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Gradual Onset Mental Stress is Not Compensable for Federal or Provincial Employees in New Brunswick
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.
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.
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.
What This Means for Employers
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:
- 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