June 27, 2014

Workers’ Compensation May Have to Provide Benefits for Stress

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The New Brunswick Workers Compensation Act provides no fault compensation to employees who suffer injury or disease arising from their employment. However, the legislation restricts employees from claiming benefits related to mental stress. An employee can only receive workers’ compensation benefits if the stress is the result of “an acute reaction to a traumatic event” that arises out of and in the course of employment.  

The Ontario Workplace Safety and Insurance Act contains language similar to that in the New Brunswick legislation. It too limits when an employee is entitled to workers’ compensation benefits for mental stress. On April 29, 2014, the Ontario Workplace Safety and Insurance Appeals Tribunal found in Decision 2157/09 that the provisions of the Ontario Act are unconstitutional. The Tribunal declined to apply the legislative restrictions to deny the employee’s entitlement to compensation for an otherwise valid mental stress claim.

FACTS

The employee was a nurse who was mistreated by a doctor she worked with over a period of 12 years. The doctor’s behaviour included yelling at the employee and making demeaning comments about her in front of colleagues and patients. When the employee brought concerns to her team leader, her responsibilities were significantly reduced, amounting to an effective demotion.

After the effective demotion, the employee was unable to return to work. She sought medical and psychiatric treatment and was diagnosed with an adjustment disorder with mixed features of anxiety and depression. Medical professionals found that her condition was caused by workplace stressors.

The employee submitted a claim for workers’ compensation benefits. Her claim was denied on the basis that the Act excluded compensation for mental stress other than stress caused by “an acute reaction to a sudden and unexpected traumatic event.” The employee appealed this decision.

DECISION

The Appeals Tribunal held that the Ontario legislative provisions are an unjustified infringement of the employee’s right to equality provided by section 15(1) of the Canadian Charter of Rights and Freedoms. The Tribunal found that the Ontario legislative provisions:

  • create a distinction between workers with claims for physical injuries, and workers with claims for mental stress;
  • exacerbate the historic disadvantages faced by persons with mental disabilities by reducing their options for workplace injury compensation to a tort remedy that is more complex and expensive than the Ontario no-fault workers compensation scheme;
  • are underinclusive in that the provisions deny compensation for all mental stress claims that are not “an acute reaction to a sudden and unexpected traumatic event” whether or not the mental condition is shown to be work-related; and
  • are not rationally connected with the legislative purpose of ensuring that only work-related injuries are compensable as part of the compensation scheme.

The Appeals Tribunal accepted expert evidence that physicians are capable of reliably determining the cause of mental stress and noted that the difficulty associated with proving causation is not limited to mental stress claims. It is often difficult to prove that both physical and mental conditions arose out of and in the course of employment.

The Tribunal rejected the argument that equal treatment of mental stress claimants would result in “blanket coverage” for mental stress disablements that would negatively impact the rights of other injured workers or undermine the purposes of the legislation.

The Tribunal accordingly granted the employee’s claim for entitlement to compensation benefits for mental stress. It is anticipated that this decision will be judicially reviewed by the Government of Ontario.

WHAT THIS MEANS IN NEW BRUNSWICK

The New Brunswick legislation disentitling employees to workers’ compensation benefits for mental stress has not yet been challenged. The existing New Brunswick legislation and policy guidelines for work-related mental stress claims are substantively similar to the Ontario legislation. In light of this recent Ontario decision, the New Brunswick legislation will likely be subject to a constitutional challenge at some point in the near future.

If the New Brunswick legislation were found to be unconstitutional, as was the case in Ontario, New Brunswick employees would be eligible to receive workers’ compensation benefits for mental stress so long as the mental stress arose out of and in the course of employment. This would substantially increase the amount of employees eligible to receive workers’ compensation benefits and would likely result in an increase in the amount of employees absent from work as a result of mental stress.


Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.