Worker wins more benefits for psychological issues, chronic back pain

Ongoing back injury prevented worker from completing job retraining and worsened his depression and isolation

An Ontario worker has won his appeal for ongoing benefits for chronic back pain and an increase in his award for a psychological impairment, all stemming from a workplace accident.

The 45-year-old worker – who immigrated to Canada in 2001 at the age of 28 – was employed with an Ontario temporary agency, which assigned him to a temporary position as a racker at an automotive parts manufacturer in March 2004, when he was 31 years old. He worked on the warehouse floor, helping stock and unstock various auto parts.

The worker had experienced emotional and mental health issues since coming to Canada due to the end of his marriage, difficulty finding work, and the separation from his family. Before joining the auto parts company, he had been unemployed for periods of time because of an emotional issue and he was taking medication for it when he started working for the company in 2004.

Six months after he started working at the auto parts manufacturing company, on September 21, 2004, the worker was hit from behind by a forklift moving a rack of auto parts. His back was injured in the accident and he was laid off from the job since he couldn’t work. The Ontario Workplace Safety and Insurance Board (WSIB) granted the worker loss-of-earnings benefits.

The worker remained off work for 10 months until July 2005, when the WSIB referred him to a labour market re-entry (LMR) service. He completed a psycho-vocational assessment to determine suitable employment for him and, in May 2006, began a comprehensive LMR plan. Since the worker had been employed for several years as a police officer in his country of origin before immigrating to Canada, it was determined that a suitable occupation for him would be security guard or concierge.

The LMR plan included 92 weeks of training – including English as a second language (ESL) training – 12 weeks of security guard training, four weeks of sob search training, and culminating in a four-week work placement.

During this time, the worker was diagnosed with herniated discs in his back. The WSIB granted him a non-economic-loss award for a permanent impairment suffered as a result of the injury stemming from the workplace accident.

Worker unable to complete job retraining

The worker spent nine months in the LMR program, but didn’t seem to be progressing. The WSIB ordered a second psycho-vocational assessment in February 2007. The second assessment determined that the occupation of security guard/concierge was no longer feasible for the worker, so the LMR plan was amended to include an additional 16 weeks of ESL and academic training followed by an eight-week work placement and four weeks of job search training towards a new suitable occupation of “other elemental service occupations.”

The worker’s loss-of-earnings benefits ended in June 2007, and the worker also was unable to continue the LMR program. He claimed he was in too much pain from his back to attend the retraining, but the WSIB found he was capable of continuing and recommended he attend a functional restoration program. The worker attended the program for two weeks in September 2007 but was discharged due to “lack of engagement.”

The worker was experiencing some mental health issues and began seeing a psychiatrist in March 2009. He also requested workers’ compensation benefits for a psychotraumatic disability stemming from the workplace accident, which the WSIB granted the following year. The WSIB also granted entitlement to full loss-of-earnings benefits as it found the worker’s symptoms prevented him from returning to work or completing the LMR program.

The worker underwent another functional restoration program, but he was discharged after three weeks for failing to comply and not making progress. However, the program was able to determine the worker was capable of light work and the WSIB granted entitlement to 12 psychological sessions to assist the worker in his return to work.

In July 2011, the worker unsuccessfully applied for benefits for a permanent psychotraumatic disability as well as custom orthotics and other medical devices. The WSIB offered him another 12 weeks of LMR service, but the worker maintained he was in too much pain to return to work. On March 29, 2012, the WSIB determined the worker was fit for work in the revised suitable occupation. Since the earnings of the suitable occupation were higher than the worker’s pre-injury earnings, his loss-of-earnings benefits were concluded. However, the worker did not return to work.

The worker also continued to experience severe back pain and said it was constant when he walked, though he could walk for 15 or 20 minutes at a time when he went out to “buy things” two or three times per week. An October 2014 report by the worker’s psychiatrist stated he always say the worker in “severe pain” and he had difficulty sleeping because of the pain.

Mental health issues

The worker continued to experience mental health difficulties and was assessed by the Centre for Addiction and Mental Health (CAMH). The CAMH report found the worker’s “overall prognosis is guarded to poor” and treatment would be “unlikely to result in sufficient improvement in symptoms or functioning to enable a return to work.” The WSIB once again denied him benefits for an ongoing psychotraumatic disability along with a chronic pain disability as it determined the workplace accident wasn’t a contributing factor to his psychological condition. The worker appealed and an appeals resolution officer granted ongoing psychotraumatic entitlement but upheld the denial of benefits for chronic back pain.

After the worker won the appeal for psychotraumatic disability, the WSIB found he had a 10 per cent psychological impairment that, combined with existing physical impairments, put his non-economic loss award at 32 per cent.

The worker appealed the WSIB’s findings, seeking an increase in the award for his psychological impairment and entitlement to full ongoing loss-of-earnings benefits since he couldn’t return to work due to his chronic back pain and psychological issues.

The tribunal noted that the Ontario Workers’ Compensation Act defined “impairment” as “a physical or functional abnormality or loss which results from an injury and any psychological damage arising from the abnormality or loss,” and it was permanent if it “continues to exist after the worker reaches maximum medical recovery.”

The tribunal found that the evidence showed the worker’s psychological impairment caused him to be isolated from his overseas family, depressed, withdrawn, ashamed, and without interest in socializing. This was a significant level of impairment that rated higher than 10 per cent – more in the range of Class 3 (20 to 45 per cent, “impairment levels compatible with some but not all useful function”) on the mental and behavioural ratings scale in the WSIB operational policy manual document on permanent mental impairment, the tribunal said.

According to the policy manual document, 10 per cent impairment would fall into Class 2, “impairment levels compatible with most useful function,” which the tribunal disagreed was the case for the worker.

The tribunal also found that the worker had received “extensive treatment for both his organic and psychological impairments,” there was no significant improvement. His physical restrictions – including no heavy lifting, repetitive bending, or prolonged positioning – severely limited his prospects of finding compatible work. His failure to progress in his LMR program was evidence of his limitations, said the tribunal.

The tribunal found the worker was entitled to a greater award for his psychological impairment – 20 per cent – which increased his total non-economic loss award to 39 per cent. In addition, the tribunal supported the worker’s appeal for full loss-of-earnings benefits to be continued on an ongoing basis for his chronic pain.

For more information see:

• Decision No. 3542/17, 2017 CarswellOnt 19894 (Ont. Workplace Safety and Insurance Bd.).

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