Historically, most workers’ comp claims have been for physical injuries, such as broken bones, and occupational illnesses, such as black lung disease. But these days, an increasing number of claims are being filed for mental illnesses and disorders that weren’t originally contemplated by workers’ comp, such as depression and post-traumatic stress. Some jurisdictions have changed their laws to cover mental stress or achieved the same effect via the adoption of a policy by the workers’ comp board covering mental stress. Where mental stress is covered, it generally must be based on an acute reaction to a “traumatic event” that occurs at work or is considered work-related. So what’s a traumatic event? A recent NL case helps clarify the standard courts, tribunals and workers comp boards across Canada use to determine whether an incident qualifies as a traumatic event for workers’ comp purposes.
THE CASE
What Happened: On two occasions, a city bus driver was approached by a co-worker, who literally got in the driver’s face and regaled him with graphically detailed accounts of the latter’s sexual exploits with women 20 years ago. The driver found these “verbal attacks” to be vicious and full of anger. Because the co-worker targeted the driver, he came to believe that there was a connection between the co-worker and a sexual assault on the driver’s wife 20 years ago. The driver became so haunted by this thought that he was unable to work and became suicidal. His mental state also negatively affected his relationship with his wife. So the driver filed a workers’ comp claim for mental stress arising out of workplace harassment. The WHSCC rejected his claim, but a Commissioner reversed that decision, ruling that the claimed workplace incident was a “traumatic event” for workers’ comp purposes. The employer appealed.
What the Court Decided: The NL Supreme Court overturned the Commissioner’s ruling.
How the Court Justified the Decision: The crux of the case: whether an objective or subjective standard should be used to determine if an incident was a “traumatic event.” In other words, is an incident traumatic because the victim felt it was traumatic? Or is it traumatic if only a “reasonable person” would experience it that way? The court noted that although the workers’ comp law limits coverage to stress which is “an acute reaction to a sudden and unexpected traumatic event,” it doesn’t set the standard to be used in determining if an event is traumatic. And no NL court had ever addressed this issue before.
The court looked to the WHSCC’s policy for guidance. Whether an event was traumatic should be assessed using an objective standard, according to the guidance. If the event is found to be objectively traumatic—that is, it would be considered traumatic to a reasonable person—then a subjective standard should be used to assess the worker’s reaction to that event—that is, whether the worker in question had an acute reaction to that event. The court noted that the use of an objective standard as to the triggering event was consistent with the purpose and principles of the workers’ comp scheme and with the practice in other jurisdictions.
Here, the Commissioner didn’t use an objective standard; instead, he applied his own view to the facts. Thus, the court sent the case back to a different commissioner for a new review of the driver’s claim using an objective standard to determine whether the co-worker’s harassment constituted a “traumatic event” [St. John’s Transportation Commission v. NL (Workplace Health, Safety and Compensation Review Division), [2009] NLTD 102 (CanLII), July 3, 2009].
ANALYSIS
The question of whether to use an objective or subjective standard to determine if incidents are traumatic under workers’ comp has a significant and direct financial impact on the workers’ comp system and the premiums employers pay to participate in it. Mental stress isn’t like a broken leg. It may be unclear when the problem began, what caused it and whether it’s connected to the workplace.
Work is almost always bound to be a contributing factor to mental stress. The requirement that the stress be caused by a discrete, traumatic event is thus crucial because it prevents workers from claiming workers’ comp benefits for any mental stress they suffer, such as stress from family problems. The imposition of an objective standard is a further narrowing of coverage for mental stress because it means that merely perceiving an incident as traumatic isn’t enough. Basing trauma on a “reasonable person” means that workers who are hypersensitive won’t be covered.
The St. John’s case is only binding in NL. But the court cites decisions from other jurisdictions, including BC, NB and NS, that all concluded that an objective standard should be used for assessing traumatic events for workers’ comp purposes. Thus, this case reinforces the approach that appears to be being used across Canada for evaluating workers’ comp claims for mental stress.
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