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Sleep Disorders

November 13, 2002
by Israel Foulon LLP

Workers Compensation – Is a sleep disorder an injury?

Workers’ compensation aims to provide compensation to employees who suffer injury from accidents arising out of, and in the course of, employment. Employers have a legitimate interest in attempting to limit claims because premiums increase in correlation with compensation awarded to their employees.

The primary way employers limit such claims is ensuring that the workplace is safe. In addition, employers may sometimes wish to dispute whether an injury can receive compensation under the relevant workers’ compensation legislation.

In the following case the worker sought workers compensation benefits for a claim of “shift-work maladaption syndrome.” The case raises important issues in respect of what constitutes an injury for workers’ compensation purposes and whether such injury can be said to arise out of and in the course of employment.

The case: Michelin North America (Canada) Inc. v. Ross

In Michelin North America ( Canada) Inc. v. Ross, a decision released in January 2002, the Nova Scotia Workers’ Compensation Appeals Tribunal found that the inability of a worker to cope with and adapt to shift work can result in an injury eligible for compensation.

The employee, Ross, started working for Michelin in 1987. Ross had always worked shift work for Michelin but by 1996 had developed serious problems sleeping while on nights. Ross would typically work an eight-hour, backward-rotating schedule. This means he would typically work several days on the night shift followed by several days on the evening shift followed by several days on the day shift.

In 1999 Ross filed an accident report claiming he had developed shift work maladaption syndrome as a result of his employment. He claimed his sleep problems had reached the point where he feared for his safety on the job. His physician said the sleep problems were severe and were caused by shift work. As a result, the doctor said Ross was experiencing serious problems staying awake and alert. The symptoms ceased when he was not subjected to working nights.

The doctor for the employer stated that Ross’ problems were not a disorder but a collection of symptoms that were a result of his low tolerance of disruptions in his sleep cycle. The doctor claimed the work did not cause Ross’ problems but merely exposed his pre-existing inability to adapt. The doctor for the employer concluded that if shift work maladaption syndrome is a disorder then about 25 per cent of Canadians are sick because nearly all workers who work shift work suffer adverse symptoms.

Under the Nova Scotia Workers’ Compensation Act a worker is eligible for compensation when he suffers an injury by accident arising out of and in the course of employment. The term accident includes a chance event occasioned by a physical or natural cause or disablement (including occupational disease) arising out of and in the course of employment.

The issue to be determined was whether Ross had suffered such an injury. His claim was initially rejected by a case manager but an award for compensation was later made by a hearing officer. The employer appealed.

The appeal tribunal denied the appeal, holding that it was satisfied Ross’ syndrome met the act’s definition of disablement. The tribunal noted that his schedule led to the condition and there was no other explanation for the symptoms.

In particular the tribunal noted Ross’ problems were caused by the conflict between his natural sleep cycle, natural lack of tolerance and the requirement to work at times when he would naturally be sleeping. If not required to work nights, Ross would not have suffered these symptoms and therefore the tribunal found the problems arose out of and in the course of employment.

It was irrelevant that other worker’s were able to tolerate the night shift so long as a finding could be made that Ross suffered symptoms that led to disablement as a result of working nights. The tribunal, therefore, determined that the worker was entitled to compensation.

The employer has been granted leave to appeal the decision. In August the Canadian Manufacturers and Exporters, a national association, was granted status as intervenors on the appeal due to the appeal court’s recognition that the decision could have substantial financial consequences to other employers. The appeal is scheduled to be heard in December.

Firms using shifts should be concerned

The issue of compensation for sleep work maladaption syndrome has not been considered in other jurisdictions in Canada outside of Nova Scotia. There is little difference between worker’s compensation legislation in the various provinces of Canada and, therefore, there is little reason to believe that a similar finding could not be made in other provinces. Understandably, many employers are very concerned about this case.

From a policy stand point it is difficult to see why this type of claim should be compensated. The better approach for this employee would have been to claim that he suffered from a disability and that the employer was under a duty to accommodate the disability. It would have then been up to the employer to show that it could not accommodate him by placing him on straight day shifts.

There was no dispute in the evidence that the employee’s symptom’s disappeared when he was not working nights and therefore this is not an employee who is unable to work as a result of injury. This is merely an employee who suffers symptoms when he is required to work a specific shift. Therefore this problem appears to be better suited for a human rights accommodation analysis.

From a strictly legal standpoint there is a good argument that the tribunal erred in finding that this condition arose out of employment. This employee has suffered symptoms resulting from working shifts but that does not mean the condition arose out of employment. The better view is likely that his condition is an inability to tolerate disruptions of his regular sleep cycle.

This is a natural condition that pre-existed work and has merely been exposed by the requirement to work shifts. As a result of working shifts the employee has exhibited certain symptoms but this did not result in the development of a condition, accident or an injury that arose out of employment.

The disablement at issue here was pre-existing and did not arise out of employment. In this case, it appears the tribunal has extended the definition of accident to the point where ordinary working conditions that expose an existing problem will lead to an entitlement to compensation. The appeal court will ultimately decide if the legislation is broad enough to encompass such an award.

Cases of note

In Metropolitan Edison Company v. Workmen’s Compensation Appeal Board and Stephen C. Werner (1998), 553 Pa. 177 (Pa. S.C.), the Supreme Court of Pennsylvania found that shift work maladaption syndrome was not an injury under the state’s Workers Compensation Act.

The court reasoned that normal working conditions, such as requiring an employee to work an eight-hour shift, can not constitute an injury under the act. The court noted that the cause of the physical complaints was the timing of the shifts and concluded that the fact the employee underwent physical or mental reactions to working the night shift did not mean he had suffered a workplace injury.

In Virgil L. Henley v. Roadway Express (1985), 699 S.W. 2d 150 (Tenn. S.C.), the employee was placed permanently on the night shift. His doctor stated the employee was suffering from a stress exhaustion syndrome due to his inability to adjust to working nights.

The Supreme Court of Tennessee noted that an injury by accident did not include every stress or strain of daily living or every undesirable experience encountered in the workplace. The court held the employee’s claim was a cumulative stress claim and therefore was not an injury by accident.

In addition, the court held that the injury did not arise out of and was not in the course of employment. The court concluded that the employee’s difficulties occurred when he had trouble sleeping while at home. The injury did not occur in the workplace and was not caused by workplace conditions.

Chris Foulon is a partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or cf@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today.


Legal Disclaimer

This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation. Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.