DECISION NUMBER:

20230020

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

HEARING:

HEARING IN WRITING

HEARD by: DATED:

ROD COTTER, APPEALS RESOLUTION OFFICER December 19, 2022

ISSUE

The worker representative is objecting to the April 3, 2022 case manager decision that temporarily suspended the worker’s ongoing loss of earnings (LOE) benefit from April 13, 2022.

BACKGROUND

The worker’s claim was allowed in October 2017 for Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) arising out of their employment as a police officer. The worker received ongoing full LOE from September 2017 and participated in psychology treatment.

On March 4, 2022, the worker’s psychologist advised the case manager that the worker not attended treatment since January 12, 2021 due to a concussion.

In a decision dated April 13, 2022, the case manager determined the worker was unable to participate in treatment for their PTSD due to their non-occupational concussion and temporarily suspended the worker’s LOE benefit until the worker resumed treatment May 3, 2022. The worker representative’s objection to this decision forms the basis of the appeal before me.

AUTHORITY

Operational Policy Manual

Published

18-03-02 - Payment and Reviewing LOE Benefits (Prior to Final Review)

September 1, 2021

15-06-08 - Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances

April 9, 2021

22-01-02 - Material Change in Circumstances – Worker

April 9, 2021

22-01-03 - Workers' Co-operation Obligations

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons outlined below, I am allowing the worker’s objection.

Positions and Submissions

The position of the worker representative is that the worker’s LOE benefit should not have been paused for the period spanning April 13 to May 4, 2022 due to the fact that the worker’s primary condition of PTSD remained acutely symptomatic and prevented the worker from returning to work.

The representative submits that the worker had participated diligently in psychological treatment for the duration of their claim and continued to do so with the introduction of an interim treatment plan.

Furthermore, the representative submits the WSIB failed the worker in facilitating access to treatment from December 2021 to May 2021, and that the worker should not be penalized, especially considering their fragile psychological state. The representative argues a temporary treatment solution was easily reached once the WSIB confirmed the worker was required to attend interim treatment and the worker’s LOE benefit was restored without issue.

The employer representative’s position is that the case manager’s decision to suspend the worker’s LOE benefit should be upheld. They submit the worker failed to communicate with the case manager, the worker’s concussion was the primary reason the worker was unable to attend treatment for PTSD, and the applicable law and policy are clear that the case manager appropriately suspended the worker’s LOE benefit.

Relevant Policy

Policy 18-03-02 - Payment and Reviewing LOE Benefits states that a worker who has a loss of earnings due to a work-related injury is entitled to LOE. Full LOE is generally payable if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, provided they co-operate in health care measures and all aspects of the work reintegration process.

Full LOE is also generally payable if a worker is able to return to some form of work but the WSIB determines that no suitable work is available. Suitable work is work that is safe, productive, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the greatest extent possible.

Pursuant to policy 22-01-03 - Workers' Co-operation Obligations, a worker who is receiving benefits under the insurance plan, or who is entitled to do so, is required to:

• provide the WSIB with any information necessary to adjudicate the claim

• co-operate in health care measures the WSIB considers appropriate

• undergo an examination by a health professional selected and paid for by the WSIB, and

• undergo an examination by a health professional selected and paid for by the employer if directed by the WSIB, and

• co-operate in all aspects of the return-to-work (RTW) process, including RTW assessments and plans.

If a worker does not fulfill these obligations, the worker's benefits may be reduced or suspended.

Workers must co-operate in the health care measures the WSIB considers appropriate. If they do not, the WSIB may reduce or suspend their benefits until they co-operate. Examples of non-co-operation include, but are not limited to:

• changing health professional without WSIB approval, see 17-01-03, Choice and Change of Health Professional

• not following prescribed treatment

• intentionally abusing prescription medication, or

• missing appointments with health care practitioners.

• If a worker has a legitimate reason for failing to follow prescribed treatment, the decision-maker, in consultation with WSIB health care staff, considers acceptable alternative treatments.

If the WSIB determines that a worker is not co-operating with their obligation(s), the WSIB notifies the worker of the:

• obligation to co-operate

• finding of non-co-operation, and

• consequences of this finding (i.e., the reduction and/or suspension of benefits).

• Notice is given verbally (if possible), and confirmed in writing in every case.

The WSIB may reduce or suspend a worker's benefits if after notifying the worker of the obligation(s), the worker:

• fails to co-operate with the obligation(s), and

• does not have a legitimate reason for not co-operating.

Policy 17-03-04, Health Care for Non-work-related Conditions provides more information regarding workers with non-work-related health problems interfering with the treatment of a work-related condition, see. The policy states the WSIB may pay for a special surgical operation or health care treatment for a worker if, by doing so, substantial payments under the insurance plan can be avoided. The cost of the operation or treatment may be paid from either the insurance fund or by the Schedule 2 employer.

According to policy 15-06-08 - Adjusting Benefits Due to Post-accident, Non-work-related Change

in Circumstances, if a worker’s loss of earnings is not solely the result of the work-related injury, benefits may be adjusted to reflect the degree of work-related impairment.

Any post-accident, non-work-related change in circumstance that prevents a worker from being available for health care or return-to-work (RTW) activities, including being available for suitable work, is considered a material change and must be reported in accordance with policy 22-01-02 - Material Change in Circumstances – Worker.

In cases where a worker is temporarily unable to participate in health care or RTW activities for a brief period of time (e.g., up to 4 weeks while undergoing minor surgery for a non-work-related condition, severe flu/illness, jury duty, etc.), full benefits should be maintained.

If the non-work-related, post-accident change in circumstance is preventing a worker from undergoing treatment for the work-related injury/disease, benefits may be reduced or suspended until the worker is available for treatment of the work-related injury/disease.

If the nature or seriousness of the work-related injury/disease completely prevents a worker from returning to any type of work, and the worker suffers a post-accident, non-work-related change in circumstance, and the post-accident change is not affecting or impeding the treatment of the work-related injury/disease, it has no bearing on the level of benefits payable to the worker. Full benefits should be maintained.

Policy 22-01-02 - Material Change in Circumstances – Worker states that a material change in circumstances is any change that affects a person's entitlement to benefits and services under the Acts.

If a person fails to inform the WSIB of a material change in circumstances, the WSIB presumes that this is intentional and thus wilful, unless the person can demonstrate having no knowledge of the change.

The WSIB determines whether the person reasonably should have been aware of the change by reviewing the facts of the case.

When there is a material change in circumstances, whether reported on time or not, the WSIB adjusts the person's benefits retroactively to the date of the change. This could result in a benefit-related debt.

It is the responsibility of each person to contact the WSIB personally as soon as a material change occurs. If possible, persons should notify the WSIB of a change, such as a planned return to work, before it happens. This helps the WSIB avoid creating a benefit-related debt. In any case, the person must report the change no later than 10 calendar days (including the date of the change) after the change occurs.

If a person is not sure whether a change is a material change that may affect entitlement, it should be reported so that the WSIB can make a determination.

Persons or their representatives can inform the WSIB of material changes. Persons should not rely on others, such as family members, friends, or their employers, to notify the WSIB.

Evidence

On September 2, 2021, the case manager called Treating Psychologist Dr. Williams noting the worker had been off work for around 4 years and was still young and capable of finding employment. The case manager agreed it was unlikely the worker could return to police work, and suggested it was time to start looking at other options. Dr. Williams agreed to discuss starting return to work assessments and planning with the worker.

Dr. Williams’ September 2, 2021 progress report indicates the worker had experienced a relapse in their depression and PTSD symptoms after attempting to grocery shop in a crowded store, which resulted in a significant trauma reaction. The worker was also asked to call police for a motorist, which was triggering. Additionally, contact from the WSIB was activating for her. Dr. Williams noted the worker’s anxiety and depression symptoms had escalated, their sleep has deteriorated, suicidal thinking was more present, and the worker had been drinking alcohol daily.

On November 3, 2021, the worker called the case manager and asked about approval for ketamine treatment. They planned on taking a break from Dr. Williams for a short period of time while undergoing the treatment to see if they could tolerate it.

Psychologist Dr. Bhaloo’s September 2, 2021 report states the worker encountered a person who was climbing onto the guard rail on an overpass and getting ready to jump, which destabilized them further. Dr. Williams opined that until the worker had achieved a sustained degree of stabilization and functioning, and a reduction in their posttraumatic symptoms, she did not recommend that the worker consider a return to any type of work.

Dr. Bahloo noted the worker had requested that their treatment be put on hold while they participated in alternative treatment through their benefits, and cancelled their last scheduled appointment

October 27, 2021 indicating that they were initiating the alternative treatment and would make the WSIB aware of the plan.

On December 8, 2021, the nurse case manager approved psychology treatment with Dr. DaCunha who would be providing ketamine assisted therapy, and denied entitlement for the ketamine that would be prescribed by a consulting physician. Dr. DaCunha saw the worker on December 31, 2021.

Chart notes from Family Physician Dr. Lawlis indicated the worker hit their head twice while drinking and wrestling with a friend in mid-December, fell skiing but was not sure if they hit their head, and on January 3, 2022 fell 7 feet backwards while using an upper stairway ledge to do chin-ups.

The January 4, 2022 ER report indicates there was no loss of consciousness on January 3, 2022, but the worker had a headache, nausea, blurred vision, and no vomiting. The assessing physician diagnosed a concussion.

On January 7, 2022, Dr. Lawlis noted the worker was super nauseated and had a headache. She prescribed cognitive rest and a gradual increase in activity as tolerated. On January 11, 2022, Dr. Lawlis discussed avoidance of driving, cognitive rest for 5 days, then a gradual increase in activity, and referred the worker to a sports medicine concussion specialist.

On January 31, 2022, the worker was advised that they were being transferred to a new case manager.

Dr. Lawlis saw the worker in follow up on February 28, 2022 and noted the worker had not been able to focus on themselves due to the worker’s father having had a heart attack, and that the worker was having cognitive, memory, headache, and eye strain issues but no nausea or dizziness issues. Dr. Lawlis indicated the worker was on ketamine that triggered the onset that was made worse by alcohol. She noted a vulnerable brain responding to substances and stress and advised return to cognitive rest and avoiding driving.

The worker saw Concussion Specialist Dr. Chugh on February 4, 2022, who recommended a concussion rehab program including psychotherapy.

On March 4, 2022, the worker’s psychologist advised the case manager they assessed the worker on December 31, 2021, and that the worker had been unable to attend their appointment on

January 12, 2021 due to a concussion and had not had any sessions since. The case manager called the worker and left a message inquiring about the worker’s treatment status noting the worker had not been in treatment since December 31, 2021.

Dr. Lawlis’ March 8, 2022 chart notes indicates the worker still had a headache and photophobia, and the worker’s symptoms had been almost gone but increased due to being move active in relation to her father’s heart attack and heart surgery.

On March 16, 2022, the case manager left a voice mail for the worker’s representative, and received a voice mail back indicating the worker wanted the case manager to speak with the representative rather than them directly due to their ongoing symptoms. The case manager inquired if the worker had not been attending treatment due to a concussion.

On March 21, 2022, the case manager called the worker’s representative to obtain additional details about the worker’s concussion. The representative advised that the worker had suffered a concussion due to a fall at home, was having issues with memory and concentration, that the worker’s doctors were trying to sort out if the worker’s symptoms were the result of the concussion or PTSD, and that the worker had been referred to a neurologist for further assessment. The representative further stated the worker reported they had been receiving ketamine treatment but it had to be placed on a hold as a result of their symptoms, and that the worker was awaiting a neurology appointment to determine the cause of their ongoing symptoms.

The case manager advised the worker representative on March 28, 2022 that they would request the worker’s medical, and if they could establish that the worker’s ongoing symptoms were caused predominantly by the worker’s non-compensable concussion and not PTSD, then WSIB benefits might be temporarily paused due to a post-accident change.

On April 13, 2022, the case manager advised the worker representative verbally and in writing that the medical information received established that the worker’s ongoing symptoms were the result of post- concussion symptoms, that the worker’s PTSD was not the primary cause of their impairment, and as a result the worker’s WSIB benefits would be temporarily suspended as of April 13, 2022 due to a post- accident change.

On April 22, 2022, the worker representative advised the case manager the worker was upset they didn’t get any notice of the suspension of their LOE, was unable to complete ketamine TX as a result of their concussion, but could resume the therapy portion of their treatment so that they could receive some form of treatment for their PTSD and MDD. They indicated the worker would speak with Dr. DaCunha’ to see if they could resume treatment without ketamine therapy. The case manager left a voice mail at

Dr. DaCunha’s clinic in the same regard.

On April 25, 2022, the worker representative inquired with the case manager if they had heard from Dr. DaCunha and advised the worker had been seeing a social worker for their PTSD and MDD, who they had been paying for out of pocket.

On April 29, 2022, Dr. DaCunha advised the case manager they could continue treating the worker without ketamine and would schedule an appointment with the worker. The case manager advised the worker representative that the worker’s LOE would be reinstated once the appointment date was confirmed. On May 3, 2022, the worker resumed treatment with Dr. DaCunha and the case manager restored the worker’s LOE benefit.

Findings

I find the worker is entitled to full LOE from April 13, 2022 to May 3, 2022.

In doing so, I first find the medical reporting supports the worker was unable to attend their psychology appointment with Dr. DaCunha on January 12, 2021 due to symptoms from their concussion. After the period of cognitive rest prescribed by Dr. Lawlis ending on January 16, 2022, I however find the evidence supports that the worker was able to attend psychology treatment, did not attend, but continued with ketamine treatment until February 28, 2022.

As such, I find policy 22-01-03 - Workers' Co-operation Obligations is applicable to the worker’s LOE entitlement rather than policy 15-06-08 - Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances because the worker was unable to attend psychology treatment due to their concussion between January 5, 2022 and January 16, 2022, but not for an extended period beyond 4 weeks described in policy 15-06-08.

Similarly, I find the worker’s material change reporting obligations were not triggered by their concussion because the evidence supports the worker’s concussion prevented them from attending treatment between January 6, 2022 and January 16, 2022, but not after, and that the worker obsessively did not to attend psychology treatment after January 16, 2022 based on a number of considerations and factors.

When the case manager was notified that the worker was not attending treatment on March 4, 2022, the case manager did not notify the worker of the their obligation to co-operate in health care, a possible finding of non-co-operation, nor the consequences of such a finding as required by policy 22-01-03. After the case manager suspended the worker’s benefits without the notification required by policy 22-01-03 on April 13, 2022, the worker informed the case manager through their representative on April 22, 2022 that they would cooperate in healthcare.

I find the worker did not fail to cooperate after receiving implicit verbal notice that they were not cooperating in healthcare treatment on April 13, 2022 because they advised the case manager on April 22, 2022 that they would resume treatment. As such, policy 22-01-03’s criteria for when the WSIB

may reduce or suspend a worker's benefits when a worker fails to cooperate after receiving notice of their obligation was not met.

The worker is entitled to full LOE from April 13, 2022 to May 3, 2022 according to policies 18-03-02 - Payment and Reviewing LOE Benefits, 15-06-08 - Adjusting Benefits Due to Post-accident, Non-work- related Change in Circumstances, and 22-01-03 - Workers' Co-operation Obligations because they had an ongoing wage loss, were unable to work due to their work-related injury, did not fail to cooperate in healthcare measures after they were advised of their obligation to do so, and were not unable to participate in treatment for their work-related injury due to a non-work-related change in circumstances for a period exceeding four weeks.

CONCLUSION

The worker’s objection is allowed. The worker is entitled to full LOE from April 13, 2022 to May 3, 2022.

DATED December 19, 2022

Rod Cotter

Appeals Resolution Officer Appeals Services Division