SUMMARY. Stress, mental; Board Directives and Guidelines (psychotraumatic disability); Board policies (applicability of Board policy).

Transcription

1 SUMMARY DECISION NO. 25/98I Stress, mental; Board Directives and Guidelines (psychotraumatic disability); Board policies (applicability of Board policy). The worker appealed a decision of the Appeals Officer denying entitlement for psychiatric disability resulting from workplace stress. Since this hearing was held in 1998, s. 112(3) of the Workplace Safety and Insurance Act, 1997, applied. This section provides that s. 126 regarding the application of Board policy is applicable. The Board advised that its Operational Policy Manual, Document No on psychotraumatic disability was applicable to the case. The Panel noted that "policy" is not defined in the Act. The existence of a manual is necessary to assist Board adjudicators. It is also the primary tool by which members of the public can inform themselves of the Board's position on various issues. However, there is nothing in s. 126 which would prevent the Board from providing the Tribunal with a written statement of its policy which is not from the Operational Policy Manual. The Board policy on psychotraumatic disability does not specifically refer to workplace stress. However, the policy refers to a number of diverse circumstances which could result in physical and emotional stress. A specific reference to all types of injuring processes was not necessary. The general statement of the policy permits adjudication of the worker's claim with reference to the provisions of the pre-1997 Act and to other Board policies on the definition of accident. The Panel concluded that the policy provided by the Board applies to the case. The hearing will be reconvened to consider the merits. [9 pages] DECIDED BY: Faubert; Timms; Robb DATE: 20/04/98 ACT: WSIA *126 TRIBUNAL DECISIONS CONSIDERED: Decision No. 915 (1987), 7 W.C.A.T.R. 1 consd; Decision No. 227/95 consd BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Document No

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 25/98I [1] This appeal was heard in Toronto on January 9, 1998, by a Tribunal Panel consisting of: M.J. Faubert : Vice-Chair, C.J. Robb : Member representative of employers, D.C. Timms : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the October 29, 1996, decision of WCB Appeals Officer D. Buckman, which denied the worker entitlement to compensation benefits for a psychiatric disability which the worker attributes to exposure to workplace stress. [3] The worker and his wife attended the hearing. The worker was represented by D. Sobretodo, barrister and solicitor, Simcoe Legal Services Clinic. The employer was represented by D. Gorelle, barrister and solicitor. Mr. Gorelle was assisted by A. Freedman, articling student. The Panel was assisted by Tribunal counsel, J. Sajtos. Ms. Sajtos was assisted by S. Adams, articling student. THE EVIDENCE [4] The Panel considered the Case Record and two Addenda to the Case Record, which were entered as exhibits at the hearing. We also considered miscellaneous correspondence passing between the parties, as well as Board guidelines dated December 16, These documents were also entered as exhibits. Ms. Sajtos, Ms. Sobretodo and Mr. Gorelle made submissions. THE NATURE OF THE CASE [5] The worker claims that he suffers from a psychiatric condition, which he attributes to the stressful nature of his employment. The parties requested a hearing to address the preliminary issue of whether this claim is barred by reason of the Workplace Safety and Insurance Act, 1997, and amendments to the pre-1997 Workers Compensation Act. If it is not, a further hearing will be held to address the factual and legal issues raised in the worker s claim. THE REASONS (i) The claim [6] In March 1995, the worker filed a claim with the Workers Compensation Board, seeking benefits for a disability which he attributed to working long hours with too much responsibility at work. He indicated that his disability began in June 1993, and that he reported it to his employer in December His family physician has diagnosed depression, anxiety and a sleep disorder, and his treating psychiatrist has diagnosed an acute generalized anxiety disorder. It appears that the worker has been off work for these conditions since December 1994.

3 Page: 2 [7] The Appeals Officer denied the worker s claim for the following reasons: (ii) It is the Board s practice to provide compensation benefits in claims for psychiatric disability related to acute stress, that is, exposure to stress that can be categorized as a chance event. The Board has taken the position that the necessary connection to the workplace is established by requiring that the provoking workplace chance event, that is, the stressor, be sudden, shocking and life threatening. The worker described his condition as developing over one and a half to two years resulting in both physical and psychological symptoms. The work environment in general was causing the disability. I am not of the opinion that the facts of the case illustrate a sudden and life shocking incident which would lead to the worker s disability. As such, he has not met the requirements for psychological entitlement. Relevant statutory provisions [8] The parties are in agreement with respect to the application of the relevant statutory provisions in this matter. The Workplace Safety and Insurance Act (the WSI Act ) was proclaimed in force on January 1, Section 102 of the WSI Act provides: 102 The pre-1997 Act, as it is deemed to have been amended by this Part, continues to apply with respect to pre-1998 injuries. [9] Section 101 of the WSI Act defines pre-1998 injury to mean a personal injury by accident or an occupational disease that occurred before January 1, Accordingly, the pre-1997 Workers Compensation Act, as amended, (the pre-1997 Act ) applies with respect to this worker s injury. [10] Section 86 of the pre-1997 Act set out the Tribunal s jurisdiction to hear appeals from decisions of the Workers Compensation Board. Subsections 112(1) and (3) of the WSI Act repeal section 86 of the pre-1997 Act, and substitute the relevant provisions of the WSI Act which grant the Tribunal the jurisdiction to hear appeals from decisions of the Workplace Safety and Insurance Board. As a result, the Tribunal s jurisdiction to hear this appeal arises from section 123 of the WSI Act. [11] Section 112(3) of the WSI Act also provides that section 126 of the WSI Act applies, with necessary modifications, to pre-1998 injuries. Section 126 of the WSI Act contains specific directions to the Appeals Tribunal concerning the application of Board policy with respect to the subject matter of an appeal. It provides: 126(1) If there is an applicable Board policy with respect to the subject-matter of an appeal, the Appeals Tribunal shall apply it when making its decision. (2) The Board shall state in writing which policy, if any, applies to the subject-matter of an appeal after receiving notice of the appeal under subsection 125(3). (3) If the Board does not state that a particular policy applies in respect of the subjectmatter of an appeal, the tribunal may ask the Board to notify it if there is an applicable policy and the Board shall do so as soon as practicable. (4) If the tribunal, in a particular case, concludes that a Board policy of which it is notified is inconsistent with, or not authorized by, the Act or does not apply to the case, the tribunal shall not make a decision until it refers the policy to the Board for its review and the Board issues a direction under subsection (8). (5) The tribunal shall make the referral in writing and state the reasons for its conclusion.

4 Page: 3 (6) If there is a referral under subsection (4), the Board shall review the policy to determine whether it is consistent with, or authorized by, the Act or whether it applies to the case. (7) The Board shall provide the parties to the appeal in respect of which there is a referral an opportunity to make written submissions with respect to the policy. (8) Within 60 days after a referral to it, the Board shall issue a written direction, with reasons, to the tribunal that determines the issue raised in the tribunal's referral under subsection (4). [12] The parties agree that section 126 of the WSI Act applies to this appeal. (iii) The Board s position with respect to applicable policy [13] In view of the fact that this appeal was scheduled to be heard on January 9, 1998, Tribunal counsel requested that the Board advise the Tribunal of the policy which applies to the subject matter of this appeal, pursuant to section 126(2) of the WSI Act. The Board provided the Tribunal with the policy set out at the Board s Operational Policy Manual, Document # , entitled Psychotraumatic Disability. The Board also provided general policies from the same manual dealing with the recognition of accidents and the adjudicative process (Document # , Definition of an Accident ; Document # , Accident in the Course of Employment ; and Document # , Adjudicative Process ). [14] The Board s Psychotraumatic Disability policy provides: Policy A worker is entitled to benefits when disability results from a work related personal injury by accident. Disability includes both physical and emotional disability. Guidelines General Rule If it is evident that a diagnosis of a psychotraumatic disability is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability became manifest within 5 years of the injury, or within 5 years of the last surgical procedure. Psychotraumatic disability is considered to be a temporary condition. Only in exceptional circumstances is this type of disability accepted as a permanent condition. Psychotraumatic Disability Entitlement Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop. Organic brain syndrome secondary to - traumatic head injury - toxic chemicals including gases - hypoxic conditions, or - conditions related to decompression sickness. As an indirect result of a physical injury - emotional reaction to the accident or injury - severe physical disability, or - reaction to the treatment process.

5 Page: 4 The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socio-economic factors, the majority of which can be directly and clearly related to the work related injury. [15] The policy also describes the evaluation of impairment in cases of psychotraumatic disability, which is conducted with reference to six clinical entities, one or more of which may be present: 1. Anxiety neurosis with depressive features 2. Anxiety neurosis with psychosomatic manifestations (psychological factors affecting physical condition, Diagnostic and Statistical Manual III, American Psychiatric Association) 3. Conversion (hysterical) neurosis 4. Obsessive compulsive neurosis 5. Anxiety neurosis with phobic features 6. Anxiety neurosis with hypochondriasis. [16] The Board s policy on Definition of an Accident provides: Accident includes: a wilful and intentional act, but not an act of the worker; a chance event resulting from a physical or natural cause; a disablement arising out of and in the course of employment. [17] The policy also states that a disablement can be either a condition that emerges gradually over time, or an unexpected result of working duties. [18] Finally, the Board s policy on Accident in the Course of Employment states that a personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time and activity indicate that the accident was work-related. [19] The submissions at the hearing focused upon the significance of the Board s policy which concerns psychotraumatic disability, and its impact on the adjudication of this worker s claim. Tribunal counsel and Ms. Sobretodo on behalf of the worker took the position that the policy stated by the Board pursuant to section 126(2) did not apply to the case before the Panel, and accordingly it was necessary for the Panel to defer its decision and refer the policy to the Board for its review, pursuant to section 126(4) of the WSI Act. The basis for this submission appears to be the absence of any reference in the policy to psychiatric disability resulting from stress in employment. [20] On behalf of the employer, Mr. Gorelle argued that the word policy in section 126(1) contemplated more than just the operational policy contained in the Board s Operational Policy Manual. He noted that the current statutory framework for the consideration of workplace stress claims is different than that contained in the pre-1997 Workers Compensation Act, but argued that it was necessary for the Panel to interpret the pre-1997 Workers Compensation Act in accordance with the small p policy as it can be discerned from prior WCB and Appeals Tribunal decisions, as well as comments made in the Legislature. [21] Section 13 of the WSI Act specifies the circumstances in which a worker will be entitled to benefits under the insurance plan. The provisions which are relevant to this proceeding are sections 13(4) and (5), which provide as follows:

6 Page: 5 (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress. (5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer s decisions or actions relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. [22] There is nothing in the WSI Act which amends the pre-1997 Workers Compensation Act to include sections 13(4) and (5) of the WSI Act. Accordingly, the statutory framework for the consideration of the worker s claim remains section 4(1) of the pre-1997 Workers Compensation Act, which provides: 4(1) Where in any employment, to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the worker and the worker s dependants are entitled to benefits in the manner and to the extent provided under this Act. [23] Section 1(1) of the pre-1997 Act defines accident to mean: 1(1) In this Act, accident includes, (a) (b) (c) a wilful and intentional act, not being the act of the worker, a chance event occasioned by a physical or natural cause, and disablement arising out of and in the course of employment; ( accident ) [24] Mr. Gorelle argued that in considering the interpretation of these provisions, the Panel must consider the policy of the Board as it related to these conditions. He referred the Panel to Decision No. 227/95 (February 2, 1996), in which the Panel described the Board s pre-1998 approach to the adjudication of claims for work-related stress. In particular, he noted the Panel s comment with respect to the Board s policy in these cases. That Panel wrote (at page 9): It is the Board s policy not to grant entitlement for a psychiatric disability that a worker claims arose out of work-related stress unless the stress was the product of a sudden, shocking and life threatening event. We note the discussion of this policy in the decision of the Hearings Officer under appeal: The long-standing approach of the Workers Compensation Board when adjudicating initial entitlement in claims for a non-organic condition is to only accept entitlement where there is evidence of a sudden, shocking and life threatening event. This position is premised on the view that the evidentiary test to show workrelatedness is only satisfied when the timely onset of a non-organic condition follows a sudden, shocking and life threatening event. The adjudication of this type of claim has of course been the matter of much debate during the past several years, however, nothing has been resolved and the Board s position remains unchanged. In taking this position, the Board seems to be limiting entitlement for a stress claim to those claims that meet the first two definitions of accident in the Act: (a) a wilful and intentional act, not being the act of the worker,

7 Page: 6 (b) a chance event occasioned by physical or natural cause. However, decisions of the Tribunal have also allowed entitlement to workers whose claims have been based on the third definition of accident in the Act: (c) disablement arising out of and in the course of employment; [25] Mr. Gorelle also referred to several excerpts from Hansard, which, he argued, establish the existence of a Board policy prohibiting compensation for mental stress as a compensable injury. For example, on October 9, 1997, Mr. Maves, Assistant to the Minister of Labour, made the following comments in the Legislature during a discussion of (the proposed) subsections 13(4) and (5) of the WSI Act: Another myth: Bill 99 removes mental stress as a compensable injury. Mental stress has never been a compensable injury under the WCB policy under any government, so it really didn t remove it; it just put into legislation what has been the policy all along. [26] Mr. Gorelle also noted that the Appeals Officer in this case referred to Board practice, which Mr. Gorelle suggested was not significantly different from Board policy. In view of the existence of a Board policy which excludes compensation for work-related stress, Mr. Gorelle argued that the Panel should decline to hear this case. (iii) Conclusions [27] The parties have raised several issues in this appeal. First, what is meant by the word policy in section 126 of the WSI Act? Second, does the policy provided by the Board pursuant to section 126(2) apply to the case, or should the Panel refer the policy to the Board for its review pursuant to section 126(4) of the Act? Finally, in deciding appeals, is the Tribunal limited to considering Board policy which has been provided to it by the Board pursuant to section 126(2), or is it free to consider other policy (whether small p policy or other portions of the Board s published Operations Policy Manual) in deciding appeals? [28] Subsection 126(1) of the WSI Act clearly requires the Appeals Tribunal to apply Board policy when making its decision, and subsection 126(2) requires the Board to state in writing which policy, if any, applies to the subject matter of an appeal. The word policy is not defined in the WSI Act. Generally speaking, the Board s policy relied upon in the adjudication of claims is contained in its Operational Policy Manual. A predecessor manual was referred to by the Panel in Decision No. 915 (1987) 7 W.C.A.T.R. at page 253 as published Board documents which represent decisions the Board has made on general policy and practice issues. [29] The existence of such a manual is necessary to assist Board adjudicators in the consistent adjudication of claims, and the manual is the primary tool by which members of the public can inform themselves of the Board s position on various issues. The publication of policy is an important component in the fair and open adjudication of claims in an administrative justice system. However, there is nothing in section 126 of the WSI Act which would prevent the Board from providing the Appeals Tribunal with a written statement of its policy which is not derived from the Operational Policy Manual. The Decision No. 915 Panel indicated that parties are entitled to rely upon published Board documents as prima facie evidence of general policy and practice, although it left open the possibility that unpublished changes to Board policies may be effective, where there is evidence that

8 Page: 7 these changes have been authorized by the Board s internal decision-making process (Decision No. 915, Technical Appendix B, pages ). [30] Does the policy supplied by the Board apply to this case? [31] Both counsel for the worker and Tribunal counsel took the position that the Board s policy respecting psychotraumatic disability did not apply to the facts of this case. The basis of this position is that the policy makes no specific reference to the type of injuring process and resulting disability alleged in cases of workplace stress, although it does refer to several other mechanisms by which psychotraumatic disability may be experienced. They include organic brain syndrome, an indirect result of a physical injury, or extended disablement. [32] However, we are of the view that the Board s statement of policy need not be as narrowly construed as counsel have suggested. The worker s condition, diagnosed as depression and anxiety, is among those referred to in that portion of the Board s policy on psychotrauamtic disability which deals with the evaluation of impairment. The fact that the Board has chosen to specify certain circumstances where entitlement for psychotraumatic disability may be established does not imply that there can be no other injuring process which can have this result. [33] The general statement of the Board s policy in claims for Psychotraumatic Disability provides that a worker is entitled to benefits when disability results from a work-related personal injury by accident. Disability includes both physical and emotional disability. In our view, this statement contemplates a number of diverse circumstances which could result in physical and emotional disability. As such, it is not surprising that the general policy on this subject does not include a specific reference to all possible types of injuring processes. Although the policy is silent with respect to claims in which it is alleged that emotional disability results from workplace stress, this does not render the policy inapplicable to this case. Instead, the general statement of policy permits the adjudication of the worker s claim with reference to sections 4(1) and 1(1) of the pre-1997 Workers Compensation Act, and to the Board s other policies on the definition of an accident referred to above. [34] Having concluded that the policy provided by the Board applies to this case, is the Panel free to consider other policy not provided by the Board pursuant to section 126(2) of the WSI Act without recourse to section 126(4) of the WSI Act? In view of the volume of appeals before the Board and the Tribunal, it is possible to contemplate circumstances in which it may appear to a panel of the Appeals Tribunal that the Board has omitted a relevant policy document from those provided to the Tribunal pursuant to section 126(2). Where this appears to have occurred through inadvertence, and the applicable policy is not disputed by the parties, the Tribunal may wish to avail itself of informal means of clarifying the applicable policy with the Board without resorting to the process set out in section 126(4) of the WSI Act, or alternatively, simply apply the undisputed policy, pursuant to section 126(3) of the WSI Act. [35] However, the situation before this Panel cannot be characterized in that fashion. The policies which were provided by the Board apply to this case. There was no agreement that another, nonstated policy applied to the facts of this case. There is no reason for us to conclude that the Board has inadvertently omitted relevant policy documents, as we are not aware of any other Board document which speaks to this issue. Having concluded that the Board has provided the applicable policy and

9 Page: 8 that no referral to the Board pursuant to section 126(4) of the WSI Act is required, the Panel must go on to interpret and apply the relevant policy and legislation to the facts of the case. [36] In summary, we conclude that the policy provided to the Appeals Tribunal pursuant to section 126(2) does apply to the subject matter of this appeal, and that it does not preclude adjudication of claims for benefits for psychiatric disability arising out of chronic or acute workplace stress. [37] We have not addressed the test for compensation in such cases, as this was not addressed by any of the parties at the hearing. Instead, we anticipate that the parties will wish to provide submissions on this issue after the Panel has heard evidence respecting the facts of the worker s case. THE DECISION [38] The Panel is satisfied that the policy supplied to the Appeals Tribunal by the Board pursuant to section 126(2) of the Act does apply to the facts of this appeal. We find that this policy permits the consideration of the worker s claim for benefits for a psychiatric disability which he relates to chronic stress in his employment. We direct that the hearing of this appeal be scheduled as soon as practicable. We understand that there may be a number of preliminary evidentiary issues to be addressed. In the event that the parties are unable to resolve these issues, we may convene a pre-hearing telephone conference call, or receive the written submissions of the parties on those issues, and we will provide the necessary instructions. DATED: April 20, 1998 SIGNED: M.J. Faubert, C.J. Robb, D.C. Timms