Work-related stress is as old as work itself. But recognition of stress as a workplace hazard is a recent phenomenon. According to the Canadian Mental Health Association, common sources of workplace stress include fear of job loss and layoff; increased work hours; staff cutbacks, which increase workload; and pressure to perform. And in a poor economy, these inducers of workplace stress are heightened. For example, according to a recent survey, one in five US workers said the recession was causing them mental health problems and even more said that their on-the-job stress level had increased.
One of the reasons work-related stress has become such an important OHS issue is that increasing numbers of workers suffering from mental stress are filing workers’ comp claims. But does workers’ comp, which clearly covers work-related physical injuries and illnesses, also cover mental stress claims if the source of that stress is work-related? In recent years, many jurisdictions have updated their workers’ comp laws to address—and often limit—coverage of such claims.
We’ll explain the laws governing workers’ comp coverage of mental stress claims, including the factors courts and workers’ comp boards consider when evaluating a mental stress claim. And there’s a chart at the end of the article spelling out how each jurisdiction addresses mental stress claims.
WHAT THE LAW SAYS
Almost every Canadian jurisdiction addresses the coverage of mental stress claims by workers in its workers’ comp laws, workers’ comp board policies or both. Exception: Québec doesn’t address mental stress in either its workers’ comp law or in a policy issued by its workers’ comp board.
Workers’ Comp Laws
Ten jurisdictions—BC, MB, NB, NL, NT, NS, NU, ON, PE and YT—cover mental stress claims in one of two parts of their workers’ comp laws:
Definitions section. Workers’ comp laws typically include a section that lists the definitions of key terms. Six jurisdictions address mental stress claims in that section under the definition of either:
> “Accident” (NB, NS and PEI);
> “Occupational disease” (MB); or
> “Injury” (NL and YT).
Mental stress section. The workers’ comp laws of four jurisdictions have sections that specifically cover mental stress claims:
> BC: Sec. 5.1 of the Workers’ Compensation Act;
> NT and NU: Sec. 12(b) of the Workers’ Compensation Act; and
> ON: Secs. 13(4) and (5) of the Workplace Safety and Insurance Act.
Workers’ Comp Board Policies
Two jurisdictions—AB and SK—don’t specifically address mental stress claims in their workers’ comp laws. But that doesn’t necessarily mean that such claims aren’t covered in those areas. The workers’ comp boards in these jurisdictions have detailed policies on handling and assessing mental stress claims. (Boards in the 10 jurisdictions covered above also have such policies to supplement the provisions governing mental stress claims set out in their workers’ comp statutes.) And the AB and SK policies mirror the policies on psychological disabilities or injuries in the rest of Canada.
Insider Says: For more information on mental stress at work and the law, see a discussion paper from the Mental Health Commission of Canada entitled, “Stress at Work, Mental Injury and the Law in Canada.”
Limitations on Mental Stress Claims
Regardless of where in the law they address mental stress claims, all Canadian jurisdictions follow the same general rule: Mental stress claims are covered only if two things are true:
> The stress is “an acute reaction to a traumatic event.” (BC, NB, NL, ON and YT also require the traumatic event to be “sudden and unexpected.” AB uses the phrase “an emotional reaction…to a traumatic work-related incident” or incidents; NT and NU use similar language.); and
> The event occurs or arises out of the worker’s employment.
Although the traumatic event must be work-related, as we’ll explain below, it must be unusual and not related to the normal conditions of employment. Thus, for example, an employer’s decision to change a worker’s schedule or discipline a worker is considered a normal part of work and won’t, absent something highly unusual, be considered an event that gives rise to a viable mental stress claim under workers’ comp.
Example: A Nova Scotia worker suddenly fired without cause was diagnosed with depression and co-morbid anxiety disorder. She filed a workers’ comp claim, which was denied. The court ruled that although being fired was a traumatic event in the everyday sense of the term, it wasn’t a traumatic event for workers’ comp purposes [Logan v. Nova Scotia].
Insider Says: Workers in all jurisdictions are entitled to coverage for psychological or psychiatric disabilities related to a physical injury. For example, a worker who’s diagnosed with post-traumatic stress disorder after being severely burned in a safety incident is entitled to coverage for that disorder.
EVALUATION OF MENTAL STRESS CLAIMS
When evaluating mental stress claims, workers’ comp boards generally ask two questions:
1) Was the stress created by a traumatic event at or related to work?
2) If so, did the worker have an acute reaction to that event?
The workers’ comp laws don’t provide much guidance on what constitutes a “traumatic event” or “acute reaction.” But there are two places to get guidance on the meaning of these terms:
Board policies. Workers’ comp board policies on mental stress claims typically provide a wealth of information on the factors the board should consider when evaluating such claims and often provide examples of the types of traumatic events that are covered.
Court cases. Courts are sometimes asked to determine whether a workers’ comp board correctly ruled on a worker’s mental stress claim. By looking at how courts analyse these claims, you can see the factors they consider when doing so. And these factors are generally the same ones considered by workers’ comp boards.
1. The Traumatic Event Requirement
To satisfy the traumatic event requirement, the incident must generally be:
> Clearly and precisely identifiable;
> Objectively traumatic—that is, traumatic to a reasonable worker; and
> Unexpected in the normal or daily course of the worker’s employment or work environment—for example, a fire would be unexpected in the course of a factory worker’s job but wouldn’t be unexpected for, say, a firefighter or paramedic.
Examples of traumatic workplace events that could lead to valid mental stress claims include:
> Witnessing a fatality or horrific accident, such as the amputation of a co-worker’s leg or a suicide;
> Witnessing or being the victim of a violent crime at work, such as an armed robbery, kidnapping or sexual assault; and
> Natural or man-made disasters, such as tornados, fires or terrorist attacks.
The above examples are obvious. But boards and courts have ruled that other, less obvious traumatic events can also lead to compensable mental stress claims:
> Harassment by management or a co-worker [Decision No. 2056/03];
> A heated argument with a supervisor that had the potential to become violent [Children’s Aid Society of Cape Breton-Victoria v. Workers’ Compensation Board]; and
> False accusations by a co-worker [Newfoundland v. Smith].
The deciding factor in determining whether an incident is a traumatic event for workers’ comp purposes is usually the objectively traumatic requirement. In general, the board or court must consider whether a reasonable person in the worker’s position would have been traumatized by the incident.
Example: 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 and came to believe that there was a connection between the co-worker and a sexual assault on his wife 20 years ago. The driver became so haunted by this thought that he was unable to work and became suicidal. He filed a workers’ comp claim for mental stress. The WHSCC rejected his claim, but a Commissioner reversed that decision. The employer appealed.
The NL Supreme Court overturned the Commissioner’s ruling. 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 concluded that whether an event was traumatic should be assessed using an objective standard. 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. Here, because the Commissioner didn’t use an objective standard, the court sent the case back to a different commissioner for a new review of the 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)].
Thus, if a worker is very sensitive and overreacted to an incident that others would be unlikely to consider traumatic, that worker’s mental stress claim will probably be rejected.
Example: A client came to a government community service office and asked to see a representative. She spoke to a representative and returned to the reception area, “ranting and raving” and causing such a scene that the police had to be called. The office receptionist, who witnessed the incident, filed a mental stress claim. The BC Workers’ Compensation Appeal Tribunal rejected her claim, ruling that the incident with the client wasn’t the kind of “sudden and unexpected traumatic event” contemplated by the law. The receptionist was behind her counter the whole time and was never personally threatened or in danger. In addition, she didn’t witness anyone else get injured or killed. The Tribunal also noted that the receptionist had had emotional difficulties before this incident [Decision No. 2004-02347].
2. The Acute Reaction Requirement
Once the workers’ comp board has determined that there was a traumatic event related to the worker’s employment, it must determine if the worker’s response to that event was an acute reaction. The board will often ask the following questions when analyzing a worker’s reaction to a traumatic event:
> Does the worker have a history of stress-related disabilities?
> Was the worker under stress outside of work?
> Was the traumatic event the predominant cause of the stress-related disability?
> Was the traumatic event excessive or unusual in comparison to the typical pressures and tensions experienced by the average worker in that profession?
Every mental stress claim is decided on the basis of the facts of that particular claim. However, there are some general rules:
General stress isn’t covered. Mental stress claims based on general stress are likely to be denied.
Example: A resident youth worker at an Ontario maximum security facility for young offenders asked her supervisor to reassign her after she’d gotten into confrontations with two male residents. He refused. The worker took sick leave and was diagnosed with work-related stress and an ulcer. She filed a workers’ comp claim. The Workplace Safety and Insurance Appeals Tribunal rejected her claim, ruling any stress-related problems the worker was having were caused by general stress. The Tribunal noted that the worker’s job was inherently stressful and that she was also under stress at home as a single parent [Decision No. 847/06].
Stress that builds up over time isn’t covered. Boards are also likely to deny claims based on stress that builds up over time, such as “burn out” or mental exhaustion.
Example: After being criticized by a ranting supervisor, a New Brunswick worker was diagnosed with depression. She filed a mental stress claim but the workers’ comp board denied it. She lost on appeal, too. The tribunal said the worker’s depression wasn’t caused by a traumatic event—the confrontation with the supervisor—but by a series of events both personal and at work. The confrontation was simply “the straw that broke the camel’s back” [D.W. v. New Brunswick].
Insider Says: In some jurisdictions, such as AB, BC, NL, NT, NS, NU, SK and YT, a psychiatrist or psychologist must diagnose the worker with a recognized disability, such as acute stress disorder, post-traumatic stress disorder, adjustment disorder or an anxiety or depressive disorder, for the worker to get benefits for a mental stress claim. For example, in BC, the worker’s condition must be one that’s described in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
Conclusion
Managing workers’ comp claims for mental stress is a challenge because the events that cause them are, by their very nature, unexpected. But it’s important that you and your company understand the factors that workers’ comp boards and courts will consider when evaluating these claims. That understanding may help you prevent mental stress problems from developing in the first place. For example, workers who get counselling immediately after a safety incident, particularly one involving a fatality, may be less likely to develop post-traumatic stress disorder. So consider creating an incident response team that includes a mental health professional or counsellor that can deal with the aftermath of traumatic events quickly and possibly head off mental stress claims.
SHOW YOUR LAWYER
Children’s Aid Society of Cape Breton-Victoria v. Workers’ Compensation Board, [2005] NS C.A. 38 (CanLII), Feb. 23, 2005
Decision No. 847/06, [2006] ON W.S.I.A.T. 1115 (CanLII), May 19, 2006
Decision No. 2056/03, [2004] ON W.S.I.A.T. 489, March 12, 2004
Decision No. 2004-02347, BC Workers’ Compensation Appeals Tribunal, May 5, 2004
D.W. v. New Brunswick, [2005] N.B.J. No. 282, July 21, 2005
Logan v. Nova Scotia, [2006] NS C.A. 88, July 19, 2006
Newfoundland v. Smith, [2000] N.J. No. 273, Sept. 20, 2000
St. John’s Transportation Commission v. NL (Workplace Health, Safety and Compensation Review Division), [2009] NLTD 102 (CanLII), July 3, 2009
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