A recent decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) provides guidance on the Tribunal’s approach to adjudicating overlapping claims for psychological injuries.
Background
The Worker, a 911 emergency communications operator for a municipal police service, was injured on July 9, 2015, when her personal vehicle was struck by a co-worker’s vehicle in the employer’s parking lot.
An Appeals Resolution Officer (ARO) decision determined that the worker was entitled to benefits for Chronic Pain Disability (CPD). However, the ARO denied ongoing entitlement to the worker for psychological conditions, including post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and adjustment disorder, under the psychotraumatic disability policy. The ARO concluded that these conditions were encompassed within the CPD entitlement.
The ARO also found that the worker did not meet the criteria under the presumptive PTSD policy (Policy 15-03-13), because the Worker had been off work on leave for approximately 4 years at the time of diagnosis.
The worker appealed both denials.
On appeal, the Tribunal concluded that:
1. The worker did not have entitlement under the psychotraumatic disability policy; but
2. The worker did have entitlement under the presumptive PTSD policy.
Claim 1: Identifying the Primary Disabling Feature
In assessing entitlement under the psychotraumatic disability policy, the Panel relied on established WSIAT case law, which requires a determination of the worker’s primary disabling condition. The key determination was whether the worker’s primary disabling feature was CPD or psychotraumatic disability.
The Panel confirmed:
- CPD applies where the predominant impairment is pain that that cannot be attributed to organic causes.
- Psychotraumatic disability applies where the nature of the injury is most closely associated with a psychiatric diagnosis that is distinct from the worker’s pain.
In this case, the Panel found that the medical evidence established that the worker’s psychological conditions were secondary to her chronic pain. Accordingly, the worker’s primary disabling feature was CPD.
Given this finding, the Panel concluded that it was unnecessary to separately assess entitlement under the psychotraumatic disability policy, as the worker’s psychological impairment was subsumed within the holistic CPD framework.
Claim 2: Presumptive PTSD in First Responders
The Panel then considered whether the Worker also had entitlement under Policy 15-03-13: Posttraumatic Stress Disorder in First Responders and Other Designated Workers.
The main issue in dispute was whether the Worker met the second criteria under the presumptive policy, which requires that the first responder must have been diagnosed with PTSD:
no later than 24 months after the day they cease to be employed as a first responder if they cease to be employed as a first responder on or after April 6, 2016.
In this case the worker stopped working following the MVA in 2015 and was not diagnosed with PTSD until approximately 4 years later in 2019.
The Panel undertook a detailed statutory interpretation of the term “employed” and determined that it includes workers who remain in an employment relationship but are not actively working.
In reaching this conclusion, the Panel found that:
- The ordinary meaning of the word “employed” refers to the state of being employed, not active performance of duties.
- The presumptive policy does not explicitly require the worker to be actively working. Had the WSIB intended to impose such a requirement, it would have used clear language to that effect.
- The interpretation aligned with the purpose of the Workplace Safety and Insurance Act (WSIA), which is to provide compensation to injured workers.
- The interpretation is consistent with prior Tribunal jurisprudence.
In doing so, the Panel also rejected the employer’s argument that “employed” requires active duty, finding that interpretation to be overly narrow. Notably, the Panel reasoned that such an interpretation could unfairly exclude workers on protected leaves, such as parental leave.
Ultimately the worker was found to have entitlement under the presumptive PTSD policy. The accepted medical evidence supported that the worker’s PTSD arose from both the compensable motor vehicle accident and traumatic job duties prior to the accident. The Panel further recognized that PTSD diagnoses can be delayed, sometimes occurring years after the trauma exposure.
Takeaways
This decision highlights several important principles:
- Primary impairment analysis: In overlapping claims under the CPD and psychotraumatic disability policies, entitlement will depend on identifying the predominate disabling feature.
- CPD policy is holistic: Where psychological condition(s) are secondary to chronic pain, they may be encompassed under the CPD framework, which may in turn render it unnecessary to consider entitlement under the psychotraumatic disability policy.
- Statutory interpretation: In interpreting policy language, the Tribunal applies established principles of statutory interpreting, which includes, reading the words of the policy in their entire context, according to their plain and ordinary meaning, and in light of the purpose of the Policy, the WSIA, and the broader scheme.
Given the interrelated nature of psychological injuries, it can be difficult to determine when such injuries should be assessed under separate claims. In this instance, although the Tribunal did not provide detailed reasoning, it appears that its decision to adjudicate two distinct claims (i.e., CPD versus presumptive PTSD) stemmed from a differentiation in the nature of the claims themselves. Specifically, the PTSD was treated as a condition that arose directly from the Worker’s employment duties, whereas the other psychological injuries were characterized as secondary to the work-related accident. This distinction underscores the inherent complexity of addressing multiple, and often overlapping, psychological injuries, particularly where they arise from different causal pathways within the workplace.
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