Canadian Safety Reporter

©2016 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safetyreporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher John Hobel (on leave) Associate Publisher/Managing Editor Todd Humber Lead Editor Jeffrey R. Smith Assistant Editor Mallory Hendry Contributing Editors Liz Foster Sabrina Nanji Liz Bernier Marketing & Audience Development Manager Robert Symes mm.ali@thomsonreuters.com (416) 609-5866 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 Substance abuse not factored into assessments CSR | April 2016 | News er claimed he has at an "all time low" due to pain and illegal drugs he was taking for the pain. He and a friend indicated he had suicidal thoughts and suffered from de- pression through 2008 — a men- tal health assessment performed by a registered nurse in Febru- ary 2008 indicated the worker complained of "chronic pain, depressed/suicidal, substance abuse" and he was referred for a psychiatric assessment. The tribunal considered the WSIB's Operational Policy Man- ual, which stated entitlement for both physical and mental disabil- ity or impairment can be attrib- utable to a work-related injury if they manifest within five years of the injury or the last surgical pro- cedure related to the injury. The policy manual also stated work- ers who lose earnings as a result of a work-related injury are en- titled to loss-of-earnings benefits until they are capable of earning again or are no longer impaired in their ability to work. The tribunal found that the worker's substance abuse prob- lem wasn't caused by his inju- ries, but the worker's emotional response aggravated the prob- lem. The worker's description of his psychological issues and the mental health assessment proved he had serious mental health issues that were the re- sult of his injuries stemming from the workplace accident and therefore were a work-related psychotraumatic injury, said the tribunal. "We find the evidence be- fore us establishes on a balance of probability that the worker experienced a significant emo- tional reaction to the accident, depression, anxiety and suicidal ideation that is compatible with the seriousness of the physical injury," said the tribunal. The tribunal agreed with the worker's claim that the reason he didn't participate in the FRP in April 2008 was because of his psychological condition stem- ming from the injury. It also found that the worker's failure to take on the flagman's job was also because of his psychologi- cal condition. It was evident that he was still abusing drugs at the time he attempted the flagman job and the WSIB ergonomist's report didn't refer to the worker's substance abuse problem in de- termining suitability for the posi- tion. "We find the worker's abil- ity to be alert and safely perform the duties of a flagman would be significantly affected by his post-accident physical and psy- chological problems," said the tribunal. "We find the worker's organic and psychological condi- tion rendered the worker unable to perform the modified duties, including that of a flagman." The tribunal also found that even though the disc herniation didn't show up in post-accident scans, it showed up in scans a few months later and a medical con- sultant felt it was "likely related" to the workplace accident. The tribunal overturned the earlier decisions of the case manager and ARO, finding the worker was entitled to worker's compensation benefits for his herniated discs and psychotrau- matic injury. Because the flag- man duties were found to be unsuitable, the tribunal also de- termined the worker was entitled to loss-of-earnings benefits since they were discontinued for his lack of co-operation in taking on that position. For more information see: • Decision No. 2669/15, 2016 Car- swellOnt 1168 (Ont. WSIAT). Physical and mental < pg. 7 e tribunal agreed with the worker's claim that the reason he didn't participate in the functional restoration program was because of his psychological condition. WEBINARS Interested in learning more about safety and HR issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as building strong safety leadership, engaging managers and supervisors to ensure OHS compliance, and building a better joint health and safety committee. Visit www.cpdcentre.ca/cos for more information.

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