Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | August 2018 | News Psychotraumatic disability from car accident, not earlier workplace injury Worker chose to forgo entitlement to benefits from car accident for successful civil settlement; Ongoing psychological disability not compensable BY JEFFREY R. SMITH AN ONTARIO worker's psy- chotraumatic disability was caused by ongoing pain result- ing from a non-compensable motor vehicle accident, not back pain stemming from an earlier workplace accident, the Ontario Workplace Insurance and Ap- peals 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 in- jured 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 de- termined the strain caused on- going "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 rehabilita- tion services that involved col- lege training and academic courses. However, by the follow- ing year he was having difficul- ties with the college training and the vocational rehabilitation ser- vices 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 re- strictions – 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 em- ployer 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 vehi- cle. In the accident, the worker in- jured his neck, low back, and left leg. Afterwards, he was also diag- nosed 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 set- tlement in his favour. A report by an orthopaedic surgeon in September 2002 in- dicated 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 hap- pened. The worker was treated for his physical injuries until October 2002 and received psychological counselling for his adjustment and pain disorders until Novem- ber of that year. A psychological report at the end of the worker's treatment indicated he hadn't made a "particularly adaptive re- covery" but there was no indica- tion he still suffered from an on- going psychological condition. However, after the treatments ended, the worker's family doc- tor continued to prescribe psy- chotropic medication. The worker remained off work following the motor vehicle ac- cident, 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 addi- tional academic upgrading and customer service training with the objective of finding him em- ployment in that area, but again the worker was unable continue due to his pain. In early 2012, the worker be- gan 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 acci- dent – 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 con- tributed to his psychotraumatic disability – but the WSIB de- nied 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 per- sisted but had improved with treatment, but his back pain had remained constant since the 1994 accident. The tribunal referred to the WSIB operational policy man- ual document that covered psy- chotraumatic disability, which stated that such a disability was normally considered temporary and was only accepted as per- manent in "exceptional circum- stances." The policy document also stated the entitlement was usually only granted if the impair- ment "became manifest within five years of the injury, or within five years of the last surgical pro- cedure" – though the tribunal noted that the five-year guideline was not rigidly applied, depend- ing 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 diag- nosed after his motor vehicle accident in 2002. It found no evidence of any psychological issues before the non-compen- sable accident, which also hap- pened eight years after the origi- nal workplace injury. There were no exceptional circumstances that warranted a departure from the five-year guideline for psy- chotraumatic 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 anxi- ety before the 2002 accident and, though he didn't make a "partic- ularly adaptive recovery," the ad- justment disorder was the result of the motor vehicle accident. The tribunal denied the work- er's appeal, determining that it was the non-compensable mo- tor vehicle accident in 2002 that caused the worker to stop work- ing altogether – and it was that inability to work that perpetuat- ed the worker's psychotraumatic disability. "The medical evidence clearly indicates that the worker's psy- chotraumatic disability devel- oped 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 be- fore 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.). Worker had difficulty completing vocational training due to back pain

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