Judge sends fight attendant’s workers’ compensation case back for hearing
A decision denying an Air Canada flight attendant workplace benefits arising from a scary incident on board an aircraft has been overturned by the B.C. Supreme Court.
On May 25, 2012, Kelly Zechel was working as a service director aboard a flight from Tokyo to Vancouver when an acrid smell was detected in the cabin of the aircraft about two hours from Vancouver.
The source of the smell could not be found and the flight was given priority landing status. An emergency response unit was dispatched to accompany the plane as it arrived at Vancouver airport.
Zechel, a flight attendant for 22 years, wasn’t alarmed at what was going on during the flight, as she was focused on the safety of the passengers and crew.
When firefighters boarded the plane at the airport, they told Zechel there was a noticeable “haze” in the cabin she hadn’t previously noticed.
Zechel was later told that the haze was caused by an overheated entertainment system, which she recalled was the likely cause of the crash of a Swissair flight off the coast of Nova Scotia several years earlier.
She was also reminded that whenever a passenger airline is in trouble and there’s a chance of a crash, fighter jets are scrambled and if necessary, measures are taken to protect against a crash in a populated area.
The gravity of the situation then “hit” her and she cried the length of a flight from Vancouver to Winnipeg later that day, upset about the incident and the possibility her two-year-old son would be left without a mother.
She received trauma counselling and her family doctor diagnosed her with acute stress and lung irritation and she did not return to work until June 4, 2012.
The Workers’ Compensation Board initially accepted her claim for lost wages but the airline requested a review of the decision and in March 2014, the WCB determined that she had sustained a traumatic event resulting from her work and that her mental stress injury was compensable.
The airline filed a second appeal challenging the evidence of her injury and in February 2015, the appeal was denied.
The company appealed that decision to the Workers’ Compensation Appeal Tribunal (WCAT), which found that although she worked in B.C., she commuted to work from her residence in Manitoba and the injury occurred while she was working elsewhere than B.C. and she was therefore not eligible for compensation.
Both Zechel and Air Canada, in separate proceedings, sought judicial review of the WCAT ruling and the cases were heard together by B.C. Supreme Court Justice Gary Weatherill.
In a ruling released Wednesday, the judge found that the November 2016 WCAT ruling was patently unreasonable.
He noted a possible scenario in which two flight attendants who are based at the Vancouver airport, one a resident of Alberta and one a resident of B.C., each suffer a similar injury from turbulence on the same flight.
“As a result of the WCAT decision, the flight attendant who resides in British Columbia will have coverage under the (Workers Compensation Act) while the other flight attendant who resides in Alberta will have no coverage,” said the judge. “In my view, such a result is absurd.”
The judge quashed the WCAT ruling and ordered that the matter be sent back for a rehearing in light of his ruling.