Manitoba is changing its workers’ compensation law so that when an emergency response worker develops PTSD, the illness is presumed to be an occupational disease, and the worker is compensated accordingly. But in Ontario, the opposite happens: the law actually excludes claims for PTSD caused by the kinds of traumatic events they might “expect” to experience during their careers.

In my view, this betrays the fundamental purpose of workers’ compensation law. In February, the Legislature will likely schedule the second reading of Bill 2, a private member’s Bill that would set matters right. This blog describes the current sorry situation, and will hopefully encourage readers of all political stripes to support NDP MPP Cheri DiNovo’s bill.

The “unexpected” exclusion of emergency workers’ claims in Ontario

One day before Christmas, I read two contrasting news stories about PTSD. One was about Manitoba’s announcement that it is amending its legislation to recognize PTSD as a work-related disease. The other was the sad story of a paramedic raising money for a colleague off work because of PTSD:

[The] WSIB… doesn’t recognize PSTD as a workplace injury and we have a North Bay paramedic who is running out of sick leave,” [paramedic Mark] Beaulieu said.

Why wouldn’t the WSIB recognize PTSD as a workplace injury when, as the story describes, paramedics witness and experience many traumatic events in the course of their employment? I don’t know the specifics of this case, but from Beaulieu’s comments, it’s likely another example of problem for emergency service workers caused by the odious “mental stress” provisions in Ontario’s Workplace Safety and Insurance Act.

I discussed these provisions—which the WSIAT has twice ruled are unconstitutional—in a previous blog post. Here’s a one-paragraph summary of the law:

Ontario’s workers’ comp system provides health and disability insurance for all injuries and illnesses that arise out of and in the course of a worker’s employment, with one exception. The law creates a special classification for workers who have a mental illness that resulted from their work, but which was not preceded by a physical injury. They are classified as workers with “mental stress” and are barred from making WSIB claims, with the exception of a sub-group whose “mental stress… is an acute reaction to a sudden and unexpected traumatic event.”[1]

For emergency response workers, a big problem arises from that underlined word, “unexpected.”

The WSIB interprets it as a requirement that the traumatic event must be “unexpected in the normal or daily course of the worker’s employment or work environment”—in other words, emergency response workers cannot get compensation for a mental illness if it arises from the kinds of traumas that we, as a society, ask and expect them to deal with as a “normal” part of their job.

The WSIAT has developed a more complicated interpretation of the law with the same result. In addition to applying the WSIB policy’s definition of “unexpected,” the WSIAT has developed a “modified average worker test” that conflates the concepts of “unexpected” and “traumatic,” further restricting entitlement for emergency response workers.

Generally, the WSIAT will grant entitlement if the event is one that an imaginary “average worker” would find traumatic. But for emergency response workers, the event has to be one that an imaginary average worker in the same job would find traumatic (i.e. another police officer or paramedic). As this quote from Decision 1595/97 shows, this results in a stricter test for emergency response workers:

It is the lot of a police officer to deal with crime, some of it horrendous, part depressing, a percentage dangerous and the rest routine. That is their daily workload and may seem unbearable to civilians…. A police officer expects to encounter situations that many of us would not expect to confront and would not be trained to handle.
So let us start from the premise that a police officer has special training and a corresponding resilience to difficult situations.

Another example is Decision 2363/09, a case involving a Forensic Investigator whose experiences included fingerprinting the corpse of a 12 year old boy struck by a GO train, fingerprinting the corpse of elderly man whose expression showed a fear of death and, at scene of the crime, photographing and fingerprinting body of woman who had been stabbed and had throat cut by husband. While there is little question that these experiences would be traumatic for other kinds of workers, the WSIAT ruled that:

An FIS officer would be accustomed to dealing with crime scene investigations, including murders and suicides and the identification of corpses at morgues, as part of regular job duties.

Notably, the WSIAT does not rely on any evidence in 1595/97 or 2363/09 showing that police officers have a greater psychological “resilience” to trauma than the rest of the working population—it’s merely an assumption. As assumptions go, it is (a) at best questionable, given the comparatively high incidence of PTSD among first responders, and (b) out of character for a usually careful tribunal (by way of comparison, it’s hard to imagine the WSIAT assuming without evidence that warehouse workers are less at risk of lower back strain because their work lifting boxes makes them more resilient to MSK injuries). [2]

An “unexpected” betrayal of the purpose of workers’ compensation law

Consider these two propositions:

1. As a society, we ask and expect emergency response workers to experience and witness traumatic events as part of their employment; and
2. Our workers’ compensation law denies excludes claims for mental illnesses caused by traumatic events that occur in the “normal… course of [a] worker’s employment or work environment.”

This situation is, in my view, a betrayal of the purpose of workers’ compensation law.

The purpose of workers’ compensation is to provide compensation for work-related illnesses and injuries. But under Ontario law, the group of workers whose jobs, by their very nature, have the greatest exposure to the risk for a particular injury—PTSD and other mental illnesses arising from traumatic experiences—are denied entitlement for it. It’s analogous to having a provision in the law that grants entitlement for lung cancer, but then denies compensation to workers employed in nickel smelters because their job exposes them to carcinogens.

It also smacks of the common law doctrine of “the voluntary assumption of risk,” which, until 1914, was used to deny workers compensation for injuries that resulted from known risks in their workplace. That doctrine was abolished by the original 1914 workers’ compensation law[3], in recognition that it “inflicts injustice on the working man”[4]—and it remains abolished… for everyone, that is, except emergency response workers.

The solution

The obvious solution to the problem is for the government to rescind or re-write the mental stress provisions in the WSIA, which continue to operate even though the WSIAT has twice ruled that they are unconstitutional. That would benefit every worker with a mental illness or disability caused by work, regardless of whether its cause is chronic or traumatic in nature.

But given the government’s delay in doing this, as an immediate step, we can support MPP DiNovo’s Bill 2, which would at least unequivocally address the problem for emergency response workers, giving them the same protection as their colleagues in Manitoba.

This blog contains general information and should not be relied on as legal advice in an individual case. If you need advice about a WSIB claim or appeal, please visit the website of my law office, asingletonlaw.ca, and book a consultation.

[1] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, ss. 13(4) and 13(5).

[2] There are legal strategies for getting around the “unexpected” problem that may be viable in individual cases. If you have a mental stress case you’d like advice about, click here to find out how to Get Legal Help.

[3] Workmen’s Compensation Act, S.O. 1914, c. 25

[4] Hon. Sir William Ralph Meredith, Final Report on laws relating to the liability of employers to make compensation to their employees for injuries received in the course of their employment which are in force in other countries, and as to how far such laws are found to work satisfactorily, Ontario Sessional Papers, 1914, #53,