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Mental distress and workers’ comp (Ask an expert)

Canadian Safety Reporter

Sep 12, 2012

Mental distress and workers’ comp (Ask an expert)

Workers’ compensation legislation replaces common law liability for work-related injuries



Question: What kind of mental condition, if any, can an employee collect workers’ compensation for if she takes a medical leave?


Answer: Workers’ compensation legislation replaces common law liability for work-related injuries suffered by workers with a scheme of compensation similar to insurance.


However, it is not intended to encompass all injuries suffered by workers, nor is it intended to relieve employers from liability for injuries that are not compensable under the legislation. Psychological injuries frequently fall into this category.


The question of whether and to what extent a worker’s mental condition is eligible for workers’ compensation is a complicated matter.


The statutory language varies from jurisdiction to jurisdiction, and the issue of entitlement to compensation is heavily dependent upon the wording of the particular statute or workers’ compensation board (WCB) policy. Accordingly, it is important to consult the legislation, WCB policies and jurisprudence in the jurisdiction in which you operate.


That said, there is a degree of uniformity in the current legislation in its treatment of psychiatric injury. The legislation typically limits its application to injuries “arising out of and in the course of” a worker’s employment.


Difficulties in proving that causation requirement, coupled with the cost of mental stress claims, have shaped much of the current legislation. The success of “chronic stress” claims under former legislation prompted many legislators to take action to foreclose such claims in all but a few defined situations.


Starting in the early 1990s, several provinces amended their legislation to remove the possibility of compensation for mental stress that was not either directly related to compensable physical injuries or caused by an objectively traumatic workplace disaster (such as a bank robbery, mall collapse or office shooting). British Columbia, Manitoba, Newfoundland and Labrador and Ontario expressly excluded mental stress caused by employer decisions relating to the workers’ employment, including discipline and termination.


Alberta, Saskatchewan, Quebec, Yukon, the Northwest Territories and Nunavut did not expressly curtail stress-related claims by statute but have often done so through administrative policy.


For example, an Alberta WCB policy issued in 2011 indicates that compensation may be available for an emotional reaction to a work-related physical injury or treatment process, traumatic onset psychological injury or stress, or chronic onset psychological injury or stress.


A number of conditions must be met for chronic onset stress to be compensable, such as the work-related events causing the stress must be excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar job.


The federal Government Employees Compensation Act is also silent on mental stress claims. However, federal employees are compensated under the provincial legislation in the province in which they work, with the result that they too are often subject to restrictions on mental stress compensation.


There is a large volume of case law, often focused on the meaning of a “traumatic event.”


In W. (D.) v. New Brunswick (Workplace Health, Safety & Compensation Commission), the New Brunswick Court of Appeal upheld a denial of compensation to an employee who had suffered disabling depression after being castigated in a threatening and intimidating manner for seeking changes to poor workplace conditions.


The New Brunswick Workers' Compensation Act defined “accident” as excluding “the disablement of mental stress or a disablement caused by mental stress, other than as an acute reaction to a traumatic event.” The Court of Appeal held that, while the employee’s stress “arose out of and in the course of employment,” it did not constitute an accident because it did not arise from a “traumatic event,” which was an event that was of the ordinary and, when viewed objectively, would be expected to result in an employee being unable to work.


In Logan v. Nova Scotia (Workers’ Compensation Appeals Tribunal), the Nova Scotia Court of Appeal held that the test to be applied in determining whether mental stress was caused by a “traumatic event” was an objective one; a sudden termination of long term employment was not such an event.


In Children’s Aid Society of Cape Breton-Victoria v. Nova Scotia (Workers’ Compensation Appeals Tribunal), however, an intense disciplinary meeting that was described as personal, violent and aggressive and accompanied by a real and imminent threat of physical violence was a traumatic event. A worker who suffered post-traumatic stress syndrome arising from the disciplinary meeting was entitled to compensation.


In the absence of a threat to a worker’s physical wellbeing, the legislation left little wiggle room for the acceptance of mental stress claims for those whose disability did not fall within the strict statutory language. However, there is some indication that tight controls on access to workers’ compensation for mental stress may be loosening.


Following its 2002 amendment, the B.C. Workers Compensation Act limited claims for discrete mental stress — unrelated to an otherwise compensable injury — to three qualifications:



  • The condition must have developed as an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment.

  • The condition must be a recognized and diagnosed mental disorder under the DSM-IV.

  • The condition must not have been caused by a decision of the employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker's employment.


WorkSafeBC policies placed additional limitations on the type of event that could give rise to a successful claim, requiring that the traumatic event be severely emotionally disturbing — such as a horrific accident — actual or threatened physical violence, or a death threat.


The B.C. provisions were challenged under the equality provisions of the Canadian Charter of Rights and Freedoms by a worker who was denied compensation for post-traumatic stress disorder that developed after a natural gas pipeline rupture at his workplace.


In Plesner v. British Columbia Hydro and Power Authority, the B.C. Court of Appeal found that certain provisions of the manual violated the charter when read together with the Workers’ Compensation Act. Specifically, provisions that established an objective test for mental stress and a requirement that an event be horrific in nature in order to be considered traumatic were found to be of no force and effect. The provisions treated those with mental disabilities differently than those with physical disabilities, extending significantly less access to compensation to the former.


In November 2011, the B.C. government introduced Bill 14 — the Workers’ Compensation Amendment Act, 2011 — in response to Plesner. The legislation, which significantly expands coverage for mental disorders, was passed in the spring.


It allows for compensation to be awarded upon proof of one or more traumatic events arising out of and in the course of employment or a significant work-related stressor, or a cumulative series of significant work-related stressors. WorkSafe BC is in the process of drafting policy changes to accommodate the amendments, but it seems clear that the restrictive approach to mental stress claims has been cautiously abandoned.


It remains to be seen whether other provinces with restrictive legislation will follow suit.



Discussion started by sitemanager , on 988 days ago
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517 days ago
 
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Mike Bobinger i just came from a mental disability hearing and the Judge called a psychiatrist who said there were plenty of jobs i could do with hydrocephalus, cognitive disorder and short term and long term memory problems. The vocational expert did not agree.
about an hour ago -
988 days ago
 

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