Canadian HR Reporter

CANADIAN HR REPORTER November 13, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View First responder wins workers' comp appeal PTSD claim originally denied because traumatic events an expected part of job A New Brunswick first responder has won an appeal for workers' compensation benefits after his initial claim for suffer- ing from post-traumatic disorder (PTSD) was denied. Jacques Hébert worked as an am- bulance attendant at Ambulance New Brunswick, the province's provider of air and land ambu- lance services. He encountered several horrible situations in the course of his job. By early 2014, the cumulative effect of his experiences got to him and he had to take time off work. A psychologist diagnosed him with PTSD and Hébert reported his condition to Ambulance New Brunswick on Jan. 20. He also filed a claim for workers' compensation benefits for his PTSD. e New Brunswick Workplace Health, Safety and Compensation Commission (WHSCC) denied his claim, finding the province's Worker's Compensation Act at the time stated "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." e WHSCC also said Hébert's condition was not the result of "an acute reaction to a sudden and un- expected traumatic event arising out of and in the course of employ- ment," as required by its policy on mental stress compensation, which states a traumatic event happens when a person witnesses or experiences an event involv- ing actual or threatened death or serious injury and responds with "intense fear, helplessness and horror" — with documentation. In addition, traumatic events are usually excessive and not nor- mal to the stressors experienced by an average worker in that occupation. e act was amended in 2016 to allow compensation for emer- gency response workers diag- nosed with PTSD — with no need to prove it was work-related — but the diagnosis had to have been made after the amendments came into force or if the worker stopped working after the amend- ments came into force and was diagnosed within 24 months. As a result, the amendments didn't apply to Hébert's case. He appealed to the WHSCC appeals tribunal, which accepted the PTSD diagnosis, but said "a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace" — a position es- tablished by the New Brunswick Court of Appeal in its 2005 de- cision W. (D.) v. New Brunswick ( Workplace Health, Safety & Compensation Commission). It interpreted this to mean that what may normally be witnessed by ambulance attendants in the course of their work should not be considered traumatic events for compensation purposes and was part of the normal course of work. The tribunal denied Hébert's appeal. Hébert took his case to the New Brunswick Court of Appeal, argu- ing both the WHSCC and the ap- peals tribunal erred in law when they denied his claim. e court agreed with the prin- ciple that "disability caused by mental stress does not constitute compensable injury unless the disability is the result of an acute reaction to a traumatic event." It noted that the test for stress- related claims involved determin- ing if the condition arose out of and in the course of employment, and the traumatic event was "sudden and unexpected," not an employment-related decision, not from gradual or chronic on- set stress, and could be measured objectively. But while the court had previ- ously established in W. (D.) that "a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace," it had also ac- knowledged "it is universally ac- cepted that employees who suffer from post-traumatic stress dis- order qualify for compensation benefits, provided, of course, the traumatic event arose out of and in the course of employment." As a result, the appeals tribunal erred in interpreting its decision in W. (D.), which "clearly distin- guishes between cases where a stress-related condition results 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. is left the only determina- tion to be whether the event was work-related and the reaction was acute. e court also said the WH- SCC and the tribunal erred in interpreting the policy on men- tal stress, in that while the policy states the traumatic event causing stress "typically is unusual and ex- cessive" compared to what can be expected in the worker's occupa- tion, this is not true in all cases. is left the door open for oc- cupations such as first responders — where traumatic events may be expected but aren't necessar- ily any easier to deal with — to be eligible for mental stress benefits. e court also determined the tribunal erred in finding Hébert wasn't eligible because he couldn't identify one particular incident that triggered his PTSD. The policy on mental stress compensation and the court's decision in D.W. both established that a series of traumatic incidents causing PTSD in a first responder qualify him for workers' compen- sation benefits. e WHSCC was ordered to pay Hébert the benefits for his disability, 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 Carswell- NB 456 (N.B. C.A.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment lawtoday.com.

• Cover