Worker chose to forgo entitlement to benefits from car accident for successful civil settlement; Ongoing psychological disability not compensable
An Ontario worker’s psychotraumatic disability was caused by ongoing pain resulting from a non-compensable motor vehicle accident, not back pain stemming from an earlier workplace accident, the Ontario Workplace Insurance and Appeals Tribunal has ruled.
The 63-year-old worker started working as a warehouse labourer for an Ontario lumber retailer around 1985, when he was 30 years old. His job duties included lifting items on and off shelves in the warehouse.
On Jan. 4, 1994, when the worker was 39 years old, he injured his back while lifting heavy items. He was diagnosed with a lumbar strain and scans didn’t show any other serious damage to his spine. However, it was determined the strain caused ongoing “mechanical back pain” – a partial permanent impairment – so the Ontario Workplace Safety and Insurance Board (WSIB) granted him a 20-per-cent non-economic loss award.
Two years later, in the spring of 1996, the WSIB referred the worker to vocational rehabilitation services that involved college training and academic courses. However, by the following year he was having difficulties with the college training and the vocational rehabilitation services were closed. The worker remained off work for five years.
In April 2001, the worker found a job which had duties that fit within his medical restrictions – delivery driver for an automotive parts retailer. He did have some difficulty with the position at times due to his back impairment, but his new employer accommodated him by reducing his routes and limiting the time he spent sitting behind the wheel. He drove one route in the morning and one route in the afternoon, and this arrangement seemed to work.
New job cut short by accident
However, on Jan. 24, 2002, the worker was on the job delivering automotive parts when his truck was rear-ended by another vehicle. In the accident, the worker injured his neck, low back, and left leg. Afterwards, he was also diagnosed with adjustment disorder and pain disorder that arose out of the motor vehicle accident. The worker opted not to file a claim for workers’ compensation benefits and instead filed a civil action against the other driver, which resulted in a $150,000 settlement in his favour.
A report by an orthopaedic surgeon in September 2002 indicated that the worker suffered a herniated disc in his cervical spine and strains to other parts of his spine in the motor vehicle accident and the accident made the worker unable to perform the tasks of the delivery driver position he held before it happened.
The worker was treated for his physical injuries until October 2002 and received psychological counselling for his adjustment and pain disorders until November of that year. A psychological report at the end of the worker’s treatment indicated he hadn’t made a “particularly adaptive recovery” but there was no indication he still suffered from an ongoing psychological condition. However, after the treatments ended, the worker’s family doctor continued to prescribe psychotropic medication.
The worker remained off work following the motor vehicle accident, participating only in a WSIB-sponsored job placement in 2006 that didn’t pan out due to increased pain. From 2006 to 2008, the worker attended additional academic upgrading and customer service training with the objective of finding him employment in that area, but again the worker was unable continue due to his pain.
In early 2012, the worker began seeing a psychiatrist to help with his disorders. He also filed a claim for entitlement to benefits for an ongoing psychotraumatic disability stemming from the January 1994 workplace accident – arguing that the ongoing back pain that originated from the 1994 accident had an adverse impact on his ability to work and his daily living, which contributed to his psychotraumatic disability – but the WSIB denied the claim. After an appeals resolution officer also denied the claim, the worker took his case to the tribunal, noting that the ongoing psychotraumatic disability was also worsened by his inability to continue with the 2006 job placement. The worker also claimed his neck pain from the motor vehicle accident persisted but had improved with treatment, but his back pain had remained constant since the 1994 accident.
The tribunal referred to the WSIB operational policy manual document that covered psychotraumatic disability, which stated that such a disability was normally considered temporary and was only accepted as permanent in “exceptional circumstances.” The policy document also stated the entitlement was usually only granted if the impairment “became manifest within five years of the injury, or within five years of the last surgical procedure” – though the tribunal noted that the five-year guideline was not rigidly applied, depending on the facts of each case.
The tribunal found that the worker didn’t have any surgical procedures and his adjustment and pain disorders were diagnosed after his motor vehicle accident in 2002. It found no evidence of any psychological issues before the non-compensable accident, which also happened eight years after the original workplace injury. There were no exceptional circumstances that warranted a departure from the five-year guideline for psychotraumatic injuries, said the tribunal.
The tribunal also pointed out that the psychological report in 2002 stated that the worker didn’t suffer from pain or anxiety before the 2002 accident and, though he didn’t make a “particularly adaptive recovery,” the adjustment disorder was the result of the motor vehicle accident.
The tribunal denied the worker’s appeal, determining that it was the non-compensable motor vehicle accident in 2002 that caused the worker to stop working altogether – and it was that inability to work that perpetuated the worker’s psychotraumatic disability.
“The medical evidence clearly indicates that the worker’s psychotraumatic disability developed as a direct result of the (motor vehicle accident) and the significant injury to his neck,” the tribunal said. “The relative contribution of the worker’s lower back impairment to his psychotraumatic disability before and after the (motor vehicle accident) was not, in my view, significant.”
For more information see:
• Decision No. 1201/18, 2018 CarswellOnt 7442 (Ont. Workplace Safety and Insurance Appeals Trib.).
