First responder wins workers’ comp appeal

PTSD claim originally denied because traumatic events an expected part of job
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 11/13/2017

A New Brunswick first responder has won an appeal for workers’ compensation benefits after his initial claim for suffering from post-traumatic disorder (PTSD) was denied.

Jacques Hébert worked as an ambulance attendant at Ambulance New Brunswick, the province’s provider of air and land ambulance services. He encountered several horrible situations in the course of his job.

By early 2014, the cumulative effect of his experiences got to him and he had to take time off work. A psychologist diagnosed him with PTSD and Hébert reported his condition to Ambulance New Brunswick on Jan. 20. He also filed a claim for workers’ compensation benefits for his PTSD.

The New Brunswick Workplace Health, Safety and Compensation Commission (WHSCC) denied his claim, finding the province’s Worker’s Compensation Act at the time stated “disability caused by mental stress does not constitute compensable injury unless the disability is the result of an acute reaction to a traumatic event.”

The WHSCC also said Hébert’s condition was not the result of “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment,” as required by its policy on mental stress compensation, which states a traumatic event happens when a person witnesses or experiences an event involving actual or threatened death or serious injury and responds with “intense fear, helplessness and horror” — with documentation.

In addition, traumatic events are usually excessive and not normal to the stressors experienced by an average worker in that occupation.

The act was amended in 2016 to allow compensation for emergency response workers diagnosed with PTSD — with no need to prove it was work-related — but the diagnosis had to have been made after the amendments came into force or if the worker stopped working after the amendments came into force and was diagnosed within 24 months. As a result, the amendments didn’t apply to Hébert’s case.

He appealed to the WHSCC appeals tribunal, which accepted the PTSD diagnosis, but said “a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace” — a position established by the New Brunswick Court of Appeal in its 2005 decision W. (D.) v. New Brunswick (Workplace Health, Safety & Compensation Commission).

It interpreted this to mean that what may normally be witnessed by ambulance attendants in the course of their work should not be considered traumatic events for compensation purposes and was part of the normal course of work. The tribunal denied Hébert’s appeal.

Hébert took his case to the New Brunswick Court of Appeal, arguing both the WHSCC and the appeals tribunal erred in law when they denied his claim.

The court agreed with the principle that “disability caused by mental stress does not constitute compensable injury unless the disability is the result of an acute reaction to a traumatic event.”

It noted that the test for stress-related claims involved determining if the condition arose out of and in the course of employment, and the traumatic event was “sudden and unexpected,” not an employment-related decision, not from gradual or chronic onset stress, and could be measured objectively.

But while the court had previously established in W. (D.) that “a traumatic event (is) one that is sudden and outside the realm of what is expected or usual within the workplace,” it had also acknowledged “it is universally accepted that employees who suffer from post-traumatic stress disorder qualify for compensation benefits, provided, of course, the traumatic event arose out of and in the course of employment.”

As a result, the appeals tribunal erred in interpreting its decision in W. (D.), which “clearly distinguishes between cases where a stress-related condition results in PTSD and those where it does not” — the fact that the employee is diagnosed with PTSD allows the assumption that the event was traumatic, said the court.

This left the only determination to be whether the event was work-related and the reaction was acute.

The court also said the WHSCC and the tribunal erred in interpreting the policy on mental stress, in that while the policy states the traumatic event causing stress “typically is unusual and excessive” compared to what can be expected in the worker’s occupation, this is not true in all cases.

This left the door open for occupations such as first responders — where traumatic events may be expected but aren’t necessarily any easier to deal with — to be eligible for mental stress benefits.

The court also determined the tribunal erred in finding Hébert wasn’t eligible because he couldn’t identify one particular incident that triggered his PTSD.

The policy on mental stress compensation and the court’s decision in D.W. both established that a series of traumatic incidents causing PTSD in a first responder qualify him for workers’ compensation benefits.

The WHSCC was ordered to pay Hébert the benefits for his disability, plus costs.

For more information see:

Hébert c. Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail et autre, 2017 CarswellNB 456 (N.B. C.A.).

Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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