A second Canadian province, Manitoba, recently amended its Workers Compensation Act to create a rebuttable presumption that claims for Post-Traumatic Stress Disorder ("PTSD") are work-related. But Manitoba's law is novel in that it applies to all workers, regardless of occupation.
The first province to enact a presumption for PTSD injuries for some workers was Alberta. It amended its Workers' Compensation Act in December 2012 to create a presumption that a diagnosis of PTSD is work-related, but only for emergency medical technicians, firefighters, peace officers and police officers.
Ontario has just made changes to its Workers' Compensation legislation similar to Alberta. There is a similar proposal before the Legislature in British Columbia.
In Ontario, Bill 163, Supporting Ontario's First Responders Act (Post-traumatic Stress Disorder), 2016 ("Bill 163") received Royal Assent and came into force on April 6, 2016. Bill 163 creates a rebuttable presumption that a diagnosis of PTSD is work related for firefighters (volunteer or professional); police officers; member of a First Nation emergency response team; paramedics; emergency medical attendants; dispatch workers for ambulance, fire and police; and workers in correctional institutions, places of secure custody or temporary detention. Bill 163 is tailored to help employees who experience traumatic events at work. It would prohibit benefits for PTSD that arise only out of disciplinary, termination or other employment decisions made by an employer.
In British Columbia, on February 23, 2016, an opposition member of the Legislature introduced a private member's bill that would amend BC's Workers Compensation Act to create a rebuttable presumption that diagnoses of PTSD in emergency medical assistant, firefighters (volunteer or professional), peace officers, police officers, sheriffs, correctional officers and 9-1-1 communications officers are work-related. As it is a private member's bill, it is unclear whether it will be enacted.
The effect of the presumptions in Alberta and Ontario (and proposed presumption in BC) mean that emergency first responders suffering from PTSD will not have to link their diagnosis to a particular workplace event or series of workplace traumatic events. As PTSD can only be diagnosed after a patient reports symptoms in excess of one month, it is potentially difficult for emergency first responders to identify and document the workplace event(s) that may have caused their PTSD, particularly if the first responder is exposed to a large number of traumatic events.
In Manitoba, the legislation applies to all workers. Some argue that the Manitoba approach is fairer in that it treats all workers alike. For example, if a bus-driver is in an accident involving a pedestrian or bicycle, which results in PTSD diagnoses to both bus-driver and first-responders at the scene, the first responders would not have to prove the PTSD arose from a traumatic event at work but, absent Manitoba's law, the bus-driver would. On the other hand, first responders obviously face traumatic scenes much more frequently than others, so the Alberta approach to the presumption is arguably more sensible.
Finally, it is important to note that in all of these cases, the presumption is rebuttable. It remains to be seen how vigilant the Workers Compensation agency investigators will be when determining whether a worker's PTSD is work-related or whether they will leave these arguments to be made by employers in the compensation claims process. As well, it will be interesting to see whether remaining provinces in Canada will follow the Alberta or Manitoba approaches to the presumption, or whether they will adopt the presumption at all.