Physical and mental injuries contributed to lack of worker’s co-operation

Benefits were discontinued after injured worker didn’t co-operate in return-to-work efforts, but worker suffered from pain, depression, and drug use

The Ontario Worker’s Safety and Appeals Tribunal has overturned multiple decisions denying a worker benefits for a back injury and psychotraumatic injury, finding both contributed to the worker’s lack of co-operation in return-to-work efforts.

The worker, 44 years old at the time, was hired in March 2007 to be a steelworker. Not long into his tenure — on June 4 of the same year — the worker tripped and fell down a steel staircase at work. He suffered a compression fracture in his low back and fractured ribs.

The worker remained off work into 2008, receiving loss-of-earnings benefits, and in February of that year he was referred to a functional restoration program (FRP). However, he was discharged from the program for non-participation in late April. Shortly thereafter, the employer offered the worker temporary modified duties with no wage loss beginning on May 5. An adjudicator terminated his loss-of-earnings benefit for failure to participate in the FRP and because the modified duties offered to him were deemed suitable.

The following month, the employer sent the worker a written offer of permanent modified duties in the form of a flagman position. An ergonomist representing the Ontario Workplace Safety and Insurance Board (WSIB) assessed the modified duties and determined they fell within the worker’s medical restrictions, so the WSIB informed the worker he had no further entitlement to benefits beyond June 23, 2008, due to the worker’s lack of co-operation.

The worker tried working as a flagman for a couple of days, but he later testified he wasn’t getting along with the employer and he had constant back pain. He also said the pay was less than his steelworker position and he didn’t believe it was a permanent position.

Soon after the WSIB’s discontinuance of worker’s compensation benefits, the employee wrote to the board informing it the employer had terminated his employment on Aug. 1.

In June 2009, the WSIB granted the worker a 30 per cent non-economic loss award for permanent impairment of his lower back. A year later, he filed a claim requesting entitlement to include permanent impairment of a disc herniation in his back and full loss-of-earning benefits from when they were discontinued in May 2008. He also requested entitlement for a psychotraumatic disability stemming from his medical impairments.

Claim denied due to lack of co-operation

A WSIB case manager denied entitlement for the disc herniation and psychotraumatic disability, and the worker appealed to a WSIB appeals resolutions officer (ARO). The ARO upheld the denial of entitlements based the worker’s failure to co-operate in the FRP and the employer’s offer of suitable modified duties. The ARO noted the disc herniation had not been observed in an x-ray, MRI, and bone scan taken following the worker’s fall at work. In addition, the worker had substance abuse issues that the ARO found contributed to his psychological condition and precluded a link to his job and any psychotraumatic injury.

The worker appealed again, this time taking the matter to the Ontario Workplace Insurance and Appeals Tribunal. He claimed he continued to have back and neck pain and he had relapsed into cocaine use after the accident. He had a history of cocaine abuse but had been clean for several years until he was injured. At the time of his failure to participate in the FRP, the worker claimed he has at an “all time low” due to pain and illegal drugs he was taking for the pain. He and a friend indicated he had suicidal thoughts and suffered from depression through 2008 — a mental health assessment performed by a registered nurse in February 2008 indicated the worker complained of “chronic pain, depressed/suicidal, substance abuse” and he was referred for a psychiatric assessment.

The tribunal considered the WSIB’s Operational Policy Manual, which stated entitlement for both physical and mental disability or impairment can be attributable to a work-related injury if they manifest within five years of the injury or the last surgical procedure related to the injury. The policy manual also stated workers who lose earnings as a result of a work-related injury are entitled to loss-of-earnings benefits until they are capable of earning again or are no longer impaired in their ability to work.

The tribunal found that the worker’s substance abuse problem wasn’t caused by his injuries, but the worker’s emotional response aggravated the problem. The worker’s description of his psychological issues and the mental health assessment proved he had serious mental health issues that were the result of his injuries stemming from the workplace accident and therefore were a work-related psychotraumatic injury, said the tribunal.

“We find the evidence before us establishes on a balance of probability that the worker experienced a significant emotional reaction to the accident, depression, anxiety and suicidal ideation that is compatible with the seriousness of the physical injury,” said the tribunal.

The tribunal agreed with the worker’s claim that the reason he didn’t participate in the FRP in April 2008 was because of his psychological condition stemming from the injury. It also found that the worker’s failure to take on the flagman’s job was also because of his psychological condition. It was evident that he was still abusing drugs at the time he attempted the flagman job and the WSIB ergonomist’s report didn’t refer to the worker’s substance abuse problem in determining suitability for the position.

“We find the worker’s ability to be alert and safely perform the duties of a flagman would be significantly affected by his post-accident physical and psychological problems,” said the tribunal. “We find the worker’s organic and psychological condition rendered the worker unable to perform the modified duties, including that of a flagman.”

The tribunal also found that even though the disc herniation didn’t show up in post-accident scans, it showed up in scans a few months later and a medical consultant felt it was “likely related” to the workplace accident.

The tribunal overturned the earlier decisions of the case manager and ARO, finding the worker was entitled to worker’s compensation benefits for his herniated discs and psychotraumatic injury. Because the flagman duties were found to be unsuitable, the tribunal also determined the worker was entitled to loss-of-earnings benefits since they were discontinued for his lack of co-operation in taking on that position.

For more information see:

• Decision No. 2669/15, 2016 CarswellOnt 1168 (Ont. WSIAT).

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