The appellant employer successfully appealed a decision of the provincial Workplace Health, Safety and Compensation Commission Appeals Tribunal, which had set aside a decision of the provincial Workplace Health, Safety and Compensation Commission dismissing the respondent employee’s claim for compensation benefits for “gradual onset stress.”

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Investigations – Workers compensation – Government employees – Federal and provincial legislation – Psychological injury – employment related – Test – Stress claims

Robichaud v. Canada (Attorney General), [2013] N.B.J. No. 8, 2013 NBCA 1, New Brunswick Court of Appeal, January 10, 2013, W.S. Turnbull, J.T. Robertson and J.C.M. Richard JJ.A.

The respondent employee was employed by the appellant as a supervisor at a mental health facility at a penitentiary in New Brunswick. On June 22, 2010, the respondent was made aware of an anonymous letter written by other employees concerning the respondent. The unsigned letter stated that the majority of nursing staff at the mental health facility experienced a poisoned work environment, including intimidating, threatening, bullying, demeaning, and discriminatory treatment by supervisors. The respondent demanded the employer conduct an investigation with respect to the harassment allegations; however, the employer determined that the allegations did not meet the criteria for a complaint under the applicable harassment policy and explained to the respondent that the letter would not impact on her employment or career. Within a month of receiving the anonymous letter, the employer invited nursing staff, including the respondent, to attend informal resolution processes. The respondent refused to participate. The respondent took the position she would not return to work until an investigation was undertaken.

The respondent was a federal government employee. Section 4(1) of the Government Employees Compensation Act, R.S.C. 1985, c. G 5 (“GECA”), provides that compensation benefits will be paid to federal employees who suffer a personal injury with respect to an accident arising out of and in the course of his or her employment. Federal employees are entitled to benefits at the same rates and conditions as are provided under the provincial legislation. Claims for compensation are administered and determined by the provincial Workplace Health, Safety and Compensation Commission, whose decisions are appealable to the provincial Appeals Tribunal.

The respondent brought a claim for workplace benefits under the Workers’ Compensation Act, R.S.N.B. 1973, c. W 13, on the basis of a psychologist’s diagnosis that she had “acute stress disorder.” The Workplace Health, Safety and Compensation Commission reviewed the respondent’s expert evidence and evidence of a psychologist retained by the Commission and determined that there was no evidence of personal injury by an accident arising out of and in the course of the respondent’s employment. The respondent’s claim was dismissed.

The respondent appealed to the Appeals Tribunal, which set aside the Commission’s decision on the basis that the cumulative stress factors in the respondent’s workplace could result in a reasonable person experiencing undue stress, therefore supporting compensation under the Workers’ Compensation Act.

The employer appealed to the New Brunswick Court of Appeal. The court held the Appeals Tribunal committed an error of law in failing to properly articulate and apply the two pronged framework for assessing compensation claims based on gradual onset stress. The first prong requires the claimant to establish that the “constellation” of workplace events led to the claimant’s heightened stress levels, leading to mental or psychological impairment and his or her departure from the workplace. The second prong asks whether a reasonable person would have reacted differently to the workplace stressors.

Rather than remit the matter to the Commission for reconsideration in a manner consistent with the court’s reasons, the court made the decision that the Appeals Tribunal ought to have made, applying the undisputed facts to the appropriate legal principles. In relation to claims of gradual onset stress, the court held that it is expected that an expert’s opinion will provide a diagnosis of a recognized mental illness, should express an opinion on whether the mental impairment is tied solely to the claimant’s workplace, and should express an opinion on whether the claimant is incapable of working. A “bald opinion” that the claimant is suffering from “profound mental stress” will carry little if any weight and does nothing to advance the claimant’s claim.

The court held the respondent’s claim for compensation was not supportable on two bases. First, the respondent’s expert psychologist provided a diagnosis of “acute stress disorder” where the record did not support that diagnosis according to the diagnostic criteria. Second, a reasonable person, i.e., the average worker in the same or similar occupation, would have reacted differently to the workplace stressors. Other than the anonymous letter accusing the respondent of harassment, none of the workplace stressors identified were either unusual or excessive when compared to ordinary workplaces. As for the allegation of harassment, the employer indicated to the respondent that the allegations would not impact on her career and provided resolution processes that, in the circumstances, do not support a finding that the stressor was excessive.

The court allowed the appeal, set aside the decision of the Appeals Tribunal, and confirmed the decision of the Commission dismissing the respondent’s claim for compensation.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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