- Early and safe return to work {ESRTW} (cooperation) (worker)
- Out of province (health care)
- Benefits (reduction or suspension) (cooperation)
- Loss of earnings {LOE} (eligibility) (impairment)
- Continuity (of treatment) (COVID-19)
The worker suffered a concussion while at work. The worker appealed the following issues: a) a finding of non-cooperation in their obligation to participate in health care measures; b) the quantum of Loss of Earnings (LOE) benefits from June 12 to 25, 2020; and, c) entitlement to LOE benefits from June 26, 2020.
The appeal was allowed.OPM Document No. 22-01-03, "Workers' Co-operation Obligations", sets out the worker's co-operation obligations. A WSIB memo indicated that the worker was in B.C. with her family because of the worker's ongoing/worsening symptoms and depressed mood as a result of not being able to access treatment and being on her own in Ontario during the COVID-19 shut-downs. The Panel found that the worker continued to communicate and co-operate with the WSIB on her recommended treatment, and that she commenced treatment shortly after it was approved for her in B.C.The Panel found that the worker had a legitimate explanation for the change in her treatment plan to pursue alternative treatment in Vancouver with WSIB's approval, as provided for in OPM Document No. 22-01-03. Any delay in accessing the treatment was related to the delay in obtaining WSIB approval for the treatment, and the worker should not be penalized for this legitimate and compelling reason to obtain family support when she was experiencing a deterioration in her mental health, suicidal thoughts, and inability to cope with her activities of daily living. The evidence also showed that the worker returned to Ontario and pursued medical treatment when she was advised to do so by the WSIB because clinics were open in Ontario.The worker was co-operating in her RTW obligations, she was engaged in ongoing health care treatment, and her employer had not notified her that it had suitable modified work available. As a result, the worker was entitled to full LOE benefits from June 12, 2020 to August 14, 2020.