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WORKERS’ COMPENSATION - Compensability of injuries - Psychological injuries

Tuesday, January 08, 2019 @ 9:50 AM  


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Appeal by Perry from a decision of the Workers’ Compensation Appeals Tribunal confirming the Commission’s decision denying her compensation for mental distress. The appellant worked as a Corrections Officer for 18 years. After attending a Parole Board hearing with an inmate, a convicted murderer who described in great detail how he and an accomplice had randomly attacked a stranger in a park and stomped him to death, the appellant suffered an acute reaction which led to mental distress. The Appeals Tribunal agreed with a diagnosis by a Commission psychologist that the appellant suffered from PTSD and had an acute reaction to testimony she heard at the Parole Board hearing but did not agree that the Parole Board hearing constituted a traumatic event. The Appeals Tribunal also  found that there were no traumatic events disclosed regarding the appellant’s employment prior to the Parole Board hearing, even though the appellant disclosed that she had been involved with many terrible work situations during her 18-year career as a Corrections Officer.

HELD: Appeal allowed. The Appeals Tribunal erred in finding that the medical evidence from the psychologist did not constitute new evidence or facts that would substantially affect the original decision. The Appeals Tribunal should have considered in its decision that the appellant’s claim was previously rejected on the basis that she had not suffered a traumatic event, yet a person with PTSD had, by definition, experienced at least one traumatic event. As such, this diagnosis constituted new evidence that should have substantially affected the original decision. It would not have been open to the Appeals Tribunal to reject the PTSD diagnosis, given the uncontroverted evidence provided by a qualified, Commission-appointed psychologist. The Appeals Tribunal erred in law by failing to apply the framework established by the Court for cases involving Workers’ Compensation claimants who suffered from PTSD. The uncontroverted medical evidence in the case at bar indicated that the appellant suffered from post‑traumatic stress disorder. The Court had held that a worker who was diagnosed with PTSD was considered to have experienced at least one traumatic event, because experiencing a traumatic event was a prerequisite for the diagnosis. The occurrence of at least one traumatic event was thus proven by the very diagnosis. The appellant’s reaction to the Parole Board hearing was acute and workplace-related. All prerequisites for entitlement to Workers’ Compensation benefits had been met in this case. The Commission’s application of the outdated DSM-IV’s criteria for traumatic event in lieu of those from the DSM-5 was an error of law. This error was repeated by the Appeals Tribunal which cited the DSM-IV’s criteria for traumatic event. The Appeals Tribunal also made a palpable and overriding error with respect to its finding that the record did not disclose any traumatic events prior to the intervention by the Workers’ Advocate.

Perry v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2018] N.B.J. No. 291, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and R.T. French JJ.A., November 29, 2018. Digest No. TLD-January72019003