DECISION NUMBER:

20220103

OBJECTING PARTY:

DUAL OBJECTION

WORKER: REPRESENTED by:

WORKER

WORKER REPRESENTATIVE

EMPLOYER

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

VIDEOCONFERENCE

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES:

DATED:

WITNESS FOR THE EMPLOYER

DEIDRA HYNES, MANAGER, APPEALS SERVICES DIVISION

JUNE 30, 2022

ISSUES

Both the worker and employer are objecting to the following:

1. The Case Manager’s decision letter of August 9, 2021 (reconsidered December 21, 2021) determining level of impairment and the ability to participate in return-to-work services; and,

2. The Case Manager’s decision letter dated December 23, 2021 determining level of impairment and denying entitlement to a significant deterioration.

The worker is also objecting to the following:

3. The Case Manager’s decision of November 22, 2021 denying secondary entitlement to ptosis.

BACKGROUND

On September 28, 2015, the worker sought medical attention for cumulative mental stress arising from their duties as a police constable. A Case Manager’s decision letter dated June 17, 2016 authorized entitlement to posttraumatic stress disorder (PTSD) as well as entitlement to full loss of earnings (LOE) benefits from January 4, 2016 ongoing. A Case Manager’s decision letter dated September 21, 2020 accepted that the worker was permanently restricted from working for the Police Services in any capacity, working in a police station/detachment, or being exposed to traumatic content/material associated to the policing field. A psycho-vocational assessment report dated January 20, 2021 listed potential suitable occupations that did not require training. A decision letter from the Case Manager dated March 8, 2021 determined that the employment relationship exists with the Police Services as the City of City is not a party to the applicable collective agreement.

The Case Manager’s decision letter dated August 9, 2021 confirmed the three permanent restrictions and determined that the worker was partially disabled. The Case Manager accepted that the worker was fit for work transition (WT) services. A 15% non-economic loss (NEL) benefit for the permanent diagnosis of major depressive disorder and cumulative PTSD was confirmed in a decision dated September 17, 2021.

A Case Manager’s reconsideration letter dated October 21, 2021 upheld the decision of August 9, 2021. The Case Manager stated that further psychological assessments would not be authorized but that supportive psychological treatment could be considered if the worker participated in the return-to-work process.

A decision letter dated November 1, 2021 deferred the 72-month final review of LOE benefits as the worker was participating in WT/return-to-work services. The Case Manager’s decision letter dated November 22, 2021 denied secondary entitlement to ptosis based on a neurologist’s assessment. The reconsideration letter of December 21, 2021 confirmed the prior decision of August 9, 2021 and earlier reconsideration of October 21, 2021. The Case Manager’s decision letter dated December 23, 2021 determined that the worker was not below the current level of a 15% NEL benefit and was able to participate in return-to-work services. A Nurse Consultant authorized maintenance psychological therapy on January 14, 2022.

The administrative decision dated April 29, 2022 authorized an oral hearing for the objections from both the worker and employer. The administrative decision also approved the employer’s requested witness. The administrative letter of May 12, 2022 confirmed that the dual objections would be resolved as a videoconference hearing. The issues are now before me.

AUTHORITY

Operational Policy Manual

Published

15-05-01 Resulting from Work-Related Disability/Impairment 19-02-07 RTW Overview and Key Concepts

19-02-08 RTW Co-operation Obligations 19-02-10 RTW Assessments and Plans

April 9, 2021

April 9, 2021

November 30, 2020

November 30, 2020

ANALYSIS

I find that the worker is capable of participating in WT services, including any suitable duties with the injury employer provided it is not in a police station/detachment or involve exposure to traumatic content/material associated with the policing field. Additionally, I find that while there has not been a compensable significant deterioration, secondary entitlement to ptosis is in order. My reasons for these findings are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Jurisdiction

I find that the determined permanent restrictions, including the Case Manager’s determination of inability to return to work with the injury employer, is within the scope of the current appeal.

The worker representative’s opening statement included the argument that it is not relevant if the injury employer could accommodate the worker as the decision letter of September 21, 2020 is not subject to

appeal. It is argued that the question of if the worker can return to work with the injury employer is not before me. In contrast, the employer representative maintains that the worker improved, not deteriorated, after psychological maximum medical recovery.

I recognize the worker representative’s position that the employer did not object to the decision letter of September 21, 2020 within the required time limit. The worker representative suggests that the permanent restrictions are an issue separate from the question of level of impairment. However, as discussed at the hearing, I observe that the Appeals Services Division administrative letter dated February 4, 2022 lists “confirmation of permanent restrictions” as the first issue associated with the decision letters under objection. Further, I note that the Appeals Registrar’s administrative letter dated April 29, 2022 approves the employer witness. The corresponding will-say statement provided by the employer representative indicates that the employer witness would provide testimony on topics such as accommodation and the employer’s return-to-work process. As a result, I accept that the Case Manager’s determination that the worker is permanently restricted from returning to work with the injury employer is within the jurisdiction of the current appeal agenda.

Worker representative’s position

It is the worker representative’s position that there is a significant deterioration in the work-related PTSD and depression. The worker representative cites increased stressors that impact the worker’s activities of daily living resulting in the inability to return to work or participate in WT services. The worker representative identifies this deterioration as beginning in the fall of 2020, but is not requesting a decision that it is on a permanent basis.

The worker representative submits that secondary entitlement to the diagnosis of ptosis is in order given the medical evidence from a neurologist supporting that it is a manifestation of work-related PTSD and depression.

Employer representative’s position

The employer representative presents the opinion that the worker is fit to engage in return-to-work activities. In the opinion of the employer representative, there should be no permanent restriction against returning to any type of work with the injury employer.

In the employer representative’s view, there is no evidence of ptosis as a physical condition. The employer representative maintains that it is already included within the holistic NEL rating if it is a psychological condition.

1) Level of impairment and ability to participate in return-to-work services

In my opinion, the majority of evidence supports the ability to participate in return-to-work/WT services. I also find that there is no applicable permanent restriction for being unable to return to work with the Police Services in any capacity.

The worker representative argues that there is no reason to rescind the permanent precautions accepted by the Case Manager. The employer representative stresses that there is no disagreement with the restriction against front-line policing. Rather, the employer representative disagrees with any restriction of not working with the injury employer in any capacity.

The worker representative maintains that there is no capacity for work with the injury employer or outside of the injury employer, on either a part-time or full-time basis. The worker representative notes that in September 2020 the worker indicated to the Case Manager that they wanted to return to work in some capacity. The submission is made that return-to-work with the City of City is the only reasonable option as it would not require the worker to explain why they are no longer a police officer. The worker representative highlights the worker grieving the loss of frontline policing and that the treating psychologist ruled out any return-to-work with the injury employer (Police Services). It is the view of the worker representative that there is no objective evidence that the worker would be safe returning to work in a policing environment, no matter what the injury employer says may be available.

On the other hand, the employer representative argues that there are safe ways for the worker to maintain the employment relationship and continue to have a job helping other people. In particular, it is noted that such options would not require a resume, job interview, or having to explain why the worker is no longer in policing. The employer representative stresses that alternative duties with the injury employer were not fully investigated and that an obligation continues to exist under the worker’s collective agreement.

Policy 19-02-07, RTW Overview and Key Concepts, states that every effort should be made to enable a worker’s return to their pre-injury job (with or without accommodations). When that is not possible, priority should generally be given to other suitable return-to-work opportunities with the injury employer before consideration is given to new employment in the local or broader labour market. Policy outlines that the Workplace Safety and Insurance Board (WSIB) and the workplace parties should strive to return the worker to a job that they have the skills to perform, is safe, productive, and consistent with their functional abilities, and restores their pre-injury earnings to the extent possible. Policy requires the return-to-work opportunity selected for the worker to take into account any required accommodation. Policy 19-02-07 clarifies that adjustments may be required throughout the worker’s recovery and impairment period.

Policy 19-02-07 also provides specific direction regarding available work as it relates to the employer, including at another worksite. The WSIB is to consider the distance to travel to an alternate worksite location as well as the terms of any applicable collective agreement whenever possible. Policy explains that accommodation is an individualized process and fact dependent, taking into account the nature of the work/workplace, the worker’s abilities and limitations, and the essential duties and requirements of other jobs with the injury employer. A worker’s accommodation requirements may be either temporary or permanent. Policy 19-02-10, RTW Assessments and Plans, defines the term suitable occupation (SO) in part as a category of jobs suited to a worker’s transferrable skills that are consistent with the worker’s functional abilities.

It is important to also keep in mind that Policy 19-02-08, RTW Co-operation Obligations, sets out

return-to-work co-operation obligations. In particular, I observe that injury employers are obliged to offer an available job if identified as suitable for the worker. In cases where a job is or becomes available that can be made suitable through accommodation (that does not cause the injury employer undue hardship), the employer must provide the accommodation to allow the worker to return to work. Again, I note that policy verifies that such accommodation requirements may be temporary or permanent. The duration of the co-operation obligations continues until there is no longer an employment relationship between the workplace parties or the worker’s LOE benefits can no longer be reviewed by the WSIB. Finally, Policy 19-02-10 confirms that suitable opportunities with the injury employer are to be prioritized before considering new employment in the local or broader labour market.

Worker’s testimony

The worker’s testimony highlights asking the injury employer for accommodations on several occasions and being unable to remain at work. The worker describes first meeting the psychotherapist in 2015 and meeting once per month until their benefits ran out after approximately eight to nine months of treatment. The worker would meet with the supervising psychologist periodically from 2016 to 2020. The worker explains that they began taking courses and to attempt to move forward as neither the family doctor nor injury employer knew what to do. The worker first took a psychology course prior to enrolling in spirituality courses in an attempt to find grounding. The worker’s testimony explains that there were no expectations placed upon them as they were paying for the courses. In fact, the worker states that they were actively told to seek out courses and ways to engage with the public as part of treatment.

In the worker’s view, they would not be able to show up every day to either retraining or a job as they decompose very quickly when outside of their daily self-care routine. The worker and their partner have come to accept that they cannot return to a minimum wage job due to the risk of self-harm. While the worker describes selling their long-term investments, I must consider the worker’s confirmation that they remain an employee of the injury employer and are receiving top-up wages.

Employer witness testimony

The employer witness states that the worker remains an employee and is eligible for accommodation. During testimony it was explained that the collective agreement for sworn officers has detailed provisions for the duty to accommodate, maintaining medical benefits, accruing sick credits and vacation for two years, and topping up wages. The witness confirms frequently returning individuals to work in all capacities and not just the prior position. Examples included a PTSD case where the person was placed in a separate building with no interaction with the public, not wearing a uniform, and performing fraud investigations over the phone. Other employees who have restrictions against use of force may be placed into non-policing roles, such as recruitment.

The witness describes becoming involved in this case in 2020. The witness indicates that in addition to the letter dated February 24, 2020 outlining several potential alterative positions, the WSIB was also sent job descriptions for civilian positions with the injury employer. It is the testimony of the witness that there was never any response from the WSIB regarding the provided job descriptions. After that, the witness had a few discussions with the WSIB about the possibility of the worker obtaining a job with the City of City. In any event, the witness never had any further contact from the WSIB regarding alternate employment with the injury employer even after the WSIB determined that the City of City had no

re-employment obligations.

During questioning, the employer witness describes a separate office building in which the recruiting team is in. The witness explains that there is no dispatch from this building, only administration, and that there would not be any emergency notices.

Another building described by the witness contains investigative services, which would involve being around police officers as well as special constables performing forensic duties. Finance, information technology, and community mobilization are located within an operational police station. The employer witness confirms that a formal offer of modified duties was not provided to the worker.

Medical evidence and change in therapists

The employer representative argues that the Centre for Addiction and Mental Health (CAMH) report of December 11, 2019 should be used for determining the worker’s restrictions. The worker representative points out that the worker was not at maximum medical recovery at the time of the CAMH report. The worker representative relies on the psychological report of December 15, 2021, which states the inability to participate in the WT process.

The CAMH comprehensive assessment report dated December 11, 2019 provides the clinical opinion that the worker can return to work in an alternate capacity or modified job with the employer, or participate in training. The report confirms that situational exposure therapy should take place prior to any return to modified policing work. The CAMH report recommends a permanent restriction from frontline policing duties and a temporary psychological restriction from exposure to potentially traumatic materials (including audio, video, or written).

The worker’s psychological maximum medical recovery date was subsequently accepted as being September 18, 2020. The psychological report of the same date lists the three permanent restrictions accepted by the Case Manager consisting of the following:

• Being unable to return to work with the Police Services in any capacity;

• The inability to work in a police station/detachment; and,

• No exposure to traumatic content/material associated with the policing field.

The second supervising psychologist’s letter to the worker representative dated April 8, 2021 (also signed by the treating psychotherapist) consists of a single sentence stating that the worker is currently unable to engage in return-to-work activities with the WSIB at this time. Even so, I note that there is a much longer and more detailed report from the second supervising psychologist dated April 28, 2021 describing the worker being very upset and angry at the process. The report states that the worker wanted the supervising psychologist to meet with the worker representative, write a report saying that they cannot return to work, and state that they are permanently restricted. After reviewing the psycho-vocational assessment report and the previous psychologist’s report, as well as discussing with the treating psychotherapist, the new supervising psychologist did not feel able to do what the worker wanted. The report states that this caused further upset in the worker.

According to the report of April 28, 2021, the last session with the treating psychotherapist ended with the worker yelling and swearing at the therapist on the phone and stating once more that they just do not want to work anymore. The supervising psychologist discussed all of this with the psychotherapist who notified the worker that they can no longer continue to work with them and that the previously supervising psychologist is willing to take them back. The original supervising psychologist’s report dated

June 21, 2021 states that their last session had been in January 2021 and that the worker had not been in treatment under their supervision for a prolonged time. The opinion is provided that the worker has most definitely suffered a setback and that a number of barriers have become more apparent as a result. The report outlines that the worker is unable to function occupationally in any capacity.

The original supervising psychologist’s report dated December 15, 2021 describes the worker’s

much-altered appearance and there being a high degree of sanctuary trauma. The report states that the worker is restricted from returning to any job in the policing context or taking part in the return-to-work process from a psychological perspective. The report of December 15, 2021 suggests that the worker did not develop a good rapport with the psychologist that the treating therapist transferred to, causing therapy to become a trigger. It is presented that the worker lost trust in the process as they already felt invalidated by the employer and WSIB, which exacerbated the post-trauma condition.

I acknowledge the worker’s indication that their psychotherapist informed them that they would be switching supervising psychologists for their own reasons and provided the worker with the option of changing with them. Briefly, it is the worker’s testimony that they never personally met the new

supervising psychologist other than a couple of text messages. It was the worker’s belief that the WSIB might adjust benefits as a result of not receiving paperwork from the new supervising psychologist. The worker describes reacting to the change, having the relationship with the new supervising psychologist fall apart, and returning to the previous supervising psychologist. The worker states that their

long-standing relationship with the psychotherapist ended due to a paperwork issue with the WSIB.

I appreciate the worker’s testimony that they did not demand that the new supervising psychologist state that they are unable to return to work. The worker reached out to the prior psychologist who sent a letter to the WSIB. The worker underwent a full assessment with the first supervising psychologist in December 2021. The worker describes being concerned for their own safety and asking for another therapist who was working with the first supervising psychologist in order to meet the demands of the WSIB. Unfortunately, this therapist’s office is close to the worker’s home and became a visual trigger.

I also recognize the worker’s testimony that they feel that the threat of more therapy indicates that they themselves are the problem. The worker expresses that they have tried therapy, attempted to get better for six to seven years, and is tired of trying. The worker denies asking the second supervising psychologist to meet with them and their legal representative. It is the worker’s testimony that they have not had a therapist since April 2021 as their attempt to find a therapist only identified online services or the local therapist’s office that they can see from their home.

In weighing all of this evidence, I afford significant weight to the team-based CAMH report dated December 11, 2019 as it includes a psychiatrist as well as a supervised psychologist and supervising psychologist. The report states that there was a case conference between the three assessors and the WSIB WT Specialist. I also afford significant weight to the psychological report dated April 28, 2021 as it provides more context than the report of April 8, 2021. In my view, the CAMH report dated

December 11, 2019, the psycho-vocational assessment report of January 2021, and the psychological report dated April 28, 2021 all support that the worker is able to participate in WT services. As I will discuss further below, I do not accept that there is a compensable deterioration in the level of impairment.

I recognize the worker representative’s reference to case law and a medical discussion paper with respect to the sanctuary trauma mentioned within the report dated December 15, 2021. However, I note the worker continues to be an employee of the injury employer, is receiving top-up pay, and that the injury employer continues to be willing to offer potentially suitable alternative duties. Additionally, I find that the loss of the long-term relationship with the psychotherapist is not a work-related issue but rather the result of the worker’s disagreement with the new supervising psychologist’s inability to do what the worker wanted. Specifically, I note that it was the treating therapist’s decision to end the treatment relationship with the worker due to their behaviour. In my opinion, the report dated April 28, 2021 does not document a deterioration in the work-related condition but rather the non-work-related result of the worker’s personal decisions.

Finally, I find that there is insufficient evidence to support that the worker is unable to participate in the situational exposure therapy recommended by CAMH. I accept the worker’s testimony regarding their ongoing noise sensitivity and heightened startle response. Therefore, for all of the above-noted reasons, I accept that the worker is not permanently unable to return to the injury employer in any capacity provided that the recommended situational exposure therapy is offered and that the duties do not involve working in a police station/detachment or expose the worker to traumatic content/material associated to the policing field. Accordingly, I find that policy requires the WSIB to confirm if there are any suitable opportunities with the injury employer prior to considering new employment in the local or broader labour market.

2) Significant deterioration

I am not persuaded that there has been a compensable significant deterioration in the worker’s PTSD or depression.

The employer representative suggests that the worker showed good signs of recovery in 2020 and that there was then a non-work-related turn of events not due to PTSD but rather the worker’s motivation to go in a different direction. The employer representative suggests that the worker’s personal choices in 2021 onward should not impact the decision relating to the worker’s obligations. The worker representative maintains that there is a significant deterioration due to the worker’s response to increased stressors that is work-related due to the PTSD and depression. The worker representative submits that there has been no significant intervening event.

I appreciate the worker’s testimony that they have tried three different anti-depressant medications and that they have no stress tolerance. When questioned by the employer representative, the worker explained that the trial of three anti-depressants was prior to the CAMH assessment and that the worker has not tried any more anti-depressants since. The worker verified that they are not currently taking any psychotropic medication due to having bad reactions. Instead, the worker smokes marijuana, which helps with sleep.

The worker further explains that they purposely avoid potentially stressful situations, including traffic or driving at certain times. The worker describes living in isolation, having lost relationships in the last two years, and never resuming self-directed classes as it did not feel safe. According to the worker’s testimony, the most difficult part is a feeling of broken trust with all people and being unable to move past that. The worker indicates they have reduced immunity with the long-term stress having a cumulative effect on their body that continues to deteriorate. Due to the deterioration, the worker indicates being unable to take a job as they cannot do it anymore.

It is the worker’s testimony that the global pandemic caused a loss of treatment. The worker fell into worse depression in the fall of 2021 and became suicidal but had no resources. Although the worker has tried online therapy, it is their testimony that they have been hurt by so many people that it results in increased feelings of isolation and that no one will help them. The worker describes the first

psycho-vocational assessment as triggering since it was conducted during the pandemic and involved being behind plexiglass, wearing masks, and the test paper being placed through a small hole. The worker notes that there was no active therapy at the time of either the first or second psycho-vocational assessment.

The worker representative points out that the CAMH report of 2019 recommends continued treatment and is dated prior to the accepted date of maximum medical recovery. It is also the worker representative’s position that the worker is below the current NEL level of 15% (Class II, Mild Impairment) and that the deterioration was rapid and compatible with the work-related injury. According to the worker representative, the worker has many features of the higher end of a Class III (Moderate Impairment) such as severe noise intolerance, avoiding stress, and being frequently homebound. In particular, the worker representative points out that the psycho-vocational assessment report of January 2021 identifies severe depression and anxiety with very high emotional reactivity. That being said, I note that the NEL rating of September 16, 2021 considered the psycho-vocational assessment report dated January 20, 2021.

Overall, I accept the witness’s testimony that the injury employer continues to be willing to accommodate the worker with alternative duties. I acknowledge that it is the worker’s choice not to be open to initiating any medications as documented by the CAMH report of December 11, 2019. I further recognize that it is

the worker’s choice not to participate in online therapy with another psychotherapist after returning to the original supervising psychologist. All the same, I do not accept that the increased stressors involved in the termination of the worker’s long-standing therapeutic relationship with the psychotherapist is a

work-related issue. Instead, I view the situation to be non-compensable. On this basis, I am not persuaded that there is a work-related significant deterioration that prevents the worker from participating in suitable return-to-work and WT activities within the permanent precautions of not working in a police station/detachment and not being exposed to traumatic content/material associated to the police field.

3) Secondary entitlement to ptosis

It is my view that secondary entitlement to ptosis is appropriate as a physical manifestation of the

work-related PTSD and depression. The employer representative argues that any potential entitlement to ptosis would already be captured within the permanent impairment rating.

Policy 15-05-01, Resulting from Work-Related Disability/Impairment, provides the authority to entitlement for a secondary condition when it is established that a causal link exists between it and the work-related injury.

It is the worker’s testimony that their left eyelid issues started in the summer of 2021 or around the time that the Case Manager began discussing return-to-work. The worker indicates that the ptosis only affects the left eye and that they will probably not proceed with surgery as it would likely be deemed to be cosmetic in nature. The worker states that the left eye symptoms looks and feels worse on some days compared to others. Still, the condition has changed the shape of their face and how they feel about themselves. In terms of daily activities, the worker describes having a bit of a line impacting the left eye’s field of vision. Regardless, the worker confirms having a driving license.

I recognize that the neurologist’s report dated September 30, 2021 states that both the physical and neurological examination showed no abnormality and that there was no ptosis during the exam. The report documents that the worker’s field of vision is more static and does not fluctuate. Yet, I must consider that the neurologist also states that intermittent ptosis can happen with psycho-functional issues, which could explain the worker’s completely normal examination. The resulting clinical opinion provided by the neurologist is that the worker is likely having a physiological response to stress.

To summarize, I accept the neurologist’s opinion that intermittent ptosis can be a response to stress. Therefore, it is my opinion that there is sufficient evidence of a causal link between the diagnosis of ptosis and the work-related permanent impairment diagnoses of PTSD and depression. However, I am not persuaded that the ptosis as a physiological symptom of the worker’s psychological permanent impairment represents a significant deterioration. Briefly, I find that both the neurologist’s report of September 30, 2021 and the worker’s testimony establish that the left eye symptoms do not significantly impact the worker’s daily activities more than the mild impairment already included within the current NEL level. Accordingly, I do not accept that the inclusion of secondary entitlement to ptosis represents significant deterioration or worsening of the worker’s level of impairment.

CONCLUSION

I conclude the following:

1. The worker has the ability to participate in return-to-work and work transition (WT) services.

There is no applicable permanent restriction preventing the worker from returning to the injury employer in any capacity.

The worker is to be offered situational exposure therapy as recommended by the Centre for Addiction and Mental Health (CAMH) report of December 11, 2019 before any potential return to modified/alternate duties with the injury employer.

Suitable opportunities with the injury employer are to be prioritized before considering other suitable occupations (SO) in either the local or broader labour market.

The permanent restriction of not working in a police station/detachment is confirmed.

The permanent restriction of no exposure to traumatic content/material associated to the police field is appropriate.

2. There is no entitlement to a significant deterioration in the work-related condition.

3. Secondary entitlement to ptosis is in order as a physical manifestation of the work-related permanent psychological impairment. The inclusion of secondary entitlement to ptosis does not represent a significant deterioration in the worker’s level of impairment.

The worker’s objection is allowed in part. The employer’s objection is allowed in part.

DATED June 30, 2022

K. MacMillan

Appeals Resolution Officer Appeals Services Division