A recently released decision from the Workers' Compensation Appeal Tribunal ("WCAT"), involving a claim under the new section 5.1 of the B.C. Workers Compensation Act illustrates that a worker's mental stress condition may be compensable even where it does not arise entirely as the result of workplace stressors.
Prior to recent revisions to the Act, a worker was only entitled to compensation for a workplace stress-related illness if the mental stress arose from an acute reaction to a sudden and unexpected traumatic event. Now, under the Act's new section 5.1, an employee in B.C. may be entitled to compensation for a claim for a "mental disorder" if that mental disorder is either:
(i) a reaction to one or more traumatic events arising out of and in the course of employment; OR
(ii) predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of such stressors, arising out of and in the course of employment.
The worker had been a firefighter for ten years. During that time he had responded to numerous medical emergencies but only an estimated fifteen cardiac arrest calls in total. On five or less of those calls he was the first responder.
On November 11, 2011, the worker received a telephone call that his father had suffered a cardiac event while playing hockey. The worker attended the hospital and was told that his father had been defibrillated but had responded immediately. His father's situation was described by paramedics as "the best scenario possible".
During the shifts shortly after his father's cardiac event, the worker was called to two cardiac arrest calls involving relatively young patients. As the first responder on one of these calls, the worker was met by the patient's distraught wife and performed CPR on the patient. The patient was not resuscitated. The worker subsequently lost his composure and broke down. During his days off the worker saw his father recovering but felt responsible for the patient who had not survived.
Shortly thereafter, the worker became unable to perform even simple care. He was subsequently diagnosed by his family doctor with anxiety and panic disorder. This diagnosis was confirmed by a psychologist who found that the anxiety started after the worker's father's cardiac arrest, which caused him to view his patients as "individuals with families who cared about them".
A few months later, following treatment, the worker was able to return to work.
The worker's chief and co-workers supported his claim and reported that the worker was fine after his father's event and it was only after certain calls in November of 2011 that they noticed a change in the worker's demeanour.
The worker's claim was denied by the case manager and review officer who both accepted that the worker had sustained a significant stress reaction but concluded that the stress reaction had more to do with the worker's personal situation than with his work.
As its review occurred after the introduction of the mental disorder provisions, the WCAT asked for an expert review to determine if the worker's diagnosis fell under the Diagnostic and Statistical Manual of Mental Disorders (DSM).
A registered psychologist retroactively diagnosed the worker with adjustment disorder with anxiety. The psychologist found that the worker's previous work-related trauma sensitized him to his father's heart attack. These work related traumas included being required to remain with a young man for 90 minutes after he was killed by being impaled on a guard rail and, over a four-day span several years earlier, attending to three serious car accidents and a death by hanging.
The psychologist concluded that but for these previous work-related traumatic events it was highly unlikely that the worker would have developed anxiety symptoms in response to his father's cardiac event. The psychologist added that those anxiety symptoms were exacerbated by the workplace stressors which followed his father's cardiac incident.
The WCAT deferred to the psychologist's opinion in finding that the worker had a diagnosed mental disorder, as required under section 5.1 of the Act.
Section 5.1(ii): Was the disorder predominantly caused by one or a series of significant work-related stressor(s) arising out of and in the course of employment?
The WCAT then considered whether the claim was properly captured by s. 5.1(ii). Given the high frequency of disturbing incidents and the fact he was suddenly the first responder on two cardiac arrest calls in short succession, both of which were rare in the worker's career leading up to that time, the WCAT accepted that the events following the worker's father's cardiac arrest were significant stressors.
In particular, the WCAT noted a WorkSafe Practice Directive which provides that a worker employed in an occupation characterized by a high degree of stress, including emergency workers, should not be denied compensation simply because they are normally exposed to an intense level of stress. The WCAT was unable to conclude which event - his father's heart attack (which did not arise in the course of employment) or the work-related incidents – was the predominant cause of the mental disorder. This was due, in large part, to the evidence of the psychologist which made it clear that both events were necessary factors in the worker developing his mental disorder. On this basis, the WCAT concluded that the worker's claim was not captured by s. 5.1(ii).
Section 5.1(i): Was the disorder a reaction to one or more traumatic events arising out of and in the course of employment?
The WCAT then considered whether "the worker's diagnosed mental disorder [was] a reaction to one or more traumatic events arising out of and in the course of his employment" as per s. 5.1(i).
Relying on the expert's opinion, the WCAT found that the worker was entitled to compensation because but for the previous and subsequent work-related traumatic events the worker would not have developed the mental disorder as a result of the worker's personal circumstances, namely his father's cardiac event:
While the worker's personal circumstances were a causal factor of significance, a conclusion that work circumstances were of trivial significance would reasonably require a finding that the worker's psychological disorder was imminent and more likely than not would have happened regardless of the work event. The evidence does not support such a finding.
This decision demonstrates the difficulty that can arise in determining whether a worker's mental illness has arisen in the course of employment. The WCAT's decision suggests that a worker's personal circumstances can play a part, even a significant part, in the development of a mental disorder so long as the disorder would not have occurred were it not for workplace stressors or workplace traumatic events.
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