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Controversial Nova Scotia workers' compensation insomnia decision overturned on appeal

In Ross v. Michelin North America (Canada) Inc., a decision issued on December 30, 2002, the Nova Scotia Court of Appeal has set aside a ruling of the Nova Scotia Workers' Compensation Appeals Tribunal in which a worker was compensated for having suffered from insomnia related to shift work (see "Insomnia due to shift work is a workplace injury, workers' compensation tribunal rules" on our Publications page). The case involved Richard Ross, a worker who, after nine years of working shifts with the employer, developed problems sleeping. After seeing a doctor, Ross applied for workers' compensation, claiming he suffered from "shift-work maladaptation" syndrome due to his employment.

In ruling in favour of Ross's claim for compensation, the Tribunal found as a fact that he suffered from a cognitive deficit, i.e. inattention and difficulty staying awake, which was at times severe enough to have caused him to be temporarily disabled under Nova Scotia's Workers' Compensation Act (the Act). It went on to rule that Ross did not have to prove that his syndrome or disorder was caused by work, but only that he had symptoms which were severe enough to cause disablement and which arose out of and in the course of employment.

Noting the employer's concern that the Tribunal's decision was "capable of giving rise to an array of compensation claims for health conditions only tenuously related to the workplace", the Court of Appeal differed with the Tribunal on the crucial issue of whether Ross's disablement arose out of and in the course of his employment.

The Tribunal had relied in its decision on the case of Metropolitan Entertainment Group v. Durnford, a judgment of the Nova Scotia Court of Appeal in which causation was a key issue. In Durnford, the Court had noted that the definition in the Act of "accident" had been broadened to include "disablement, including occupational disease, arising out of and in the course of employment". That Court went on to state:

"It is clear from this definition that when symptoms severe enough to cause "disablement" arise out of and in the course of employment, causation is established for the purposes of the Act. It is not necessary to probe deeper and find the underlying medical reasons that one worker could develop disabling symptoms under the same workplace conditions that left other workers symptom free. The cause, in that sense, may be hereditary, the result of an old trauma, or even spontaneous. It is irrelevant to determining eligibility for compensation under the Act."

ROSS: UNDERLYING CONDITION NOT CAUSED OR AGGRAVATED BY WORK

The Court in Ross held that the Tribunal had erred in its interpretation of the foregoing statement. In Durnford, there was medical evidence that the worker's underlying condition, lateral epicondilytis (tennis elbow) which gave rise to her disability, had been caused at least in part by her employment. For this reason, the Court in Durnford rejected the employer's argument that the Tribunal had confused the presence of symptoms with causation.

The Court in Durnford was clear, however, that to be compensable, the symptoms causing disablement must arise out of and in the course of employment. By contrast, the Court held, it appeared that the Tribunal in this case believed that Durnford stood for the proposition that if symptoms manifest themselves at work, they therefore arose out of and in the course of employment:

"In the present case, unlike Durnford, the Tribunal did confuse the manifestation of symptoms while at work with the requirement that the disablement arise out of and in the course of employment. Mr. Ross's cognitive deficit was a result of his shift-work maladaptation syndrome arising, as the Tribunal found, from his natural and innate intolerance of the conflict between his personal circadian sleep-wake pattern and the need to work at a time when his individual sleep-wake cycle would naturally be in the sleep phase or the need to sleep at the time he would naturally be awake. This intolerance is, as the Tribunal found, a personal characteristic inherent to the person. Unlike Durnford, there is no evidence that this condition is either caused or aggravated by the requirements of the job."

Accordingly, the Court set aside the award of compensation to the worker.

In Our View

This decision appears to close the door, at least for the moment, on claims that disablement due to personal intolerance of work schedules is compensable under current workers' compensation law. On a more general level, the Court is stating what workers' compensation boards forget: that a condition must truly "arise out of" (be caused by) work conditions, and not merely appear "in the course of employment". Finally, in its arguments against Ross's claim, Michelin asserted that Ross's claim more properly related to human rights law, in that there was a mismatch between the normal requirements of the job and his personal disability. It will be interesting to see if such claims surface in this form.

For further information, please contact Colleen Dunlop at (613) 940-2734.