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WORKERS’ COMPENSATION - Benefits - Entitlement to benefits - Accident - Compensability of injuries - Psychological injuries - Stress - Legislation - Interpretation

Friday, November 17, 2017 @ 8:26 AM  

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Appeal by Hébert from the Appeals Tribunal (Tribunal) decision which dismissed his appeal from the denial of compensation benefits. Hébert worked as an ambulance attendant with Ambulance New Brunswick. He encountered several horrible situations as a result of his employment. Eventually, he became disabled and was diagnosed with post-traumatic stress disorder (PTSD). Hébert reported his condition to his employer in January 2014 and subsequently applied for benefits from the Workplace Health, Safety and Compensation Commission (Commission). The Commission denied his claim for benefits and his appeal to the Tribunal was dismissed. The Tribunal accepted evidence from a psychologist that Hébert suffered from PTSD, but found that events within the realm of what might be witnessed generally by ambulance drivers could not qualify as traumatic events for compensation purposes.

HELD: Appeal allowed. The Tribunal erred in law in concluding that Hébert could not qualify for compensation because the events he witnessed were part of the normal duties of an ambulance attendant. WorkSafeNB's Policy No. 21-203 (Policy) recognized that there could be instances where the traumatic event was one that was not necessarily unusual in the worker's workplace. The Tribunal also erred in dismissing Hébert’s complaint because he could not identify one particular triggering incident for his PTSD, noting that the condition appeared to have arisen out of a series of incidents. An emergency responder qualified for compensation in stress-related claims when it was accepted he or she suffered from PTSD arising out of and in the course of the employment even in the absence of one particular triggering event.  But for these errors, the Tribunal would not have dismissed Hébert’s claim. The record before the Tribunal disclosed that Hébert was exposed to a series of horrific incidents and that one or more of these brought on his PTSD. While the psychologist may not have been able to identify one particular triggering event, the diagnosis of PTSD had not been called into question. The events Hébert described, which involved encountering an accident victim covered in blood walking on the road and attending at a murder/suicide and the suicide of two teenagers, qualified as traumatic events under the Policy. In addition, the Policy acknowledged that there could be a delayed onset of symptoms in some cases. The Tribunal essentially failed to assess Hébert's case in accordance with the principles set out in the Policy and in the leading appeal court decision, DW. Accordingly, the Tribunal decision was set aside and the Commission was ordered to pay Hébert the benefits to which he was entitled.

Hébert v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2017] N.B.J. No. 243, New Brunswick Court of Appeal, M.E.L. Larlee, J.C.M. Richard and B.L. Baird JJ.A., October 5, 2017. Digest No. TLD-November132017010