On October 26, 2017, Bill 7, An Act to Amend Chapter 10 of the Acts of 1994-95, the Workers’ Compensation Act, 1st Sess, 63rd General Assembly, Nova Scotia, 2017, (the “Bill”) was given royal assent. It will come into effect on October 27, 2018.
The Bill creates a presumption in the Workers’ Compensation Act (the “Act”) whereby if a worker was (1) employed in one of various enumerated occupations and (2) diagnosed with post-traumatic stress disorder (“PTSD”), the illness will be presumed to be attributable to the workplace.
The Presumption is stated in the Act as follows:
12A (2) Subject to subsections (3) to (5), where a front-line or emergency-response worker is diagnosed with post-traumatic stress disorder by a prescribed diagnostician, the post-traumatic stress disorder is, unless the contrary is shown, presumed to have arisen out of and in the course of the worker’s employment in response to a traumatic event or a series of traumatic events to which the worker was exposed in carrying out the worker’s duties as a front-line or emergency-response worker.
Workers who meet these requirements will not have to overcome the often-difficult obstacle of having to prove that their diagnosis is causally linked to their employment in order to qualify for Workers’ Compensation Benefits (“WCB”).
Significance of the Presumption
Long-time advocate for first responders and paramedic-turned-legislator David Wilson first tabled a similar bill in October of 2014. Speaking in favour of his bill before it was defeated on second reading, Wilson acknowledged the insidious nature of mental illness:
The problem with the definition of PTSD and a traumatic event is that many of these men and women in the professions that I just announced see on a daily basis, on a weekly basis, on a monthly basis, accumulative traumatic events. They go to call after call after call, over weeks, over months, over years, and it may not be evident after a single event that someone can’t cope with it, Mr. Speaker, it may be years down the road where they attend maybe even a minor event that triggers the symptoms of PTSD – and they’re not easy to deal with.
Work can be traumatic, but the sources of illness are not always self-evident.
Removing the causal barrier to WCB for first responders who suffer from PTSD is a laudable goal, with practical and symbolic benefits. The Bill is undoubtedly a step in the right direction.
In my view, the PTSD presumption should be extended to a broader range of occupations because proving the causal link between PTSD and a workplace is no easier for workers in occupations that are traditionally not identified with mental trauma.
Scope of the Presumption
The Presumption, at this time, applies to workers who meet the definition of a “front-line or emergency-response worker”:
12A (1) (a) “front-line or emergency-response worker” means a continuing-care assistant, correctional officer, emergency-response dispatcher, firefighter, nurse, paramedic, police officer or person in an occupation prescribed by the regulations.
Occupations that are not expressly included in the Bill may be given access to the Presumption by way of the regulations.
Expanding the Presumption
Workers diagnosed with PTSD while performing these jobs will no longer be required to prove a causal link between their work and their illness. This welcome change removes a significant barrier from injured workers receiving WCB. I believe the Presumption should be expanded to amplify that success.
As in Wilson’s statement above, it is not always easy to determine the cause of a condition like PTSD. This is true for firefighters and paramedics as much as it is true for social workers, or educational assistants, or counsellors, or innumerable other workers.
Speaking in favour of the recent Bill, Wilson said
When I say first responder, I’m not only talking about those who kind of come to mind at first, like the firefighters and the police officers and the paramedics. First responders in public safety services is broad…
In Wilson’s 2014 bill, for example, child protection workers and social workers would have been included under the Presumption. It is not unreasonable to assume that these workers regularly confront situations that might cumulatively compromise their wellness.
During the passage of the recent Bill, Nova Scotia Government and General Employees Union President, Jason MacLean, took the opportunity to make submissions to Law Amendments Committee, wherein he recounted the working experiences of Sheriffs. It would be difficult to conclude, after hearing what Sheriffs report experiencing, that their work does not have the potential to leave a lasting impact.
It was also suggested at Law Amendments Committee that secondary responders, such as individuals working with the Canadian Red Cross, be included in the legislation. Others suggested all sorts of medical professionals should benefit from the Presumption.
For those who are worried about “opening the floodgates”, the presumption can be rebutted where the PTSD is demonstrably attributable to a non-work experience.
It stands to reason that the work performed by employees in other professions is also detrimental to those workers’ mental health. Those injured workers are also deserving of support when they need it. Indeed, as Wilson said in 2014:
We often think of those men and women; those firefighters, police officers, dispatchers, nurses, correctional services, social workers, who deal with stuff that most people don’t want to deal with, are heroes. They make a difference in people’s lives. They treat people every day and what we need to do is make sure we can treat them, that they can go and get the treatment that they need.