NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: [X] Form of Appeal: Oral hearing at Antigonish, NS, on October 14, 2009 WCB Claim No.(s): [X] Date of Decision: October 20, 2009 Decision: The appeal of the March 9, 2009 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Sandy MacIntosh.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker claims a stress injury caused by his employment as a Fishery Enforcement Officer. On October 22, 2008, the Worker filed a WCB Accident Report seeking recognition of critical incident stress. The claim form indicated that this was an over the course of time injury with symptoms first noticed on February 27, The Worker first took sick time in relation to this claim on April 3, On December 29, 2008, a Board Case Manager found that the Worker did not have an acceptable claim. The Case Manager found that the Worker did not sustain a personal injury by accident arising out of and in the course of his employment as required by the Federal Government Employees Compensation Act (GECA). The Case Manager found that no traumatic event as defined by Board policy had occurred. She found that the basis of the Worker s claim was the Worker s perceived lack of credibility and support after being publically criticized following unsuccessful prosecutions for undersized lobsters. On March 9, 2009, a Board Hearing Officer confirmed the Case Manager s decision. The Hearing Officer found that several criteria under policy were not met, including the lack of a diagnosis under the DSM IV and the exclusion of claims relating to labour relation issues. This decision addresses the Worker s appeal of the Hearing Officer s decision. The Worker s representative argues that the Worker has an acceptable claim. The representative notes that the Worker s treating psychologist supports the Worker s claim. He argues that the there are two traumatic events - a threat to hang that bastard and the Employer s lack of support for the Worker following the publicity of the acquittals. He contrasted the lack of support from the Employer to the support provided to the Worker when he volunteered to assist with the Suisse Air disaster. He argues that all criteria of policy are met, and alternatively, that s. 4 of the Government Employees Compensation Act is met. He asked for the opportunity to present further arguments on the legality of the policy should I find that s. 4 of GECA is met, but that the policy blocks acceptance of the Worker s claim. This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 ISSUE AND OUTCOME: Does the Worker have an acceptable claim under s. 4 of the Government Employees Compensation Act? No. He did not have an accident as required by s. 4(1) of GECA. ANALYSIS: As the Worker is a federal government employee, his entitlement to benefits is determined pursuant to GECA. Eligibility for compensation under the provisions of GECA is provided at subs. 4(1) and, under subs. 4(2), the rate of compensation and conditions for payment of compensation are determined under Nova Scotia s Workers Compensation Act. The definition of accident in GECA includes a wilful and intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause. Section 4(1) of GECA relates to entitlement and states that compensation will be paid to an employee who is caused personal injury by accident arising out of and in the course of employment. Not every workplace stress exposure can be considered to be an accident for compensation purposes. It is not an accident for someone to be exposed to the usual stresses associated with their position, even if such stresses cause a psychological reaction. Board Policy 1.3.6, entitled Compensability of Stress as an Injury Arising out of and in the Course of Employment - Government Employees Compensation Act (GECA), establishes criteria for the adjudication of stress claims under GECA. The Tribunal is bound by all Board Policy (provided it is not inconsistent with the Workers Compensation Act). Policy 1.3.6, amongst other things, defines the types of stressors that can be accidents under s. 4(1) of GECA. It provides that they must either be a traumatic event or workrelated events that are unusual and excessive in comparison to the work-related events or stressors experienced by a worker in the same or simular occupation. For a traumatic event, the policy adopts the DSM IV criteria for traumatic event for the condition known as post-traumatic stress disorder. The legal test for traumatic event is an objective test. According to the DSM IV, a traumatic event involves exposure to... an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other

4 4 threat to one s physical integrity. In Decision AD (April 10, 2007, NSWCAT), the Tribunal considered the claim of a federal employee for gradual onset stress alleged to have been caused by physical and psychological harassment in the workplace. The Tribunal determined that the work place stressors experienced by the worker were not, in the words of Policy , unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation. The Tribunal, in Decision AD, held that Policy essentially embodied otherwise binding jurisprudence with respect to gradual onset stress cases. This jurisprudence established that the test for determining whether an accident had occurred, required an objective look at the stressors alleged, and the worker s reaction to those stressors. The Nova Scotia Court of Appeal reviewed Decision AD, in Embanks v. NS (Workers Compensation Appeals Tribunal) [2008] N.S.J. No.133. It accepted the Tribunal s position that the Policy is declaratory of the better view of the law on this aspect of gradual onset stress under GECA. The Court accepted the objective view as it related to the assessment of the nature of the events which a worker claims give rise to the stress. The Court elucidated the law in respect to gradual onset stress at p. 8 of its decision: The Court stated at p. 9: To put it in simple language, the events must be excessively and unusually stressful, objectively viewed and, in the actual case of the individual worker, give rise to the mental or physical condition on which the claim is based. An objective assessment, as set out in the Policy, is consistent with the scheme and purpose of GECA and, in my view, furthers its overall intent to provide no fault compensation for injuries resulting from workplace accidents. Therefore, irrespective of any possible differences between the criteria under s. 4 of GECA and policy 1.3.6, there is no difference in what types of stressors can qualify a worker for compensation. I will now determine whether the types of stressors to which the Worker was exposed can amount to an accident under s. 4(1) of GECA. In determining whether the external stressors to which the Worker was exposed could amount to an accident, I must give him the benefit of the doubt. This means that if disputed possibilities are even then the issue must be resolved in his favour. By way of background, the Worker has been a Fishery Enforcement Officer for about 20 years. The position involves the investigation and enforcement of fishery rules. It can be

5 5 a dangerous job. Unlawful fishing activities can be as profitable as the drug trade and the penalties for violations can be harsh, including the forfeiture of fishing vessels. The degree of conflict encountered by Fishery Enforcement Officers increased in 1999 following the Marshall decision of the Supreme Court of Canada. The Worker testified that the possibility for violence is part of his job. He testified that he has learned (after the fact) that firearms had been aimed on him. He has had to arrest people who have tried to evade arrest. Arrests at sea involve additional dangers. Due to the nature of his job, he carries a firearm, handcuffs and a powerful form of pepper spray. He has undergone extensive and continuing law enforcement training. The Worker also testified that credible contacts are very important for his job. They provide tips on who is illegally fishing. They provide information regarding potential for violence and whether firearms may be involved. The facts giving rise to this claim are as follows:! In May of 2007, the Worker (and another Fishery Enforcement Officer) charged three licence holders with catching undersized lobsters. These charges resulted from the Worker having received information from a credible contact that illegal fishing was taking place.! At the trial of two of the licence holders, the prosecution did not call an expert witness regarding the gauge used to measure the lobsters. The Worker understood that the Employer did not allow the expert to attend the trial. The trial lasted one day in September 2007 and a second day in December of 2007.! A Court dismissed the charges against those licence holders (the third was acquitted at the later time).! On February 13, 2008, the local newspaper published a letter to the editor from the two accused stating that they had been wrongly charged and were out several thousand dollars in legal fees. The Worker was not named in this letter.! On February 27, 2008, the local newspaper ran a story about the accused taking what they and their lawyer said at face value. It was negative in tone and named the Worker [according to the WCB Accident Report, this was the date the Worker first noticed symptoms].! The Worker wanted the Employer to publically rebut the negative coverage, but it would not publically do so. It appears that the Employer did not advise the Worker of its reason for remaining silent until after he went off on stress leave. However, the Employer did advise the Worker that they felt he did his job correctly.

6 6! On April 2, 2008, the local newspaper wrote an editorial naming the Worker and indicating (wrongly according to the Worker) that the Court found that he had negligently used the wrong gauge measurement.! Also, on April 2, 2008, the Worker ed his supervisor advising of the editorial, and his feelings regarding the lack of support from the Employer. He wrote that he would be on stress leave until further notice.! The Worker was informed by a Municipal Councilor that he met a group of people at a store about 50 miles from the Worker s home who were discussing the editorial. One of those people said that someone should hang that bastard for charging those fishers.! Other than the Employee Assistance Program being generally available, the Employer did not offer the Worker any specific supports to deal with the stress resulting from these incidents. The Worker testified that the local community was upset following the negative coverage. He felt that people were upset that he wrongly put the fishers through the expense of a trial. He felt that his credibility was ruined and that he would no longer have the assistance of credible contacts. He felt that his job would be more dangerous of a result. He testified that he took the threat to hang that bastard seriously. He testified that he felt unsupported by the Employer. He testified that he feared being attacked - either by the media or physically. He testified that he now feels isolated. He fears that someone may try to seek revenge. Dean Perry, psychologist, has been treating the Worker since May of On July 10, 2009, he provided a letter in support of the Worker s claim for compensation. He wrote that:... [the Worker] feels that his credibility, character and professional standing has been completely destroyed. He feels unsupported by [the Employer]. He fears retaliation in the fisheries community and again ultimately fears bodily harm. This is his real perception and one that I feel should be respected in this environment. There is a documented account of an individual making the assertion to hang the bastard. The threat to one s safety or life is realistic in my view. Mr. Perry went on to diagnose the Worker with post-traumatic stress disorder together with a depressive disorder. He gave his opinion that the Worker met the criteria of policy He stated that the traumatic events arose directly from the Worker s employment and were unusual and excessive compared to the average worker. [the proper comparator group is other Fishery Enforcement or Peace Officers, not the average worker].

7 7 I now address whether the two events claimed by the representative are traumatic events. The Representative claims that the lack of support (by way of publically rebutting negative media coverage) amounts to a traumatic event. However, this perception of a lack of support by the Employer is not a direct experience with an event involving actual threatened death or serious injury. There is only an indirect link based on speculation. As such, it is not a traumatic event. The second event is the conveyance to the Worker that an unknown person said that someone should hang that bastard in the context of reading the editorial. You could characterise this as an event involving a threatened death. However, it is indirect in nature, and from an objective point of view, more akin to the venting experienced regularly directed at peace officers. Also, the unknown speaker, who was 50 miles away from the Worker, did not say he planned to harm the Worker. From an objective point of view, this event falls short of being a traumatic event. Finally, I address whether these events amount to a series of stressors which are unusual and excessive in comparison to those experienced by other Fishery Enforcement Officers. It is a regular part of the job of a Fishery Enforcement Officer to lay charges and appear in Court. Not all prosecutions are successful and it is not unusual for those charged to blame to the person who laid the charges. I do not have any evidence as to whether it is unusual for a paper to publish the name of a Fishery Enforcement Officer in this context. However, given the relatively small size of the fisher community in an enforcement zone, the name of the Fishery Enforcement Officer would probably be well known in any event, at least to those involved in the industry. The Employer s decision not to defend the Worker in the media (preferring instead to let the story fade away), caused the Worker stress. However, such interactions with Employers are not unusual. Workers often disagree with, and cannot understand the reasons for, management decisions. The Employer not being proactive in anticipating and addressing the Worker s stress reaction does not amount to an unusual and excessive stressor. That an unknown person used the phrase that someone should hang that bastard is not unusual and excessive. Those impacted by law enforcement often utter vents of that nature. In the context of the media coverage, such vents would not be unusual. Again, the person who used that phrase did not say that he was going to harm the Worker. I find that events leading to the Worker s stress claim did not amount to an accident under s. 4(1) of GECA. They were not traumatic events, nor were they unusual and excessive compared to those experienced by Fishery Enforcement Officers as part of their

8 8 occupation. As the Worker did not experience an accident under GECA, there is no need for me to consider the full criteria under policy CONCLUSION: The appeal is denied. The Worker does not have an acceptable claim under s. 4(1) of GECA. th DATED AT HALIFAX, NOVA SCOTIA, THIS 20 DAY OF OCTOBER, Sandy MacIntosh Appeal Commissioner