Worker v. Employer, 2025 CanLII 111675

20250041

REPRESENTED by:

HEARD by:

DATED:

MARCH 17, 2025

ISSUE

The worker is objecting to the Case Manager decision of May 31, 2024, which denied loss of earnings (LOE) benefits from May 8, 2024 to May 20, 2024.

BACKGROUND

The worker was employed as a primary care paramedic and had been with the employer since

April 2020. On February 21, 2024, a claim was filed for a mental stress injury arising from cumulative exposure to traumatic events in the worker’s job. The worker was 25 years old when the injury was reported.

The worker was still performing their regular job duties when the claim was reported but informed the employer they intended to seek psychological treatment. A Health Professional’s Report for Occupational Mental Stress (Form CMS8) completed by a psychologist on March 22, 2024, indicated a formal assessment had not been completed but posttraumatic stress disorder (PTSD) was suspected. The report indicated the worker had recently left a shift early due to trauma activation but returned to work the next shift. The psychologist completed a Community Mental Health Program (CMHP) assessment dated April 1, 2024, confirming the diagnoses as PTSD and Social Anxiety Disorder.

The Case Manager decision of April 8, 2024, allowed initial entitlement for PTSD, based on presumptive entitlement for first responders. The worker continued working their regular job duties because it was their preference to do so, and there initially was no lost time as a result of the injury. The worker started treatment through the CMHP on April 11, 2024.

The worker reported a worsening of symptoms on May 2, 2024, due to an incident at work. The psychologist recommended the worker stop work to focus on treatment and stay off work until the end of July 2024. The worker started losing time from work on May 6, 2024, and was out of the country for a pre-scheduled vacation from May 10, 2024 to May 18, 2024.

The Case Manager decision dated May 31, 2024, allowed full LOE benefits for May 6, 2024 and

May 7, 2024, but denied LOE benefits from May 8, 2024 to May 20, 2024 because the worker received vacation pay for pre-approved vacation during that time period. The decision was confirmed in a reconsideration decision dated September 17, 2024.

Full LOE benefits continued to July 29, 2024, when the worker returned to work at no wage loss.

AUTHORITY

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 15-06-07 Leaving the Province/Country

September 1, 2021

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find full LOE benefits are in order from May 8, 2024 to May 20, 2024. My reasons are explained below.

According to operational policy 18-03-02, if the nature or seriousness of the injury 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 they co-operate in health care measures and all aspects of the return-to-work (RTW) process.

A letter from the psychologist dated May 2, 2024, indicated the worker reported experiencing a critical incident at work that day, resulting in an acute and extreme exacerbation of stress and emotions. The psychologist recommended the worker remain off work until their symptoms and functional abilities were further assessed. The worker was scheduled to see their treating psychotherapist on May 6, 2024. A report from the psychotherapist and psychologist dated May 6, 2024, supported the worker in taking a leave from work until July 2024.

The Case Manager spoke to the worker’s psychologist on May 14, 2024, documented in claim file memo A0023. The psychologist reported that the worker had remained at work since the injury, suppressing significant trauma activations out of a feeling of obligation to remain at work, and fear of stigma from peers. It was the psychologist’s opinion that this avoidance had prevented the worker from developing an awareness of and connection to their trauma symptoms, resulting in further accumulation of trauma. The worker’s symptoms included high reactivity, flashbacks, intrusive memories, and a negative emotional state, particularly fear and anger. The psychologist also noted the worker had an intense fear of taking a leave from work. Treatment and recovery barriers included the length of time the worker had been suppressing trauma activations without psychological support; ongoing exposure to trauma triggers; impaired concentration in conversations; feelings of shame; difficulties relating to friends, family, girlfriend; stigma; and an unwillingness to accept accommodations at work. The psychologist noted the worker felt very strongly about helping people in cardiac arrest, and when dispatch refused to send the worker to a cardiac arrest call on May 2, 2024, the worker became dysregulated and experienced anger and concern about what the crew must be going through. The worker could hear the call over the radio and was distressed that they could not assist on the call. The worker reported that the incident triggered flashback to other calls and triggered emotional dysregulation that persisted for days beyond the incident.

The psychologist recommended no return to work at that time due to the severity of symptoms and to allow the worker time to focus on treatment.

The Case Manager decision of May 31, 2024, accepted that the worker was completely unable to work as of May 6, 2024. Loss of earnings benefits were denied from May 8, 2024 to May 20, 2024, because the worker was on a pre-approved vacation from May 10, 2024 to May 18, 2024, and received vacation pay for that period.

Operational policy 15-06-07 states in part that WSIB benefits may be affected when a worker leaves the province or country. To minimize the possibility of an interruption in benefits, workers/survivors who leave the province or country should notify the WSIB beforehand. The WSIB allows up to three weeks of vacation per year, provided the vacation period does not interrupt, in relevant cases, the worker’s health care treatment or return-to-work (RTW) activities. If a worker is fully impaired and takes a vacation, full benefits may continue.

The worker representative submitted an Appeal Readiness Form date October 10, 2024, with an attached submission dated September 13, 2024. It is their position that full LOE benefits should be paid for the worker’s vacation from May 10, 2024 to May 18, 2024, so that the worker’s vacation hours can be restored by the employer. They argued this is appropriate because the worker was completely unable to work during that period. The worker representative argued that the vacation in May 2024 had been approved by the employer months earlier and because it was an out-of-country trip, the worker may have incurred financial penalties if they had cancelled the trip on short notice.

The employer submitted a Respondent Form dated January 31, 2025, with an attached submission. The employer agrees with the denial of LOE benefits from May 10, 2024 to May 18, 2024. It is their position that the worker failed to notify the WSIB of their vacation and interrupted an ongoing treatment plan recommended by the treating psychologist. The employer argued that the psychologist recommended treatment twice per week, and that the worker’s vacation caused them to miss treatment sessions. The employer argued that the worker was non-compliant with treatment, which warranted the denial of LOE benefits during the vacation period.

I have considered the arguments presented by both parties and find LOE benefits should be paid from May 8, 2024 to May 20, 2024.

I note that operational policy 15-06-07 allows up to three weeks of vacation per year and states that if a worker is fully impaired and takes a vacation, full benefits may continue. It was accepted in the Case Manager’s decision that the worker was fully impaired from working as of May 6, 2024, and the worker’s vacation was less than three weeks, which means the operational policy allows the payment of full LOE benefits during the vacation.

The employer argued that the worker failed to notify the WSIB of their vacation plans, but I find that is not accurate. On May 9, 2024, documented in claim file memo A0014, the worker left a voice mail message for the Case Manager that they would be leaving for pre-approved vacation and would be out of the country from May 10, 2024 to May 18, 2024. The worker spoke to the Case Manager on May 10, 2024 in claim file memo A0018, reporting they were about to board a plane and would be returning on

May 18, 2024.

The employer also argued that the worker was non-compliant with treatment, but I find their position is not supported by reports from the psychologist. The CMHP assessment report dated April 1, 2024, recommended weekly treatment appointments. After the workplace incident on May 2, 2024, the psychologist and the treating psychotherapist recommended the worker remain off work until the end of

July 2024. A CMHP progress report dated May 27, 2024, indicated the worker had been actively engaged in treatment and completed all assigned homework. That report also noted the worker was attending sessions twice per week, which suggests the treatment frequency may have increased after the worsening symptoms on May 2, 2024. The worker completed the initial block of six treatments from

April 11, 2024 to May 23, 2024, which means the worker was averaging one session per week. The next CMHP progress report dated June 24, 2024, indicated the worker had completed the next block of six treatment sessions between May 28, 2024 and June 18, 2024. The report indicated the worker continued to actively participate in treatment and was making progress. The worker was able to return to work on July 29, 2024, which was consistent with the treatment and return to work goals identified on

May 6, 2024. Noting the worker was actively participating in treatment and was able to return to work on the anticipated schedule, the evidence suggests that the vacation from May 10, 2024 to May 18, 2024 did not significantly interrupt the worker’s treatment schedule and did not impact the return to work and recovery goals.

Although the worker was on vacation from May 10, 2024 to May 18, 2024, LOE benefits were denied from May 8, 2024 to May 20, 2024. I assume that was due to the fact that the worker was not scheduled to work for two days before and after the vacation. In claim file memo A0029 dated May 24, 2024, the employer confirmed that the worker started to lose time on May 6, 2024, lost two 12-hour shifts on

May 6, 2024 and May 7, 2024, and started on a pre-approved vacation from May 10, 2024 to

May 18, 2024 for which the worker received vacation pay. The worker’s next scheduled shift after their vacation was May 20, 2024. The employer reported that full advances were paid.

I am satisfied that full LOE benefits are in order from May 8, 2024 to May 20, 2024, because it has been accepted that the worker was completely unable to work from May 6, 2024 due to a worsening of PTSD symptoms. Although the worker was on a scheduled vacation from May 10, 2024 to May 18, 2024, they would not have been able to work during that period because of the work-related PTSD. The worker informed the Case Manager they would be away on vacation, in compliance with operational policy

15-06-07. I also find the vacation did not significantly interfere with the treatment plan. For these reasons, I find LOE benefits are in order from May 8, 2024 to May 20, 2024.

Regarding implementation of the decision, it appears the decision is ready to implement. In claim file memo A0040 dated June 13, 2024, a Payment Specialist confirmed that the employer paid full advances to the worker from May 6, 2024 and the employer would receive the entire payment for LOE benefits.

Short-term average earnings were calculated in claim file memo A0042 dated June 26, 2024.

CONCLUSION

I conclude full LOE benefits should be paid from May 8, 2024 to May 20, 2024, and the worker’s vacation hours for that period should be restored to them by the employer.

The worker’s objection is allowed.

DATED MARCH 17, 2025

Helen Shaw

Appeals Resolution Officer Appeals Services Division