Facts of the case
In Plesner v. British Columbia Hydro and Power Authority, the B.C. Court of Appeal held that the test for workers’ compensation benefits for mental injuries under the Workers Compensation Act violated equality guarantees in section 15 of the Canadian Charter of Rights and Freedoms. The court was asked to examine a WCB policy which required mental stress claimants to meet a higher threshold than claimants suffering physical injuries. The court found that this distinction amounted to discrimination on the basis of mental disability.
The case arose after Mr. Plesner, an employee of British Columbia Hydro and Power Authority, witnessed a natural gas pipeline rupture. At the time, Plesner was 40 to 50 feet away and he initially heard only a loud hiss. Plesner climbed a set of nearby stairs to get a better look. From the top of the stairs, he could see a plume of natural gas rising into the air. He was concerned that the situation was very dangerous and worried that the gas would explode setting off a chain reaction at the plant. Plesner and other employees were evacuated to a gravel parking lot where they waited while the rupture was contained.
Shortly after the incident, Plesner was diagnosed with post-traumatic stress disorder. He was unable to return to work and filed a claim for worker’s compensation benefits for mental stress.
Section 5.1(1)(a) of the B.C. act provides that workers are entitled to benefits for mental stress “only if the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the workers’ employment.” It also requires the WCB and its appeals division to apply policies adopted by its board of directors.
Among the policies adopted is Policy Item no. 13.30. This policy item interprets section 5.1(1)(a) of the B.C. act as creating a two-part test for establishing entitlement to workers’ compensation benefits for mental stress.
First, the mental stress must be an acute reaction to a sudden and unexpected traumatic event. The policy item defines “traumatic event” as “a severely emotionally disturbing event” and provides examples to illustrate the requisite level of trauma, including a horrific accident, armed robbery, hostage taking, actual or threatened physical or sexual violence, and a death threat. Second, the acute reaction must arise out of and in the course of employment.
Plesner’s claim for benefits was initially denied by the WCB. He appealed. The Worker’s Compensation Appeal Tribunal (WCAT), the independent appeals body of the WCB, found that while Plesner’s injury was work-related, it did not “fit within [the act], when read together with [Board] Policy Item #13.30.” Specifically, the WCAT found that the gas line rupture while very serious, was not a “traumatic event” as defined by the policy item.
Plesner brought an application for judicial review. The reviewing judge allowed the application for judicial review on the basis that the reasons and findings of WCAT were inconsistent.
The reviewing judge declined to issue a ruling on Plesner’s argument that section 5.1(1)(a) of the act and Policy Item no.13.30 discriminated against him on the basis of mental disability contrary to his rights under section 15 of the Charter.
Plesner appealed, arguing that the WCB regime treated physically and mentally injured workers differently by limiting compensation for mentally injured workers to situations where the mental injury arose out of a sudden and traumatic event.
Applying the test developed by the Supreme Court of Canada in its decision in Law v. Canada (Minister of Employment and Immigration), the B.C. Court of Appeal held that the traumatic event requirement in section 5.1(1)(a) of the act when read together with Policy Item no.13.30 violated section 15 of the Charter by discriminating against claimants on the basis of mental disability.
The Law test requires the party alleging a breach of section 15 of the Charter to identify an appropriate comparator group and, by comparing his or her treatment to that group, establish that: 1) the law makes a formal distinction between the claimant and others; 2) the differential treatment is on the basis of an enumerated or analogous ground; and, 3) the differential treatment discriminates in a substantive sense.
The court identified “workers who suffered physical injuries arising out of and in the course of their employment” as the appropriate comparator group to determine whether Plesner had suffered discriminatory treatment. The court found that Plesner was subject to differential treatment because workers who suffer physical injuries are only required to prove that their injury was work-related to receive workers’ compensation benefits, while those who suffer mental injuries are required to prove that their injury was work-related and that it was an acute reaction to a sudden and unexpected traumatic event.
Applying the four contextual factors established in Law, the court held that this differential treatment was substantive discrimination that demeaned Plesner’s human dignity as follows.
First, the court stated that individuals suffering from mental disability are subject to pre-existing disadvantage and are stigmatized in our society.
Second, the reduced access to compensation did not correspond to the actual needs, capacity and circumstances of individuals with mental injuries.
Third, while the challenged provisions reduced costs, these savings were not an ameliorative purpose.
And fourth, Policy Item no. 13.30 treated those suffering from mental injuries as less deserving of compensation than those with physical injuries.
Accordingly, the court found that section 15 of the Charter had been violated.
The Court held that section 5.1(1)(a) of the act and Policy Item no. 13.30 were not justifiable as a reasonable limit under section 1 of the Charter. Financial considerations and the problem of causation created by mental stress claims were found to be insufficiently pressing and substantial objectives, given the circumstances. In order to remedy the breach, the Court severed the sections of Policy Item no. 13.30 which define and describe “traumatic event”.
Following the decision in Plesner, the board of directors of the WCB issued a resolution that revised Policy Item no. 13.30 to conform with the Court of Appeal’s decisions. The revised policy item no longer includes the list of traumatic events as examples of severely emotionally disturbing events. This list has been replaced by a statement that a “traumatic” event is one that “is an emotionally shocking event”.
The revised policy item also no longer includes examples of instances where workers will and will not be able to collect mental stress benefits. The policy has also been amended to acknowledge that an “acute” reaction to a traumatic event may be delayed.
Many commentators have predicted an increase in both the frequency and success of mental stress benefit applications in B.C. following the decision in Plesner. To date, however, there does not appear to have been an increase in the success of mental stress claims.
In the four reported B.C. WCAT decisions citing Plesner, three were denied on the basis that the claimant had failed to establish that he or she suffered from a condition diagnosed under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
Further, there is currently no evidence of an increase in the number of mental stress benefits claims filed as WorkSafe B.C. has not yet released its 2009 claims statistics.
However, the impact of the Plesner decision has yet to be fully seen. Most workers’ compensation regimes differentiate between mental and physical injury claims. Ontario, Newfoundland, and Nova Scotia, for instance, all have workers’ compensation board policies that are strikingly similar to the version of Policy Item no. 13.30 that the B.C. Court of Appeal struck out.
In Ontario, for example, the Workplace Safety and Insurance Act provides that workers are entitled to benefits for mental stress if that stress is an “acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.” Like B.C., Ontario’s Workplace Safety and Insurance Board is required to apply a series of mandatory policies contained in the Workplace Safety and Insurance Board’s Operational Policy Manual.
Policy no.15-03-02 of the manual creates a two-stage test and contains a list of examples of possible traumatic events, using nearly identical language to the B.C. policy. In Plesner, it was precisely these two features with which the B.C. Court of Appeal took issue.
To date, there have been no Ontario Workplace Safety and Insurance Board or Workplace Safety and Insurance Appeals Tribunal decisions that cite Plesner. Given the volume of claims in Ontario and the strong parallels between these two regimes, it is likely only a matter of time before Ontario’s approach to determining entitlement to mental stress benefits is challenged on the grounds that it violates section 15 of the Charter.
The decision in Plesner has clearly expanded the scope of entitlement to mental stress workers’ compensation benefits and it has the potential to do the same in provinces that have similar policies on entitlement to benefits for mental injuries. It has not, however, completely removed the requirement that mental injuries must arise from objectively traumatic events in order to be compensable.
We will watch with interest to see how the courts and the WCB interpret this new approach to mental stress benefits and the extent to which this decision increases the frequency and success rate of claims.
Cheryl A. Edwards is a former Ontario Ministry of Labour Occupational Health and Safety Prosecutor and now heads up Heenan Blaikie’s national Occupational Health and Safety and Workplace Safety and Insurance Practice Group. For more information, you can contact Cheryl at [email protected], or by phone at 416 360.2897.
Shane Todd is an associate in Heenan Blaikie’s Labour and Employment Group. Shane provides advice and representation to employers and management in a broad range of matters including occupational health and safety and workplace safety and insurance issues. For more information, you can contact Shane [email protected], or by phone at 416 643.6958.