Saskatchewan took the lead recently when it announced all forms of psychological injuries — for all workers — are now presumed work-related in the province, following changes enacted to the Workers’ Compensation Act.
And while the change should benefit more people filing workers’ compensation claims, at least one lawyer has concerns about the financial impact on employers.
In theory, an office worker could claim psychological injury after a harsh conversation from a manager, said Gordon Hamilton, an employment lawyer at McDougall Gauley in Saskatoon, Sask.
“This is the old sore back scenario, times 10, that I think employers could be facing. The problem with the reverse onus, which is what the legislation has, (is) how do you rebut an employee claiming that they’ve encountered a traumatic event at work, traumatic enough that it would justify for them to be entitled to workers’ compensation?”
Firefighters, police officers and paramedics in the province have “seen horrific things” that could result in psychological injury, said Saskatchewan Labour Minister Don Morgan. But this ruling extends past emergency services personnel.
“We’ve made it available to all employees, not just certain specified ones,” he said. “And we’ve included all psychological injuries, so in both of those categories, we are as far out as anyone else — or further.”
“Workers’ comp in Saskatchewan advised us that about half the claims that come for psychological injury were declined because it’s hard to prove the nature of the injury and, secondly, and more importantly for the worker, the link to employment,” said Morgan. “Now, the starting point is that they are covered.”
While other provinces have similar legislation, Saskatchewan’s is unique in that it covers all forms of psychological injury workers could experience on the job, he said.
“That could include workplace-induced stress as a result of being involved with traumatic events.”
As part of the changes, employers in Saskatchewan will need to rebut the claim for injuries such as post-traumatic stress disorder (PTSD), whereas in the past, that burden of proof fell on the employee.
Workers will still be required to provide a diagnosis from a psychologist or psychiatrist in Saskatchewan, according to the government.
Saskatchewan followed in the footsteps of neighbouring Manitoba by including all employees, assured that the changes would not give rise to problems, said Morgan. Workers were having trouble meeting the evidentiary burden necessary to be compensated.
“It doesn’t necessarily mean the claims weren’t well-founded,” he said.
Sometimes, psychological injuries do not surface immediately after a traumatic experience, and sometimes they are a compilation of several similar incidents before the effects are felt, said Morgan.
“When we realized the challenges, we felt it was a right thing to do,” he said. “We want to support the workers in our province and I think most jurisdictions would as well. From a pushback point of view, there hasn’t been any. There was strong support for it.”
While Morgan said he expects a jump in claims in Saskatchewan, he does not expect workers’ compensation premiums to rise.
The new ruling makes a lot of sense in terms of injured workers receiving treatment when needed, said Alf Kempf, an employment lawyer at Pushor Mitchell in Kelowna, B.C.
“There’s a presumption that applies which means that it will speed up their access to the benefits of the legislation,” he said. “That makes a lot of sense. Doctors will tell you that the sooner the person can obtain treatment, particularly for a psychological injury, the better.”
The longer someone goes without treating an injury of this nature, the more likely it becomes a permanent disability, said Kempf.
“In B.C., it will take a little bit longer for the employee to satisfy all of the hurdles.”
Employers may need to “take a breath” when examining this legislation, said Kempf.
“A lot of employers worry about the costs of a claim impacting their experience rating,” he said. “So if you get a lot of claims, you could end up paying a higher premium for the workers’ compensation insurance. But what it does mean is more immediate help, which means that maybe the situation is not going to result in a permanent disability and maybe the employee will get better faster.”
“And if it’s a bogus claim, the employer is not precluded from convincing the board that it’s not a valid claim. In practice, what that will mean is the claim costs will be reversed. The employee will still get prompt attention. I think that’s the motive behind this — get these people who are mentally suffering some assistance before a long adjudication process.”
Problems could arise
However, the change isn’t free of complexities and complications, said Hamilton.
“From an employer perspective, I understand the motivation of the government,” he said. “I don’t think there will be any employers in the (emergency services) sector who would have a reaction which would say this is unnecessary and there shouldn’t be some recognition for what these employees go through.”
Outside of that sector, however, “mischief can happen,” said Hamilton.
“It seems like general practitioners in the medical field are more and more willing to diagnose PTSD. That’s where the impact for workers’ compensation comes in.”
Because psychological injury goes undefined in the legislation, restricting application to traumatic events “that are clearly on the upper end of the scale” would be preferred, said Hamilton.
“Now, we’re dealing with an undefined term,” he said. “How do you assess what is something that is psychologically harmful to an individual, when every individual has different tolerance levels? Like most legislation, the devil is in the details in terms of how it’s being interpreted and applied.”
Breaking down access barriers
Canadian human resources consulting company Morneau Shepell added a trauma assist program to its employee and family assistance program earlier this year, according to Barb Veder, vice-president of clinical services and research lead at Morneau Shepell in Ottawa.
“Historically, one of the biggest barriers to treatment is access — people feeling uncomfortable to access the program,” she said. “It is important for the employer to look holistically at how they can support their employees.”
Encouraging workers to use the program can help those affected with a psychological injury to get help before incidents accumulate and it becomes a disability, said Veder.
Companies should work to analyze current programming, invite comment from all stakeholders, and ensure beneficiary resources are being used appropriately, she said. “If you’ve got all your funding and support in the disability bucket — in short-term and long-term disability — then your strategy is probably weak. There are things that organizations can do in program design to help shape a program that will help people at an earlier stage.”
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