APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBEr:
20240057
OBJECTING PARTY:
DUAL OBJECTION
WORKER:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
EMPLOYER:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
sandro Recine, appeals resolution officer
ADDITIONAL ATTENDEES:
DATED:
none
JUNE 14, 2024
ISSUE(S)
Both the worker and employer along with their respective representative’s object to the Case Manager (CM) reconsideration decision of March 24, 2023 as follows:
The employer objects to the approval of initial entitlement to health care benefits concerning a diagnosis of PTSD under presumptive legislation.
The worker objects to restricted entitlement to health care benefits and the denial of loss of earnings (LOE) benefits as part of initial entitlement.
BACKGROUND
The worker is a police officer and in November 2021 they informed their employer they were experiencing posttraumatic stress disorder (PTSD) symptoms and the employer established a claim. The CM’s initial March 7, 2022 decision letter along with two reconsiderations denied the worker’s claim as they failed to meet the six-month time limit to file a claim given that they were first diagnosed with PTSD in September 2017. An Appeals Resolution Officer (ARO) decision dated February 14, 2023 approved an extension of the time limit to file a claim.
The CM’s March 24, 2023 reconsideration letter outlined the worker met criteria to allow by presumption for the diagnosis of PTSD and approval was restricted to health care benefits for psychological treatment only and the worker was not entitled to loss of earnings (LOE) benefits. The CM noted there was no compelling evidence to conclude lost time wages were owing to a work-related diagnosis of PTSD as the worker reported they did not seek or receive any medical treatment between 2018 and November of 2021 and did not have any traumatic exposures or experiences since 2018. The worker had reported their trauma symptoms returned immediately following the employer’s notification they could no longer be accommodated in a non-claim-related work from home arrangement. The CM attributed the worker’s lost time to the employer’s employment decisions and not factors owing to work-related PTSD.
Worker’s position
The worker representative (WR) submission of May 20, 2024 acknowledged the worker did not seek mental health support or experience trauma symptoms within the period of December 2017 and November 2021 and that the lack of continuity was consistent with the condition of PTSD. The worker received medical treatment for a moderate level of PTSD and was provided with supports enabling them to manage symptoms and remain in their frontline preinjury duties up to September 24, 2018. They posit the worker’s diagnosed PTSD in 2017 did not resolve, their return of PTSD symptoms is a recurrence and medical information supports that work-related PTSD rendered the worker totally impaired as of October 17, 2021 and requested full LOE benefits ongoing.
Employer’s position
The employer representative (ER) submission of February 17, 2023 outlined their position was that initial
entitlement was not in order. If initial entitlement was supported, file evidence demonstrated the worker had fully recovered from any work-related mental health diagnoses by the fall of 2017, by January 2018 there was no jurisdiction to consider entitlement to a recurrence in this proceeding and that LOE benefits were not in order for the reasons noted.
AUTHORITY
Operational Policy Manual
Published
11-02-02 Lost Time Claims
15-02-05 Recurrences
15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final LOE Review)
17-01-02 Entitlement to Health Care
April 9, 2021
April 9, 2021
September 7, 2018
September 1, 2021
January 3, 2023
ANALYSIS
I have carefully considered all available information, legislation, and relevant operational policies in reaching this decision. I find that the worker has met entitlement criteria for PTSD by presumption with entitlement to health care only and is not entitled to LOE benefits.
On review, the prior ARO decision established that the worker witnessed multiple traumatic incidents within the period of January 2013 to September 2018 while performing their pre-injury job of Police Officer in a Foot Patrol Unit, Primary Response Unit (PRU), Community Response Unit (CRU) and Criminal Investigation Bureau (CIB). The worker started seeing a psychologist for trauma related symptoms on September 15, 2017 and the worker did not report the trauma incident(s) or receipt of treatment to their employer due to stigma associated with mental illness and elected to manage their condition independently.
On September 24, 2018, the worker posted out to a position in the Major Crimes Unit (MCU). They performed investigative duties in plain clothes, carrying a gun and spending time on the road, but was not responding to radio calls, which were especially triggering for their PTSD. Due to the covid-19 pandemic, a mandatory masking policy became effective in October 2020 and the worker requested exemption from wearing a face covering due to a medical condition/reason. The employer accommodated the worker with a temporary work from home arrangement.
On September 27, 2021, the worker requested extension of their accommodation, which the employer declined due to lack of supporting medical documentation. The worker was advised to return to work in their unit on October 25, 2021, but the worker refused and stopped working on October 17, 2021. On November 11, 2021, they advised the employer that they were not returning to their unit due to work-related mental stress, which prompted the employer to establish this claim.
Additional file information supports the worker received six psychological treatment sessions within the period of September 14, 2017 through to November 28, 2017. The treatment received permitted the worker to manage their trauma symptoms and remain at work in their pre-injury job. In moving off the front line and into Major Crimes, trauma cues and triggers were no longer an issue, and they had a three year mental break and the worker reported they had no traumatic exposures since 2018. In October 2021, the employer informed they would be reassigned back to 911, which required mandatory use of a facemask and the worker alleged their symptoms returned. The worker stopped working on October 17, 2021. They resumed psychological treatment on November 12, 2021 and did not seek or receive any medical attention between 2018 and November of 2021.
- Does the worker have initial entitlement to benefits for the diagnosis of PTSD under presumptive legislation policy?
WSIB Operational Policy Manual (OPM) 15-03-13 Posttraumatic Stress Disorder in First Responders and Other Designated Workers reads in part:
Policy
If a first responder or other designated worker is diagnosed with posttraumatic stress disorder (PTSD) and meets specific employment and diagnostic criteria, the first responder or other designated worker's PTSD is presumed to have arisen out of and in the course of their employment, unless the contrary is shown.
Presumption
If a first responder files a PTSD claim within the time limits for filing a claim, and if the three criteria set out below are met, the PTSD is presumed to have arisen out of and in the course of the first responder's employment, unless the contrary is shown. (Special criteria apply to transitional claims as set out below.)
Rebutting the presumption
The presumption may be rebutted if it is established that the employment was not a significant contributing factor in causing the first responder's PTSD.
WSIB Operational Policy Manual (OPM) 17-01-02 Entitlement to Health Care reads in part:
The Workplace Safety and Insurance Act provides:
A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.
WSIB OPM 15-03-13 is presumptive legislation which stipulates that if a designated first-responder, such as the worker, is diagnosed with PTSD it is presumed to have arisen out of and in the course of their employment, unless the contrary is shown. Having regard for the above referenced policy excerpt, I find that the worker has met all three of the criteria requirements of the policies presumption criteria pertaining to date of employment, date, and type of diagnosis. Additionally, I find that the worker’s employment was a significant contributing factor if not the sole factor of their diagnosed PTSD and the employer’s submission does not provide any sufficient evidence in rebutting the presumption.
Accordingly, I find that approval to initial entitlement to benefits under presumptive first-responder PTSD legislation is in order and namely concerning the need for health care treatment. As previously noted, the worker derived benefit from attending psychological treatment sessions that enabled them to manage trauma cues and triggers that in turn enabled them to continue working their pre-accident position. Noting the worker was expected to return to their front-line pre-accident policing duties as of October 25, 2021, I find that any anxiety the worker may have felt concerning a potential re-exposure to trauma cues was natural and entitlement to health care treatment in addressing this was reasonable and in keeping with WSIB OPM 17-01-02 concerning entitlement to health care.
- Is the worker entitled to loss of earnings (LOE) benefits as a part of initial entitlement?
WSIB Operational Policy Manual (OPM) 11-02-02 Lost Time Claims reads in part:
Guidelines
The WSIB reviews the information on file to determine a worker's entitlement to benefits. Clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.
WSIB operational policy (OPM) manual document 15-02-05 Recurrences reads in part:
A worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:
does not result from a significant new incident/exposure, and
is clinically compatible with the original injury/disease.
WSIB Operational Policy Manual (OPM) 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) reads in part:
Full LOE
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.
The ER’s submission of February 17, 2023 included varied other documents pertaining to the worker’s employment and claim. On review, I note internal employer correspondence dated dated November 16, 2020 concerning a non-claim-related medical accommodation agreement outlined the worker had restrictions in being unable to don a facemask or covering and essential personal protective equipment (PPE) pertaining to covid-19 mandates. It outlined a temporary accommodation effective November 18, 2020 through to May 16, 2021 with an expectation of return to in station branch work on May 17, 2021. It also noted an expectation that the worker makes diligent efforts to find a sustainable resolution to their condition. They could request an extension of the accommodation by speaking to the respective accommodation coordinator.
A November 28, 2020 letter from the worker’s lawyer outlined that the worker did not agree to an “accommodation” because under provincial regulations they were exempt from masking, and they were otherwise fit for unaccommodated work and did not require an accommodation. It referenced policy and/or legal legislation that governed and supported their reasoning. They expressed the employer’s accommodation obliterated the workers regular duty work, conditions of employment and eliminated their ability to take on extra duties or call-backs. They noted the worker signed the ‘remote work member agreement’ as a “Hobson’s Choice.” On review, I note that a Hobson’s Choice refers to an apparently free choice when there is no real alternative and/or the necessity of accepting one of two or more equally objectionable alternatives.
Internal correspondence dated April 20, 2021 confirmed an extension of the worker’s work from home arrangement owing to a medical condition that precludes the worker’s ability to don a facemask, face covering and/or essential PPE. The extension was approved to October 24, 2021 with an expectation of return to work to regular work on October 25, 2021. Additional correspondence noted the worker diligently sought use of force training concerning the expiry of a certificate that would enable them to carry and use a firearm in policing as required.
As noted, the reference to accommodations is not owing to the worker’s PTSD claim as the worker simply performed their major crimes unit position from home due to the worker’s reported inability to don a facemask or covering. Following the final approved extension, I note a series of emails between the worker and the employers’ accommodations coordinator, in which the coordinator requested updated medical information and completion of forms concerning the worker’s request for an additional extension. In my view, the email exchange appears to get progressively more contentious as the worker asserted their medical condition that precludes masking was permanent and they provided sufficient information to date such that did not require them to provide additional or ongoing information. A back and forth exchange of emails shows both parties disagreed with each other’s respective positions as the employer maintained they were required to provide additional information in keeping with referenced policy requirements. In keeping with their lawyer’s correspondence, the worker reported they never requested/agreed to an accommodation, nor did they ever require one. They had a permanent medical condition that did not permit them to don a facemask and maintained they did not need to continuously provide ongoing information concerning such.
Ultimately, the worker provided an e-mail refusing to provide additional information concerning their condition and the employer informed the worker they would be required to return to regular in facility duties on October 25, 2021. This outlined exchange of emails predated the worker’s scheduled October 25, 2021 return to regular work and file information shows the worker stopped working on October 17, 2021. Concurrently and in advance of the worker’s return to regular duties, an internal correspondence document dated October 5, 2021 concerning an internal investigation outlined the worker was required to attend an interview on October 22 and October 25, 2021 with Professional Standards concerning an external complaint pertaining to a non-criminal allegation they acted in a discreditable manner that contravened the Police Services Act (PSA) that would likely harm the reputation of the police service.
A December 9, 2021 investigation report by professional standards outlined that the worker's actions and speech amounted to misconduct and specifically discreditable conduct. The complaint pertained to the worker’s attendance and participation as a guest speaker in a public freedom rally in September 2021 in which they self-identified as a police officer and expressed their personal opinion concerning covid-19 mandates concerning masking and vaccines, criticism of the current government, their employer and asserted they had no intentions to disclose their vaccine status. They were not fearful of reprisal or facing any charges under the PSA for publicly speaking out without authorization. They were accepting of any ensuing disciplinary they might face and acknowledged it might cost them their job. The worker was required to attend a hearing on April 26, 2024.
While WSIB OPM 15-03-13 is a presumptive policy concerning the allowance of PTSD, the presumption does not extend or apply to LOE benefits. File information supports that in fall of 2017, the worker sought psychological treatment concerning workplace trauma exposures that permitted them to manage and cope with their symptoms and continue working their pre-injury job. In my view, this is an intended objective and possible outcome of treatment consistent with the WR’s opinion and I find the worker should be afforded ongoing medical treatment given a return to their frontline policing work. I find no reason or file evidence to support that resumption of treatment would not provide the worker the same trauma coping skills such that it would permit them to continue working as it did in 2017.
The worker reported that on being advised they would have to return to frontline policing work on October 25, 2021, their symptoms returned but I find there is no indication as to the nature of the reported symptoms and if they were trauma cues and triggers. Given that the worker stopped working on October 17, 2021 and never returned to frontline policing duties I find that the worker was not subject to any actual trauma cues or triggers. I do acknowledge the worker may have experienced some anxiety about a potential return of symptoms with pre-injury return to work and I note that the November 25, 2021 Community Mental Health Program (CMHP) assessment outlined the worker’s observed behaviour was visibly anxious, candid, and articulate. In my view, the report largely conveys the worker’s symptoms and condition in 2015 and noted their condition was exacerbated. In addition to PTSD the worker was diagnosed with major depression, social anxiety, and generalized anxiety, which in my view might not be attributable to work-related trauma and PTSD. The psychologist noted the worker was unable to return to work owing to low energy, insomnia, poor decision-making, irritability, and trauma symptoms. The worker’s current symptoms included but not limited to, noted trauma related symptoms of hypervigilance, startle response, nightmares, flashbacks, panic attacks, irritability, anger, poor concentration and sleep, high arousal response and avoidance.
Both the worker and employer representative have characterized the worker’s return of symptoms in 2021 as a recurrence in keeping with WSIB OPM 15-02-05. With reference to recurrence policy, I find there is no evidence the worker experienced a significant deterioration of their PTSD noting they did not resume their pre-injury duty and having been exposed to any actual trauma experiences, cues, or triggers. The worker reported having no trauma symptoms owing to work in major crimes from 2018 through to 2021 and given that they have not worked since October 17, 2021, the psychologist’s report of current trauma symptoms is unclear. Additionally, I find the worker’s 2021 state was characterized as anxious and I find there is little evidence to support actual work duties and PTSD was the predominant cause of anxiety and there is ample evidence to support that employment issues were a significant contributing factor. These included discord with their employer over covid-19 mandates concerning mandatory masking, vaccines and their inability to secure a permanent masking restriction and/or exemption. Also, public covid-19 mandates in general, their displeasure with government policy concerning covid-19 mandates and their pending disciplinary review.
WSIB 11-02-02 concerning lost time wages stipulates clinical evidence must support an inability to work is due to the work-related injury/disease and WSIB OPM 18-03-02 stipulates LOE is payable if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work. I find the preponderance of contemporaneous evidence supports that PTSD was not the cause of the worker’s wage loss and that other non-work-related causes were a significant and predominant factor in the worker’s wage loss. I find that the worker elected to stop working on October 17, 2021 given their refusal to provide the employer information concerning a non-claim related accommodation and there is no evidence to support a return of trauma given the worker’s lack of return to work and exposure. Additionally, there is no evidence to support the worker would have suffered trauma cues that would have precluded return to work noting their past treatment provided them the coping tools and strategies to continue their pre-injury work duties. Accordingly, the worker is not entitled to LOE benefits from October 17, 2021 and ongoing.
CONCLUSION
The worker has initial entitlement to PTSD and associated health care treatment.
The worker is not entitled to LOE benefits.
Both the worker and employer’s respective objections are denied.
DATED June 14, 2024Click or tap to enter a date.
Appeals Resolution Officer
Appeals Services Division