Online bonus to the Case in Point on workplace stress in the Sept. 28, 2005, issue of <i>Canadian Employment Law Today</i>
The Case in Point in the Sept. 28, 2005, issue of Canadian Employment Law Today took an in-depth look at work-related stress and WCB claims, specifically a recent decision by the New Brunswick Court of Appeal. (For more information about that case, see the related articles links at the bottom of this article.)
The New Brunswick Court of Appeal provided a summary of what the legislation is like in other Canadian jurisdictions in ruling whether or not workers are entitled to WCB benefits for workplace-related stress.
Why legislations addressed the issue of WCB and workplace stress
The court said it is not hard to identify the historical reasons underscoring the decision of legislatures to address the question of whether disability claims tied to work-related stress would be compensable.
In the late 1980s, the WCB appeals tribunal of Ontario took the bold step of including such claims, a position that was at odds with the policy being applied by the workers’ compensation board.
Prior to 1998 the Ontario board had no explicit policy dealing with compensation for mental stress alone. It did have a policy covering “psychotraumatic disability” that applied in situations where mental stress resulted from a physical injury or disability.
There was no policy in place for cases in which stress originating in the workplace lead to an employee’s inability to work. The board’s practice was to award benefits only where the stress claim was connected to a specific traumatic event in the workplace. The board did not recognize stress claims associated with typical workplace pressures.
Subsequently, the appeals tribunal expanded the boundaries of entitlement by allowing claims for stress reactions to normal workplace events based on a modified reasonable person test.
In the tribunal’s view, chronic stress claims should be compensated in the same way as other gradual process injuries. For example, in one case a worker claimed a diagnosed psychiatric condition of phobic anxiety and severe clinical depression was the result of work-induced stress. In allowing the appeal, the appeals tribunal held said the workplace stressors don’t have to be unusual or unexpected and the test would be based on objective evidence of work stressors that a “reasonable person” could plausibly find stressful.
The majority concluded that while there were personal stressors and a disposition to a stress-related disability, the evidence did not negate the fact that work was a “significant contributing factor.”
In a later decision, the tribunal adopted a modified objective reasonable person test that required balancing objective evidence of stress in the workplace against the worker’s perception of and subjective reaction to workplace conditions.
Different approaches in Ontario led to uncertainty, substantial litigation
The different approaches taken by the Ontario board and the appeals tribunal generated uncertainty, something that lead to substantial litigation. In 1996 the Ontario government commissioned a report covering the issues of chronic stress and chronic pain. The report recommended exclusion of compensation for chronic stress claims for the reason that “there can be little assurance that, in any one case, the employment has in fact caused a psychological disability that has so many other potential non-work causes.”
In 1997 Ontario responded by amending its legislation to exclude claims for mental stress, except where the disability arose from an acute reaction to a traumatic event. And the amendments went further. They said that a worker is not entitled to benefits for mental stress caused by the employer’s decisions or actions relating to the employment. The amendment refers specifically to management decisions involving a change of work or work conditions, a decision to discipline an employee or to terminate the employment.
Together, the amended provisions confirmed the Ontario’s board traditional approach to compensation for mental stress.
With the amendments to the Ontario legislation, the board adopted a new policy that distinguishes between gradual reactions to general workplace conditions, which are not compensable, and delayed acute reactions to sudden and unexpected traumatic events.
For example, an employee who, weeks after the event, feels stress related to witnessing a serious work accident would be entitled to benefits, while an employee who becomes disabled by stress following weeks of severe pressure in the workplace does not have entitlement.
The ‘reasonable person’ standard
The policy also calls for a “reasonable person” standard to be applied in determining whether an event is traumatic. The policy goes on to state that such events are “usually horrific, or have elements of actual or threatened violence to the worker.” The event must be uncommon in the normal course of the worker’s employment. The thin-skull principle does not apply — in other words, the event must be traumatic on an objective basis.
A worker who, due to the personality or psychological history, reacts strongly to a relatively innocuous incident has no entitlement under the policy. On the other hand, an event may still be considered traumatic even if others in the workplace do not share the worker’s reaction, or if the worker had witnessed similar events in the past without experiencing a stress reaction (for example, an ambulance driver.) In 2002, the board adopted a policy with respect to workplace harassment. Under that policy, harassment may be viewed as a series of traumatic events giving rise to injury.
In a related policy change, individuals working in stressful jobs such as health care, firefighting and policing are entitled to claim a stress injury due to the cumulative effects of events that occur on the job.
What’s happening in other provinces
Manitoba was the first province to amend its workers’ compensation legislation for purposes of adopting a general rule excluding stress claims.
In 1991 its legislation was amended to define “occupational disease” to exclude stress other than as an acute reaction to a traumatic event.
New Brunswick followed suit in 1992, but the wording of the amendment differs from the other provinces in that the exclusion clause states that the term “accident” does not include “the disablement of mental stress or a disablement caused by mental stress” before acknowledging the traumatic event exception.
Newfoundland and Labrador amended its legislation in 1998 to define injury as excluding stress other than stress which qualifies as an acute reaction to a traumatic event. By contrast the other acts simply exclude stress, subject to the traumatic event exception.
This is true of the Nova Scotia amendment adopted in 1995. Prince Edward Island’s amending legislation of 2001 uses the same language as does the British Columbia amendment adopted in 2002.
But the B.C. amendment goes further than any other. It imposes a requirement that stress claims be supported by a physician’s or psychologist’s diagnosis that the mental stress fell within the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
Finally, Saskatchewan and Alberta are the only provinces that have not adopted amending legislation to deal with stress-related claims.
Related article
Work-related stress and WCB Claims
The New Brunswick Court of Appeal provided a summary of what the legislation is like in other Canadian jurisdictions in ruling whether or not workers are entitled to WCB benefits for workplace-related stress.
Why legislations addressed the issue of WCB and workplace stress
The court said it is not hard to identify the historical reasons underscoring the decision of legislatures to address the question of whether disability claims tied to work-related stress would be compensable.
In the late 1980s, the WCB appeals tribunal of Ontario took the bold step of including such claims, a position that was at odds with the policy being applied by the workers’ compensation board.
Prior to 1998 the Ontario board had no explicit policy dealing with compensation for mental stress alone. It did have a policy covering “psychotraumatic disability” that applied in situations where mental stress resulted from a physical injury or disability.
There was no policy in place for cases in which stress originating in the workplace lead to an employee’s inability to work. The board’s practice was to award benefits only where the stress claim was connected to a specific traumatic event in the workplace. The board did not recognize stress claims associated with typical workplace pressures.
Subsequently, the appeals tribunal expanded the boundaries of entitlement by allowing claims for stress reactions to normal workplace events based on a modified reasonable person test.
In the tribunal’s view, chronic stress claims should be compensated in the same way as other gradual process injuries. For example, in one case a worker claimed a diagnosed psychiatric condition of phobic anxiety and severe clinical depression was the result of work-induced stress. In allowing the appeal, the appeals tribunal held said the workplace stressors don’t have to be unusual or unexpected and the test would be based on objective evidence of work stressors that a “reasonable person” could plausibly find stressful.
The majority concluded that while there were personal stressors and a disposition to a stress-related disability, the evidence did not negate the fact that work was a “significant contributing factor.”
In a later decision, the tribunal adopted a modified objective reasonable person test that required balancing objective evidence of stress in the workplace against the worker’s perception of and subjective reaction to workplace conditions.
Different approaches in Ontario led to uncertainty, substantial litigation
The different approaches taken by the Ontario board and the appeals tribunal generated uncertainty, something that lead to substantial litigation. In 1996 the Ontario government commissioned a report covering the issues of chronic stress and chronic pain. The report recommended exclusion of compensation for chronic stress claims for the reason that “there can be little assurance that, in any one case, the employment has in fact caused a psychological disability that has so many other potential non-work causes.”
In 1997 Ontario responded by amending its legislation to exclude claims for mental stress, except where the disability arose from an acute reaction to a traumatic event. And the amendments went further. They said that a worker is not entitled to benefits for mental stress caused by the employer’s decisions or actions relating to the employment. The amendment refers specifically to management decisions involving a change of work or work conditions, a decision to discipline an employee or to terminate the employment.
Together, the amended provisions confirmed the Ontario’s board traditional approach to compensation for mental stress.
With the amendments to the Ontario legislation, the board adopted a new policy that distinguishes between gradual reactions to general workplace conditions, which are not compensable, and delayed acute reactions to sudden and unexpected traumatic events.
For example, an employee who, weeks after the event, feels stress related to witnessing a serious work accident would be entitled to benefits, while an employee who becomes disabled by stress following weeks of severe pressure in the workplace does not have entitlement.
The ‘reasonable person’ standard
The policy also calls for a “reasonable person” standard to be applied in determining whether an event is traumatic. The policy goes on to state that such events are “usually horrific, or have elements of actual or threatened violence to the worker.” The event must be uncommon in the normal course of the worker’s employment. The thin-skull principle does not apply — in other words, the event must be traumatic on an objective basis.
A worker who, due to the personality or psychological history, reacts strongly to a relatively innocuous incident has no entitlement under the policy. On the other hand, an event may still be considered traumatic even if others in the workplace do not share the worker’s reaction, or if the worker had witnessed similar events in the past without experiencing a stress reaction (for example, an ambulance driver.) In 2002, the board adopted a policy with respect to workplace harassment. Under that policy, harassment may be viewed as a series of traumatic events giving rise to injury.
In a related policy change, individuals working in stressful jobs such as health care, firefighting and policing are entitled to claim a stress injury due to the cumulative effects of events that occur on the job.
What’s happening in other provinces
Manitoba was the first province to amend its workers’ compensation legislation for purposes of adopting a general rule excluding stress claims.
In 1991 its legislation was amended to define “occupational disease” to exclude stress other than as an acute reaction to a traumatic event.
New Brunswick followed suit in 1992, but the wording of the amendment differs from the other provinces in that the exclusion clause states that the term “accident” does not include “the disablement of mental stress or a disablement caused by mental stress” before acknowledging the traumatic event exception.
Newfoundland and Labrador amended its legislation in 1998 to define injury as excluding stress other than stress which qualifies as an acute reaction to a traumatic event. By contrast the other acts simply exclude stress, subject to the traumatic event exception.
This is true of the Nova Scotia amendment adopted in 1995. Prince Edward Island’s amending legislation of 2001 uses the same language as does the British Columbia amendment adopted in 2002.
But the B.C. amendment goes further than any other. It imposes a requirement that stress claims be supported by a physician’s or psychologist’s diagnosis that the mental stress fell within the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
Finally, Saskatchewan and Alberta are the only provinces that have not adopted amending legislation to deal with stress-related claims.
Related article
Work-related stress and WCB Claims
