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More boards presuming PTSD caused by work

On April 5, Ontario changed its workers’ compensation system to presume that post-traumatic stress disorder (PTSD) is work-related for individuals in specific occupations. Those occupations include first responders, such as firefighters, paramedics, police officers and emergency medical attendants, as well as certain workers in correctional institutions and secure youth justice facilities. Ontario joins Alberta whose legislation contains a similar presumption and Manitoba whose legislation came into effect Jan.1 but is not limited to a specific occupation. On April 1, New Brunswick’s labour minister introduced a similar bill in the legislature signalling that it will likely move in the same direction.

Research has shown that first responders are at least twice as likely to develop PTSD than members of the general population due to their routine exposure to traumatic stressors. The changes in the legislation and in the workers’ compensation systems will make it easier for those workers to obtain access to support, treatment and compensation. The long-term goal of these changes is to help reduce the stigma attached to mental illness.

In most cases, workers’ compensation law and policy requires that the evidence following a reported work-related injury demonstrate a link between a workplace incident — or multiple incidents — and the injury or condition that has been diagnosed. This is usually demonstrated through evidence of an identifiable incident at work or related to work, timely reporting of an injury or condition, timely medical treatment and an ability for the compensation board to identify compatibility between any diagnosed condition and the work.

For some incidents, such as those that are readily identifiable, it may be presumed that if an injury or illness occurred at work, it resulted from the work or the workplace. For others, additional evidence is required in order to establish a link between the work and the injury. In the case of certain occupational diseases or illnesses, the compensation boards may presume that if an individual has been diagnosed with a specific condition or illness and she worked in a specific occupation, the condition is linked to the occupation. Those presumptions apply unless the contrary is shown.

Even before the changes in Manitoba and Ontario, workers across the country were entitled to workers’ compensation benefits if they had a psychological condition that arose out of and in the course of their employment. Those provisions still exist for all workers for whom the presumption does not apply. The only caveat to that provision is that workers are generally not entitled to benefits for a psychological condition that is caused by an employer’s decisions or actions relating to their employment. That includes an employer’s decision to change the work to be performed or the working conditions, discipline the worker or terminate the worker’s employment. As always, decisions on entitlement in each workers’ compensation case are to be made based on the merits and justice, or the facts, of each case.

What do these changes mean to workers and employers within the affected jurisdictions? Those workers identified by the legislation as being automatically entitled to benefits with a diagnosed condition of PTSD will be entitled to workers’ compensation benefits and support, including health- care treatment and wage loss benefits, when required, unless it can be shown that their condition did not rise out of and in the course of their employment. This is known as a “rebuttable presumption.” Workers should have easier access to benefits and compensation services, whereas in the past, their claims may have been denied if they were unable to establish a link between their condition and their work. They may have had to undergo a lengthy, and sometimes onerous, appeal process before having access to those services.

For employers, the presumption in the legislation may mean additional workers’ compensation claim costs if more of these claims are allowed. It is unclear as to whether the change in legislation will cause more workers diagnosed with PTSD to come forward and claim for workers’ compensation benefits, but it is likely that those whose claims are already in the system will have their claims allowed and new claims will be allowed more quickly.

Employers who do not agree that the diagnosed PTSD is work-related have the right to appeal adverse entitlement decisions made by the compensation boards. However, as in any employer appeal, the employer will need to demonstrate, on a balance of probabilities, that it is more likely than not that the worker’s PTSD was due to circumstances or events unrelated to their work. They may have information provided by the worker or from other sources that supports their position. That information will need to be considered as part of the facts of the case under review.

One argument many employers try to use when appealing workers’ compensation entitlement decisions is that the worker had a pre-existing condition. In the case of PTSD, there may be evidence the worker had previously been diagnosed with or treated for the condition. Pre-existing conditions alone do not generally preclude workers from entitlement to benefits if it can be shown the work or workplace exacerbated the condition. However, in those cases, the employer may be entitled to cost relief if it is available in its jurisdiction.

The changes in workers’ compensation law relating to PTSD in Manitoba, Alberta, Ontario and possibly New Brunswick appear to foreshadow what  will likely come in other jurisdictions in Canada. Employers must be sure to follow claim reporting requirements in their specific jurisdiction if a worker reports a condition he relates to his work and, as always, be sure to do a thorough investigation to gather all of the facts related to the specific situation.

David Marchione is an occupational health and safety consultant and paralegal at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com.

This article originally appeared in the June/July 2016 issue of COS.





David Marchione

David Marchione is an occupational health and safety consultant and paralegal at Fasken in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com, or visit www.ehslaw.ca for more information.
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