2013 NBCA 1, 2013 NBCA 1

COURT OF APPEAL OF NEW BRUNSWICK 53-12-CA ATTORNEY GENERAL OF CANADA (Employer) APPELLANT PROCUREUR GÉNÉRAL DU CANADA (employeur) APPELANT - and - - et - PAULETTE ROBICHAUD (Claimant) RESPONDENT PAULETTE ROBICHAUD (réclamante) INTIMÉE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL INTIMÉE Attorney General of Canada v. Robichaud and Workplace Health, Safety and Compensation Commission, 2013 NBCA 1 Procureur général du Canada c.

Robichaud et Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2013 NBCA 1 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Richard CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Richard Appeal from a decision of the Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act : February 14, 2012 Appel d’une décision du Tribunal d’appel établi en vertu de la

Loi sur la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 14 février 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 25, 2012 Appel entendu : Le 25 octobre 2012 Judgment rendered: January 10, 2013 Jugement rendu : Le 10 janvier, 2013 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Turnbull The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Richard Counsel at hearing: For the appellant Attorney General of Canada: Susan R. Taylor No one appeared for the respondent Paulette Robichaud For the respondent Workplace Health, Safety and Compensation Commission: Charles A. LeBlond, Q.C. Avocats à l’audience : Pour le Procureur général du Canada,

partie appelante : Susan R. Taylor Personne n’a comparu pour l’intimée Paulette Robichaud. Pour la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail,

partie intimée : Charles A. LeBlond, c.r. THE COURT The appeal is allowed, the decision of the Appeals Tribunal is set aside and the decision of the Commission dismissing the individual respondent’s claim for compensation benefits under the Government Employees Compensation Act is affirmed. No costs are ordered. LA COUR Accueille l’appel, annule la décision du Tribunal d’appel et confirme le rejet par la Commission de la réclamation présentée par l’employée intimée sous le régime de la Loi sur l’indemnisation des agents de l’État . Aucune des parties n’est condamnée aux dépens.

The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] This is one of two appeals involving a claim for workers’ compensation benefits in the context of a federal government employee. Each claim was tied to a plea that the inability to work was due to “gradual onset stress”. In each instance the “stressors” were found to be work-related. Initially, each claim was dismissed. The appeals to an administrative tribunal were allowed and both decisions were appealed to this Court.

In my view, both appeals must be allowed for reasons that share a common thread: namely, the articulation of a two-prong framework to be applied when assessing claims for gradual onset stress. That general

framework was established in an earlier decision of this Court. [ 2 ] 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. In turn, “accident” is defined to include a “wilful and an intentional act” and a “fortuitous event occasioned by a physical or natural cause”.

The federal legislation goes on to provide the employee is entitled to benefits at the same rate and conditions as are provided for under the provincial legislation, in this case, the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13. 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 established under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c.

W-14. [ 3 ] In Stewart #1 this Court held that federal employees working in New Brunswick, who are unable to continue with their employment due to “gradual onset stress”, resulting from “stressors” in the workplace, may qualify for workers’ compensation benefits under GECA : Stewart v. Workplace Health, Safety and Compensation Commission (N.B.) , 2008 NBCA 45 , 331 N.B.R. (2d) 278. This decision is consistent with rulings in other provinces (see Embanks v. Workers’ Compensation Appeals Tribunal (N.S.) , 2008 NSCA 28 , [2008] N.S.J. No. 133 (QL), and Rees v.

Canada (Royal Canadian Mounted Police) , 2005 NLCA 15 , [2005] N.J. No. 103 (QL) ) . However, gradual onset stress is not a compensable injury under the provincial Workers’ Compensation Act . In that statute, “accident” is worded to exclude stress claims other than those falling within the category of “an acute reaction to a traumatic event”. There is no comparable express exclusion in GECA . As to the policy reasons for eliminating general stress claims from the ambit of the provincial legislation, see D.W. v.

Workplace Health, Safety and Compensation Commission (N.B.) , 2005 NBCA 70 , 288 N.B.R. (2d) 26. [ 4 ] In Stewart #2 , this Court further held that the analytical framework for determining whether a federal employee is entitled to benefits for a disabling condition resulting from gradual onset stress is two-prong: Stewart v . Workplace Health, Safety and Compensation Commission (N.B.) , 2010 NBCA 67 , 363 N.B.R. (2d) 288 . First, it must be established that the employee suffers from a work-related disability caused by gradual onset stress.

Second, an objective test must be applied to determine whether the work-related stressors bring the claim within the definition of “accident”. The majority framed the test in terms of whether a reasonable person would have reacted the same way to the work-related stressors. Correlatively, the stressors must be looked at individually and collectively. [ 5 ] My formal analysis begins with a recitation of the essential facts. The claimant was employed as a “nurse manager” at a mental health facility at Dorchester Penitentiary.

On June 22, 2010, the claimant was made aware of an anonymous letter written by other employees concerning the claimant and another nurse supervisor. The unsigned letter states that the majority of the nursing staff felt obliged to voice their concerns about their poisoned work environment and, in particular, the intimidating, threatening, bullying, demeaning and discriminatory treatment they experienced at the hands of their supervisors. The authors of the letter asked that their signatures be kept confidential for fear of reprisal.

It would be another year before the claimant obtained the identities of the letter’s authors, through an access to information request. In the interim, the claimant, and then her lawyer, demanded the employer conduct an investigation with respect to the “harassment” allegation. However, the employer determined that the letter’s allegations did not meet the criteria of a complaint under the Treasury Board’s harassment policy. This was explained to the claimant, as was the acknowledgment that the letter would not impact on her employment or career.

Moreover, while the employer did not conduct an investigation, it recognized that mediation was a pre-condition to any investigation and that the harassment policy also provides for early resolution (e.g. counseling). Within a month of receiving the anonymous letter, the employer invited nursing staff, including the claimant, to attend “informal conflict management”. The claimant refused to participate. She also failed to grieve the decision under the Public Service Labour Relations Act , S.C. 2003, c. 22, s. 2.

The claimant would not return to work until an investigation was undertaken. [ 6 ] Two days after being made aware of the anonymous letter, the claimant saw a psychologist who ultimately diagnosed the claimant with “Acute Stress Disorder”, after applying the criteria set out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). The psychologist was of the opinion that the lack of a resolution with respect to the claimant’s employment situation meant that the stress would continue.

The psychologist wrote that the claimant felt “victimized” by her accusers, given the numerous allegations of harassment and misconduct. The claimant applied for workers’ compensation benefits. The Commission retained a psychologist to review the claim. He disagreed with the diagnosis of Acute Stress Disorder. On the basis of the evidence submitted, the Commission concluded there was no evidence of personal injury by accident arising out of and in the course of employment. Accordingly, the claim was dismissed on August 24, 2010, prior to the release of Stewart #2 (September 16, 2010).

Subsequently, the Commission was asked to reconsider its decision. The claimant now raised, for the first time, the notion of “cumulative stress”. On May 31, 2011, the Commission upheld its original decision. On June 27, 2011, the claimant commenced a lawsuit against her employer alleging constructive dismissal. [ 7 ] The proceedings before the Appeals Tribunal were anchored to this Court’s decision in Stewart #2 and the plea of gradual onset stress. In the de novo hearing, the claimant testified that the stress in relation to the anonymous letter was caused by the lack of detail as to its author(

s) and what was being alleged. The claimant testified she believed her career had been damaged and that she wanted to clear her name or obtain closure. The claimant agreed that the conflict management sessions would have provided an opportunity to air grievances, but she chose not to participate unless there was an investigation. The claimant also confirmed

that she did not file a grievance under the Public Service Labour Relations Act . The claimant went on to identify other stressors in the workplace: she was busy and on call 24/7; there were budgetary and staff shortage issues; and the workplace was experiencing interpersonal conflicts. But it was the anonymous letter that “broke the camel’s back”. The executive director of the federal facility also testified. She was brought to the federal facility to “heal the workplace”.

She also testified that, while the workplace was not a poisoned environment, it was an “unhealthy” one. [ 8 ] In a decision dated February 14, 2012, the Appeals Tribunal allowed the claimant’s appeal, retroactive to June 22, 2010, the date of the “accident”. While the Tribunal had the benefit of Stewart #2 when outlining the applicable legal framework, there is an aspect of the Tribunal’s decision that is truly problematic. At one point, the Tribunal writes that this Court “went on to state a two-part test of subjectivity combined with objectivity”.

A few paragraphs later the Tribunal introduces a quote from Stewart #2 with the sentence: “The Court [of Appeal] went on to state a two part test of subjectivity combined with objectivity”. Of course, neither the majority nor the dissenting opinion adopted such a test. The relevant paragraphs from Stewart #2, which the Tribunal reproduced in its decision, confirm that fact.

The Tribunal’s decision goes on to hold: “The Appeals Panel finds through the testimony of both the appellant and the executive director as well as from documents in the Appeal record that the workplace meets the objective test as outlined in Stewart”. That finding is followed by another: “The panel finds that the cumulative stress factors in the workplace can result in a reasonable person experiencing undue stress”. [ 9 ] As the standard of review applied to decisions of the Appeals Tribunal is well-established, there is no need to refer to the relevant jurisprudence.

Deference is owed on the standard of “reasonableness” to findings of mixed law and fact and fact alone. With respect to the latter category, the standard is also framed generally in terms of “palpable and overriding error”. On questions of law and jurisdiction the review standard has always been correctness. In my view, the Appeals Tribunal failed to properly articulate and apply the objective test articulated in Stewart #2 (the second prong).

Above all, this case raises questions of law tied to the articulation and application of the legal framework to be applied when dealing with workers’ compensation cases involving gradual onset stress. [ 10 ] As explained in Stewart #2 , there is a two-prong framework to be followed in 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 ( e.g ., depression) and his or her departure from the workplace.

The Commission must be presented with sufficient proof that the workplace stressors in fact occurred and that these stressors led to the claimant’s mental impairment and inability to work. What is normally expected is that the claimant will provide the Commission with an opinion authored by a licensed psychologist or psychiatrist. One would expect the diagnosis to be made having regard to the criteria widely accepted by the psychiatric and psychological communities, being generally that identified in the applicable DSM.

However, the current manual does not recognize such a disorder, nor has any evidence been adduced of gradual onset stress being recognized as a specific condition. This may explain why the expert psychologists approached the issue in terms of a claim for “acute stress disorder” which is identified and dealt with in the DSM-IV.

As the parties did not raise and address this conundrum, the following general common sense remarks must be considered by those willing to proffer an opinion on whether a person is suffering from gradual onset stress. [ 11 ] Generally, it is expected that the expert’s opinion will provide a diagnosis of a recognized mental illness. For example, the DSM-IV makes reference to other disorders such as “Generalized Anxiety Disorder and “Major Depressive Disorder”.

The symptoms associated with these disorders are reflective of those that could prevent an employee from carrying out his or her duties due to gradual onset stress. It is also expected that the expert will offer a prognosis and indication of the treatment required. The expert’s report should also express an opinion on whether the mental impairment is such that the claimant is incapable of working and whether the impairment is tied solely to the claimant’s workplace. What is not expected is a bald opinion that the claimant is suffering from “profound mental stress”. Such statements carry little if any weight.

Similarly, an opinion which is a recitation of what the claimant has told the expert in regard to events that occurred in the workplace followed by a statement that it would be “detrimental” to the claimant’s health to return to work is unhelpful and does nothing to advance the worker’s claim. [ 12 ] The second prong of the framework has been framed as a question: Would a reasonable person have reacted differently to the workplace stressors (the triggering events)? But who is the reasonable person? That question was not raised in Stewart# 2 . The answer should be obvious.

Based on the objective test articulated in that decision, and the jurisprudence, a comparison has to be made with the average worker in the same and/or similar occupation. In turn, this leads one to ask the ultimate question: whether the workplace stressors were unusual and excessive compared to those experienced by an average worker in the same or similar occupation. The stressors must be looked at individually and collectively. [ 13 ] The above articulation of the second prong might lead one to ask whether it is consistent with the analysis offered in Stewart #2 .

In that case, the Commission had argued that the criteria to be met with respect to claims for gradual onset stress were those set out in the policy directive adopted by the Nova Scotia Commission (Policy No. 1.3.6). The majority in Stewart #2 said “no”. However, under the Nova Scotia policy there is a requirement that the stress be caused by work-related events. Are we to assume that the majority meant to exclude this condition precedent? Obviously not. What was and remains problematic, for example, is the policy directive that “the stress cannot have resulted from labour relations issues”.

It is clear the majority in Stewart #2 rejected the imposition of this condition precedent.

[ 14 ] Returning to the facts of the present case and the decision of the Appeals Tribunal, it is evident that its decision does not comply with the two-prong framework outlined above. This deviation qualifies as an error of law. Indeed, if the decision of the Tribunal were allowed to stand, it could be cited for the overly broad proposition that a worker experiencing undue stress in the workplace, because of an internal conflict between employees, need not report to work until such time as the conflict is satisfactorily resolved.

In the interim, the employee is entitled to collect compensation benefits for gradual onset stress. That is not what Stewart #2 is all about. [ 15 ] Having identified an error of law, this Court is faced with one of two options. It can set aside the Appeals Tribunal’s decision and remit the matter to the Commission for reconsideration in a manner consistent with these reasons. Alternatively, the Court can make the decision that the Appeals Tribunal ought to have made. In my view, the latter option is the appropriate one and consistent with what this Court did in Stewart #2 .

The essential facts are not in dispute and there is nothing to be decided which requires the relative expertise of the Commission in regards to matters that typically never make their way to this Court and for which deference would be required. [ 16 ] The first prong of the analytical framework requires a determination as to whether the claimant experienced work-related stressors that led to the psychological impairment ( e.g., depression) and her inability to return to work.

The claimant cited the following work-related stressors: (1) she was busy and on call 24/7; (2) there were budgetary and staff shortages; (3) the workplace was full of interpersonal conflicts; and (4) the impact of the anonymous letter which accused the claimant of harassment and misconduct in the workplace. Each of these facts has been established or admitted. The next question is whether those stressors led to the deterioration of the claimant’s mental health such that she was incapable of returning to work. As noted earlier, there is conflicting expert evidence on this point.

The claimant’s expert psychologist made a diagnosis of “Acute Stress Disorder” in accordance with the DSM-IV. The Commission’s expert disagreed with that diagnosis. [ 17 ] One cannot help but restate the diagnostic criteria set out in the DSM-IV for “Acute Stress Disorder”. First, the person must have been exposed to a traumatic event in which both of the following were present: (

a) the person experienced, witnessed or was confronted with events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others; (

b) the person’s response involved intense fear, helplessness or horror. Additionally the person must manifest three or more of a list of “dissociative symptoms”. The list includes for example: dissociative amnesia (inability to recall an important aspect of the trauma); being in a daze; a subjective sense of numbing; detachment or absence of emotional responsiveness. There is nothing in the appeal record that would support the diagnosis proffered by the claimant’s expert.

The Commission’s expert stated this on more than one occasion. [ 18 ] In the end, this Court must accept that the parties were prepared to argue the case before the Appeals Tribunal based on the claim of gradual onset stress and without the benefit of further expert reports. Be that as it may and for the sake of advancing this case, I am prepared to ignore the shortfalls in the expert evidence and assume for purposes of deciding this appeal that the claimant has met the first prong of the two-prong test set out in Stewart #2 .

In other words, I am going to assume that the true reason why the claimant could not return to her job was because of a psychological disorder resulting from the stressors experienced in the workplace. [ 19 ] This takes us to the second prong of the framework for assessing compensation claims tied to gradual onset stress. The general question is whether a reasonable person would have reacted differently to the workplace stressors (the triggering events). But who is the reasonable person? It is the average worker in the same or similar occupation.

In turn, this leads one to ask the ultimate question: whether the workplace stressors were unusual and excessive compared to those experienced by an average worker in the same or similar occupation. Of course, the stressors must be looked at individually and collectively. On the facts of the present case, the answer to the question has to be “no”.

In support of that oracular statement, I turn to the workplace stressors cited by the claimant: she was busy and on call 24/7; there were budgetary and staff shortages issues; interpersonal conflicts in the workplace; and the anonymous letter accusing the claimant of harassment and improper conduct. Other than the last event, none of the stressors identified can be labeled as either unusual or excessive when compared to what most Canadian workers are facing today.

As for the allegation of harassment and misconduct directed at the claimant, even though it may appear unusual on its face, the employer had already indicated that the allegations would not impact on her career and that mediation of the internal conflict could be pursued. In these circumstances, the stressor cannot be said to have been excessive and, as a result, the reasonable worker would not have responded as did the claimant. This applies not only to the state of her mental health but also to the choices she made with respect to options that could have possibly eliminated stress from her work environment.

In brief, based on the second prong of the framework articulated in Stewart #2, the claim for compensation benefits must fail. [ 20 ] I would allow the appeal, set aside the decision of the Appeals Tribunal and affirm the decision of the Commission dismissing Ms. Robichaud’s claim for compensation benefits under GECA . No costs are ordered.

____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: _________________________________ WALLACE S. TURNBULL, J.A. __________________________________ J.C. MARC RICHARD, J.A.