A new policy in the province of Nova Scotia for the filing of workers compensation claims for federal employees suffering from gradual-onset stress is rekindling the debate over the possible expansion of coverage for stress conditions for all Canadian employees.

While Nova Scotia's new policy is not expected to have a direct impact on the coverage of stress claims for workers not employed by the federal government, it is part of an overall atmosphere of change that some observers believe will lead to the future broadening of eligibility for stress claims.

The Workers' Compensation Board of Nova Scotia, which administers comp claims for federal employees who work in the province, recently developed a new policy for stress claims filed by federal employees. The new policy allows a federal employee to file a claim for stress resulting from a traumatic event or work-related stressors acting over time, also known as gradual-onset stress. In contrast, stress claims for all other employees are restricted to stress caused by an acute reaction to a traumatic event.

The WCB of Nova Scotia developed the policy to comply with a recent judicial interpretation of the Government Employees Compensation Act, a 1985 federal law that covers compensation for federal government employees. The GECA provisions are broader than those featured in Nova Scotia's own Workers Compensation Act and have been determined to include gradual-onset stress. In other words, the GECA provides for the possibility of entitlement for gradual-onset stress where the provincial legislation does not, according to the board.

Many other provinces have similar legislation that restricts a stress claim to an acute reaction to a traumatic event. For example, Ontario provides coverage for "traumatic mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment," according to the operational policy of the Workplace Safety and Insurance Board of Ontario.

Events leading to stress

Examples of events that could lead to a stress claim include the witnessing of a fatality or a horrific accident, being the object of physical violence or death threats, or being the object of harassment that includes physical violence or being placed in a life-threatening situation. A worker in Ontario is not entitled, though, to benefits for traumatic mental stress that stems from employment decisions or actions such as termination, demotion, transfer, discipline, changes in working hours or changes in productivity expectations.

Officially, the WCB's new policy will not have implications for private employers because it covers only federal employees based in Nova Scotia. The policy, though, is part of an overall trend of events that has expanded the scope of workers compensation coverage for stress conditions, observers say.

For example, the Workplace Safety and Insurance Appeals Tribunal in Ontario-the final appeal body in the workers compensation system in the province-has been gradually expanding the areas of entitlement for stress claims. In an April 2005 decision, the tribunal overruled a denial of benefits for an employee who suffered stress due to hostile treatment by a co-worker. While the situation did not fit the traditional parameters for stress claims featured in the board's policy, the tribunal found that the treatment was an unjustified attack by the co-worker that constituted a "sudden and unexpected traumatic event."

In a March 2004 decision, the tribunal ruled that an employee who was subjected to ongoing harassment by a manager was entitled to benefits, even though the harassment did not include being placed in a life-threatening or potentially life-threatening situation. The tribunal said the policy wording suggested that there might be other types of harassment that would satisfy the requirements for determining whether the stress claim was justified.

"If it's involved with the workplace, the board has a hard time rejecting it," said Michael McAlear, a senior consultant for Heath Benefits Consulting Inc. in Ottawa.

Widening of the policy

Meanwhile, the Supreme Court of Canada's October 2003 decision in Nova Scotia (Workers Compensation Board) vs. Martin declared that limitations on claims for chronic pain were illegal (BI, May 24, 2004). In this decision, which observers said had implications for the coverage of stress claims, the Supreme Court challenged the constitutionality of attempts to limit or deny benefits for injuries or conditions arising from the workplace.

Given these recent tribunal and court decisions, the Nova Scotia rules represent a "de facto widening of the policy," said Sheikh Azaad, president of Toronto-based Atworkcanada Inc., which provides solutions for managing workplace disability and absenteeism. It is only a matter of time, probably within the next 12 months, before Nova Scotia's policy will be expanded to nonfederal government employees, Mr. Azaad predicted.

A spokeswoman for the WCB of Nova Scotia said there has been discussion of expanding eligibility for gradual-onset stress claims, but she declined to comment further.

Employers have several objections to any expansion of eligibility for stress claims, namely the difficulty in quantifying the nature of the condition and effectively linking the condition to a workplace issue. For employers, the key problem is how to determine whether and how much of the stress is related to the job or to other factors, such as the employee's personal life.

"The workplace needs to be the significant contributor to any disability," said Sherri Helmka, executive director of the Kitchener, Ontario-based Employers' Advocacy Council, which represents more than 600 employers in the province.

For gradual-onset stress, "it's practically impossible to determine the causality," said Ian Howcroft, vp-Ontario division of the Ottawa-based Canadian Manufacturers & Exporters, a trade association that represents more than 2,000 employers in Canada.

"It does make it very hard to make the connection between work and the condition or the disease," said Terry Bogyo, director of corporate planning and development for the Richmond, British Columbia-based WCB of British Columbia.

If the eligibility for stress claims is expanded, employers worry, it could lead to employees filing claims for a number of stress conditions arising out of the course of everyday employment.

"It can't be normal, day-to-day labor relations issues," Ms. Helmka said. "That's not a road we want to go down."

In order to combat this concern, gradual-onset stress likely will be covered initially within a certain limited framework, requiring evidence that the employee has suffered stress due to working in extraordinary or abnormal conditions, Mr. Azaad said. The boards will create policy language designed to limit gradual-onset stress claims, as Nova Scotia did in its policy, he noted.

Nova Scotia's policy says the work-related events causing the stress must be "unusual and excessive" in comparison to the work-related stress experienced by an average employee in the same or similar occupations.

"It has to be more than just the norm," Mr. Azaad said. "Otherwise, they're opening a floodgate that they can't control."

Employee advocates have argued that Nova Scotia's policy treats federal employees differently than other employees, a discrepancy the WCB of Nova Scotia attributed to the need to comply with the GECA.

Labor unions take the position that all work stress should be covered, and employers make the argument that other types of stress beyond traumatic stress "may be work-related, but it's not affordable," Mr. Bogyo said. "There's always been a tension around that issue," he said. "Where do you draw that line?" he asked.

Affordability of coverage

The affordability of workers comp coverage remains a key issue for employers. Canadian workers comp coverage is provided largely by provincial workers comp boards and financed by employer-paid premiums. Many of the provincial workers comp systems have substantial unfunded liabilities, with Ontario's $7 billion deficit forcing the board to raise employer premiums by 3% in 2006.

Employers say the workers comp system in Canada simply cannot broaden the eligibility for stress claims without creating an undue financial hardship.

"We can't afford to be paying for everybody to be off of work because they're experiencing stress," Ms. Helmka said. If employees can file stress claims based on all types of work situations, she asked, "how are we going to afford a system like that?"