Nova Scotia Compensates for Gradual Onset Mental Stress: 5 FAQs
Published:
October 1, 2024
Author(s):
Effective September 1, 2024, amendments to the Nova Scotia Workers’ Compensation Act allow workers to be compensated for gradual onset stress. Nova Scotia is the first (and to date only) Atlantic Canadian province to compensate workers for gradual onset stress – but it joins a growing list of Canadian provinces and territories to do so. Here are the answers to five frequently-asked questions about Nova Scotia’s new gradual onset stress compensability amendments.
1. What’s the criteria for compensation for gradual onset stress under the N.S. Workers’ Compensation Act?
Formerly, the N.S Workers’ Compensation Act covered physical injuries with only limited coverage for mental health injuries. In particular, the definition of “accident” only included stress if it were an acute reaction to a traumatic event. For example, a worker who suffered PTSD after witnessing a workplace fatality was (and still is) covered. The applicable Nova Scotia Workers’ Compensation Board (WCB) Policy required a worker to be diagnosed with a recognized condition under the Diagnostic and Statistical Manual of Mental Disorders (DSM) to qualify, so coverage was dependant on a bona fide medical diagnosis.
Effective September 1, 2024, the Act was amended to also recognize and compensate workers for gradual onset psychological injury. The Act now provides that a worker is entitled to compensation for gradual onset stress if the stress both:
- Arises out of and in the course of employment.
- Is wholly or predominantly caused by one or more significant work-related stressors or a cumulative series of significant work-related stressors.
Compensation Criteria. While the amendments to the Act are sparse on details, in July 2024 the WCB released its Supplemental Information: WCB Nova Scotia Psychological Injury Policy to reflect the Act amendments. It’s notable that the WCB Policy isn’t law and doesn’t bind labour and employment adjudicators or courts. However, it is in an indication of how the WCB will interpret and apply the Act amendments. According to the WCB Policy, for a worker to qualify for a gradual onset stress claim, they must prove four criteria:
- The injury arose out of and in the course of employment, as expressly stated in the Act.
- They have an “injury” which requires they have a DSM diagnosis; a worker’s bald statement that they are “stressed” won’t suffice.
- That injury is due to one or more significant work-related stressors.
- The WCB Decision maker is able to identify the events which are claimed to have caused the mental stress.
“Significant work-related stressor”. The WCB Policy defines “significant work-related stressor” as, “a work-related stressor that is generally considered excessive[ly] significant in intensity and/or duration in comparison to the normal pressures, tensions or events experienced by workers in similar circumstances.” The Policy cites examples as the following, while noting it may consider other stressors to be significant work-related stressors where it’s lasted for an extended period of time, arises from incidents or actions that are serious and egregious in nature, and are beyond the normal pressures and tensions of employment:
- Personal experience of, or directly witnessing, a work-related traumatic event.
- Experiencing workplace harassment or bullying.
Because the gradual onset stress must be the result of a “significant work-related place stressor”, stress that arises as a consequence of a physical injury likely isn’t separately compensable as gradual onset stress.
“Workplace harassment or bullying”. Nova Scotia is the only Atlantic Canadian jurisdiction in which the applicable occupational health and safety legislation doesn’t specifically address or define “harassment”. Each of Newfoundland and Labrador, New Brunswick and Prince Edward Island have promulgated workplace harassment-specific regulations and defined “harassment”. On September 5, 2024, Nova Scotia Bill 454, was introduced to amend the Nova Scotia Occupational Health and Safety Act. If passed, the amendments will mandate employers establish and implement a workplace harassment-prevention policy; however, Bill 454 still does not provide a definition of “harassment”. While the amended Nova Scotia Workers’ Compensation Act also doesn’t define “workplace harassment and bullying”, the WCB Policy defines it as, “a single significant occurrence or a course of repeated occurrences of objectionable or unwelcome conduct, comment or action in the workplace that, whether intended or not, degrades, intimidates or threatens, and includes all of the following, but does not include any action taken by an employer or supervisor relating to the management and direction of a worker or the workplace”:
- Workplace harassment or bullying based on any personal characteristic, including, but not limited to, a personal characteristic protected under the Nova Scotia Human Rights Act.
- Inappropriate sexual conduct, including, but not limited to, sexual solicitation or advances, sexually suggestive remarks or gestures, circulating or sharing inappropriate images or unwanted physical contact.
This definition is consistent with the generally understood definition of “workplace harassment and bullying” and in workplace policies and legislation. It’s notable there’s an explicit human rights tie-in, so discriminatory harassment is intended to be covered by the definition.
Subjective / Objective Test. It’s important to note that in determining whether a stressor is a “significant work-related stressor” the WCB Policy indicates the WCB will consider the worker’s subjective response to the stressor – but it will also involve an objective analysis, that is, a consideration of whether the reasonable person would have a similar response to the event as did the worker claiming compensation.
2. How does the N.S. Workers’ Compensation Act define “gradual onset stress”?
Again, the Act itself doesn’t define “gradual onset stress”, but the WCB Policy offers the following definitions:
“Gradual onset stress”. Defined as, “[m]ental stress that is a response to experiencing a single significant or a course, or series, of non-traumatic events over time.
“Mental stress”. Defined as, “an individual’s non-specific physical and psychological responses to the events or changes that occur in a person’s life that result in a diagnosed psychological injury.” As noted in the Policy respecting the compensation criteria, a DSM diagnosis is necessary. This means an employee’s self-report of stress is insufficient to support a compensation claim under the Act. It’s also noteworthy that a DSM diagnosis can only be made by a healthcare worker that is a psychiatrist or clinical psychologist. For example, a family doctor’s medical note stating “anxiety” isn’t enough to support a compensation claim.
3. Are there exceptions to compensation for gradual onset mental stress?
Yes. The amended Act expressly states that a worker is not entitled to compensation for stress caused by either:
- Interpersonal conflicts other than harassment or bullying.
- Reasonable decisions taken by management.
Interpersonal Conflicts. The exclusion for interpersonal conflicts recognizes the fact that interpersonal conflicts in and of themselves are common in the workplace and that the typical conflict of this sort, regardless of who it is with, in and of itself doesn’t support a compensation claim; it must still rise to the thresholds set by the definitions of “gradual onset stress” and “significant work-related stressors”. The WCB Policy offers the following description of this exception: “Interpersonal conflicts between workers and their supervisors, co-workers, or customers are generally considered to be a typical feature of employment. A worker is not entitled to compensation if it is shown that a worker’s mental stress was caused by one or more interpersonal conflicts arising out of and in the course of employment, unless it amounts to harassment or bullying.”
Reasonable Management Decisions. Again, the exclusion for reasonable management decisions recognizes management rights and the fact it’s normal for employers to make decisions and take actions that impact workers. The WCB Policy provides specific examples of excluded employer actions that fall into this exception: “Changing the work to be performed or working conditions, changes to hours of work, changes to workload, productivity, expectations, or deadlines, transfer to a new location, changes in role, changes to reporting structures, performance evaluations and corrective actions, or termination.”
4. Will the WCB do its own investigation?
The WCB Policy states that one of the criteria for a compensable gradual onset stress claim is the “ability of the WCB Decision Maker to identify the events which are claimed to have caused the mental stress”. In other words, the WCB decision maker must be able to clearly identify events that caused the mental stress and to confirm those events were in fact the cause of the stress. This in turn suggests that the WCB might investigate gradual onset stress claims – including those arising from workplace harassment and bullying. The WCB could conduct its own, potentially parallel, investigation in which it will gather and consider information from a variety of sources, including conducting interviews and/or taking statements from the workers involved, health care professionals, the worker’s supervisory staff, members of the public – and you, as the employer.
It’s important to note that any obligation you owe to properly investigate a claim of workplace harassment or bullying isn’t negated by another investigation – including one by the WCB in the context of a compensation claim for gradual onset stress. While the WCB isn’t not bound to your investigation or conclusions, as in the normal course, the WCB will review all information submitted by both workers and employers and consider all evidence identified during the decision-making process, including your harassment investigation. This makes it of even greater significance to ensure that you follow the process to conduct a proper workplace investigation of all harassment and bullying incidents of which you become aware.
It’s also important to note that the objectives of your harassment investigation and that of the WCB are for different purposes. It’s possible that your investigations will arrive at different conclusions. Just as the WCB isn’t bound by your investigation, you’re not bound by the WCB investigation. Provided you conducted a proper workplace investigation, you should feel confident in relying on the results of your own investigation to take appropriate action regardless of the outcome of any WCB investigation.
5. How can I mitigate the risks of a gradual onset stress compensation claim?
Stick to the basics: you can’t provide a completely stress-free workplace, but you can strive to provide a harassment-free workplace. There is authority for the proposition that the current Nova Scotia Occupational Health and Safety Act obligation on you to provide a “safe workplace” is limited to the obligation to provide a physically safe workplace and doesn’t extend to an obligation to provide a psychologically safe workplace. However, Bill 454, if passed, will change this by adding a definition of “health and safety” to the Occupational Health and Safety Act and defining it to expressly “include both physical and psychological health and safety.” Despite that, there are other liability risks of workplace harassment that make it a practical objective, including the risks of a grievance or constructive dismissal, or a human rights complaint or, as is often now the case, both. The addition of compensation for gradual onset stress under the N.S. Workers’ Compensation Act creates yet another avenue for workers to seek redress for workplace harassment and bullying. A key aspect of the objective to provide a harassment-free workplace is to:
- Promulgate a workplace harassment and bullying policy (remembering that if Bill 454 passes, it will mandate that you establish and implement a workplace harassment-prevention policy effective September 1, 2025) that encompasses the WCB Policy definition of workplace harassment and bullying and has an accessible complaint process, key to permit swift action before matters escalate to the point of meeting WCB Policy’s definition of “mental stress”, and a process that ensures a thorough, fair and well-documented investigation of any incidents.
- Properly implement the workplace policy, including training of all workers respecting the policy and workplace harassment and bullying generally, and of supervisors and managers in enforcing the harassment policy.
- Regardless of whether a worker makes a complaint, act on all harassment and bullying incidents of which you become aware – even if there’s no “official complaint”.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss how to mitigate the risks of gradual onset stress claims.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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