"Depression and Disability: A Primer on Predisposition", presentation for the Litigating and Defending Against Personal Injury and Disability Claims Insight Conference
April 2004I. INTRODUCTION
According to the World Health Organization, depression is the leading cause of disability in the developed nations, and the second most cited reason for visits to family doctors in Canada. Depression cuts productivity in the workplace and costs the Canadian economy an estimated $4 billion a year. There is a marked trend towards a larger number of disability claims relating to depression. According to the Canadian Pension Plan Experience Study of Disability Beneficiaries (Actuarial Study No. 1, Office of the Chief Actuary, November 2002) 23% of approved CPP disability claims in 2000 were attributable to "mental disorders" compared to 12% in 1990. This study identified that mental disorders were the leading cause of morbidity among new disability cases to CPP. A further indication of the increase in individuals being diagnosed with depression is reflected in the pharmaceutical industry. In the past four years, the number of antidepressant prescriptions dispensed annually in Canada has increased by nearly 50% to more than $30 million. This trend is not localized in Canada. In fact, the two leading antidepressants, Paxil and Zoloft, are among the 10 top-selling drugs worldwide. The prevalence of depression in the general population is statistically significant. A comprehensive regional survey of mental disorders in Ontario, the Ontario Mental Health Survey (OMHS), indicated that major depression was the most common mood disorder, occurring in 5.4% of women and 2.7% of men, for an overall prevalence of 4.1%. Major depression is understood to be a chronic, recurrent illness. The duration of episodes has been estimated at between 6.4 months for men aged 25-44 to 9.2 months for women aged 25-44. The prevalence of depression and the relatively lengthy duration of the illness contribute to the significance of depression in instances of disability in the population.
Given that a large number of individuals in the current population have either suffered from depression in the past or are likely to suffer from a major depressive episode in the future, it is important for litigators to understand the impact that pre-existing conditions or predisposition to depression may have on a claim involving disability due to depression. The purpose of this paper is to discuss, in very general terms, issues which become relevant to claims involving predisposition to depression. The paper includes a basic review of various tools used in diagnosing mental disorders and psychological illness and the limitations of such tools. As well, issues relating to a psychiatric independent medical examinations are discussed. At the conclusion of the paper, a selection of legal decisions are reviewed where predisposition to depression has been considered by the court.
The case law indicates that a mere predisposition on the part of the plaintiff will not relieve a defendant from liability for any damages relating to the plaintiff’s disability relating to psychological symptoms caused or contributed by the wrongful act of the defendant. However, if the defendant is able to establish that the plaintiff’s disability due to mental disorder would have been inevitable in any event, the defendant will not be liable for any damages caused by such disability. The difficulty for defence counsel, of course, is establishing that the debilitating mental disorder would have occurred without the wrongful act of the defendant. Expert psychiatric and/or psychological evidence is clearly required in these circumstances. The purpose of this paper is to identify for the practitioner some of the challenges involved in dealing with such evidence.
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