Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | December 2017 | News encountered several horrible sit- uations in the course of his job. By early 2014, the cumulative effect of Hébert's experiences on the job got to him and he had to take time off work. A psycholo- gist diagnosed him with PTSD and Hébert reported his condi- tion to Ambulance New Bruns- wick on Jan. 20. He also filed a claim for workers' compensation benefits for his PTSD. The New Brunswick Work- place Health, Safety and Com- pensation Commission (WH- SCC) denied his claim, finding the province's Worker's Com- pensation Act at the time stated that "disability caused by mental stress does not constitute com- pensable injury unless the dis- ability is the result of an acute reaction to a traumatic event." The WHSCC also found that Hébert's condition was not the result of "an acute reaction to a sudden and unexpected trau- matic event arising out of and in the course of employment," as required by its policy on mental stress compensation. The policy goes on to state that a traumatic event happens when a person witnesses or experiences an event involving actual or threat- ened death or serious injury and responds with "intense fear, helplessness and horror," and there must be documentation of these factors. In addition, the policy indicates that traumatic events are usually excessive and not normal to stressor experi- enced by the average worker in such an occupation. The act was subsequently amended in 2016 to allow compensation for emergency response workers who were diagnosed with PTSD — with no need to prove it was work- related — but the diagnosis must have been made after the amendments came into force or the worker stopped work- ing after the amendments came into force and was diagnosed within 24 months. As a result, the amendments didn't apply to Hébert's case. Hébert appealed to the WH- SCC appeals tribunal. The tri- bunal accepted Hébert's PTSD diagnosis, but found that "a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace" — a position that had been established by the New Brunswick Court of Appeal in its 2005 decision W. (D.) v. New Brunswick (Workplace Health, Safety & Compensation Com- mission). It interpreted this to mean that what may normally be witnessed by ambulance at- tendants in the course of their work — including injury, death, and other horrible events that would have serious effects on many people — should not be considered traumatic events for compensation purposes and were part of the normal course of work in such occupations. The tribunal denied Hébert's appeal. Hébert took his case to the New Brunswick Court of Ap- peal, arguing both the WHSCC and subsequently the appeals tribunal erred in law when they denied his claim. The court agreed with the principle that "disability caused by mental stress does not con- stitute compensable injury un- less the disability is the result of an acute reaction to a traumatic event." It noted that the test for stress-related claims involved determining if the condition arose out of in and in the course of employment and the traumat- ic event was "sudden and unex- pected," it was not related to an employment-related decision, not from gradual or chronic on- set stress, and can be measured objectively. PTSD changes eligibility However, the court noted that while it had previously estab- lished in W. (D.) that "a traumatic event (is) one that is sudden and outside the realm of what is ex- pected or usual within the work- place," it had also acknowledged at the same time that "it is uni- versally accepted that employees who suffer from post-traumatic stress disorder qualify for com- pensation benefits, provided, of course, the traumatic event arose out of and in the course of employment." As a result, the court found that the appeals tribunal erred in interpreting its decision in W. (D.), which "clearly distin- guishes between cases where a stress-related condition re- sults in PTSD and those where it does not" — the fact that the employee is diagnosed with PTSD allows the assumption that the event was traumatic, said the court. This left the only determination to be whether the event was work-related and the reaction was acute. The court also found the WH- SCC and the tribunal erred in interpreting the policy on men- tal stress, in that while the policy states that the traumatic event causing stress "typically is un- usual and excessive" than what can be expected in the worker's occupation, it also states this is not true in all cases. This left the door open for occupations such as first responders — where traumatic events may be expect- ed but aren't necessarily any eas- ier with which to deal — to be eli- gible for mental stress benefits. The court also determined the tribunal erred in finding Hébert wasn't eligible because he couldn't identify one par- ticular incident that triggered his PTSD. The policy on men- tal stress compensation and the court's decision in D.W. both established that a series of trau- matic incidents causing PTSD in a first responder qualify him for workers' compensation benefits. The WHSCC was ordered to pay Hébert the benefits for his dis- ability plus costs. For more information see: • Hébert c. Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail et autre, 2017 CarswellNB 456 (N.B. C.A.). • W. (D.) v. New Brunswick (Workplace Health, Safety & Compensation Commission), 2005 CarswellNB 390 (N.B. C.A.). First responder < pg. 1 Traumatic events don't always have to be 'unusual and excessive' Credit: Shutterstock/Jaromir Chalabala

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