Sleep disorder argument put to bed

N.S. court overturns decision on shift work

Background:

On Jan. 25, 2002, the Nova Scotia Worker’s Compensation Appeals Tribunal delivered a wake-up call to employers across the country. As reported in the Nov. 13, 2002, edition of CELT (pages 2942 and 2943), the appeals tribunal issued a decision which made the unprecedented finding that the typical impacts of shift work, such as disturbance of regular sleep patterns and lingering tiredness, may, if severe enough, constitute a compensable injury.

Although the decision was based on Nova Scotia’s Worker’s Compensation Act, the relevant provisions are similar to those contained in Worker’s Compensation legislation throughout the country.

The employer subsequently appealed the decision to the Nova Scotia Court of Appeal, which has rendered its decision. Given the significance of this issue, a further review of this case, and of the appeal court’s recent decision, is worth a look.

The case: Michelin North America (Canada) Inc. v. Ross

Richard Ross started working for Michelin Tire in 1987. Ross had always worked shift work for Michelin but, by 1996, had developed serious problems sleeping after working night shifts.

Michelin operated its shop 24 hours a day, seven days a week. Michelin provided educational materials on coping with shift work to all its employees. It also provided special lighting in the plant and breaks for the workers in a manner designed to help them cope with shift work. The workers are paid a premium for working the evening and night shifts as well as for working Sundays.

During the period in which Ross claimed to have had problems sleeping, he was on “backward rotating” eight-hour shifts. This meant he would typically work several days of the night shift, followed by several days on the evening shift, followed by several days on the day shift.

In 1999 a report of accident was filed by Ross claiming he had developed shift-work maladaptation syndrome as a result of his employment. Ross claimed his sleep problems had reached the point where he feared for his physical safety on the job. His physician said the sleep problems were severe and were caused by shift work.

The doctor said Ross was experiencing serious problems paying attention and staying awake. The symptoms ceased when he was not subjected to shift work. The issue to be determined by the Nova Scotia Worker’s Compensation Commission was whether the worker had suffered a personal injury arising out of and in the course of employment so as to be eligible for compensation.

A case manager initially rejected the worker’s claim. But Ross appealed this decision and was awarded benefits by a hearings officer. Michelin appealed to the appeals tribunal.

Decision of the appeals tribunal

At the hearing before the appeals tribunal, the representative for Ross argued an imposed work condition — shift work — had actually caused Ross to be injured. He argued that since there was no underlying condition, the manner of diagnosis was by exclusion.

The employer’s representative, on the other hand, argued causation was the core issue in the appeal and there was no medical evidence that indicated shift work had actually caused the worker to develop shift-work maladaptation syndrome. He also argued the appeals tribunal ought not to confuse cause with effect — the work was not the problem, but rather the worker’s pre-existing lack of tolerance to shift work.

The appeals tribunal decided Ross suffered from symptoms in the form of a cognitive deficit which, at certain points in time, was severe enough to cause him to become temporarily disabled.

In dealing with the issue of causation, the appeals tribunal ruled it was not necessary to probe deeper in finding the underlying medical reasons behind why Ross developed disabling symptoms under the same conditions that may not have rendered other workers disabled. The cause of the worker’s shift work maladaptation syndrome was not relevant to the determination of eligibility for compensation under the Nova Scotia legislation.

The appeals tribunal relied on an earlier decision of the Nova Scotia Court of Appeal (Metropolitan Entertainment Group v. Durnford, et al.) that found, under Nova Scotia legislation, a worker need only prove he had symptoms severe enough to cause a disability which arose out of and in the course of employment. In addition the appeals tribunal decided there was insufficient evidence to support a conclusion that the worker’s symptoms were brought on by activities outside of work.

The appeals tribunal, therefore, denied Michelin’s appeal. Michelin appealed to the Nova Scotia Court of Appeal. The appeal was heard on Dec. 3, 2002, and a decision was issued on Dec. 30, 2002.

Nova Scotia Court of Appeal overrules unique decision

In its decision the appeal court noted the sole question was whether Ross’ cognitive deficit was an injury caused by an accident arising out of and in the course of his employment.

The court noted the decision of the appeals tribunal was unique because it represented the first time in Nova Scotia the tribunal had awarded compensation to a worker for an injury, a lack of sleep leading to disabling symptoms, occurring off duty on the employee’s own time and away from the work site. Shift work, which probably caused unnecessary harm in the workplace, must be included, as the appellant conceded, in the whole bundle of circumstances that may be described as working conditions. The court then examined the appeals tribunal’s decision and, in particular, the tribunal’s application of the Durnford decision noted above.

In Durnford the worker was employed as a blackjack dealer and supervisor in the Halifax casino when she developed lateral epicondylitis, commonly known as tennis elbow. She had no symptoms of tennis elbow prior to beginning work but developed them within six months. She was a blackjack dealer, which involved moving her arm across her body to deal out cards up to 1,500 times per hour. Her employer’s position was that dealing blackjack does not involve sufficient force to cause a retentive strain injury.

The opinion and evidence of medical experts was divided as to the cause of the injury. The tribunal, overturning the board decision, found a causal connection between dealing blackjack in the course of her employment and the disablement she suffered. In dismissing the appeal, the Nova Scotia Court of Appeal was of the view that the worker established that the requirements of her occupation as a blackjack dealer, which occurred at the work site during working hours, caused her “disablement… arising out of and in the course of employment.”

The Durnford case stands for the proposition, among others, that when symptoms severe enough to cause disablement arise out of and in the course of employment, causation is established for the purposes of the act.

The appeal court held the appeals tribunal had erred in interpreting Durnford to stand for a much broader proposition than the court had allowed. The appeal court allowed Michelin’s appeal and set aside the award of compensation to Ross.

In rendering its decision, the appeal court noted the tribunal confused the manifestation of symptoms while at work with the requirement that the disablement arise out of and in the course of employment. Ross’ cognitive deficit was a result of shift work maladaptation syndrome arising from his natural and innate intolerance of the conflict between his personal sleep and wake pattern and the need to work at a time when his sleep and wake cycle would naturally be in a sleep phase.

The court noted this intolerance was, as the tribunal found, a personal characteristic inherent to the person. Unlike Durnford there was no evidence this condition was either caused or aggravated by the requirements of the job.

As the appeal court held, it could not be said that simply because the condition manifests itself at work the condition or its symptoms then arise out of the course of employment.

Educate staff about shift work

It appears the appeal court has adopted the better view that the worker’s inability to tolerate disruptions to his regular sleep cycle was a natural condition that pre-existed work and was not caused by Ross having to work shift work. Therefore the disablement at issue here was pre-existing and did not arise out of employment.

It is not yet known whether Ross will appeal this decision further to the Supreme Court of Canada. For the time being, the typical impacts of shift work, such as the disturbance in regular sleep patterns and lingering tiredness, are not likely to be considered a compensable injury under workers’ compensation legislation.

Despite this decision, the effect of shift work on workers is still a significant issue for employers. To minimize workplace accidents and injuries, employers should ensure workers are properly educated regarding the effects of shift work. Employers should also take precautions, such as Michelin did, to minimize these effects. While the tiredness that shift work causes may not be a compensable injury in and of itself, it may contribute to a further accident and injury which could have been prevented through such measures.

For more information see:

Metropolitan Entertainment Group v. Durnford, et al. (2000), 188 N.S.R. (2d) 318 (N.S. C.A.).

Michelin North America (Canada) Inc. v. Ross, 2002 CarswellNS 522 (N.S. C.A.).

This in-depth look at workers’ compensation was provided by Joe Morrison, a lawyer with Goodmans LLP in Toronto. He can be reached at (416) 597-4203 or jmorrison@goodmans.ca.

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