Worker v. Employer, 2025 CanLII 39098

20250028

REPRESENTED by:

HEARD by:

DATED:

ISSUE

The worker representative, on behalf of the worker, is objecting to the Case Manager’s decision of October 26, 2020 (reconsidered and upheld on October 17, 2024) to deny entitlement to loss of earnings (LOE) benefits after October 31, 2020 due to voluntary retirement.

BACKGROUND

On June 9, 2017, this then 51-year-old police sergeant claimed cumulative stress over time. An Eligibility Adjudicator authorized entitlement to post-traumatic stress disorder (PTSD) in a decision dated September 1, 2017. On June 5, 2020, the employer provided the Workplace Safety and Insurance Board (WSIB) with details of their return-to-work (RTW) program including the ability to accommodate the medical restriction of being unable to return to policework. The employer provided details about a support role in a support branch which would be available for periods longer than six months. The Case Manager wrote to the psychologist on the same date to state that no reports had been received since December of 2019.

Case conferences with the Case Manager, psychologist, and worker took place on June 18, 2020 and June 26, 2020 to discuss the impact on LOE benefits as the worker was contemplating retirement. The Case Manager wrote to the treating psychologist again on September 4, 2020 to state once more that no reports had been received since December of 2019. An assessment referral to a local mental health facility was made on September 14, 2020. On September 18, 2020, the WSIB was informed that the worker had provided the employer with formal notice that they would be retiring effective October 31, 2020. The Case Manager wrote to the psychologist and worker on October 2, 2020 confirming the potential RTW scenarios and the impacts of retirement on LOE benefits. Another follow-up meeting took place on October 9, 2020 between the Case Manager, psychologist, and worker in which the contents of the October 2, 2020 letter were reviewed relating to the potential impact on LOE benefits.

On October 13, 2020, a Nurse Consultant wrote to the local mental health treatment facility to clarify that the purpose of the assessment was to collect information to determine maximum medical recovery, RTW restrictions, and rate the permanent impairment. The Case Manager’s decision of October 26, 2020 confirmed that the worker had decided to withdraw from all RTW activities and formally retire from the employer’s workforce as of October 31, 2020. The resulting local mental health treatment facility report of October 28, 2020 provided treatment recommendations. During a discussion with the Nurse Consultant on November 10, 2020, the worker stated that they had retired and did not agree with the treatment recommendations. A decision letter from the Case Manager dated June 17, 2021 set the psychological maximum medical recovery date as October 28, 2020 with a permanent impairment for PTSD. The Case Manager accepted the permanent restriction of no working in the field of policing in any context.

A 25% non-economic loss (NEL) benefit for the permanent PTSD impairment was awarded in July 2021. The 72-month mark in this claim was reached on June 9, 2023. An Appeals Resolution Officer (ARO) decision dated January 5, 2024 authorized the extension of the time limit to object to the decision dated October 26, 2020. Correspondence from the employer dated April 25, 2024 stated that full wages would have been restored if the worker had pursued RTW as alternate duties were available. Another letter from the employer dated April 30, 2024 clarified the availability of civilian roles/duties available in all divisions throughout the region. The Case Manager’s reconsideration letter of May 6, 2024 accepted that the employer could have accommodated the worker in a non-policing context exploring both temporary and permanent duties at no wage loss. The Case Manager noted the worker’s verbal indication of November 10, 2020 that they were refusing all treatment recommendations since they had chosen to retire from the workforce and did not wish to RTW in any capacity.

In September 2024, an ARO returned the worker’s objection to the decision of October 26, 2020 as the prior ARO decision January 5, 2024 contained findings of fact with respect to the worker’s level of impairment and ability to RTW. The amended ARO decision of October 15, 2024 removed comments on the psychological condition and level of impairment as it related to the ability to work. The amended ARO decision confirmed the allowance of the extension to object. The Case Manager’s reconsideration letter of October 17, 2024 determined that the worker had made a fully informed choice to retire from the workforce with no intention of a RTW in the foreseeable future, removing themselves from all participation in RTW services. The administrative decision of October 23, 2024 stated that the worker’s objection would be resolved as a hearing in writing. The issue is now before me.

AUTHORITY

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-02 Responsibilities of the Workplace Parties in Work Reintegration

22-01-02 Material Change in Circumstances – Worker

January 2, 2018

January 2, 2015

January 2, 2013

ANALYSIS

I find that entitlement to LOE benefits after October 31, 2020 is not in order. My reasons for this determination are set out below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position and remedy sought

The worker representative is seeking a determination that the Case Manager erred in stating that the decision to retire effectively removed the employer’s ability to consider safe/suitable and alternative work. The presented argument stresses that the Case Manager accepted the permanent restriction of being unable to work in the field of policing in any context.

It is the worker representative’s position that there are two indisputable facts in this case consisting of the inability to return to the pre-accident job or any other form of police work, and that by retiring the worker voluntarily removed themselves from RTW activities that the WSIB might otherwise have initiated on their behalf. The worker representative notes that the maximum medical recovery and permanent restriction decisions were made only after the Case Manager rendered the decision to close LOE benefits.

In the view of the worker representative, the WSIB should have determined what the worker could have earned in a suitable occupation (SO) and set the LOE benefit rate at the wages attainable in the determined SO. However, if the evidence supports that the worker remained incapable of returning to any employment due to the PTSD, the worker representative argues that entitlement to full LOE benefits should be restored. The submission is made that retirement from the employer is not synonymous with retirement from the labour market.

If the worker’s appeal is successful, the worker representative is requesting entitlement to LOE benefits beyond the retirement date of October 31, 2020.

Employer representative’s position

The employer representative argues that there is no entitlement to LOE benefits after October 2020 as the wage loss is due to the worker’s decision to retire from their employment, not the work-related injury. While the medical evidence suggests the inability to return to pre-injury duties or police work at the time of retirement, the worker nevertheless rendered themselves unavailable for employment by choosing to retire rather than continue with RTW services. The employer representative points out that the employer is a large, unionized organization with many non-uniform roles and has a RTW re-integration program.

The employer representative maintains that a support position was offered on June 26, 2020. Even if this position is unsuitable, the employer representative submits that there were other positions available, including civilian roles, that were non-uniform and did not involve exposure to viewing or handling potentially traumatic material/content. The employer representative presents that the absence of further exploration of RTW possibilities is due to the worker’s decision to retire prior to the WSIB communicating either maximum medical recovery or the accepted permanent restriction against policing work.

Entitlement to loss of earnings benefits after October 31, 2020

I am not persuaded that LOE benefits are in order as a result of the worker’s retirement effective October 31, 2020.

The worker representative argues that the worker is permanently restricted from work in a policing context and therefore could never return to the employer in any capacity. In the view of the worker representative, the Case Manager should have considered what other work, if any, the worker was capable of performing outside of the employer.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), requires the wage loss to be as a result of the work-related injury. Partial LOE benefits may be in order if the work-related injury prevents the worker from restoring all of their pre-injury average earnings in suitable and available employment. Examples may include workers who return at reduced hours or wages. Entitlement to full LOE benefits may be considered if the WSIB determines that no suitable work is available, provided that the worker co-operates in all aspects of the RTW process.

Policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration, (now RTW) confirms that the RTW co-operation obligations no longer apply once there is no longer an employment relationship between the workplace parties. The end of the employment relationship may be because the worker voluntarily quits or the WSIB is satisfied that no current suitable work with the employer exists or will exist in the reasonably foreseeable future. However, I note that even in these cases, the worker continues to be obligated to cooperate in all aspects of the RTW assessments and RTW plans. I must also consider that Policy 22-01-02, Material Change in Circumstances – Worker, states that the WSIB adjusts benefits retroactively to the date of the change when there is a material change. Policy lists applicable scenarios including changes that impact the worker’s availability for return-to-work activities. A material change in work status includes retirement or otherwise voluntary departure from the workforce.

I observe that on June 5, 2020, the Case Manager writes to the treating psychologist documenting that there had been no reports received since December 2019. The Case Manager explains that a RTW Specialist was not becoming involved and would be discussing the potential of pre-planning activities with the goal of alternative duties with the employer. The Case Manager provides the psychologist with the job description for the support position.

A case conference on June 18, 2020 with the Case Manager, psychologist, and worker discusses RTW and the impact on LOE benefits as the worker indicates contemplating retirement. The Case Manager discusses the impact of ceasing to participate in RTW activities and outlined the hierarchy of RTW, including alternate options in the greater workforce (potentially requiring retraining) if no suitable duties were available with the employer. The case conference of June 18, 2020 documents the Case Manager’s description to the psychologist and worker of the RTW hierarchy as being the following:

The pre-injury job;
Accommodated pre-injury job with the employer;
Suitable/alternative job with the employer;
Alternative jobs in the general labour market.

I note that the follow-up case conference of June 26, 2020 documents the Case Manager’s description of moving down the RTW hierarchy list until a RTW with the employer is exhausted. If this point is reached, the Case Manager explains to the psychologist and worker that the employer is then ruled out as a RTW option and discussion transitions to retraining. I observe that the Case Manager stresses that the concept of “intention” with respect to RTW is critical. Specifically, I accept that the Case Manager clearly explains the impact on LOE benefits if the worker decides to retire and remove themselves from the greater labour market. Further, I note that the Case Manager discusses that the worker may chose to retire and continue to participate in RTW services to return to the greater labour market while remaining entitled to LOE benefits.

The Case Manager’s letter of October 2, 2020 confirms that if the worker continues to participate in RTW services with the goal of returning to the greater workforce in a new SO (provided the employer is ruled out), LOE benefits will continue for the duration of RTW activities and then be adjusted to a partial rate at the conclusion of the RTW plan. The Case Manager stresses the impact on LOE benefits if they are permanently restricted from RTW with the employer in any role depending on if they are intending to

participate in RTW/retraining activities with the RTW Specialist with the goal of returning to returning to the greater workforce in a new SO.

I observe that the worker verbally informs the Case Manager on October 9, 2020 (with the psychologist being present) that they understand that LOE benefits would cease on October 31, 2020 if they make the personal decision to retire from the workforce on that date. The worker then maintains their position on retirement from the general workforce and withdrawing from RTW services completely. I find that the worker makes this personal decision with full knowledge of the impact on their entitlement to LOE benefits given that the case conferences were conducted with the psychologist present and then confirmed in writing.

To summarize, I appreciate that the Case Manager’s decision regarding maximum medical recovery and the acceptance of the permanent restriction against working in the field of policing in any context takes place after the decision letter of October 26, 2020. I also acknowledge the employer representative’s arguments regarding the availability of both the support role, or another possibly suitable civilian position with the employer. However, I find that the question is not necessarily whether the employer is able to offer suitable duties within the worker’s accepted permanent restrictions. I also find that the issue at hand does not revolve around the Case Manager’s lack of identifying what SO, if any, the worker was capable of performing in the general labour market as suggested by the worker representative.

Instead, it is my view that the worker made the personal choice to retire effective October 31, 2020 with full knowledge of the RTW hierarchy and how their decision to remove themselves from participating in all RTW services (including with both the employer as well as in the general labour market) would impact LOE benefits. Additionally, I find that the accepted permanent restriction against working in the field of policing in any context and the subsequent 25% NEL benefit would not prevent the worker from participating in RTW services with respect to identifying a potential SO in the general labour market.

Therefore, in keeping with Policies 19-02-02 and 22-01-02, I accept that the worker’s voluntary decision to retire effective October 31, 2020 breaks the chain of causality between the work-related injury and the wage loss from beyond October 31, 2020. As a result, I find that here is no basis under Policy 18-03-02 to consider either partial or full LOE benefits as it is my opinion that the post-retirement wage loss is not the result of the workplace injury.

CONCLUSION

I conclude that there is no entitlement to loss of earnings (LOE) benefits as a result of the worker’s voluntary decision to retire from the employer and general workforce effective October 31, 2020.

The request for entitlement to LOE benefits beyond October 31, 2020 is denied. The worker’s objection is denied.

DATED FEBRUARY 19, 2025

K. MacMillan

Appeals Resolution Officer Appeals Services Division