2013 NBCA 2, 2013 NBCA 2

COURT OF APPEAL OF NEW BRUNSWICK 55-12-CA ATTORNEY GENERAL OF CANADA (Employer) APPELLANT PROCUREUR GÉNÉRAL DU CANADA (employeur) APPELANT - and - - et - SHAWN ANDERSON (Claimant) RESPONDENT SHAWN ANDERSON (réclamant) INTIMÉ - 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. Anderson and Workplace Health, Safety and Compensation Commission, 2013 NBCA 2 Procureur général du Canada c.

Anderson et Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2013 NBCA 2 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 24, 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 24 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: Sarah Drodge For the respondent Shawn Anderson: Jack Haller 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 : Sarah Drodge Pour l’intimé, Shawn Anderson : Jack Haller 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’employé intimé 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 the second of two appeals, heard on the same day, involving a claim for workers’ compensation benefits made by an employee of the federal government. 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, the present appeal must be

allowed for reasons that share a common thread with those given in regard to the first appeal: namely, the articulation and application 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 and amplified in the first of the two appeals: Stewart v . Workplace Health, Safety and Compensation Commission (N.B.), 2010 NBCA 67 , 363 N.B.R. (2d) 288 ( Stewart #2 ) and Attorney General of Canada v.

Robichaud and Workplace Health, Safety and Compensation Commission , 2013 NBCA 1 . [ 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 “willful 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 which fall 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 gradual onset stress is two-prong. First, it must be established that the employee suffers from work-related 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 ] In Attorney General of Canada v. Robichaud, this Court elaborated upon the two-prong framework articulated in Stewart #2 . 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 impairment and the inability to work. The second prong of the framework begins with a general question: Would a reasonable person have reacted differently to the workplace stressors (the triggering events)? The reasonable person standard requires a comparison of the claimant with the average worker in the same or similar occupation.

The objective standard leads to 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. [ 6 ] The essential facts of this case are as follows. The claimant is employed as a correctional officer at a maximum security penitentiary: the Atlantic Institution in Renous, New Brunswick. Two incidents occurred in the workplace that are the foundation of the claim for compensation benefits. The first occurred in December of 2008.

In that month, another correctional officer was assaulted by an inmate. The claimant and other officers responded to the alarm and the inmate was subdued. An allegation of excessive force was subsequently made against two correctional officers, not including the claimant. The investigation resulted in disciplinary and criminal charges against the two officers. While the claimant was not disciplined or charged he was interviewed in the course of the investigation, as were several other officers.

The claimant asserted that he was “pressured to bear false witness against his fellow officer” and that as a result he experienced “stress”. The Assistant Warden of Operations testified that the claimant was pressured to tell the “truth”. [ 7 ] The second of the two incidents occurred in February of 2009. An investigation into another officer had been ongoing since the summer of 2008. That officer was suspected of bringing drugs into the institution. In the course of that investigation, an allegation was made regarding the claimant. Ultimately, the allegation made against him was found to be without merit.

The other officer was dismissed. After the investigation had concluded, the claimant was informed by the Assistant Warden of the allegation. That revelation prompted the claimant to file a claim for compensation benefits based on being: “Falsely accused of

an act whereupon information was leaked to persons prior to my knowledge of the incident and investigation in question.” [ 8 ] The claimant was interviewed by three psychologists and a psychiatrist. The first psychologist diagnosed the claimant with “Acute Stress Disorder” brought about by two major workplace events during a four month period. The psychologist ended his report by stating: “Following brief intervention the symptoms moderated and he was able to return to work and

his normal job duties.” The second psychologist found there was a “history of incidents where the claimant was confronted with near death of another and was required to intervene in those situations”. In addition, the psychologist indicated that the claimant had experienced additional trauma and referred to the two incidents outlined above. The psychologist made the following diagnoses: posttraumatic stress disorder; major depressive disorder, generalized anxiety disorder, blood clotting disorder, caring for an elderly parent and alienation from fellow employees.

The third psychologist disagreed and concluded the stressors that the claimant experienced could not be considered traumatic or the result of cumulative stress. The claimant’s psychiatrist advised the Commission that: “Mr. Anderson faced several traumatic situations at his workplace. I think his illness is precipitated by the traumatic events.” [ 9 ] The Commission dismissed the claim for compensation benefits on March 5, 2010. Subsequently, the Commission upheld its initial decision in a letter dated December 7, 2010.

The matter was appealed to the Appeals Tribunal which rendered its decision on February 24, 2012, allowing the appeal. In reaching its decision, the Tribunal began its formal analysis with an admission that Stewart #2 was the leading case dealing with “cumulative stress”. As happened in Attorney General of Canada v. Robichaud , the Tribunal held that Stewart #2 had stated a two-part test of subjectivity combined with objectivity. The extent of the Tribunal’s analysis is limited to the following.

The Tribunal concluded that all of the professionals who offered an expert opinion agreed that the claimant suffers from a “psychological illness” and that the only differences in opinion related to the concept of “causation”. The Tribunal ends its three paragraphs of analysis with the following two: The Panel finds that the workplace, by its nature, is a stressful environment. Given the workplace as described and the additional stresses of the appellant being made aware of a rumour that he was being investigated is sufficient for a reasonable person to react in a similar fashion.

The Panel finds that while no significant traumatic event occurred, on a balance of probabilities, the result of the cumulative stress caused the condition and, therefore, the appeal is accepted. [ 10 ] With great respect, the Appeals Tribunal’s articulation of the applicable legal framework does not reflect what was said in Stewart #2 , as amplified in Attorney General of Canada v. Robichaud. This qualifies an error of law and, therefore, the requirement of deference to the tribunal decision dissipates.

It should be obvious that if the Tribunal’s decision were allowed to stand, it could be cited for the proposition that a person who comes to a job suffering from stress and who continues to experience stress in a stressful job is entitled to compensation benefits if he or she is no longer capable of performing their job because of “cumulative stress”.

However, that is not what Stewart #2 is all about. [ 11 ] The first question this Court must address is whether the claimant is seeking compensation benefits based on “Acute Stress Disorder”, which is described in the Diagnostic and Statistical Manual of Mental Disorders (the “DSM- IV”). If that were the case, and certainly some of the experts proffered an opinion on that understanding, it would be necessary to restate the diagnostic criteria set out in that manual. 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; and detachment or absence of emotional responsiveness. There is nothing in the appeal record that supports the diagnosis of the claimant suffering from “Acute Stress Disorder”.

If in fact such events did occur at a time when the claimant worked for another employer, it should have been clearly stated and discussed by the experts. [ 12 ] If the facts do not support a diagnosis of acute stress disorder, which they do not, then the case falls to be decided on the application of the two-prong framework set out in the jurisprudence with respect to claims for a disability resulting from gradual onset stress which is work-related.

The first - prong requires the claimant to establish that the “constellation” of workplace events led to the claimant’s heightened stress levels leading to psychological impairment and his or her inability to continue in their job. Despite the conflicting expert opinions tendered into evidence, the Appeals Tribunal made a factual finding that the claimant is suffering from a “psychological illness” and that he is unable to work. Certainly, it would have been helpful if the Appeals Tribunal had identified the “psychological illness” and its symptoms.

Be that as it may, I am bound to accept that finding unless “palpable and overriding error” has been identified. No such error having been argued, the case must turn on the second prong of the framework. However, I am aware of evidence that the claimant was suffering from a pre-existing condition tied to events and employment that occurred prior to the claimant commencing his employment at the federal facility at Renous.

This leads to the inference that the claimant went from one stressful work environment to another and that events which occurred at the most recent workplace triggered the claimant’s inability to work. Some would look at this inference as raising the issue of causation.

Had the issue been raised on appeal, it would have been disposed of having regard to the second prong of the framework. [ 13 ] The second-prong of the framework may be formulated in manner that reflects the claimant’s occupation: Would the average correctional officer in a federal maximum security institution have reacted, psychologically speaking, in the same manner as did the claimant? In turn, that question translates into another: Were the workplace stressors 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. In the present case, neither of the two events relied upon by the claimant satisfy the twin requirements of “unusual and excessive”. The first is tied to the claimant learning, after the fact, that an investigation had been conducted as to whether the claimant had brought drugs into the federal facility. However, the investigation concluded the allegation was without merit.

The second is tied to the bald allegation that the claimant had been pressured to “bear false witness” against fellow employees in regard to an investigation concerning the use of excessive force by other correctional officers. The claimant was not the subject of that investigation, only a witness to what had occurred. Collectively or individually, neither of those events can be regarded as the “straw that broke the camel’s back”, or as amounting to an excessive stressor.

As a result, they cannot be regarded as events that would have led the average correctional officer to a state of psychological impairment and the inability to work. This is why the claim for compensation benefits must fail. The definition of accident in GECA has been interpreted liberally, but it does have its limits.

Hence, the claimant must look elsewhere to recover benefits based on mental or psychological disability tied to gradual onset stress. [ 14 ] I would allow the appeal, set aside the decision of the Appeals Tribunal and affirm the decision of the Commission dismissing the respondent claimant’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