Presumptive Workers Compensation Coverage for First Responders with Occupational Stress Injuries Including Post-Traumatic Stress Disorder

Transcription

1 OFFICE OF THE LEADER OF THE OFFICIAL OPPOSITION Presumptive Workers Compensation Coverage for First Responders with Occupational Stress Injuries Including Post-Traumatic Stress Disorder A Written Submission Pertaining to the WorkplaceNL Review of its Mental Stress Policy and Mental Stress Coverage in the Workers Compensation Legislation Paul Davis, MHA Topsail-Paradise Leader of the Official Opposition February 1, 2018 CONTENTS Introduction... 2 Current Policy... 4 CORE PROPOSAL: Recognizing the Occupational Stress Injuries of First Responders... 7 Nova Scotia New Brunswick Ontario Manitoba Saskatchewan Alberta Page 1 of 52

2 Introduction In a news release dated November 23, 2017, WorkplaceNL announced that it had initiated a review of its mental stress policy (Policy EN-18), and that the goal of the review is to modernize the approach to work-related mental health issues, including post-traumatic stress disorder. The news release referred to a two-stage process, the first of which was described as an immediate policy review, and the second of which was described as follows: In the longer-term, a review of mental stress coverage in the Workers Compensation legislation will be informed by formal research and input from interested parties. WorkplaceNL will accept written submissions pertaining to this review until February 1, In context, the relevant content of the WorkplaceNL news release reads as follows: NEWS RELEASE WorkplaceNL to modernize approach to work-related mental health issues Thursday, November 23, 2017 St. John s, NL WorkplaceNL has initiated a review of its mental stress policy (Policy EN-18). The goal of the review is to modernize the approach to work-related mental health issues, including post-traumatic stress disorder. WorkplaceNL is also partnering with workplace parties to develop occupational health and safety programs that support mental health in the workplace, including workshops and webinars. WorkplaceNL and the Hon. Sherry Gambin-Walsh, Minister Responsible for WorkplaceNL met with interested parties on November 15, 2017 to seek input on the prevention of, and compensation for, work-related mental stress. Potential changes will come from a two-stage process. The first is the immediate policy review, where changes will be informed by a review of mental-health related policies of other Canadian workers compensation boards and consultation with WorkplaceNL s primary stakeholders, the Newfoundland and Labrador Federation of Labour and the Newfoundland and Labrador Employers Council. This is WorkplaceNL s standard policy consultation process. In the longer-term, a review of mental stress coverage in the workers compensation legislation will be informed by formal research and input from interested parties. WorkplaceNL will accept written submissions pertaining to this review until February 1, WorkplaceNL will engage a research partner to conduct research and review literature relating to workrelated mental health issues, particularly as it relates to workplaces in Newfoundland and Labrador. In an interview reported by VOCM News on January 12, 2018, Minister Sherry Gambin- Walsh commented on whether the current review would welcome presentations with Page 2 of 52

3 respect to Workers Compensation coverage for first responders who suffer from occupational stress injuries (OSI) including post-traumatic stress disorder (PTSD). VOCM presented its story as follows: NEWS STORY Review Of Mental Health Policy Regarding First Responders Coming: Gambin-Walsh VOCM News, January 12, 2018, 10:49 am The minister responsible for Workplace NL says there is an ongoing internal review of its mental health policy, but Sherry Gambin-Walsh says a more indepth study hasn t yet begun. The minister was responding to Opposition Leader Paul Davis, who is calling for changes to the policy to ensure first responders who suffer from occupational stress injuries or PTSD get the coverage they need. Davis is urging the public to send written submissions to Workplace NL online. But Gambin-Walsh says Workplace NL will be contracting out to complete a full research study, and says that hasn t happened just yet. The minister says both activities aim to modernize the policy. But right now, she says they re just looking at the mental health policy, which she admits is outdated. A larger consultation process will happen later. Davis wants to see government enact workers compensation legislation containing a presumptive clause with respect to front-line emergency workers, like firefighters, paramedics and police officers. He says first responders are more than twice as likely to attempt suicide. The Minister s comments caused confusion. WorkplaceNL s November 23, 2017 news release clearly made the linkage between the February 1, 2018 submission deadline and the longer-term review of mental stress coverage in the Workers Compensation legislation. According to WorkplaceNL s news release, both stages of the review process were intended to review its mental stress policy (Policy EN-18) and to modernize the approach to work-related mental health issues, including post-traumatic stress disorder. WorkplaceNL s news release specifically mentioned PTSD. Therefore, this presentation reflects precisely what WorkplaceNL asked for in its call for submissions, by addressing the issue of Workers Compensation coverage for work-related mental health issues, including post-traumatic stress disorder for first responders. The focus is on injury or diagnosis resulting from an accumulation of workplace stress that is often experienced by first responders and other classes of workers. Such injuries are not respected or compensable in this province under current rules. Page 3 of 52

4 Current Policy WorkplaceNL s current policy on Mental Stress (Policy EN-18), as referenced in its November 23, 2017 news release, reads as follows: POLICY STATEMENT Client Services Policy Manual Policy Number: EN-18 Subject: Mental Stress Chapter: Entitlement Policy Statement Compensation for mental stress is only considered where disability develops as an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the employment. Mental stress that develops gradually over time due to general workplace conditions, or stress that may be the result of an employer s decision or action relating to the employment of a worker including a decision to change the work to be performed or the working conditions, to conduct disciplinary or investigative processes, to discipline the worker, or to terminate the worker s employment, do not constitute an injury. The merits and justice of each case must be considered. Acute Reaction Mental stress which develops as a result of a traumatic event is considered an acute reaction, even though the reaction may be delayed for days, or even weeks. Delayed acute reaction is not the same as a gradual onset of mental stress which is not compensable under this policy. Traumatic Event A sudden and unexpected traumatic event is one which is considered uncommon with respect to inherent risks of the occupation and is usually horrific, or has elements of actual or potential violence. Examples of traumatic events include, but are not limited to: witnessing a fatality; being the victim of an armed robbery or hostage-taking incident; being subjected to physical violence; and being subjected to death threats where there is reason to believe the threat is serious. Non Compensable Events and/or Conditions Claims arising from events that would generally not be considered traumatic but are traumatic to a worker because of a pre-existing psychological condition will not be accepted. Burn out from usual duties, workplace change, or performance demands is not compensable. Claims Page 4 of 52

5 associated with an employer s work-related actions such as employment termination, demotion, discipline, disciplinary or investigative processes, transfer, work schedules, or performance expectations are not acceptable. Medical Evidence Medical evidence from the treating physician must confirm mental stress resulting from the traumatic event. WorkplaceNL may require medical confirmation under the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) to substantiate ongoing entitlement. Entitlement for other stress-related conditions resulting from psychological conditions or chronic pain following physical injury may be considered under policies EN-19 Arising Out of and in the Course of Employment, HC-13 Health Care Entitlement or EN-07 Chronic Pain. Reference: Workplace Health, Safety and Compensation Act, Sections 2(1)(o), 2(2), 19 and 73. Policies EN-07 Chronic Pain EN-19 Arising Out of and in the Course of Employment HC-13 Health Care Entitlement Amendment History Original Effective Date Revision # The current policy clearly states: Compensation for mental stress is only considered where disability develops as an acute reaction to a sudden and unexpected traumatic event. Mental stress that develops gradually over time due to general workplace conditions [does] not constitute an injury. Mental stress which develops as a result of a traumatic event is considered an acute reaction, even though the reaction may be delayed for days, or even weeks. Delayed acute reaction is not the same as a gradual onset of mental stress which is not compensable under this policy. Claims arising from events that would generally not be considered traumatic but are traumatic to a worker because of a pre-existing psychological condition will not be accepted. Medical evidence from the treating physician must confirm mental stress resulting from the traumatic event. Page 5 of 52

6 In other words, compensation is considered under WorkplaceNL s current policy only if the mental stress develops as a result of a single traumatic event that a treating physician can pinpoint. Compensation is apparently not considered under this policy if the mental stress develops gradually or progressively as a result of the cumulative impact of traumatic events that the person experiences during the course of the person s career. Page 6 of 52

7 CORE PROPOSAL: Recognizing the Occupational Stress Injuries of First Responders First responders include paid and volunteer firefighters, paramedics, emergency medical technicians, police officers, nurses, physicians, allied health professionals, social workers, continuing care assistants, 911 and emergency dispatch workers, provincial and federal correctional officers, search and rescue personnel, and others. First responders are expected to respond to emergency situations where lives are at risk, lives have been lost or injuries have been sustained. In some emergency circumstances, the lives of the first responders are also in jeopardy. At times, a stressful aspect of the experience is the anticipation of things that may or may not transpire: the unforeseen potential for violence that may be faced without notice; the floorboard that may give way in the fire, or the explosion that may envelop you; the contagion that the patient may be exposing you to; the sudden cardiac arrest or uncontrollable bleed that may leave you powerless to save the patient; the story that the traumatized child has yet to tell you; and so forth. First responders have to brace themselves to respond to scenarios that may not occur, but the impact on them may be no less traumatizing, and the cumulative impact may be no less devastating. Pinpointing a particular event a sudden and unexpected traumatic event that caused an acute reaction may be impossible. If that singular event cannot be pinpointed, then it may not even be possible to establish that there was a delayed acute reaction. The problem is that the event may have been the situation, strung out over a period of hours, weeks, months or years. The event may be entirely internal, related to catastrophes that did not occur but that COULD have occurred and that one needed to brace for. Or the event may be relatively innocuous in itself, but layered on a long series of other events, becomes the proverbial straw that broke the camel s back. Yet, WorkplaceNL s current policy on Mental Stress explicitly excludes gradual onset mental stress, and it explicitly excludes events that are traumatic to a worker because of a pre-existing psychological condition a condition created by an accumulation of exposures to trauma in the course of one s career as a first responder. It is wrong to exclude from Workers Compensation coverage an injury that was caused by the circumstances of a first responder s work simply because of an arbitrary line in the sand that was drawn without justification. In this day and age, it is surely wrong to discriminate against a worker because the workplace injury is a mental stress injury. We have progressed too far in recent years to allow workers to be discriminated against because the illnesses they suffer are merely mental health illnesses. The injuries are real; they were caused or aggravated by the workers work and are therefore Page 7 of 52

8 work-related injuries; and the workers are suffering hardships, including financial hardships, because of those injuries. They ought to be protected by the Workers Compensation system. As the Government of Canada states, Workers' Compensation programs protect employees from the financial hardships associated with work-related injuries and occupational diseases. < > In some occupations, the risk of injury or illness has always been great. Asbestos mining was one of them. If a miner developed a lung disease, it was a reasonable presumption that the illness was work related. Efforts to make workplaces less risky have been very successful in many professions; but in some, the risks remain great. According to the International Labour Organization, fishing is one of the world s most dangerous professions, even today < >. So what does one do? One strives to make these workplaces as safe as possible, knowing there will always be risks that go with the job. What about the option of eliminating the risk by eliminating the profession altogether? We rely on the fishing industry. Eliminating that industry is not a reasonable option. We do our very best to make the industry safer, and we admire and commend those who have the courage to do the work; but we also ensure these professionals are quickly and fairly compensated if an unfortunate workplace injury befalls them. That is how the Workers Compensation system is supposed to work. But what about first responders? Could our society function without people to shoulder the responsibilities of these professions? Could our society function without paid and volunteer firefighters, paramedics, emergency medical technicians, police officers, nurses, physicians, allied health professionals, social workers, continuing care assistants, 911 and emergency dispatch workers, provincial and federal correctional officers, search and rescue personnel, and other first responders? No, it could not. We do our very best to lower some of the risks to first responders by providing innovative equipment and training, but we are not so effective in reducing the risks of trauma-related stress, particularly the stresses that pile up quietly over the years and that their toll on the worker s health. It is only in recent years that our society has begun to appreciate more fully the reality of this stress and its debilitating consequences. Unfortunately, the Workers Compensation program has not kept pace with advances in our understanding of occupational stress injuries including post-traumatic stress disorder. At a time when they may be barely capable of coping with their lives because of post-traumatic stress, they must endure the added stress of proving they have been traumatized by their work. Page 8 of 52

9 The situation is not just cruel, but patently unjust and irresponsible. Workers' Compensation programs must protect first responders from the financial hardships associated with work-related stress injuries and occupational diseases they suffer. The Workers Compensation program must be brought into the modern era to cover occupational stress injuries such as post-traumatic stress disorder suffered by first responders. Moreover, the system ought to recognize that the work of first responders is intrinsically stressful, and a diagnosis of a stress injury such as PTSD in such a person should be presumed to be work related. The Workers Compensation program ought to include a presumptive clause that relieves a first responder of having to prove that a diagnosed stress injury such as PTSD is work related. The first responder should not be obligated to associate the injury with a particular traumatic event that induced an acute response. The reality of cumulative, gradual-onset stress injuries ought to be recognized and affirmed in our Workers Compensation system. Otherwise, first responders dealing with debilitating injuries may be financially and mentally incapable of dealing with the injuries their work has caused them to suffer. They may slip into poverty, unable to work, suffer from interpersonal relationship difficulties, inappropriate or excessive use of alcohol or drugs, or they may continue to work, unable to afford to take time away to heal. Failure to properly recognize and treat an OSI such as PTSD can lead to terrible consequences. Lives have been lost to self-harm because of poorly treated or untreated PTSD. Our society is becoming well aware of those consequences. It is no longer acceptable to contend that gradual-onset OSI such as PTSD in first responders is not work related. It would be morally wrong to fail to adjust public policies accordingly. Other jurisdictions have taken the lead in adjusting their Workers Compensation policies, and we ought to follow their lead. Other provinces, including Nova Scotia, New Brunswick, Ontario and Alberta, have introduced presumptive coverage legislation for first responders. They have, in effect, recognized PTSD as an illness that is often the result of an accumulation of repeated exposures and experiences that first responders have in the course of their careers. Other jurisdictions haven t just made a policy change; they introduced legislation and made laws pertaining to presumptive coverage for applicable classifications of workers. This presentation considers what those other jurisdictions have done. I therefore recommend acceptance of the best practices established by the provinces of Nova Scotia, New Brunswick, Ontario and Alberta as the best course of action for Newfoundland and Labrador. It would be a reasonable, responsible and defensible step forward for Newfoundland and Labrador to follow the lead of Nova Scotia, New Brunswick, Ontario and Alberta by Page 9 of 52

10 extending presumptive Workers Compensation coverage to all first responders in this province who have been diagnosed with PTSD. The Canadian Labour Congress provided an overview of the legislative provisions of the provinces that have them. That overview which is now a little outdated (as it excludes Nova Scotia and requires an update for Alberta) is presented here and then followed by detailed information for each of the provinces that have legislated provisions. OVERVIEW Work-related PTSD There is a growing recognition that workplaces can be a direct cause of post-traumatic stress disorder (PTSD). It is generally harder to prove that a mental illness is a workplace injury, because there are so many factors involved. For example, a high-stress environment may contribute to an episode of mental illness, but it s not easy to demonstrate the connection. But 6 provinces have passed legislation that makes a direct link between psychological disorders like PTSD and workplace trauma. Under most of these laws, some workers diagnosed with PTSD will be able to claim workers compensation benefits without having to prove that their illness was caused by their workplace. This kind of legislation presumes that the PTSD is a workplace injury. Only in Manitoba & Saskatchewan are all workers covered by this legislation, in rest of the provinces only some first responders are covered. Here are links and information about work-related PTSD in each of the provinces that have legislation covering it. New Brunswick In 2016, New Brunswick passed legislation that presumes if firefighters, police officers, sheriffs and paramedics are diagnosed with PTSD that it was caused by issues they dealt with on the job. Page 10 of 52

11 Ontario In 2016, Ontario passed legislation creating a presumption that PTSD in first responders is a workplace injury. The legislation covers workers in these jobs: Police, including First Nations constables, and chiefs of police Full-time, part-time, and volunteer firefighters, fire investigators, and fire chiefs Paramedics, emergency medical attendants, and ambulance service managers Emergency service dispatchers Correctional officers and youth service workers Emergency response team members dispatched by a communications officers The Ontario government has general information about the legislation in English and in French Ontario has a PTSD Resource Toolkit for first responders here: (It is available in English only.) Manitoba In Manitoba, if a worker is exposed to certain types of traumatic events and is diagnosed with Post-Traumatic Stress Disorder (PTSD), the WCB can presume the PTSD is caused by the worker's employment, unless the contrary is proven. In other words, it is not up to the worker to prove that the workplace caused PTSD. This legislation applies to all workers, and not just first responders Manitoba is the first province to provide this coverage for all workers. The Workers Compensation Board of Manitoba has an overview here: There is more detailed information at (Click View File at bottom right to open the document.) Saskatchewan In 2016, Saskatchewan updated its Workers Compensation Act. The law now says that if a worker suffers a psychological injury because of traumatic events that took place at work, it will be presumed that the injury is a result of the workplace trauma. Saskatchewan s law covers all workers, and not just first responders. Saskatchewan is also the only province that does not limit presumption to PTSD, but includes all forms of psychological injury. Page 11 of 52

12 The presumption that a worker s mental illness was caused in the workplace is rebuttable though. That means that workers are given the benefit of the doubt, but employers can still challenge the decision. The Saskatchewan Workers Compensation Board has a factsheet on the changes here: Alberta In 2012, Alberta became the first province to recognize presumptive coverage for PTSD. Under Alberta law, if first responders are diagnosed with PTSD, it will be assumed that their illness was caused by their work, and they will be eligible for WCB coverage. The law applies to emergency medical technicians, firefighters, sheriffs, and police officers (excluding members of the RCMP). The Workers Compensation Board of Alberta has a PTSD factsheet here: British Columbia British Columbia s WCB, called WorkSafeBC, does cover mental disorders. However, the province does not have legislation presuming that a worker s psychological injury is linked to workplace trauma. Under current BC law, workers have to prove that their psychological injury is linked to traumatic events at work they don t get the benefit of the doubt. (The relevant clause in the legislation is here WCB Section 5.1 BC also recognizes workplace bullying and harassment as situations which can lead to compensation. WorkSafeBC has information on how psychological injuries are covered here: Below are the details on the respective provinces with legislated provisions. Page 12 of 52

13 Nova Scotia In 2017, the Legislature of Nova Scotia passed the following Bill to amend the Workers Compensation Act. Note in particular subsection 12A(2), which reads: Subject to subsections (3) to (5), where a front-line or emergency-response worker is diagnosed with post-traumatic stress disorder by a prescribed diagnostician, the post-traumatic stress disorder is, unless the contrary is shown, presumed to have arisen out of and in the course of the worker's employment in response to a traumatic event or a series of traumatic events to which the worker was exposed in carrying out the worker's duties as a front-line or emergency-response worker. LEGISLATION BILL NO. 7 (as passed, with amendments) 1st Session, 63rd General Assembly, Nova Scotia, 66 Elizabeth II, 2017 Government Bill: Workers' Compensation Act (amended) CHAPTER 16 OF THE ACTS OF 2017 The Honourable Labi Kousoulis, Minister responsible for Part I of the Workers' Compensation Act First Reading: September 27, 2017 (LINK TO BILL AS INTRODUCED) Second Reading: October 3, 2017 Third Reading: October 24, 2017 (WITH COMMITTEE AMENDMENTS) Royal Assent: October 26, 2017 An Act to Amend Chapter 10 of the Acts of , the Workers' Compensation Act Be it enacted by the Governor and Assembly as follows: 1 Section 2 of Chapter 10 of the Acts of , the Workers' Compensation Act, is amended by striking out "pneumonoconiosis" in the last line of clause (v) and in the first line of clause (x) and substituting in each case "pneumoconiosis". 2 Clause 6(1)(c) of Chapter 10 is amended by striking out "College" in the second line and substituting "Colleges". 3 Chapter 10 is further amended by adding immediately after Section 12 the following Section: 12A (1) In this Section, (a) "front-line or emergency-response worker" means a continuing-care assistant, correctional officer, emergency-response dispatcher, firefighter, nurse, paramedic, police officer or person in an occupation prescribed by the regulations; (b) "post-traumatic stress disorder" means posttraumatic stress disorder as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association; (c) "prescribed diagnostician" means a person prescribed by the regulations who may diagnose a Page 13 of 52

14 worker with post-traumatic stress disorder for the purpose of this Section. (2) Subject to subsections (3) to (5), where a front-line or emergency-response worker is diagnosed with post-traumatic stress disorder by a prescribed diagnostician, the post-traumatic stress disorder is, unless the contrary is shown, presumed to have arisen out of and in the course of the worker's employment in response to a traumatic event or a series of traumatic events to which the worker was exposed in carrying out the worker's duties as a front-line or emergencyresponse worker. (3) The presumption created by subsection (2) applies on and after the date prescribed by the regulations, which date may be before, on or after the date on which subsection (2) comes into force. (4) The presumption created by subsection (2) applies if the worker is diagnosed (a) while the worker is employed as a front-line or emergency-response worker; or (b) within the period prescribed by the regulations following the worker ceasing to be employed as a front-line or emergency-response worker. (5) A worker is not entitled to benefits under this Act for post-traumatic stress disorder if it is shown that the worker's post-traumatic stress disorder was caused by a decision or action of the worker's employer relating to the worker's employment, including a decision to (a) change the work to be performed or the working conditions; (b) discipline the worker; or (c) terminate the worker's employment. (6) Subject to the regulations, the Board shall assist a front-line or emergency-response worker who is entitled to benefits for post-traumatic stress disorder under this Act in obtaining treatment from a culturally competent clinician who is familiar with the research concerning treatment for post-traumatic stress disorder. (7) Where a worker has filed a claim in respect of post-traumatic stress disorder before the coming into force of this Section and the claim has been denied, the worker may re-file the claim under this Section unless prohibited from doing so by the regulations. (8) The Governor in Council may make regulations (a) prescribing occupations for the purpose of the definition of front-line or emergency-response worker; (b) prescribing persons as prescribed diagnosticians; (c) prescribing the date on and after which the presumption created by subsection (2) applies, which prescribed date may be before, on or after the date on which subsection (2) comes into force; (d) prescribing the period following the worker ceasing to be employed as a front-line or emergency-response worker within which a diagnosis of post-traumatic stress disorder must be made for the presumption created by subsection (2) to apply; Page 14 of 52

15 (e) respecting the obligation of the Board to assist a front-line or emergency-response worker under subsection (6); (f) respecting the circumstances in which a worker is prohibited from re-filing a claim under subsection (7); (g) defining "continuing-care assistant", "correctional officer", "emergency-response dispatcher", "firefighter", "nurse", "paramedic", "police officer" and any other word or expression used but not defined in this Section; (h) respecting any matter the Governor in Council considers necessary or advisable to effectively carry out the intent and purpose of this Section. (9) The exercise by the Governor in Council of the authority contained in subsection (8) is regulations within the meaning of the Regulations Act. 4 Clause 13(1)(a) of Chapter 10 is amended by striking out "pneumonoconiosis" in the second and third lines and substituting " pneumoconiosis ". 5 (1) Clause 14(1)(b) of Chapter 10 is amended by striking out "pneumonoconiosis" in the third line and substituting " pneumoconiosis ". (2) Subsection 14(4) of Chapter 10 is amended by striking out "pneumonoconiosis" in the fifth line and substituting "pneumoconiosis". 6 (1) Section 83 of Chapter 10 is amended by adding immediately after subsection (2) the following subsection: (2A) In the case of post-traumatic stress disorder as defined in Section 12A, the Board shall not pay compensation except where (a) the worker has given the employer notice of the injury as soon as practicable after the worker is diagnosed with post-traumatic stress disorder; and (b) the worker's claim for compensation is made within the period prescribed by the regulations after the worker is diagnosed with post-traumatic stress disorder in accordance with Section 12A and the regulations made under that Section. (2) Section 83 of Chapter 10 is further amended by adding immediately after subsection (4) the following subsection: (4A) The notice required pursuant to clause (2A)(a) shall contain the particulars set out in subsection (3) and is to be given to the employer who last employed the worker in the employment causing the post-traumatic stress disorder. (3) Subsection 83(6) of Chapter 10 is amended by (a) striking out "or" at the end of clause (a); (b) striking out the comma at the end of clause (b) and substituting "; or"; and (c) adding immediately after clause (b) the following clause: Page 15 of 52

16 (c) the date when the worker is diagnosed with post-traumatic stress disorder, (4) Section 83 of Chapter 10 is further amended by adding immediately after subsection (6) the following subsections: (7) The Governor in Council may make regulations prescribing the period for the purpose of clause (2A)(b). (8) A regulation made under subsection (7) may be of general application or may apply in respect of a worker on the basis of when the worker is diagnosed with post-traumatic stress disorder in accordance with Section 12A and the regulations made under that Section, and there may be different regulations in respect of workers diagnosed at different times. (9) The exercise by the Governor in Council of the authority contained in subsection (7) is regulations within the meaning of the Regulations Act. 7 Clause 89(1)(b) of Chapter 10 is amended by striking out "sub-class" in the first line and substituting "subclass". 8 Subsection 124(4) of Chapter 10 is amended by striking out "ratably" in the second line and substituting "rateably". 9 Clause 143(4)(b) of Chapter 10 is amended by striking out "set off" in the second line and substituting "set-off". 10 Subsection 160(1) of Chapter 10, as amended by Chapter 1 of the Acts of 1999, is further amended by striking out "April 1st" in the third line and substituting "June 30th". 11 The heading immediately before Section 185 is repealed and "DECISION-MAKING" substituted. 12 This Act comes into force one year after the day on which it receives Royal Assent. The Government of Nova Scotia issued the following news release on September 27, 2017: NEWS RELEASE Amendments Improve Access to PTSD Benefits Labour and Advanced Education September 27, :16 PM Government is making it easier for front-line and emergency response workers diagnosed with posttraumatic stress disorder (PTSD) to access benefits. Amendments to the Workers Compensation Act introduced today, Sept. 25, will ensure covered workers no longer have to prove their PTSD diagnosis was caused by a workplace incident. Our front-line and emergency response workers have often witnessed great tragedy, sadness, and loss Page 16 of 52

17 when helping those in need, said Labour and Advanced Education Labi Kousoulis. We want to make it easier for those who suffer from PTSD to access benefits and treatment. These changes are a step in the right direction. I m pleased that the Nova Scotia government has listened to the concerns of front line and emergency response workers and is addressing them through these amendments, said Vince Savoia, founder and executive director, Tema Conter Memorial Trust. This will help ensure police officers, firefighters, paramedics and other frontline workers get the care they need when they need it. During the summer, government talked to employees and employers about barriers to coverage and treatment for workers diagnosed with post-traumatic stress disorder. The consultation involved nurses, first responders, correctional services, paramedics, psychiatrists, health sector workers and other organizations. Feedback helped shape the amendments and will inform the upcoming regulations. While occupational stress due to traumatic events, including PTSD, has always been covered under the Workers Compensation Act, for all workers, it currently requires covered workers to prove their diagnosis is a direct result of a workplace incident. Some PTSD sufferers avoid getting help because of this process. The proposed amendments will: -- clarify that PTSD is presumed to be a result of an incident during employment -- define who is eligible for presumptive PTSD benefits. This will include police, paid and volunteer firefighters, paramedics, nurses, continuing care assistants, 911 and emergency dispatch workers, and provincial and federal correctional officers with workers compensation coverage -- allow coverage for other occupations to be added by regulation -- outline that new regulations will establish who can diagnose PTSD and time limits for eligibility. The province is committed to addressing workplace mental health, and the introduction of these amendments is part of this effort. The amendments will take effect one year from royal assent to allow time for government to work with stakeholders to develop the supporting regulations. A summary of consultations can be found at The Government of Nova Scotia published a What We Heard document to summarize the feedback. REPORT What We Heard: Workers Compensation Act Amendments to Provide the Benefit of Presumption for Post Traumatic Stress Disorder Supports for psychological injuries in the workplace, including PTSD, are already covered under the Workers Compensation Act. But two challenges have arisen in relation to PTSD, especially as experienced by frontline and emergency response workers: It can be difficult to tell if a specific workplace incident caused the PTSD. Page 17 of 52

18 Workers suffering from PTSD may be reluctant to make a claim because of the stigma attached to mental illnesses. To help address these challenges, government proposed changes to the Workers Compensation Act to ensure that those frontline and emergency response workers who are covered by the Workers Compensation Board of Nova Scotia get the care they need when they need it. Government consulted with stakeholders on these proposed changes. The consultations took place from July 21 to September 15, 2017, and engaged over 150 individuals from about 40 organizations through interviews, focus groups, and written submissions. This summary report presents findings from the consultation process. FEEDBACK Across the consultation sessions, we heard consistent support for the idea of improving access to treatment and services for frontline and emergency response workers with PTSD. We also heard about possible challenges that could arise from these changes and potential solutions. Positive impacts of the proposed changes Almost all consultation participants identified potential positive impacts of the proposed changes: A quicker approval process for WCB claims could lead to improved access to care and treatment. A reduction in employee time off work/sick time due to undiagnosed mental illness or stress. A more streamlined claims process could mean reduced stress and trauma for those submitting a WCB claim. Increased attention to and awareness of PTSD would reduce the stigma associated with it. Possible challenges identified Participants identified possible challenges that could result from the proposed changes: Costs could be higher than projected. Access to registered psychologists and psychiatrists could be further constrained. The system is currently limited to access supports and service for treatment and return to work. The scope of workers with equal exposure is missing. The need for greater time to get a diagnosis; Time limits for eligibility are too constrained. Potential solutions proposed Participants proposed the following solutions to the challenges identified: Ensure that employers, employees, government, and the WCB have clarity in their roles with regard to supporting those suffering with PTSD. Create communications devices such as websites or plain language documents to help workers, family members, and employers navigate the process. Work together government, employers, employees, and WCB to identify what would enhance the return to work program for suffers, such as quicker access to care, flexible treatment options, and alternative work placements. Strengthen and expand the mental health care system in Nova Scotia, increase efforts to prevent PTSD, and create supportive organizational cultures, especially within organizations that employ frontline and emergency response workers. GOVERNMENT S NEXT STEPS The valuable information gathered through the consultations helped shape the new Workers Page 18 of 52

19 Compensation Act amendments being introduced in the House this fall. The proposed legislation Establishes the nature and the scope of the presumption. Establishes an initial list of workers who may have access to the presumption called frontline or emergency response workers. Clarifies that a PTSD diagnosis is connected to a workplace incident. Establishes a PTSD diagnosis as a prerequisite to the presumption. Frontline or emergency response workers are: Police, firefighters (paid and volunteer ), paramedics, nurses, continuing care assistants, provincial and federal correctional officers, and emergency dispatchers. The legislation will also create authority for regulations. Government and the WCB will spend the next year focusing on regulatory development to address some of the challenges raised during consultation. We will work with stakeholders as the details of the regulations unfold. The regulations will ensure that The occupations listed under frontline or emergency response workers are well defined and adequately represented. Other occupations that may be exposed to similar traumatic events and are equally at risk can be added. Those given the authority to diagnose have the ability and expertise needed. Timelines for eligibility of presumption are clear. Legislative amendments take effect one year from Royal Assent in fall Page 19 of 52

20 New Brunswick In 2016, the Legislature of New Brunswick passed amendments to the Workers Compensation Act to include the following sections. Note in particular subsection 7.1(2), which reads: Subject to this section, if an emergency response worker is diagnosed with post-traumatic stress disorder by a psychiatrist or psychologist, it shall be presumed, unless the contrary is shown, that the post-traumatic stress disorder arose out of and in the course of the worker s employment in response to a traumatic event or a series of traumatic events to which the worker was exposed in carrying out the worker s duties as an emergency response worker. LEGISLATION 7.1(1) The following definitions apply in this section. emergency response worker means a firefighter, a paramedic or a police officer.(intervenant d urgence) firefighter means a firefighter as defined in the Firefighters Compensation Act. (pompier) paramedic means a person whose name is entered in the register kept pursuant to paragraph 10(1)(a) of An Act Respecting the Paramedic Association of New Brunswick.(travailleur paramédical) police officer means a police officer as defined in the Police Act.(agent de police) post-traumatic stress disorder means post-traumatic stress disorder as that condition is described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.(état de stress post-traumatique) psychiatrist means a psychiatrist as defined in the Mental Health Act.(psychiatre) psychologist means an individual who is a member of the College of Psychologists of New Brunswick and holds a licence issued under The College of Psychologists Act or an individual who is practising as a psychologist outside New Brunswick who is recognized as a psychologist by the licensing body of the jurisdiction in which that person practises. (psychologue) 7.1(2) Subject to this section, if an emergency response worker is diagnosed with post-traumatic stress disorder by a psychiatrist or psychologist, it shall be presumed, unless the contrary is shown, that the post-traumatic stress disorder arose out of and in the course of the worker s employment in response to a traumatic event or a series of traumatic events to which the worker was exposed in carrying out the worker s duties as an emergency response worker. 7.1(3) A worker is entitled to be paid compensation under this Act if (a) the worker (i) is an emergency response worker or was an emergency response worker on or after the day this section comes into force, and (ii) is or was diagnosed with post-traumatic stress disorder by a psychiatrist or psychologist; and Page 20 of 52

21 (b) for the worker who (i) is an emergency response worker at the time the worker claims compensation under this Act, the diagnosis of post-traumatic stress disorder was made by a psychiatrist or psychologist on or after the day this section comes into force, or (ii) ceases to be an emergency response worker on or after a day this section comes into force, the diagnosis of post-traumatic stress disorder was made by a psychiatrist or psychologist no later than 24 months after the day on which the worker ceases to be an emergency response worker. 7.1(4) An emergency response worker who is entitled to benefits under this Act for post-traumatic stress disorder is entitled to receive treatment by a psychiatrist or psychologist who is familiar with the research concerning treatment for post-traumatic stress disorder. 2016, c.24, s.1 New Brunswick s initiative was addressed in a news article by the Canadian Press. NEWS ARTICLE N.B. introduces compensation legislation for first responders with PTSD The Canadian Press Published Friday, April 1, :12PM ADT Last Updated Friday, April 1, :13PM ADT FREDERICTON -- The wife of one of the three Mounties shot and killed in New Brunswick in June 2014 is applauding the provincial government's efforts to help first responders suffering with post-traumatic stress disorder. Angela Gevaudan says new legislation introduced Friday will help tear down the stigma associated with PTSD. "The stigma that is associated to post-traumatic stress is part of the reason why so many people don't ask for help when they start experiencing symptoms and the earlier you ask for help, the easier it is to treat the issue," Gevaudan said Friday. The amendments to the Workers' Compensation Act mean that when first responders such as police officers and firefighters are diagnosed with PTSD, it will be presumed that the condition is the result of events they experienced in their job. They will be entitled to be paid compensation. Gevaudan says reliving the events in an effort to prove to your employer that you are struggling is retraumatizing, but the changes will mean that affected first responders can now focus on healing. Gevaudan, whose husband Fabrice was killed June 4, 2014 in Moncton when gunman Justin Bourque Page 21 of 52

22 when on a shooting spree, says PTSD is a difficult issue and one that she is dealing with personally. Constables Doug Larche and Dave Ross were also killed by Bourque, while constables Eric Dubois and Darlene Goguen were injured. The idea for the legislation was the result of a private members bill introduced last year by Progressive Conservative member Ross Wetmore. Page 22 of 52

23 Ontario In 2016, the Legislature of Ontario passed the following Bill to amend the Workplace Safety and Insurance Act, 1997 and the Ministry of Labour Act with respect to posttraumatic stress disorder. Note in particular subsection 14(6), which reads: For the purposes of subsection (3), the posttraumatic stress disorder is presumed to have arisen out of and in the course of the worker s employment, unless the contrary is shown. LEGISLATION Supporting Ontario's First Responders Act (Posttraumatic Stress Disorder), 2016, S.O. 2016, c. 4 - Bill 163 CHAPTER 4 An Act to amend the Workplace Safety and Insurance Act, 1997 and the Ministry of Labour Act with respect to posttraumatic stress disorder Assented to April 6, 2016 Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: Workplace Safety and Insurance Act, Subsection 13 (4) of the Workplace Safety and Insurance Act, 1997 is amended by striking out subsection (5) and substituting subsections (5) and 14 (3). 2. The Act is amended by adding the following section: Posttraumatic stress disorder, first responders and other workers Definitions 14. (1) In this section, ambulance service has the same meaning as in subsection 1 (1) of the Ambulance Act; ( service d ambulance ) ambulance service manager means a worker employed in an ambulance service who manages or supervises one or more paramedics and whose duties include providing direct support to paramedics dispatched by a communications officer on a request for ambulance services; ( chef de service d ambulance ) band council means a council of the band as defined in subsection 2 (1) of the Indian Act (Canada); ( conseil de bande ) communications officer means a communications officer for the purposes of the Ambulance Act; ( agent de répartition ) correctional institution means a correctional institution as defined in section 1 of the Ministry of Page 23 of 52

24 Correctional Services Act or a similar institution operated for the custody of inmates; ( établissement correctionnel ) correctional services officer means a worker who is directly involved in the care, health, discipline, safety and custody of an inmate confined to a correctional institution, but does not include a bailiff, probation officer or parole officer; ( agent des services correctionnels ) emergency medical attendant has the same meaning as in subsection 1 (1) of the Ambulance Act; ( ambulancier ) firefighter means, (a) a firefighter as defined in subsection 1 (1) of the Fire Protection and Prevention Act, 1997, or (b) a worker who, (i) is employed by a band council and assigned to undertake fire protection services on a reserve, or (ii) provides fire protection services on a reserve, either as a volunteer or for a nominal consideration, honorarium, training or activity allowance; ( pompier ) fire investigator means, (a) a worker to whom the Fire Marshal appointed under subsection 8 (1) of the Fire Protection and Prevention Act, 1997 has delegated the duty to investigate the cause, origin and circumstances of a fire, (b) a worker who was an inspector appointed under subsection 2 (4) of the Fire Marshals Act before that Act was repealed by the Fire Protection and Prevention Act, 1997, or (c) a worker who is employed by a band council and assigned to investigate the cause, origin and circumstances of a fire on a reserve; ( enquêteur sur les incendies ) full-time firefighter means a worker who is a firefighter, is regularly employed on a salaried basis and is scheduled to work an average of 35 hours or more per week; ( pompier à temps plein ) member of an emergency response team means a person who provides first aid or medical assistance in an emergency, either as a volunteer or for a nominal consideration, honorarium or training or activity allowance, and who is dispatched by a communications officer to provide the assistance, but does not include an emergency medical attendant, a firefighter, a paramedic or a police officer; ( membre d une équipe d intervention d urgence ) operational manager means a worker who directly supervises one or more correctional services officers; ( chef des opérations ) paramedic has the same meaning as in subsection 1 (1) of the Ambulance Act; ( auxiliaire médical ) part-time firefighter means a worker who is a firefighter and is not a volunteer firefighter or full-time firefighter; ( pompier à temps partiel ) Page 24 of 52