Highlights of Noteworthy Decisions
- Causation (thin skull doctrine)
- Disablement (stress)
- Significant contribution (of employment to disability) (subjective reaction of worker)
- Stress, mental
The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress. The worker raised the issue of whether s. 13 of the WSIA and the Board's mental stress policy were consistent with s. 15 of the Charter of Rights and with the Ontario Human Rights Code. The worker raised an additional issue as to whether the legal test referred to in Tribunal decisions as the average worker test is consistent with the Charter and the Human Rights Code. In Decision No. 480/11I2, the Panel made findings of fact, that there was no evidence of harassment or of unusual or unexpected work stressors, that the worker worked hard and did excellent quality work and that the relevant alleged stressors related to acts of supervisors. To understand the worker's personality factors and illness better, the Panel then adjourned the hearing to obtain a report from a Tribunal medical assessor. In Decision No. 480/11I3, the Panel found that, subject to the Charter and Code issues, the worker was not entitled to benefits for traumatic mental stress. Even if there was an acute reaction to a sudden and unexpected traumatic event, s. 13 excluded entitlement to reactions to actions of the employer that were within the management function. The Panel received the report from the Tribunal medical assessor. The assessor queried whether the worker's illness was the result of workplace factors, as a question of medical causation. The Panel now considered the disablement issue. The Panel found that, even if the significant contributing factor test is the appropriate test, without reference to the average worker test, the facts of this case fell within the crumbling skull exception to the thin skull rule. The Panel accepted the opinion of the assessor that the likely only of the worker's severe depression, which left him unable to work, was in early 2006, several months before an incident which led to the worker leaving work. Earlier incidents at work in 2004 were not a significant cause of the acute deterioration in the worker's emotional condition which commenced in early 2006 when the worker began to have intrusive thoughts about killing his supervisors and himself. There was nothing in the events at work in the time period leading up to early 2006 that would explain the extent of the worker's anger and of his severe sense of being harassed. The worker's perception of the demands of work was so significantly out of line with reality that it cannot be attributed to work. The perception was the result of the worker's deteriorated mental health, and not its cause. The Panel agreed that the average worker test, as articulated in some Tribunal decisions, may suggest a restriction on entitlement that is not fully consistent with the application of the thin skull rule. However, in mental stress cases, as in disablement claims, it is not easy to determine when the role of workplace events is sufficient to be causative of a worker's condition. The question of whether a situation might cause emotional symptoms in an average worker may be a relevant consideration in weighing the question of causation, although it likely should not be determinative. The consideration of the average worker may be helpful in weighing whether the worker's perception of events is sufficiently reliable to form a basis for a finding of causation or whether other factors, such as a crumbling skull, may be involved. The Panel also noted that the Supreme Court of Canada in Martin v. Alberta (Workers' Compensation Board), although primarily addressing a GECA issue, made a finding that the provisions of an Alberta policy, which considered the experience of the average worker as relevant criteria, were not inconsistent with the broadly based definition of accident found in GECA. The Panel was of the view that, in a claim for traumatic mental stress, it is relevant and not improper to consider whether the events complained of would normally be expected to be stressful to the average worker, as long as the specific facts of the worker's case may also be considered. The Panel concluded that this case did not turn on the average worker test. The worker's subjective perception of the facts was not consistent with the Panel's findings of fact, and a reasonable observer would not view the stressors as likely to cause the injury in question. The worker's emotional breakdown fell within the crumbling skull exception to the thin skull rule. Therefore, the worker's emotional breakdown did not arise out of and in the course of employment. The worker's emotional symptoms were not compensable, irrespective of the average worker test or of the Charter or human rights issues as they relate to s. 13. Accordingly, it was not necessary to consider the Charter of human rights submissions. The appeal was dismissed.