By Terry Davidson

Published on July 16, 2018 in The Lawyers’ Daily – reprinted here on September 9, 2018.

Clarifying when workers’ compensation does not cover post-traumatic stress was the focus of a failed appeal by a Maritime police officer claiming harm from being criticized for the death of a woman in custody.

The Nova Scotia Court of Appeal, in the July 6 decision of Henderson v. Nova Scotia (Workers’ Compensation Appeals Tribunal) 2018 NSCA 59, upheld a tribunal’s denial of a claim by Truro Police Service supervisor Sterling Lee Henderson, who was in command when an intoxicated Victoria Rose Paul suffered a fatal stroke while in lockup.

The Appeal Court ruled the province’s Workers’ Compensation Appeals Tribunal (WCAT) did not err in its interpretation of provisions and its finding that workplace investigations into Paul’s death had caused Henderson’s post-traumatic stress disorder (PTSD), and that such investigations are considered non-compensable workplace events.

According to the written appeal decision, on Aug. 27, 2009, Paul was arrested for public intoxication, booked and placed in a station cell. Around 5:30 the next morning, Henderson, a shift supervisor, arrived at work and was briefed about Paul.

A little after 6 a.m., Paul began “rolling around on her bunk and subsequently fell off … [onto] the floor, in apparent distress.”

Later, Henderson was called about Paul being unresponsive. He went to her cell with other officers and “shook and roused Ms. Paul, and ultimately decided not to place her back on the bunk, so she would not fall off and injure herself.”

A station official said they would check on Paul every five minutes.

Around 1 p.m., Henderson was called while out on patrol and told Paul’s condition had “deteriorated.” He arrived back at the station to see her being loaded into an ambulance. She was taken to hospital, where she died around a week later.

Two workplace investigations were launched, one by Halifax Regional Police and another by Nova Scotia’s Ministry of Justice.

The Ministry report, released May 24, 2012, was “particularly critical of [Henderson’s] role in the chain of events involving Ms. Paul.”

That same day, Henderson began seeing a psychologist for “standard debriefing following an unrelated policing incident in which firearms were discharged by police.”

Henderson was diagnosed as having PTSD caused by the 2009 incident involving Paul.

Henderson sought workers’ compensation benefits for “psychological injury,” claiming he was “being blamed for [Paul’s] death and lack of action taken as a supervisor.”

The WCB denied the claim, and the WCAT went on to do the same.

Appeal Court Justice Jamie Saunders, with Justices Peter Bryson and Elizabeth Van den Eynden in agreement, backed the WCAT finding that Henderson’s PTSD injury did not meet the definition of “accident” in s. 2(a) of the Workman’s Compensation Act, and that WCB policy provision 1.3.9 deemed it non-compensable because it was the result of a workplace investigation.

Justice Saunders stated that “Mr. Henderson obviously felt at risk when he described the nature of the occurrence for which he was making his claim.”

“Clearly, that sense of personal jeopardy heightened during the course of the subsequent workplace investigations. … In my opinion, the jeopardy felt and described by Mr. Henderson could easily be characterized as something ‘caused by labour relations issues such as … a decision to discipline the worker …’ and were therefore excluded as being non-compensable under Policy 1.3.9.”

Halifax lawyer Rory Rogers, of Stewart McKelvey, acted for the WCB of Nova Scotia at appeal.

“The Court of Appeal focused on that type of investigation that would be comparable to circumstances where there would be workplace investigation and there would be some kind of reprimand or workplace discipline and the Court of Appeal said that type of conduct is something that is expressly excluded under the [WCA] and policy 1.3.9, so they said the circumstances here were akin to that,” said Rogers. “It has confirmed that, in Nova Scotia at least, where there has been a workplace investigation and someone claims stress arising from that, that it is excluded as a result of the labour relations execution in 1.3.9.” Clarifying when workers’ compensation does not cover post-traumatic stress was the focus of a failed appeal by a Maritime police officer claiming harm from being criticized for the death of a woman in custody.

The Nova Scotia Court of Appeal, in the July 6 decision of Henderson v. Nova Scotia (Workers’ Compensation Appeals Tribunal) 2018 NSCA 59, upheld a tribunal’s denial of a claim by Truro Police Service supervisor Sterling Lee Henderson, who was in command when an intoxicated Victoria Rose Paul suffered a fatal stroke while in lockup.

The Appeal Court ruled the province’s Workers’ Compensation Appeals Tribunal (WCAT) did not err in its interpretation of provisions and its finding that workplace investigations into Paul’s death had caused Henderson’s post-traumatic stress disorder (PTSD), and that such investigations are considered non-compensable workplace events.

According to the written appeal decision, on Aug. 27, 2009, Paul was arrested for public intoxication, booked and placed in a station cell. Around 5:30 the next morning, Henderson, a shift supervisor, arrived at work and was briefed about Paul.

A little after 6 a.m., Paul began “rolling around on her bunk and subsequently fell off … [onto] the floor, in apparent distress.”

Later, Henderson was called about Paul being unresponsive. He went to her cell with other officers and “shook and roused Ms. Paul, and ultimately decided not to place her back on the bunk, so she would not fall off and injure herself.”

A station official said they would check on Paul every five minutes.

Around 1 p.m., Henderson was called while out on patrol and told Paul’s condition had “deteriorated.” He arrived back at the station to see her being loaded into an ambulance. She was taken to hospital, where she died around a week later.

Two workplace investigations were launched, one by Halifax Regional Police and another by Nova Scotia’s Ministry of Justice.

The Ministry report, released May 24, 2012, was “particularly critical of [Henderson’s] role in the chain of events involving Ms. Paul.”

That same day, Henderson began seeing a psychologist for “standard debriefing following an unrelated policing incident in which firearms were discharged by police.”

Henderson was diagnosed as having PTSD caused by the 2009 incident involving Paul.

Henderson sought workers’ compensation benefits for “psychological injury,” claiming he was “being blamed for [Paul’s] death and lack of action taken as a supervisor.”

The WCB denied the claim, and the WCAT went on to do the same.

Appeal Court Justice Jamie Saunders, with Justices Peter Bryson and Elizabeth Van den Eynden in agreement, backed the WCAT finding that Henderson’s PTSD injury did not meet the definition of “accident” in s. 2(a) of the Workman’s Compensation Act, and that WCB policy provision 1.3.9 deemed it non-compensable because it was the result of a workplace investigation.

Justice Saunders stated that “Mr. Henderson obviously felt at risk when he described the nature of the occurrence for which he was making his claim.”

“Clearly, that sense of personal jeopardy heightened during the course of the subsequent workplace investigations. … In my opinion, the jeopardy felt and described by Mr. Henderson could easily be characterized as something ‘caused by labour relations issues such as … a decision to discipline the worker …’ and were therefore excluded as being non-compensable under Policy 1.3.9.”

Halifax lawyer Rory Rogers, of Stewart McKelvey, acted for the WCB of Nova Scotia at appeal.

“The Court of Appeal focused on that type of investigation that would be comparable to circumstances where there would be workplace investigation and there would be some kind of reprimand or workplace discipline and the Court of Appeal said that type of conduct is something that is expressly excluded under the [WCA] and policy 1.3.9, so they said the circumstances here were akin to that,” said Rogers. “It has confirmed that, in Nova Scotia at least, where there has been a workplace investigation and someone claims stress arising from that, that it is excluded as a result of the labour relations execution in 1.3.9.”