Getting ahead of mental injuries
Syncrude firefighter case reveals that when it comes to the brain, everyone is different
Mar 12, 2019
Smoke and flames from a wildfire erupt behind a car on the highway near Fort McMurray, Alta., on May 7, 2016. REUTERS/Mark Blinch/File Photo
By Jeffrey R. Smith
Getting into someone’s headspace isn’t easy.
Especially when that someone has gone through some trauma that has affected him or her emotionally and mentally.
But when that individual has had to take time off work, it’s good if the employer can have an idea of when — or if — the worker will be able to work. It’s not an easy call to make.
Mental injuries and illness are being accommodated much more these days, which is a positive development for workers who have developed mental issues that make it difficult for them to work. Employees in several jurisdictions can get entitlement to workers’ compensation benefits for mental injuries — under certain specifications — as they would for physical injuries. Employers have a duty to accommodate mental disabilities to the point of undue hardship, similar to as they do with physical disabilities. Overall, the needle has moved in the understanding of mental illness and how it can affect workers, along with how workers with mental illness can be helped in returning to the workplace.
However, the difficulty remains in how mental illness or injury can be determined and how related to the job it is — something that is essential in awarding benefits for work missed. Many provinces now allow any post-traumatic stress disorder (PTSD) suffered by emergency workers — such as firefighters, paramedics, and now nurses in some provinces — to automatically be assumed to be work-related. This makes sense, but what about the recovery period?
When it comes to the brain, everyone is different. People can be affected differently by traumatic events, which makes it difficult to identify the extent of mental injuries. Determining the seriousness of physical injuries is pretty cut-and-dried, but for mental injuries, it can be a matter of interpretation by professionals. And for employers, it’s probably better to err on the side of caution than adopt a tougher stance with mentally injured workers.
Oil company Syncrude currently faces a lawsuit by a former company firefighter who had to stop working due to gradual-onset PTSD that developed over time but reached its full force when the worker was involved with fighting the Fort McMurray wildfires in May 2016. His PTSD was diagnosed in 2017.
Syncrude and the Alberta Workers’ Compensation Board arranged for the worker to go to a screening from a psychological injury program that included group sessions, meditation, and exercise, but the worker didn’t initially participate. According to the worker, his psychologist wanted to make sure he was ready to begin the program — which the worker eventually did, though later than Syncrude wanted him to.
The worker went through the training and his state of mind improved, so Syncrude said it expected him back at work in February 2018. However, the worker’s care team and the workers’ compensation board didn’t think he was ready. In September, the worker still hadn’t returned to work, so the company terminated his employment.
The worker filed a wrongful dismissal suit, alleging Syncrude punished him for his mental disability and the fact he entered the treatment program too late and stayed in it too long. Syncrude has applied to have the lawsuit dismissed, but either way, the worker’s PTSD has opened up a legal headache for the company.
Syncrude claimed it acted on the medical information that was available to it, but it seems the company didn’t have a specific return-to-work date to work towards. According to the worker, his psychologist didn’t think he was ready to start the treatment program when the company did, nor did he agree with the company’s expected return date. If this is the case, then it appears the company should have done more investigation into the worker’s situation — it may have been pretty easy to determine the worker’s PTSD hadn’t improved to the point where he could come back to work.
Mental illness and disabilities can be complicated for employers to figure out — in the above case, Syncrude may have had difficulty understanding the extent of the worker’s PTSD. However, it can be dangerous to take a worker’s mental illness lightly — they may be harder to figure out, but they can be just as disabling to someone, especially for workers who experience traumatic events as part of their jobs.
Getting a feel for someone’s headspace isn’t easy, but employers should keep their own headspaces open to the potentially devastating effects of mental injuries like PTSD.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.