In late February, the Ontario government announced that it is going to change the Workplace Safety and Insurance Act “to create a presumption that PTSD diagnosed in first responders is work-related.” The draft legislation hasn’t been released yet, but the government promises that it will “allow faster access to WSIB benefits and timely treatment, ultimately supporting positive recovery outcomes.”
This is, without doubt, good news for emergency response workers who develop PTSD, as it removes their cases from the WSIA’s exclusionary mental stress provisions, and treats their illness as an bona fide occupational disease.
However, the proposed amendments are carefully restricted to PTSD, so that emergency response workers who develop any other disabling mental illness (e.g. depression) will be left out in the cold. Worse still, the announcement implies that the government has no intention of providing any relief to other kinds of workers who develop a mental illness as a result of their work, who continue to be barred from claiming WSIB benefits.
Good news for emergency response workers
In an earlier blog post, I explained how, as the law currently stands, emergency response workers get a particularly raw deal: contrary to the purpose of workers’ compensation, the legislation bars claims for mental illnesses that result from the traumatic experiences that, as a society, we ask, and expect, emergency response workers to witness and experience in the course of their employment.
The proposed legislation turns this sorry situation on its head: emergency response workers’ PTSD cases will no longer be adjudicated under the WSIA’s mental stress provisions, but will instead be treated like an occupational disease—in such a way that the PTSD is presumed to have occurred due to the nature of the worker’s employment, and benefits will be granted accordingly.
(The government’s press release says that this presumption will “remov[e] the need to prove a causal link between PTSD and a workplace event.” However, it is important to understand that the WSIB will still be able to reject a claim on the basis that there is evidence contradicting the presumption, and it’s a safe bet that there will be cases where employers challenge PTSD claims on that basis).
Bad news for emergency response workers
The bad news for emergency response workers is that the proposed changes are restricted to PTSD only: the government’s backgrounder states that it will apply only to workers with a DSM 5 (or, for the first six months, DSM IV) diagnosis of posttraumatic stress disorder.
The problem is that the psychological distress of the trauma in emergency response workers’ jobs does not always manifest as PTSD. It sometimes results in other mental illnesses, such as depression and anxiety disorders, which don’t meet the diagnostic criteria for PTSD but are no less disabling. The proposed legislation leaves those workers out in the cold, as their claims will remain subject to the unfair exclusionary rules of the WSIA’s mental stress provisions.
Worse news for everyone else
Worse news comes in the form of an omission: the proposed changes in no way address the discrimination against people with mental disabilities inherent in the WSIA’s current mental stress provisions, leaving injured workers with chronic mental stress to continue languishing in limbo.
As I explained in another blog post, the Workplace Safety and Insurance Appeals Tribunal has twice ruled that the exclusion of mental stress claims is unconstitutional (WSIAT Decision 2157/09 and 1945/10 ). In both cases the WSIAT found that the law discriminated against a worker on the basis of mental disability, in violation of s. 15 of the Charter.
However, because of a combination of the WSIAT’s limited powers (it cannot strike the law down, but can only decline to apply it to the case before them) and the government’s inaction (it has chosen not to challenge the WSIAT’s decisions in court), the WSIB and the WSIAT must continue to apply the law to deny claims, unless it is challenged anew in each and every case.
But bringing a constitutional challenge is a massive undertaking that is beyond the means of most injured workers (indeed, how many uninjured workers could afford to pay for the expert witnesses and legal representation required?)
The government, of course, knows this all too well. In my earlier post, I pondered whether, in the light of the government’s failure to amend the legislation, it’s decision not to challenge the WSIAT’s decisions was a deliberate stratagem:
By now [after almost two years of legislative inaction], the government’s decision not to challenge the WSIAT decisions in court has taken a more sinister complexion—it looks like an attempt to take advantage of a peculiarity of administrative law to ensure that the unconstitutional bar to mental stress claims will continue to apply to all but the most well-resourced and determined injured workers…. [I]n practice, if the government’s goal is to prevent most mental stress claims from going ahead, then not challenging the WSIAT’s two decisions in court provides almost the same result as actually having them overturned on judicial review. Very few workers will escape the effect of the bar on chronic mental stress claims.
If the government ever intended to remedy the discriminatory exclusion of mental stress claims, surely it would be announced now, when it is proposing amendments that deal with one particular kind of mental stress claim (PTSD) for a specific category of workers (emergency response workers).
I’m afraid we have to infer from the omission that the government has decided it wants the law to continue to apply in practice, notwithstanding WSIAT’s unequivocal rulings that it violates s. 15 of the Charter. That, in my view, should be a matter of considerable shame to the Minister of Labour as he accepts congratulations for his progressive approach to PTSD.
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.