Worker at federal penitentiary subject to provincial workers’ compensation regime, which excluded gradual-onset mental stress
The New Brunswick Court of Appeal has overturned a federal penitentiary worker’s award of workers’ compensation for gradual-onset mental stress, reinstating the original decision denying the claim on the basis such stress is not compensable in the province for any workers.
Scott Mullin worked for the Correctional Service of Canada (CSC) as a shop instructor at the Atlantic Institution, a maximum-security penitentiary in Renous, N.B. Hired in 1998, Mullin supervised inmates in a production shop that constructed mattresses.
In July 2012, Mullin told CSC that his doctor requested that he take time off work due to stress that was related to his “working atmosphere,” which had included a doubling of the number of inmates he was instructing at the same time budgets were being cut. In December 2012, a psychologist submitted a report to CSC indicating Mullin being “frequently confronted by angry inmates, virtually all of whom have an extensive history of extreme violence, includes chronic levels of high stress.” The report also stated that Mullin was experiencing “psychological turmoil and discomfort” including anxiety and depression.
The report concluded that Mullin’s mental health problems were directly related to a workplace injury and were “cumulative effects of stress as opposed to a stress response” that made him disabled from employment.
Mullin submitted a claim for workers’ compensation benefits and the New Brunswick Workplace Health, Safety and Compensation Commission (WHSC) consulted a second psychologist who was its medical advisor. The advisor concluded Mullin had not shown “emotionally overwhelming stress,” so the WHSC denied Mullin’s claim, ruling that “the challenges associated with dealing with disgruntled inmates, employer cutbacks and negative performance appraisals do not appear to be significantly outside the norm of what would be expected with your supervisory position.” The WHSC also noted that it hadn’t been proven that his mental health issues had arisen out of and in the course of his employment.
Mullin appealed to the province’s appeals tribunal, which overturned the WHSC decision. The tribunal found Mullin’s claim for mental stress should have been accepted. CSC appealed this decision to the New Brunswick Court of Appeal, arguing federal government employees such as Mullin were governed by the Government Employees Compensation Act (GECA), which stipulated workers’ compensation was to be consistent with the standards of provincial workers’ compensation legislation.
Benefits within province vs. other federal workers
The New Brunswick Workers’ Compensation Act stipulates workers were entitled to compensation only if they suffered a personal injury by an accident — a “wilful and intentional act” by someone else, “a chance event occasioned by a physical or natural cause,” or an occupational disease — that arose out of and in the course of employment. The act specifically ruled out disablement caused by mental stress as eligible for compensation, unless it was an “acute reaction to a traumatic event.”
The court noted that the Supreme Court of Canada had ruled earlier that federal employees under the GECA were entitled to receive compensation at the same rate and under the same conditions as provided under the law of the province where the employee is usually employed, as provided under each province’s workers’ compensation legislation. Though an earlier New Brunswick decision had found that Parliament hadn’t intended to create “a patchwork across Canada” with federal employees having different thresholds for benefits depending on what province they were in, the Supreme Court determined that this was in fact Parliament’s intention — consistency for workers within each province, rather than for federal workers across Canada. Therefore, it didn’t matter if federal employees working in other provinces were entitled to benefits for gradual-onset mental stress under those provincial legislative regimes — only New Brunswick’s legislation mattered.
The only exception to this rule was if there was a direct conflict between the GECA and the provincial legislation.
The court noted that for a direct conflict to exist in this case, the GECA would have to expressly include gradual onset stress in the definition of accident, since the New Brunswick Act expressly excluded it. However, there is no such exclusion in the GECA, said the court.
“In the absence of such wording, or some similar express provision, no valid interpretation of the GECA can support a finding that federal government employees in New Brunswick can be compensated for gradual onset stress,” said the court.
The court found that the appeals tribunal undoubtedly felt Mullin suffered from cumulative mental stress that was caused by his work environment and wasn’t related to other factors outside work. Supervising inmates for more than a decade while their numbers increased and budgetary cuts created circumstances with negativity that could easily lead to mental stress and anxiety, said the court.
In addition, the court noted that the psychological assessment report indicated Mullin’s stress was “nearly traumatic” but wasn’t an acute reaction to a traumatic event, which failed to meet the definition of “accident” in the provincial act or WorkSafeNB’s policy on mental stress, which set out an objective four-part test to determine if mental stress is compensable:
• The mental stress must be an acute reaction to a sudden and unexpected traumatic event.
• The traumatic event must have arisen out of and in the course of the worker’s employment.
• The stress must not be caused by a decision of the worker’s employer relating to the management and monitoring of the worker’s employment.
• The stress must be a mental or physical condition described in the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
The court found that the evidence showed Mullin’s stress developed gradually and there was no sudden and unexpected traumatic event to which Mullin could have had an acute reaction. In allowing Mullin’s appeal of the original WHSC decision, the tribunal didn’t follow the provincial standards as set out in legislation and the WorkSafeNB policy on compensation for mental stress. Therefore, the tribunal erred in law when it overturned the WHSC’s denial of Mullin’s claim, said the court.
The court allowed CSC’s appeal and restored the original decision by the WHSC denying Mullin workers’ compensation benefits for gradual-onset mental stress.
For more information see:
• Canada (Attorney General) v. Mullin, 2016 CarswellNB 266 (N.B. C.A.).
