Appeals Resolution Officer Decision
DECISION NUMBER: 20230073
OBJECTING PARTY: WORKER REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER REPRESENTED by: self
HEARING: HEARING IN WRITING – MAY 11, 2023 HEARD by: c. da cunha, appeals resolution officer ADDITIONAL ATTENDEES: none DATED: MAY 11, 2023
ISSUE
The worker objects to the Case Manager’s (CM) decisions of December 2, 2022 and January 19, 2023.
The worker seeks:
- A change in the date of injury (DOI) to February 4, 2022; and,
- Entitlement to loss of earnings (LOE) benefits from February 5, 2022 to November 29, 2022.
BACKGROUND
On February 4, 2022, on their last day worked, the worker sought emergency medical attention at Hospital X for a mental health crisis. They had worked with the employer as a Police Officer for almost 11 ½ years at the time.
The Hospital X health care providers diagnosed a situational mental health crisis due to work-related stress, recommending that the worker remain off work for three weeks.
On February 22, 2022, the CM approved funding for a psychological assessment with Dr. S. Busch, Psychologist, who assessed the worker on February 25, 2022, March 4, 2022, and March 8, 2022.
The worker returned to Hospital X on February 25, 2022. Dr. K.C. Harper diagnosed depression and anxiety, and advised the worker to remain off work for another four weeks.
On March 31, 2022, Dr. Busch completed a WSIB Community Mental Health Program Assessment Form. In that document, Dr. Busch indicated that the worker related their mental health crisis to an incident they experienced while carrying out their regular duties on March 25, 2012. Upon examination, Dr. Busch diagnosed a major depressive disorder (MDD), mild. Furthermore, Dr. Busch stated that they would examine the diagnoses of anxiety and panic attacks during upcoming psychological treatment sessions.
The CM initially denied the claim on April 28, 2022, finding that the worker did not meet the criteria necessary for entitlement under the Traumatic Mental Stress, Chronic Mental Stress, and Posttraumatic Stress Disorder (PTSD) in First Responders and Other Designated Workers policies.
The worker objected to the decision and, on May 11, 2022, provided the CM with a chronological statement outlining all the traumatic events they had experienced while carrying out their regular duties over the years.
On May 11, 2022, the worker consulted their primary health care provider, P. Parisi, Nurse Practitioner (NP). The NP’s clinical notes confirm that the worker reported an accumulation of chronic mental stress during the course of employment over the years. The NP suspected the worker suffered from a generalized anxiety disorder and/or a PTSD, advising the worker to continue with their psychological counselling sessions. In relation to the suspected PTSD, P. Parisi recommended consideration of a referral to a Psychologist for assessment and diagnosis.
In her subsequent clinical notes up to September 9, 2022, the NP maintained the same suspicion that the worker was suffering from PTSD, and was not able to return to their regular duties.
On November 16, 2022, in an assessment arranged by the worker’s representative, Dr. S. Shahrokhnia, Psychologist, diagnosed the worker with a PTSD and a MDD, arising from a work-related history of exposure to traumatic incidents. Dr. Shahrokhnia opined that the worker would not be able to return to their regular duties for the foreseeable future.
The Decisions under Appeal: Upon reviewing the evidence on record, on December 2, 2022 and January 19, 2023, the CM reconsidered the April 28, 2022 decision. The CM granted initial entitlement under the PTSD in First Responders and Other Designated Workers policy, finding that the worker now met the criteria for entitlement under that authority.
The CM established the DOI as November 28, 2022, the date of Dr. Shahrokhnia’s report, which was the first time a mental health professional had formally diagnosed the worker with PTSD. Furthermore, the CM granted entitlement to full LOE benefits from November 29, 2022, finding that the evidence showed that the PTSD prevented a return to work as of that date.
The Worker’s Position: The worker representative argues that the DOI is February 4, 2022 because that is the date the worker first sought medical attention for their mental health deterioration. That initial consultation eventually led to Dr. Shahrokhnia’s formal PTSD diagnosis on November 16, 2022.
Furthermore, the evidence on record shows that the work-related deterioration in the worker’s mental health condition caused their wage loss from February 5, 2022. Therefore, the worker is entitled to full LOE benefits from February 5, 2022 to November 29, 2022.
AUTHORITY
Section 43 of the Workplace Safety and Insurance Act, 1997 (WSIA)
Operational Policy Manual
| Policy | Published |
|---|---|
| 11-01-04: Determining the DOI | April 9, 2021 |
| 15-03-13: PTSD in First Responders and Other Designated Workers | September 7, 2018 |
ANALYSIS
I have carefully considered all of the available information, relevant legislation, and appropriate operational policies in reaching this decision. Having done so, I find that:
- The DOI is to be changed to February 4, 2022; and,
- The worker is entitled to LOE benefits for all wages lost from February 5, 2022 to November 29, 2022.
Operational policy 15-03-13, PTSD in First Responders and Other Designated Workers, states, in part
The date of accident/injury will generally be the date a PTSD diagnosis is made by a psychologist or psychiatrist, however, in some cases, it may be an earlier date, see 11-01-04, Determining the DOI. Benefits and services generally flow from the date of accident/injury.
Operational policy 11-01-04, Determining the DOI, states, in part:
In a gradual onset disablement claim, the date of injury is established using the date of first medical attention which led to the diagnosis, or the date of diagnosis, whichever is earlier. An example of a gradual onset disablement claim is where a worker gradually develops left wrist and hand symptoms from work-related duties and is diagnosed with carpal tunnel syndrome.
The worker’s accident history is that of a gradual onset over time due to the impact of cumulative exposure to traumatic events in the workplace over the years. The mental health clinical findings on record demonstrate a clear and direct nexus between the PTSD diagnosed on November 16, 2022 and the onset of the worker’s mental health deterioration on February 4, 2022. In other words, the record shows that the initial medical attention on February 4, 2022 eventually resulted in the November 16, 2022 work-related PTSD diagnosis. It is also clear that P. Parisi, NP, suspected that the worker was suffering from PTSD shortly after the onset of the worker’s mental health crisis and recommended that this be assessed and explored by a mental health professional.
In long-term, gradual onset type accidents, especially those involving mental health injuries and occupational diseases, it is not unusual for the work-related diagnosis to be arrived at some time after the date of initial mental health or medical attention. Therefore, the DOI in this case file is to be changed to February 4, 2022.
Section 43 of the WSIA prescribes that a worker who has a LOE because of the injury is entitled to payments beginning when the LOE begins. Therefore, the evidence must show that the work-related PTSD caused the worker’s wage loss from February 5, 2022 in order for LOE benefits to be granted.
In WSIB cases, the test for determining causation is that of a significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.
The standard of proof applied is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”.
I have already found that there is a clear and direct nexus between the work-related PTSD and the worker’s mental health status from February 4, 2022, with the DOI changed to that date. The mental health and clinical findings on record from February 4, 2022 show that the worker’s wage loss from February 5, 2022 was caused by their mental health condition.
While the evidence suggests the presence of other, non-compensable factors involved with the deterioration of the worker’s psychological status (e.g. job demands, relationships with colleagues and superiors), the same evidence shows, beyond a balance of probabilities, that the onset of the work-related PTSD was a significant contributing factor in the worker’s inability to return to work from February 5, 2022.
The facts and circumstances on record lead me to find that the worker is entitled to LOE benefits for all lost wages from February 5, 2022 to November 29, 2022.
CONCLUSION
I find that:
- The date of injury is to be changed to February 4, 2022; and,
- The worker is entitled to loss of earnings benefits for all wages lost from February 5, 2022 to November 29, 2022.
The worker’s objection is, therefore, allowed.
DATED May 11, 2023.
C. da Cunha Appeals Resolution Officer Appeals Services Division