First to push legislation based on presumption for all occupations
Manitoba made waves recently when it announced it planned to amend workers’ compensation coverage around post-traumatic stress disorder (PTSD). A first in Canada, the legislation would be based on presumption, so claims would be incident-based instead of occupation-based, for all workers, not just first responders.
In the context of workers’ compensation law, a presumption simplifies the adjudication process by eliminating the need to draw a causal connection between certain facts, according to the Workers Compensation Board of Manitoba (WCB).
“Under this approach, if a worker has been exposed to a PTSD trigger in the workplace and is diagnosed with PTSD, it would be presumed that the PTSD was an injury by accident arising out of and in the course of employment, unless the contrary was proven.
“A provision drafted in this manner would not provide greater coverage to workers than they already have because PTSD is a compensable condition with or without a presumption. It would, as previously indicated, merely simplify adjudication and reduce the stigma of mental illness.”
If there is stigma around applying for benefits due to a psychological injury, a presumption will help people who are sitting on the fence about whether or not to make a claim, said Warren Preece, director of communications at the WCB in Winnipeg.
“Anything that reduces barriers between an injured worker and the benefits they’re entitled to is a good thing,” he said. “The sooner we know the injury happens, the sooner our care system kicks in, be it a sprained wrist or sore back or psychological injury like PTSD.”
Often, the disorder catches up to people because there were no supports when it happened, said Kevin Rebeck, president of the Manitoba Federation of Labour in Winnipeg.
“If we change how we deal with these traumatic events and we give people lots of help early, when they need it, then perhaps we avoid those long-term effects totally.”
In the current system, employees across Canada aren’t allowed to go after their employer through the legal system because they have workers’ compensation coverage, he said.
“(Employers are) immune to being held legally accountable yet if (employees) suffer from PTSD and have lots of hoops to jump through, they have no other recourse, so we think it’s very appropriate that it be presumptive legislation that helps people get the help they need quickly,” said Rebeck.
“There have been ongoing problems and challenges with getting WSIB (Workplace Safety Insurance Board) recognition of PTSD coverage, so there has been some strong advocacy to have this looked at and dealt with.”
Right now, potentially, anyone can get coverage, he said.
“But our experience is that the test is really, really high and takes a long time to prove and faces a lot of challenges, and this makes it much easier for people,” said Rebeck.
“Just because you’re in a certain type of occupation doesn’t mean others aren’t exposed in the workplace and through the course of their employment to traumatic events that have an impact on them, and they should be covered as well.”
While there may be some value in doing this presumptive change for specific occupations where people are at a higher risk for PTSD, applying this to all workers is putting forward a legislative change before all the due diligence has been done, said Elliot Sims, director of provincial affairs, Manitoba, for the Canadian Federation of Independent Business (CFIB) in Winnipeg.
“We haven’t seen any evidence that suggests that PTSD has got a significant delay or length of time between the injury being reported and it being evaluated, so we don’t see that there’s any sort of time lag that would really impact the treatment, or at least it hasn’t been provided by the government,” he said.
“If we knew that there was a backlog in terms of cases that have been moved to an expert and that it was slowing down the analysis, evaluation and obviously treatment of it, that’s one discussion, but there’s been no information provided.”
It’s important to have a formal process in place that accurately evaluates and diagnoses PTSD and doesn’t short-circuit the program that’s in place for all psychological illnesses and degrade the quality of service the WCB is providing, said Sims.
“PTSD is a very difficult thing to diagnose because it can have such a long latency period and there can be a lot of contributing factors to it that might not all be work-related, so what the legislation is doing is basically short-circuiting or fast-forwarding the traditional evaluation period,” he said.
“That’s what we’re kind of concerned about is because this will be the only workplace injury that has this special provision.”
There doesn’t appear to be any need for this kind of broad approach being pushed by Manitoba, said William Gardner, partner and chair of the labour and employment group at Pitblado in Winnipeg.
“The fact that no other jurisdiction does this means that we’ve got no experience on which we can draw in terms of testing these consequences — it means we’ve kind of launched Manitoba into the unknown,” he said.
“In the absence of any evidence that the current system in any way is failing employees, walking off a cliff isn’t really a good idea.”
There’s an obvious risk for invalid claims and there’s going to be a lot of pressure on physicians to diagnose PTSD, said Gardner, who is also chair of the Manitoba Employers Council.
“An employer might get a huge bill in the form of a big change in their experience rating due to a PTSD claim which is not actually work-related but because of the presumption. If you can’t prove the contrary, then the employer is stuck with an increase in their premiums.”
The WCB has seen a small number of claims around PTSD — fewer than 20 in the last few years — said Preece, though that number is not entirely accurate as often a claim is made around an injury and the onset of PTSD occurs later.
For instance, there were 418 other psychological claims in the same time period, and PTSD could have been diagnosed there, he said.
“(But) you’d kind of expect there to be a small number because these types of events are rare that lead to PTSD,” said Preece.
“We’re also in very good financial shape right now so we’re not expecting anything that would create enough expense to
warrant employers’ rates going up. It’s not like an ironclad guarantee but we’re not expecting it.”
When people talk of rates rising with the change, it’s like Chicken Little claiming the sky is falling, said Rebeck.
“It’s not going to be a huge, substantive change and I don’t think people will see a huge change in rates. The reality is that employers have been able to let the public system pay for this in a different way, rather than them being liable, and our workers have had to pay out of their own pockets for a long time.
“So if (employers have) been gaming the system on it for a number of years, saying that ‘We don’t get to game the system anymore’ doesn’t get a lot of sympathy from me. I think people need to pay their fair share and if you’re paying into a system that says, ‘It’s no fault and you can’t sue me for having made you be exposed to this,’ then you need to pay your fair rate to make it cover…. There’s no data that shows it’s monstrous numbers that we’re looking at, and it’s the fair and right thing for us to do.”
It’s true the number of first responders claiming PTSD has not been significant in Alberta or Manitoba, said Gardner.
“Probably we could live with that and we could take some comfort from the experience of Alberta but we’ve got absolutely no idea here, we’ve got a naggingly persistent provincial deficit and a number of employers who are just getting by.”
For HR, there are no positives with the potential new legislation, he said.
“They’re going to be faced with the possibility of very expensive claims which will impact on their claims experience which, in turn, impacts on their premiums, with a much more difficult challenge in terms of how to challenge a questionable claim,” said Gardner, because of the presumption the PTSD is work-related.
“Employers will now have to establish that it is not. The onus of proof is switched to the party that is least able to bear it, because it is the worker who has the information.”