On November 3, 2011, the BC provincial government introduced legislation that will expand the coverage of mental stress claims for workers’ compensation coverage.
Previously, in respect to mental stress, pursuant to the Section 5.1(1) of the B.C. Workers’ Compensation Act (the “Act”) a worker could be entitled to compensation for mental stress not resulting from an injury for which the worker would otherwise be entitled to compensation only if the mental stress was an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment [emphasis added]. In addition, the condition had to be diagnosed by a physician or a psychologist and described in the DSM-IV; and the condition could not be caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions or to discipline the worker or terminate the worker’s employment.
Now, pursuant to Bill 14 – 2011 Workers’ Compensation Amendment Act, 2011 (“Bill 14”), which was introduced at First Reading in the provincial legislature on November 3, 2011, the requirement that the mental stress be an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment has been eliminated. In its place, a worker will have to demonstrate that the mental stress is a reaction to:
(i) one or more traumatic events arising out of and in the course of the worker’s employment; or
(ii) a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment.
The legislative coverage for mental stress has expanded in two material respects:
First, whereas previously a worker was required to demonstrate that the mental stress was the result of “an acute reaction to a sudden and unexpected traumatic event” arising out of and in the course of the worker’s employment; now a worker need only demonstrate that one or a combination of traumatic events has occurred without reference to an acute reaction to a sudden and unexpected traumatic event. This appears to be a legislative change meant to comply with the Plesner decision discussed below.
Second, an entirely new sub-category of mental stress has been created for purposes of compensation claims. If a worker can demonstrate mental stress is a reaction to a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment, the worker may obtain mental stress compensation.
Until 2002, all personal injuries, physical and mental, were dealt with under Section 5 of the Act (“Compensation for personal injury”). In practice, compensation for mental stress caused by traumatic events (such as, for example, post traumatic stress disorder) was covered by WorkSafeBC pursuant to Section 5, although the legislation did not expressly state that it covered mental stress.
In 2002, the provincial government received the Core Services Review of the Workers’ Compensation Board (“Review”). The Review recommended compensation for mental stress caused by traumatic events (which was the current practice) as well as compensation for mental stress caused by mental stimuli acting over time (referred to in the Review as “chronic stress”). The Review recommended that compensation for chronic stress should be compensable if three (3) prerequisites, which should be set out in the Act, were met:
(1) Chronic stress could be objectively demonstrated.
(2) Chronic stress excludes bona-fide employment-related stressors. The Review provided the following examples of bona-fide employment related stressors: generic work processes, such as labour relations issues, disciplinary actions, demotions, layoffs, termination or transfer, when done in good faith and in a lawful and non-discriminatory.
(3) Chronic stress claims should be subject to the “predominant cause” approach to adjudicate such claims. Pursuant to this standard, compensation benefits would be payable to the worker when the employment-related stressors are found to represent, on a balance of probabilities, more than 50% causal significance leading to his/her psychological impairment.
Through legislative amendment in 2002, Section 5.1 (the current Section 5.1(1)) of the Act was added. As well, Policy 13.30 (the “Policy”) was added to the list of policies which the Workers’ Compensation Appeals Tribunal was required to apply in its interpretation of the Act.
The Policy described conditions as to what might constitute a traumatic event and an acute reaction to the event, as well as examples of both. The Policy noted that a traumatic event must be a severely emotionally disturbing event such as a horrific accident, actual or threatened physical violence or a death threat. Examples of an acute reaction were provided, such as: resulting from a direct personal observation of an actual or threatened death or serious injury; or witnessing an event that involves death or injury. The Policy set out examples for situations which likely would lead to entitlement to compensation for mental stress and examples where there likely would be no entitlement.
In 2009, the BC Court of Appeal in Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188 (CanLII) (“Plesner”), struck down the WorkSafeBC Policy’s description of a traumatic event. On the facts of Plesner, Mr. Plesner was working at a thermal generating station when a natural gas pipeline on the worksite ruptured, causing a stream of natural gas to rise 30 to 40 feet in the air. An evacuation alert was sounded, and Mr. Plesner made his way to the designated muster station. Once there, Mr. Plesner was told that there was a chance that some hydrogen containers would explode and the workers should stay put. It took 67 minutes to contain the gas escape after which Mr. Plesner remained at work, voluntarily staying overtime.
Mr. Plesner didn’t suffer physical injuries as he was about 40 or 50 feet away when the rupture occurred. But he was eventually diagnosed with post-traumatic stress disorder. He applied for workers’ compensation benefits, claiming that the condition prevented him from returning to work. As expected, Mr. Plesner’s claim was denied — the pipeline rupture was not a traumatic event under Section 5.1(1). Mr. Plesner appealed this decision to the B.C. Court of Appeal, which rendered a decision on April 30, 2009. At issue was whether Section 5.1(1)(a) was contrary to Section 15(1) of the Charter. Section 15(1) of the Charter provides that every individual has the right to equal protection without discrimination based on, among other grounds, mental or physical disability. The majority of the Court of Appeal held that, read together, Section 5.1(1) and the Policy offended Section 15 of the Charter and could not be saved under Section 1 of the Charter. In short, the Court of Appeal found that those suffering from mental disability were treated differently from those suffering from physical disability, and that the differential treatment constituted discrimination under Section 15. Further, the discriminatory conduct was not saved under Section 1 of the Charter. The Court found that the requirement that there must be a traumatic event rather than a case specific assessment of whether the individual’s mental injury was genuinely work-related ignored the particular needs of workers suffering such mental stress injuries. The Court noted that access to compensation and benefits was significantly restricted in comparison with workers suffering physical injuries. There was no justification in the evidence before the Court to demonstrate “minimal impairment” or “proportionality” between the ends sought to be achieved and the methods chosen to achieve them.
The Court noted the most obvious remedy would be to strike the provisions of the Policy which define and describe a traumatic event, including the examples given. The Court then produced a severed version of the Policy, with the severed provisions of the Policy to be of no force and effect, leaving it to WorkSafeBC to revisit drafting a new policy. In addition, the Court indicated that employees who suffer purely mental work-related injuries should be entitled to compensation.
Bill 14 now eliminates the traumatic event requirement that used to exist in Section 5.1. This appears to be a legislative response to the Plesner decision.
In addition, Bill 14 now permits mental stress claims if the worker can demonstrate a significant work-related stressor, or a cumulative series of significant work-related stressors, arose out of and in the course of the worker’s employment. This change could be interpreted as an attempt to meet the spirit of the Plesner decision in allowing employees who suffer purely mental work-related injuries to be entitled to compensation.
However, Bill 14 does not expressly exclude bona-fide employment-related stressors; instead, it presumably relies on Section 5.1(c), which states mental stress can not be caused by “a decision of the worker’s employer relating to the worker’s employment including a decision to change the work to be performed or the working conditions or to discipline the worker or terminate the worker’s employment.”
The B.C. Government has produced a Backgrounder to Bill 14. The Backgrounder sets out the following examples of how mental stress has been broadened pursuant to Bill 14. Assuming Bill 14 becomes law, the Backgrounder identifies the following mental stress claims that would likely be accepted:
- Emergency service personnel who gradually develop post-traumatic stress or another recognized stress disorder as a reaction to the traumatic events they may regularly experience as part of their job.
- Exposure to workplace violence or bullying.
- Ongoing sexual harassment.
The Backgrounder also states that mental stress resulting from employment decisions like discipline, termination or a change in working conditions will continue to be excluded from coverage.
What this Backgrounder does not address, but will be of significant interest to the employer community, is whether performance management issues and attendance management issues, for example, may fall within the words “significant work-related stressor(s)”. It is an open question whether the new provision opens up such scenarios to mental stress claims despite the language of Section 5.1(c). As demonstrated in Plesner, it may be that the Courts will ultimately determine the scope of coverage that this statutory change brings.