There are some interesting developments impacting workers compensation stress claims in our neighbour to the north, Canada. Here in the States, comp stress claims are very difficult to prove. Most states require that the "predominant cause" of stress in the claimant's life must be work related. This tough standard leads directly to a defense strategy of aggressive discovery: every aspect of the employee's private life is fair game. Whatever the causes of stress at work, they must exceed the stressors at home. For most of us, that might be difficult to prove -- and too embarassing to risk.
In the lovely Canadian Province of Nova Scotia, government employees are now explicitly covered for two types of stress claims: post-traumatic stress and gradual onset stress. While we are all pretty familiar with the former, the latter is something new. Unlike traditional "traumatic stress" -- which involves a single event -- "gradual onset stress" is a reaction to unusual and excessive work-related stressors acting over time. (Keep in mind that these new protections are limited to government employees.)
Policy wonks can view the policy here. A detailed discussion is available here.
Setting the Bar
Nova Scotia has taken some prudent steps to limit the application of the new diagnosis. Claims for psychological or psychiatric injuries resulting from gradual onset stress may be compensable if all of the following four criteria are satisfied:
i. The work-related events or stressors experienced by the worker are unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation;
ii. The worker is diagnosed with a mental or physical condition that is described in the DSM IV;
iii. The mental or physical condition is caused by the work- related events or stressors; and
iv. The condition is diagnosed in accordance with the DSM IV by a health care provider being either a psychiatrist or a clinically trained psychologist registered with the Canadian Register of Health Service Providers in Psychology.
In addition, government employees may not site ordinary employment actions (performance evaluation, demotion, termination) as "gradual stressors."
Nova Scotia has set a reasonably high standard of proof. For example, the stressors must be unusual and excessive for the work. In other words, in confronting daily situations of violence and stress, police and prison employees might have a difficult time proving that the stressors were unusual and excessive. (We discuss just such a situation below.) On the other hand, workers in normally sedentary jobs would have an easier time meeting the standards.
Not covered by Comp: You can Sue!
At first impression, those of us who monitor comp developments might assume that in establishing the gradual onset diagnosis, Nova Scotia has opened the door to a rash of new claims. It's important to keep in mind, however, that by recognizing that stress might occur over time, the province has actually insulated itself against lawsuits. In Nova Scotia, an employee suffering from what may be gradual onset stress would have to pursue a remedy through the comp system. On the other hand, across the water in Newfoundland, the opposite is true: because their comp statute omits any reference to gradual onset stress, employees can go outside of the comp system (under which you cannot sue your employer) and file a lawsuit.
Here's a real-life example:
A jail guard in an Royal Canadian Mounted Police (RCMP) lockup in Grace Harbour, Newfoundland, sued the federal government for damages suffered from severe harassment at the hands of his supervisor. The harassment began after the guard gave a damaging statement during a force investigation into conduct by his supervising corporal. The guard understood that the statement would remain confidential; in fact, it was disclosed to the supervisor during disciplinary proceedings, which culminated with a dismissal or withdrawal of all allegations against the supervisor. After returning to work, the supervisor retaliated against the guard with repeated verbal threats, aggression and intimidation. RCMP officials were aware of the harassment, but did not assist the guard and a 1999 harassment investigation conducted by the force dismissed the complaint for lack of corroborating evidence.
As a result of the harassment, the guard gradually became anxious, insecure and, ultimately, suicidal, eventually being diagnosed with post-traumatic stress disorder (perhaps more accurately, with gradual onset stress disorder). In 2000, he commenced a court action against the supervisor and the RCMP. One of the issues was whether the guard could sue in the courts or was barred from suing because he was entitled to workers’ compensation benefits.
The trial judge concluded that the guard’s emotional condition was not covered by the Newfoundland comp legislation. The condition was not recognized by the comp system. As a result, he was entitled to file a lawsuit. The judge found the guard’s psychological condition to be “extremely" disabling and awarded almost $500,000 damages, including $376,000 for loss of income, $90,000 for pain and suffering and $30,000 aggravated damages.
Keep Employees in the Comp System
There is in all of this a valuable lesson for state legislatures. It's usually best to recognize and contain all employee injuries within the comp system. Maintain comp's role as the "exclusive remedy" for emploiyees. To be sure, comp can be idiosyncratic and expensive, but awards are limited to medical bills, lost wages and loss of function payments. With its "no fault" premise, workers comp does not recognize pain and suffering or loss of consortium. Had Newfoundland incorporated the Nova Scotia standards for gradual onset stress into its statute, the injured guard would have been limited to a workers comp remedy.
Some might fear that in creating the new diagnosis of "gradual onset stress" that Nova Scotia has thrown open the door to dubious claims. I don't think so. They have recognized that work-related stress might not occur just in response to a single event. In doing so, they have extended the safety net for government workers and at the same time, limited their exposure to lawsuits. Not a bad move -- and one which I expect will gradually move southward, one state at a time.