Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 CSR | September 2016 | News No mental stress benefits for federal worker in New Brunswick Worker at federal penitentiary subject to provincial workers' compensation regime, which excluded gradual-onset mental stress BY JEFFREY R. SMITH THE NEW BRUNSWICK Court of Appeal has overturned a fed- eral penitentiary worker's award of workers' compensation for gradual-onset mental stress, re- instating the original decision denying the claim on the basis such stress is not compensable in the province for any workers. Scott Mullin worked for the Correctional Service of Canada (CSC) as a shop instructor at the Atlantic Institution, a max- imum-security penitentiary in Renous, N.B. Hired in 1998, Mul- lin supervised inmates in a pro- duction shop that constructed mattresses. In July 2012, Mullin told CSC that his doctor requested that he take time off work due to stress that was related to his "working atmosphere," which had includ- ed a doubling of the number of inmates he was instructing at the same time budgets were be- ing cut. In December 2012, a psychologist submitted a report to CSC indicating Mullin being "frequently confronted by angry inmates, virtually all of whom have an extensive history of ex- treme violence, includes chronic levels of high stress." The report also stated that Mullin was ex- periencing "psychological tur- moil and discomfort" including anxiety and depression. The report concluded that Mullin's mental health prob- lems were directly related to a workplace injury and were "cumulative effects of stress as opposed to a stress response" that made him disabled from employment. Mullin submitted a claim for workers' compensation ben- efits and the New Brunswick Workplace Health, Safety and Compensation Commission (WHSC) consulted a second psychologist who was its medi- cal advisor. The advisor con- cluded Mullin had not shown "emotionally overwhelming stress," so the WHSC denied Mullin's claim, ruling that "the challenges associated with deal- ing with disgruntled inmates, employer cutbacks and nega- tive performance appraisals do not appear to be significantly outside the norm of what would be expected with your supervi- sory position." The WHSC also noted that it hadn't been proven that his mental health issues had arisen out of and in the course of his employment. Mullin appealed to the prov- ince's appeals tribunal, which overturned the WHSC deci- sion. The tribunal found Mullin's claim for mental stress should have been accepted. CSC ap- pealed this decision to the New Brunswick Court of Appeal, arguing federal government employees such as Mullin were governed by the Government Employees Compensation Act (GECA), which stipulated work- ers' compensation was to be consistent with the standards of provincial workers' compensa- tion legislation. Benefits within province vs. other federal workers The New Brunswick Workers' Compensation Act stipulates workers were entitled to com- pensation only if they suffered a personal injury by an accident — a "wilful and intentional act" by someone else, "a chance event occasioned by a physical or nat- ural cause," or an occupational disease — that arose out of and in the course of employment. The act specifically ruled out disablement caused by mental stress as eligible for compensa- tion, unless it was an "acute reac- tion to a traumatic event." The court noted that the Su- preme Court of Canada had ruled earlier that federal em- ployees under the GECA were entitled to receive compensa- tion at the same rate and under the same conditions as provided under the law of the province where the employee is usually employed, as provided under each province's workers' com- pensation legislation. Though an earlier New Brunswick decision had found that Parliament hadn't intended to create "a patchwork across Canada" with federal em- ployees having different thresh- olds for benefits depending on what province they were in, the Supreme Court determined that Credit: Shutterstock/Lightspring Consistency > pg. 8

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