Gradual Onset Mental Stress is Not
Compensable for Federal or Provincial
Employees in New Brunswick
July 25, 2016
In this issue:
The Facts
The Decision
What This Means For
Employers
On July 7, 2016, the New Brunswick Court of Appeal in Attorney General of
Canada v Mullin and Workplace Health, Safety and Compensation Commission,
2016 NBCA 31, restored an original denial of compensation for a claim of gradual
onset mental stress issued by WorkSafe NB.
THE FACTS
Mr. Mullin worked for Correctional Service of Canada as a shop instructor at
a maximum security prison in Renous, N.B. As such, Mr. Mullin was a federal
government employee, who lived and worked in the Province. In July 2012, he
informed Corrections Canada that his doctor requested that he take time off from
work as a result of “stress” related to his working environment. His job entailed
supervising inmates with a history of extreme violence, who are assigned to
construct mattresses as their prison employment. The inmates had exposure to
tools and Mr. Mullin alleged overcrowding in the workshop, alongside budget
cuts, created a risky environment that caused him anxiety.
As a result, Mr. Mullin’s mental health declined and he sought “stress leave”. His
doctor conveyed that as a result of repeated exposure to a stressful environment,
Mr. Mullin developed a “gradual onset of mental stress.” It was acknowledged
that Mr. Mullin had not experienced any acute traumatic incident at work.
Federal government employees who suffer a work-related injury are entitled
to seek compensation benefits under the Government Employees Compensation
Act (“GECA”), which diverts such claims to the applicable provincial workers’
compensation regime.
THE DECISION
WorkSafe NB denied the mental stress claim on the basis that it was not
compensable in relation to his work. On Appeal, the Workers’ Compensation
Appeals Tribunal (“WCAT”) overturned this conclusion and held that his “injury”
did arise from employment; and his claim should have been accepted. The
WCAT decision was appealed to the New Brunswick Court of Appeal (“NBCA”).
The NBCA contrasted the definition of “accident” in GECA with the New Brunswick
Workers’ Compensation Act (“WCA”). The WCA specifically excludes disablement
due to mental stress or a disablement caused by mental stress, other than as an
“acute reaction to a traumatic event” in the workplace. GECA states that “federal
employees are entitled to receive compensation at the same rate and under
the same conditions as are provided under the law of the province where the
employee is usually employed.” Gradual onset mental stress is, therefore, not
compensable for employees working in New Brunswick. The Court of Appeal
concluded that Mr. Mullin’s stress was not an “accident” as defined by New
Brunswick legislation. The Court noted that this was not a circumstance where
there was a conflict between the two Acts, because GECA was silent on the issue
of gradual onset of mental stress, while the WCA was clear on its limits.
Page 1 of 2
Contact
WHAT THIS MEANS FOR EMPLOYERS
Amy R. Gough Farnworth
Workplace stress is on the rise and so are costly workplace stress claims.1
From a workers’ compensation perspective in New Brunswick, claims for
mental stress are limited to situations in which mental stress is an “acute
reaction to a traumatic event” that arises in the workplace. The Court of
Appeal affirmed this narrow approach. This does not impact private
insurance long term and short term disability coverage. However,
employers’ WCA assessments should not increase as these sorts of “general
stress” claims will not be accepted. The key takeaways for an employer are:
506.453.9615
[email protected]
Leah Ferguson
506.453.7771
[email protected]
This Cox & Palmer
publication is intended to
provide information of a
general nature only and
not legal advice.
Page 2 of 2
•
The New Brunswick Court of Appeal affirmed that unless an employee
has suffered from an “acute reaction to a traumatic event” they are not
entitled to a workers’ compensation claim for suffering from general
“stress” in the workplace.
•
In essence, in order for stress to reach the level of a compensable
worker’s compensation claim, it must be the result of an acute and
shocking event, such that it produces Post-Traumatic Stress Disorder.
•
Examples of such accepted traumatic events include: witnessing a
horrific workplace accident that leads to injuries or death, armed
robbery or being taken as a hostage, or being the object of sudden
threats including physical threats and harassment.
•
As such, the ability for a worker to receive workers’ compensation
benefits under the New Brunswick workers’ compensation regime for
stress related accidents is very narrow.
•
For employers who employ “First Responders”, however, it should
be noted that Bill-15 was recently introduced in the New Brunswick
Legislature. This Bill, if eventually passed, would amend the WCA to
make it easier for “First Responders”, such as fire, police and ambulance
workers, to receive employment stress related workers’ compensation
benefits. The Bill has gone to a committee for review, however it is
uncertain at this juncture if or when it will become new law in New
Brunswick.
1 « Workplace Stress on the Rise » by Derek Sankey, reporter at the Calgary Herald,
see http://www.calgaryherald.com/business/workplace+stress+rise/5200301/story.html