A former police officer in Ontario has been granted workers’ compensation benefits after the Workplace Safety and Insurance Appeals Tribunal found his termination related to an alleged sexual assault was directly related to his post-traumatic stress disorder (PTSD).
The Tribunal partially allowed the cop’s appeal, granting him loss of earnings (LOE) benefits from Nov. 30, 2019, onwards. The officer, identified as W, had appealed two decisions by the Appeals Resolution Officer (ARO) that denied him LOE benefits beyond Oct. 3, 2018.
The ARO concluded that W was not entitled to LOE benefits from Oct. 3, 2018, and did not experience a wage loss due to his compensable psychological condition during that period. A subsequent ARO decision also denied entitlement to LOE benefits from Nov. 30, 2019, and ongoing.
W was granted entitlement for PTSD under the Workplace Safety and Insurance Board’s (WSIB) Operational Policy Manual Document 15-03-13, “Posttraumatic Stress Disorder in First Responders and Other Designated Workers,” with an accident date of April 8, 2016. He received LOE benefits from Aug. 9, 2018, to Oct. 3, 2018, while participating in an inpatient treatment program, but further benefits were denied.
Suspension with pay
From Oct. 28, 2017, to Nov. 30, 2019, W was suspended with pay during an investigation under the Police Services Act (PSA) resulting from an incident in October 2017. Criminal charges for an alleged sexual assault were laid but were withdrawn before trial. W’s employment was terminated effective Nov. 30, 2019, following an agreement that stayed the investigation under the PSA.
The Tribunal found that W was not entitled to LOE benefits from October 3, 2018, to Nov. 30, 2019, because he did not experience a loss of earnings during this period due to his suspension with pay. The Tribunal noted that under section 43 of the Workplace Safety and Insurance Act (WSIA), a worker who has a loss of earnings as a result of the injury is entitled to payments, but W received full pay during his suspension, and thus did not meet the requirement of having a wage loss.
Circumstances behind termination linked to PTSD
However, the Tribunal concluded that W was entitled to LOE benefits from Nov. 30, 2019, onwards. It determined that the circumstances leading to W’s termination flowed directly from and were a direct consequence of his compensable PTSD symptoms. The Tribunal stated, “His PTSD symptoms contributed significantly to the conduct leading to his termination. Thus, we find the termination of employment to be related to his PTSD injury.”
The Tribunal applied the “worker conduct” line of cases, notably referencing Decision No. 1011/20R and the Ontario Superior Court decision in City of Toronto v. WSIAT and Beebeejaun (2023 ONSC 3875), which held that a worker’s misconduct does not necessarily break the chain of causation if it is symptomatic of a compensable injury.
The employer argued that W’s misconduct broke the chain of causation between his injury and wage loss, submitting that his “egregious misconduct” was an intervening event. The employer also contended that the stress from the investigation, criminal prosecution, suspension, and termination contributed to the worsening of his PTSD, rather than the original compensable injury.
Employer’s arguments rejected
The Tribunal did not accept the employer’s arguments, finding that W’s behaviour leading to his termination was symptomatic of his PTSD. It noted that medical evidence consistently showed that W’s PTSD symptoms included reckless or self-destructive behaviour, including disinhibited sexual behaviour. The Tribunal referenced medical reports stating that W’s PTSD resulted from exposure to traumatic incidents during his policing career, particularly a double homicide in 2004.
In its analysis, the Tribunal emphasized that the worker’s conduct should be considered within the context of the workers’ compensation scheme and not through broader principles of misconduct or fault leading to termination for cause. It stated, “The concept of worker misconduct does not import broader principles of misconduct or fault that may lead to termination for cause.”
The Tribunal also found that W acted reasonably to mitigate his wage loss after his termination. Despite significant medical restrictions due to his PTSD, which precluded him from returning to policing or similar work, W sought alternative employment. He worked with a second employer in manufacturing from July 2019 to July 2020, but his contract was not renewed after allegations of sexual harassment, which the Tribunal also found to be symptomatic of his PTSD.
Medical assessments
Medical assessments indicated that W’s PTSD symptoms continued to impair his ability to work in any capacity involving close interactions with others or in environments with sudden noises, due to his hypervigilance and startle responses. The Tribunal noted, “Given his description of severe difficulties regulating emotions, managing interpersonal relationships effectively, and tolerating stressors, the assessors recommended return to work restrictions, which should be considered permanent.”
The Tribunal concluded that W’s loss of earnings after Nov. 30, 2019, flowed directly from his compensable PTSD and not from any misconduct unrelated to his injury. Therefore, he was entitled to LOE benefits from that date to the final review.
The nature, level, and duration of W’s LOE benefits were remitted to the WSIB for further adjudication, subject to the usual rights of review.
For more information, see Decision No. 1740/21, 2024 ONWSIAT 1342 (CanLII).
