychology Assessment Report, which will include information about the mental health injury, whether there was an acute reaction, and whether in their opinion the sexual harassment meets the Diagnostic and Statistical Manual of Mental Disorders-5 criteria of a traumatic event.
After the forms are filed
An adjudicator with WorkSafeNB’s Adjudication and Benefits Services unit will decide whether your claim is accepted.
An independent health examination
WorkSafe may ask you to undergo an independent health examination if it thinks more medical information is necessary to make a decision in your case. Your claim will be denied if you refuse this examination.
If your claim is approved
See About your benefits for a detailed outline of what you might be eligible to receive from WorkSafe if your claim has been successful. This includes:
- health-care benefits like therapy and prescription drugs
- money to replace some of the income you’ve lost due to your injury
- retraining, if necessary
WorkSafe requires that anyone who’s providing your health care or who you’re consulting about a workplace injury to report the information they discover. They can do this without your consent when you’re claiming benefits.
Returning to work
WorkSafeNB’s focus is on trying to get you back into the workplace. Your health professional is key to this step. WorkSafe will also contact your employer to develop a suitable return-to-work plan.
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. See Build a Support Network for more information.
A case manager at WorkSafe will work with you, your employer, and your health professional, if necessary, to develop a return-to-work plan. This plan sets 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 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 very likely that your claim for traumatic psychological injury due to sexual harassment will be denied.
You may still decide to appeal, and if you do, you must file a Decision Review Application within 90 days. The Decision Review Office is part of WorkSafeNB but operates independently.
You can find more information on the appeals process here.
A successful appeal will include details on what you are eligible for, how much you should receive, and how long you should collect benefits.
If you aren’t successful, you can file a final 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 WorkSafeNB decision. It’s independent from WorkSafe but applies WorkSafe policies in its decisions. You must have already gone through the Decision Review Office appeal process to reach the WCAT. You have one year from the date of the DRO decision to file an appeal to the WCAT.
The WCAT process usually includes an in-person hearing, but sometimes is handled through written submissions only.There is no mediation.
The Notice of Appeal form is available on the tribunal website. The form, with a copy of the decision you’re appealing, should be emailed, faxed to1-506-738-4104, or mailed, couriered, or delivered in person to the WCAT at:
Workers’ Compensation Appeals Tribunal
PO Box 5001
3700 Westfield Road
Saint John, NB E2L 4Y9
Workers’ Advocates can help you file an appeal—its services are free. About half of all appeals are successful.
For a thorough explanation of all the next steps, see the WCAT outline of the appeal process.
For most of its cases, the WCAT releases its decisions within 90 days after the hearing has finished.
WCAT decisions are final—there’s no appeal. You may request a reconsideration, but these requests are rarely granted. Or 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 hire a lawyer.