When it comes to workers’ comp, the realm of psychological injuries is a bit muddy. In recent years, many provinces have made changes to legislation to clarify and restrict the circumstances under which an employee would be entitled to benefits. The New Brunswick Court of Appeal recently dealt, for the first time, with the issue of a workers’ right to benefits for psychological injuries in the workplace
The basic consensus appears to be that a series of events over the years, gradually manifesting itself into debilitating stress, is not a compensable injury. But a single traumatic event that is over-the-top will - though there are exceptions in both cases.
The New Brunswick Court of Appeal recently dealt, for the first time, with the issue of a workers' right to benefits for psychological injuries in the workplace.
The case involved a long-time VIA Rail employee. The worker had been with VIA for 15 years before she started working at its call centre in Moncton, N.B. on Oct. 15, 2001.
Shortly after moving into the premises, the worker and other employees complained of poor working conditions. Specifically, they complained of noise levels and poor lighting.
Over the ensuing seven months, the employees' repeated requests for workplace modifications went unanswered by their immediate supervisor. In July 2002, the plaintiff went over her supervisor's head and spoke with his superior about having management improve the working conditions.
On July 15, 2002, she was called into her manager's office. In the plaintiff's words the manager "threatened and intimidated me for going over his head to the director concerning the fixing of the working conditions."
As a result of this traumatic event, she left her job. In her statement of fact she said she "went off work on July 15, 2002, as a result of a disability flowing from the noise level in the workplace, the excessive and difficult lighting at the workplace and the inappropriate actions of the manager."
From July 19 until Sept. 7 she received disability benefits under an employer-funded short-term disability plan administered by Great West Life, a private insurer. The insurer agreed to provide the benefits until such time as the worker could seek and obtain benefits from New Brunswick's Workplace Health, Safety and Compensation Commission.
Insurer terminates disability benefits
Great West Life decided to discontinue payment of the benefits after concluding her injury was work-related. This finding was based on a medical report submitted on the appellant's behalf. Great West Life also indicated that as physical alterations had been made to the working environment, there was nothing to prevent her from going back to work.
Great West Life advised her to pursue a compensation claim with the commission. Instead, she sought and obtained benefits under the Employment Insurance Act. She received benefits for a total of 15 weeks, ending Dec. 5, 2002.
On Dec. 23, 2002, she applied for workers' compensation benefits. On Jan. 22, 2003, an adjudicator rejected her claim on the basis her condition was related to the "usual stresses and strains of the workplace" and not an acute reaction to a traumatic event.
She appealed that decision and her case was reviewed on Oct. 27, 2003. The same adjudicator confirmed the original decision and rejected the claim.
The rejection letter of Oct. 27 said that in order for the worker to qualify for benefits she had to establish she suffered an acute reaction to a traumatic event. It outlined a three-part test that had to be met:
•the condition must be an acute reaction to a traumatic event and not due to chronic or cumulative stress;
•the event must directly produce a condition which meets established diagnostic criteria; and
•the claim must also arise out of and in the court of employment.
The letter went on to state that, in this case, the worker's mental stress was the result of a combination of factors or an accumulation of factors and not the results of a single incident.
"The event itself of July 15, 2002, when there was a disagreement between (the worker) and her supervisor was unfortunate, however, it remains the opinion of the commission that this event would not qualify as an acute reaction to a traumatic event," the adjudicator wrote. "The commission must measure the event by objective standards and actual events rather than the workers' perception."
‘Straw that broke the camel’s back’
On Dec. 4, 2003, she sought a further reconsideration of her claim. This time she offered up evidence from her psychiatrist. The psychiatrist said she had been suffering from major depression and that it "really got worse" after the July 15 meeting.
That event, he said, was the "straw that broke the camel's back" when it came to her mental health. He said she had no previous mental health history, and therefore work-related stress was "one of the major contributing factors toward her problem with her mood."
On Dec. 12, 2003, her claim was again rejected by the same adjudicator. She then appealed to the commission's appeals tribunal. That tribunal rendered its decision in July 2004.
Working conditions less than ideal, but not a traumatic event
While the appeals tribunal said the physical and psychological working environment at VIA was "less than ideal" it could not award her compensation for mental stress. Under the definition of accident, the traumatic event must create an acute reaction leading to a disablement caused by mental stress, it said.
"The event of July was not a traumatic event leading to disablement but rather the culmination in a series of events both personal and at work which led to the (worker) suffering a major depression," it said. "Consequently, since the condition of the (worker) is a disablement caused by mental stress, or a disablement of mental stress, it is not considered under the act 'an accident' since it is not an acute reaction to a traumatic event."
The worker appealed the tribunal's decision to the New Brunswick Court of Appeal. The court agreed with the tribunal and refused to overturn its decision.
Province changed legislation in 1992 to prohibit claims
In 1992 New Brunswick amended its Workers' Compensation Act to specifically exclude "the disablement of mental stress or disablement caused by mental stress, other than as an acute reaction to a traumatic event," the court said. (Emphasis added.)
"It is safe to conclude the 1992 amendment to the act's definition of accident was intended to curtail the willingness of administrative tribunals to grant benefits for what are commonly referred to as either 'chronic' or 'gradual onset' stress claims," the court said.
In short, after 1992 the commission had clear instructions from the legislature not to award claims for burnout, but to still award benefits for a single, devastating workplace-related traumatic event.
"Management decisions involving changes to the terms and conditions of employment do not qualify as traumatic events," the court said. "The same is true with respect to the decision to impose a layoff or to terminate employment, with or without just cause. Such decisions may well generate stress, but that is to be expected."
What might justify a claim
The court gave the following examples of a workplace-related event that would justify compensation:
•an employee who is a victim of a robbery or hostage-taking incident;
•an employee who witnesses the death or severe injury of a co-worker; or
•a worker who is the first to respond to victims of severe trauma or fatalities.
The court said a series of cumulative events could be a compensable injury, provided that each event qualified as a traumatic event under the commission's rules.
"There are cases where the worker is exposed to a series of traumatic events which over time lead to a diagnosis of post-traumatic stress syndrome," the court said. "Delayed onset of the syndrome is not unusual for those required, for example, to provide emergency care to accident victims."
The court rejected the worker's position that the commission should use a subjective test, rather than an objective one, in deciding whether the traumatic event is compensable. It said using a subjective test would apply the "thin skull" principle - what may be a traumatic event for one employee may not be for another.
Using a subjective test, even the most innocuous management decisions could support a claim for psychological injury, the court said.
"It would not be difficult for the skilled advocate to turn a case of 'chronic' or 'gradual onset' stress into a claim of psychological injury by focusing on a single incident - the one that broke the camel's back," the court said.
The question that should be asked is whether a reasonable person would regard the precipitous event as a traumatic one - out of the usual, expected or ordinary - because it is the type of occurrence that could realistically result in an employee being unable to continue with her employment, the court said.
In short, it's not the employee's reaction to the event that counts, it's the severity of the event itself.
The court said the July 15 meeting at VIA was not a traumatic injury to the worker.
"An isolated incident of management yelling at an employee does not even support an allegation of harassment, which in appropriate circumstances might well support a claim for constructive dismissal," the court said.
The employee may not feel comfortable going back to work with the offending manager, but that doesn't make it a psychological injury eligible for compensation, the court said.
If the real reason for not returning to work is to avoid future confrontations, then the claim for work-related stress benefits has not been made, the court said. In such a case, the worker should seek employment insurance benefits or possibly file a grievance under a collective agreement, if applicable.
"This is not a case where the claimant has established that she comes within the exception to the general rule," the court said. "The verbal tirade directed at (her) by her supervisor does not qualify as a traumatic event."
For more information see:
• W.(D.) v. New Brunswick (Workplace Health, Safety & Compensation Commission, 2005 CarswellNB 389, 2005 NBCA 70 (N.B. C.A.)
Online bonus: The stress rules in jurisdictions outside of New Brunswick
For more information about workplace stress and how workers' compensation boards across Canada have dealt with it, see Work-related stress and WCB: A look at the rules in different jurisdictions.