- Evidence (surveillance)
- Loss of earnings {LOE} (cooperation)
- Post-traumatic stress disorder
- Permanent impairment {NEL}
- Post-concussion syndrome
The issues under appeal were: a) whether the worker was entitled to a non-economic loss (NEL) assessment recognizing her PTSD as a permanent impairment; b) in the alternative, whether the worker had a permanent impairment in the form of PCS; and, c) whether the worker was entitled to LOE benefits from October 23, 2012 onward.
The Panel allowed the appeal.The medical evidence indicated that the worker's initial PCS symptoms resolved relatively soon after the accident and her work-related psychological conditions, in particular PTSD, became the overwhelming source of her disability. The Panel concluded that the worker sustained a permanent psychological impairment as a result of the January 2012 workplace accident. She was entitled to a NEL assessment. The Panel found that the worker's unwillingness to engage in the proposed exposure therapy in October 2012 did not constitute a failure to co-operate with her health care or with her return to work. The WSIB incorrectly reduced and then incorrectly suspended the worker's benefits for non-co-operation. The Panel concluded that both of those decisions must be reversed.The Panel explained that the worker's resistance to exposure therapy was a result of a complex constellation of factors and circumstances. Given the nature of her condition as reflected in the medical reporting, the worker's psychological readiness to make such an attempt was tied to her psychological disability which was, in turn, tied to her issues around trust and her strong emotional reactions at that time to the Case Manager's actions regarding the termination of her benefits. The Panel noted that all these contextual factors must be taken into account.The surveillance evidence did not shed significant light on the worker's condition or what she might have been able to do in a workplace; it did not show that the level of disability described in the medical reporting was not accurate. Accordingly, pursuant to WSIA section 43, as of October 26, 2012 the worker was entitled to full LOE benefits. The duration of such benefits was referred back to the WSIB for determination.