Law Times

Page 10 OctOber 17, 2016 • Law times www.lawtimesnews.com Do PTSD laws open door to other sufferers? BY JUDY VAN RHIJN For Law Times C ounsel on both sides of the workers compensa- tion bar are approving legislation that creates a presumption that post-traumat- ic stress disorder diagnosed in first responders is work related. Lawyers also agree it might also open the door for other stress- related conditions to be recog- nized in labour claims. "We are pleased with the change. It's a bit overdue," says Cézanne Charlebois, a certified specialist in workplace safety and insurance law at Charlebois Associates in London, Ont. Charlebois, who represents employers, says, "It was a waste of adjudicative resources in the [the Workplace Safety and In- surance Board] to spend time establishing causation when we did not have to. "First responders unques- tionably work in an objectively traumatic environment. Get- ting that off the table is wise and prudent," she says. Antony Singleton, a lawyer in Toronto who represents workers with WSIB claims and appeals, says he was not surprised by the enactment of the Support- ing Ontario's First Responders Act in April 2016. e act ap- plies to police officers, firefight- ers, paramedics, some workers in correctional institutions and secure youth justice facilities, emergency response teams and police, firefighter and ambu- lance services dispatchers. "ere has been a long cam- paign by the police associa- tion and other politically well- connected unions," he says. "It was just a matter of time." Singleton is of the opinion that the legislation did not go far enough. "PTSD is a small subset of mental illness, and first re- sponders are a small subset of the workers affected. In my mind, they've chosen the nar- rowest policy to change legisla- tion," he says. erefore, Singleton believes that the categories of injuries and mental illnesses should be broadened. "e question is, like a physi- cal injury, did the work contrib- ute to the injury? It shouldn't matter if you are a police officer or a garbage collector and have a hurt arm or a mental illness," he says. "If you can prove work contributed to the development of a mental illness, it shouldn't matter what it is." Charlebois also agrees that it may be appropriate to broaden the people to which the act ap- plies. "e nature of first respond- ers is unique," she says. "ere are some other jobs that were excluded from the list that may be facing difficulties, such as pro- bation and parole officers, nurses and also child protection work- ers. Down the road it's very likely there will be requests that the presumption apply to a broader range of mental illnesses. "ere may be lobbying and appeals for a non-PTSD trau- matic injury to be included in this legislation, such as adjust- ment disorders and major de- pressive disorders," she adds. Singleton says that on three occasions the Workplace Safety and Insurance Appeals Tribu- nal has ruled that the exclusion of chronic mental stress claims from worker's compensation in Ontario is unconstitutional. "Something has to be done, but I've heard absolutely noth- ing about what change is com- ing or when," he says. In the meantime, faced with making constitutional chal- lenges at the tribunal every time, workers are abandoning their claims, says Singleton. "I try to find ways to make it cheaper and quicker now there's a settled body of law, but it's hard for individuals to do. Only those people who have the fortitude to find a lawyer or paralegal try," he says. "When I tell them the news, that it will take three years to get it fixed, it's very unappeal- ing. My feeling is that most peo- ple who have benefits denied for this reason just give up." According to Charlebois, the new legislation means employ- ers face a new burden. "Instead of looking at causa- tion, we now have to look at the di- agnosis of PTSD," she says. "More claims will be allowed with en- titlement for first responders, but there is a need to address [WSIB] case managers accepting that a diagnosis of PTSD presumes a 100-per-cent total occupational disability, which is against the current approach to integrate and destigmatize mental illness. To be realistic, PTSD is more nu- anced than that." Charlebois states that WSIB adjudicators oen make pre- sumptions that workers are to- tally unable to return to work. "Treating psychologists con- tinue to write vague notes ac- cepted by case management that make the case grow inor- dinately. e case manager and treating psychologist keep the person off work for a year or even two years . . .," she says. "It puts the employer in a terrible position and it's absolutely in- correct. ere is no way to make that assumption." Charlebois says the employer must respond by taking a proac- tive role in the management of claims and focus all its efforts on returning the injured person to work. "Even though the case man- ager and the treating psycholo- gist are saying 'no,' employers must disregard the automatic assumptions and move forward with return to work," she says. "ey need to offer a different job that is flexible and accom- modating to help the worker successfully return to work at a supported and gentle pace as soon as possible." LT FOCUS Cézanne Charlebois says she is pleased with laws that presume that PTSD diag- nosed in first responders is work related. What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2016-10-12 10:02 AM

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