- Availability for employment (medical authorization)
- Loss of earnings {LOE} (cooperation)
- Statutory interpretation (principles of) (legislative intent)
- Presumptions (first responder)
The worker was employed as a police constable. He went off work and was later diagnosed with PTSD. There were various delays in the worker's assessment and treatment, including delays in a formal diagnosis of PTSD from psychologist or psychiatrist, in part due to the COVID-19 pandemic. Under the first responders policy, if the first responder is diagnosed with PTSD, the condition is presumed to have arisen out of employment and in the course of employment. The WSIB denied the worker entitlement to LOE benefits on the basis that the presumption and its accompanying entitlement only grants entitlement to benefits from the date of the medical report containing the formal PTSD diagnosis. The issue to be determined in this appeal was whether the worker was entitled to LOE benefits from January 9, 2021 to January 6, 2022.
The Panel allowed the appeal.The Panel did not agree with the employer's submission that the worker cannot be granted LOE benefits for any period prior the formal diagnosis of his work-related PTSD. Nothing in the WSIA or WSIB policy states that benefits cannot be paid prior to the date of formal medical diagnosis. The Panel clarified that the diagnosis is not the actual condition or injury itself. The injury or disease can, and often does, exist prior to any diagnosis. In addition, section 14 of the WSIA does not say that entitlement to benefits only begins from the date of actual diagnosis. Such an interpretation would be inconsistent with the relatively clear intent of the legislation. Second, the presumption is an evidentiary presumption. In any case where the presumption may not apply, a worker may still have a psychological condition arising from cumulative traumatic mental stress in the course of employment, based on assessing the evidence on a balance of probabilities. In other words, the presumption does not preclude entitlement in any instance where the prerequisites for the presumption are not present. LOE benefits can be paid if the balance of evidence shows that the worker was unable to work due as a result of his work-related psychological illness. The Panel also did not agree with the submission that since the workplace safety and insurance system is a disability compensation scheme, benefits cannot be paid unless and until a worker is "authorized" to be off work by a health care professional. There is nothing in WSIA that provides for such a condition. The Panel clarified that when a doctor writes a note or letter recommending that a worker be off work, that note may be conventionally referred to an "authorization," but in the context of adjudication, it is a medical opinion about the physical and/or medical advisability of the worker being able to work. A doctor's "authorization" to be off work may or may not be persuasive evidence that the worker was unable to work, but it is not legally determinative.The Panel concluded that between January 9, 2021 and January 6, 2022, due to his PTSD, the worker was unable to return to any type of work that was available to him, and his medical condition precluded the possibility of the worker independently seeking alternative work. The accommodated work offered by the employer was not suitable. The worker fully co-operated as best he could with his health care in the circumstances. The worker was entitled to full LOE benefits from January 9, 2021 to January 6, 2022.