Canadian Safety Reporter

August 2018

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

Issue link: http://read.uberflip.com/i/1005836

Contents of this Issue

Navigation

Page 1 of 7

2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | August 2018 | News old. He worked on the ware- house 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. Be- fore joining the auto parts com- pany, 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 manu- facturing company, on Septem- ber 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 work- er 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 deter- mine 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 of- ficer in his country of origin be- fore immigrating to Canada, it was determined that a suitable occupation for him would be se- curity guard or concierge. The LMR plan included 92 weeks of training – including English as a second language (ESL) training – 12 weeks of se- curity guard training, four weeks of sob search training, and cul- minating 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 im- pairment 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 psy- cho-vocational assessment in February 2007. The second as- sessment determined that the occupation of security guard/ concierge was no longer feasible for the worker, so the LMR plan was amended to include an addi- tional 16 weeks of ESL and aca- demic training followed by an eight-week work placement and four weeks of job search training towards a new suitable occupa- tion 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 func- tional 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 grant- ed 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 an- other functional restoration program, but he was discharged after three weeks for failing to comply and not making prog- ress. 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 un- successfully applied for benefits for a permanent psychotrau- matic disability as well as cus- tom orthotics and other medi- cal devices. The WSIB offered him another 12 weeks of LMR service, but the worker main- tained 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 re- vised suitable occupation. Since the earnings of the suitable oc- cupation 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 Oc- tober 2014 report by the work- er'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 expe- rience mental health difficulties and was assessed by the Centre for Addiction and Mental Health (CAMH). The CAMH report found the worker's "overall prog- nosis is guarded to poor" and treatment would be "unlikely to result in sufficient improve- ment in symptoms or function- ing to enable a return to work." The WSIB once again denied him benefits for an ongoing psy- chotraumatic disability along with a chronic pain disability as it determined the workplace accident wasn't a contributing factor to his psychological con- dition. The worker appealed and an appeals resolution officer granted ongoing psychotrau- matic entitlement but upheld the denial of benefits for chronic back pain. After the worker won the ap- peal for psychotraumatic dis- ability, the WSIB found he had a 10 per cent psychological im- pairment 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 psy- chological issues. The tribunal noted that the Ontario Workers' Compensa- tion Act defined "impairment" as "a physical or functional ab- normality or loss which results from an injury and any psycho- logical damage arising from the abnormality or loss," and it was permanent if it "continues to ex- ist after the worker reaches max- imum 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 with- out interest in socializing. This was a significant level of impair- ment that rated higher than 10 per cent – more in the range of Class 3 (20 to 45 per cent, "im- pairment levels compatible with some but not all useful func- tion") on the mental and behav- ioural ratings scale in the WSIB operational policy manual docu- ment on permanent mental im- pairment, the tribunal said. According to the policy man- ual document, 10 per cent im- pairment would fall into Class 2, "impairment levels compat- ible with most useful function," which the tribunal disagreed was the case for the worker. The tribunal also found that the worker had received "ex- tensive treatment for both his organic and psychological im- pairments," there was no signifi- cant improvement. His physical restrictions – including no heavy lifting, repetitive bending, or prolonged positioning – severe- ly limited his prospects of find- ing 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 impair- ment – 20 per cent – which in- creased his total non-economic loss award to 39 per cent. In ad- dition, the tribunal supported the worker's appeal for full loss- of-earnings benefits to be con- tinued 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.). Worker wins < pg. 1 Return to work unlikely due to pain and mental health issues

Articles in this issue

Archives of this issue

view archives of Canadian Safety Reporter - August 2018