Canada: Mental Stress In The Workplace: Plesner v. British Columbia (Hydro And Power Authority)

When faced with a worker's claim for benefits, the officers of the Workers' Compensation Board or WorkSafeBC (the "Board") determine eligibility in accordance with the provisions of the Workers' Compensation Act, R.S.B.C. 1996, c. 492 (the "Act"). In the course of doing so, the officers apply the policies set and amended by the Board pursuant to its jurisdiction under this statute.

The majority of claims, which tend to relate to physical injuries, are adjudicated with reference to section 5 of the Act. Key to the decision to grant benefits under section 5(1) is a finding that the injury in question arose out of, and in the course of, the employment. However, claims for mental stress that do not result from a physical injury are adjudicated differently. In particular, section 5.1 of the Act requires that the mental stress arise out of and in the course of the employment, be an "acute reaction to a sudden and unexpected traumatic event", be diagnosed by a physician or psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, and that it must not be caused by labour-relations or work environment issues (e.g. changes in duties or working conditions, discipline or termination of employment).

Prior to April 30, 2009, Rehabilitation Services and Claims Manual Policy #13.30 (the "Policy") — which the Board applies in the course of adjudicating claims under section 5.1 of the Act — operated to restrict benefits to only those workers who could show that their claims of mental stress fit within a fairly narrow category of certain reactions to certain types of incidents.

The Policy defined "acute" as an immediate and identifiable reaction, where the response is usually:

• a direct personal observation of an actual or threatened death or 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.

• a horrific accident;
• an armed robbery;
• a hostage-taking;
• an actual or threatened physical violence;
• an actual or threatened sexual assault; and
• a death threat.

Further, the Policy indicated that the incident in question in a given claim should be "generally accepted as being traumatic", and outlined specific scenarios where benefits in relation to mental stress generally would, or would not, be provided.

On January 16, 2003, a worker for the British Columbia Hydro and Power Authority, Mr. Peter Plesner, experienced an incident at his workplace. Mr. Plesner was at a training session when a natural gas pipeline that was located approximately 40 to 50 feet away from him ruptured. Mr. Plesner first heard and then later observed (purposively), the gas shooting from the rupture, and considered (at the time) that it was a dangerous situation and that an explosion was imminent.

He and his co-workers were evacuated to a mustering station at a gravel parking lot and waited there until the rupture was safely contained 67 minutes later. There was no explosion and Mr. Plesner voluntarily remained at work after containment, and even worked overtime that day.

However, approximately two weeks after this incident, Mr. Plesner visited his physician and was diagnosed as having symptoms of stress. He was referred to a psychiatrist (whom he saw in June 2003) and was diagnosed with post traumatic stress disorder ("PTSD"). Mr. Plesner was unable to continue working after February 2003.

Mr. Plesner filed a claim with the Board in October 2003. In his application, he indicated that in addition to the incident on January 16, 2003, there had been many safety issues in his workplace over the four previous years, including life threatening incidents. He stated that as a result he had been suffering from stress and depression. His physician stated that he had displayed some symptoms previous to the January 16 incident, but had only experienced his first episode of major depression and symptoms of PTSD after January 16.

The Board initially denied Mr. Plesner's claim on the basis that his mental stress was chronic, rather than acute as described in the Policy. In addition, the officer determined that Mr. Plesner's experience did not share enough similarities with the examples of traumatic events provided for in the Policy to warrant acceptance in the circumstances.

Mr. Plesner appealed this decision to the Review Division. The review officer accepted that Mr. Plesner's PTSD had manifested as a result of the January 16 incident but concluded that the incident was not a "traumatic event" as contemplated by the Policy; mere risk to a worker from a potential accident was not a traumatic event in the view of the review officer. Again, Mr. Plesner's claim was denied, and again, Mr. Plesner appealed that decision. However, the Workers' Compensation Appeal Tribunal ("WCAT") upheld the decision of the Review Division, and agreed with the review officer that the January 16 incident was not a traumatic event as contemplated by the Policy. Mr. Plesner then appealed the WCAT decision by way of judicial review, and the matter ultimately made its way to the British Columbia Court of Appeal.

It was at the Court of Appeal that Mr. Plesner finally found some success: In Plesner v. British Columbia (Hydro and Power Authority), [2009] B.C.J. No, 856, a majority of the Court of Appeal found that the requirement of a "traumatic event" in section 5.1(1)(a) of the Act, when read together with the Policy, breached the equality provisions at section 15(1) of the Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11). In particular, the Court of Appeal found that the Act and Policy, when read together, discriminated against those suffering purely mental injuries by setting a higher bar to benefit entitlement than those who suffered physical injuries in the course of their employment. As a result, the Court found that certain portions of the Policy were of no force and effect, and remitted the issue of Mr. Plesner's entitlements under the Act back to WCAT.

Key to the Court's decision, and combined with the Court's discussion of the stigma historically associated with mental illness, was that individuals such as Mr. Plesner had their claims subjected to a "heightened vigilance requiring a distinct and elevated burden of proof in relation to causation", with the result that workers with purely mental injuries had a more restricted access to benefits under the Act than those with physical injuries. Furthermore, the Court held that this differential access to benefits could not be justified.

Finally, and important to understanding the impact of the Court of Appeal's decision, the majority found that section 5.1(1)(a) of the Act only offended the Charter when read in conjunction with the Policy. The Court was otherwise satisfied that section 5.1, to the extent it was implicated in the appeal, could stand alone. Accordingly, in fashioning an appropriate remedy for this Charter violation, the Court of Appeal only severed those portions of the Policy that when read in conjunction with the Act, resulted in the differential treatment discussed above.

After this decision of the Court of Appeal, the Board resolved on July 14, 2009, to amend the Policy retroactive to April 30 of that year—the date of the Plesner decision. Among other things, the definitions of "acute" and "traumatic event" were altered. The Policy now includes a statement to the effect that an acute reaction may be delayed, and traumatic event is now defined only as "an emotionally shocking event". Importantly, the July 2009 amendments to the Policy deleted the examples of "acute reaction" and "traumatic event", and claims of mental distress are now assessed on an individual, case-specific basis.

The Plesner decision and consequent amendments to the Policy raise questions of whether the number of claims for mental stress will now increase—with a corresponding increase in premiums to employers. Clearly, the changes to the definitions "acute" and "traumatic" have created more room for the acceptance of mental stress claims. Furthermore, although it survived judicial scrutiny in this particular case, the Court of Appeal made clear in Plesner that other elements of both section 5.1 of the Act and the Policy may face challenge in the future: "There may well be other aspects of these provisions which are discriminatory, but they are not in issue on this appeal and will have to be left to another day."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.