Canadian Safety Reporter

9 Canadian HR Reporter, a Thomson Reuters business 2016 not be provided if it is shown the PTSD was caused by the em- ployer's decisions or actions relat- ing to the worker's employment (such as reasonable direction with respect to how the work is to be performed, working conditions, discipline or termination related to the job expectations). A worker who is not a first re- sponder but is diagnosed with a mental health condition, or is a first responder but has not been diagnosed with PTSD (as de- fined), may still file a claim for compensation for mental stress under the existing WSIA provi- sions. However, 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 re- sponder working today who was diagnosed with PTSD two years ago could apply for worker's compensation benefits for the prior two years — as long as a previous, related claim was not denied). The amendments will also apply to any prior claim cur- rently under appeal — or within the appeal window — provided the diagnosis of PTSD can be made under the DSM-5 (rather than a prior version). 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 com- ing into force. In the interest of improving workplace health and safety and collecting relevant informa- tion, Bill 163 allows the Ontario Minister of Labour to direct an employer to provide the minis- try specific information relating to workplace PTSD prevention plans. This information may be published. Practical considerations for employers Most — though not all — first responder employers are Sched- ule 2 employers for the purpose of the WSIA. A Schedule 2 em- ployer does not operate under the collective liability insurance principle, but instead is directly responsible for the full cost of accident claims filed with and managed by the Ontario Work- ers Safety and Insurance Board (WSIB). As the likely result of Bill 163 will be an increase in suc- cessful PTSD claims from first responders, the cost of worker's compensation coverage for Schedule 2 employers is expect- ed to rise. In addition, because the bill will apply retroactively, an employer may find itself hav- ing to bear the claim costs result- ing from past PTSD diagnoses or absences only now attributed to PTSD. In light of the foregoing, and in anticipation of the passage of Bill 163, employers could consider the following proactive steps to minimize risk and related work- er's compensation costs: • Review existing training and support for first responders to minimize the potential for PTSD in the first place. • Successful return to work is the most effective way to minimize claim costs. Accordingly, con- sider each claim critically and, as soon as possible, provide suitable modified duties and meet all ac- commodation responsibilities in order to return workers to the workplace. • Carefully review any related past claim or appeal that may be covered by Bill 163. Consider the medical information in the WSIB claim file or tribunal case record to ensure a prior PTSD diagno- sis fits within the current DSM- 5 criteria. If not, and a claim is brought under the amended act, take steps to ensure the "Bill 163 presumption" is not applied. 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. Safety breach not considered serious by others The adjudicator found AECL didn't treat the failure to wear PPE on the second visit as a se- rious violation, as the supervisor didn't immediately escort Joncas out of the switchyard and didn't observe him enter the building. The safety violation report also labelled it as a minor infraction and a coaching opportunity once Joncas finished his work. Most importantly, Joncas' supervisor allowed him to continue work- ing for a few more days before his HR interview that ultimately led to his suspension and dismissal, said the adjudicator. In addition, no action was tak- en against anyone who allowed Joncas to enter the switchyard on either visit. The adjudicator found termination was excessive discipline for the infraction and ordered Joncas reinstated with a two-week unpaid suspension on his record. AECL appealed the decision to the Federal Court, arguing the safety violations were seri- ous enough to warrant dismissal, particularly considering the fact that Joncas was in a leadership position and his dismissive at- titude caused an irreparable breach of trust. The court found AECL's safety rules were important at its facili- ties and safety was recognized as a core value with the company, as well as the fact Joncas admitted he was wrong in not wearing PPE in the switchyard when he should have clarified things. However, it also found the adjudicator care- fully considered what Joncas was told regarding the PPE require- ment, Joncas' actions as well as the actions of other employees, and the decision the adjudicator reached was reasonable. The court noted that AECL had a document that featured a Q&A on what to expect if safe- ty rules were breached, which stated that employees who put themselves or others at risk would be held accountable and the goal was corrective, not puni- tive. The evidence showed Jon- cas was held accountable in the safety violation report, but at the time the necessary action recom- mended was to coach him. Finally the court found the mitigating factors in favour of Joncas included his safety record, positive performance reviews and overall performance, plus the fact his direct supervisor and those at the switchyard had no concerns with Joncas returning to work. The court upheld the adju- dicator's decision to reinstate Joncas with a two-week unpaid suspension serving as sufficient corrective discipline, as there was little concern Joncas would repeat his misconduct. For more information see: • Canadian Nuclear Laborato- ries v. Joncas, 2016 CarswellNat 107 (F.C.). Training and support can minimize cost Safety violation report recommended coaching News | April 2016 | CSR Ontario proposal < pg. 3 Worker fired < pg. 5 Most first responder employers are directly responsible for the full cost of accident claims filed with and managed by the Ontario WSIB

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