- Psychotraumatic disability
- Permanent impairment {NEL}
- Loss of earnings {LOE} (mitigation)
The issues to be determined in this appeal were: a) the quantum of LOE benefits to which the worker was entitled from October 19, 2012 to August 15, 2014; and, b) whether the worker had entitlement for a permanent psychological impairment.
The Vice-Chair allowed the appeal, in part.There was insufficient evidence to find that the worker's work-related psychological condition had become a permanent impairment. Tribunal cases have considered workers' entitlement to LOE benefits during retroactive periods created by changed entitlement determinations on appeal. The well-settled approach is to inquire whether, during the period, the worker was engaged in activities that could reasonably be characterized as self-directed LMR, self-directed health care, or other activities that constitute reasonable mitigation of the worker's loss of earnings during the period at issue. The activities which may constitute reasonable mitigation of loss of earnings are varied and will depend upon the specific context and circumstances, but they may include job search, and/or efforts to improve employability through training and education. This same test is sometimes expressed as an obligation on a worker to act reasonably to mitigate his or her loss of earnings. The mitigation of loss of earnings may not always mean looking for work. For example, engagement in health care, aimed at rehabilitation in order to ultimately return to work may, depending on the circumstances, be reasonable mitigation.The Vice-Chair agreed that the approach is contextual, taking into account all the specifics of the worker's circumstances at the time. When considering the relevant factors, including the worker's combined organic and psychological impairments, and his involvement in health care, the Vice-Chair was satisfied that in the circumstances the worker was taking reasonable steps to mitigate his circumstances. The worker could not have found and sustained alternative work without WSIB assistance. The worker was entitled to full LOE benefits from October 19, 2012 to August 15, 2014.