1. Manitoba’s PTSD Legislation An Amendment to The Worker’s Compensation Act of Manitoba – Bill 35 2015

2. Manitoba’s PTSD Legislation Almost ten (10) years ago, we voiced concerns regarding the manner in which the WCB of MB were adjudicating claims for psychological injuries. – A different adjudicative standard was utilized; which meant a higher burden of proof when it came to psychological injuries versus physical injuries. – lengthy process for appeal procedure and the adverse effect on the member.

3. Despite our continued “success” of having PTSD claims accepted before Appeal Commission, the WCB still contended there was nothing wrong with their system. There were legal challenges across the country specific to WCB legislation and policies and the PTSD diagnosis. The WCB of MB did not seem to be concerned about these decisions. Manitoba’s PTSD Legislation

4. In November 2012 a policy on “The Adjudication of Psychological Injuries” was passed by the WCB Board of Directors. The new policy, in the WCB’s opinion, was intended to address the issues that we’ve raised with the WCB’s methods for adjudicating psychological injuries, among other things. Manitoba’s PTSD Legislation

5. The Act states: 1(1) “accident" means a chance event occasioned by a physical or natural cause; and includes (a)a wilful and intentional act that is not the act of the worker, (b)any (i)event arising out of, and in the course of, employment, or (ii)thing that is done and the doing of which arises out of, and in the course of, employment, and (c)an occupational disease, and as a result of which a worker is injured. “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; but does not include (c)an ordinary disease of life; and (d)stress, other than an acute reaction to a traumatic event;

6. Manitoba’s PTSD Legislation The policy states (44.05.30): “Claims for psychological injuries cannot arise under the part of the definition of accident that refers to any (i) event arising out of and in the course of employment or (ii) thing that is done and the doing of which arises out of and in the course of employment…..”

7. What the new policy actually did: It changed the definition of “accident” in The Workers Compensation Act of Manitoba for psychological injuries only. Manitoba’s PTSD Legislation

8. We challenged the Policy and its validity before the Appeal Commission related to a specific case of PTSD. Despite the Union making arguments related to Human Rights Code violations and Charter violations, we were disallowed from doing so by the Commission. However, the Commission did render its decision and ultimately agreed with the Union that the policy was invalid because of the conflict with the Act. The member's claim was accepted. http://appeal.mb.ca/decision/2741.aspx Manitoba’s PTSD Legislation

9. The aftermath of the Appeal Commission decision: – Given the Appeal Commission’s decision indicating the policy was invalid because it violated the Act, the MGEU asked the WCB to rescind the policy. – Instead of rescinding the inappropriate policy, the WCB Board of Directors “set aside” the decision of the Appeal Commission. This is permissible under Manitoba’s Act. (s. 60.9). Manitoba’s PTSD Legislation

10. Once the decision was set aside (this has only been done one other time in the past decade), it was sent back to the WCB Review Office. We are currently awaiting a decision from that level. While this was occurring, we wrote to, and met with, the Minister Responsible for the Workers Compensation Act and asked for legislative changes to the WC Act specific to psychological injuries. Manitoba’s PTSD Legislation

11. The WCB, as directed by the Minister, then undertook a process of soliciting input from various stakeholders. MGEU participated in this process. MGEU’s position stated the legislation should be applicable for all workers – not just first responders and for all types of psychological injuries – not just PTSD. Manitoba’s PTSD Legislation

12. BILL 35: WHEREAS workers in any occupation or workplace could face a traumatic event or series of events that can cause post-traumatic stress disorder (PTSD); AND WHEREAS the government recognizes the leadership of several professions and their labour representatives for advocating for legislation that identifies PTSD as an occupational disease for presumptive workers compensation coverage, including nurses, firefighters, first responders and other front line workers; AND WHEREAS if the event or events that cause PTSD occur in the workplace, PTSD should be presumed to be an occupational disease to better support affected workers by simplifying the claims adjudication process for workers compensation benefits; AND WHEREAS the government is committed to continuing to strengthen workplace health and safety and to protect workers and their families; THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: 11 The Workers Compensation Act is amended by this Act. 22 Subsection 1(1) is amended (a) in the definition "occupational disease", by striking out "or" at the end of clause (a), adding" or" at the end of clause (b) and adding the following after clause (b): (b.1) that trigger post-traumatic stress disorder; (b) by adding the following definitions:

13. Manitoba’s PTSD Legislation " Diagnostic and Statistical Manual of Mental Disorders" means the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association; (« Manuel diagnostique et statistique des troubles mentaux ») "post-traumatic stress disorder" means Posttraumatic Stress Disorder as that condition is described in the Diagnostic and Statistical Manual of Mental Disorders; (« trouble de stress post- traumatique ») "psychologist" means an individual registered as a psychologist under The Psychologists Registration Act or under equivalent legislation in another jurisdiction in Canada; (« psychologue

14. Manitoba’s PTSD Legislation 33 The following is added after subsection 4(5.7): Presumption re post-traumatic stress disorder 4(5.8)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. Effective date of presumption re post-traumatic stress disorder 4(5.9)4(5.9) The presumption in subsection (5.8) applies to a worker who is diagnosed with post-traumatic stress disorder on or after the day that subsection comes into force.

15. Manitoba’s PTSD Legislation Wait…..what did I just read? – This is applicable to all covered workers. – PTSD is considered an occupational illness unless the contrary can be proven by the WCB. – PTSD can be caused by a single event or a series of events. – PTSD can be diagnosed by a physician or a psychologist. – If the cause of the PTSD, as outlined in the DSM 5, is a workplace related one, the PTSD is presumed to be an occupational illness.

16. Manitoba’s PTSD Legislation The Battle Continues…. The WCB maintains the legislative changes are not yet in effect. The old policy regarding the “Adjudication of Psychological Injuries” is still in effect according to the WCB. We are told the new PTSD legislation will be in effect January 1, 2016.

17. Manitoba’s PTSD Legislation Potential Problems… WCB has existing legislation includes “an acute reaction to a traumatic event”. This will need to be reconciled with Bill 35. The policy to support the legislative amendment still has not been seen. The legislation only deals with PTSD – not other psychological injuries. WCB has recently developed a new “practice” of accepting the PTSD-related event as an accident, but then disallowing time loss or medial aid benefits.