Follow-up
Resulting revisionFollowing 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 This list has been replaced by a statement that a “traumatic” event is one that “is an emotionally shocking event”.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.
COS-------------------------
In our time, political speech and writing are largely the defense of the indefensible.
George Orwell
