APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20250042
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT PARTY: Employer (Not participating)
HEARING: HEARING IN WRITING
HEARD by: K. Denbok, appeals resolution officer DATED: MARCH 11, 2025
ISSUE(S)
The worker, through their representative, is objecting to the case manager’s decision dated September 16, 2022, which denied loss of earnings entitlement from January 14 to April 5, 2022.
BACKGROUND
On January 2, 2022, the worker, employed as a bus driver, had stopped the bus at a stop when three men boarded the bus. After speaking with the passengers about the requirement to pay bus fares, they responded with profanities and two of the men left the bus. Outside the bus, one of the men pulled out a handgun and pointed it at the worker. Entitlement was granted for an acute stress disorder and loss of earnings from January 4 to 14, 2022, when the worker left the country. Entitlement was later accepted for the diagnosis of post-traumatic stress disorder (PTSD).
In their decision dated September 16, 2022, the case manager denied loss of earnings benefits from January 14 to April 5, 2022, as the worker left the country and was unable to participate in health care or return to work activities.
Loss of earnings entitlement was subsequently allowed from April 5, 2022, while the worker received psychology treatment. The worker returned to work on a graduated plan beginning January 1, 2023. Partial loss of earnings entitlement was supported throughout the return to work plan until the worker returned to their full pre-injury duties on April 23, 2023. The worker was discharged from their psychology treatment on April 4, 2023.
The case manager subsequently determined the worker reached maximum medical recovery for their work-related PTSD as of April 4, 2023, with no evidence of an ongoing impairment.
The worker has objected to the loss of earnings entitlement from January 14 to April 5, 2022, and submitted an Appeal Readiness Form dated July 16, 2024. The issue is now before me.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) September 1, 2021
22-01-03 Worker’s Co-operation Obligations April 9, 2021
15-06-07 Leaving the Province/Country April 9, 2021
19-02-08 RTW Co-operation Obligations November 30, 2020
15-06-08 Adjusting Benefits due to Post-accident, Non-work-related Change in Circumstance April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that entitlement to loss of earnings benefits from January 14 to April 5, 2022 is in order.
Worker’s Position and Remedy Sought
The worker representative is seeking entitlement to the loss of earnings benefits from January 14 to April 5, 2022, while the worker was out of country.
They submit the worker left the country initially on a pre-planned vacation and was originally expected to return to Canada on February 4, 2022. They submit that while the worker extended their time out of country, they advised their case manager and received treatment while out of country. The representative argues the worker actively sought out treatment while abroad to ensure they did not have any setbacks or delays in their recovery. They further submit the worker had been unable to return to work in any capacity, as supported by the medical evidence on record, and did not miss any opportunity for a return to work within the time frame they were out of country.
In their correspondence from July 16, 2024, the representative argues that Policy 15-06-07, Leaving the Province/Country, contemplates the idea of a worker seeking treatment outside the province. They argue the WSIB should consider the worker’s treatment abroad as a valid component of their health care treatment plan. They provide the following Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions to support their position:
Workplace Safety and Insurance Appeals Tribunal Decision No. 794/22
Workplace Safety and Insurance Appeals Tribunal Decision No. 673/16
Employer’s Position and Remedy Sought
The employer is not participating in the appeal and has not provided a written submission for consideration.
Assessment of Evidence
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), explains 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 the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
Following the work-related incident on January 2, 2022, the worker was clinically authorized off work due to their acute stress disorder by their physician and it has been accepted the worker was temporarily totally impaired as a result of the workplace incident when they left the country on January 14, 2022. There is general agreement between the workplace parties that the worker had pre-scheduled vacation time starting January 14, 2022, for approximately one month, with the possibility of extension. The specific duration of the worker’s time off was not known when they left on January 14, 2022, as the worker intended to go abroad to spend time with and care for an ailing parent.
In this case, the worker was out of the country from January 14 to March 2, 2022. The issue to be resolved is whether the worker’s absence interfered with their ability to co-operate in health care measures or the return to work process.
Policy 22-01-03, Worker’s Co-operation Obligations, outlines that a worker who is receiving benefits under the insurance plan is required to provide the WSIB with any information necessary to adjudicate the claim, co-operate in health care measures the WSIB considers appropriate and co-operate in all aspects of the return to work process, including assessments and plans.
Policy 15-06-07, Leaving the Province/Country, explains benefits may be affected when a worker leaves the province or country. If a worker is temporarily totally disabled and takes a vacation, the policy states full benefits may continue. Apart from WSIB approved vacation periods, a worker must submit satisfactory evidence of their condition before they leave and the treatment they received while away. The worker must contact the WSIB upon returning to Ontario and arrange for a clinical examination from the treating health professional.
I accept the worker did provide the Board with the requested information before they left and upon their return to Ontario. The worker notified their case manager on January 10, 2022, they were leaving the country on January 14, 2022, and explained they would be away for about a month or more depending on the condition of their ailing parent. The worker also submitted documentation of the health care they received from their doctor before leaving the country, as well as documentation of the health care they received while abroad.
I note the case manager’s decision from September 16, 2022, explains the worker did not have the availability for health care or return to work activities the WSIB deems necessary for continued loss of earnings (LOE) entitlement when they were out of country. While I acknowledge the worker was unable to participate in WSIB-approved treatment while they were abroad, Policy 22-01-03 requires the worker co-operate in health care measures the WSIB considers appropriate and there is no explicit requirement for the treatment to be pre-approved. I do not find the worker was explained how to access health care the WSIB deems appropriate prior to leaving the country. Rather, the case manager first discussed the Community Mental Health Program directory on March 7, 2022, once the worker returned to Ontario.
I have considered the treatment recommended by their physician and the nature of the health care the worker received while abroad. During their assessment on January 12, 2022, their doctor recommended sleep medication and psychotherapy. During their time out of country, the worker received treatment from a registered psychiatrist, which included a psychological assessment, psychotherapy sessions and a prescription for medication.
Dr. Kalache authored a letter dated February 28, 2022, confirming they first assessed the worker on January 18, 2022, for the acute stress disorder resulting from a work-related incident on January 2, 2022. The psychiatrist documented the worker’s symptoms as recurring and intrusive memories of the incident nearly every day, having disturbed sleep and insomnia, and dreaming about the incident when succeeding to sleep. Irritability, impulsivity, exaggerated response of distress and fear when hearing loud voices, difficulty concentrating, and hypervigilance were also noted. The psychiatrist diagnosed the worker with post-traumatic stress disorder, recommended psychotherapy, and prescribed Paroxetine 20mg.
Dr. Kalache started the psychotherapy treatment on January 18, 2022, with four subsequent sessions until February 28, 2022. The treatment modalities included systematic desensitization, eye-movement desensitization, reprocessing and cognitive behavioural therapy. The worker was noted to have made improvement in eating and sleeping habits, with mild improvement in feelings of anguish, irritability, impulsivity, concentration and being more interactive socially. The worker was recommended further sessions with a psychiatrist or psychotherapist upon their return to Canada.
I accept the worker made every reasonable effort to participate in necessary and appropriate health care measures for their work-related injury while abroad. Dr. Kalache’s letter is comprehensive in their observations of the worker and the treatment modalities used in each session. The report provides a clinical diagnosis, detailed clinical observations from each session over the course of treatment and a plan for treatment when the worker returned to Canada.
Upon their return to Ontario on March 2, 2022, I find the worker continued to demonstrate ongoing co-operation in health care. They first contacted the WSIB on March 4, 2022, to provide the contact information for their treating psychologist and advise they were waiting for an assessment. The worker also saw their family doctor on March 8, 2022. Furthermore, the worker made an effort to find a clinic with a shorter wait time, once the case manager advised there was potential to access a psychology assessment sooner at a different clinic. While I acknowledge the worker had to wait about five weeks to start the recommended psychology treatment after their return to Ontario, I do not find the out of country leave is responsible for the delay. In my view, the wait time for an initial psychology assessment would have still occurred had the worker stayed in Ontario.
For these reasons, I do not find the worker’s out of country leave interfered or delayed their access to appropriate, necessary, and sufficient health care for their work-related recovery.
Policy 19-02-08, RTW Co-operation Obligations, explains that in assessing whether co-operation has taken place, the WSIB generally looks to the pattern of actions and behaviours of the workplace parties. The WSIB considers and weighs all of the relevant facts and circumstances, including the capability to carry out the obligation and the degree to which the workplace party has initiated/participated in required activities.
I find it relevant the worker was medically authorized off work from their treating physician and psychologist prior to their time out of country and for several months after their return. On March 8, 2022, Dr. Januk recommended the worker continue with psychology treatment and anti-depressant medication and opined the worker was not able to return to work due to their inability to focus, sleep disruption and panic attacks. The treating psychologist further opined the worker was unable to work in any capacity in their assessment report from April 4, 2022, due to extreme anxiety levels, reexperiencing the incident, sleep dysfunction and avoidance, and recommended six to eight weeks of treatment before any return to work. Subsequent psychology reports continue to support temporary total impairment.
While I acknowledge the worker has obligations throughout the return to work process, I note that neither the employer nor the Board initiated any return to work discussions or plans before the worker left the country, or during the worker’s absence. While I acknowledge the employer had not received information about the worker’s limitations at the time of their employer’s report of injury, there was no discussion or offer of modified duties. In my view, the employer had opportunity to identify and discuss potential accommodations in the absence of medical precautions and plan for future return to work discussions. However, with the documented information on record, the case manager spoke with the employer on January 20, 2022, and documented a plan to speak with the worker about their recovery and return to work status when they returned to Ontario. The case record does not include discussions with the employer about potential accommodations they can offer once the worker is able to return to modified work.
I agree with the worker representative’s argument there were no return to work activities or missed opportunities while the worker was out of country. I find it compelling the employer did not offer or discuss any workplace accommodations until several months after the worker’s return. The case manager first involved a return to work specialist in December 2022 when the psychologist opined the worker was able to start a graduated return to work. Given the return to work planning was dependant on the worker having the medical clearance to initiate a return to work, I find the worker did not miss any specific return to work activities during their out of country leave. The worker’s leave did not interfere with the worker’s return to work obligations.
I acknowledge the case manager’s decision from September 16, 2022, denied entitlement to LOE benefits while out of country, as they considered the leave to be a post-accident non-work-related change in circumstance. However, Policy 15-06-08, Adjusting Benefits due to Post-accident, Non-work-related Change in Circumstance, explains that when the nature or seriousness of the work-related injury completely prevents a worker from returning to any type of work, and the post-accident change is not affecting or impeding the treatment of the work-related injury, it has no bearing on the level of benefits payable to the worker. While the worker’s decision to extend their time out of country is a post-accident change in circumstance, the worker was unable to work in any capacity before and during their leave, as well as for several months after their return. As I have determined the worker’s health care out of country was appropriate and sufficient for their work-related injury, I have accepted their out of country leave did not impede their treatment. Further to Policy 15-06-08, the worker’s loss of earnings entitlement would not be impacted during their temporary leave.
I find it was the seriousness of the work-related injury, instead of the out of country leave, that precluded the worker from returning to work of any kind. Further to Policy 18-03-02, when the seriousness of the injury completely prevents a worker from returning to any type of work, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work process. As the worker’s wage loss from January 14 to April 5, 2022, continued to be due to their work-related injury, the worker is entitled to full loss of earnings benefits.
CONCLUSION
The objection is allowed.
I find the worker is entitled to loss of earnings benefits from January 14, 2022, to April 5, 2022.
DATED March 11, 2025
K. Denbok Appeals Resolution Officer Appeals Services Division