APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240007
OBJECTING PARTY: worker
REPRESENTED by: wORKER REPRESENTATIVE
RESPONDENT: employer
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: C. Goegan, appeals resolution officer
ISSUES
The worker is objecting to the following decisions of the Case Manager:
The January 17, 2023 decision denying entitlement to a recurrence of work-related post-traumatic stress disorder (PTSD) and loss of earnings (LOE) benefits from October 17, 2022.
The March 14, 2023 decision denying entitlement to partial LOE benefits from March 5, 2023 during a graduated return to work plan.
BACKGROUND
On August 10, 2019, this then 50-year old communications operator was involved with an emergency call concerning the suicide attempt of a co-worker. The worker stopped working the following day and sought treatment with a psychologist on August 16, 2019. The psychologist diagnosed a mental stress injury and recommended the worker remain off work. In a September 5, 2019 decision, the Case Manager approved the claim for health care and full LOE benefits for the diagnosis of PTSD as they concluded the mental stress injury resulted from an objectively traumatic, work-related event.
The worker remained off work, continued receiving full LOE benefits and attended psychological treatment. The Case Manager initiated Return to Work (RTW) services in November 2019. The Case Manager later confirmed the psychological restrictions with the worker’s psychologist in February 2020 and a graduated RTW plan ultimately commenced on July 13, 2020.
The worker subsequently continued working modified duties. They experienced exacerbations in the work-related mental stress injury and received periods of both partial and full LOE benefits between the initial RTW date of July 13, 2020 and January 23, 2022. The Case Manager, after speaking with the treating psychologist in February 2020, accepted a temporary pause in RTW activities from January 23, 2022 and approved the payment of full LOE benefits from that date.
The RTW Specialist later met with the workplace parties and developed a graduated RTW plan that began on April 25, 2022. The employer began paying the worker full wages from that date and the Case Manager discontinued LOE benefits as they concluded the worker was no longer at a wage loss as a result of the injury.
The worker continued participating in the RTW plan until October 17, 2022. The worker stopped working on October 17, 2022 and cited a deterioration in their psychological symptoms. In a January 17, 2023 decision, the Case Manager denied entitlement to a recurrence of the work-related mental stress injury and LOE benefits from October 17, 2022. The Case Manager determined that while the worker had experienced a deterioration in their psychological functioning, the deterioration was due to significant non-work-related factors. The Case Manager reconsidered and upheld the January 17, 2023 decision on January 24, 2023.
The RTW Specialist subsequently met with the workplace parties and developed a graduated RTW plan that began on March 5, 2023. In a March 14, 2023 decision, the Case Manager denied entitlement to partial LOE benefits from March 5, 2023 during the graduated RTW plan. The Case Manager determined that as the graduated RTW occurred following the non-work-related deterioration, any loss of earnings during the RTW plan was unrelated to the work injury. The Case Manager reconsidered and upheld the denial of partial LOE benefits on August 1, 2023.
The worker objected to the January 17, 2023 and March 14, 2023 decisions of the Case Manager and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
15-02-05 – Recurrences
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
April 9, 2021
September 1, 2021
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker is not entitled to LOE benefits for an October 17, 2022 recurrence of the work-related PTSD. I also find the worker is not entitled to partial LOE benefits from March 5, 2023 during the graduated RTW plan and the reasons for my decision are set out below.
The Worker’s Position
In the June 17, 2023 Appeal Readiness Form (ARF), the worker submitted they were not fully rehabilitated in the fall of 2022 when they stopped working. The worker submitted the employer sent them home from work on October 17, 2022 because the supervisors feared their PTSD was at substantial risk of being triggered and they might suffer a setback while on duty. The worker argued the employer sent them home because of PTSD and not outside stressors. They maintained their symptoms of a sleep disturbance, flashbacks and nightmares were triggered because they were in the workplace being exposed to emergency work and not because of outside stressors.
The Employer’s Position
The employer representative provided detailed submissions with the November 22, 2023 Respondent Form referencing both medical reports in the record and the applicable WSIB policies. While I reviewed and considered the submissions in their entirety, I have summarized the representative’s arguments in this appeal as follows:
The medical evidence contemporaneous to the October 17, 2022 cessation of work fails to demonstrate the worker suffered a significant deterioration in the work-related psychological condition. The representative submitted that any deterioration in psychological functioning the worker experienced in October 2022 was not work-related based on reports from the treating psychologist. She argued there is no causal link between any deterioration in psychological functioning and the work-related PTSD.
The representative submitted the medical evidence establishes the worker experienced a number of non-work-related stressors in their life that lead to a deterioration in their psychological functioning in October 2022. She submitted the reason the worker was unable to continue working in October 2022 was due to the accumulation of non-work-related stressors and not the work-related PTSD. The representative argued the worker is not entitled to LOE benefits, as they did not experience a wage loss resulting from the work-related PTSD.
The representative argued that although a graduated RTW plan was developed in March 2023, the worker is not entitled to partial LOE benefits, as the deterioration and that absence from work that preceded the RTW plan were not work-related.
Entitlement to an October 17, 2022 Recurrence
Policy 15-02-05 (Recurrences), states that a worker may be entitled to benefits for a recurrence of a work-related injury if the worker experiences a significant deterioration that:
Does not result from a significant new incident, and
Is clinically compatible with the original injury.
The policy defines a significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in clinical findings. Indicators of a significant deterioration may include the need for active (non-maintenance) clinical treatment, a change in functional abilities or a change in the ability to perform a job or a suitable occupation.
The policy indicates that a significant new incident is considered to be one of some consequence or importance and provides the example of falling from a ladder. Conversely, an insignificant new incident is considered to be one of negligible consequence or importance, such as reaching for an object on a shelf.
Policy 15-02-05 (Recurrences) also states that in order to establish that a significant deterioration is clinically compatible with the original injury the WSIB must determine that:
The body parts and/or functions affected now are the same as, or related to, those affected by the original injury, and
That there is a causal link between the significant deterioration and the original injury.
To make these determinations, the WSIB considers the nature and severity of the significant deterioration, the original injury and any relevant non-work-related conditions that are present. The policy indicates that the WSIB may also consider whether a worker has experienced continuing symptoms since the original injury, as generally, continuing symptoms are an indicator of a causal link, though they are not required to establish a causal link. Indicators of continuing symptoms may include continuing clinical treatment, continuing workplace accommodations, or evidence that continuing symptoms were reported to health care providers, supervisors or co-workers on an ongoing basis.
Given the evidence before me, I agree with the arguments of the employer representative. I find that while there was a significant deterioration in the worker’s psychological functioning that culminated in an inability to continue working by October 17, 2022, the deterioration was not work-related. I find the evidence establishes it is more probable than not that a number of non-work-related events contributed significantly to the deterioration in psychological functioning that in my view equate to significant new incident. In reaching that conclusion, I found the following information particularly relevant:
A July 14, 2022 WSIB Community Mental Health Program (CMHP) progress form from Dr. Gifford, the treating psychologist, indicated the worker had mild PTSD symptoms following that block of treatment. In the report, Dr. Gifford stated the treatment included grief work related to the recent death of the worker’s father, the implementation of coping strategies related to the serious illness of the worker’s partner, trouble-shooting workplace stressors and problem solving about interpersonal challenges at work. Dr. Gifford opined that overall the worker was managing current life stressors exceptionally well. She noted that while the worker took a brief bereavement leave and was currently taking planned holiday time, the worker had no apprehensions about returning to work.
In a September 29, 2022 memo, the worker advised the RTW Specialist they had developed a specific plan for progression of hours and duties until the end of October. The worker also confirmed they were attending work without anxiety and were tolerating increasing work demands.
An October 18, 2022 memo from the RTW Specialist indicated they reviewed RTW journals and noted the worker had a negative reaction when the employer told them they could not discuss vacation picks ahead of a scheduled bidding date. The RTW Specialist also noted the worker was bothered about not taking 911 calls as they felt like they were “missing out on the action”. The memo indicated the worker met with the employer who pointed out the worker was overreacting to things at work and the worker agreed. The employer asked the worker to consider if RTW in their current job was best for them. The employer questioned whether the worker should remain at work or take a leave. The worker described several life stressors to the RTW Specialist in addition to those previously described by Dr. Gifford. The additional stressors included the illness of their pet and needing to write off their car. The worker also noted the recent death of a colleague’s child had surfaced flashbacks and memories about a call they had attended to when working as a firefighter in the past.
In an October 20, 2022 letter to the RTW Specialist Dr. Gifford indicated the worker was experiencing an increase in post-traumatic stress symptoms in response to an accumulation of stressors. She stated the worker would benefit from taking a leave from work to address those difficulties and recommended they remain off work until November 25, 2022 at which time she would provide an update on their status.
In a November 4, 2022 CMHP progress form, Dr. Gifford reported the worker’s PTSD symptoms remained mild, subjective anxiety in the workplace remained low and their self-confidence in their general ability to perform their job duties remained strong. In the report, Dr. Gifford indicated the worker had an exceptionally challenging year and explained the worker continued to focus on providing practical and emotional support to family members and friends in relation to a number of challenging life circumstances while addressing personal and RTW goals. The challenging life circumstances included providing emotional support to their mother in the wake of their father’s passing, supporting their partner who was struggling through cancer treatment and providing emotional support to a friend recently diagnosed with advanced cancer. Dr. Gifford described the results of a recent meeting between the worker and the employer that culminated the employer recommending the worker take a leave of absence from work. Dr. Gifford stated the employer had reportedly noticed uncharacteristic distractedness and emotionality and were concerned about the potential impact of the worker taking a bad call. She indicated the worker accepted the employer’s observations and opined the worker would likely benefit from some time to focus on coping with challenging life circumstances, especially given the heightened likelihood of bad calls over the holidays. Dr. Gifford indicated the worker had conquered their anxieties about being back at work, was confident in their dispatching abilities and would likely return to their former duties in early 2023.
In a January 3, 2023 memo, the worker advised the RTW Specialist that on their last day of work, the employer expressed concern that the worker was demonstrating signs of disassociation and poor memory due to high stress. The worker indicated the employer felt it was an aggravation of the work-related injury due to external life stressors.
In a January 11, 2023 memo, Dr. Gifford advised the RTW Specialist that while a number of recent stressors experienced by the worker were not work-related, it was expected that if the worker did not perform their current job and have PTSD, their ability to work would not have been so affected.
Based on the information referenced above, I find the balance of the evidence establishes it is more probable than not that a number of non-work-related life stressors and not the work-related PTSD contributed significantly to the deterioration in the worker’s psychological functioning and the inability to remain at work by October 2022.
The information from Dr. Gifford in July 2022 indicated that overall the worker was managing their life stressors exceptionally well. On September 29, 2022, the worker advised the RTW Specialist they were attending work without anxiety and tolerating increasing work demands. By October 2022 however, the employer apparently expressed concerns about the worker’s ability to remain at work due to distractedness and emotionality and I find it significant that Dr. Gifford subsequently recommended the worker remain off work to focus on coping with their challenging life circumstances.
The challenging life circumstances described in the record were unrelated to work and included the death of the worker’s father, providing emotional support to their mother in the wake of his passing, supporting their partner who was struggling through cancer treatment and providing emotional support to a friend recently diagnosed with advanced cancer. While the worker cited flashbacks and memories following a tragic incident in the October 18, 2022 RTW Specialist memo, Dr. Gifford did not reference flashbacks or intrusive memories in relation to that incident in her reports. In my view, the challenging life circumstances described in reports are significant stressors particularly when considered in combination that equate to a significant new incident unrelated to work.
As noted in Policy 15-02-05 (Recurrences), a worker is only eligible for additional benefits for a recurrence when a significant deterioration of a work-related injury or condition does not result from a significant new incident or exposure and is clinically compatible with the original injury or condition. In this case, I find the significant deterioration in the psychological functioning is due to the confluence of significant life stressors that are unrelated to work. Accordingly, as I find the combination of non-work-related stressors equates to a significant new incident that culminated in the inability to work, I find the worker is not entitlement to LOE benefits from October 17, 2022 for a recurrence of the work-related PTSD.
Entitlement to Partial LOE Benefits from March 5, 2023
Policy 18-03-02 (Payment and Reviewing LOE Benefits) provides that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits beginning when the loss of earnings begins. Benefits continue until the earliest of:
The day on which the worker’s LOE ceases
The day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
Two years after the date of the injury, if the worker was 63 years of age or older on the actual date of the injury, or
The day on which the worker is no longer impaired as a result of the injury.
The policy provides that a worker is entitled to receive full LOE benefits if the nature of the work-related injury completely prevents them from returning to any type of work. A worker who can return to some form of work is entitled to full LOE benefits if suitable work is not available, providing they co-operate in health care measures and all aspects of the RTW process.
Workers able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. The policy states examples include but are not limited to:
Workers who return to work at reduced hours or wages, and
Workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
In this case, Dr. Gifford wrote to the employer on February 24, 2023 and provided recommendations for a graduated return to work plan. The RTW Specialist subsequently met with the workplace parties on March 1, 2023 and developed a graduated RTW plan that began the week of March 5, 2023. While the worker co-operated in the RTW process and returned to work at reduced hours, the development of the RTW plan occurred following the significant deterioration in psychological functioning that I find occurred because of a confluence of significant life stressors unrelated to work. As the worker returned to graduated hours following the non-work-related significant deterioration, I find the worker did not experience a wage loss as a result of the work injury during the March 5, 2023 graduated RTW plan. Accordingly, I agree with the argument of the employer representative and I conclude the worker is not entitled to LOE benefits pursuant to Policy 18-03-02 (Payment and Reviewing LOE Benefits) during the graduated RTW plan.
CONCLUSION
I conclude the following:
The worker is not entitled to full LOE benefits from October 17, 2022 for a recurrence of the work-related PTSD.
The worker is not entitled to partial LOE benefits from March 5, 2023 during the graduated RTW plan.
The worker’s objection is denied.
DATED December 11, 2023
C. Goegan
Appeals Resolution Officer
Appeals Services Division