On April 6, 2004, a Board Hearing Officer confirmed the Case Manager s findings.

Transcription

1 1 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker was employed in a coal mine operation from 1978 until 2001, primarily as a long wall electrician. He was also a member of the mine rescue team (a Drägerman ) since He relates his present psychological condition to workplace incidents in 1979, 1984, 1992 and 1993 (or 1994). He had non-compensable esophageal surgery in 1998, to remove a tumor, that had caused the Worker to fear for his life. Following the surgery, he did require some accommodation at work. In 2001, the Employer terminated the Worker s employment due to the closure of the mine. In 2002, the Worker saw a psychiatrist due to chronic pain and depression. Eventually, the Worker came to be diagnosed with depression and post-traumatic stress disorder. On October 7, 2003, the Worker s former representative filed material with the Board seeking acceptance of a claim for psychological injuries. In December of 2003, the Worker filed a WCB Accident Report with the Board. On December 30, 2003, a Board Case Manager found that the Worker s claim was barred by s. 83(6) of the Workers Compensation Act as more than five years had elapsed from the accident that gave rise to the claim. On April 6, 2004, a Board Hearing Officer confirmed the Case Manager s findings. On September 21, 2005, this Tribunal directed the Board to reconsider the appeal to take into account the Board s new stress policy for federal employees (Policy 1.3.6). On January 18, 2006, a Case Manager found that Policy did not change the finding that the Worker s claim was barred by s. 83(6) of the Workers Compensation Act. On April 28, 2006, a Hearing Officer confirmed the January 18, 2006 Case Manager Decision. This decision addresses the Worker s appeal of the Hearing Officer Decision. The appeal was not resolved quickly as there were complications and delays surrounding securing expert evidence and a change of representation of the Worker. An oral hearing was held on December 17 and 18, Post-hearing submissions were filed by Counsel on behalf of the Worker and Employer. The Board participated by watching brief. Counsel on behalf of the Worker argues that there is a causal connection between workplace incidents and the Worker s psychological condition. She argues that it is This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

2 2 sufficient that workplace incidents contribute significantly to the development of a psychological disablement to establish an accident. She argues that Board policy 1.3.6, insofar as it may place additional criteria to establish an accident is inconsistent with the federal Government Employees Compensation Act (GECA). She argues that the Worker s experience as a rescue worker at the Westray mines disaster can be considered as part of the Worker s claim with the Employer. On the statutory bar issue, counsel for the Worker argues that the Worker has filed his claim within the time limits of s. 83 of the Workers Compensation Act. She argues that the Worker s psychological injury is an industrial or occupational disease. She argues that post-traumatic stress disorder and depression are occupational diseases of the mining industry given the dangers involved in the industry. She submits that delayed onset is not unusual for the Worker s condition and that the condition is more consistent with the definition of an occupational disease than an accident. The Worker s representative argues that the Worker gave notice of his claim to the Board within one year of learning that he had an occupational disease. In the alternative, the Worker s representative argues that if the condition is an accident then it should be considered a disablement, and that it should be considered to have occurred when diagnosed. The Employer agrees that the Worker suffers from depression and post-traumatic stress disorder. However, the Employer relates the depression to the Worker s 1998 surgery, and the posttraumatic stress disorder to altered memories secondary to the depression. The Employer also agrees that gradual onset stress can be compensable under GECA. However, it agrees with the criteria under Board policy and views the requirement for unusual or excessive stressors as being consistent with the common law interpretation of GECA. The Employer does not agree that there was a workplace accident related to the psychological condition. The Employer disagrees with the submission that the Worker s psychological disorder is an occupational disease. It notes a lack of objective evidence, such as epidemiological studies, that post-traumatic stress disorder or depression are particular to or characteristic of the Worker s former occupation. The Employer submits that the Westray rescue event does not fall under this appeal, as it was the subject of a separate claim. It further notes a Tribunal decision that found that another Westray claim for another employee of the Employer engaged in the same rescue operation did not fall under GECA.

3 3 ISSUES AND OUTCOMES: ANALYSIS: Is the Worker s depression and post-traumatic stress disorder an industrial or occupational disease? No. It is an injury other than an occupational disease. Is the Worker s claim for an injury by disablement time barred by Statute? Yes, the claim is for a disablement, but the happening of the accident occurred by The claim is time barred by s. 83(6) of the Workers Compensation Act, as it was made more than five years after the accident. Section 4(1) of GECA provides that compensation is payable to federal employees who are either (i) caused personal injury by accident arising out of and in the course of employment; or (ii) disabled by reason of an industrial disease due to the nature of employment. Under s. 4(2) of GECA compensation is paid at the same rate and under the same conditions as if the claim were governed by the Nova Scotia Workers Compensation Act. Under s. 83 of the Workers Compensation Act compensation for an occupational disease, can only be paid where: 1) the worker gives notice of the injury as soon as practical after they learn that they suffer from an occupational disease and file a claim within twelve months of learning they suffer from an occupational disease; or 2) where late notice and the late filing of the claim does not prejudice the Board or employer; and 3) the time to give notice or file a claim can not be extended for more than five years after the worker learns they have an occupational disease. However, s. 83 provides that compensation for an injury, other than an occupational disease, can only be paid where: 1) the worker gives notice of the accident as soon as practical and file a claim within twelve months of the happening of the accident; or 2) where late notice and the late filing of the claim does not prejudice the Board or employer; and

4 4 3) the time to give notice or file a claim cannot be extended more than five years from the happening of the accident. I will consider first whether the Worker s depression and post-traumatic stress disorder is an occupational disease as argued by the Worker s representative. I will then consider her alternative argument that it is a disablement, and if so, whether it is time barred. Is the Worker s depression and post-traumatic stress disorder an industrial or occupational disease? GECA defines industrial disease to be any disease where compensation is payable in Nova Scotia. In Nova Scotia this was mean an occupational disease as defined in the Workers Compensation Act. The Government Employees Compensation Regulations provide that compensation be paid for diseases that are not industrial diseases, but are diseases due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation.... The Workers Compensation Act defines an occupational disease as a disease arising out of and in the course of employment and resulting from causes and conditions (i) peculiar to or characteristic of a particular trade or occupation, or (ii) peculiar to the particular employment.... I accept the submission of the Employer that Government Employees Compensation Regulations do not expand the types of diseases covered for federal employees in Nova Scotia. This is because the Workers Compensation Act covers diseases peculiar to the particular employment, a phase I interpret in the same manner as I interpret due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation. GECA is federal legislation designed to be applied taking into account differences that may exist between provincial workers compensation schemes. It appears that the reason for the expansive definition in the federal Regulations is to provide for coverage for federal employees in provinces that may not cover diseases that are peculiar to particular employment. In Nova Scotia, the application of this Regulation is redundant. The Worker s representative argues that the Worker s post-traumatic stress disorder is an occupational disease as mining is a high risk hazardous environment. She notes that there are industry-wide rescue protocols. She argues that miners are exposed to occurrences of fires, explosions, and other accidents. She noted that expert testimony links exposures to such life endangering events to post-traumatic stress disorder. There is no doubt but that mining is a hazardous calling. However, that does not automatically lead to the conclusion that post-traumatic stress disorder is an occupational disease.

5 5 Typically, an occupational disease is one where causation can be inferred merely by the extent of occupational exposure and a diagnosis. For example, lung cancer or mesothelioma in asbestos workers can be inferred to be work-related with ten years of occupational exposure. For other occupational diseases, such as coal miners pneumonoconiosis, the diagnosis alone is sufficient to give rise to a rebuttable assumption that it arose from employment. If not set by Board policy or by legislation, typically, this tribunal has relied on expert interpretation of epidemiological studies in determining whether a disease is an occupational disease (for example, Decision AD, June 4, 2007). There is no expert evidence before me concerning the length of time in the mines and the occurrence rate of post-traumatic stress disorder and depression. There is no expert evidence that such psychological disorders are an occupational disease related to coal mining. The only evidence concerning occurrence rate is anecdotal - the Employer s WCB representative testified that in the past decade there had been no claims for gradual onset stress and five or six claims for post-traumatic stress disorder, of which only one was accepted. There is insufficient evidence for me to conclude that post-traumatic stress disorder or depression are occupational diseases related to coal mining. Instead, to be accepted as claims they require a specific accident or accident process. Is the Worker s claim for an injury by disablement time barred by Statute? There is a significant distinction between an occupational disease claim and other claims. For occupational disease claims, the five year absolute bar runs from when a worker learns they have an occupational disease. This suggests that actual knowledge of an occupational disease is necessary for this bar to apply. For other claims, the five years runs from the happening of the accident. There is no requirement that the worker have actual knowledge of the accident. I accept the submission on behalf of the Worker that a gradual onset stress claim is a process injury claim for a disablement. I accept her submission that the term accident in GECA should be interpreted to include process injuries. All the workplace events which the Worker argues gave rise to his claim occurred more than five years before he gave notice of his claim. However, are the dates of the events the date of the happening of the accident?

6 6 I do not think so. Instead, it is comparable to an occupational disease, in that the accident is only complete at the earliest of when it 1) causes a loss of earnings; 2) results in a permanent impairment; or 3) causes death. According to the Worker s testimony, his mental health condition worsened considerably around He testified that he withdrew from social activities around that time. He knew something was wrong with him. He was experiencing daily flashbacks concerning events relating to his employment. The Worker s description of his condition in is consistent with a minor to moderate impairment of the total person as found in the psychiatric impairment section of the Board s Guidelines for the Assessment of Permanent Medical Impairment (Board Policy 3.3.2R2). By , the Worker s condition met the criteria for a permanent impairment. I find that by , the happening of the accident had occurred. The Worker did not give notice of the accident to the Employer or Board until This is more than five years after the happening of the accident. I find that the Worker s claim is barred by s. 83(6) of the Workers Compensation Act. Given these findings, I do not need to address the other arguments raised by the representatives of the Worker or Employer. CONCLUSION: The appeal is denied. The Board cannot pay compensation for this claim as it was filed beyond the time limits contained in s. 83(6) of the Workers Compensation Act.