Goldenberg NOVA SCOTIA COURT OF APPEAL Citation: Embanks v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 28 Date: 20080415 Docket: CA 280520 Registry: Halifax Between: Wesley Embanks Workers’ Compensation Claimant (Claim No. 1895971) v. Nova Scotia Workers’ Compensation Appeals Tribunal and the Workers’ Compensation Board of Nova Scotia Respondents and Canadian Manufacturers Exporters Association Intervenor Judges: Cromwell, Saunders and Oland, JJ.A. Appeal Heard: March 19, 2008, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Saunders and Oland, JJ.A. concurring. Counsel: Kenneth H. LeBlanc and Linda Zambolin, for the appellant Alexander MacIntosh, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Madeleine Hearns and Paula Arab, for the respondent Workers’ Compensation Board of Nova Scotia David Mombourquette for the Intervenor Reasons for judgment: I. INTRODUCTION: [1] This appeal turns on one main question: in deciding the worker’s gradual onset stress claim under the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (GECA), was the Workers’ Compensation Appeals Tribunal (WCAT) wrong to assess the nature of the workplace events and stressors from an objective point of view? [2] In my view, the answer is no. WCAT correctly decided that compensable gradual onset stress requires that there have been work-related events or stressors that are unusual and excessive viewed objectively, that is, in comparison to those experienced by an average worker in the same or similar occupation. [3] would dismiss the appeal. II. ISSUES AND STANDARD OF REVIEW: [4] WCAT found the worker did not qualify for benefits for gradual onset stress under GECA because, in its view, the workplace stressors experienced by the worker were not “... unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation.” Workers’ Compensation Board (WCB) Policy 1.3.6 mandates this sort of objective approach. WCAT found that this reflects the law which was in place before the Policy came into effect in July of 2005. At the heart of the appeal is whether WCAT was wrong to take this approach and if not, whether WCAT applied it unreasonably to the worker’s situation. [5] The worker submits that WCAT erred in three respects: (i) in finding that the worker\'s subjective reaction to external stressors in the workplace was not relevant to determining if he suffered a compensable accident under s. 4(1) of the GECA; (ii) in interpreting and applying the principles required for determining the presence of unusual and excessive stressors in the workplace required for compensable accident under s. 4(1) of the GECA; and (iii) in rejecting and failing to give adequate weight to the opinion of the worker's treating psychologist in the absence of evidence to the contrary to rebut that opinion. [6] There is no dispute about the standard by which we should review these questions on appeal. The question of whether WCAT applied the correct legal test in this case (the first issue) is reviewed for correctness. How it applied that test in light of the evidence in this record (the issue raised by the second and third grounds of appeal) is reviewed according to the reasonableness standard. Counsel agree that this is consistent with the principles very recently enunciated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC (CanLII). A. First Issue: [7] As noted, the first ground of appeal is that WCAT erred in finding that the worker’s subjective reaction to external stressors in the workplace was not relevant to determining if he suffered compensable accident under s. 4(1) of GECA. The worker submits that in applying an objective approach, WCAT erred in two, related respects. The worker’s position is that the Policy is more restrictive than the law in place before its adoption. It was wrong, the worker contends, to find that Policy 1.3.6 did not change the law and to rely in support of that conclusion on court decisions dealing with traumatic onset stress. WCAT also erred, the worker says, by failing to give GECA the sort of broad and liberal interpretation that should be accorded to workers’ compensation legislation. [8] cannot accept these submissions. For the reasons which follow, my view is that WCAT correctly applied the objective approach to determining whether there were workplace events or stressors sufficient to support a claim for gradual onset stress under GECA and that such an approach was the correct one, both under Policy 1.3.6 and under the general law applying to GECA claims in Nova Scotia. This approach is consistent with and furthers the underlying purposes and scheme of the statute. [9] Before turning to my analysis of these points, it will be helpful to set out some background about workers’ compensation for gradual onset stress, the particulars of the worker’s claim and WCAT’s decision. 1. Gradual Onset Stress under GECA: (a.) Before Board Policy 1.3.6: [10] There is significant difference between the treatment of gradual onset stress under the federal and provincial workers’ compensation statutes. This difference gave rise to controversy and uncertainty about whether, and under what circumstances, gradual onset stress may be compensable under GECA. [11] Gradual onset stress is not compensable injury under the provincial Workers’ Compensation Act (WCA), S.N.S. 1994-95, c. 10. It is specifically excluded from the definition of “accident” by s. 2(a)(iii) of WCA. However, there is no comparable express exclusion under GECA. It follows that, under GECA, whether gradual onset stress is compensable turns on whether it is “... personal injury by an accident arising out of and in the course of his employment” as provided for in s. 4(1)(a) of GECA. The term “accident” is not defined in GECA; the statute simply lists certain matters that are included. The question, therefore, is whether the events giving rise to the stress fall within the term “accident”, either because they fall within the express statutory inclusions (i.e., “a wilful and intentional act” or “a fortuitous event occasioned by physical or natural cause”) or because they should be included by judicial interpretation. [12] The difficulty of this and related questions gave rise to uncertainty. There was the question of whether gradual onset stress was compensable at all under GECA. WCAT had often decided that it was, but the issue was unresolved by this Court. Beyond this threshold question, there was uncertainty about the conditions under which gradual onset stress should be recognized as workplace injury. In particular, there was uncertainty about whether the existence of workplace stressors should be assessed objectively or subjectively. (b.) Board Policy 1.3.6: [13] The Board exercised its policy-making authority to bring clarity to these issues. It adopted Policy 1.3.6 which applies to all decisions made on and after July 25, 2005. The Policy provides that both gradual onset and traumatic event stress are compensable under GECA and sets out the conditions under which each type of stress is compensable. [14] To qualify as gradual onset stress, the Policy sets out four conditions which must be met. Most relevant to this appeal is the first requirement, that the workplace events or stressors must be “unusual and excessive in comparison to those experienced by an average worker in the same or similar occupation.” This requires what is often referred to as an objective approach to assessing the nature of the workplace stressors. The four requirements under the Policy are these: (i) The work-related events or stressors experienced by the worker are unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation; (ii) The worker is diagnosed with mental or physical condition that is described in the DSM IV; (iii) The mental or physical condition is caused by the work-related events or stressors; and (iv) The condition is diagnosed in accordance with the DSM IV by health care provider being either psychiatrist or clinically trained psychologist registered with the Canadian Register of Health Service Providers in Psychology. [15] The Policy also sets out certain work-related events that are non-compensable. These include mental or physical conditions caused by labour relation issues or routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation. 2. The Worker’s Claim: [16] The worker was off work from mid February until July of 2005. He sought benefits on the basis that his loss of earnings resulted from stress arising out of and in the course of his employment as civilian employee of the Department of National Defence. The Board refused to recognize his claim, position maintained by hearing officer and ultimately by WCAT in the decision under appeal. In brief, the background to the claim is this. [17] The worker filed Report of Accident on March 2nd, 2005 claiming that he had suffered work-related stress due to physical and psychological harassment since 1999 by management and staff in his workplace. As set out in the worker’s factum, he claimed that his stress injury arose especially from the following: 1. the employer’s failure to accommodate him with respect to parking when he returned to work in March of 1999 following back injury he suffered in June of 1998. 2. an incident in November of 2002 when manager pushed him against photocopier machine during dispute over whether he had permission to make copy of confidential assessment report; 3. his concern in November and December of 2004 that former supervisor who had previously abused him would again become his supervisor; [18] The worker also referred to another incident, but my view is we cannot consider it on appeal. There is evidence that in October, 2005, supervisor “blew up” at the worker, shouted profanities and pointed his finger. WCAT, however, decided that it could not consider this aspect because it occurred after the worker’s February, 2005, report of accident, the worker continued to work after this incident and there was no medical evidence concerning the impact that event may have had on him. WCAT not having taken this incident into account and there being an inadequate factual record with respect to it, we should not now attempt to consider this incident in our analysis of the appeal. [19] The worker first sought counselling for stress in December 2004 or January 2005. Physician’s Report (dated April 12, 2005) advised that the worker had been off work on stress leave due to conflict at work since February 12, 2005. report dated February 10, 2005 from Ms. Sylvia Frausin, the worker’s treating psychologist, advised that he had been experiencing symptoms of generalized anxiety disorder for more than six months and his symptoms included restlessness, fatigue, difficulty concentrating, irritability, muscle tension, and sleep problems. Ms. Frausin stated that, although the worker did not present as clinically depressed, he exhibited some symptoms of depression. Ms. Frausin was concerned that the worker’s mental health would deteriorate if he was not accommodated in another work setting. [20] Ms. Frausin’s report dated September 16, 2005 stated that, in terms of stress, the worker’s workplace was the source of the only change in his life. The worker had no change in his home and financial situations that would have caused increased stress. Ms. Frausin’s report dated November 18, 2005 identified three significant workplace stressors for the worker: (1) his frustration surrounding his attempts to secure parking spot close to his work area to accommodate his back injury after he returned to work in 1999; (2) his belief, approximately from April to November 2004, that he was not given appropriate training for new computer system and that supervisor withheld new computer password from him for several months; and (3) the incident in November 2002, when manager pushed him against photocopier. [21] WCB Medical Advisor, Dr. Heather Zitner, provided an opinion dated April 22, 2005 advising that, on reviewing the claim, she was unable to relate the worker’s condition to his employment duties. [22] case manager with the WCB made decisions denying the worker’s claim for recognition because his stress injury was not personal injury by accident arising out of and in the course of his employment. The worker appealed unsuccessfully to Board hearing officer who confirmed the case manager’s decision. The worker appealed further to WCAT. 3. WCAT’s Decision: [23] As noted, with respect to the claim based on gradual onset stress, WCAT concluded that the workplace stressors experienced by the worker were not “... unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation.” As Policy 1.3.6 applies only to decisions made on or after 25 July, 2005, WCAT had to confront the issue of whether the Policy should be applied to the decisions relating the worker’s claim in this case. WCAT concluded that whether the Policy applied or not made no difference. With respect to the case in hand, the Policy, in WCAT’s opinion, simply codified the better view of the legal principles which applied before its effective date. As WCAT put it: ... find that the argument [about the application of the Policy] is entirely academic in circumstances such as this one where the impugned policy essentially embodies otherwise-binding jurisprudence. In other words, absent Policy 1.3.6, would still require the worker to meet standard set out in the cases and decisions discussed above. ... find nothing in Policy 1.3.6 which differs materially from the interpretation of s. 4(1) of GECA set out in case law, as it relates to the Worker.” (Emphasis added) [24] Turning to the merits of the claim, WCAT concluded that, viewed objectively, the incidents which Mr. Embanks relied on were not unusual and excessive work-related stressors. As the Tribunal put it: ... When viewed objectively, cannot find that reasonable person would conclude that the workplace events described herein were so unusual or excessive so as to give rise to work-related stress claim. 4. Analysis of the Worker’s Submissions: (a.) The Policy did not narrow the law and WCAT did not err in relying on traumatic onset stress decisions to support its position: [25] The appellant submits that WCAT was wrong to say that the Policy did not narrow the pre-existing law. The appellant’s position is that the Policy makes it significantly more difficult than it was previously for federal employees to establish psychological stress injury claim. WCAT was wrong, the worker maintains, to find support for its conclusions in court decisions dealing with traumatic onset stress. [26] The appellant points to two main ways in which the Policy is more restrictive than the prior law. The first is the most directly relevant to this appeal and concerns the place in the analysis of the worker’s subjective view of the workplace events. The second is concerned with the exclusion of work-related events such as “routine employment related actions” and “labour relations issues”. should note that the appellant is not challenging the legality of the Policy in this appeal. (i.) An objective or subjective approach to the workplace stressors? [27] The appellant refers us to number of WCAT decisions in the years from 1996 to 2000 which, he submits, are inconsistent with the approach required under the Policy. However, my view is that, before Policy 1.3.6 was adopted, there was some inconsistency within WCAT concerning whether an objective or subjective approach should be taken to assessing the workplace stressors. However, agree with the Appeal Commissioner in this case that the Policy sets out the better view of the law and should be taken as declaratory of the principles to be applied in this regard to all stress claims under GECA. This view is consistent with the recent decisions of WCAT panels and with judicial decisions. [28] The decision of the Court in Canada Post Corp. v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (Nurnber), 2004 NSCA 83 (CanLII), 224 N.S.R. (2d) 276 (C.A.) briefly reviewed the state of the law at the Tribunal level at that time. As noted earlier, it was then an open question in this Court as to whether gradual onset stress was compensable under GECA. While WCAT had frequently found such claims to be compensable, there were differing tests applied by different appeal commissioners. While agree with the appellant that some WCAT decisions applied mainly subjective test, others took more objective approach: see, for example, 2002-601-AD (February 28, 2003)(N.S.W.C.A.T.). [29] WCAT, in decisions by two differently constituted three person panels, has decided that the requirement that the stressors be viewed objectively as set out in the Policy is consistent with the law before the Policy: see 2006-425-AD (February 19, 2007) (N.S.W.C.A.T.) and 2006-129-AD (January 12, 2007) (N.S.W.C.A.T.) reversed on other grounds sub nom Bishop v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 29 (CanLII), released concurrently. This was also the view of the Appeal Commissioner in this case. [30] In reaching this conclusion, WCAT relied, in part, on two decisions dealing with traumatic onset stress, Logan v. Nova Scotia (Workers’ Compensation Appeals Tribunal, 2006 NSCA 88 (CanLII), 246 N.S.R. (2d) 146 (C.A.) and D.W. v. Workplace Health, Safety Compensation Commission and Via Rail Canada Inc., 2005 NBCA 70 (CanLII), 288 N.B.R. (2d) 26 (C.A.). The appellant submits that WCAT was wrong to rely on these cases as they did not deal with an objective assessment of stressors in the context of gradual onset stress but rather with what could constitute traumatic event. While that is, of course, what the cases were concerned with, agree with WCAT that some of the reasoning in Logan and D.W. supports the conclusion that the existence of stressors must be viewed in the first instance objectively in the sense have described. [31] At the root of the inquires in those cases, as in this one, is whether there has been an “accident” within the meaning of the legislation. note that in Rees v. Canada (Royal Canadian Mounted Police), 2005 NLCA 15 (CanLII), 246 Nfld. P.E.I.R. 79 at para. 32, the Court held under GECA that “... given an ordinary reading of the language, the definition of “accident” clearly is sufficiently broad to include gradual onset stress which results from [a] wilful and intentional [act or] acts of someone other than the employee.” The same “ordinary reading” of the term “accident” (absent some express statutory expansion of the term beyond its ordinary meaning) suggests that it is not appropriate to speak of an “accident” as something that occurred only in the perception of the worker. To put it simply, the question of whether there was an “accident” in the ordinary sense of the word cannot be answered by deciding that the worker thought there had been an accident. Absent statutory expansion of the definition, such an approach is, in my view, inconsistent with the scheme of workers’ compensation legislation as set out in Logan, supra at paras. 84-88 and W.D., supra at paras. [32] In short, while accept the appellant’s submission that the law prior to the Policy was not settled, accept WCAT’s position that the Policy is declaratory of the better view of the law on this aspect of gradual onset stress claims under GECA. [33] It is important to note, however, that this objective view relates to the assessment of the nature of the events which the worker claims gave rise to the stress. That these events are to be examined objectively in the sense required under the Policy does not mean that the worker’s perception of the events is irrelevant or should be ignored in determining whether there has been an injury by accident arising out of and in the course of employment. [34] Without attempting to be exhaustive, there are various ways in which the worker’s perceptions are relevant and therefore should be considered. For example, the worker’s evidence about the nature of the events is, of course, relevant evidence bearing on that issue. While the worker’s perception is not necessarily controlling, this does not mean that the worker’s evidence about the events should either be treated as suspect or ignored. As further example, the worker’s own, subjective reaction is relevant to whether the required link between the events and the disabling stress has been made out. As in all workers’ compensation claims, there must be link between the injury and the accident. As GECA puts it, the employee must be “... caused personal injury by an accident” (s. 4(1)(a)(i)), (emphasis added). Thus, there are certain subjective elements which should be considered in the sense that one must assess the effects on this particular worker of the workplace stressors. In other words, once persuaded of the objective facts that there have been unusual and excessive stressors compared to those experienced by an average worker in the same or similar occupation, it is necessary to go on to consider whether those events, in the particular case, did give rise to disabling stress. [35] To put it in simple language, the events must be excessively and unusually stressful, objectively viewed and, in the actual case of the individual worker, give rise to the mental or physical condition on which the claim is based. do not understand WCAT to say anything contrary to this in its reasons in this case. (b.) “Labour relations issues” [36] As noted earlier, the Policy excludes from compensation certain types of work-related events: Non-Compensable Work-Related Events Mental or physical conditions are not compensable when caused by labour relation issues such as decision to change the worker’s working conditions; decision to discipline the worker; decision to terminate the worker’s employment or routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation. [37] The appellant submits that this provision of the Policy excludes gradual onset stress that would have been compensable before the Policy came into force. In support of this submission, the appellant relies on the decision of the Newfoundland and Labrador Court of Appeal in Rees, supra. The premise of this argument is that the claim, which was found to be within the jurisdiction of the workers’ compensation authority in Rees, would be excluded by the Policy’s limitations on claims relating to labour relations issues. [38] do not accept this premise. In Rees, the worker, at the request of an investigating policy agency, gave statement in relation to alleged misconduct of police officer. Contrary to assurances given to him at the time, the statement was subsequently disclosed to the officer in the course of hearings in relation to allegations against that officer. Thereafter, the worker alleged that he suffered harassment by the officer. In my view, claims of this nature would not be excluded by the so-called “labour relations” limitations in Policy 1.3.6. Providing statement to the police and suffering harassment from the target of the investigation could not be described as “... labour relations issues such as decision to change [his] working conditions, decision to discipline [him or] decision to terminate [his] employment.” These complaints did not relate to “routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation.” [39] The Rees decision does not persuade me that the Policy’s exclusion concerning labour relations issues is more restrictive than the general law that applies absent the Policy. (c.) Interpreting remedial legislation: [40] The worker submits that workers’ compensation legislation is remedial and should be interpreted liberally. Of course, accept this. However, workers’ compensation provisions must be interpreted in way that is consistent with the scheme and purpose of the legislation. As the Interpretation Act, R.S.C. 1985, c. I-21, s. 12 makes clear, “fair, large and liberal” interpretation must be directed to interpreting legislation so as to “assure the attainment of its objectives”. know of no place in workers’ compensation law in which the very existence of an accident is assessed from the worker’s subjective view of events. An objective assessment, as set out in the Policy, is consistent with the scheme and purpose of GECA and, in my view, furthers its overall intent to provide no fault compensation for injuries resulting from workplace accidents. 5. Conclusion on first issue: [41] In summary, WCAT did not err by considering whether stressors experienced by the worker had been unusual and excessive on an objective basis in the sense that they are compared to the work-related events or stressors experienced by an average worker in the same or similar occupation. This requirement, now embodied in Board Policy 1.3.6, sets out the better view of the law that applies even in the absence of the Policy. B. Second Issue: Did WCAT unreasonably fail to give weight to the opinion of the worker’s treating psychologist? [42] The appellant submits that WCAT unreasonably applied the relevant legal principles to the facts. As the appellant puts it in his factum: The Appeal Commissioner’s reasoning process was unreasonable in that, having found there were unusual or excessive stressors in the Worker’s workplace (she accepted that “interpersonal conflict and ineffective management contributed to toxic work environment”), and faced with Ms. Frausin’s evidence supporting causal link between those stressors and his stress injury, she failed to draw that causal link. [43] The premise of the appellant’s submission is that WCAT found that there had been, in fact, excessive stressors in the workplace. cannot accept this premise. [44] It is true, as the appellant points out, that WCAT characterized the appellant’s workplace as “... very negative work environment [rife] with fear, intimidation and bullying.” (reasons, p. 14) and as “toxic work environment” (reasons, p. 16) Contrary to the appellant’s submissions, however, WCAT did not find that there were “unusual or excessive” stressors in the workplace which could ground claim for gradual onset stress. It found that there were not. refer to p. 15 of WCAT’s decision where it is stated: When viewed objectively, cannot find that reasonable person would conclude that the workplace events described herein were so unusual or excessive so as to give rise to work-related stress claim. [45] Again, at page 17 of its reasons, WCAT stated: ... the events in question are neither unusual, atypical or something reasonable person would consider capable of causing disabling reaction. [46] WCAT analyzed in considerable detail the evidence with respect to all of the matters relied on by the appellant. WCAT made clear finding that there were no stressors on which claim for work-related stress could be based. In light of that finding, for which there is plausible support in the record, the worker’s claim for gradual onset stress could not succeed. C. Third Issue: Did WCAT Unreasonably Fail to Give Weight to the Expert Evidence? [47] The appellant submits that, having found that there were unusual and excessive stressors in the workplace, WCAT erred by unreasonably ignoring the expert evidence adduced by the appellant and, instead, relying on the Commissioner’s own sense of whether the events gave rise to the worker’s disabling condition. [48] In my respectful view, the answer to this submission is the same as to the previous one. For reasons have already set out, do not accept the appellant’s contention that WCAT found that there were unusual and excessive events that could ground claim for compensable gradual onset stress. WCAT, in my view, found the opposite. That being the case, the appellant’s claim based on gradual onset stress could not succeed. IV. DISPOSITION: [49] I would dismiss the appeal. Cromwell, J.A. Concurred in: Saunders, J.A. Oland, J.A.
The worker was unsuccessful in his claim for compensation for gradual onset stress when the Workers' Compensation Appeal Tribunal (WCAT) found that the conditions in his workplace did not constitute unusual or excessive stressors as required under the terms of the relevant Board policy. The worker appealed, arguing, inter alia, that the WCAT erred in finding that his subjective reaction to the stressors in the workplace was not relevant. Appeal dismissed; the WCAT correctly applied the objective approach in determining whether there were workplace events or stressors sufficient to support a claim for gradual onset stress. The Board policy reflected the previous applicable law; namely, that workplace events and stressors must be unusual and excessive in comparison to the work- related events or stressors experienced by an average worker in the same or similar occupation.