Mental Health on the Front-line: Legal Barriers to Psychological Injury Compensation for Public Safety Personnel

Contributed by Souhila Baba and Andréanne Angehrn

Post-Traumatic Stress Disorder

Public Safety Personnel (PSP) such as first responders, firefighters, police and correctional officers, often see their work as a duty, public service, and vocation. But what happens when this line of work becomes the source of an illness? This is the case for Natalie Harris, a paramedic from Ontario, and one of the many PSP who developed Post-Traumatic Stress Disorder (PTSD) due to the traumatic nature of her work. The likelihood of experiencing at least one traumatic event for Canadians is extremely high (74.2% for women and 81.3% for men), and approximately 15% to 24% of the individuals who experience a traumatic event will develop PTSD. However, among PSP trauma is a regular occurrence. PTSD is characterized by symptoms of hyperarousal, avoidance, intrusive memories and numbing, and approximately 9% of Canadians, and more than 21% of PSP workers, will go on to develop PTSD. Living through or witnessing life-threatening events, such as car accidents, physical or sexual assaults, and natural disasters, among others, can be the cause of PTSD. As the occurrence of traumas multiply, so does the risk of developing PTSD. Moreover, PTSD is often associated with other mental health problems such as depression, anxiety disorders, alcohol and/or substance dependence and/or abuse, as well as heightened suicide ideation and attempts. Particularly, more than 50 Canadian PSP took their own lives in 2017 and more than 27% reported having considered suicide in their lifetime. Natalie Harris has not yet returned to work after her PTSD diagnosis, but she is devoted to increasing awareness and legal support for others, who just like her, have to face unimaginable trauma as part of their 9-to-5 job.

The Legislative Issue

A team of experts led by Dr. Nicholas Carleton at the University of Regina conducted a nation-wide study of PSP (defined as dispatchers, correctional workers, firefighters, police officers, paramedics, and RCMP officers) and their experiences of general mental disorder symptoms. From a sample of 5,813 first responders, the results suggested that the prevalence of mental disorders in this cohort was significantly higher than that of the general public. However, because of sampling differences, direct comparisons were not possible. As such, what this study suggested is that this group is potentially at a greater risk of suffering from a mental disorder than the rest of the population. In light of these considerations, certain provinces, notably Alberta, Manitoba, New Brunswick, Ontario, and Saskatchewan have legislated a presumption of causality between the development of a mental disorder, like PTSD, and the workplace for certain professions. Consequently, the process of worker’s compensation for a workplace injury is facilitated and simplified. In Québec, however, there are no such presumptions for first responders, which forces them to go through the regular channel for workplace compensation. This process can become time-consuming, stressful, and expensive.

Firefighters.jpg Public safety personnel, such as firefighters, have a heightened propensity to developing mental health issues, including post-traumatic stress disorder || (Source: Flickr // Heather Paul )

The Administrative and Legal Framework

In Ontario, a first responder who develops PTSD stemming from witnessing or experiencing a distressing event benefits from the presumption that this diagnosis is a workplace injury (s.14, Workers Safety and Insurance Act). As such, if they present to the Workers Safety and Insurance Board (WSIB) with a diagnosis of PTSD by a psychologist or a psychiatrist, their claim should be presumed valid. This is, however, a rebuttable presumption, meaning that the WSIB or the employer can deny a claim if they believe that the PTSD did not in fact stem from the workplace environment. The first responder can then appeal this decision by using an “intent to object” form and requiring the Appeal Resolution Officer (ARO) to reconsider the decision. Up to this point, all of the decisions are administrative, passing directly through the WSIB framework. If the first responder wants to pursue the claim further by appealing to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), then the WISB or the employer will have to show, on a balance of probabilities, that the injury (i.e., the PTSD) did not stem from the workplace. The first responder in this example does not have the burden of proof.

Up to the stage of appeal to the Tribunal Administratif du Travail (TAT), the procedure in Québec  is quite similar in that it is an administrative decision through the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). However, if a first responder decides to appeal to the TAT, then the burden of proof is on them to show, on a balance of probabilities, that the PTSD diagnosis was in fact a workplace injury to enable them to be compensated through CNESST. This major difference in the two frameworks (between Ontario and Québec) possibly reflects a different understanding of the link between first responders’ daily work and their mental health. Additionally, presumption schemes are not unknown to the Québec framework. Indeed, the Act Respecting Industrial Accidents and Occupational Diseases, which governs CNESST, contains presumptions of causality for various diseases caused by infectious or physical agents (Schedule I). None of the diseases, however, are related to mental health.

The Missing First Responders: The Case of Nurses

An important group of professionals missing from the Ontario legislation (s.14(2)) and the nation-wide study mentioned above, are nurses. Often subject to violence in the workplace, nurses, especially emergency and psychiatry nurses, are at the highest risk (across health sector professionals) of experiencing such violence. Moreover, this type of violence is gendered, with women nurses overwhelmingly being the target of workplace violence. In the United States, workplace violence is the second leading cause of occupational deaths in women. Instances of violence or trauma, even a single event, can lead to the development of mental health issues, particularly PTSD. To counter this, the Registered Nurses’ Association of Ontario (RNAO) is currently lobbying for their profession to be included in the list of first responders benefiting from a presumption of causality regarding PTSD as a workplace injury. Moreover, the government of Ontario issued a news release in December 2017, stating the need to include nurses in the presumption legislation.

fence.jpg Front-line workers including nurses face legal barriers to receiving workplace compensation for mental health injuries || (Source: Flickr // Daniel Steinberg )

In contrast, in Québec, the current framework is burdensome on a particularly vulnerable population. For example, in a specific case, a worker, who was a hospital attendant in training to become a nurse, had been the victim of an incident of violence by a patient. Although the CSST (now CNESST) allowed her to claim compensation for her physical injuries, her claim for reimbursement of medication for her diagnosed PTSD was contested, alleging that she had developed PTSD prior to the violent event. At trial, she presented evidence from ten different doctors, psychiatrists, and psychologists to support her claim. The difficulty in such cases lies in the nature of the illness and its possible comorbidity with other health concerns such as substance use or abuse and depression symptoms. This blurs the line of causality between the workplace trauma and the subsequent diagnosis. Although in this case her claim eventually succeeded, the process of the reviews of administrative decisions by the TAT, the gathering of evidence, the hiring of legal representation, and the mental strain of testimony and trial procedure may have been avoided if there existed a presumption in the law.

Instances of violence or trauma, even a single event, can lead to the development of mental health issues, particularly PTSD.

While many are calling for a nation-wide, cohesive framework to protect the front-liners who put their security and mental health on the line daily to protect us, conversation around this issue has not led to public action. Should the Québec framework allow for a presumption for all workers who suffer from PTSD as is the case in Manitoba? Or should all psychological disorders benefit from such a presumption as is the case in Saskatchewan? Last year, the Report of the Standing Committee on Public Safety and National Security recommended the creation of a Canadian Institute for Public Safety Officer Health Research and the elaboration of a national strategy regarding operational stress injuries. Undeniably, we have yet to see the results and possible action plans recommended by this report. Meanwhile, workers all around Canada, like Natalie Harris, have to face ambiguous and strenuous legal procedures before being able to focus on their ultimate duty: their own recovery, mental health, and eventual journey back to doing the work that they love.

Andréanne Angehrn holds a BA (Honours) with distinction in psychology from Concordia University. She will join Dr Nicholas Carleton’s team in the fall as a graduate student in clinical psychology at the University of Regina. Andréanne is enthusiastic about providing care and support to those affected by trauma, and about extending the scope of research to minorities. Recently she presented her undergraduate thesis that focused on circadian autonomic functioning and stress in children at the American Psychosomatic Society’s annual conference in Louisville, KY under the supervision of Dr Jennifer J McGrath. 

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc with distinction in Psychology, with a minor in Political Science from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.

The authors would like to thank Me. Cristina Toteda for her guidance and insight on the practical and real-world implications of the occupational safety and health framework in Québec. Souhila would further like to thank Prof. Derek J. Jones for allowing her to explore this topic further through a research paper in the course “Law and Psychiatry”.

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