Disability Blog

What is presumptive legislation in Ontario?

What is presumptive legislation?

Presumptive legislation is a legal principle of accepting that certain injuries and illnesses are the results of a worker’s place of employment or job. People with injuries or diseases that are presumptively job-related are eligible for disability benefits without having to provide additional proof of disability or occupational disease. Without presumptive legislation, it can take a lot of time and money to successfully file disability benefit claims, with no guarantee of success; with presumptive legislation, people with legitimate disabilities can receive the disability benefits they deserve and need without having to file for disability benefits through the usual channels, which can be a lengthy process for someone who might need immediate assistance.

Many individuals with a disability are still denied disability benefits. Our disability lawyers are experienced in fighting to win back the disability benefits that you deserve. If you have a disability and have been denied disability benefits, reach out to speak with Lalande Disability Lawyers today.

Without presumptive legislation, it can normally take months to file a disability claim

In Ontario, individuals who have developed a disease or suffered an injury at work submit their claims to the Workplace Safety and Insurance Board (WSIB) for consideration. For individuals suffering from occupational diseases that are not covered under presumptive legislation, filing a claim for disability benefits can be a time-consuming process. To begin with, only a handful of diseases qualify as occupational diseases: 

  • a disease resulting from exposure to a chemical, dust or virus related to the work and industry. 
  • a disease caused specifically by an element unique to the work industry or job position.

For individuals with certain medical conditions, WSIB may not allow them to work in situations that would mean exposure to certain substances, which could lead to developing an occupational disease as a result. 

Filing a disability benefits claim requires the worker to complete paperwork and collect evidence of their condition within 6 months of self-diagnosis or being diagnosed by a medical professional with the occupational disease. After providing sufficient evidence and being approved, WSIB will provide disability benefits to individuals who are successful with their claims. 

Ordinary diseases and prescribed diseases

Not all diseases developed while working qualify as occupational diseases. Occupational health categorizes diseases into ordinary diseases and prescribed diseases. 

Ordinary diseases are those that are not considered job-specific; also called ordinary diseases of life, these are conditions that are considered to have no significant connection with a workplace. Ordinary diseases are not covered under presumptive legislation and an individual claiming disability as a result of an ordinary disease would have to provide evidence that their individual case was a direct result of their workplace and occupation.

Prescribed diseases are considered those resulting from a specific workplace and type of work. For example, prescribed diseases for firefighters include bladder cancer, brain cancer, breast cancer, skin cancer and lung cancer. Links can be drawn between the workplace of firefighters and the development of cancer.

How can it help workers who have disabilities and injuries?

Having to figure out how to file paperwork for disability benefits while stressing about a disease or injury can be overwhelming

For some applying for disability benefits, being asked to prove disability might feel insulting and personal. The victim – the worker – in this case, should not have the burden of proof to demonstrate that they have been injured or developed the disease as a result of their work. 

Asking for evidence from members of staff at their workplace can also be an uncomfortable experience for workers; in essence, they are put in the difficult situation of requesting details from their own coworkers and management which will help prove the company’s own responsibility in causing their disease or injury. Workers may face pushback and resistance during this process from coworkers who might not agree about the cause of the disease or injury. This can lead to uncomfortable conversations and ruin working relationships between former colleagues and friends; those considering a return to the workplace after their recovery might no longer feel welcome after the experience. Presumptive legislation prevents workers from having to take on the additional responsibility of presenting their case for disability. 

Making a case for disability means additional stress for the victims themselves

Putting together a case for disability benefits for yourself means having to recall the events surrounding your injury or disability. Those details can be painful and extremely negative to try and recall and can cause even more emotional trauma. Many diseases that are currently covered under presumptive legislation,  including PTSD and several types of cancer, are conditions that might worsen if the individual was forced to deal with additional stress. Presumptive legislation can mean not having to explain or justify the reasons for the disability, and avoiding a sensitive topic that could mean more pain. 

Examples of presumptive legislation in Ontario

The application of presumptive legislation is applied differently across Canada, with more focus placed on industries that make up a larger percentage of the workforce. 

  • In 2009, the Ontario Government redefined presumptive disease to cover cases of firefighters who developed conditions like brain cancer, bladder cancer, colorectal cancer, kidney cancer, and non-Hodgkin’s lymphoma. It expanded Bill 221, passed in 2007, and made compensation under the Workplace Safety and Insurance Act (WSIA) accessible to full-time, part-time and volunteer firefighters. 
  • In 2016, the Ontario Government passed Bill 163, legislation that made post-traumatic stress disorder (PTSD) in first responders – police, paramedics and firefighters – considered a presumptive disability, and immediately eligible for disability benefits. The passing of this bill also made PTSD for members of these workforces a presumptive job-related disease. The legislation was amended in 2018 to cover an even larger number of professionals, including nurse practitioners. 
  • In 2021, in response to growing concerns over mental health issues developing among frontline workers during the COVID-19 pandemic, the Official Opposition NDP critic for Mental Health and Addiction Monique Taylor introduced the “Workplace Safety and Insurance Amendment Act” to give all essential workers in Ontario presumptive mental health WSIB coverage. 

Defining presumed disability

While few would argue against categories of workers who currently qualify for disability benefits by presumed occupational disease, the argument about who deserves to be eligible for presumptive disability continues. There have already been a number of revisions to presumptive legislation expanding the definition to make it more accessible to a larger group of recipients. (such as the case of Bill 221, which was expanded to cover cases of cancer in volunteer and part-time firefighters, in addition to full-time firefighters who were already covered by the original legislation)

In 2020, the Canadian Federation of Nurses Unions publicly announced that they would be arguing to add presumptive legislation for nurses who contracted COVID-19. CFNU argues that the significantly higher risk for contracting COVID-19 that nurses face as part of their work duties makes it reasonable for the Federation to request that every provincial government support establishing presumptive legislation that would cover nurses nationwide. 

Presumptive legislation and mental health

There continue to be significant new findings on the effects of mental health issues on worker ability and productivity. The successful adoption of Bill 163 to make PTSD a presumptive disability acknowledges that there is progress towards mental health issues achieving parity with physical illness and injury as conditions that are equally damaging and disabling. 

Can presumptive legislation be challenged?

Just as presumptions are legislated by the provincial government, they can also be challenged by parties not willing to accept the presumptive occupational disease and pay out the benefits. For a challenge to be successful, a similarly thorough level of documentation is needed. While not impossible to rebut a presumption after it has been passed into legislation, it is extremely challenging. 

Have you been injured or had a disability as a result of your workplace and been denied disability benefits?

If you have a disability as a result of your work, you may be eligible for long-term disability benefits. Proving that your disability is a result of injury or disease from your workplace or work can be challenging on your own. Lalande Disability Lawyers has been fighting for workers who have been denied since 2003. Our lawyers are eager to hear your case and clearly show you the direction to go. Whether or not your injury or disease is presumed in the province of Ontario, our lawyers at Lalande Disability Lawyers can help you fight your case and secure the disability benefits that you deserve. 

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