- Loss of earnings {LOE} (cooperation)
- Benefits (reduction or suspension) (cooperation)
The worker, a police sergeant, had entitlement to benefits for post-traumatic stress disorder (PTSD) from psychologically traumatic events during her policing work. The sole issue before the Tribunal was entitlement to Loss of Earnings (LOE) benefits from March 15, 2020 to July 28, 2021. The employer representative submitted three key reasons for why the worker should not be entitled to LOE during this time: (i) Leaving the country without properly notifying the WSIB and employer; (ii) insufficiently cooperating or communicating to facilitate a return to work; and (iii) not participating in prescribed health care.
The Panel allowed the appeal. The worker travelled to St. Vincent on March 15, 2020, to help her son through a crisis and deal with family legal matters. Shortly after this the Canadian border was closed by the Canadian government due to the COVID-19 global pandemic. WSIB policy on return-to-work obligations directs that the specific facts of each situation are reviewed when considering penalties for non-co-operation. Penalties are not levied if the non-cooperation is due to compelling reasons. The Panel was satisfied that the worker's reasons for leaving Canada did not equate to non-co-operation given the compelling reasons for the departure. The employer did not have suitable work available during this time. The worker was entitled to full LOE for this period.The Panel found that the level of communication by the worker was sufficient, including the WSIB at times being a conduit between the worker and employer. The worker left Canada in March 2020 before the border closure. The WSIB did not notify the worker that her being away would affect her entitlement to benefits, verbally or in writing. Based on factors related to COVID-19 and travel difficulties, the circumstances of this unique time were compelling reasons for the worker to remain in St. Vincent at that time. It was a reasonable decision by the worker.The Panel further noted that there was not an actual offer of modified work until April 2021. When that offer was finally made, it was not suitable because the worker was not stable enough to work. During the worker's time in St. Vincent, she had several sessions with a trauma specialist psychologist. The Panel noted that calling the sessions consultations did not detract from the therapeutic nature and effect of the sessions. The worker had a long-standing treatment relationship with the psychologist. Regardless of the label, the sessions were therapeutically helpful to the worker. The sessions provided by the worker's psychologist were sufficient to meet the requirement of continuing to participate in prescribed health care.