stress, precarious employment and workers ’ compensation : analysis of case-law from qu É bec

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STRESS, PRECARIOUS EMPLOYMENT AND WORKERS’ COMPENSATION :

ANALYSIS OF CASE-LAW FROM QUÉBEC

Katherine LippelCRC in Occupational Health and Safety

LawUniversity of Ottawa

APA: Work, Stress and Health 2008

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Structure of presentation

Legal framework for recognition of stress claims in Québec.

Precarious employment as a cause of compensable illness

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Methodology 1

Data bank including 357 appeal judgments rendered by the Commission des lésions professionnelles (C.L.P.) between 04/1998 - 09/2002.

Acute and chronic stress claims having given rise to mental health problems.

100% of judgments rendered for that period. Databank using Filemaker software; cases in

databank analysed with regard to 452 fields.

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Methodology 2

Selective analysis of case law rendered between 2003-2007 with regard to claims for mental health problems filed by workers: in precarious employment relationships

On call, casual, part time, temporary employment agency

in organisations in the process of restructuring, including mergers, downsizing etc.

Total number of cases analysed from 2003-2007: 53 additional decisions

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Access to workers’ compensation benefits for

psychological injury attributable to work-

related stress in Québec

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Quebec compensation case law recognizes that mental health can

be compromised

By workplace stressors Acute stress: single, significant

events Armed robbery

Chronic stress: a series of events whose cumulative effect has

undermined the mental health of the worker

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Claims for acute and chronic stress 1996-2005 CSST data

0

500

1000

1500

2000

2500

1996 1998 2000 2002 2004

PTSDOther

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Accepted Claims for acute and chronic

stress 1996-2005 CSST data

0

100

200

300

400

500

600

700

800

900

1996 1998 2000 2002 2004

PTSDOther

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Success rate in appeal(1998-2002)

Psychological harassment 29.6%

Discriminatory harassment 52.2%

Other sources of stress 52.6%.

0

20

40

60

80

100

120

140

Psy.har. Disc. Har. Other

Accepted

Refused

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Employment injury

Industrial accident

Occupational disease

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Industrial accident: s. 2 (AIAOD)

«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»

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Vast majority of the case law CLP/CALP

«the accumulation of events arising out of or in the course of employment, which, considered individually may seem banal, can nonetheless, by their cumulative effect, become significant and meet the legislative requirement for a sudden and unforeseen event».

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Chronic stress as work accident

Necessary to demonstrate that the stressors, individually or cumulatively, go beyond the «normal» workplace stressors to which workers are exposed in the modern workplace.

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Occupational disease

«means a disease contracted out of or in the course of work and characteristic of that work or directly related to the risks peculiar to that work;»

No case has found that mental health problems are characteristic of work, but they can be related to the risks peculiar to that work.

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Mental Health problems accepted as Occupational

diseases (appeal)Job Risk factor

Prison guards Finding prisoners who committed suicide

Nurse Lack of training and social exclusion after bumping OR nurse

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Basis of acceptance 1998-2002(appeal decisions)

91% of accepted cases were accepted as illnesses attributable to work accidents; 9% were accepted as occupational diseases.

0

50

100

150

Accident Disease

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Precarious employment as a cause of

compensable illness: accepted claims

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Part-time workers marginalized

Ostracism of worker who tried to defend the rights of part-time workers in his union...union and management all respond with hostilitySeries of threats and reprisals

constitute a work accident.

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Sub-contracting and suicide

Subcontractor for Canada Post, working harder and harder in difficult conditions to answer increasing demand with no increase in resources. Diagnosed with anxiety disorder, he is forced to take time off. His position is abolished, and he’s asked to come in and train his replacement from Canada Post. He commits suicide. Estate’s claim is accepted.

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In 1995 the Canadian government cut 40,000 jobs in the federal public

sector Tasks

Increased workloadConflicting

prioritiesComputerization of

case management without proper training of personnel

EnvironmentColleagues and

supervisors all under stress

Work environment more volatile

Clientele more aggressive because of poor service

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Restructuring: abnormal working conditions:

understaffing Veterinarian for public

food inspection agency. Colleague leaves and is

not replaced, claimant assumes his workload as well as her own.

Worker diagnosed with major depression.

Claim accepted in appeal as an occupational disease.

Despite the fact that she did not work more hours, the increased responsibility and workload are risks that led to her illness.

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Mergers in the health sector: accepted claims

Québec healthcare sector was considerably restructured leading to a shortage of nursing personnel and continuous changes in personnel («overdose of adaptation»)Transfers (without much training): 7

services in 6 yearsMergers of departments without care for

impact on relationships and servicesConflicts between groups of workers under

competing supervisors

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Work intensification (Private sector):

abnormal when requirements impossible «change of staff,

new technology, suppression of positions and change in workload are all usual working conditions,» but...

It is not normal when a series of such conditions leads to illness of a retail sector worker whose workload increased to the point where she no longer took breaks and she still couldn’t get her work done.

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Precarious employment as a cause of

compensable illness: refused claims

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Stress of being on call: a normal working condition

Trucker working for a temp agency, on call, worked 45-55 hours per week, always called at the last minuteStated he couldn’t refuse a call or he

wouldn’t be called againVariability of schedule leading to

sleep disruption and somatic disorders does not depart from normal working conditions.

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Precarious employment...a normal condition of work

Contract employees in competition with each other for access to scarce permanent positions are not subjected to unusual working conditions.

«The precarious status of employees affected their stress levels and caused insecurity. Precarious status is neither fortuitous nor infrequent in the labour market.» ...compensation denied.

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Conclusions

As precariousness, work intensification and non-standard employment become more and more common, they are perceived to be normal.

Claims for illness that results from these conditions may thus be refused because not attributable to unusual conditions...

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Conclusions...2

Some cases recognize precarious employment, restructuring, work intensification and poorly planned mergers as risks that may lead to occupational disease...a new trend?

Implications for OHS obligations of employers...