Delays, communication restrictions and confusing information exacerbated worker’s anxiety and other psychological disorders
The Ontario Workplace Safety and Insurance Board (WSIB) discriminated against an injured worker when the way it handled his benefits entitlement and request for accommodation exacerbated his psychological disabilities, the Ontario Human Rights Tribunal has ruled.
David Lawson was a construction worker who had a history of low back problems, usually manifested in pain that radiated to his legs. He required strong drugs to deal with the pain, but eventually found marijuana was the best way to treat it. Lawson also had several diagnosed psychological conditions, including anxiety disorder, depression with suicidal ideation, pain disorder, and attention deficit disorder. Some assessments also found that he had adjustment disorder. In February 2010, Lawson’s psychiatrist reported that Lawson’s ability to cope with stress “is one of the most limited, if not the most limited, which I have encountered.” This caused Lawson to react “extremely negatively when faced with stressful situations,” the psychiatrist said.
Lawson’s psychological conditions led to problems in dealing with others, particularly his physicians. He filed or threatened to file complaints about multiple doctors who he felt weren’t supporting him and this led to strained doctor-patient relationships. This behaviour led Lawson’s regular psychiatrist to believe Lawson’s symptoms were comparable to post-traumatic stress disorder (PTSD).
Lawson was injured at work in November 2002 and applied for workers’ compensation benefits. The WSIB investigated and in March 2003 determined there was no proof of accident, denying the claim. Lawson appealed and an appeals resolution officer allowed the appeal. Though he ultimately received benefits, Lawson had to wait until September 2003 for them.
The WSIB determined that Lawson’s low back injury stemming from his workplace accident prevented him from returning to construction work. A labour market re-entry (LMR) plan was developed starting in January 2004, during which he would attend educational upgrading courses and a computer service technician program ending in September 2006.
However, Lawson failed several courses, which caused the WSIB to revoke his LMR services entitlement in January 2005. Lawson told his claims adjudicator and the LMR service provider that he had a learning disability – which school records confirmed – but the service provider determined the disability wasn’t the reason he failed the courses.
A new LMR plan was developed for employment as a health and safety representative, which had lower anticipated earnings than his previous LMR plan. After Lawson completed this plan in August 2006, his loss-of-earnings benefits were reduced based on his new deemed earnings. However, Lawson failed to find employment.
An appeals resolution officer determined that Lawson was competitively unemployable “due to the combination of physical and psychological impairments that are a direct result of his workplace accident” and awarded him full loss-of-earnings benefits retroactive to August 2006, when his earnings were reduced. In August 2008, Lawson’s entitlement to full loss-of-earnings benefits was made permanent until he reached the age of 65.
Tumultuous relationship with WSIB
During the LMR process, appeals process, and benefits adjustments, Lawson had a “bitter and tumultuous” relationship with the WSIB. On a number of occasions, he expressed suicidal thoughts to WSIB representatives and also thoughts of harming others, including WSIB staff, a few times. The WSIB has procedures and training for dealing with injured workers with mental health issues — front-line adjudicators have access to a nurse consultant with training on psychological disabilities and training on the duty to accommodate disability, “crisis calls” in which someone communicates distress or suicidal thoughts are transferred to a nurse consultant, and Nurse consultants have guidelines to assess the degree of risk, when to call 9-1-1, and how to de-escalate crises.
However, things deteriorated to the point where in November 2006, the WSIB advised Lawson that it would no longer accept telephone calls and voicemails from him. All communication was to be through correspondence only for a period of two years, after which Lawson could ask to have the restriction removed.
In October 2007, Lawson suffered an exacerbation of his back pain and was prescribed medication. He left a voice message for his WSIB case manager seeking approval for coverage of the medication’s cost. The WSIB responded with a letter from its security manager reminding him that he wasn’t allowed to leave voice messages and if he continued to do so, the WSIB could further restrict his communication to going through a representative only, even in writing.
Lawson also had some problems with his benefits payments arriving late or getting lost in the mail, but found it frustrating trying to deal with the WSIB with the communication restrictions. Lost and missing cheques also exacerbated his anxiety and stress issues. He filed a human rights complaint accusing the WSIB of discriminating against him based on his psychological disability and the Ontario Human Rights Tribunal mediated a settlement that set up direct deposit of Lawson’s loss-of-earnings benefits instead of having them be delivered by mail. The settlement also included a release discharging the WSIB and its employees of damages and indemnity of any remaining or future costs related to the complaint.
Confusion over payments, drug coverage, and treatments
However, Lawson still experienced problems with his benefits payments on a few occasions. Once, he changed banks and provided updated banking information to the WSIB but it wasn’t clear when the board received the information. Another time, his benefits were reduced, though this was quickly corrected. He also had his payment delayed because the deposit day was a holiday, leading to a change that deposits due on a holiday were to be deposited the day before instead of the day after.
Lawson reported that because of these problems, he experienced severe anxiety the day before the deposit was made and a fear that it wouldn’t be made. His psychiatrist believed the bi-weekly deposits were “a bi-weekly form of contact with the (WSIB) which triggers the symptoms” comparable to PTSD.
Lawson also had problems getting approval for new medications that were prescribed for him, as the protocols weren’t clearly communicated to him without the ability to directly speak to someone at the WSIB. The WSIB sent him drug verification services form letters every three months to determine if prescribed drugs already approved were still necessary, but sometimes they listed different medications and omitted ones that had been approved. These forms were different from what were sent to his doctor.
Lawson’s doctor also sometimes prescribed medications that the WSIB rejected for coverage but didn’t provide a reason. This led to confusion over what was approved and caused more anxiety and pain for Lawson when he interacted with the WSIB.
One doctor told Lawson she couldn’t treat him if he required excessive paperwork from the WSIB as it took too long to complete and didn’t seem to have a point, as her opinion about his medication needs seemed to be ignored. Lawson eventually stopped taking narcotic medications because of their side effects but didn’t request entitlement for his marijuana prescription.
Lawson received psychological treatment starting in 2005, some of which were covered by his benefits. In January 2013, a nurse consultant for the WSIB said a progress report would be needed before entitlement to further treatment would be considered, but Lawson’s psychiatrist said his assessment was the same as the previous year when treatments were approved. The psychiatrist submitted a report indicating Lawson needed emergency treatment, but it was denied with reference to a 2010 review that stated Lawson’s condition hadn’t changed and continued psychological treatment wouldn’t provide further benefit.
In May 2013, Lawson — through his legal counsel — requested accommodation for his disability that was exacerbated by his dealings with the WSIB. The WSIB responded that it had dealt with Lawson’s issues appropriately, though accommodation wasn’t addressed.
In July 2014, Lawson requested that the communication restriction be lifted. The WSIB told him it had decided to remove “the no-trespass restriction allowing you to enter WSIB offices,” though no such restriction had been imposed — only on telephone communication, which it had also removed without informing Lawson.
Lawson requested more psychological treatment entitlement, and the WSIB once again requested an updated progress report. Soon after this, Lawson stopped communicating with the WSIB because he found it too stressful. He filed a second human rights complaint alleging discrimination with respect to services because of his disability.
The tribunal noted that Lawson’s experience with the WSIB “would have been frustrating for most people,” as it included contradictory requests for information, contradictory information about medication, delays, lack of explanations, and “seemingly arbitrary and excessive demands for information that was not necessary.”
The tribunal found the drug verification forms and other requests for information, along with the confusion they caused, contributed to “considerable stress” for Lawson. In addition, the requests for additional psychological treatment weren’t addressed quickly and the WSIB continued to ask for more information that wasn’t needed once Lawson’s doctor submitted a report, said the tribunal.
While the WSIB’s processes and systems weren’t discriminatory on their own — Lawson was treated the same as other injured workers — the tribunal found that the WSIB’s failure to appreciate their effect on Lawson because of his disabilities and special needs was.
WSIB didn’t consider effects of its processes on worker
Though Lawson’s extreme reactions to stress made it difficult for the WSIB to deal with him, the WSIB should have investigated processes that could have made it easier for both parties, said the tribunal, particularly since Lawson’s issues were well-documented in medical assessments in his file. For example, some of Lawson’s interactions with nurse consultants and case managers went well when he was treated with empathy and allowed to vent, but this was taken away when he wasn’t allowed to communicate by telephone — a measure that may not have been intended to be punitive but was in its effect, said the tribunal.
In addition, when Lawson formally requested accommodation, the WSIB didn’t address it, though it could have helped matters. The WSIB should have had a process in place to investigate if there was an issue for which it was obligated to accommodate under the Ontario Human Rights Code, the tribunal said.
The tribunal determined that Lawson suffered from “a significantly heightened level of stress and frustration because of his various disabilities” and his dealings with the WSIB caused “acute exacerbation of his disability.” The WSIB failed to consider the impact of its processes and poor communication on Lawson’s disability and as a result infringed on his right under the code to fair provision of services. The tribunal indicated it would hear submissions about possible remedies in a future hearing.
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