Canadian Safety Reporter

Physical and mental injuries contributed to lack of worker's co-operation Benefits were discontinued after injured worker didn't co-operate in return-to-work efforts, but worker suffered from pain, depression, and drug use BY JEFFREY R. SMITH THE ONTARIO Worker's Safety and Appeals Tribunal has over- turned multiple decisions deny- ing a worker benefits for a back injury and psychotraumatic in- jury, finding both contributed to the worker's lack of co-operation in return-to-work efforts. The worker, 44 years old at the time, was hired in March 2007 to be a steelworker. Not long into his tenure — on June 4 of the same year — the worker tripped and fell down a steel staircase at work. He suffered a compression fracture in his low back and frac- tured ribs. The worker remained off work into 2008, receiving loss- of-earnings benefits, and in February of that year he was referred to a functional restora- tion program (FRP). However, he was discharged from the program for non-participation in late April. Shortly thereafter, the employer offered the worker temporary modified duties with no wage loss beginning on May 5. An adjudicator terminated his loss-of-earnings benefit for failure to participate in the FRP and because the modified du- ties offered to him were deemed suitable. The following month, the em- ployer sent the worker a written offer of permanent modified duties in the form of a flagman position. An ergonomist repre- senting the Ontario Workplace Safety and Insurance Board (WSIB) assessed the modified duties and determined they fell within the worker's medical re- strictions, so the WSIB informed the worker he had no further en- titlement to benefits beyond June 23, 2008, due to the worker's lack of co-operation. The worker tried working as a flagman for a couple of days, but he later testified he wasn't getting along with the employer and he had constant back pain. He also said the pay was less than his steelworker position and he didn't believe it was a permanent position. Soon after the WSIB's discon- tinuance of worker's compen- sation benefits, the employee wrote to the board informing it the employer had terminated his employment on Aug. 1. In June 2009, the WSIB grant- ed the worker a 30 per cent non- economic loss award for perma- nent impairment of his lower back. A year later, he filed a claim requesting entitlement to in- clude permanent impairment of a disc herniation in his back and full loss-of-earning benefits from when they were discontinued in May 2008. He also requested en- titlement for a psychotraumatic disability stemming from his medical impairments. Claim denied due to lack of co-operation A WSIB case manager denied entitlement for the disc hernia- tion and psychotraumatic dis- ability, and the worker appealed to a WSIB appeals resolutions officer (ARO). The ARO upheld the denial of entitlements based the worker's failure to co-operate in the FRP and the employer's of- fer of suitable modified duties. The ARO noted the disc her- niation had not been observed in an x-ray, MRI, and bone scan taken following the worker's fall at work. In addition, the worker had substance abuse issues that the ARO found contributed to his psychological condition and precluded a link to his job and any psychotraumatic injury. The worker appealed again, this time taking the matter to the Ontario Workplace Insur- ance and Appeals Tribunal. He claimed he continued to have back and neck pain and he had relapsed into cocaine use after the accident. He had a history of cocaine abuse but had been clean for several years until he was in- jured. At the time of his failure to participate in the FRP, the work- 7 Canadian HR Reporter, a Thomson Reuters business 2016 News | April 2016 | CSR Credit: Shutterstock Substance abuse > pg. 12

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