Former cop’s PTSD and depression make him unemployable: Tribunal

Existing depression and psychological issues worsened after accident while trying to make arrest

A Former Ontario police officer is entitled to full loss of earnings benefits from psychological and physical injuries he suffered while attempting an arrest, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.

The now 54-year-old-worker was a police officer when he was trying to make an arrest on Oct. 7, 2002. In the process of attempting the arrest, the officer was hit by a car, resulting in a shoulder injury.

Before the incident, the officer had issues with his lower back due to a work-related injury. He had to take time off work because of the injury and, during his medical leave, began to suffer from depression. The depression may also have been related to conflict issues he had at work, and he received psychological treatment for it.

Following the incident, the officer was diagnosed with a psychological impairment that included post-traumatic stress disorder (PTSD) and depression. Combined with the shoulder impairment, the officer was given a 38 per cent non-economic loss award. He didn’t receive any compensation for possible aggravation of his back injury.

PTSD and depression became too much for worker

The officer eventually returned to work with modified duties. He then went off work again in 2004 and didn’t return. He was hospitalized twice over the next few years for psychological reasons.

The Ontario Workplace Safety and Insurance Board (WSIB) referred the former officer for labour market re-entry (LMR) services in 2008. However, the LMR service provider initially recommended that no plan be implemented because it couldn’t identify any suitable employment for him. The WSIB asked again and eventually it was determined that the worker could find suitable employment as a public health inspector. However,  he was unable to complete the plan and it was terminated in August 2010.

After more investigation, it was decided the worker was capable of working as a night watchman. His loss-of-earnings benefits were calculated according to the pay rate of a night watchman. The worker disputed this determination but his appeal was denied.

The worker appealed once again, this time to the tribunal, arguing his PTSD and depression made him unemployable. The accident employer, his former police service, acknowledged that the position of night watchman was likely unsuitable for the worker, but insisted he was capable of employment in some other position.

The tribunal noted there was medical evidence indicating the worker was incapable of employment but also capable of some employment. The worker’s shoulder impairment didn’t prevent him from working in some capacity, as he had “significant intellectual capacity and is quite articulate,” said the tribunal. The main question was how limiting his psychological issues were.

The tribunal found that while the worker had some physical capability, he was “psychologically fragile” because of his PTSD and depression. The worker had pre-existing depression and his workplace accident ramped it up to PTSD, leading to anxiety and “emotional vulnerability and volatility that would not easily be tolerated in most workplaces,” said the tribunal.

Worker was off work for years before return-to-work attempts

The tribunal also found that the length of time that elapsed between the workplace accident and the LMR plan — six years, with more than four years since the worker last worked — hindered the chance of the plan’s success. Psychological evaluations over the years indicated the worker was capable of a return to work, but as a transitional re-entry with psychological support. The worker was incapable of this without WSIB assistance and was therefore not employable on his own once his LMR plan was terminated in 2010.

Further, psychological evaluations revealed physical and emotional abuse in the worker’s past, which compounded his workplace conflict problems and injury-related depression. The worker struggled with personal relationships and had to disengage from life to deal with the physical and emotional pain he suffered. This seriously hindered his ability to integrate back into a workplace, said the tribunal.

Any reports that were optimistic about the worker’s ability to return to work came with cautions that he stay away from “high risk capacity with potential re-exposure to trauma” along with psychological treatment. This effectively ruled out the positions of public health inspector and night watchman as potential return-to-work opportunities.

The tribunal noted that delays in returning to work and rehabilitation treatment had “a strongly negative effect” on a successful return to work. The substantial delays in the worker receiving rehabilitation services a and return-to-work plan — during which the worker was hospitalized more than once for his psychological problems — made his prospects for returning to work much dimmer, said the tribunal. Even then, his initial LMR plan found no suitable employment for him because of his issues. Only after the WSIB pressed further, did a position come up — a position that could have resulted in stressful situations if the worker was enforcing public health requirements, said the tribunal.

The position of night watchman could have led to stressful situations as well, and any work dealing with the public or a team of co-workers wouldn’t jibe well with the worker’s solitary tendencies and emotional problems, said the tribunal.

The tribunal found the worker was incapable of employment as a result of his psychological injuries suffered on the job and granted him full loss-of-earnings benefits until he turned 65.

For more information see:

Decision No. 589/16, 2016 CarswellOnt 5334 (Ont. W.S.I.A. Trib.).

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