Insomnia due to shift work is a workplace injury, workers’ compensation tribunal rules

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In Ross v. Michelin North America (Canada) Inc., a decision released on January 25, 2002, the Nova Scotia Workers’ Compensation Appeals Tribunal has ruled in favour of compensating a worker suffering from insomnia due to shift work. The decision appears to be the first in Canada to deal with the issue.

The worker had been with the employer since 1987 and had always worked on shifts. However, by 1996, he had developed problems sleeping. These problems then worsened to the point that he feared for his safety on the job, which involved production line work. The employer operated its plant 24 hours a day, seven days a week. The worker worked on a backward rotating, eight-hour shift basis, meaning he worked several days on the night shift, followed by several days on the evening shift, then several days on the day shift.

After seeing a doctor, the worker applied for workers’ compensation, claiming he suffered from shift-work maladaption syndrome due to his employment. His claim was rejected by a Workers’ Compensation Board Case Manager, but then upheld by a Hearing Officer. The employer appealed the Hearing Officer’s decision to the Appeals Tribunal.

A physician testifying on behalf of the employer stated that the worker did not suffer from a disorder and that, when he examined the worker, the worker showed no lingering effect from working shifts. He speculated that some of the worker’s symptoms stemmed from a past drinking problem, and from the fact that he was a member of a visible minority group from a rural area and consequently suffered from a lack of social support.

The employer’s physician further indicated that he did not view the worker’s problem as a disorder but as a collection of symptoms. One should not apply the label of “disorder” to a natural phenomenon, such as a person’s level of tolerance for disruptions in his or her sleep cycle, he stated. The work did not cause the problem; it only exposed the worker’s inability to tolerate shift work, which was a personal limitation.

The worker’s physician told the panel that the worker’s insomnia was severe and caused by his shift work, and that his lack of sleep was causing him to suffer from cognitive problems of inattention and difficulty staying awake on the job. There were no other issues of poor health or stress contributing to his condition, which improved only when he was off work. The physician added that it was not surprising that the worker showed no symptoms when he was examined by the employer’s physician as, at the time, he was not doing shift work, and the condition did not persist when the worker was not working shifts.

The Tribunal denied the employer’s appeal, ruling that the worker had likely suffered from a cognitive deficit which, at times, was severe enough to have caused temporary disablement:

    “The Worker’s severe cognitive deficit meets the definition of “disablement” under the Act. … We find that the cognitive deficit had its origins in the Worker’s periods of employment. His symptoms arose when he worked rotating shifts, and he was most symptomatic when he worked the night shift. But for the assignment to work outside his … sleep-wake cycle, it appears on the evidence that the Worker’s symptoms would not have manifested themselves.”

The Tribunal rejected the employer’s contention that alcohol abuse and lack of social support may have played a role in the worker’s condition, finding that this argument amounted to complete speculation unsupported by evidence. With regard to the impact of the worker’s past alcohol problems, the Tribunal stated that the employer’s physician had provided no explanation as to how this could have affected his sleep several years later.

The worker did not have to prove that his syndrome or disorder was caused by work, the Tribunal stated. Rather, all the worker needed to prove was that he had symptoms severe enough to cause disablement which arose out of and in the course of employment.

In this case, the worker’s cognitive deficit, which was severe enough to render him disabled, had resulted from his inability to adapt to the disruption to his sleep-wake cycle caused by his shift work. The worker’s symptoms disappeared when he was off shift work. This was sufficient to prove that his disablement stemmed from his employment. It was not necessary to find the underlying medical reasons as to why the worker became disabled while others working under the same conditions did not.

In Our View

Workers’ compensation injuries normally fall into two categories: underlying ailments which are aggravated by work, or new conditions caused by work. Any aggravation would have surfaced in the first nine years of shift-work, so the worker could not claim that here. Thus he had to claim a new condition caused by work and the Nova Scotia Tribunal agreed, making, we think, three fundamental errors:

  • First, the worker’s claimed condition of “shift-work maladaption syndrome”, like most syndromes, is a catch-all phrase formulated to characterize a plaintiff’s alleged symptoms so as to qualify for an insurance claim.
  • Second, there is little reported evidence that such condition actually constitutes an “injury” compensable under workers’ compensation laws. The Tribunal mistook symptoms for an injury.
  • Third, the Nova Scotia Tribunal ignored the statutory obligation to analyse whether the condition actually “arose out of” (was caused by) work. Instead, it saw that the worker reported certain symptoms, found no other cause and thus concluded that shift-work was responsible.

Ontario has not yet seen such a decision ruling that shift work gives rise to an “injury”, but the basic conditions are there: Ontario has far more shift workers than Nova Scotia, while the statutory provisions of the two provinces are substantially similar. Both statutes base entitlement to compensation on “personal injury by accident arising out of and in the course of employment” and both include “disablement arising out of and in the course of employment” in the definition of “accident”. Therefore, it could well be that a similar result would obtain in this province. The employer has indicated that it will appeal this result. FOCUS readers will be kept informed as this case progresses. (For more recent developments, see “Controversial Nova Scotia workers’ compensation insomnia decision overturned on appeal” on our What’s New page).

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