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WORKPLACE SAFETY AND INSURANCE BOARD
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## APPEALS RESOLUTION OFFICER DECISION
**DECISION NUMBER:** 20110029
**OBJECTION BY:** Worker
**PARTICIPANTS:** Worker, Worker Representative, Employer, Employer Representative
**HEARING DATE:** June 21, 2011
## ISSUES
The worker is appealing for chronic pain disability (CPD) entitlement, for psychotraumatic entitlement, and for loss of earnings benefits after November 25, 2009.
## HOW THE ISSUES AROSE
This now 38 year old fork lift operator was employed by an automotive manufacturer, when he reported the gradual onset of left shoulder pain on November 6, 2007. Entitlement was allowed for a no lost time claim for the left shoulder tendonitis condition. He returned to work in modified duties.
Under a subsequent claim he received entitlement for a bilateral hand/wrist claim arising out of his modified duties.
In March 2009, the employer requested a Regional Evaluation Centre (REC) for both injuries. It was noted that the worker stopped work in March 2009 due to a non-compensable psychological condition.
The May 19, 2009 REC report offered a diagnosis of left shoulder strain with associated chronic pain. It was recommended that the worker maintain physical restrictions on the use of his left upper extremity in reaching, lifting, carrying, pushing, pulling and repetitive activity. It was also recommended that he attend a functional restoration program or a chronic pain program. The report indicated that the worker had been off work since March 2009 due to psychological reasons.
The July 3, 2009 functional restoration program report offered diagnoses of chronic pain disorder associated with both psychological factors and a general medical condition along with an adjustment disorder with both anxious and depressed mood. The report only noted left shoulder pain with some radiation to the neck. He was found to be appropriate for the functional restoration program.
The worker accepted a return to work in modified duties on July 27, 2009 that was to be incorporated with the functional restoration work hardening program.
The September 4, 2009 functional restoration program report indicated that the worker could return to work in sedentary to light duties with recommended precautions on above shoulder activities, reaching and any lifting duties. It was concluded that he suffered from a chronic pain disorder and an adjustment disorder with both an anxious and a depressed mood. However, his reports of pain were still centralized in the left shoulder area.
Based on the reporting, it was accepted that the worker would have a left shoulder permanent impairment.
The functional restoration program also included the services of a return to work consultant who worked actively with the parties to facilitate the worker’s return to work with the employer. The worker had been off work since March 2009 for non-compensable psychological reasons. He received medical clearance to a return to work in a combination of job shadowing duties with the employer and work-hardening at the nearby university health network facilities in July 2009.
In the program, the worker would attend job shadowing duties from 7:00 a.m. to 9:00 a.m. at the employer’s plant. He would then go to his work-hardening activities until the early afternoon. He would then return to the plant to continue job shadowing for the remainder of the shift. He was paid on a full‑time basis by the employer for these activities.
By August, the return to work consultant had discussed the issue of the worker returning to work in his home department with the functional restoration program psychologist. It was recommended (by the psychologist) that a switch to another department should be made due to the psychological associations the worker had with the home department. As a result, the return to work efforts became focussed on the sales line department. The return to work consultant then refocused work-hardening efforts at work simulations of the sales line department.
An incident occurred during this return to work program on November 2, 2009. Apparently, the worker verbally abused a university health network staff member with profanities. An investigation ensued. The worker was given an opportunity to outline his side of the story in writing on November 4, 2009. However, he left the premises, apparently without authority. Apparently, he once again verbally abused the staff member. Subsequently, the university health network would no longer allow the worker on their premises.
The worker was terminated from his job on November 25, 2009. His abusive behavior and his failure to participate in the investigation were cited in the termination.
The employer’s December 3, 2009 letter to the case manager outlined how the worker had been on probationary status since a previous behavioral incident. Also, it was noted that the worker was slated to receive a higher level of corrective action in July 2009 in regard to previous verbal abuse, an insubordinate attitude and an inability to take direction from the management team. However, it appeared that an opportunity to carry this out had not arisen. The letter confirmed that the worker’s November 2009 behavior was sufficient to have him terminated.
The worker received a 5 per cent NEL award for his left shoulder permanent impairment as of November 2009.
The worker was not paid any further loss of earnings benefits, as it was concluded that his wage loss was not related to his injury.
The December 14, 2009 re-employment determination found that the employer had not breached its re-employment obligations to the worker as the re-employment obligation had run out. The termination had occurred some two years past the onset of injury. The letter also reconfirmed the denial of loss of earnings benefits, as the worker’s wage loss was unrelated to his work injury.
The worker called the case manager on September 22, 2010 to enquire about CPD entitlement. He was advised that there was no entitlement as there was an organic basis for his pain experience. This was outlined in Memo 47.
## AUTHORITY
Operational Policies:
- 15-04-02 - Psychotraumatic Disability
- 15-03-02 - Traumatic Mental Stress
- 18-03-02 - Payment and Reviewing LOE Benefits (Prior to Final Review)
- 18-03-03 - Reviewing Loss of Earnings Benefits (Prior to Final Review)
- 19-02-02 - The Goal of Early and Safe Return to Work and the Roles of the Parties
- 19-02-03 - Workplace Party Cooperation
- 19-02-04 - Functional Abilities Form for Planning Early and Safe Return to Work
- 19-02-05 - Resources and Evaluations
- 19-02-06 - Mediation Services
## EXHIBITS
The worker’s representative brought in three medical notes which were listed as Exhibit 1.
## ASSESSMENT OF EVIDENCE AND TESTIMONY
I have reviewed the record and have examined the evidence and testimony. The key issues in this appeal include:
1. The sufficiency of the available evidence to support that all of the criteria for CPD entitlement under Operational Policy 15-04-03 - CPD - has been met,
2. The sufficiency of the available evidence to support the worker’s psychological condition is related to his compensable injuries,
3. The sufficiency of the available evidence to support that the criteria for Traumatic Mental Stress entitlement has been met, and
4. The sufficiency of the available evidence to support that the worker’s compensable areas of injury were responsible for his wage loss after November 25, 2009.
### CPD Entitlement
In regard to the CPD issue, I note that the diagnosis of chronic pain has been put forth in the medical documentation. However, this diagnosis, in itself, would not necessarily result in a confirmation of CPD entitlement. The criteria states:
- A work related injury occurred.
- The chronic pain is caused by the injury.
- The pain persists six or more months beyond the usual healing time of the injury.
- The degree of pain is inconsistent with organic findings.
- The chronic pain impairs earning capacity.
The May 21, 2009 REC report advised that the worker had an injury diagnosis of a left shoulder strain. As well, the report advised of a diagnosis of chronic pain in the left shoulder. An organic permanent impairment was anticipated although it was suggested that there could be more improvement over the next 16 to 18 weeks.
The REC diagnosis would not support CPD entitlement under the policy. The chronic pain experienced by the worker in his left shoulder was accounted for by the organic injury he experienced and the corresponding organic diagnosis. The policy requires that the pain experienced by the worker be incompatible with the organic findings and the diagnosis.
The functional restoration program reporting put forth a diagnosis of a CPD with psychological features and a general medical condition. Here again there are difficulties with accepting that this would fulfill the CPD criteria because of compatibility issues. In the actual reporting, the worker’s experience of pain continued to be localized in the left shoulder area where he was injured, and he continued to have an organic diagnosis.
As well, the functional restoration program diagnosis included the worker’s non-compensable psychological difficulties as part of the chronic pain disorder diagnosis. The worker’s psychological difficulties arose from interpersonal stress he alleges he experienced interacting with co-workers and managers. This evidence is from the worker’s testimony. The psychological condition was unrelated to his injury. Hence, it cannot be accepted as part of any CPD diagnosis. As a result, all that remains is a pain condition that is compatible with an organic injury and diagnosis.
### Psychotraumatic Entitlement
The worker’s representative contended that the worker’s psychological condition should be seen as related to his injury and the subsequent difficulties he was experiencing with co-workers and supervision. Currently, I have little evidence that the psychological condition arose from his organic injury. The evidence from the file and the worker’s own testimony (which will be further discussed later in this decision) was that the interpersonal relationships and the disciplinary measures were behind the onset of the condition. This would mean that the worker would not have psychotraumatic entitlement under Operational Policy 15-04-02.
### Traumatic Mental Stress Entitlement
This leads to the question or whether the workplace interaction and discipline would lead to any traumatic mental stress entitlement under Operational Policy 15-03-02 - Traumatic Mental Stress. This policy requires that the worker’s psychological condition be directly caused by a workplace related sudden and unexpected traumatic event. Such events are strictly defined under the policy and must be objectively traumatic. As well, the policy strictly prohibits any entitlement where the onset is related to an employer’s employment related actions or decisions, including disciplinary measures.
From the worker’s own testimony, I find that none of the workplace events he has mentioned would qualify as sudden and unexpected traumatic events under this policy. As well, the condition arose (according to the worker’s testimony) after disciplinary discussions with the employer. Hence, there would be no traumatic mental stress entitlement either.
### Loss of Earnings Benefits after Termination
In regard to the worker’s entitlement to loss of earnings benefits after November 25, 2009, the worker’s representative has put forth a number of arguments to support the allowance of further benefits and labour market re-entry (LMR) services. These include:
- A contention that the duties offered to the worker would not have been suitable. He cited the various physical demands analyses put forth by the employer in its return to work negotiations with the return to work consultant and the worker. He pointed to indications that some of the activities (in some of the descriptions) included duties that violated the worker’s accepted physical restrictions, including above shoulder activities, pushing and pulling as well as repetitive movement. He cited from the worker’s testimony the need in the sales line area to complete a function within every 72 seconds.
- The worker’s activities on November 2 and 4, 2009 were not sufficiently extreme to lead to dismissal. It should be accepted that he experienced a long period of supervisory and co-worker harassment that would account for any previous disciplinary history. The worker’s reactions on November 2, 2009 were understandable given the intrusion into the worker’s personal space in the washroom and given his physical condition (resulting in diarrhea and nausea). Even the subsequent encounter with the female staff person (initiated by the worker) could be seen as somewhat understandable.
- The fact that the worker was terminated from the employer should not be any barrier to further loss of earnings benefits under the Workplace Safety and Insurance Act and under WSIB Operational Policies. He cited Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions that have found that terminations should not automatically lead to a conclusion of no further loss of earnings benefits because of the possibility of injury related causes. He contended that this meant the appeals resolution officer would have no authority to address just cause terminations or address whether there had been any injury related involvement in the loss of earnings. As a result, the only relevant factors taken into account would be whether the worker had a permanent impairment and whether he was negatively affected in the labour market. He also noted the lack of an operational policy that directly addressed terminations. Hence the operational policy regarding entitlement after layoff would apply. That policy allows for further loss of earnings benefits and LMR services if a worker remained negatively impacted by any permanent impairment. This meant the worker should automatically receive further entitlement to loss of earnings benefits.
- He argued that the university health network setting was not a workplace, and hence, the worker could not be legitimately terminated for a workplace incident.
In regard to the arguments about job suitability, I note that the return to work consultant worked actively with the parties to ensure that the worker would be able to return to work in a safe position that was within his physical restrictions. In fact, the physical demands analyses were submitted by the employer as a starting point to establish a set of duties that would suit the worker’s abilities. The physical demands analyses were not submitted as the worker’s final set of duties.
Before the worker was terminated, the return to work consultant had set up work simulations of a number of the duties to identify how well the worker could tolerate each one. The results of this testing process would be used to eliminate any inappropriate duties amongst those that were available.
I also have little evidence before me to support that the employer would not have provided work that would have been consistent with the assessment results. They had instituted the combined schedule of work duties with the work-hardening and work simulation assessment. As well, the employer has had a long history of providing suitable modified work when the worker had compensable or non-compensable conditions.
The worker’s representative also suggested that the employer delayed the process of identifying a permanent modified job for the worker that recognized his permanent physical restrictions. I do not find that the employer made any unnecessary delays. The worker had been off work for non-compensable reasons and had not agreed to participate in return to work activities until the short-term disability carrier discontinued benefits (since, as the worker testified, the onset of the condition was suggested to be related to disciplinary measures). The employer then agreed to accommodate the worker’s non-compensable condition by moving him from his home department. The employer then established the work-hardening assessment process to improve the worker’s return to work prospects.
Given the employer’s history of accommodating the worker, I find that even if further accommodations were required beyond the recommendations made by the return to work consultant, the employer would have incorporated further changes to the job duties.
As a result, I find there is little evidence to support that the employer was providing unsuitable work.
In regard to the issue of whether the worker’s behaviors on November 2 and 4, 2009 were sufficient to warrant dismissal, I will begin by referring to the worker’s testimony.
### Testimony Regarding the LOE Issue
The worker testified that prior to any claims for work related injuries; he had little workplace disciplinary history to speak of. It was only after he incurred an injury that he experienced the wrath and disciplinary measures from management and harassment from co-workers.
Before 2000, the worker stated he had no history of disciplinary measures. Sometime around 2000, he put in a claim for a low back injury. While acknowledging that the employer provided suitable modified work after the injury, he contended that management was singling him out for special treatment. He was observed more closely, and he received discipline for seemingly insignificant infractions. His co-workers treated him differently, and he attributed this to their failure to accept his need for accommodations.
After his return to unaccommodated duties, the worker advised that the treatment he received by management and co-workers appeared to have returned to normal. However, this changed after putting in a claim for his left shoulder. He said that management once again placed him under the microscope, and he felt mistreated by co-workers. As evidence, he pointed out that he had been passed over for a special project assignment that was both sought after and would have been within his physical restrictions, as the job usually involved assessment type duties.
Under questioning, the worker acknowledged that he would not have been entitled to apply for such an assignment, as he was on probationary status as a result of a disciplinary measure arising from his workplace behavior. This was referred to as a period of corrective action, and this would prevent anyone from applying for assignments and other jobs.
The worker also acknowledged that the fact that he had been on modified work would also necessitate closer monitoring to ensure that he was kept from unsafe work.
The worker was asked on a number of occasions to outline how his co-workers treated him differently. He was vague in his responses. He suggested that the co-workers would look at him differently. He suggested that they socialized with him less. None of his responses would suggest treatment sufficient to be described as harassment or a poisoned work environment as was suggested by the worker’s representative.
The worker was questioned about an incident where he was singled out by management for his own harassment behavior towards a contract employee. He acknowledged resentment towards the co-worker. It had taken the worker many years to obtain the seniority required to be placed in a preferred area. It wasn’t until 2004 that he moved to that area. He was indignant that there were contract employees hired from outside the company who were temporarily contacted to work in that area. The contract employee in question had worked well in excess of the requirements (in what was perceived) as an attempt to ingratiate himself with management in hopes of a permanent position. The worker acknowledged that disciplinary measures were taken as a result of his behavior towards the co-worker.
The worker acknowledged that his loss of earnings in May 2009 (due to psychological reasons) occurred just after disciplinary discussions with management. He also acknowledged that his short‑term disability benefits were stopped by the insurance carrier in July 2009, as the psychological condition was suggested to be related to disciplinary measures.
From the worker’s own testimony, the evidence supports the previous conclusion that he did not suffer from an acceptable workplace sudden and unexpected traumatic event (as defined under traumatic mental stress policy), and, hence, he would not have entitlement to traumatic mental stress (as I have ruled).
The worker was also questioned on the events of November 2 and 4, 2009. He advised that on November 2, he was feeling very ill and was experiencing nausea and significant diarrhoea. He attended his 7:00 to 9:00 a.m. work shadowing at the plant and went to the nearby university health network facility for his work hardening. He went because he had no further attendance days or emergency days available, and he anticipated that he would not likely be paid for any time off. He felt pressured to do his exercises by the facilitator, but he acknowledged that her job included encouraging the participants to participate. He also acknowledged that she had suggested he go home if he did not feel well.
Due to his illness, the worker spent a considerable amount of time in the men’s washroom. He suggested he was in there for 45 minutes, while the documentation on file suggested it was about an hour and a half. After being in the washroom for a while, the program coordinator, came in to see if he was all right and see whether he needed assistance. The worker told him he would be all right and would be out in a while.
The worker was questioned on what happened later, when his (female) facilitator came to the door. He acknowledged that she was probably sent as the coordinator had been called to a meeting. Although the documentation on file indicates that she had knocked on the door, the worker contended that she had barged in and had invaded his personal space. He described it as a violation of his human rights. At the time, he had just finished in the cubicle, and he was attempting to clean himself up. He found her entrance abrupt. He acknowledged that she asked him how he was feeling and expressed concerns about his wellbeing. She also suggested that he could go home.
The worker acknowledged that he reacted in fury, yelled at the facilitator and used profanities. He was angry that she had come into the men’s washroom, and he was angry that she suggested that he could go home, when he anticipated he would not be paid. He acknowledged that he had accused her of insensitivity because she could get paid for a day off, and he could not. He appeared to blame her for passing on the virus to him.
However, the worker contended that (considering his condition) he should have only been cited for his behaviour in a minor way. He did not strike her or threaten to do so. Also, he contended that her invasion of his space was cause for some kind of reaction. He advised that the incident was reported.
The worker advised that November 3 proceeded normally. However, an employer generated investigation of the incident led to a request on November 4 that he sit in a room and outline his version of the events of November 2. While sitting there, he became agitated and concluded that this was a “set up” that would lead to his firing. He then left without authorization. He said he was seeking medical attention. The worker acknowledged that (at one point) he approached the facilitator (on his own initiative) in front of a witness. He acknowledged that he berated her and used profanities. Again, he downplayed the significance of the incident.
The worker was subsequently barred from ever entering the facility again.
The worker advised that he was suspended with pay and was later terminated. He had the opportunity to have his termination reviewed by an executive of the company or choose a review by a committee of peers. He chose the peer review, but he still saw the process as biased. While he was able to generate the random list of potential peers, management then made a selection from the list. The peers upheld the termination.
From the worker’s own testimony, I find I can conclude that his loss of earnings after November 25, 2009 was unrelated to any compensable condition (even partially). I find that the events of November 2 and 4 were sufficient in themselves to lead to termination. As well, I note the worker’s disciplinary history and probationary status would confirm this conclusion. Hence, he has no further entitlement to loss of earnings benefits.
In regard to the worker’s representative’s argument about my lack of authority to deny loss of earnings benefits in cases of termination, I find that he has attempted to take the results of previous WSIAT decisions to absurd conclusions. I acknowledge that a termination of a worker by an employer does not automatically result in the denial of future loss of earnings benefits. However, for a worker to receive further loss of earnings benefits, the injury must somehow be responsible for the loss of earnings. In this case, the injury has no bearing whatsoever on the worker’s loss of earnings. There is no support for the argument that a worker can receive loss of earnings benefits regardless of whatever behaviour led to a termination.
In regard to the worker’s representative’s argument that there is no policy that demands that the loss of earnings be injury related, I point out the loss of earnings operational policies. Before loss of earnings benefits can be considered, it must be substantiated that the loss of earnings is related to a compensable injury.
As a result, there would be no reason to look at associated policies such the policy regarding entitlement after a layoff (which would not be applicable in this case).
Finally, I do conclude that the behaviour for which the worker was terminated occurred at a workplace setting in the course of his employment. The work hardening was part of the worker’s return to duties, and he carried out work before and after the program each day. He was paid a full day’s wage by the employer to perform duties at the plant and at the work hardening facility. The work hardening facility was paid for by the employer.
## CONCLUSION
I conclude:
- The worker does not have chronic pain disability entitlement.
- The worker does not psychotraumatic entitlement or traumatic mental stress entitlement.
- The worker’s loss of earnings have no relationship to any compensable injury or claim. He is denied any loss of earnings benefits after November 2009.
The worker’s appeals are denied.
Dated July 13, 2011
P. Prummel
Appeals Resolution Officer
Appeals Branch
minicounsel