Canadian Occupational Safety

14 Canadian Occupational Safety www.cos-mag.com More boards presuming PTSD caused by work Diagnosed workers will be automatically entitled to benefi ts O n April 5, Ontario changed its workers' compensation system to presume that post- traumatic stress disorder (PTSD) is work-related for individuals in specifi c occupations. Those occupations include first responders, such as fi refi ghters, paramedics, police offi cers 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 specifi c 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 rou- tine 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' compensa- tion 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 identifi able incident at work or related to work, timely report- ing 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 identifi able, 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 ill- nesses, the compensation boards may presume that if an individual has been diagnosed with a specifi c condition or illness and she worked in a specifi c 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 benefi ts 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 benefi ts 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 identifi ed by the legislation as being automatically entitled to benefi ts with a diagnosed condition of PTSD will be entitled to workers' compensation benefi ts and support, including health- care treatment and wage loss benefi ts, 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 presump- tion." Workers should have easier access to benefi ts and compensation services, whereas in the past, their claims may have been denied if they were unable to establish a link between their condi- tion 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 benefi ts, 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 prob- abilities, 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 informa- tion provided by the worker or from other sources that supports their pos- ition. 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 previ- ously been diagnosed with or treated for the condition. Pre-existing condi- tions alone do not generally preclude workers from entitlement to benefi ts 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' compensa- tion 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 require- ments in their specifi c 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 specifi c situation. David Marchione is an occupational health and safety consultant and para- legal at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868- 3468 or dmarchione@fasken.com. DAVID MARCHIONE WORKERS' COMPENSATION DAVID MARCHIONE WORKERS' Canadian HR Reporter, which has spent the last three decades focusing on the HR profession across Canada, is proud to announce the launch of the National HR Awards. Sponsors Brought to you by • Venngo Healthy Workplaces Award • Queen's University IRC Professional Development Award • Best Diversity Program • Best Recruitment Program • NEW! HR Professional of the Year • NEW! Best Teambuilding Program • HR Challenge Award • Employment Lawyer of the Year, sponsored by Canadian Lawyer magazine • Best Corporate Training and Development Program • Best Corporate Social Responsibility Program • Best Recognition Program • Technology/Innovation Award This year, we are handing out 12 awards in the following categories: Nominations Open: April 18 | Application Deadline: July 15 Winners will be announced and celebrated in the Sept. 19, 2016, issue of Canadian HR Reporter. For more information and to apply, visit www.nationalhrawards.com We're honouring the best HR programs and practices in the country. VENNGO HEALTHY WORKPLACES AWARD EMPLOYMENT LAWYER OF THE YEAR QUEEN'S UNIVERSITY IRC PROFESSIONAL DEVELOPMENT AWARD

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