The Workers’ Compensation Appeal Tribunal (WCAT) has upheld a Workers’ Compensation Board (WCB) decision that the employer of a deceased worker is not liable for lost wages beyond those covered by temporary wage-loss benefits during a period of unpaid administrative leave.
The ruling affirms that the employer’s prohibited action — placing the worker on leave after she reported a sexual assault by a colleague — did not directly cause the worker’s disability, and therefore, additional financial remedies are unwarranted.
After-hours sexual assault
In the case under WCAT Decision Number A2302275, the worker, who had informed her employer in July 2018 of an alleged sexual assault by a co-worker outside of work hours, was placed on unpaid leave while the employer conducted an investigation.
The investigation ultimately concluded without resolution, and the worker remained on leave until March 2019. During this period, she received temporary wage-loss benefits from the Board, which had accepted her mental disorder claim linked to the incident. The Board initially ruled that the employer had taken prohibited action by failing to restore the worker to her position, but did not order compensation for lost wages beyond the period of administrative leave.
The worker, represented by the Workers’ Advisers Office, appealed the Board’s decision, seeking compensation for lost wages, seniority, and out-of-pocket expenses incurred from July 2018 through September 2020, in addition to coverage for psychological counseling expenses. The worker’s estate continued the appeal after her death.
WCAT upheld the Board’s decision, finding that the employer’s prohibited action was not the primary cause of the worker’s mental health challenges or her continued disability from work.
“Even if the employer had arranged a timely return to work, the worker would have been unable to return to work due to her compensable mental disorder,” which resulted from the assault itself, rather than the employer’s subsequent actions, it said.
Key points of WCAT’s ruling
The WCAT ruling addresses multiple aspects of the worker’s appeal, affirming that no further financial remedies are warranted beyond those already provided. Key determinations include:
Lost wages: WCAT found that the worker’s mental disorder, resulting from the 2018 incident, prevented her from returning to work until September 2020. Because she was already receiving temporary wage-loss benefits from WCB during this period, additional wage compensation is deemed unnecessary. WCAT emphasized that awarding further compensation would provide a “financial windfall,” inconsistent with the Act’s goal to make the worker “whole,” rather than to award damages unrelated to direct losses.
Counseling costs: The worker’s request for reimbursement of counseling expenses was denied due to lack of detailed evidence showing how these costs were out-of-pocket or directly caused by the employer’s prohibited action. WCAT pointed out that the worker was eligible for health care benefits under her mental disorder claim, covering the costs of psychological treatment.
Time spent on employer interactions: WCAT also rejected the worker’s claim for over $287,000 in wages equivalent for time spent dealing with the employer over a four-year period. WCAT reasoned that compensating for this time would be inconsistent with the “make whole” principle of the Act, given the lack of a direct financial loss attributed to the employer’s prohibited action.
Mitigation and other remedies: The tribunal rejected claims for vacation pay, interest, and additional wage “top-ups” during the leave period, as the worker did not demonstrate any financial loss attributable to the employer’s actions. WCAT found that the worker’s temporary wage-loss benefits effectively compensated her during her disability period, removing any need for further payment.
No reimbursement for legal or administrative expenses: The decision noted that the Act’s policy typically does not require employers or unions to cover legal or administrative costs for pursuing a complaint, unless there has been a “flagrant abuse” of rights. WCAT found no such abuse in this case and declined to award additional costs.
For more information, see A2302275 (Re), 2024 CanLII 109389 (BC WCAT).
