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Ontario law presumes PTSD compensable for first responders

Ontario law presumes PTSD compensable for first responders

Ontario has adopted legislation to create a presumption that post-traumatic stress disorder diagnosed in first responders is work-related, streamlining their ability to access workers compensation benefits.

Under the Supporting Ontario's First Responders Act, known as Bill 163, the presumption allows for faster access to Workplace Safety and Insurance Board benefits, resources and timely treatment, according to a news release issued by the province's Ministry of Labor. Once a first responder is diagnosed with PTSD by either a psychiatrist or a psychologist, the claims process for workers comp benefits eligibility will be expedited, without the need to prove a causal link between PTSD and a workplace event.

“The presumption is going to short cut the process of determining their initial entitlement,” said Jodi Gallagher Healy, a London, Ontario-based partner with Hicks Morley Hamilton Stewart Storie L.L.P.

The presumption applies to more than 73,000 first responders in Ontario: police officers, firefighters, paramedics, certain workers in correctional institutions and secure youth justice facilities, dispatchers of police, firefighter and ambulance services and emergency response teams.

The legislation also allows the Minister of Labor to request and publish PTSD prevention plans from employers of workers covered by the presumption.

Evidence shows that first responders are at least twice as likely compared with the general population to suffer from PTSD due to the risk of frequent exposure to traumatic stressors, according to the ministry.

Currently, there is no presumption, so the WSIB evaluates, for example, a claim by an emergency services worker based on whether the worker has been diagnosed with PTSD, to what particular call the worker is attributing the PTSD to and whether the call was unusual in the context of the work, Ms. Gallagher Healy said.

“That analysis is flipped on its head because instead of engaging in 'Are they entitled?,' the presumption is going to be they are entitled unless it can be shown that the PTSD is not related to their work,” she said.

The legislation previously governing these claims referred to traumatic mental stress, with benefits eligibility determined based on whether there's been a sudden, unexpected event, but this created a challenge because many incidents involving first responders, such as a police officer witnessing or experiencing the aftermath of a violent crime, are not unexpected, said Brian MacDonald, an associate with Filion Wakely Thorup Angeletti L.L.P. in London, Ontario.

“If you're a first responder, the term unexpected gets a little problematic,” he said.

Employers could still challenge the benefits award by asking to have their own doctor review the case or for an independent medical exam that could dispute the diagnosis or link it to some other incident, Mr. MacDonald said.

“It's a presumption, but it's a rebuttable presumption,” he said. “If you can prove that the PTSD was in fact caused by something other than work, then the presumption has been rebutted.”

According to the Workplace Safety and Insurance Board, for the five-year period ending in 2014, the board provided benefits and services to almost 3,500 workers with traumatic mental stress, which covers a range of psychological conditions, including acute stress disorder and PTSD, although the board does not have statistics broken down by occupation for PTSD claims data. Any costs associated with the new legislation will be informed through the board's experience in implementing the legislation, according to the agency.

“The (board) has significant experience in providing sensitive and compassionate support for workers in difficult and often tragic circumstances,” the agency said in a statement. “Dedicated teams have been established to help ensure workers with PTSD receive the services they need to help them access treatment and return to work safely.”

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