By Jamie Alyce Jurczak, Partner, Taylor McCaffrey LLP
On June 30, 2015, Bill 35 was passed by the Manitoba provincial government amending the Workers Compensation Act (the “Act”) to have Post Traumatic Stress Disorder (PTSD) considered a presumptive workplace injury to any worker who experiences a PTSD-triggering event while on the job in Manitoba. These amendments come into force on a date to be fixed by proclamation.
While the amendments have yet to come into force, it is important for Manitoba employers to understand these amendments and how they mean with respect to Workers Compensation Board (WCB) claims in the future.
By way of background, the WCB was asked by the Manitoba government to get stakeholder views on workers compensation coverage for PTSD. The resulting stakeholder submissions allowed the WCB to prepare a consultation report on these submissions, which led to the amendments. The Manitoba government news release announcing these amendments and the rationale behind them can be found here.
The presumption regarding post-traumatic stress disorder extends coverage and benefits to all workers eligible under WCB who are diagnosed with PTSD by a medical professional. It is currently the only WCB legislation in Canada that provides for coverage to all workers in relation to PTSD. The amendments provide:
Sec. 4(5.8) If a worker
(a) is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders as a trigger for post-traumatic stress disorder; and
(b) is diagnosed with post-traumatic stress disorder by a physician or psychologist;
the post-traumatic stress disorder must be presumed to be an occupational disease the dominant cause of which is the employment, unless the contrary is proven.
The presumption will not apply unless there is a PTSD diagnosis on or after the subsection comes into force. Again, these amendments are not yet in force, but will come into force at a date to be proclaimed in the future.
The amendments provide for the following definition of PTSD: “post-traumatic stress disorder” means Posttraumatic Stress Disorder as that condition is described in the Diagnostic and Statistical Manual of Mental Disorders.”
A definition for “Diagnostic and Statistical Manual of Mental Disorders” (“DSM”) has also been added to the definitions section of the Act, and means “the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.” The DSM (DSM) is the standard classification of mental disorders used by mental health professionals. The Fifth Edition (DSM-5) is the current edition and has been designed for use across clinical settings (inpatient, outpatient, partial hospital, consultation-liaison, clinic, private practice, and primary care), and with community populations. It can be used by a wide range of health and mental health professionals, including psychiatrists and other physicians, psychologists, social workers, nurses, occupational and rehabilitation therapists, and counselors, and it is a tool used for collecting and communicating accurate public health statistics. Further information about the DSM can be found here.
A definition for “psychologist” was added to the Act, in light of the reference “psychologist” in s. 4(5.8). “Psychologist” means “an individual registered as a psychologist under The Psychologists Registration Act or under equivalent legislation in another jurisdiction in Canada.” The definition of “physician” under the Act remains unchanged (“a duly qualified medical practitioner who is lawfully and regularly engaged in the practice of his or her profession in any jurisdiction in Canada”).
Finally, the definition “occupational disease” was also amended to allow for the PTSD presumption. It will now read as follows:
“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment; and
(b.1) that trigger post-traumatic stress disorder
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event.
Note that with the presumption, it is still possible for there to be a finding that a worker is not entitled to coverage, if evidence is provided that rebuts the presumption. The onus would be on the person challenging the presumption to demonstrate the presumption should not apply.