Background
The worker was employed as a security guard at a remote mining camp for approximately five (5) months before his employment was terminated without cause. The worker alleged that throughout the course of his employment, he was subjected to numerous instances of workplace harassment, bullying, and threats to his safety, all of which had a damaging impact on his mental health. The worker applied to the BC Workers’ Compensation Board (the “Board”) claiming that the workplace incidents caused him to develop a mental disorder.
The Board requested a psychological assessment of the worker and referred the matter to a psychologist. In this referral, the Board Officer summarized 11 incidents of workplace harassment and bullying. The Board relied on the psychologist’s report to find that the worker did not meet all the mandatory elements for a compensable mental disorder. The Board confirmed that although the worker had been exposed to incidents of harassment and bullying at work, the expert opinion did not support a finding that the work-related stressors were the predominant cause of the mental disorder. The worker subsequently provided the Board and psychologist with a list of 89 incidents and sought a review of the decision. The decision was upheld on review on the basis that the expert opinion assessed that the predominant cause of the worker’s mental disorder was the employer’s failure to pay back pay to the worker and not the incidents of workplace harassment.
The decision to deny benefits was ultimately appealed to and upheld by the Tribunal. The Tribunal accepted that the worker met the required diagnostic criteria and that he had been subjected to significant work-related stressors. However, the Tribunal accepted the psychologist’s opinion on causation, finding that the psychologist had sufficient information on the 11 most severe incidents to form a valid opinion on the cause of the worker’s mental disorder. Accordingly, the Tribunal denied the worker benefits on the basis that causation had not been established.
The worker brought an application for judicial review to the BC Supreme Court requesting that the Tribunal’s decision be set aside as patently unreasonable and due to an alleged breach of procedural fairness.
The BC Supreme Court Decision
The Court agreed with the worker’s position and allowed the application.
The Court held that it was patently unreasonable to rely on an opinion which did not include a complete and accurate record of all 89 occurrences of the alleged bullying and harassment. In its initial referral to the psychologist, the Board had briefly summarized 11 of the 89 occurrences that the worker reported. However, of those 11 incidents, the summaries were incomplete and excluded key information. The psychologist did not have complete knowledge of all relevant workplace incidents nor did she have access to the worker’s contemporaneous notes of the same. As such, the psychologist’s opinion was based on incomplete and inaccurate information.
Given the above, the Court held that it was “clearly irrational” and unreasonable for the Tribunal to have accepted and to have relied upon the psychologist’s opinion on the causation of a mental disorder. Rather, the Tribunal ought to have exercised its discretion to direct the Board to further investigate the 89 occurrences of bullying and harassment. It should have also permitted the worker the opportunity to retain a second expert to conduct a new assessment based on a complete record of all relevant work-related stressors.
The Court also found that the Tribunal’s failure to use its discretion was unreasonable and a breach its duty of procedural fairness. The issue of causation of the worker’s mental disorder was of fundamental importance to his claim for benefits and it was the only essential element of his claim that he failed to establish. The worker was entirely dependent on the Tribunal to ensure that the psychologist fulsomely reviewed all 89 occurrences of bullying and harassment before she provided her opinion on causation. The Court stated that the Tribunal owed the worker a high level of procedural fairness and, as such, that the Tribunal breached its duty when it failed to ensure that it had the benefit of a psychological assessment of causation that was grounded in a complete and accurate record of all relevant facts.
In light of the above, the Court set aside both the original Tribunal decision and reconsideration decision which denied the worker benefits, directing that the matter be remitted back to the Tribunal for a new hearing.
Conclusion
This case illustrates some of the pitfalls of overreliance on expert opinions. Expert evidence plays an important role in legal proceedings as an expert’s specialized technical knowledge can assist adjudicators in making an informed legal decision. However, expert opinions that are based on an incomplete and inaccurate record of factual and medical history can stymie justice, rather than support it. For employers, care should be used to ensure that experts are given all relevant facts in order for their opinion to be useful, appropriate and accepted.
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