Managing Stress-Related Claims

Transcription

1 Managing Stress-Related Claims Ben Ratelband James Flanagan November 14, 2003 Hands on support.

2 Managing Stress-Related Claims Table of Contents Introduction...1 What Is Stress?...1 Proactive Steps to Reduce Stress in the Workplace...3 Stress-Related Claims and Human Rights Legislation:...4 Stress-Related Claims Under Workers Compensation Legislation:...8 Stress and Termination of Employment...16 Stress-Related Tort Claims:...18 Sources of Information on Managing Stress in the Workplace...20

3 Introduction Dealing with issues related to stress in the workplace is becoming one of the most serious human resources challenges facing employers, as more and more employees claim that they are unable to work or perform their job functions due to stress. This paper is intended to assist employers to meet that challenge and effectively manage stress-related claims that can arise in a variety of different ways in the workplace. In Ontario, such claims can take many different forms, including: claims for disability benefits or sick leave, lawsuits for wrongful dismissal, tort claims, human rights complaints, and workplace safety and insurance claims. In this paper, we will review the nature of stress and proactive and reactive strategies to manage some common types of stress-related claims. What Is Stress? We hear a lot about stress these days, but what is it? Taber's Cyclopedic Medical Dictionary defines stress as "the result produced when a structure, system or organism is acted upon by forces that disrupt equilibrium or produce strain". The Canadian Centre for Occupational Health and Safety ( CCOHS ) has defined stress in simpler terms, as the result of any emotional, physical, social, economic, or other factors that require a response or change. It is generally believed that some stress is okay (sometimes referred to as "challenge" or "positive stress") but when stress occurs in amounts that you cannot handle, both mental and physical changes may occur. So, some stress is normal and healthy. It provides us with the motivations to meet daily challenges and goals at home and at work. However, too much stress can have both negative physical and mental consequences which can have serious consequences not just for those experiencing stress but also for their employers. There are a myriad of causes for stress (known as stressors ) that can arise both inside and outside the workplace. Some workplace stressors identified by Health Canada and Statscan, include: uncertainty arising from restructuring, layoffs or other significant workplace changes; fear of the loss of employment; increased demands, deadlines and workload; long hours and forced overtime; fear of accident or injury; technological changes; lack of resources and training; performance appraisals; and poor interpersonal relations, discrimination or harassment by co-workers or by managers. Page 1

4 Stress-Related Physical Conditions: Stress has been recognized as a causal factor in various physical conditions. The CCOHS has described this phenomenon as follows: Our bodies are designed, pre-programmed if you wish, with a set of automatic responses to deal with stress. This system is very effective for the short term fight or flight responses we need when faced with an immediate danger. The problem is that our bodies deal with all types of stress in the same way. Experiencing stress for long periods of time (such as lower level but constant stressors at work) will activate this system, but it doesn't get the chance to turn off. The body's "pre-programmed" response to stress has been called the "Generalized Stress Response" which the Workplace Safety and Insurance Board has described as including: increased blood pressure; increased metabolism (e.g., faster heartbeat, faster respiration); decrease in protein synthesis, intestinal movement (digestion), immune and allergic response systems; increased cholesterol and fatty acids in blood for energy production systems; localized inflammation (redness, swelling, heat and pain); faster blood clotting; increased production of blood sugar for energy; and increased stomach acids. Stress-Related Mental Conditions: The Diagnostic and Statistical Manual of Mental Disorders ( DSM IV ) does not recognize stress as a medical diagnosis. However, the DSM IV does contain a number of recognized psychiatric stress-related conditions, such as: acute stress disorder; adjustment disorder; major depressive disorder; bipolar disorders; general anxiety disorder; and post-traumatic stress disorder. These conditions can be severely debilitating and could be a legitimate medical reason for not being able to attend or perform work. However, given that these conditions are not visible, they are sometimes not treated as seriously as real illnesses by employers. This could be a costly mistake. As we shall explore in this paper, in order to minimize the risk of liability, mental health claims need to be dealt with by employers in a manner that is every bit as rigorous as claims of physical disability. Page 2

5 Proactive Steps to Reduce Stress in the Workplace There are a number of proactive steps that can be taken by employers to help lessen the amount of stress employees are experiencing. The aim of these steps is to promote a safe and productive work environment but also to prevent the level of stress on employees leading to legal claims against the employer. Human Resources Development Canada has suggested that employers promote work-life stress management through a number of steps, including: Providing Access to an Employee Assistance Programme ( EAP ): EAP services are usually provided by an external company specializing in this type of service. EAP services are confidential and can be offered to either individuals or groups of employees. Most plans offer access via a toll-free 24 hour telephone line. Counsellors will meet with the employee and discuss the problem. Counsellors will refer the employee to appropriate medical, psychiatric, counselling or other services if longer term care is required. Statscan has reported that, in 1999, 26% of employees in Canada had access to an EAP. Wellness and Health Promotion in the Workplace: Such programmes can take many forms, including: workshops on time management, maintaining healthy habits, team building, dispute resolution, elder care, retirement planning. Implementing and Adhering to Workplace Policies: Consistent application of workplace policies that promote open communication, dispute resolution, fair management practices, safety and consistency and predictability in the workplace. Workplace policies that are thoughtfully designed can lessen many of the workplace stressors identified above. Designing Jobs: The CCOHS has also advised that, to the extent that it is operationally feasible, stress can be reduced by jobs that are designed in a way that is reasonably demanding but not overwhelming, with some variety of tasks, giving some opportunity for continuing learning or training, a sphere of decision-making that is the employee s sole responsibility, recognition for performance and loyalty, and the opportunity for advancement. Proactive employers should also be aware of and watch for warning signs that might indicate that an employee is having trouble coping with stress before that stress becomes so severe that it impairs his or her ability to work. The following warning signs have been identified by the CCOHS as indicators that someone is having difficulty coping with the amount of stress they are experiencing: Physical: headaches, grinding teeth, clenched jaws, chest pain, shortness of breath, pounding heart, high blood pressure, muscle aches, indigestion, constipation or diarrhea, increased perspiration, fatigue, insomnia, frequent illness. Psychosocial: anxiety, irritability, sadness, defensiveness, anger, mood swings, hypersensitivity, apathy, depression, slowed thinking or racing thoughts, feelings of helplessness, hopelessness, or of being trapped. Behavioural: overeating or loss of appetite, impatience, quickness to argue, procrastination, increased use of alcohol or drugs, increased smoking, withdrawal or isolation from others, neglect of responsibility, poor job performance, poor personal hygiene, change in religious practices, change in close family relationships. Page 3

6 Stress-Related Claims and Human Rights Legislation: Ontario Prohibition on Discrimination and the Duty to Accommodate: The Ontario Human Rights Code ( Code ), governs discrimination with respect to all aspects of the employment relationship. Section 5 of the Code provides: 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status or disability. [emphasis added] Section 11 of the Code prohibits constructive discrimination which arises from the application of an ostensibly neutral job rule which adversely affects individuals based on a prohibited ground (such as disability). Specifically, section 11 of the Code provides: 11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. (2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. (3) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. Section 17 of the Code makes it clear that employees with disabilities must be accommodated to the point of undue hardship: 17.(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. (2) The Commission, the Tribunal or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the costs, outside sources of funding, if any, and health and safety requirements, if any. Page 4

7 The range of options for accommodation are extremely varied and depend largely on the circumstances of each case. For example, if an employee is absent due to a disability and is unable to return to any position in the workforce, the duty to accommodate will sometimes be met simply by allowing the employee to remain on the books and, where applicable, retain and accumulate seniority. In other circumstances, the duty to accommodate will be met by finding a suitable alternative position, creating a special work schedule or modifying the duties of the employee. As noted above, employers are required to accommodate disabled employees to the point of undue hardship. While there is no definition of the term undue hardship in the Code, more than mere inconvenience or disruption to the workplace is contemplated. Some of the factors relevant to assessing undue hardship include financial costs, disruption of a collective agreement, staff morale, interchangeability of work forces and facilities, and health and safety. The Ontario Human Rights Commission Guidelines (which do not have the force of law but reflect the Commission s interpretation of the Code) provide: Is Stress A Disability? Undue hardship will be shown to exist if the financial costs that are demonstrably attributable to the accommodation of the needs of the individual with a disability, and/or the group of which the person with a disability is a member, would alter the essential nature or would substantially affect the viability of the enterprise responsible for accommodation. In order for an employee to avail themselves of the protections of the Code, it must first be established by the employee that he or she has a disability within the meaning of the Code. Section 10(1) of the Code defines disability as: (a) (b) (c) (d) (e) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, a condition of mental impairment or a developmental disability, a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, a mental disorder, an injury or disability for which benefits were claimed or received under the Workplace Safety and Insurance Act, As the above definition makes clear, both physical and mental conditions can fall within the scope of disabilities. In fact, in Gibbs v. Battlefords 1, the Supreme Court of Canada held that it is discriminatory to provide persons with physical disabilities with greater entitlements to disability benefits than persons with mental disabilities. The Ontario Human Rights Commission has emphasized the special needs of persons with mental disabilities: Protection for persons with mental disabilities deserves special attention. These persons have the same rights as persons with any other kind of disability. They may, however, have trouble expressing themselves or even identifying that they have a disability. 1 [1996] 3 S.C.R. 566 Page 5

8 It is not unusual for us to hear the phrase, stressed-out to describe how a person is feeling at work. It is also more and more common for us to hear of employees going off work on what many people commonly refer to as stress-leave. Yet, in order to manage stress-related issues in the workplace, it is important for employers to note that stress is not, in and of itself, a medical or psychiatric diagnosis. As noted in the CCOHS definition at the beginning of this paper, stress may lead to physical or mental conditions. So, stress is not a disability per se. However, stress may cause or exacerbate physical or mental conditions that, depending on their nature and severity, could fall within the definition of disability under the Ontario Human Rights Code. In assessing whether or not any physical or mental condition is a disability adjudicators will take into account a number of factors, such as: the duration of the condition and the extent to which the condition creates any significant, ongoing, or persistent limitation; the severity of the limitation upon the person s ability to carry on any of life s important functions; whether the person can be considered to be part of an identifiable group who suffer from the same condition, as opposed to having a condition that is commonplace; and whether regarding the condition as a disability would trivialize the purpose of the Code. For example, in Ouimette v. Lily Cups Ltd. 2, an allergic reaction producing cold or flu-like symptoms of a few days duration, which might have been avoided by the employee s own personal preventative health care, was not considered to be a disability within the meaning of the Code. This suggests that the employer must assess the nature of the condition or illness giving rise to the claim in order to determine if there is an underlying duty to accommodate issue. A claim of stress, without additional medical information, may not be sufficient to support a human rights claim. British Columbia Section 13(1) of the British Columbia Human Rights Code entitled Discrimination in Employment provides: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. 2 (1990) 12 C.H.R.R. D/19 (Ont. Bd. Inq.) Page 6

9 Alberta Section 7(1) of the Alberta Human Rights Citizenship and Multiculturalism Act, entitled Discrimination re Employment Practices states that: No employer shall (a) refuse to employ or refuse to continue to employ any person, or (b) discriminate against any person with regard to employment or term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person. (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. Various stress-related and mental conditions have been recognized by Canadian Human Rights tribunals as disabilities. In the case of N.S.G.E.U. v. Nova Scotia (Human Resources) 3, an employee suffering from major depression arising in part from increased stress at work was held to be mentally disabled under the Nova Scotia Human Rights Act. The arbitrator held that the duty to accommodate required the employer to take positive and active steps to identify a suitable position for the grievor, comparable to the position which he had left prior to his disability. The arbitrator held that the employer must scan the workplace in whatever ways are available to find work that the grievor could productively do. In Calgary Co-operative Association and Calco Club 4, the grievor was discharged for behaving inappropriately towards customers. The grievor s misconduct was subsequently found to have been caused by frontal lobe brain damage. The arbitrator reinstated the grievor and stated that the employer was subject to a duty to accommodate the grievor s disability to the point of undue hardship even though the grievor s mental illness was unknown at the time of his discharge. The arbitrator suggested that accommodation may involve the employer reducing the level of stress in the grievor s position, reassigning the grievor to an alternate position or modifying and/or designing a less stressful position. In Vancouver Police Board and Teamsters, Loc. 31 (James) (Re), 5 the grievor, a police officer, was found to be in unauthorized possession of a weapon from the departmental gun locker. The grievor was suffering from bi-polar disorder, and the conduct was pervasively non-culpable. The arbitrator found that the risk associated with reinstating the grievor was very slight and that there had been a failure to accommodate her disability. The arbitrator re-instated her subject to some conditions. In Chamberlin v Ontario Ltd., 6 the complainant worked as a business manager at a car dealership. As a result of depression brought on by family problems and long working hours, his sale s figures began to drop. The complainant s family physician recommended that the complainant take a vacation. After he returned to work, the complainant was offered a job as a car salesman. The complainant refused this position and his employer terminated him. The Board found that the complainant s condition, an adjustment order with a depressed mood, was a mental disorder. The Board held that the employer discriminated against the complainant by not 3 (1999) Carswell N.S (1992), 24 L.A.C. (4 th ) (2002), 112 L.A.C. (4 th ) (1989), 11 C.H.R.R. D/110 (Ont. Bd. of Inquiry). Page 7

10 returning him to his former position upon his return to work. The employer should have reinstalled the complainant in his former position and assessed his performance prior to deciding to replace him. Tips for Managing Stress Related Claims under Human Rights Legislation: Stress-Related Claims, whether they are primarily mental or physical in nature, should be treated in the same way as any other disability claim: Determine if a claim of stress is related to harassment or discrimination under the human Rights legislation. If so, commence an investigation into the allegations and take appropriate action in response to the investigation s conclusions. Determine if a claim of stress is constitutes a disability within the meaning of the human Rights legislation. Obtain sufficient medical information to provide at least prognosis and details of the physical/mental restrictions that would require accommodation. A diagnosis is arguably necessary to determine if there is indeed a disability that would trigger obligations under the human rights legislation. If the employee is absent from work, ensure the employee is fit to return to work (although perhaps in a modified form) safely. Consider whether accommodation is possible. Explore the options thoroughly. Examine the health and safety, operational and cost consequences of accommodation. Is there modified work available? Is it possible to transfer the employee to another available position? Is it possible to modify the employee s schedule? Would accommodating the employee amount to undue hardship for your company or organization? Implement accommodation. Ensure that employees with mental disabilities and employees with physical disabilities are treated equally under accommodation policies. Monitor the situation following implementation. Stress-Related Claims Under Workers Compensation Legislation: Ontario Is an employee entitled to benefits under the Ontario Workplace Safety and Insurance Act, 1997 ( WSIA ) for mental stress that arises at work? In certain circumstances, the answer yes. Subsections 13(4) and (5) of the WSIA provide: (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress. (5) A worker is entitled to benefits for traumatic mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. However, a worker is not entitled to benefits for traumatic mental stress caused by his or her employer s decisions or actions relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. Page 8

11 Policy: Board Policy Operational Policy Manual Document No elaborates on the application of the statutory provisions relating to mental stress. The most current version of the policy is dated May 10, 2002 and by its terms applies to any single traumatic event, or in the case of cumulative effect the most recent traumatic event, occurring on or after January 1, This policy provides guidelines for determining entitlement for traumatic mental stress. Guidelines: 1. Sudden and Unexpected Traumatic Event The policy guidelines define the kind of event that can be considered to be a sudden and unexpected traumatic event. The policy states: A traumatic event may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker s family member, or others. In all cases, the event must arise out of and occur in the course of the employment, and be clearly and precisely identifiable objectively traumatic, and unexpected in the normal or daily course of the worker's employment or work environment. This means that the event can be established by the WSIB through information or knowledge of the event provided by co-workers, supervisory staff, or others, and is generally accepted as being traumatic. Sudden and unexpected traumatic events may include: witnessing a fatality or a horrific accident witnessing or being the object of an armed robbery witnessing or being the object of a hostage-taking being the object of physical violence being the object of death threats being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or being confronted with a weapon) being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse) being the object of harassment that includes being placed in a life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous) Page 9

12 The worker must have suffered or witnessed the traumatic event first hand, or heard the traumatic event first hand through direct contact with the traumatized individual(s) (e. g., speaking with the victim(s) on the radio or telephone as the traumatic event is occurring). 2. Acute Reaction The policy discusses what constitutes an "acute reaction" as follows: An acute reaction is a significant or severe reaction by the worker to the work-related traumatic event that results in a psychiatric/psychological response. Such a response is generally identifiable and must result in an Axis I Diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). An acute reaction is said to be immediate if it occurs within four weeks of the traumatic event An acute reaction is said to be delayed if it occurs more than four weeks after the traumatic event. In the case of delayed onset, the evidence must be clear and convincing that the onset is due to a sudden an unexpected traumatic event, which arose out of and in the course of the employment. 3. Cumulative Effect Sometimes the nature of an occupation will expose a worker to multiple, sudden and unexpected traumatic events. In these cases, a decision-maker must establish from clinical and other information that there were prior traumatic events, and that these events led to the worker s current psychological state, even if the worker was able to tolerate them in the past. A final reaction to a series of sudden and traumatic events is considered to be the cumulative effect. The last traumatic event that triggers the cumulative effect may not be the most traumatic in the series of events. 4. An Employer s Work Related Decisions or Actions There is no entitlement for traumatic mental stress due to an employer s decisions or actions that are part of the employment function (e.g., terminations, demotions, transfers discipline, changing in working hours, and changing in productivity expectations). 5. Diagnostic Requirements Decision-makers will require an Axis I diagnosis in accordance with the American Psychiatric Association s DSM-IV. Diagnosis may include but is not limited to: acute stress disorder post-traumatic stress disorder adjustment disorder, or an anxiety or depressive disorder. For immediate acute reactions, a claim will be accepted if an appropriately regulated health-care professional confirms the worker is suffering from an Axis I diagnosis. Where the acute reaction is delayed or the onset due to cumulative effect or harassment, a claim will be adjudicated only if there is an Axis I diagnosis of the worker s psychological state provided by a psychiatrist or psychologist. Note that the foregoing provisions of the WSIA do not prevent a claim for entitlement where a worker develops mental stress as a result of a physical injury. In such cases, the WSIB s longstanding Operational Policy continues to apply. Page 10

13 Conclusion: As made clear in the above Policy, an employee will only be entitled to benefits for work-related stress, in a very narrow range of circumstances. In such circumstances, it is important to remember that all of the usual requirements of the WSIA apply. For instance: Section 40 of the WSIA states that where an injured worker is unable to work as a result of an injury, the employer must (amongst other things) initiate and maintain communication with the injured worker throughout the worker s recovery and impairment and attempt to provide suitable employment. 7 Section 41 of the WSIA (subject to certain conditions) also requires employers to offer to re-employ a worker who has been unable to work as a result of an injury. If the injured worker is able to perform the essential duties of his or her pre-injury job, the employer must reinstate the employee to that position or offer the employee comparative alternate employment. In fulfilling the above requirements, the employer is subject to a duty to accommodate the worker up to the point of undue hardship, which is similar to the duty to accommodate imposed under human rights legislation. Employees also have a duty to cooperate with their employer s return to work efforts. British Columbia Legislation: Section 5.1 of the British Columbia Workers Compensation Act states: Board Policy: A worker is entitled to compensation for mental stress that does not result from an injury for which the worker is otherwise entitled to compensation, if the mental stress (a) is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker s employment, (b) is diagnosed by a physician as a mental or physical condition that is described in the most recent American Psychiatric Association s Diagnostic and Statistical Manual of Mental Disorders at the time of diagnosis, and (c) is not 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, to discipline the worker or to terminate the worker s employment. The Board s policy manual entitled the Rehabilitation Services and Claims Manual - Volume II addresses stressrelated claims arising or recurring after June 30, Policy item #13.30 of the Manual sets out the scope of coverage for mental stress claims under s. 5.1 of the Act. 9 The policy provides that mental stress is intended to describe conditions such as post-traumatic stress disorder or other 7 Note that employers must be careful about how they communicate with an injured worker. See the Ontario Court of Appeal decision in Prinzo v. Baycrest Centre for Geriatric Care, discussed under the heading Intentional Infliction of Mental Suffering, below. 8 In many cases, Volume I of the Manual still applies to injuries occurring before June 30, Section 35.1 of the Act, as amended by the Amendment Act 2002, sets out the circumstances in which each Volume applies. Page 11

14 associated disorders. Mental stress does not include chronic stress, which refers to a psychological impairment or condition caused by mental stressors acting over time. As such, workers who develop mental stress over the course of time due to general workplace conditions, including workload, are not entitled to compensation. Under subsection 5.1(a), the Act establishes a two-part test: 1. There must be an acute reaction to a sudden and unexpected traumatic event. 2. The acute reaction to the traumatic event must arise out of and in the course of employment An acute reaction is defined as: coming to crisis quickly, a circumstance of great tension, an extreme degree of stress. It is the opposite of chronic. The reaction is typically immediate and identifiable. The response by the worker is usually one of severe emotional shock, helplessness and/or fear. It may be the result of: a direct personal observation of an actual or threatened death of serious injury; a threat to one s physical integrity; witnessing an event that involves death or injury; or witnessing a personal assault or other violent criminal act. The policy defines a traumatic event as a severely emotionally disturbing event. It may include the following: a horrific accident; an armed robbery a hostage taking actual or threatened physical violence; actual or threatened sexual assault; and a death threat. In most cases, the worker must have suffered or witnessed the traumatic event first hand. In all cases, the traumatic event must be: clearly and objectively identifiable; and sudden and unexpected in the course of the worker s employment. This means that the event can be established by the Board through information or knowledge of the event provided coworkers, supervisory staff, or others, and is generally accepted as being traumatic. The policy explains that before a worker becomes entitled to compensation for injury under the Act, the injury must be arising out of and in the course of employment. 9 It should be noted that the Board also provides compensation for psychological impairment where the condition results from a compensable physical injury or occupation disease. See policy items #13.20 and # Page 12

15 Whereas the statutory requirement is that the injury arise out of and in the course of employment, it is often urged that a claim should be disallowed because the injury is not work related or did not occur in the course of productive activity. There are, however, activities within the employment relationship which would not normally be considered as work or in any way productive. For example, there is the worker s drawing of pay. An injury in the course of such activity is compensable in the same way as an injury in the course of productive work. Lack of control of a situation by the employer is not a reason for barring a claim otherwise acceptable. Control by an employer is an indicator that a situation is covered under the Act at a particular time, but if that control does not exist there may be other factors which demonstrate an employment connection. No single criterion can be regarded as conclusive for deciding whether an injury should be classified as one arising out of and in the course of employment. Various indicators can be and are commonly used for guidance. These include: (a) whether the injury occurred on the premises of the employer; (b) whether it occurred in the process of doing something for the benefit of the employer; (c) whether it occurred in the course of action taken in response to instructions from the employer; (d) whether it occurred in the course of using equipment or materials supplied by the employer; (e) whether it occurred in the course of receiving payment or other consideration from the employer; (f) whether the risk to which the employee was exposed was the same as the risk to which the employee is exposed in the normal course of production; (g) whether the injury occurred during a time period for which the employee was being paid; (h) whether the injury was caused by some activity of the employer or of a fellow employee. This list is by no means exhaustive. All of these factors can be considered in making a judgment, but no one of them can be used as an exclusive test. In considering the matter of work-relatedness, the Board must determine if there is a connection between the employment and the resulting acute reaction. This requires consideration of personal factors in the worker s life, which may have contributed to the acute reaction. For compensation to be provided, the workplace circumstances or events must be of causative significance to the worker s mental stress. If there is no causal link to wok-related factors, the worker s mental stress will not be compensable. It is recognized that some workers, due to the nature of their occupation, may be exposed to traumatic events on a relatively frequent basis (e.g., emergency workers). If such a worker has an acute reaction to a sudden and unexpected traumatic event, compensation for mental stress may be provided even if the worker was able to tolerate past traumatic events. There is no entitlement to compensation if the mental stress is caused by a labour relations issue such as a decision by the worker s employer relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker s employment. Recent Amendments to the Act: On May 5, 2003, the BC provincial government introduced the Skills Development and Labour Statutes Amendment Act, ( Bill 37 ). Bill 37 has passed third reading and is awaiting Royal Assent. Bill 37 provides that either a physician or a psychologist may diagnose a worker s mental stress condition. The term psychologist is defined as a person who is Page 13

16 registered as a member of the College of Psychologists of British Columbia or a person who is entitled to practise as a psychologist under the laws of another province. The amendments permit the Board to require that a diagnosis of mental stress be reviewed by a physician or psychologist appointed by it. The Board may consider that review in determining whether a worker is entitled to compensation for mental stress. Finally, Bill 37 provides that a physician s duties under section 56(1) of the Act, such as the duty to furnish reports to the Board within certain timeframes, apply to a physician or psychologist who makes a diagnosis of mental stress. The Workers Compensation Board is now in the process of finalizing policy in response to Bill 37. Alberta Legislation: The Alberta Workers Compensation Act contains no specific section on stress-related injuries in the workplace. The Act only refers to injuries in general. Board Policy: The Board Policy and Information Manual Policy #03-01 provides detailed guidance on stress-related injuries and compensation. The most current version is dated November 26, The policy defines mental stress as: a commonly used term that describes an individual s non-specific physical and psychological response to the events or changes that occur in his or her life known as stressors. The policy provides that some level of stress is healthy; however, when a person s ability to cope with the stressors is overwhelmed, distress, a negative form of mental stress, can develop and result in diagnosable psychological or psychiatric injuries. The policy notes that "stress" is not an accepted medical diagnostic term, but can result in diagnoses such as adjustment disorders, anxiety disorders, or depression, depending on the circumstances. The policy sets out the circumstances in which a psychiatric or psychological disability is compensable. This policy is effective as of November 28, 2000 and applies to all claims, regardless of the date of the accident. For a psychiatric or psychological disability to be compensable, a confirmed psychological or psychiatric diagnosis must exist as defined in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), and the condition results from: a work-related head injury, exposure to toxic chemicals or gases, anoxia, or any other work-related injury, disease or condition causally connected to organic brain damage; an emotional reaction to a work-related physical disability; an emotional reaction to the treatment process; an emotional reaction in response to a single traumatic work-related incident experienced by the worker that is sudden, as well as frightening or shocking, and has a specific time and place (for example, victim or witness to a robbery or hostage-taking incident, witnessing the death or severe injury of a co-worker, a natural disaster). A full psychological or psychiatric evaluation may not be required for short-term claims for psychological injury resulting from a single traumatic work-related incident; Page 14

17 an emotional reaction to: (i) an accumulation of a number of work-related stressors over time; (ii) a significant work-related stressor that has lasted for a long time; or (iii) both (i) and (ii) together, when all the criteria outlined below, in reference to eligibility for compensation, are met (i.e. there is a confirmed psychological or psychiatric diagnosis as described in the DSM-IV. The policy explains that psychological injuries can have either a traumatic or a chronic onset. Traumatic onset stress occurs in response to a single incident that is sudden, shocking, and specific. Acute Stress Disorders and Post-Traumatic Stress Disorder can result. Chronic onset stress occurs in response to: (a) an accumulation of a number of stressors over time; (b) a significant stressor that has lasted for a long time; or (c) both (a) and (b) together. As with any other claim, the Board investigates the causation to determine whether the claim is acceptable. Claims for this type of injury are eligible for compensation only when all of the following criteria are met: 1. there is a confirmed psychological or psychiatric diagnosis as described in the DSM-IV; 2. the work-related events or stressors are the predominant cause of the injury; 3. the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation; and 4. there is objective confirmation of the events. The policy notes that in addition to the duties reasonably expected by the nature of the worker s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time. Finally, the policy states that the Board may provide treatment for a non-compensable psychiatric or psychological condition as a rehabilitative measure if treatment might: accelerate recovery from a compensable physical disability lessen or eliminate any handicap resulting from a compensable accident. The policy provides that an offer for treatment of this nature is entirely at the Board's discretion and does not imply any acceptance of responsibility for the underlying cause. Page 15

18 Stress and Termination of Employment Just Cause for Dismissal: Employers must be extremely cautious in dismissing an employee for just cause when that employee is suffering from any kind of mental illness, whether stress-related or not. Although there are conflicting authorities on this issue, in our opinion an employee cannot be dismissed for just cause for behaviour resulting from a mental illness. Where an employee s behaviour (e.g. poor performance, insubordination or absenteeism) is related to a stress-related or mental illness, employers must satisfy their duty to accommodate before discharging the employee. In Yeager v. Hastings 10, the plaintiff employee developed a temporary organic brain disease which led to a severe deterioration in his ability to perform his job duties and eventually incapacitated him for a period of two years. Although the employees behaviour would have otherwise been cause for summary dismissal, the Court held that since his conduct is due to his mental illness, there was not cause to dismiss him. The employer was ordered to provide the employee with pay in lieu of reasonable notice of termination. In Rivest v. Canfarge Ltd. 11, a Court held that an employee suffering from mental strain had been discharged without cause. The plaintiff employee, was discharged after failing to show up for work for three consecutive days. Prior to that time, the plaintiff had been working six to seven days per week and up to twelve hours per day. The Court found that, due to the pressures and demands of his job, the plaintiff was suffering from a mental strain, which the Court classify as a real illness. Accordingly, the Court held that the plaintiff could not be responsible for his absenteeism. The employer was required to provide the employee with pay in lieu of reasonable notice of termination. In Casey v. General Inc. 12, the defendant employer terminated the plaintiff employees employment for a neglect of duty following repeated warnings. However, the employee successfully sued the employer for wrongful dismissal. In that case, a Court allowed the plaintiff employee s claim because he had been suffering from an acute stress-related condition which the Court found to have been brought on by the pressures of his job. The employer was ordered to provide the employee with pay in lieu of reasonable of notice of termination. There are a few court decisions that have upheld dismissals for misconduct caused by mental illness. One such case is Tarailo vs. Allied Chemical Canada Ltd. 13. In that case, the plaintiff employee suffered from mood swings and depression. The employee resigned from his employment. Approximately three months later, the employee requested that his letter of resignation be withdrawn. The employer allowed the employee to return to work for a trial period. However, the plaintiff s performance continued to be unsatisfactory. The employee was antagonistic towards his supervisors and failed to attend meetings when requested. When the plaintiff was confronted with a letter outlining his performance problems, he crumbled it up and threw it at his supervisor. Upon being told that he would be discharged, the plaintiff resigned from his employment. The plaintiff was subsequently diagnosed as a paranoid schizophrenic. The Court found that the employee had not been wrongfully dismissed because, in the circumstances, the employer had acted reasonably and the employee s work had been unacceptable. However, the Court did find the employer liable for disability benefits because, at the time of the employee s resignation, the employer failed to assist the employee to make a claim for benefits. The Court held: It was not up to [the employer] to decide whether or not there was a valid claim but rather to assist in completing the required forms. [The plaintiff] may well have been so mentally ill that he did not appreciate that he might have a claim. I concluded that the duty was owed to him. 10 (1984) 5 C.C.E.L. 266 (B.C.S.C.) 11 [1977] 4 W.W.R (1998) 24 C.C.E.L. 142 (Nfld.T.D.) 13 (1989), 68 O.R. (2d) 288 Page 16

19 Resignation: In order for an employee s resignation to be a true resignation, it must be voluntary. A number of courts have held that the onus of establishing that an employee s resignation is truly voluntary is on the employer and, unless the weight of evidence favours such a result, the plaintiff should recover damages for wrongful dismissal. The test for determining whether or not an employee s resignation is voluntary is an objective one. In Rajput vs. Menu Foods Ltd. 14, an Ontario Court stated the test: It seems to me that in deciding whether or not a person was entitled to think that he had been fired, or whether in fact the person had resigned, a court ought to ask itself: what would a reasonable man understand from the words used in the context in which they were used in a particular industry, in a particular working place, and in all the surrounding circumstances? Employers should exercise extreme caution in accepting a seemingly voluntary resignation from an employee suffering from a stress-related or mental illness. The case of Mager vs. Louisiana-Pacific Ltd. 15 illustrates this point. In Mager, the employer proposed that an employee accept a layoff due to a technological change. However, at the time it ought to have been known to the employer that the employee was in extreme emotional distress and, as a result, disabled from performing her job. The British Columbia Human Rights Tribunal found that the employer discriminated against the employee on the basis of mental disability because it failed to ensure that the employee understood: (i) that there were options (other than layoff) available to her; and (ii) the consequences of a layoff. In any case where an employee with obvious emotional or mental problems purports to resign, an employer should be very cautious in accepting the resignation. Ensuring that the employee has been given a clean bill of health by a medical professional or ensuring that an employee obtains independent legal advice about the resignation are ways in which an employer may minimize the risks of a resignation subsequently being found to be involuntary. Constructive Dismissal: The concept of constructive dismissal has been described by the Supreme Court of Canada in the following way: Where an employer unilaterally makes a fundamental or substantial change to an employee s contract of employment a change that violates that contract s terms the employer is committing a fundamental breach of the contract that results in its termination and entitled the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice. In a number of cases, Canadian courts have recognized that where an employer makes an employee s work environment so unpleasant and stressful that it would be unreasonable for the employee to continue in his or her employment, a constructive dismissal may be found to exist. In making this determination, the standard is an objective one. The court must ask whether a reasonable person in the same situation as the employee would conclude that an essential term of the employment contract had been substantially changed by the employer. 14 (1984), 5 C.C.E.L. 22 (Ont. H.C.J.) 15 (1998), 33 C.H.R.R. D/457 Page 17

20 In a number of cases, Canadian courts have found that bullying, harassing behaviour which is caused by or condoned by management can justify an employee considering themselves constructively dismissed: In Saunders v. Chatteau des Charmes Wines Limited 16, the Ontario Superior Court of Justice found that a supervisor s behaviour created a workplace environment which justified the plaintiff employee from considering himself constructively dismissed. The supervisor was hostile, aggressive, profane, rude, demeaning and intimidating in his managerial style over the course of approximately two weeks, Kiteley, J. found that the supervisor s behaviour was so abusive that, to any reasonable employee, the workplace environment had become unbearable. In Stamos v. Annuity Research and Marketing Service Ltd. 17, en employer s failure to take any steps to curb a new employee s verbal harassment, threatening and intimidating behaviour, unjustified attacks on the plaintiff s job performance, unreasonable demands, sexist and bigoted language and hostility amounted to constructive dismissal of the plaintiff. Note that not all stressful work environments will justify a claim of constructive dismissal. For example, in Grant v. Oracle Corp. Canada Inc. 18, a salesman resigned from his employment with his employer because of extreme pressure to meet sales quotas. The plaintiff employee alleged that the defendant s expectations were unrealistic and that the work environment was so oppressive he had been forced to resign. At trial and on appeal, the Manitoba courts disagreed with the plaintiff. In finding that the plaintiff had not been constructively dismissed, the courts noted that the plaintiff had been aware of the high pressure environment at the defendant company when he applied for the position and the defendant had done nothing to unilaterally alter the employee s working conditions or position. Accordingly, the employee was held not to be constructively dismissed and found to have voluntarily resigned from his employment. Stress-Related Tort Claims: Intentional Infliction of Mental Suffering or Nervous Shock: The Ontario Court of Appeal recently described the tort of intentional infliction of mental suffering (sometimes called nervous shock in the caselaw) as having three elements: 1) Flagrant or outrageous conduct by the defendant; 2) calculated to produce harm; and 3) resulting in a visible and provable illness. Recognition of this cause of action in torts originates with the decision in Wilkinson v. Downton, [1897] 2 Q.B. 57 in which a practical joker informed a woman that her husband had been seriously injured, thereby inducing a state of nervous shock and prolonged mental and physical suffering. In finding the defendant liable, Wright J. stated: The defendant has... wilfully done an act calculated to cause physical harm to the plaintiff -- that is, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant. 16 [2002] O.J. No [2002] O.J. No (O.S.J.) 18 (1995), 8 C.C.E.L. (2 nd ) 1 (Man. C.A.) Page 18