This article is an update to an article on a related topic posted February 2016: http://tinyurl.com/j7sz4at
Recent changes to the Workplace Safety and Insurance Act, 1997 (“WSIA”) could significantly affect the cost of WSIB claims for employers of firefighters, police, paramedics and certain other first responders. In early April 2016, the Ontario legislature passed Bill 163, Supporting Ontario’s First Responders Act (Posttraumatic Stress Disorder), 2016, which amends the WSIA to create a rebuttable presumption in favour of granting worker’s compensation benefits to first responders diagnosed with post-traumatic stress disorder (“PTSD”).
Who is Considered a First Responder?
The new bill considers the following groups of employees to be “first responders”:
- Full-time, part-time and volunteer firefighters;
- Fire investigators;
- Police officers;
- Members of an emergency response team;
- Emergency medical attendants;
- Ambulance service managers;
- Workers in a correctional institution;
- Workers in a place of secure custody or place of secure temporary detention; and
- Workers involved in dispatch.
New Law Shifts the Onus of Proof from Employee to Employer
The new statutory presumption means that if a first responder applies for Workplace Safety and Insurance Board (“WSIB”) benefits following a diagnosis of PTSD, it will be presumed that the employee’s PTSD is “causally linked” to the workplace, and that the PTSD occurred “out of and in the course of” the first responder’s employment. The onus to prove otherwise will now rest with the employer. To rebut the presumption, an employer may need to show that the diagnosis of PTSD is inaccurate, or that a work-related trauma was not a “significant contributing cause” to the employee’s PTSD.
To benefit from the statutory presumption, first responders will be required to provide a diagnosis from a psychiatrist or psychologist for PTSD consistent with the definition of PTSD as set out in the DSM-V (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition).
Cost for Employers of First Responders
The passing of this new law comes soon after the province’s February 2016 announcement of a new, multi-pronged “prevention strategy” to help prevent or mitigate the risk of PTSD among first responders. The Ontario Ministry of Labour reports that “first responders are at least twice as likely as the general population to suffer from PTSD, due to the risk of routine exposure to traumatic stressors” (News, Ministry of Labour, Ontario Passes Legislation to Support First Responders with PTSD (April 5, 2016)).
The province’s new focus on helping first responders could have a significant impact on WSIB claim costs for employers and especially for Schedule 2 employers. Schedule 2 employers are responsible for the full cost of WSIB benefits claims filed by employees. With the new law providing easier access to loss of earnings benefits for first responders claiming PTSD, employers responsible for the dollar-for-dollar cost of their WSIB claims could find themselves facing steep increases to WSIB claim costs. Schedule 1 employers, who pay premiums to participate in the WSIB insurance scheme, may see increases to premiums, and other costs associated with dealing with an increased number of WSIB claims (for example, legal costs).
Some Suggestions to Contain Costs
Employers may wish to consider a proactive approach to help reign in these potential costs. While, according to the DSM-V definition of PTSD, some sufferers of PTSD may experience PTSD symptoms when confronted with reminders of the traumatic event (for example, for some, the workplace could be a triggering environment), an employer may wish to consider whether they are able to offer accommodation in the form of suitable modified work in another area of the organization, thus minimizing non-working time and the resultant loss of earnings benefits claims. Even for employees for whom PTSD does not manifest in this manner, the availability of alternative suitable work could assist in returning the employee to work, thereby helping keep the employer’s WSIB costs contained.
Employers who wish to challenge an employee’s claim for PTSD may need to enlist the help of third party experts and independent medical evaluations to prove that an employee’s PTSD was not caused by work-related trauma and/or was not significantly contributed to by a workplace trauma.
Performance Management Exempt
It should be noted that the new law specifically restricts an employee’s ability to claim PTSD for performance-management-related actions taken by the employer. The law states that employees are not entitled to WSIB benefits for PTSD if it is shown that the PTSD was caused by an employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.
Other Helpful Information
The new statutory presumption will apply to both new and pending WSIB claims. Employees whose claims have been denied may not refile their claims. Claims that have already been appealed cannot be re-appealed to benefit from the new law.
Bill 163 received Royal Assent on April 6, 2016.
This new statutory presumption is not the first example of the Ontario legislature reversing the onus of proof regarding WSIB claims for certain classes of workers. The WSIA already contains a statutory presumption in favour of firefighters with respect to certain heart conditions.