Worker v. Employer, 2024 CanLII 77394

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20240051

OBJECTING PARTY:

worker

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

employer

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

VIDEOCONFERENCE – June 18, 2024

HEARD by:

C. Goegan, appeals resolution officer

ADDITIONAL ATTENDEES:

DATED:

OBSERVER FOR THE WORKER

EMPLOYER RESOURCE PERSON

WITNESS FOR THE EMPLOYER

JUNE 24, 2024

ISSUES

The worker is objecting to the following decisions of the Case Manager:

1. The February 22, 2022, decision concluding the pre-injury job of paramedic with accommodations was unsuitable.

2. The February 7, 2023, decision denying entitlement to an adjustment disorder and the reactivation of return to work (RTW) services.

3. The February 7, 2023, decision confirming a deferral of the 72-month final loss of earnings (LOE) benefit review and concluding no LOE benefits were payable at the time of the final review on July 11, 2022.

4. The February 8, 2023, decision denying entitlement to a recurrence and full LOE benefits from March 7, 2022.

5. The February 8, 2023, decision denying entitlement to a recurrence and full LOE benefits from April 29, 2022.

BACKGROUND

The background details of the case are well described in Appeals Resolution Officer (ARO) decisions dated September 17, 2018, and January 28, 2022. Therefore, it is not necessary for me to repeat them at length. I will, however, provide a synopsis of the case to place the issues before me in context.

On June 10, 2012, this then 30-year-old paramedic developed an emotional reaction following a response to a female patent who was 37-weeks pregnant and found with vital signs absent. Both the female patient and the unborn child died following an emergency caesarean section. The next day, the worker experienced an unusual number of serious incidents. She subsequently developed psychological symptoms.

Initial entitlement to a traumatic mental stress injury was originally denied. The Case Manager later reconsidered initial entitlement in June 2016 and allowed the claim under Policy 15-03-13 (PTSD in First Responders and Other Designed Workers) as they determined the presumptive threshold for entitlement to PTSD in the policy had been established.

The worker claimed LOE benefits for multiple periods during 2012, 2015 and 2016. The Case Manager denied LOE benefits, and the worker objected to the decision. In the September 17, 2018, decision the ARO upheld the denial of LOE benefits for all periods claimed as they found all the periods of lost time were not because of the work-related PTSD.

The worker claimed a recurrence of the PTSD on July 5, 2017. The Case Manager allowed the recurrence, and the worker began receiving full LOE benefits from July 5, 2017.

In September 2018, the RTW Specialist met with the workplace parties and developed a graduated RTW plan that consisted of the worker completing e-learning modules and attend base hospital training to re-certify her paramedic skills before she could begin riding along as a third paramedic in an ambulance.

During the period from September 2018 to March 22, 2021, the worker participated in an extensive RTW plan with the employer and resumed working on an ambulance crew as a third paramedic. The worker received two-years of concurrent occupational therapy (OT) and psychological treatment. Despite the extensive services received, the worker was unable to increase her work schedule beyond eight shifts per month (two shifts per week). The regular shift rotation was 14-shifts per month in a 28-day shift cycle.

The worker stopped working on March 22, 2021, and cited side effects related to a change in her medications. In a decision dated April 21, 2021, the Case Manager concluded the worker was permanently restricted from her pre-injury paramedic duties.

The worker was ultimately determined to have reached maximum medical recovery (MMR) by November 4, 2021, with a permanent psychological impairment resulting from the PTSD. She subsequently received a 10% Non-Economic Loss (NEL) benefit.

After the decision that the pre-injury job was unsuitable, the worker continued to participate in RTW activities with the employer. On January 6, 2022, the employer offered to provide temporary modified duties at a vaccine clinic.

In the ARO decision dated January 28, 2022, the ARO concluded the worker was permanently unable to return to the pre-injury work duties as a paramedic without accommodations. The ARO directed the Case Manager to review the worker’s ability to return to the pre-injury paramedic duties with accommodations by taking into consideration her ability to work part-time (as opposed to full-time) and other restrictions that included being restricted from roles predominantly requiring paperwork, night shifts, and needing to work in structed and predictable settings.

The worker’s psychologist provided additional information concerning the worker’s ability to work on February 16, 2022. She recommended the worker gradually resume her paramedic duties at less than full-time hours. The psychologist also confirmed the worker remained permanently restricted from any job predominantly requiring paperwork and night shifts but was no longer limited to working in structured and predictable settings.

The Case Manager reviewed the February 16, 2022, report from the psychologist and in a decision dated February 22, 2022, determined the pre-injury job of paramedic remained unsuitable, despite the restrictions suggested by the psychologist.

The worker stopped working on March 7, 2022. The treating psychologist submitted a report indicating the worker was grieving the loss of her career. In a March 30, 2022, decision the Case Manager denied entitlement to LOE benefits for a recurrence of the work-related PTSD as they concluded there was no evidence of a significant deterioration.

The worker returned to work in an alternate position on April 19, 2022. She later stopped working on April 29, 2022, citing an increase in psychological symptoms. In a decision dated May 4, 2022, the Case Manager denied LOE benefits from April 29, 2022, as they found there was no significant deterioration in the work-related psychological condition.

The worker remained off work and attended an independent psychological assessment on August 6, 2022. The independent psychological assessor diagnosed an adjustment disorder associated with the loss of the worker’s career and the interruption in her income. The psychological evaluator recommended further assistance from the RTW Specialist in facilitating a return to work with the employer.

In a February 7, 2023, decision the Case Manager denied entitlement to the adjustment disorder. They determined it was unrelated to the PTSD. The Case Manager also denied entitlement to further RTW services.

In a separate decision also dated February 7, 2023, the Case Manager confirmed the 72-month final LOE benefit review had been deferred. They determined the final LOE benefit review date was July 11, 2022, after the closure of RTW services and found there was no ongoing wage loss because of the work-related PTSD.

In two separate decision letters both dated February 8, 2023, the Case Manager revised both the March 30, 2022, and the May 4, 2022, decisions. However, they upheld the denial of LOE benefits from March 7, 2022, and April 29, 2022, on the basis the worker remained capable of performing suitable work with the employer.

The worker, through her representative objected to the February 22, 2022 decision, both February 7, 2023 decisions, and both February 8, 2023, decisions. The matter was referred to the Appeals Services Division for consideration.

PRELIMINARY MATTER

At the beginning of the hearing the worker representative confirmed she was withdrawing her objection to the component of the February 7, 2023, decision denying entitlement to additional RTW services.

AUTHORITY

Operational Policy Manual

Published

11-01-01 – Adjudicative Process 15-02-05 – Recurrences 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) 18-03-06 – Final LOE Benefit Review 19-02-07 – RTW Overview and Key Concepts 19-02-10 – RTW Assessments and Plans

November 3, 2008 April 9, 2021 September 1, 2021 April 9, 2021 April 9, 2021 November 30, 2020

ANALYSIS

I carefully considered all the available information, testimony, legislation, and relevant operational policies in reaching this decision. For the reasons explained below, I find:

• The pre-injury job of paramedic is suitable with accommodations.

• The final LOE benefit review date was June 10, 2020. The worker is entitled to partial LOE benefits from June 10, 2020, based on her actual employment earnings as a paramedic at that time that consisted of working eight 12-hour shifts during a 28-day shift rotation.

• The worker does not have entitlement for the diagnosis of an adjustment disorder and is not entitled to additional LOE benefits for either of the claimed recurrences on

March 7, 2022, or April 29, 2022.

The Worker’s Position and Remedy Sought

The worker representative provided detailed arguments and submissions at the hearing. While I considered her arguments in their entirety, I have summarized the worker representative’s positions on the issues in dispute as follows:

• The 72-month benefit review decision should have occurred no later than June 10, 2020. She submitted that as the worker was never involved in a RTW plan with training, the final LOE benefit review could not be deferred for a period any longer than 24-months from the legislated date of June 10, 2018.

• The LOE benefits should have been “locked-in” on June 10, 2020, based on the worker’s actual employment earnings in the accommodated paramedic position she was performing at that time, working two 12-hour shifts per week.

• The worker’s pre-injury job as a paramedic is suitable with accommodations. The representative argued the worker returned to her regular paramedic duties with accommodations in April 2023 without any issues which establishes both the suitability and sustainability of the job.

• The worker experienced a marked degree of deterioration in her work-related psychological symptoms on March 7, 2022, and April 29, 2022, that was clinically compatible with the original injury and resulted in a complete inability to work. The representative submitted the requisite entitlement criteria for a recurrence of the work-related PTSD was met on both occasions and argued the worker is entitled to full LOE benefits for the lost time from work following both dates. She argued the worker grieving the loss of her career was not a significant intervening event that broke the chain of causation between the original injury and the psychological deteriorations.

The Employer’s Position

The employer representative agreed that the pre-injury job of paramedic with accommodations is suitable given the worker returned to work in the position in April 2023 and has remained in the job at less than full-time hours. He submitted that when the Case Manager made the decision concerning the suitability of the accommodated work, the concern was primarily with the sustainability of the paramedic position.

With respect to the claimed recurrences the employer representative argued the evidence supports the denial of both recurrences and the adjustment disorder. He submitted both claimed recurrences resulted from a deterioration in psychological functioning which was diagnosed as an adjustment disorder due to the worker grieving the loss of her career. The representative submitted the grief over the loss of the career was a significant new incident for the worker. He argued that when a deterioration results from a significant new event or incident, there cannot be entitlement to a recurrence.

The employer representative also argued that the 72-month final LOE benefit review decision was correct. He submitted the deferral of the final LOE benefit review was appropriate as the worker was involved in RTW planning activities with the employer that continued well after the 72-month period was reached.

The Worker’s Testimony

The worker testified that she is currently working as a paramedic with accommodations. She returned to that job in April 2023 and works two 12-hour shifts per week.

The worker was questioned about a January 2019 RTW meeting she attended with the employer and the RTW Specialist. The worker explained that she re-certified her paramedic credentials and began riding along in an ambulance as the third member of a paramedic team.

The worker testified that riding in the ambulance as the third member of the paramedic team between February 2019 and August 2019 was good for her as there were two other paramedics she could rely on for support. She confirmed that during this period she was happy and feeling better about herself as her goal was always to resume her career as a paramedic. She testified that she continued in this accommodated role until March 2021 when she stopped working because of an issue with prescription medications.

The worker testified it was difficult for her during the period she was off work after March 2021. She explained she felt sad, frustrated, and lonely. She also felt as though she had no purpose. The worker testified that he had a difficult time navigating the WSIB system and was continually reminded that she was sick and disabled because of her PTSD.

The worker recalled a conversation she had with the Case Manager concerning the decision that the pre-injury paramedic job was not suitable. She testified that once she understood the decision, she was “gutted” and it “broke her”. The worker indicated she could not understand how the decision was made because she had been doing the job before she stopped working.

The worker also testified that after she received the January 28, 2022, ARO decision she felt knocked down, which caused her PTSD symptoms to escalate. When she learned of the ARO decision that her paramedic job was unsuitable, she was extremely concerned about her vocational future.

In April 2022, the worker returned to a temporary modified work job moving trucks. She stated it was the only work the employer had available and confirmed she accepted it because she needed money. The worker stated she had no interest in the job because she wanted to be a paramedic. The worker testified that she could not work at her own pace in the job, and she stopped doing it because her anxiety was bad.

The worker recalled that in June 2022 she accepted an offer of temporary work in an employer run vaccine clinic. She explained that by that point; she was willing to do anything to return to work.

The worker later accepted an alternate work assignment as a hospital monitor where she would watch patients that had been transported to hospital. The purpose of the position was to enable the paramedics that had transported patients to return to responding to calls. The worker confirmed she did not enjoy that position and was frustrated because she wanted to return to work as a paramedic.

The worker testified that she facilitated attending an independent psychological examination with Dr. Douglas in the fall of 2022. He concluded she could return to work as a paramedic. The worker explained that her union representative submitted a copy Dr. Douglas’ report to the WSIB, but the Case Manager did not accept any of the recommendations.

The worker testified she later pursued a Human Rights Code complaint against the employer and the result was she was allowed to return to work in her paramedic job. The worker confirmed she performed modified duties in October and November 2022 before moving to a community paramedicine program. She ultimately returned to work as a paramedic on an ambulance with accommodations in April 2023. She explained she works two 12-hour shifts per week and does not work nights as she is restricted from working between midnight and 7:00am.

The worker testified that after she returned to the ambulance as a paramedic, she felt “great”. When questioned, she indicated she is uncertain whether she can increase beyond the two 12-hour shifts per week. She explained she still has PTSD and continues to see a psychologist. She becomes emotional after her 12-hour shifts and functions better with day off between shifts.

The Witness’ Testimony

After hearing the testimony of the worker, the employer representative confirmed the testimony of the employer witness was not required.

The 72-month Final LOE Benefit Review

Noting the sequence of events that transpired in the claim and the arguments of both representatives, I will begin by addressing the 72-month final LOE benefit review decision.

On this issue, I agree with the argument and position of the worker representative. I find that while a deferral of the 72-month final LOE benefit review was appropriate in the case, the latest possible date for completion of the final LOE benefit review was June 10, 2020.

Policy 18-03-06 (Final LOE Benefit Review) states that where a worker is receiving LOE benefits, the WSIB shall not review the LOE benefit more than 72-months after the date of the worker’s injury unless:

• Before the 72-month period expires, the worker fails to notify the WSIB of a change in circumstances or engages in fraud or misrepresentation in connection with their claim for benefits under the insurance plan.

• The worker was provided with a return-to-work (RTW) plan (with training) and the plan is not completed when the 72-month period expires.

• When the 72-month period expires, the worker and the employer are co-operating in RTW activities (including RTW plans without training), or the worker is co-operating in appropriate health care measures.

• After the 72-month period expires, the worker suffers a significant deterioration in their condition that:

o results in a redetermination of the degree of permanent impairment

o results in an initial determination of a permanent impairment

o is likely, in the WSIB’s opinion, to result in a redetermination of the degree of permanent impairment, or

• After the 72-month period expires, the worker suffers a significant temporary deterioration in their condition that is related to the injury.

A RTW plan with training is described in Policy 19-02-10 (RTW Assessments and Plans) and generally outlines the services and assistance a worker requires to enable them to return to work in a suitable occupation, that is available in the general labour market when there are no RTW opportunities with the accident employer.

Health care measures typically consist of active medical rehabilitation designed to bring the worker to a state of MMR so they can return to suitable and available employment and do not include taking medications or receiving maintenance treatment.

Policy 18-03-06 (Final LOE Benefit Review) defines the workplace parties’ co-operation in RTW activities to include:

• The injury employer and worker initiating and maintaining communication with each other throughout the worker’s recovery and impairment.

• Identifying and securing suitable and available work (e.g., injury employer attempting to provide suitable work, worker assisting the injury employer to identify suitable work).

• Providing relevant worker’s information to the WSIB concerning the worker’s return to work, and

• Notifying the WSIB of any difficulty or dispute concerning return to work,

Policy 18-03-06 (Final LOE Benefit Review) confirms that where a RTW plan with training is not completed, a worker is co-operating in appropriate health care measures, or the workplace parties are co-operating in RTW activities when the 72-month period expires, the final LOE benefit review can be deferred beyond 72-months and completed later.

Where the worker is participating in health care measures or co-operating in RTW activities with the employer at the end of the 72-month period, the final review can be deferred for up to two years. However, the review must be completed no later than 24-months after the expiry of the 24-month (two-year) period.

If the worker is involved in a RTW plan with training through the 72-month period, LOE benefits can continue. There may also be cases where a RTW assessment has been arranged or completed before the end of the 72-month period with the intention to provide a RTW plan with training that allows for deferral of the final LOE review. In such cases, the final review must occur within 30-calendar days of the plan completion (i.e., by the 31st day post RTW plan completion), meaning that in such cases the deferral can last longer than 24-months.

The date of the injury in this case was June 10, 2012. Accordingly, the 72-month final LOE benefit review date was June 10, 2018. Since the worker was actively participating in appropriate psychological treatment that remained ongoing at the end of the 72-month period,

I find that the deferral of the 72-month final LOE benefit review was appropriate.

Although deferral of the final LOE benefit review was appropriate pursuant to Policy 18-03-06 (Final LOE Benefit Review), I find that given the circumstances and the evidence before me, the latest possible date for completion of the final LOE benefit review after the deferral was

June 10, 2020. In reaching that conclusion, I took particular note of the following:

• A June 21, 2018, Work Transition (WT) Initial Worker Interview memo from the RTW Specialist outlined the essential duties of the pre-injury paramedic position according to the National Occupation Classification (NOC) system. While the memo listed the transferrable skills of a paramedic, there was no identification of any alternate WT goals with the employer, indication that vocational testing or assessments were being arranged, or any suggestion that a RTW plan with training for re-entry into the external labour market was being considered.

• A September 18, 2018, RTW plan stated the worker would commence e-learning modules to get updated on policies, procedures, and health and safety protocols in preparation for the resumption of her pre-injury job duties as a paramedic with the employer.

• A January 24, 2019, memo A indicated the worker had been cleared for recertification as a paramedic on January 29, 2019.

• A February 22, 2019, memo B stated the worker had completed the recertification and would commence riding as a third paramedic on an ambulance (her accommodated pre-injury job) on February 23, 2019.

• Subsequent RTW memos between April 17, 2019, and August 23, 2019, confirmed the worker continued to ride as the third member of an ambulance crew. An August 23, 2019, memo C confirmed the worker would require medical clearance before she could discontinue working as a third paramedic, and resume working as part of a 2-person paramedic team.

• The worker resumed working as a paramedic with accommodations as planned. An

April 21, 2020, memo D stated the worker had been working part-time for approximately one year. The memo indicated the final LOE review was approaching, and the worker remained at seven 12-hour shifts out of a 28-day rotation. The memo stated the employer was able to accommodate the worker if they were permanently restricted from full-time work and noted there had been no change in the recommendations of the worker’s psychologist or occupational therapist that would allow for a progression in work hours.

• A May 28, 2020, memo E from the Case Manager indicated the worker was at work performing regular duties at reduced hours.

• A June 17, 2020, RTW plan (memo F) outlined the worker’s schedule between

June 1, 2020, and August 17, 2020. The plan stated the worker had progressed to working eight 12-hour shifts per 28-day work cycle. The RTW Specialist noted they would contact the treating health care professionals in August 2020, to review the worker’s readiness to progress to nine shifts per cycle.

Noting the information referenced above, I find there is no evidence that the worker was participating in a RTW plan (with training) that was ongoing when the 72-month period was reached on June 10, 2018.

The RTW Specialist completed an initial interview with the worker on June 21, 2018. While they listed the transferrable skills of a paramedic according to the NOC system, there was no indication that any formal assessments, vocational testing, vocational training to acquire new skills, job search training or employment placement services were being arranged or considered to assist the worker in returning to work in an alternate capacity. I do not consider the recertification process the worker participated in to represent a RTW plan with training. The RTW memos confirm the worker completed the recertification within one month in 2019 and it did not involve her acquiring new vocational skills. The worker confirmed during her testimony it was simply mandatory for her to recertify her existing credentials periodically to maintain her ability to continue practicing as a paramedic.

I find the RTW planning that followed the initial WT interview, consisted entirely of facilitating a return to work in the pre-injury job of paramedic with appropriate accommodations. Therefore, I conclude that since the worker was participating in psychological treatment and co-operating in RTW activities with the employer beyond the deferral of the final LOE benefit review, and was not actively involved in a RTW plan with training, the latest possible date for the final review was

June 10, 2020.

According to the June 17, 2020, RTW memo F, the worker had progressed to working eight 12-hour shifts during a 28-day shift cycle before June 10, 2020. I found this to be generally consistent with the worker’s testimony since she confirmed she never progressed beyond two 12-hour shifts per week.

As I find the worker was not in a RTW plan with training and there was no basis to extend the deferral of the final LOE benefit review beyond June 10, 2020, I find the worker is entitled to partial LOE benefits from June 10, 2020. I find the partial LOE benefits are to be calculated based on the actual employment earnings as an accommodated paramedic consisting of part-time employment of eight shifts during a 28-day shift rotation.

I also considered whether there were any significant deteriorations in the work-related PTSD beyond June 10, 2020, as Policy 18-03-06 (Final LOE Benefit Review) confirms that a significant deterioration (either temporary or permanent) after the final LOE benefit review can result in further review of a “locked-in” LOE benefit.

The Case Manager granted the worker entitlement to a period of full LOE benefits from

March 22, 2021, until January 6, 2022. The worker had stopped working during the period and cited side effects from a change in anti-depressant medications and subsequent gastrointestinal issues.

I reviewed the memos in the record between March 24, 2021, and April 26, 2021. In a memo G dated April 21, 2021 the Case Manager specifically indicated that they had granted the worker entitlement to full LOE benefits from March 22, 2021, because of a permanent restriction from pre-injury paramedic duties and not because of the “non-compensable” medical issues.

While the Operating Area did not formally communicate a decision on the gastrointestinal issues to the workplace parties, and that is not an issue in this appeal, it is clear from the memo that the Case Manager did not approve the payment of full LOE benefits because of a significant deterioration in the work-related PTSD. Accordingly, there is no basis to conduct further review of the LOE benefits beyond June 10, 2020.

In summary, the date of the final LOE benefit review is June 10, 2020. The Operating Area is directed to calculate the partial LOE benefit based on the worker’s actual employment earnings for eight shifts over a 28-day shift cycle before June 10, 2020, and communicate the results to the workplace parties.

The Suitability of the Pre-Injury Paramedic Job with Accommodations

There was essentially no dispute between the parties at the hearing regarding the suitability of the pre-injury paramedic job with accommodations. The worker returned to her pre-injury job as a paramedic with accommodations in April 2023 and remains in the job. The employer representative acknowledged the worker has demonstrated the ability to perform the job with accommodations made by the employer and did not dispute the suitability of the accommodated position.

After considering the evidence and the worker’s testimony, I also agree the pre-injury job of paramedic is suitable with accommodations.

The general principals guiding the RTW process for both workers and employers are set out in Policy 19-02-07 (RTW Overview and Key Concepts). The policy defines suitable work as any post-injury work that is safe, productive, consistent with a worker’s functional capabilities and limitations, and that to the greatest extent possible, restores a worker’s pre-injury earnings. Any job is considered within a worker’s functional abilities when the tasks or duties associated with the job can be performed within the physical or cognitive capabilities of the worker. A worker’s ability to return to work can be determined based on the workplace parties’ exchange of relevant information regarding functional abilities, or through a decision by the WSIB (either on its own initiative or by request of either workplace party). To determine whether a worker can return to work, the worker’s functional abilities and limitations are compared to the demands of the job.

Both a worker and their employer are expected to work together to return the worker to a job that is within the worker’s functional abilities, with the employer providing any necessary accommodations, with the eventual goal being a return to the pre-injury job.

An accommodation can be a modification to the terms and conditions of the work or the workplace (e.g., reduced hours, provision of assistive devices) that results in a job that is consistent with the worker’s functional abilities. Accommodation is an individualized process and fact dependent, considering the nature of the work/workplace, the worker’s abilities and limitations, and the essential duties and requirements of the worker’s pre-injury job and other jobs with the injury employer. If a worker can perform the essential duties of their pre-injury job with accommodation, or if a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the injury employer undue hardship, the employer must provide the accommodation to allow the worker to remain at or return to work. Accommodation requirements can be temporary or permanent.

I find the worker’s pre-injury job as a paramedic is suitable with the accommodations of a reduced shift schedule for several reasons.

First, during the period from July 23, 2019, to April 21, 2021, the worker was able to execute her full duties and responsibilities as a paramedic with an accommodated work schedule and progressed to eight 12-hour shifts during a 28-day shift cycle.

Second, after the January 28, 2022, ARO decision, the worker’s treating psychologist

Dr. Sprokay (who treated the worker for an extensive period) confirmed in a February 16, 2022, letter to the Case Manager, that the worker could gradually resume her pre-injury duties.

Dr. Sprokay recommended a gradual return to work, progressing toward 12-hour shifts and gradually progressing toward a full shift complement. She confirmed the structured and predictable setting restriction was no longer necessary but continued to recommend a night shift restriction and a restriction from any role predominantly requiring paperwork. Although the worker later stopped working in March and April 2022 for reasons that I will discuss later in this decision, I place weight on the February 16, 2022, report from Dr. Sprokay. The worker had previously demonstrated a sustained ability to perform her pre-injury job duties with accommodations and Dr. Sprokay was in the best position to evaluate her continued ability to do so.

Finally, the reality of the situation in this case is that the returned to her pre-injury job as a paramedic with accommodations in April 2023. She continues to remain in that position at the time of the hearing. The worker testified in a straightforward and credible manner and when questioned on the suitability of the work, she confirmed that since returning to work in April 2023 with accommodations of a reduced number of shifts and limitations on scheduled working hours, she has successfully managed her pre-injury job duties without any issues.

Therefore, considering that the worker previously demonstrated a sustained ability to perform the essential paramedic duties with accommodations, Dr. Sprokay’s February 16, 2022, report after the January 2022 ARO decision, and given the worker has been working as a paramedic with accommodations consisting of a reduced number of shifts and restrictions working hours (no night shifts) since April 2023, I find the pre-injury job of paramedic is suitable with accommodations.

The Adjustment Disorder and the March and April 2022 Recurrences

I find the worker is not entitled to additional LOE benefits for the claimed recurrences on

March 7, 2022, and April 29, 2022, or for the diagnosis of an adjustment disorder.

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.

A significant new incident is considered one of some consequence or importance and the policy provides the example of as falling from a ladder. Conversely, an insignificant new incident is one of negligible consequence or importance. The example provided is reaching for an object on a shelf.

Policy 15-02-05 (Recurrences) also states that to establish that the 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 employer representative took the position that the claimed deteriorations in psychological functioning and the resultant periods of lost time from work on March 7, 2022, as well as

April 29, 2022, and the diagnosed adjustment disorder all pertain to the same causal factor, which was the worker grieving the loss of her career.

I agree with the employer representative. In my view, both periods of lost time in March and April 2022, as well as the diagnosed adjustment disorder all pertain to the same causal factor of grief over loss of career based on the following:

• On February 22, 2022, the Case Manager rendered their decision that the worker’s pre-injury job duties as a paramedic were not suitable, despite the RTW recommendations made by Dr. Sprokay in her February 16, 2022, report.

• A March 3, 2022, Community Mental Health Program (CMHP) report from Dr. Sprokay stated that after the worker received the January 28, 2022, ARO decision, her anxiety symptoms increased significantly, and treatment became focused on managing fears of insecurity about the future. Dr. Sprokay noted the worker’s anxiety symptoms and self-esteem became more challenging with the situational stressor of grief related to the loss of her career.

• In a March 9, 2022, letter Dr. Sprokay recommended the work remain off work for six-weeks beginning March 7, 2022, due to a recent increase in PTSD symptoms. She confirmed that recent events precipitated grief related to loss of career.

• Dr. Sprokay continued to report the psychological treatment remained focused on managing fears of insecurity about the future with the situational stressor related to loss of career in a CMHP reports dated March 29, 2022.

• In an April 29, 2022, letter to the Case Manager, Dr. Sprokay confirmed that further to her March 9, 2022, letter the worker’s symptom severity continued to worsen and her ability to function in both occupational and non-occupational settings deteriorated.

• A September 6, 2022, report from Dr. Douglas (psychologist) indicated that he agreed with psychiatric diagnoses of PTSD (mild severity, partial remission) and persistent depressive disorder with major depressive episode (partial remission) previously rendered by clinicians at the WSIB Mental Health Specialty Program in February 2021. However, Dr. Douglas opined the worker was experiencing an additional adjustment disorder with depressed mood and anxiety associated with the loss of her career and the interruption in her income. In the report, Dr. Douglas explained that being a first responder and paramedic was central the worker’s identity. He stated that since the worker had been informed by the WSIB they were permanently restricted from her pre-injury job, she had been grieving the loss of her career. He described the worker as feeling helpless, angry, frustrated, saddened, and confused about the future.

After considering the medical reports referenced above and noting the timing of the January and February 2022, ARO and Case Manager decisions, I find it more probable than not that that both claimed recurrences (March and April 2022), the resultant lost time from work, and the adjustment disorder diagnosed by Dr. Douglas all pertain to the worker experiencing a deterioration in her psychological functioning after receiving two separate decisions concerning the suitability of her chosen career. In my view this was clearly explained by Dr. Douglas in his September 6, 2022, report. He concluded the PTSD was in partial remission and opined the worker was experiencing an additional adjustment disorder with depressed mood and anxiety associated with the loss of her career and the interruption in her income.

In my opinion, however, the grief experienced by the worker over the loss of her chosen career as a paramedic after receiving the January 28, 2022, ARO decision and the February 22, 2022, decision of the Case Manager equates to a significant new incident. Policy 15-02-05 (Recurrences) states that a significant new incident is one of some consequence or importance and provides the example of falling from a ladder. An insignificant new incident is one of negligible importance such as reaching for an object on a shelf. Dr. Douglas explained in his report that being a paramedic was central to the worker’ identity. The worker confirmed during her testimony that her chosen career as a paramedic was a significant part of her personal identify and quite candidly acknowledged that learning two WSIB decision makers had concluded her job was unsuitable left her absolutely “gutted”. Given the reporting of Dr. Douglas and the worker’s testimony concerning the importance of her career, I cannot conclude that receiving decisions that the paramedic job was unsuitable was of negligible importance. Rather, I find the events that caused the worker to develop an adjustment disorder associated with the loss of her career and lose time from work for periods from March 7, 2022, and April 29, 2022, were significant stressors of consequence equivalent to the example in the Recurrence Policy of falling from a ladder.

I do not doubt the worker experienced a deterioration in her psychological functioning in March and April 2022 based on the reports from Dr. Sporkay and Dr. Douglas. As noted in Policy

15-02-05 (Recurrences); however, a worker is only eligible for additional benefits for a recurrence of a work-related condition when a significant deterioration does not result from a significant new incident, exposure, or stressor. As I find the events associated with the loss of the worker’s career that caused her to stop working and develop an adjustment disorder were significant stressors, I agree with the employer representative that the worker is not entitled to an adjustment disorder or additional LOE benefits under Policy 15-02-05 (Recurrences).

CONCLUSION

I conclude the following:

1. The pre-injury job of paramedic is suitable with accommodations.

2. The final LOE benefit review date was June 10, 2020. The worker is entitled to partial LOE benefits from June 10, 2020, based on her actual employment earnings as a paramedic at that time that consisted of working eight 12-hour shifts during a 28-day rotation.

The Operating Area is directed to calculate the partial LOE benefit based on the worker’s actual employment earnings as a paramedic based on eight shifts over a 28-day shift cycle on or before June 10, 2020, and communicate the results to the workplace parties.

3. The worker is not entitled to additional LOE benefits for the claimed recurrences on March 7, 2022, and April 29, 2022, or for the diagnosis of an adjustment disorder.

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

DATED June 24, 2024

C. Goegan

Appeals Resolution Officer

Appeals Services Division