Yukon government’s PTSD legislation strikes the right balance

First responders deserve the benefit of the doubt. Real estate lawyers? Not so much

Kyle Carruthers | Pointed Views

Many of us have stressful jobs. We are charged with great responsibility over peoples’ lives, finances, and other interest in a way that makes one feel on edge — a feeling that is compounded by pressures of time and efficiency.

But, speaking for myself, even during my worst weeks on the job I count my blessings that I don’t work in a field where I am responsible for attending at the scene of a horrific car accident to deal with gruesome life-threatening injuries or with attempting to resuscitate dying passengers whose fates are already sealed. I can’t even fathom the trauma that people in these fields endure.

With that in mind, the Yukon government is working on passing “presumptive PTSD” legislation. The bill amends the Workers Compensation Act to recognize the uniquely traumatizing nature of certain occupations. It presumes that if a paramedic, firefighter or police officer is diagnosed with post-traumatic stress disorder, this is sufficient to entitle them to compensation.

Typically the way it works is that a person making a claim for workers compensation has to establish not only that they are employed (usually an easy hurdle), and that they suffer a medical condition of some sort that either prevents them from working or limits the amount that they can work (more difficult), but that it was their employment that led to that medical condition (often very difficult).

This legislation removes the third hurdle for people who work in certain occupations which are inherently and unavoidably traumatizing. This is what the presumptive PTSD legislation that has been in the news lately is all about. It is quite simple really, and the part of the legislation dealing with the new presumption is about a page long.

The legislation represents, in my opinion, a reasonable compromise between the need for government to be financially accountable to the ratepaying employers who fund the workers compensation program by properly vetting applicants on the one hand, while not needlessly imposing procedural burdens on workers on the other.

Determining “causation,” as lawyers call it, is often a challenging task. People who are injured — whether at work, or in a car accident or by slipping and by falling on an icy sidewalk come with a lifetime of prior experiences. It can be extremely difficult to pinpoint exactly what was the triggering event that led to a particular injury. It is even more complicated when an incident may have exacerbated a pre-existing condition.

Delving into these previous experiences could be particularly challenging, embarrassing, even further traumatizing when the diagnosis is PTSD and we are sifting through someone’s past to see if there might be some alternative explanation for their condition. Presumptive PTSD legislation, operating on the premise that these jobs are traumatic enough that this exercise is unnecessary, dispenses with all that.

NDP Leader Liz Hanson has argued the government should go further and legislate that all employees benefit from the presumption regardless of the nature of their work.

I must disagree with Hanson in part. It is certainly reasonable to suggest that the list of inherently traumatic occupations is incomplete.

It is another thing however to expand this presumption to jobs where encounters with traumatic experiences are exceptional events rather than daily occurrences. It is reasonable to place some onus on a grocery store clerk or automotive mechanic or a real estate lawyer who suffers from PTSD to explain what might have occurred in the course of their employment that could reasonably lead to that condition.

Real estate law may carry its own stresses, but people don’t die in front of me at our office boardroom table very often. If they did I likely would have found another line of work years ago.

Given all this, it would not be too much to ask of me to prove that my PTSD arose in the course of my employment.

To make the presumptive PTSD legislation too expansive would be to effectively transform workers compensation from an insurance program for injured workers into a general income support program for anyone with a job who suffers from PTSD.

As Jeanie Dendys, the minister responsible for the workers compensation board, correctly notes, nothing about the current or new legislation precludes a person in a job that one wouldn’t normally expect to give rise to PTSD (such as a store clerk) to argue that a workplace event caused PTSD. Being robbed at knifepoint, as Hanson noted, is one such example.

I know it can be unpopular opinion (particularly on the left), but with the wide range of social and income supports available in our society, it’s reasonable, and probably necessary, to require that people bare some onus of establishing their eligibility for various programs. Many government programs — from employment insurance to social assistance — require applicants to prove certain facts about themselves.

When we are dealing with first responders, however, exposure to traumatic events is such a routine part of the job. These positions are unique and the government is correct to recognize that.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

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