A former coal miner appealed a Workers' Compensation Appeals Tribunal ("WCAT")decision that denied him compensation for his claim of psychological or psychiatric injuries resulting from gradual onset stress.

[2012] N.S.J. No. 476

2012 NSCA 95

Nova Scotia Court of Appeal

M.J. Hamilton, J.E. Fichaud and D.P.S. Farrar JJ.A.

September 7, 2012

The worker was employed by the respondent, Enterprise Cape Breton Corporation ("Employer"), from 1991 to 1999. During this time, he worked at coalfields including the Phalen Colliery. He sought compensation for gradual onset stress which he says was brought on over the course of time by his work in this colliery.

At the WCAT hearing, the worker introduced evidence including that the working conditions at the Phalen Colliery were more stressful than at the Employer's other collieries mainly because of the number and size of roof falls, the rock-gas outbursts, the presence of mine water and the fact Phalen was under a flooded colliery. The evidence introduced by the Employer included the conditions at its four collieries and the conditions of coal mines in other parts of the world excluding those in developing countries. The WCAT accepted the Employer's comparator group. The WCAT then compared the work related stressors experienced by the worker to those experienced by an average worker in the comparator group. It found the stressors experienced by the worker were not unusual and excessive and denied his claim.

The worker appealed the WCAT decision. The issue in the appeal was whether the WCAT erred in law by choosing the wrong comparator group, causing it to wrongly deny compensation to the worker.

The Court held that the applicable standard of review was reasonableness. The Court found that the WCAT's choice of a comparator group was reasonable because: (1) of the lack of similarity between the Phalen Colliery and the other two Canadian mines, (2) Canadian mines represent such a small part of the global underground coal mining industry, (3) of the need for the Employer's mine managers to use expertise from American, English and European mines to develop mine planning best practices for the Phalen Colliery over the years. Having chosen the comparator group, the WCAT carefully analysed the evidence to determine if the worker's alleged stressors were unusual or excessive. The Court found that the tribunal's decision fell within a range of possible outcomes and therefore dismissed the appeal.