Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2017 News | November 2017 | CSR WSIB's handling of worker's case discriminatory: Tribunal Delays, communication restrictions and confusing information exacerbated worker's anxiety and other psychological disorders BY JEFFREY R. SMITH THE ONTARIO Workplace Safe- ty 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 construc- tion 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 psy- chological conditions, includ- ing anxiety disorder, depression with suicidal ideation, pain dis- order, and attention deficit dis- order. Some assessments also found that he had adjustment disorder. In February 2010, Law- son'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 neg- atively when faced with stressful situations," the psychiatrist said. Lawson's psychological condi- tions led to problems in dealing with others, particularly his phy- sicians. He filed or threatened to file complaints about mul- tiple doctors who he felt weren't supporting him and this led to strained doctor-patient relation- ships. This behaviour led Law- son's regular psychiatrist to be- lieve 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, deny- ing the claim. Lawson appealed and an appeals resolution offi- cer allowed the appeal. Though he ultimately received benefits, Lawson had to wait until Sep- tember 2003 for them. The WSIB determined that Lawson's low back injury stem- ming from his workplace ac- cident prevented him from re- turning to construction work. A labour market re-entry (LMR) plan was developed starting in January 2004, during which he would attend educational up- grading courses and a computer service technician program end- ing in September 2006. However, Lawson failed sev- eral courses, which caused the WSIB to revoke his LMR servic- es entitlement in January 2005. Lawson told his claims adjudica- tor and the LMR service provider that he had a learning disability – which school records confirmed – but the service provider deter- mined the disability wasn't the reason he failed the courses. A new LMR plan was devel- oped 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 earn- ings. 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 work- place accident" and awarded him full loss-of-earnings benefits ret- roactive to August 2006, when his earnings were reduced. In Au- gust 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, ap- peals process, and benefits ad- justments, Lawson had a "bitter and tumultuous" relationship with the WSIB. On a number of occasions, he expressed suicidal thoughts to WSIB representa- tives and also thoughts of harm- ing others, including WSIB staff, a few times. The WSIB has pro- cedures and training for dealing with injured workers with men- tal health issues — front-line adjudicators have access to a nurse consultant with training on psychological disabilities and training on the duty to accom- modate disability, "crisis calls" in which someone communicates distress or suicidal thoughts are transferred to a nurse consul- tant, 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 correspon- dence only for a period of two years, after which Lawson could ask to have the restriction re- moved. In October 2007, Lawson suf- fered an exacerbation of his back pain and was prescribed medi- cation. He left a voice message for his WSIB case manager seek- ing approval for coverage of the medication's cost. The WSIB re- sponded with a letter from its se- curity manager reminding him that he wasn't allowed to leave voice messages and if he con- tinued to do so, the WSIB could further restrict his communica- tion to going through a repre- sentative only, even in writing. Lawson also had some prob- lems with his benefits payments arriving late or getting lost in the mail, but found it frustrat- ing trying to deal with the WSIB with the communication restric- tions. 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 Hu- man Rights Tribunal mediated a settlement that set up direct de- posit of Lawson's loss-of-earn- ings benefits instead of having them be delivered by mail. The settlement also included a re- lease discharging the WSIB and its employees of damages and indemnity of any remaining or future costs related to the com- plaint. Confusion over payments, drug coverage, and treatments However, Lawson still experi- enced problems with his ben- efits payments on a few occa- sions. Once, he changed banks and provided updated banking information to the WSIB but it wasn't clear when the board re- ceived the information. Another time, his benefits were reduced, though this was quickly cor- rected. 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 be- fore instead of the day after. Lawson reported that because of these problems, he experi- enced 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 symp- toms" comparable to PTSD. Lawson also had problems getting approval for new medi- cations 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 verifi- cation services form letters ev- WSIB's bureaucracy > pg. 8

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