Canadian Employment Law Today

Proposed Ontario legislation presumes PTSD in first responders is work-related Post-traumatic stress disorder, first responders, and presumed entitlement to worker's compensation benefits: What does it mean for Ontario employers? BY CARISSA TANZOLA ON Feb. 18, 2016, the Ontario government proposed Bill 163: An Act to amend the Workplace Safety and Insurance Act, 1997 (WSIA) and the Ministry of Labour Act (MOLA) — also known as Supporting On- tario's First Responders Act (Post-traumatic Stress Disorder), 2016. As of Feb. 23, 2016, Bill 163 made it to second reading. If passed, Bill 163 will allow first respond- ers faster access to Ontario WSIA benefits by removing the need to prove a causal link between post-traumatic stress disorder (PTSD) and a workplace event, and instead creating a presumption that PTSD diag- nosed in a first responder was sustained "out of and in the course of employment." is as- sumption is intended to address the fact that first responders are at least twice as likely as members of the general public to suffer PTSD given the risk of routine exposure to traumatic stressors. e proposed legisla- tion would apply to more than 73,000 first responders in Ontario including employees of healthcare providers, municipalities and correctional services. As the likely result of Bill 163 will be an in- crease in successful PTSD claims, the cost of worker's compensation coverage, primarily for Schedule 2 employers, is expected to rise. Affected employers should therefore look for ways now to proactively manage these anticipated costs and, at the very least, bud- get for them. e current landscape At present, s. 13 of the WSIA allows a work- er who sustains a personal injury by an ac- cident arising "out of and in the course of his or her employment" to collect worker's compensation benefits. ere is a presump- tion the injury occurred in the workplace unless the contrary is shown. However, a worker is not entitled to ben- efits for "mental stress" (including PTSD) unless the worker has "an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment." is means that while a worker (including a first responder) is cur- rently eligible for worker's compensation benefits for a mental health condition, the onus is on the worker to prove the mental illness or injury fits within the somewhat narrow parameters set out in the WSIA and subsequent interpretations. As a result, it can be a difficult and long process to obtain benefits. e details of Bill 163 As it is currently drafted, Bill 163 amends the WSIA as follows: It is presumed that the following first re- sponders, once diagnosed with PTSD, sus- tained the disorder out of and in the course employment: •full-time, part-time and volunteer fire- fighter •fire investigator •police officer •member of a First Nations emergency re- sponse team •paramedic •emergency medical attendant •communication officer (for purposes of the Ambulance Act) •worker in a correctional institution •worker in place of a secure custody or place of secure temporary detention •worker whose duties include dispatching firefighters and police offers. e above noted presumption may be re- butted with evidence. However, the onus is on the employee. e diagnosis of PTSD must be made by a psychiatrist or psychologist using the cur- rent DSM-5 diagnosis regime. Benefits will not be provided if it is shown the PTSD was caused by the employer's decisions or ac- tions relating to the worker's employment (such as reasonable direction with respect to how the work is to be performed, working condition, discipline and/or termination). A worker who is not a first responder but is diagnosed with a mental health condition, or is a first responder but has not been diag- nosed with PTSD (as defined), may still file a claim for compensation for mental stress under the existing WSIA provisions. How- ever, there will be no presumption. Retroactive application If passed, the amendments will apply to a PTSD diagnosis made on or after "24 months before the bill comes into force," so long as the worker worked for at least one day since the law is enacted. For example, if Bill 163 was in force today, a first responder working today who was diagnosed with PTSD two years ago could apply for work- er's compensation benefits for the prior two years — as long as a previous, related claim was not denied). e amendments will also apply to any prior claim currently under ap- peal — or within the appeal window — pro- vided the diagnosis of PTSD can be made under the DSM-5 (rather than a prior ver- sion). Finally, the amendments will apply to a first responder who has stopped work but who is diagnosed with PTSD within 24 months of the bill coming into force. In the interest of improving workplace health and safety and collecting relevant information, Bill 163 allows the Ontario Minister of Labour to direct an employer to provide the ministry specific information re- Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends ABOUT THE AUTHOR Carissa Tanzola Carissa Tanzola is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Carissa can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com. INCREASED on page 6 » First responders won't need to prove a causal link between PTSD and a traumatic workplace event

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