Originally published in The Lawyers Weekly.
Brad Moscato
The Ontario government recently passed legislation that creates a presumption where post-traumatic stress disorder (PTSD) diagnosed in first responders (police officers, firefighters, paramedics, etc.) is work-related, thus allowing for faster access to benefits.
Bill 163, Supporting Ontario’s First Responders Act, was enacted earlier this year in order to amend theWorkplace Safety and Insurance Act and the Ministry of Labour Act. This presumption in favour of granting benefits (first responders no longer have to prove their PTSD is the result of their job) has been welcomed by advocacy groups, such as the Canadian Mental Health Association.
According to the CMHA, military personnel are also more likely than the general working age population to experience PTSD. The Department of National Defence and Veteran Affairs Canada provide some rehabilitation and financial compensation for disabled members; however, some of these benefits end after a few years of active service; require applications submitted within a specific time period; require proof a disability relates directly to a member’s work; and/or require very high thresholds of disability for continuing compensation.
In theory, workers’ compensation programs insure a worker’s actual lifetime earnings. This program is not available to Canadian Forces members or veterans. Instead, the earnings loss (long term disability) benefit available to Canadian Forces members does not provide a presumption for those suffering from PTSD and does not provide lifetime benefits. This is distinct, for example, from the Canadian Forces Members and Veterans Re-establishment and Compensation Act (CFMVRCA), where members may qualify for a one-time lump sum payment for severe disability.
Without access to a presumption-related disability benefit, Canada’s veterans may not be able to obtain adequate benefits and treatment for PTSD and related disorders, on a long-term basis.
A 2013 Canadian Forces Mental Health Survey revealed 5.3 per cent of full-time regular force members had experienced symptoms consistent with PTSD in the preceding 12 months. The survey defined PTSD as occurring if, after witnessing or experiencing a traumatic event, a person had symptoms including “repeated reliving of the event, disturbance of day-to-day activity, avoidance of stimuli associated with the event, and irritability, outbursts of anger, or sleeping difficulty,” for at least a month. But as the CMHA cautions, “some trauma, particularly repeated acts like abuse or trauma during wartime, can impact a person’s life far beyond the symptoms of PTSD.” Moreover, the statistics likely do not reveal the true number of Canadian Forces members suffering from PTSD and related symptoms.
If a disabled member is not discharged from the Canadian Armed Forces, she or he generally transitions from full-time work that may require serving in conflict zones to part-time work at a local unit. A member in this situation receives one-half day’s pay per week. To obtain more income, the individual either needs other military work or must venture into the civilian workforce.
When a disabled veteran is released from the Canadian Forces to civilian life, she or he may be eligible for a disability award (based on entitlement of service and assessment of injury) that provides immediate financial support following a severe injury. If support is required, it would come in the form of the LTD benefit. The benefit is taxable. It is available when a member participates in rehabilitation/retraining programs, which usually last two to four years (“retraining period”). It is primarily paid through a private insurance plan to which members contribute.
Once the retraining period ends, some severely disabled veterans may qualify for the Permanent Impairment Allowance (PIA) and Permanent Impairment Supplement (PIS) programs. The standard to qualify requires the veteran to be deemed totally and permanently disabled with a physical or mental health issue that prevents him or her from performing “any occupation.” This is a fairly high threshold to meet. Research has shown that an extremely small number of Canadian Forces members have received this ongoing benefit following the retraining period.
Meanwhile, some disabled veterans who are suffering from PTSD and who have been denied their LTD benefit, attempt to re-enter the workforce, often prematurely, to see if they can continue to work and in order to receive some form of income to survive. However, many struggle and are not even able to make it through the first year of work. Under the circumstances, they are typically ineligible for long-term disability benefits under insurance plans through their new employer since these LTD plans often state an individual is denied coverage for benefits if they become ill within the first year of employment due to a “pre-existing” clause.
Canadian Armed Forces members disabled in active duty and suffering from PTSD should be afforded a disability benefits compensation program where a presumption of disability exists. Nothing less is acceptable.
For more information or to speak about a denial of short or long term disability, please contact Brad Moscato at 416-646-7655 or bmoscato@hshlawyers.com.
