Compensation for mental-mental claims under Canadian law

Behavioral Sciences and the Law,Vol. 8,375-398 (1990)

Compensation for MentalMental Claims under Canadian Law Katherine Lippel, L.L.L., L.L.M. Canadian Workers’ Compensation Boards have recently been confronted with claims for compensation for disability related to workplace stress. Rules of adjudication applied to such claims are currently evolving in the 11 Canadian jurisdictions studied. This article describes the Canadian Workers’ Compensation schemes and then proceeds to analyse the approach of the various provincial Boards to mental-mental claims. It explores some of the differences between the Canadian and American approaches to the issue of compensationfor psychological workplace stress, offers hypotheses as to the reasons for the disparities, andlooks at the future of such claims.

Mental-mental claims’ in the field of workers’ compensation have, in the past, represented only a small percentage of the overall workload of North American compensation boards. American workers have access to lawyers and courts who are willing to entertain the most creative of legal claims, and it is thus not surprising that the forerunners in the recognition of the right to compensation for both the physical and mental consequences of psychological stress have been, for the most part, American.’ Work in Canada is also stressful, and Canadian compensation boards have learned in the last few years that they are no longer able to sweep stress claims under the administrative rug. Policy on the issue is developing in most Canadian jurisdictions, and in Quibec and Ontario a significant body of case law now exists. In this article we will address the issue of compensation for psychological disability resulting from work-related psychological stress of an acute or chronic nature. Our Canadian material was gathered from the limited administrativetribunal case law now existing, but also, and more significantly, from interviews with spokespersons of the variousprovincial compensationboards.Spokespersonswere designatedbythe Boards, and each was asked to respond to a series of theoretical and practical questions regarding compensation for both the physical and mental consequences of work-related Katherine Lippel is an attorney and professor of law at the University of QuCbec in Mon&al, Canada. Please address requests for reprints and correspondence to Katherine Lippel, Dtpartement des Sciences juridiques, UniversitC du Quebec a Montrkal, C.P. 8888, Succursale A, Montrbl H3C 3P8, Quebec, Canada. Research for this article was made possible by funding by 1’Institut de recherche en santC et s C d d du travail-the QuCbec Health and Safety Research Institute. The term refers to those claims relating to psychological disabiiity arising from psychological stress in the workplace. * For an analysisof the American legal situation on this issue see IDPEL, K. (1989). Workers’compensation and psychological stress claims in North American law: a microcosmic model of systemic discrimination. IN’ERNATIONAL JOURNALOF LAW AND PsYcHIATRY. 12,41-70.

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tress.^ We have restricted ourselves in the article to issues of psychological disability related to a stimulus of either acute stress (e.g. bank robbery, hostage taking, motor vehicle accident), or chronic stress (e.g. harassment, overwork, personality conflicts, role ambiguity, role conflict). Physical disabilities allegedly related to workplace stress are evaluated under a different set of rules and will not be discussed. In the course of our study of North American compensation law regarding stress we found that structural differences in the mechanisms of compensation explained, to a large extent, the variations in policy. Nowhere is the contrast more blatant than in the comparison of American law to Canadian law. Although the different American jurisdictions represent a broad spectrum, li-om the liberal Michigan standard recognizing subjective perception of stress4 to the more conservative Kansas approach that insists on physical contact before any form of compensation may be grantedY5 the means by which the American standards have evolved are all fairly comparable. Workers file claims and appeal to the courts. It is the courts who are for the most part responsible for the evolution of workers’ rights to compensation for stress, unless the state legislatures have seen fit to legislate specificpolicy on the issue.6 In Canada, the courts have little to do with workers’ compensation in general, and case law materials relating to stress are, for all practical purposes, nonexistent. In Ontario and Qukbec, administrative tribunals of a quasi-judicial nature hear cases and render decisions. In the other provinces, the compensation boards themselves monopolize jurisdiction on the issue of compensation. Not surprisingly, Canadian rules have evolved differently. To understand the rules it is necessary to understand the context in which they have evolved. An overview of the Canadian compensation scene, presented in the first part of this article, will be followed by a study of the law in Quebec and Ontario, where the most significant developments have occurred. We will then look briefly at policy in the other provinces, before concluding with a discussion of the specificities of the Canadian approach.

OVERVIEW OF WORKERS’ COMPENSATION SCHEMES IN CANADA Workers’ compensation comes under provincial jurisdiction in Canada, and every Canadian province has enacted legislation in the field.7 Employees under federal jurisdiction are also covered.’ These interviews were held between July 1987 and November 1988. Written material from Quebec and Ontario was used to update our data for these provinces, which is up to date as of April 1990. Deziel v. Dijb Laboratories Inc., 268 N.W. 2d 1 (1978); see also the California case of Albertson’s Inc. v. W.C.A.B., 131 Cal.App. 3d308 (1982). * Kansas Statute sec. 44-508(e). Seven other American states apply similar rules, see LIPPEL,K. Workers’ compensation and psychological stress claims in North American law: a microcosmic model of systemic discrimination, supra, note 2 at page 44. See for instance Oregon statute HB2271, and Maine’s statute 39 M.R.S.A. sec. 52(3). ’ Alberta: Workers’ Compensarion Act, S.A. (1973), c. 87; British Columbia: Workers’ CompensatMn Act, R.S.B.C. 1979, c. 437; Manitoba: Workers’ Compensation Act, R.S.M. (1987), c. W-200; New Bmswick: Workers’CompensationAct, R.S.N.B. (1973), c. W-13; Newfoundland: The Workers’Compensation Act, 2983, S.N. (1983), c. 48; North West Territories: Workers’ Compensation Act, O.N.W.T. (1977)(1), c. 7; Nova Scoua: Workmen’s CompensationAct, R.S.N.S. (1968), c.65; Ontario: Workers’ Compensation Act, R.S.O. (1980), c. 539; Prince Edward Island: Workers’ Compensarirm Act, R.S.P.E.I. (1974), c. W-10; Qukbec: An Act Respecting Industrial Accidents and OccupcltMnd & e m s , R.S.Q., c. A-3.001; Saskatchewan: An Act to Rovide for Compensation to Workersfor Injuries Sustained in rhe Course oftheirEmplqyment,S.S.(1979),c. W-17.1. Government Employes Compensation Act, R.S.C. (1985), c. G-5.

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The first no-fault workers’ compensation legislation enacted in Canada was adopted in the French-speaking province of Quebec in 1909.’ Inspired by French legislation guaranteeing no-fault compensation to workers, the Quebec scheme provided for compensation of up to 50% of the workers’ lost salary, for life, without proof of employer liability, but covered only a limited number of industries. If the worker could prove inexcusable fault on the part of the employer, more substantial damages could be awarded. Ontario soon followed suit with the adoption in 1914 of the Workers’ Compensation Act.” More complete than the Quebec legislation, Ontario’s law created a Workers’ Compensation Board responsible for managing employer assessments and evaluatingworker claims. Today every Canadian province has a publicly run Workers’ Compensation Board responsible both for the assessment of employers and the administration of workers’ claims. No-fault compensation is payable in all jurisdictions.

Access to Benefits To claim benefits, the worker must fall within the scope of the compensation scheme. All jurisdictions provide benefits for both temporary and permanent disability on the condition that the worker has suffered disability related to an industrial accident or an occupational disease. Some jurisdictions will compensate if disability is related to working conditions in general. Although the compensation schemes in the different Canadian provinces are not dissimilar, regional variations in the application of the legislation do exist. Quebec has a legalistic approach, exacting worker evidence that the disability claimed for correspond to the definition of work accident or industrial disease. Some decisions go so far as to refuse claims for work-related disability on the grounds that while the disability may be work-related, the claim does not fall under the specificlegislative definitions of employment injury.” Ontario’s approach is far more informal, allowing for a broader recognition of claims, while imposing fewer formalities as to filing and appeal deadlines. In all provinces, a worker’s file may be reopened throughout the claimant’s lifetime in the event of relapse or aggravation of previously compensated injuries, and some provinces will accept to reopen a file if the worker brings evidence that a previous decision refusing compensation was wrong. l2 Independent appeal tribunals exist in Ontario and Quebec, and it is their decisions that have shaped the compensation portrait over the last decade. As a result of the creation, in Quebec, of the right of appeal to the Social Affairs Commission (Commission des affaires sociales [C.A.S.] in 1977) and to the Board of Appeal (Commission d’appel en matikre de lesions professionelles [C.A.L.P.], in 1989, as well as the creation of the Ontario Workers’ Compensation Appeals Tribunal ([W.C.A.T.] in 1985), decisions regarding workers’ compensation have been published for the first time. Most compensation lawyers have only become interested in compensation issues, and in the defense of workers, since the instigation of these An Act Respecting the Responsibility for Accidents Suffetd by Workmen in the Course of their Work, and the Comptnrazionforlnjuries Resulting Therefim, S . Q . (1909), c. 66. lo

S.O. (1914), c. 25.

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V& de Charbbourg, Commission d’appel en matiere de lesions professionnelles, 01577-

03-8612 (27 July 1987). See for instance the Ontario Workers’ CompensationAct (1980), R.S.O., c. 539,sec. 860(2).

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tribunals. Other provinces do not have independent appeal mechanisms, although the compensation boards will hear some cases on appeal. It is thus not surprising that the forerunners in the development of compensation law are Ontario and Quebec. Most jurisdictions will compensate if evidence demonstrates a work-related disability, but, structurally, Compensation often depends on shaping the factual claim to the legal definitions. The key definitions are those of industrial accident and industrial disease. Legislation in the predominantly English-speaking provinces defines the term ‘industrial accident’ broadly and it is rare that a claim will be excluded because it does not fit neatly into the literal definition provided in the legislative enactment. Anglophone provinces define the term accident to ‘include a wilful and intentional act, not being the act of the worker and also [to] include a fortuitous event occasioned by a physical or natural cause’.13 Most provinces also specifically include ‘disablement arising out of and in the course of empl~yment’.’~ Quebec, a fiancophone province where much legislation is of French inspiration is ironically’*much more meticulous in its definition of the term ‘industrial accident’ for compensation purposes.I6 With the introduction of experience ratings in the assessment structures of Quebec workers’ compensation there has been a wave of employer contestations of claims in recent years, which has resulted in a rather twisted construction of the notion of ‘accident’. Some decisions have gone so far as to say that an accident involving a dangerous machine is not an industrial accident under the statute if the danger in the working conditions has been present for some time, as the accident will then be deemed to be foreseeable and therefore not a work accident.I7 Similarly strange decisions by local administrative tribunals are hopefully only a temporary deviation from the otherwise sound case law developed over the years in Quebec, giving a broad and liberal interpretation to the notion of industrial accident. Diseases resulting from accidents are now specifically covered by Quebec legislation, and some recent decisions recognizing claims for depression have done so on the basis of this definition. Law throughout Canada now accepts that gradual deterioration of a worker’s health, caused by incidents individually insignificant but cumulatively damaging, may be held to be compensable as the product of an industrial accident. Gradual l3 Workers’ Compensation Act, R.S.B.C. (1979), c. 437, s.1; similar definitions may be found in the North West Territories, Workers’CompensationAct (1985),(1), c. 4 s.2 I‘ Alberta: Workers’ Compensation Act, S.A. (1973), c. 87; New Brunswick Workers’ Compensation Act, R.S.N.B. (1973), c. W-13; Newfoundland: 27ze Workers’ Compensation Act (1983), S.N. (1983), c.48; Nova Scotia: Workmen’s CompensationAct, R.S.N.S. (1968)’ c. 65; Ontario: Workers’ Compensation Act, R.S.O. (1980), c. 539; Prince Edward Island: Workers’ CompensationAct, R.S.P.E.I. (1974), c. W-10; Saskatchewan:An Act to l+o& for Compensation to Workers for Injuries Sustained in the Course of their Emplqwnenr, S . S . (1979),c. W-17.1. Is This is ironic in the sense that courts in common law jurisdictionsare traditionally far more restrained in their construction of statute law than are their civil law counterparts, who tend to interpret legislation more broadly, given the civilist tradition of drafting in general terms. See PIERREAND& COTE, ?zIE INTERPRETATIONOF LEGISLATION IN CANADA, Les Editions Yvon Blais Inc. (1984), Montreal, p. 11. ‘Industrial accident means a sudden and unforeseen event, atmbutable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him’, A n ActRespectingZndrcsm’alAc&ien.a and OccupationalDiseases, R.S.Q., c. A-3.001, sec. 2. I’ Rancoun v. Papier Journal Domtar, C.S.S.T., Bureau de revision paritaire, 9284 303; this decision w a s reversed on appeal, at (1989) C.A.L.P. 778, and does not represent the usual construction of the statute. I* Bouchard v. Surete’du Que’bec and C.S.ST. (1988), C.A.L.P. 702; taframme pi. Avenue Pontiac, Buick, Caddkuinc. andC.S.S.T. (1988),C.A.L.P.948.

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strain developed over a period of time has led to disability judged to be compensable in several cases. l9 Some provinces, like Ontario, specifically refer to disablement resulting from employment in their legislation, while others, like Quebec, admit compensation because such disability clearly comes under the legislative purpose of the Workers’ Compensation Act, and may be accommodated by the statutory definition of ‘ac~ident’.’~ The thin skull rule to the effect that the defendant, or in this case the employer, must take victims as they are, applies throughout Canada, at least on a theoretical basis. The fact that an accident victim was more vulnerable to a dangerous substance or situation than were others exposed to the same danger is not an obstacle to compensation,” and the fact that a worker’s personal condition slows the healing process to the point where disability lasts far longer than would that of the average person does not, by application of the same principle, preclude the continuation of compensation.” All jurisdictions, with the exception of Nova ScotiaZ3cover psychological disability resulting from an industrial accident or an industrial disease, and most have adopted guidelines permitting a standardized evaluation of psychological disability.’* Some cases of suicide have been compensated in Ontario and Quebec. Most suicide claims relate to suicides followingwork-related physical di~ability,’~ although some claims have been recognized for suicides related to traumatizing events arising in the work-place.’6 Manitoba has accepted one claim for suicide allegedly resulting from frustrations in a claimant’s efforts to receive adequate compensation for his industrial accident. In despair he committed suicide, leaving a note explaining the Compensation Board’s recalcitrance in compensating him. After studying the file and finding that the worker’s complaints about the Compensation Board behaviour were well founded, the Compensation Board accepted the widow’s claim and she received death benefitsz7 Most successful compensation claims for stress-related disability have been accepted as industrial accidents rather than as occupational diseases. The recognition of a claim in this context allows the Boards to study each case individually, as the notion of work accident has no collective implications. In the rare cases where ~

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See DEE,G., MCCOMBIE, N., NEWHOUSE, G. (1987). WORKERS’COMPENSATTON IN ONTARIO, Butterworths, Toronto. pp.53-56. za See for instance (1981) C.A.S. 494, (1983) C.A.S. 53, (1985) C.A.S. 34, Bernier v. RtblicariOns Nordouest, (1988), C.A.L.P. 604,Soubigouv. M&so&C.S.S.T. (1988),C.A.L.P. 977. ** ISON, T. G. (1989). WORKERS’ COMPENSATION IN CANADA, Bunenvorths, Toronto, p.59; in Quebec see h d u i t s chimiques Expro inc. v. C.A.L.P.& Richer (1988), C.A.L.P. 187; Bouchard v. Surete’du Que’bec & C.S.S.T.,supra, note 18. In Saskatchewan section 50 of An Act to Provide for Cornpenmion to Workers for Injuries Sustained in the Course of their Employment, S.S. (1979), c. W-17.1 specifically protects the rights of vulnerable workers to compensation, if their pre-existing vulnerability did not impede their ability to work. 22 Hitu v. Brasserie MoLFon (1988), C.A.L.P. 266. 23 Information gathered during the course of our interview with a spokesperson of the Nova Scotia CompensationBoard. The interviewwas held on 20 October 1988. 24 Quebec has actually regulated the measurement of all permanent disability, including psychological disability, see: Scale OfBodilyInjuries Regulation,Decree 1291-87 (1987), 119 G.O.Q. II, 5576. 2s See for instance Succession de M.B. v. Minisdre de la Sicurite’publique (1989), B.R.P. 533. 26 A worker committed suicide after having witnessed the death of a co-worker. Compensation was granted in appeal to the Quebec Social Affairs Commission: Suuveteurs et victims d’uctes crimineLF-10 (1988), C.A.S. 46. 21 Information obtained during the course of our interview with Manitoba Compensation Board spokespersons. The interviewwas held on 6 September 1988. l9

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stress consequences have been accepted as industrial diseases, Boards have potentially opened the door to all workers in the same field, as acceptance of a claim often implies that the Board recognizes work stress to be characteristic of a particular profession. The record of Compensation Boards for compensating industrial diseases is deplorable both in Canada and in the United States, as under-recognition of work-relatedness is notorious in both countries.28In Canada, analysis of the statutory definition of industrial disease often explains why so many legitimate cases are refused. Most Canadian jurisdictions have statutory schedules regarding industrial disease which permit the Boards to recognize a claim in cases where the worker suffers from an illness and works in the corresponding occupation.29Other provinces do not have schedules or presumptions of work-relatedness and evaluate each case on its individual merits.30No schedules recognize any psychological disability as being presumptivelyrelated to specific working conditions, but most legislation permits claims for diseases not mentioned in the schedule^.^' Such claims will be evaluated on a case-by-case basis under quite stringent criteria. Most jurisdictions define industrial disease restrictively, exacting evidence of three separate elements before a claim may be recognized. It must be shown that: (a) The claimant suffers from a specific illness. (b) The illness was contracted as a result of conditions at work. (c) The illness or the working conditions causing the illness are peculiar to or characteristic of claimant’s work.32

Without the benefit of statutory presumptions it is difficult for an individual worker to establish all the elements necessary to the recognition of a claim. Epidemiological evidence is often essential to the demonstration of the premise that the illness is characteristic of employment and such evidence is usually beyond the means of the average worker, or even those of the average union. Recognition of stress-related psychological disability as being an industrial disease would imply that groups of workers would eventually be absolved from demonstrating that stress and its consequences are characteristic of or peculiar to a given employment. Many worker organizations are now considering the possibility of lobbying See Glasbeek, H. and Rowland, S. (1979). ‘Are injuring and killing at work crimes?’0~~001)~ HALL

L w JOURNAL,17,506. This is the legislative structure in: Alberta: Workers’ Compensarion Act, S.A. (1973), c. 87; British Columbia: Workers’ Compensaria Act, R.S.B.C. (1979), c. 437; New Brunswick Workers’ Compensation Act, R.S.N.B. (1973), C. W-13; Newfoundland The Workers’ Compensation Act, 1983, S.N. (1983), c. 48; Nova Scotia: Workmen’s CampensationAct, R.S.N.S. (1968), c. 65; Ontario: Workers’ Compensation Act, R.S.O. (1980), c. 539; Prince Edward Island Workers’ Compmsation Act, R.S.P.E.I. (1974), c. W-10; Qukbec: A n Act Respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A-3.001; Saskatchewan: A n Act to Rwide for Compensation w Workers for Injuries Sustained in the Course of their Employment, S . S . 1979, c. W-17.1. O ’ This is the case in the North West Territories Workers’ Compensation Act, O.N.W.T. (1977), (l), c.7 and in Manitoba: Workers’ CornpensariaAct, R.S.M. (1987), c. W-200; 31 Prince Edward Island is the sole exception to this statement: Workers’ Compensation Act, R.S.P.E.I. 29

(1974), C. W-10; 32

See for instance the law of New Brunswick Workers’ Compensation Act, R.S.N.B. (1973), c. W-13; Quebec:A n Act Respecting Indusm‘alAccidentsand Occupatwnal Diseases, R.S.Q., c. A-3.001, Nova Scotia: Workmen’s Compensation Act, R.S.N.S. (1968), c. 65; and Newfoundland The Workers’ Compensation Act, 1983, S.N. (1983), c. 48. The statutory definitions in Ontario: Workers’ Compensation Act, R.S.O. (1980), c. 539 and British Columbia: Workers’ Compensation Act, R.S.B.C. (1979), c. 437 are somewhat broader.

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for the inclusion of a statutory presumption regarding relatedness of some forms of depression and certain types of work33but to date no legislative modifications are being considered in Canadian jurisdictions.

Benefit Structures All Canadian compensation programs for injured workers include access to health care and rehabilitation benefits, temporary wage replacement and permanent impairment pensions. Some also include the payment of lump sum benefits. All costs, including those of administration of the different schemes, are totally financed by funds assessed from employers. No employee contribution scheme exists, and each scheme is supposed to be economically self-sufficient. All Boards are public institutions, and no private insurers participate in any way in the field of workers’ cornpensation. The law provides that funding for health care of injured workers be assumed by Compensation Board funds, rather than by the general Medicare even though those services are available to the general public through a publicly financed scheme. When health care benefits are available to the worker, regardless of the recognition of his or her claim, it is probable that some workers refrain from filing for compensation. Canadian stress claims are thus most probably far less numerous than they would be if the general social security net did not already provide for many needs of disabled workers. Perhaps the most important element of the Canadian social security network is the Medicare system. Residents of all provinces have access to state-funded health care services, ranging from consultation of the family doctor to open heart surgery. For decades the health care system has covered most medical needs of Canadians. Medical services provided in hospitals and clinics are funded by Medicare so that the quality of service is equal regardless of whether services are paid for by the public Medicare system or by Workers’ Compensation Boards. Medicare also covers treatment by some mental health practitioners. Historically, injured workers were the first group to benefit from free medical care, a right acquired in the early 20th century in many provinces. Only in the late 1960s were the rights of the general public to universally free health care recognized. Today, recognition of a compensation claim gives rise to few supplementary health care benefits. Medication will be paid for by the Compensation Boards, and is not covered by the general health care system, unless the beneficiary is hospitalized, a welfare recipient, or a pensioner. In recent years, certain private physiotherapy clinics which specialize in the care of injured workers have opened. Although physiotherapy is also covered by Medicare, long waiting lists in the public system have rendered private physiotherapy attractive. Services rendered by psychologists, osteopaths, acupuncturists and chiropractors are not usually covered by Medicare. Costs of treatment by these practitioners will be assumed by some Workers’ Compensation Boards if the need for such treatment has been prescribed by a physician, so workers wishing such health care may benefit by recognition of their compensation claim.

’’ See for instancethe discussion in BIBMU, G. et d.(1988).CERTAINS ASPECTS CULTURELS, DIAGNOSTTQUES

ET JURIDIQUESDU BURNOUT, GIRAhiE, Montreal. 34

See for instance s. 197 of the Quebec Act respecting Industrial Accidenu and Occupational Diseases, R.S.Q., C. A-3.001.

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In all Canadian jurisdictions, wages lost because of temporary disability related to work accident or disease are partially replaced by payment of benefits varying between 75% of the worker’s gross salary35to 90% of the worker’s net salary.36 The maximum insured wage rate varies from a low of $22,00037 to a high of $48000.38Benefits are payable for the duration of the disability, if temporary, or until such time as the work-related disability has reached a therapeutic plateau. Most claims for psychological disability resulting from work-related stress petition for temporary wage replacement for the period during which the worker has withdrawn from work, often while being treated by a psychiatrist. Evidentiary difficulties are common in these claims as compensation boards are often wary of psychological disabilities that are difficult to corroborate by ‘objective’ standards. Psychiatric evidence is usually preferred to that of a psychologist, and general practitioners have little clout unless the claim is for a very short period of time.39 Decision-makers will be wary of a claimant who takes no medicati~n,~’ or who has not consulted a psychiatrist, at least when the claimant lives in an urban area. In some provinces, compensation boards admit that no psychiatrists are available to injured workers, and sometimes no psychiatrists are available at all. Obviously, criteria for evaluation of relatedness and disability are slackened when specialists are unavailable, and the opinion of general practitioners will be accepted in many cases. Evidence that the claimant has never before suffered from psychological problems is not a prerequisite to omp pens at ion,^^ but it does facilitate recognition of a When psychological disability temporally coincides with specific traumatic events in the workplace, claims will usually be recognized. However, when personal problems coexist with problems in the workplace,4? or when reaction to work-related stress is delayed44evidentiary issues as to relatedness become far more delicate, and it is not uncommon to read cases where four or five psychiatrists file reports and testify. Usually, testimony of the treating psychiatrist will be preferred to that

Manitoba: Workers’ Compensation Act, R.S.M. (1987), c. W-200, Prince Edward Island: Workers’ Compensation Act, R.S.P.E.I. (1974), c. W-10; Nova Scotia: Workmen’s Compensation Act, R.S.N.S. (1968), c. 65, British Columbia: W’orkers’Compensation Act, R.S.B.C. (1979), c. 437. 16 Quebec: A n Act Respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A-3.001; Ontario: Workers’ Compensation Act, R.S.O. (1980), c. 539; Saskatchewan: A n Act to h v i d e for Compensation to Workers for Injuries Susrained in the Course oftheir Employment, S . S . (1979), c. W-17.1. North West Territories: Workers’CompensationAcc,O.N.W.T. (1977), (I), c. 7;Newfoundland: The Workers’Compensatwn Act, 1983, S.N. (1983), c. 48; ” Prince Edward Island, Worhrs’Compensation Act, R.S.P.E.I. (1974), c. W-10, s.76. 38 Saskatchewan, A n Act to &wide for Compensation to Workers for Injuries Suctained in the Course of their Employment, S.S. (1979), c. W-I 7.1, s.38.1. 19 Although uibunals prefer evidence of specialists it has been held that such evidence is not essential to the recognition of a claim, and that a worker may be compensated based on the medical opinion of a general practitioner, if this opinion is the most cogent medical evidencein the file: C.A.S. AT-61 134, decided by the Social Affairs Commission in Quebec on 12July 1989. 40 Although the claimant who does not take medication may nevertheless see her claim accepted: C.A.S. AT-59568, decided by the Social Affairs Commission in Quebec on 13 May 1988. “ Lemousy v. Hdpital Riviire des Bairies (1988), C.A.L.P. 573; C.A.S. AT-61 134, decided by the Social Affairs Commission in QuCbec on 12July 1989 42 Decision 145/89, decided by the Ontario Workers’ Compensation Appeals Tribunal on 3 April 1990. ” Bouchardv. Surete’du Que’bec @C.S.S.T., supra, note 18. “ C.A.S. AT-62193, decided by the Qukbec Social AfTairs Commission on 14 June 1988; Bouchard v. Surete’du Que‘bec @ C.S.S. T., supra, note 18. l5

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of the expert wimess who has examined the worker only once or twice,45unless the therapist appears to be biased or unscientific. Thus, omission of evidence as to previous psychiatric hospitalizations will discredit the treating psychiatrist, who will be judged to be, at best, unthorough, or, at worst, mi~leading.~~ A diagnosis referring to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (3rd ed.)47will often facilitate recognition of a claim, although in most provinces it is not absolutely necessary. When diagnoses are vague, decisions refusing the claims are often swift. Medical certificates describing symptoms are of little weight unless they are accompanied by a more specific diagnosis. In all provinces permanent disability compensation is payable once the worker’s condition has reached a therapeutic plateau. Once the injury is thus stabilized the worker then becomes eligible for a permanent impairment pension, unless the compensation structure is one that provides for compensation based on wage loss. In lieu of permanent disability pensions, some provinces have instituted a wage loss system whereby the reduction in working capacity is compensated insofar as it has an impact on the worker’s earning capacity. In these systems, a wage replacement benefit is payable until such time as the worker is capable of earning his or her pre-accident salary, or until his or her 65th birthday.4sOther systems compensate for temporary disability and then establish a life-time pension for the permanently disabled worker, the pension being calculated according to permanent anatomophysiological disability often defined in a ratings schedule and not according to wages lost. In the latter system, the worker’s capacity to return to pre-work employment is usually considered in determining the percentage of permanent disability, but subsequent return to work has no impact on the pension, once determined. In evaluating the worker’s possibility of finding gainful employment after the accident, many jurisdictions take into account personal factors such as age, education, social adaptability, language abilities, pain tolerance, personal motivation, and the worker’s social support network. Percentage points may be attributed to a worker with bleak possibilities in the labour market, but these percentage points are distinct from those that may be attributed to a worker sufferingfrom a permanent psychological disability as a result of an accident. The latter form of disability is evaluated by doctors whose discretion is usually limited by legislation or policy. To determine the percentage of permanent disability, most jurisdictions rely on rating schedules that may or may not be binding on the decision-makers. Purely psychiatric disability is provided in many of these rating schedules, and percentages

‘’ C.A.S. AT-59568, Decision of the Qubbec Social Affaii Commission, 13 May 1988, in which the commissioners emphasize that the treating physician’s opinion is particularly important when disability is of a psychiatric nature, as the subjective nature of the disability renders an evaluation over time more reliable. 46 See Sauvemrs et wicrimes d’actes cnminels-35 (1987)’ C.A.S. 303. On the perils inherent upon self reporting by patients in psychiatric expertise see Ontario’s Decision No. 1018/87 (1989)’ 10 W.C.A.T.R. 82. In the U S, see for instance: Wiliams w. W e s m Electrik Co., 429 A. 2d 1063. I’ Copyright 1980, Washington, D.C., A.P.A. (1980); more usually known as the D.S.M.-111or D.S.M.III-R(.1987). . See for instance the schemes in Saskatchewan: An Act to l+owiie for Compensationto Workersfor Znhnes Sustained in the Course of their EmpEOyment, S.S. (1979), c. W-17.1, s.68(1); Newfoundlsnd The Workers’ Cornpensotion Act, 1983, S.N. (19831, c. 48, s. 61; Qukbec: An Act Respecting Zndushial Accidenu and Occuparional Diseuses, R.S.Q., c. A-3.001, s. 44s. In Qukbec, wage loss benefits are payable until the worker’s 68th birthday.

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vary from 0-1 OOYO.~~ Total permanent disability allows for a lifetime pension equivalent to 75-90% of the worker’s salary. Partial permanent disability is proportionally compensated. Every Canadian compensation board has broad powers to set up rehabilitation programs which endeavour to return the worker to gainful employment when feasible and such programs exist with varying degrees of sophistication throughout Canada. Sometimes only physical rehabilitation services are provided, while other provinces have complex systems aiming at physical, psychosocial and professional rehabilitation. Even those who may never return to work have access to rehabilitation services. Stress related psychological disability may need varying types of rehabilitation services, according to the nature of the stress and the nature of the disability. Sometimes the worker may need to change jobs, as in the case of a harassed worker who no longer feels comfortable in a particular job environment. Rehabilitation measures could entail provision of temporary benefits during a maximum one year period after consolidation of disabilityduring which the worker could look for another job. Sometimes disability dictates that the worker change profession completely, as in the case of a prison guard who develops a phobia of prisoners after a hostage taking. Retraining in a new field may be necessary for such a worker to resume employment appropriate to his or her working abilities, and in some provinces the right to retraining is provided for in the legi~lation.~’ Other types of work-related stress may create needs not traditionally associated with workers’ compensation. Thus, training in self-defense may be the most useful service that could be provided to a sexually assaulted worker. Victims of bum out or work-related situational depression may benefit from training in relaxation techniques. Compensation boards in Canada do not provide these services directly, but enabling legislation often permits them to pay for courses given within the community if they deem them to be beneficial to the rehabilitation of the worker.

Access to the Courts All major breakthroughs in the American legal approach to compensation for stress claims seem to have been made by the Courts, as every state Compensation Board may be ovemdden on policy issues by the state Courts.” State legislatures may circumscribe the court’s discretion by adopting stringent criteria for recognition of claims, as has been done in Maine, Oregon and other states, but in no American state does the Compensation Board itself have the final say as to the recognition or denial of a claim, when the decision raises a question of law. The right to compensation for psychological disability related to workplace stress is more often than not a question of law. In Canada, policy and the law itself have developed differently, as the Courts hardly ever address the issue of compensation for work-related stress. In all Canadian jurisdictions, workers’ compensation payments usually constitute the sole recourse for injured workers and members of their families when disability

‘’ See for instance chapter XV

of the Sc& of Bodily Injuries Regulation, Decree 1291-87 (1987), 119 Quebec G.O.I1 5576. Deficits range from 5% for minor psychotic or neurotic disturbances, or personality disorders to 100% for severe disturbance rendering the worker in need of constant surveillance. This is the situation in Quebec where the statute specifically provides for retraining: An Act Respecting IndusfrialAccidentr and Occupatimalfieases, R.S.Q. c. A-3.001,s. 167. ” See LJPPEL, K. Workers’ compensation and psychological stress claims in North American law: a microcosmic model of systemic discrimination, supra, note 2.

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arises out of and in the course of employment. Regardless of the degree of negligence of the employer, even if the negligence is criminal in nature, injured workers or their families may not file an action for civil damages against an employer covered by compensation legi~lation.~’ If the person liable for the worker’s disability is not the immediate employer but only an employer covered by the compensation scheme, legislation in some provinces still limits recourse in tort liability.53Workers’ compensation constitutes the sole recourse of all injured workers covered by the scheme, although third parties who are not employers or co-workers covered by the Workers’ Compensation Act may be sued. In practice, recognition of a claim as being one within the scope of the Workers’ Compensation Act usually implies that the employer, co-workers, and even many third parties are protected from civil liability.54Often the employer hopes that a claim that could be costly under the common law will be seen to fall under the Workers’ Compensation scheme. Ironically, a broad d e k i tion of the scope of the Act may in some cases serve the interests of employers. The constitutional validity of provisions precluding law suits brought by accident victims and their families has been tested without success, and the Supreme Court of Canada has clearly upheld their validity.55 In Canada, no courts of common jurisdiction may render judgment on issues of compensation for work-related injury, except in the rare cases in which Compensation Boards are shown to have exceeded their jurisdiction. For all intents and purposes, Canadian law as to compensation for psychological disability related to stress in the workplace has thus far been created exclusively by the Compensation Boards and the specialized administrative tribunals having jurisdiction on appeal. To date no Canadian legislature or government has specifically addressed the issue of mentalmental claims. With the exception of Ontario and QuCbec, all other provinces leave the final decision making on all questions regarding workers’ compensation to the provincial Compensation Boards. These boards are responsible both for assessing employers and compensating workers. They answer directly to the legislature when employers complain of excessive costs, and the same body responsible for the evaluation of the admissibility of a claim is also responsible for the compensation budget. Many allege this to constitute a conflict of interest, whereby the Boards seek to restrict

For an overview of the situation see ISON, T. G. Workers’ Compensarimr in Canadu, supra, note 21, pp. 163-178. 53 Quebec is one such province, and all employers covered by the scheme are protected from full tort liability, unless civil liability is based on criminal activity. If no criminal activity may be shown, workers may sue employers who are not their immediate employers for any amount that the civil law would grant them over and above what is already payable by the C.S.S.T. (Qutbec’s Workers’ Compensation Board). SeeAn Act Respecting Indusm‘dAccidentsand Occupatimalfieases, R.S.Q. c. A-3.00 1, s. 441. 54 In the Ontario Act the limitation of recourse in damages is so broad that spokespersonsfor the Ontario Board, intexviewed on 22 February 1988, expressed the opinion that a claim against the employer refused as being beyond the scope of the Act may nevertheless be excluded from the jurisdiction of the courts as being a claim which could have potentially been covered by the Acz. Thus,when the Ontario Workers’ Compensation Board refuses to compensate all chronic stress claims, they also maintain that no action would lie before the common law courts as it is of the Compensation Board‘s jurisdiction to determine whether any stress claims should be paid. This reasoning relies on construction of section 14 of the W o r k ’ Cmpemation Act, R.S.O. (1980), c. 539, a construction that has yet to be tested before the courts. It is an interpretation that does not appear to be shared by specialists in the field, see: DEE, G., MCCOMBIE, N., NEWHOUSE, G. Wor&ers’compemafiun in Ontario, supra, note 19, pp. 1178s. ” Reference Re Workers’Compurion Act, 1983(1989), 40 C.R.R. 135.

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the construction of the Act in order to minimize the costs of c~mpensation.~~ With no outside evaluation of the scope of the Act, Boards will not be easily questioned when claims are refused. Some Boards go so far as to discourage claimants from filing a claim by informing those who ’phone for information that stress claims are inadmi~sible,~~ even though nothing in the relevant legislation justifies such a conclusion. Decisions regarding workers’ compensation are not even made public in most provinces. With the exception of a few British Columbia Board decisions, published mostly in the 1970s, only those decisions rendered in Quebec and Ontario are published. With the publication of decisions comes the sharing of information and the ability of workers and employers to develop claims in a more articulate way. When decisions are published there is also a greater constraint on the decision maker, who must at least appear to be rendering justice by applying the law. It is not surprising that the forerunners in compensation for stress claims are the two provinces where outside tribunals exercise jurisdiction in appeal, and it is often the appeal tribunals themselves, in no way responsible for the administration of a compensation budget, who initiate the recognition of stress claims.

FORERUNNERS IN THE MENTAGMENTAL DEBATE Qu6bec Legislation, Policy and Case Law The first Canadian cases granting compensation in mental-mental claims relating to chronic stress came out of Quebec in the early 1980s, and since that time close to 100 appeal decisions have been rendered on the issue. Several claims have been accepted. The decision-makers approach the issue legalistically, examining the definition of accident and disease in the Act, and accepting, or refusing the claim based on that definition. Little discussion appears in the case law regarding the pros and cons of compensating for psychological disability resulting from chronic workplace stress, although one might suspect that, unofficially, the Boards and Appeals tribunals have discussed questions regarding the advisability and pitfalls of different approaches. For a claim to be accepted under Quebec law, it must be demonstrated that the claimant was the victim of an ‘employment injury’.58Contrary to the situation in other Canadian provinces, the QuCbec Compensation Board (C.S.S.T.) does not adjudicate by applying binding policy, but at least officially purports to apply the Act itself. No policies regarding stress claims have been overtly adopted in Quebec, although one sometimeswonders whether unofficially certain types of claims are not refused in order to reserve them for appeal adjudication. Further disability resulting from difficulties in obtaining just compensation has been held not to be During the course of our interviews a spokesperson for one compensation board alluded to the fact that the interpretation of the Act by the board was like a pendulum, sometimes swinging to the left and sometimes swingingto the right, accordingto the political climate of the moment. When the pendulum swings to the right, according to this spokesperson, the board construes the rights of injured workers restrictively. 57 Information obtained during the course of our interviewswith compensation board spokespersons. ” Section 2 of the Act R e ~ ~ n g Z n d u r r Aand c ~OccupationdDzkeases, n~ R.S.Q.c. A-3.001 defines the term employment injury to mean ‘aninjury or a disease arising out of or, in the course of an industrial accident, or an occupational disease, including a recurrence, relapse or aggravation’.

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compensable in although other jurisdictions have accepted compensation under similar circumstances." Under the Act itself, psychological disability resulting from a disease of the mind is compensable if it results from an industrial accident or an occupational disease, terms themselves defined in the Act. Jn spite of a seemingly narrow definition of industrial accident:' case law over the years has enlarged the application of the term to compensate disability arising from gradual strain," uncomfortable work posture,63and injuries caused while the worker was bending, turning or otherwise straining in the course of normal work acti~ity.6~ Clearly foreseeable accidents, including those resulting from violation by the injured worker of company regulations, have always been compensable under Qukbec law? As applied to stress claims, this definition easily encompasses claims relating to acute stress, and workers have been compensated for psychological disability resulting from trauma caused by an unfounded allegation as to the worker's dishonesty,66 a loud expl~sion,~' the discovery by a prison guard of the body of a prisonerY6' the shooting of a suspect by a policeman69or the witnessing of a prison riot.?' Decision of the Quebec Social Affairs Commission in AT-62193, rendered on 14 June 1988. This was an obiter dictum, and it remains to be seen whether a case relying solely on aggravation of a worker's condition caused by compensation procedure would be admissible. On the issue in general see ISON, T. G. (1986). The therapeutic significance of compensation structures. CANMIAN BAR REVIEW, 64, 605. 60 Spokespersons for the Manitoba Workers' Compensation Board told us that the widow of an injured worker who committed suicide in Manitoba after years of wrangling with the Board was compensated under the Act. " Section 2 of the Act Resvectinp IndustriaiAceidents and 0ccubatwnalDisea.w. R.S.Q.c. A-3.001 defines the term indusmal accident as 'a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him'. 62 Dupuis v. Les Entreprises Queentex inc., Bureau de Rkvision Paritaire, C.S.S.T. R-6012-4908, Bern& v. Rcblications Nord ouest (1988), C.A.L.P. 604, Soubigou v. Maloso & C.S.S.T.supra, note 20 (a chronic stress case). 63 Pellerin v. KUe de la Baie, C.A.L.P, 01092-02-8702, Gaw'v. Leviton du Canada Lte'e (1989), C.A.L.P. 97. " Borduas v. Socie'te' Canadienne des Pastes, C.A.L.P. 02614-62-8703; Consolidated Bathunt v. Osmm (1986), C.A.L.P. 306; Dominion Textile inc. v. Raymond (1989), C.A.L.P. 471; Bell Canada v. Ve'kina (1988), C.A.L.P. 545; Forex inc. v Deschamps (1987), C.A.L.P. 328; Saucier v. S.T.C.U.M.(1989), C.A.L.P. 127 6s Section 27 of the Act Respecting Zndwtrial Accidentr and Occupational Diseases, R.S.Q. c. A-3.001 provides that: 'an injury or a disease arising solely as a result of the gross and wilful negligence of the worker who is the victim thereof is not an employment injury unless it ends in his death or causes him severe permanent physical or mental impairment'. This has been held to mean that only claims relating to accidentsintentionallycaused by the worker will be precluded from compensation. 66 Eliane Guitar-Rieur v. Miracle Mart (1989), C.A.L.P. 738 '' Luuzon v. Isoduits chimiques Erpm (1985-86), B.R.P. 368 Linch v. Service Correctionnel du Canada (1987), C.A.L.P. 590. The Social Affairs Commission has held in the past that the discovery of a prisoner's body by a guard is not an unusual event, and that therefore the disabling emotional shock that foliowed the discovery was not compensable: C.A.S. AT57697, decided on 6 January 1987. The Linch decision sets aside this type of reasoning, and considering the general evolution of Quebec case law in this area it is probable that the 'normality' of prison violence will no longer be held to be an obstacle to compensation. 69 Gosset v. C.U.M., Commission de la santk et de la stcuritk du travail (C.S.S.T.), Bureau de revision paritaire, BRP 60 193051 & 60334440, decision rendered on 11 December 1989. 70 (1988), C.A.S. 79, in which a prison guard was compensated although he was not actually present at the time of the riot, and wimessed only the aftermath. See also a Social Affairs Commission decision of 14 June 1988, AT-62193, where psychiatric disability commenced ten months after the prison riot wimessed by the worker. Symptoms were triggered when the worker learned that another colleague had been killed in the penitentiary, and the worker then became disabled for an indetuminate period exceeding five years. "

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When the facts support a clear conclusion as to the existence of a sudden and unforeseen event, claims are usually accommodated, although the Compensation Board itself often refuses such claims and awaits an appeal tribunal ruling on the i ~ s u e . ~ ’ Chronic or gradual stress is much more difficult to accommodate under the statutory definition, and some cases have been refused, despite recognition of the relationship between the claimant’s disability and working conditions, on the grounds that the factual situation does not present evidence of a sudden and unforeseen event.72 Initially, many decisions relied on this rea~oning,’~ yet physical disability resulting from gradual physical strain has been compensated on several occasions. The Quebec statute makes no distinction between physical and psychological disability, and eventually both appeals tribunals recognized chronic stress disability as potentially compensable, equating the different events relating to the chronic stress situation to micro-traumas, or concluding that each factor contributing to the stressful situation constituted in itself a sudden and unforeseen e ~ e n t . ’ ~ In order for the tribunals to arrive at a favorable decision, there must be some evidence of unusual events giving rise to the disability. While this criteria has been often reiterated, little discussion exists as to the meaning of unusual. Does the criteria exact evidence that the worker’s experience be unusual in relation to the worker’s usual work, in relation to that of workers in the same profession, to that of the work force in general, or to that of normal life? Harassment of the worker, giving rise to psychological disability, has been compensated on several occasions, harassment being unusual regardless of the point of comor personal77harassment manifested parison. Thus, victims of over weeks, months, and sometimesyears, have been compensated for diseases arising out of or in the course of an industrial accident. A recent Superior Court decision, the first judicial review decision on a stress claim in QuCbec, held that it was manifestly unreasonable to construe the definition of industrial accident so as to encompass

See for instance Nancy Linch v. Semke correctionnel du Canada (1985-86), B.R.P. 174, where the Compensation Review Board (the Commission de la santk et de la skurite du travail), refused the claim of a prison guard who suffered from acute anxiety resulting from the discovery of the body of a prisoner who had hanged himself. The C.S.S.T. refused the claim because, accordingto the Commission and the employer, hangings were a common occurrence in Canadian penitentiariesand thus not unforeseen. The Appeal Tribunal eventually overturned this decision in Linch v. Servrce Cowechnnel du Canada, supra, note 68. 72 Gaudreault v. Villede Charlesbourg, Commission d’appel en matiere de lesionsprofessionnelles,0157703-8612’27 July 1987. 79 See for instance General Motors du Canada Lte‘e v. Belanger, C.A.L.P. 61-00047-8607; hjlamme v. C.S.S.T.,C.A.L.P. 60-00213-8608; G&&e v. Compagnie Kenworthdu Canada L t e (1986), C.A.L.P. 53. ’‘ See for instance: Capon v . CommissionAdministrative des R6gmes de R e p a h et d’Assurances t3C.S.S. T. (1989), C.A.L.P. 769, Soubigou v. M a h o inc. & C.S.S.T., Supra, note 20; Anghde v. C.U.M., C.A.L.P. 60-00247-8609. The Social Affairs Commission has also espoused this reasoning in C.A.S. AT-58031, a decision rendered on 25 July 1989. 75 Anglade v. C. U.M., supra, note 74. 76 Social Affairs Commission decision of 12 July 1989, C.A.S. AT-61134; see also LRduc v. Les Centres d’accueuildu Haut St. Laurent, Bureau de revision C.S.S.T.: 8518 466’30 October 1984. 77 Beliveau St. Jacques v. Conseil Central I Sherbrookt (CSN), Commission de la sand et de la securite du travail, Bureau de revision paritaire, B.R.P. 60183128, 9 February 1989. See also Social Affairs Commission decision AT-58031, 25 July 1989; Maheu v. Compagnie des Chemins de Fer Nationaux du Canada 6 C.N. Route, C.A.L.P. 63-00035-8605; Lajeur v. Syndicat des EmpkyLs de la Commission Scokaire Rigionale, Bureau de rbision, C.S.S.T., file 8643 222; Debelkfeu& v. Ministdre de la &stice du Que’bec,Bureau de R&ision paritaire, Monterkgie, file 9365564. ”

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harassment over time.7s This decision is currently before the Quebec Court of Appeal, and, if confirmed, could radically change the course of Quebec law in relation to compensation for stress claims. Some decisions have accepted claims for over-work, comparing the situation of the worker to his or her own usual working conditions. Thus over-work, coupled with changes in working conditions, have been held to be sudden and unforeseen events giving rise to compensation when psychological disability results." At least one decision has refused compensation on the dubious ground that the employer often overworked employees, and that there was therefore nothing abnormal about what could be qualified as objectively unacceptable working conditions." In the latter case the employer was the Workers' Compensation Board itself (the Commission de la sante et de la securitk du travail). The worker, a chief information officer, had not been adequately briefed regarding the implantation of totally new compensation legislation until several months after it came into effect. Several claims relating to disability allegedly resulting from disciplinary action have been held to fall beyond the scope of an industrial accident, as such disciplinary action is said to be common in the work-place." In these cases, the point of comparison seems to be the work force in general, rather than the specific employer. However, when the threat of disciplinary action appears to be unfounded, the unusualness of false charges may give rise to compensation.s2 Regardless of the point of comparison applied in the various decisions, it must not be forgotten that nothing in the Quebec statute conditions the rights to benefits on the existence of evidence as to unusual circumstances having led to the worker's disability. Most case law clearly states that accidents leading to physical disability will be compensated, even though the circumstances surrounding the accident were not unusual.83Nothing in the statute would justify a different treatment of claims based on psychological disability. Early Quebec decisions regarding occupational stress reflected much confusion as to the relevance of the worker's personality in the determination of the relationship between work stress and disability. Some cases went so far as to exclude compensation if the worker was said to have a Type A personality, the rationale being that another personality type would not have reacted adversely to the working condition^.^^ While the underlying logic may or may not be medically sound, this type of reasoning is unacceptable from a legal perspective for two reasons. First, the conclusion that the over-zealous behaviour of a Type A worker absolves the employer from compensation liability implies that somehow the disability is the worker's own fault. In Quebec law, an accident that is clearly the fault of the " Socie'te' Canadienne a'es Postes v. C.A.S. et al., Quibec Superior Court, 500-05-14015-885, a decision rendered on 10 October 1989, and currently in appeal at 500-09-001481-894. 79 Gagnon v. Commission Administrative des Re'gmes de Retraite et dXssurances Q C.S.S.T., supra, note 74; Soubigou w. Maloso inc. Q C.S.S. T.,supra, note 20; other decisions have refused such claims: Social Affairs Commission decision of 10 November 1989, C.A.S.AT-61365. 80 Laflarnme v. C.S.S. T.,supra, note 7 3 . See for instance: Cagne' v. Compagnie ties Chemins a'e fer nationaux, Cornmission d'appel en mati6re de lesions professionnelles, 04767-60-8709; Decision AT-57858 rendered by the Quebec Social Affairs Commission on 17 May 1988. 82 Eliane Guitar-&ur v. Miracle Man, supra, note 66. See forinstance: Reich w. Canadairltde (1987), C.A.L.P. 26; Saucierv. S.T.C.U.M. (1989), C.A.L.P. 127;Uvesquev.S.T.C.U.M. (1988),C.A.L.P.903. 84 Laflarnme v. C.S.S.T.,supra, note 73.

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worker is still compensable as an industrial injury, as the compensation system is a no-fault system. In the Laflamme case, by attributing responsibility to the worker for her own disability, resulting from her own desire to perform her work well, the Appeal Commission effectively reintroduced the notion of fault. Such reasoning constitutes an error in law, regardless of the veracity of the initial premise. Second, the Quebec compensation system clearly recognizes the thin skull rule, and it has been held on numerous occasions that the particular vulnerabilities of a worker should not be considered an obstacle to compensation. Employers must take the workers as they find them, and if diabetes, scoliosis or some other personal condition renders the worker easier to injurea5or harder to cure,86compensation must nevertheless be paid for the entire period of disability. Recent appeal tribunal case law in Quebec has clearly stated that the thin skull rule applies to claims for psychological disability and that, as such, no claim should be refused solely because of the vulnerable personality type of the or because the worker has personal problems." Distinction must be made in Quebec, as in all jurisdictions, between cases where the worker would have become ill regardless of working conditions and those cases in which the vulnerable worker becomes ill because of working conditions that would not adversely affect the average worker. Clearly, the former cases are not cornpensable, but the latter are, and the law precludes refusal on the grounds that the injured worker is the only worker adversely affected by a specific working condition." Care must be taken in distinguishing between medical opinion as to relatedness and legal opinions of physicians or p~ychologists.~~ Relatedness in law, for compensation purposes, exacts that it be more likely than not that working conditions contributed to the worker's disability." Etiology in psychiatry seem to exact a higher degree of probability than that exacted in law. Often psychiatrists, or other medical or clinical practitioners, express their opinion as to the compensability of a given disability, rather than simply opining as to the relationship between conditions at work and the worker's To date, several claims for chronic stress have been accepted in Quebec by the appeal tribunals. No figures are available regarding those claims accepted by the Commission without contest. Only two claims have been accepted as occupational ~

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LubeUe-Dagenais v. ZeUers Ltd. (1988)' C.A.L.P. 316; h d u i t s chimiques Expro inc. w. C.A.L.P. 6 Richer (1988), C.A.L.P. 187 (Superior Court of Quebec). He'& v. Brasserie M o k m (1988), C.A.L.P. 266. 87 EIiane Guifar-Mew PI.Miracle Mart, supra, note 66, where the worker had a 'nervous personality'. Her claim was accepted. See also Gagnon v. CommisswnAdministrative des Re'gmes & Retraite et d'Assurances 6 C.S.S.T.,supra, note 74, where the worker was said to have a rigid personality. The Social Affairs Commission also clearly accepts the application of the thin skull rule to psychological disability: Commission des Maires Sociales AT-58031. Bowhard o. Surete' du Que'6ec & C.S.S.T.,supre note 18. 89 Although this is clearly the state of the law as defined by appellate decisions the principle has not necessarily been integrated by the Compensation Board itself, and board spokespersonshave been known to deny claims because no other worker reacted adversely to a specific physical or psychological stimulus in the workplace. 90 See the opinion of the Quebec Social Affairs Commission i n AT-58031, rendered on 25 July 1989, in which the Commission declares irrelevant the testimony of a psychiatrist as to the wisdom of accepting a certain type of chronic stress claim for compensation purposes. 91 Succession de M.B. v. Ministhe de la Se'cunt4publrque (1989), B.R.P. 533; on this issue in general see: ISON, T. G. COMPENSATION FOR INDUSTRIAL DISEASE UNDERTHE WORKERS' COMPENSATION ACT OF ONTARIO, a discussionpaper published by the Industrial Disease Standards Panel (September 1989). 92 See Quebec Social Affairs Commission in AT-5803 1, rendered on 25 July 1989.

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disease claims, one regarding work in prison:3 and a second regarding a trade union organi~er.’~ Recognition of claims as related to occupational disease may have far broader repercussions, as acceptance implies that the adverse, stressful conditions are either characteristic of the worker’s employment, or related to risks peculiar to that employment.

Ontario Legislation, Policy and Case Law Ontario’s approach to adjudication differs from that of Quebec. The Ontario Worker’s Compensation Board adjudicates by applying policy that has not been examined or sanctioned by the Legislature, but, rather, developed by the Workers’ Compensation Board itself. T o date, the unwritten policy of the Ontario Board has been to refuse all chronic stress claims, regardless of the circumstances, and regardless of the legislation itself, which clearly provides for compensation in the event of disabT h e Ontario Workers’ Comlement arising out of and in the course of empl~yment.’~ pensation Board is currently reviewing its policy on chronic stress, in light of several decisions of the Workers’ Compensation Appeals Tribunal ,the final appeal body, that has admitted the possibility of compensation for disability related to chronic workplace stress. Acute stress is compensable in Ontario, the first case accepting such ’ ~ Board tends to reserve recognition to lifea claim dating back to the 1 9 5 0 ~ The threatening situations, but the Appeals Tribunal has broadened the scope of acceptable claims to include all disabilityresulting from a sudden firight or start, regardless of whether the source of the sudden stress was life-threatening or The Workers’ Compensation Appeals Tribunal has discussed in great detail the parameters that should apply to adjudication of chronic stress claims leading to psychological disability, and it is now clear that such claims are compensable under Ontario law. The first major decision in Ontariog8related to a claim by a telephone operator who suffered from a condition of chronic anxiety that he alleged was related to stressful conditions at work, particularly the implementation of an ‘AverageWaiting Time’ system that electronically monitored the worker’s productivity. Although unconvinced of the relationship between employment conditions and the worker’s ill health, the Workers’ Compensation Appeals Tribunal elaborated criteria for the evaluation of chronic stress claims leading to psychological disability. Inspired by the T m s e n d decision in MaineJ9’the Tribunal defined three options for claimants in chronic mental-mental cases. After stating that working conditions must constitute a ‘significant contributing factor’ to the worker’s disability, the Tribunal then went on to state that the multiple etiology of psychological disability makes it necessary that ‘the evidence concerning the role of the workplace injuring process in the development of the disability.. . be especially clear’. T o guarantee the clarity of the relatedness, the Tribunal proposes three alternative tests. Claimants may demonLoukilv. SeradepInc. (1986-87), B.R.P. 113. Codv. S j d k a t canadien de lafoncrionpublique,Bureau de revision paritaire, C.S.S.T. 91 15982. 95 Worken’CmpemuzionAct., R.S.O.(1980)’ c. 539, s. l(a) s. 3(1). 96 Information obtained during the course of our interviews, held in February 1988. The first accepted claim involved a subway driver who had wimessed two suicides implicating his subway train during a short period of time. 97 Workers’ CompensationAppeals Tribunal Deciswn No. 14 (February 1986). DecisionNo. 918(1988),9W.C.A.T.R.48. 99 Toeonrendv.Maine BureauofhbZicSafety, 404A. 2d 1014 (1979). 93

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strate that the level of stress at work was greater than that imposed on co-workers. Alternatively, they may demonstrate that they were submitted to a more stressful job environment than that experienced in everyday life and employment. If the claimant is unable to demonstrate either situation to be applicable, it will still be possible to recognize the claim if it is shown that the not unusual stress in the workplace played a predominant role in the development of disability. If the worker proves that the workplace stress ‘stands out’ as a significant contributor to the disability, the compensation will be payable, even though the stressful conditions were not unusual. Although nothing in the Ontario Act, or in any Canadian compensation legislation, permits a distinction between claims based on psychological disability and those based on physical disability, the Appeals Tribunal relied on the difficulty of the evidentiary issues to create a special test for psychological stress claims. Subsequent decisions of the Workers’ Compensation Appeals Tribunal have considerably diluted the stringency of the criteria articulated in this first decision. As the enabling statute makes no distinction between physical and psychological disability, two important decisions of the Tribunal concluded that evidence as to admissibility of a claim should be evaluated according to the rules applicable to physical disabilities that are allegedly work-related. In Decision 1018the Tribunal took pains to qualify the test elaborated in its previous decision, stating that ‘The background of the “normal” stress, or the normal reaction may help in some way to elucidate what is likely. However, it is important that this not be taken as far as creating a higher standard for some types of cases than others . . . one must decide whether the evidence is persuasive on a balance of probabilities that work was a significant contributing factor to the stress disability in the particular worker, as one would do with any other type of disability’.’’’ This reminder constrains the initial tests elaborated in Decision 918, and has been reiterated in the Tribunal’s most recent case, Decision 145/89,the first Ontario case to compensate for chronic stress. lo’ In this precedent-setting case, the Tribunal recognized the disability suffered by a long-haul truck driver to be work related, and granted benefits. The worker had been suffering fiom blackouts, headaches, faintness, attributed to ‘burn out’ by several physicians, including a neurologist and a psychiatrist, and was off work for close to one year. Other workers employed by the same firm were also ‘burnt out’, and the employer had actually closed down for lack of personnel. The Tribunal accepts the claim in these terms: ‘a disability existed which disabled the worker from performing the functions of his job, this disability was work-related, and the work place contributed significantly to the development of this disability’. Evidence of unusual stress or predominant contribution of work factors is not seen to be necessary, although in the facts of the particular case one may speculate that had the more stringent criteria of Decision 928 been applied, the claim would nevertheless have been allowed. The Tribunal’s approach is to apply the ordinary rules to claims for psychological disability allegedly related to chronic workplace stress. Elsewhere it has been clearly Ion Decision No. 1018/87, supra,note 46. Similar reasoning was applied in Decision 980/89, an unpublished Tribunal decision of 17 January 1990. lo’ Deckion 145189, Workers’ CompensationAppeals Tribunal, 3 April 1990.

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decided that ‘the principles applicable to thin skulls apply equally “to frail spirits” ’.Io2 In theory, personal problems or previous psychiatric history would not preclude the acceptance of a claim. Yet it is significant that the claimant in Decision 145/89 was otherwise in an exceptionally positive period in his life. Other claimants have been refused because relatedness was unclear, given their personal circumstance^.'^^ These initial Ontario decisions, although paying lip-service to the thin skull rule, seem overly thorough in their scrutiny of the claimant’s private life, and it remains to be seen how the Tribunal, and the Board, will protect the privacy rights of claimants, given that in principle personal problems should be an issue in only the most exceptional of case^."^ The Ontario Compensation Board is struggling with the issue of chronic stress, and has launched a consultation process that has been in the works for over a year. A recent Options Paper on the issue reflects an excessivelyprudent approach, suggesting that an underinclusive test be elaborated in an interim policy described in the following terms: ‘a policy which provides an opportunity for an incremental modification to the Board’s approach, based on experience, will pennit the identification and compensation of the group of workers whose psychiatric disabilities can be shown to be work-related with the greatest degree of c~nfidence’.’’~ A more recent policy proposal’06exacts that a diagnosis recognized in the DSM-IIIR be established. It recommends that compensation be payable in gradual stress claims only when work has been a significant contributing factor in the development of the disability. It also proposes that ‘[tlhe employment will be found to have made a legally significant contribution to the injury where non-work related stressors may have contributed in some way to the development of the disability, but the employment involved a level of stressors that was greater than that experienced in the non-employment life of the average person’.’07 Little discussion is made as to the impact of the selection of the criteria on the types of cases that will be recognized, and all options are still possible until such time as the Board adopts a definitive policy. Selection of criteria is important, as social policy goals are determined by the criteria selected. Thus, a stressful work environment would preclude recognition of a claim if the worker were obliged to demonstrate exposure to stress that was exceptional in her own workplace. Those workers working in generally non-stressful work places would have a greater chance of being compensated than those who worked in high stress occupations. If evidence of unusual stress is necessary, thin skulled claimants will be deprived of access to benefits. As to coherence, any test ~~

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Workers’ Compensation Appeals Tribunal Decision No. 915. 103 Decision 918, supra, note 98 involved a worker who had never remarried after his divorce, and the majority of the tribunal in refusing his claim referred to a number of personal stressors. Decision 1018/87, supra, note 46, involved a claimant who had previously suffered from non-work-related psychiatric disability. 104 In a previous study of the American case law it was found that personal problems usually became an obstacle to compensation only when the claimant had also suffered from prior non-work-related psychiamc disability. See UPPEL, K. GUIDED’ORIENTATION SUR L’INDEMNISATIONDES DOMMAGES RELneS AU STRESSAU TRAVAIL, a research report produced for the Qukbec Institute of Research in Health and Safety (Institut de recherche en santt et skcuritt du travail), Montrtal (1988). ‘0501T10NS PAPER: THE COMPENSABILITY OF DISABILITIES RESULTING FROM WORKPLACE STRESSORS, Ontario Workers’ CompensationBoard, Operational Policy Branch (14 July 1989)’ p. 9. POLICY PROPOSAL: COMPENSATION FOR DISABLEMENTS ARISING FROM WORKPLACE STRESSORS, Ontario Workers’ Compensation Board, Operational Policy Branch (20 . April - 1990); .. the Board has invited submissions on its proposal, the deadline being 4 FebNary 1991. ‘07 Ibid., p. 10.

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exacting exceptional evidence goes against the tendency of the Appeals Tribunal's most recent decisions. Policy is yet to be clearly defined in Ontario, and until a final proposal is found to be acceptable, the Board has refused all chronic stress claims. Claimants may appeal to the Workers' Compensation Appeals Tribunal, a lengthy process, but they have no hope of recognition by the Compensation Board itself. From a legal perspective, this approach is surprising, and is seemingly based on the premise that an administrative board may, regardless of its enabling statute, simply refuse to compensate workers who would normally fall within the ambit of the Act. Canadian workers seem sandwiched between the legalistic approach in Quebec, where clearly work-related diseased workers are sometimes refused compensation because they do not fall within the letter of the law, while Ontario workers falling clearly within the letter of the law are refused because the Compensation Board has no policy on chronic stress, even though the Act makes no proviso for Board policy that may preclude otherwise legally justified claims.

OTHER CANADIAN JURISDICTIONS Most major Canadian urban centres are found in Ontario and Quebec, and these provinces account for well over half of the Canadian population and are traditionally at the forefront in developing new rules of law. The other provinces have, for the most part, a predominantly rural economy, based on fishingin the Maritimes, agriculture in the Prairies, and forestry, mining and fishing in British Columbia and the North West Territories. Sources of stress in these parts of Canada are often different from those usually encountered in the urban areas. In the North West territories, isolation is often intrinsic to all forms of employment. Farmers in the Prairies are constantly under stress because so much of their work is dependent on factorsbeyond their control; the weather, the market, the bank rate and Government policy. In the Maritimes, fishing in the open seas is often life-threatening, and witnessing the death of colleagues is not a scarce occurrence. British Columbia, with Vancouver and Victoria as major cities, is perhaps the most comparable to Ontario and Quebec, with both the stress inherent in many urban jobs, and the more acute stress intrinsic to physically dangerous jobs like fishing and forestry. In provinces other than Quebec, Ontario and British Columbia, psychiatric resources are very scarce, and they are often nonexistent outside of the urban centres.

The Maritime Provinces'o8 The Maritime provinces of Newfoundland, New Brunswick, Prince Edward Island and Nova Scotia are the easternmost provinces in Canada. Each is quite small, Prince Edward Island being the smallest, with a population of 100,000. Tourism, agriculture and fishing are the predominant industries, although the region is plagued by high unemployment. The Maritimes are the poorest provinces in Canada, and the social reality may explain in part the way the legal norms have thus far evolved. Newfoundland accepts claims for psychological disability and evaluates disability according to its own policy guidelines, inspired by those of the American Medical ~~~

"*Material gathered in interviews: Nova Scotia: 20 October 1988; Newfoundland: 21 October 1988; Prince Edward Island 23 November 1988; New Brunswick 22 November 1988.

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Association. Several stress claims have been accepted following incidents of an acute nature (mostly robberies), but to date no clearly chronic stress cases have been accepted. No fishermen have claimed for psychological disability resulting from shipwreck or storms at sea, although several claims for heart attacks suffered during such storms have been accepted. New Brunswick's position is similar to that of Newfoundland, and several acute stress claims giving rise to psychological disability have been accepted. New Brunswick is home to a major federal penitentiary, and spokespersons stated that claims by prison guards were typical of stress claims recently judged to be compensable. To date, no chronic stress claim has been recognized, although the Compensation Board sitting in appeal has not yet addressed the issue of chronic stress. No specific legislation exists to measure psychological disability, and the Quibec regulation on psychological disability is used by analogy. Prince Edward Island is the only Canadian province to apply a rule analogous to the physical contact rule applied in some American states"' when determining admissibility of claims for psychological disability. Thus a worker must demonstrate some form of physical contact that could be deemed to have given rise to his or her psychological state before compensation will be paid."' Legal justification for this position seems tenuous, as statutory definitions do not differ significantly from those in force in other provinces. Spokespersonswere careful to point out that enquiry into the private lives of workers making stress claims was repugnant to them, and that their policy provided a way of avoiding invasion of privacy rights in t h i s admittedly tiny province."' Nova Scoria's Compensation Board was the most reticent to compensate for any form of psychological disability. Although the relevant statute was not significantly different from that of any other province, all psychological disability resulting from a physical accident was held by spokespersons to be uncompensable. As to psychological disability resulting from psychologically stressful situations, all cases have so far been refused, with the exception of one involving a shooting incident in which a police officer shot a suspect. The officer was compensated for post-traumatic stress disorder. T o date, Nova Scotia bears the dubious distinction of being the most conservative jurisdiction in North America in compensating for psychological disability.

The Prairie The Western Canadian provinces of Saskatchewan, Manitoba and Alberta are sparsely populated, while covering a vast land mass. Farming is the predominant economic activity. IW Kansas Statute sec. 44-508(e). Seven other American states apply similarrules, see LIPPEL,K. Workers' compensation and psychological stress claims in North American law: a microcosmic model of systemic discrimination,supra,note 2, at page 44. 110 During the course of our interviews we were told that the depressed teacher will be compensated if a student has successfully targeted him with a tomato.Without such contact his claim will be refused. '"It is interesting to note that Prince Edward Island's treatment of heart attack claims is by far the most generous in Canada. Virtually all claims are accepted if the heart attack takes place at work. A sociological study on the emergence of norms could perhaps determine whether the compensation policy in P.E.I. is molded more by the characteristics of the society itself, where everyone knows everyone else, than by the legal rules as enacted by statute. "'Material gathered in interviews: Alberta: 30 July 1987; Saskatchewan: 7 September 1988; Manitoba: 6 September 1988.

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Saskatchewan, a small farming province in Western Canada, was the first Canadian province to have a written policy accepting compensation for chronic stress claims. The Saskatchewan Compensation Board has been accepting some such claims since 1987. The policy defines three categories of chronic stress claims. The first, designating those claims where it is ‘improbablethat a work injury exists’, applies to claimants with a history of endogenous depression or chronic anxiety state, who have manifested symptoms going back for some time, and who work in occupations where ‘burn out’ is not known to be a problem. These claims will be refused unless a specific event or series of events have provoked a relapse in a previously well-functioning individual. The second category describes claims in which it is ‘doubtful that work injury exists’. It covers claims by workers occupying seemingly innocuous jobs, who develop psychological disabilities that they allege to be work-related. After thorough investigation involving the study of the worker’s situation both at work and outside work, including the study of the claimant’s relationships with family and colleagues, compensation may be granted if it is deemed probable that work injury has occurred. The h a 1 category is qualified as ‘probable that work injury exists’ and reads as follows: ‘These are the workers who are engaged in stressful occupations in spite of personality variation and eventually burnout [sic]. School teachers and air traffic controlling are suggested as example^'."^ Workers covered by the third category need not refer to any specific event or series of events to be compensated. Others must demonstrate that unusual circumstances triggered the psychological disability. Increased workload has been held to be a source of stress that could give rise to compensation if disability ensued, even if work itself is not ‘usually stressful’. Other Prairie provinces are far behind Saskatchewan. Spokespersons for Compensation Boards in both Manitoba and Alberta confirmed that they refuse all chronic stress claims, although neither their legislation nor their written policy seem to justify a blank refusal. Both provinces will accept claims for psychological disability resulting from acute stress, and both imply that chronic stress claims could potentially be accepted on appeal to their own Boards, but specify that such cases have yet to be heard.

British Columbia and the North West T e m t o r i e ~ ” ~ British Columbia accepts claims relating to psychological disability developed because of a physical accident or a traumatizing event, but refuses claims for chronic stress.’” The Act itself would not, as normally read, exclude such claims. The North West Territories has yet to deal with the issue of compensation for psychological stress, and has no policy on the issue. Psychological disability is compensable, yet no such claim has to date been upheld. ‘ I 3 SASKATCHEWAN CLAIM FOR CHRONIC STRESS ADJUDICATIONGUIDELINES, 5 June 1987, p. 3. Ironically, according to SaskatchewanBoard spokespersons,teachers are not covered by the Saskatchewan Compensation Act. ‘I4 Material gathered in interviews:British Columbia: 6 August 1987; North West Territories: 1 1 October 1988. ‘I5 Decision 102, Re: DISABLEMENT T ~ R O U GEXHAUSTION, H Rendered by the B.C. Workers’ Compensation Board panel on 13 March 1975; for a discussion of this decision see LIPPEL,K. Workers’ compensation and psychological stress claims in North American law: a microcosmic model of systemic discrimination, supra’ note 2, at page 55.

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CONCLUSION: SPECIFICITIES OF THE CANADIAN APPROACH When studying the Canadian approach to compensation for stress related disease, one is struck by the Compensation Boards’ lack of preoccupation with what is actually stated in the law. Distinctions between physical and psychological disability are often applied, always in the absence of statutory authority that would justify a double standard. These distinctions may affect the way a claim is filed and evaluated, and in some cases they are used to actually change the rule of law as to burden of proof, and even as to the notion of compensable injury. In provinces where the statute clearly covers disablement arising out of and in the course of employment, it is surprising to be confronted with blunt refusals of all forms of chronic stress claims, regardless of their merits. Yet such is the approach of several Compensation Boards studied. Other provinces, more subtle in their reticence, will apply special rules exacting evidence of unusual circumstances, even when admitting that the disability is work-related. In Canada, as elsewhere, the issue of compensation for stress is seen as a bugbear both by Compensation Boards and by employers. Because the sources of psychological stress are usually measured by self-reporting, and because the resulting disability can not be X-rayed or corroborated with the techniques traditionally used to evaluate physical disability, there is a seemingly universal fear that employers will end up paying for disabilities that are not work-related. This fear is partially based on the fact that most psychological disabilities have multiple etiologies, and that no scientific techniques can be used to separate out the different factors contributing to the worker’s disability. It is also often based on the premise that workers will lie, and that those who evaluzte the claims will be unable to disprove the right to benefits. The result is the application of rules designed to undercompensate, rather than to overcompensate. When proof of etiology cannot be scientifically confirmed, mistakes will be made. The choice of policy-makers is to risk overcompensation in some cases, or to guarantee undercompensation in all cases. Today, in most Canadian jurisdictions, it is impossible to deny that many legitimate claims are being refused, and that policy itself is often to refuse the legitimate claim, sometimes in clear violation of the letter or the spirit of the statute. Workers have only recently begun to react to what may be seen as violations of their rights. Contrary to their American counterparts, they have not traditionally relied upon litigation to protect their rights to workers’ compensation, as the right to compensation is determined exclusively by workers’ Compensation Boards and, in Quebec and Ontario, by administrative appeal tribunals. Administrativetribunals, particularly in those provinces without an independent appeal mechanism, seem protective of the Workers’ Compensation Fund. In what some qualify as a situation of conflict of interest, Workers’ Compensation Boards act both as decision-makers and as insurers, and they have the final say as to the admissibility of a claim in nine of Canada’s 11 jurisdictions. In this context breakthrough decisions are scarce. Stakes for many workers are not as high as those in the United States, because the Canadian social security network in Canada picks up the cost of health care in the event that the worker is not covered by workers’ compensation. For workers who seek retraining, education is free up to university level, and Canadian university courses cost a fraction of those in the United States. Legal aid in many provinces

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will sometimes provide the worker with a lawyer to help with the compensation claim, but for those who are ineligible, lawyers must be paid. Because of the pension structure, lump sum payments are scarce, and few lawyers undertake claims on a percentage basis. As a result ‘experimental’test cases may be less prevalent. In the event that case law in Canada does become more open towards this type of claim in the next few years, as seems to be the tendency, one must wonder about the impact recognition of certain claims will have on the law in general. Two facets in particular should be watched for. First, how will the compensation regime react to the integration of stress claims? Where will privacy rights fit in, and how far will the Boards go before claimants will have the right to invoke them? In the transitional period, will case law on all compensation issues become more conservative, restricting legislative definitions to exclude stress claims, and excluding other claims, incidentally, in the process? Given the multiple etiology of psychological disability, and the pervasiveness of stressful situations, will employers make good their claim, to renegotiate the social contract upon which the workers’ compensation schemes are based, schemes that admittedly provide a generally higher protection to the worker than do those in force in most American states? The second facet to be looked at is that involving cases of sexual or racial harassment. Several claims have been recognized in Quebec, and benefits have been paid in accordance with compensation legislation. Theoretically, recognition of a claim as coming within the confines of the regime implies exclusion of all other remedies. Yet, when civil rights are at stake, as is clearly the case in these types of claims, it seems improbable that Parliament intended to prevent claimants from suing the employer, or the responsible co-worker for damages, including moral and exemplary damages. In most sexual harassment cases, salary loss due to disability is not the most significant aspect of a lawsuit for damages. Short-term benefits for individual workers, who successfully claim for disability related to harassment, may jeopardize the rights of all workers unless strategy is clarified and the scope of the exclusionary rule restricted. Over the next decade, legal rules will be created and clarified. These rules evolve in a context of mass adjudication, where management of thousands of claims is supposedly controlled by laypersons, adjudicators who are neither lawyers nor mental health professionals. Boards strive to determine clear-cut boxes in which to place claims by workers whose realities are far more fluid than those that can be described in any policy directive. How those realities will be treated in a context of institutional decision-making should be of interest to those concerned about fairness and equity.