Case Two: Trucker Rolls Transport Truck (PTSD) This is a case about a 49 year old transport truck driver who was driving his truck on the highway when he became distracted, lost control of his truck and rolled over into the median. He sustained multiple physical injuries (mostly cuts and abrasions on his bilateral arms). He was charged by the OPP with Careless Driving. One month following the accident, the worker began receiving treatment for a post-traumatic stress disorder (PTSD). Seven weeks after the accident, the worker returned to modified duties in the administration office on a reduced work week (2 days per week). He stopped working after only one week citing increased pain produced by his physiotherapy treatment. He reported symptoms of headaches and dizziness. After an assessment, the worker was found to be physically capable of returning to modified duties. However, his psychologist maintained that the worker’s PTSD, triggered by a proximity to trucks, rendered him totally impaired. He claimed to ‘feel pressure’ and ‘jump’ when he was near a truck. He could not return to modified duties in the administration building because he could not be anywhere near trucks, where he could see them, hear them, or even be on the same premises as the trucks. The employer’s Human Resources Department was in the basement of the Administration Building. Entitlement was extended for the PTSD and the worker was granted full loss of earnings benefits for 2.5 years. The treating psychologist continued to provide notes which supported that the worker was totally occupationally disabled from PTSD and so much so, that he could not even ride a bus to engage in Work Transition Services. The worker’s employment was terminated approximately one year after the injury, because of his at- fault driving record. An updated psychological progress report showed a new diagnosis of adjustment disorder with mixed mood and a pain disorder associated with physical and psychological factors (NO mention of PTSD). He was capable of driving his personal vehicle, yet his physician provided a note indicating he required taxi transportation as he was unable to take public transit due to his PTSD.
Transcript
Case Two: Trucker Rolls Transport Truck (PTSD)
This is a case about a 49 year old transport truck driver who was driving his truck on the highway when he became distracted, lost control of his truck and rolled over into the median. He sustained multiple physical injuries (mostly cuts and abrasions on his bilateral arms). He was charged by the OPP with Careless Driving.
One month following the accident, the worker began receiving treatment for a post-traumatic stress disorder (PTSD). Seven weeks after the accident, the worker returned to modified duties in the administration office on a reduced work week (2 days per week). He stopped working after only one week citing increased pain produced by his physiotherapy treatment. He reported symptoms of headaches and dizziness.
After an assessment, the worker was found to be physically capable of returning to modified duties. However, his psychologist maintained that the worker’s PTSD, triggered by a proximity to trucks, rendered him totally impaired. He claimed to ‘feel pressure’ and ‘jump’ when he was near a truck. He could not return to modified duties in the administration building because he could not be anywhere near trucks, where he could see them, hear them, or even be on the same premises as the trucks. The employer’s Human Resources Department was in the basement of the Administration Building. Entitlement was extended for the PTSD and the worker was granted full loss of earnings benefits for 2.5 years. The treating psychologist continued to provide notes which supported that the worker was totally occupationally disabled from PTSD and so much so, that he could not even ride a bus to engage in Work Transition Services.
The worker’s employment was terminated approximately one year after the injury, because of his at-fault driving record.
An updated psychological progress report showed a new diagnosis of adjustment disorder with mixed mood and a pain disorder associated with physical and psychological factors (NO mention of PTSD). He was capable of driving his personal vehicle, yet his physician provided a note indicating he required taxi transportation as he was unable to take public transit due to his PTSD.
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June 3,2016
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Indiquez le numdro de dossierdans toule oorrespondanoeavec la CSPAAT.
Dear
Enclosed is my decision concerning your objection. You have the right toappeal this decisionto the Workplace Safety and Insurance Appeals Tribunal under Section 125(1) ofthe WorkplaceSafety and Insurance Act. Pleasenote thefollowing limitation:
Section 125(2) - 'The person shall file a notice of appeal with the AppealsTribunal within six monthsafter the decision or within such longer period as theTribunal may permit. The notice ofappeal must be In writing and must Indicatewhy the decision is incorrect orwhy It should l>e changed."
If you decide to pursue the objection further, please contact the:
Workplace Safety and Insurance ^peals Tribunal505 University Avenue, 7™ Floor
As well, you cangetfurther information ontheTribunal website atwww.wsiat.on.ca. TheAppeals Sen/ices Division publishes some decisions ontheCanadian Legal InformationInstitute website at www.canlii.ora. Should this decision be published, the names and otheridentifying information are not included inthe decision.
If your decision isallowed orallowed in part, the Case Manager will undertake to implement thedecision within 30 days, butthiswill depend on the circumstances inyour case. If you have anyquestions about theclaim status, you can call thegeneral enquiry number at 1-800-387-0760.
Yours sincerely,
Copy:
WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
OBJECTING PARTY:REPRESENTED BY:
RESPONDENT:REPRESENTED BY:
HEARING:
HEARD BY:
ADOmONAL ATTENDEES;Witness:
Observers:
ISSUES
The employer objects to the folfowing decisions:
1. The decision of the CM dated October 16, 2013 which denied the employer's request forsecond injury and enhancementfund (SIEF) relief;
2. The decision of the CM dated Novemtier 6, 2013 which granted the worker:® entitlement to traumatic mental stress for a diagnosis of post-traumatic stress
disorder (PTSD), and• allowed full loss of earnings (LOE) benefits from October 12, 2013 (despite the
availability ofmodified work) as theworker was unable to work due to hispsychological impairment;
3. The CM's decision dated June 9, 2015 which confirmed the worker's entitlement to fullLOE benefits following his termination ofemployment on August 1, 2014and whichconfirmed the worker's entitlement to work transition services;
4. The decision of the CM dated March 25, 2014 which confirmed an increase in theworker's LOE benefit rate following the long term recalculation ofhis benefits;
5. The decision of the work transition specialist (WTS) dated June 8, 2015 which grantedan interim work transition (WT) plan consisting ofEnglish as a Second Language (ESL)training in preparation for the worker's return to work in the genera! labour market;
NOTE: The employer has withdrawn their objection to the decision dated October 1, 2013 asthey are no longer appealing the allowance of initial entitlement.
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BACKGROUND
OnAugust 8, 2013this then49 year old transport driver was driving histruck on the 401highway when he becamedistracted after he began choking ona drink ofwater. Theworkerlost control and the truck rolled over into the median. The worker sustained multiple Injuriesincluding a neck strain, head Injury, left shoulder strain, bilateral forearm/hand contusionsandlacerations.
In September 2013 the worker began receiving treatment fora post-traumatic stress disorder(PTSD). On September 24,2013, the worker returned to modified work on a reduced workweek {2 days per week). Hestopped working on October11,2013 citing increased painproduced by his physiotherapy treatment. He reported symptoms of headaches and dizziness.
On October 23, 2013, the worker was assessed at the Regional Evaluation Centre (REG) wherehe was diagnosed with myofasclal pain. Afitll recovery was anticipated in12 weeks. Therewere no medical restrictions Identifiedand the worker was deemed capable of resuming hismodified duties Immediately. Itwas expected that the worker would be able to resume drivinghimself to work as of October 31,2013.
Although the workerwas found to be physically capable of returning to modified duties, thepsychologist maintainedthat the worker's PTSD rendered him totally impaired. Entitlement wasextended for the PTSD and the worker was granted full LOE benefits from October 12, 2013 asit was accepted that the psychological impairment prevented himfrom retuming to work.
On November 22,2013 the worker had a small piece of glass removed from his hand. Theworker claimed that his hand pain precluded himfrom driving. In February 2014, he wasreferred to the "Drive Again" program to assist him In resuming his driving activity. In March2014, the worker's earnings basis was recalculated to the long term rate. Based on theinformation provided in the employer's correspondence of March 6,2014, the eamings used toestablish the long term rate were higher (from$1,043.00 gross per week to $1,261.28 gross perweek) resulting in an increase to the worker's LOEbenefit rate.
In May 2014, theworker was assessed at the Centre for Addiction and Mental Health (CAMH)Psychological Trauma Program (PTP) where it was determined that he was capable of returningto modified duties with temporary restrictions related to driving and working in the proximityoftrucks. The worker was, however, deemed to be capable of being near and in the employer'sbuilding. On May 22,2014, the employersubmitted another written offerof modified work as an"operations assistant". These duties were similar to the work assigned previously. The PTPdischarge summary report of June 3,2014 concluded the following:
• The Axis I diagnosis confirmed PTSD improving and in partial remission as well as majordepressive disorder, also in partial remission;
• Co-existing contributors to the psychological impairment included the worker's perceivedlack of support in the workplace and the accident employer's sale of his business(resulting in uncertainty regarding his employment);
• The worker was able to return to modified duties. The worker had temporarypsychological restrictions related to driving and working in the proximity of trucks(includingvisual and auditory exposure to trucks). Being near or in the building,however, should not be psychologically distressing.
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The RTF recommended that the worker be admitted for one week of intensive therapy,inJuly 2014, the employer confirmed that they had changed ownership. Thenew owner hadpurchased theassets andliabilities andwasanxious to have theworker return toworkperforming administrative duties. The employer noted that, afterreviewing the worker's drivingrecord and the number of "at fault" accidents in which he was involved, he may not be qualifiedto return to workas a truck driver. On August7,2014, the worker's employmentwas terminatedwith cause due to his driving record. The worker maintainedthat his employment had beenterminated as the employer had changed hands and not as a result of his driving record.
OnSeptember 30,2014, the psychologist provided a progress report. Theworker continued tobe seen on a biweekly basis. The diagnoses nowincluded adjustmentdisorderwith mixedmood and a paindisorder associated with both physical and psychological factors. Theworker's primary stressors were related to his physical condition and the losses in hislife. Hedid not provide a diagnosis of PTSD. The workerwas able to drive his own personal vehicle.
In March 2015, the worker was referredfor worktransition services. During a meeting onMarch 23,2015, the worker maintained that he did not see himselfas being able to return to anywork at that time; yet he agreed to co-operate. ByMay 2015, the CM expressed concernregarding the worker's presentation. Thewoiker endorsed poorconcentration and forgetfulnessyet there was no indication ofany significant head injury. Theworker would be referred foraneuropsychological assessment. Although the worker was capable of limited driving, his familyphysician provided a note indicating he required taxitransportation as he was unable to takepublic transit.
Ultimately a suitableoccupation of retail sales clerk was identified inJuly2015. The workerwasreferredfor Driver Rehabilitation Therapyin July2015 but he declined participating intheprogram. On September 29,2015, the worker's LOE benefits were reduced to 50 percent Inresponse to his lack of co-operation with the various recommended treatment programs (DriverRehabifitation Therapy) and work transition services (WTS).
The employer is objectingto multiple decisions rendered in the claim as outlined above andthese objections are now before me.
Policy 15-03-02 states that a worker is entitled to benefits for traumatic mental stress that is anacute reaction to a sudden and unexpected traumatic event arising out of and in the course ofemployment. A worker is not entitled to benefits for traumatic mental stress that is a result ofthe employer's employment decisions or actions.
In order to consider entitlement for traumatic mental stress, a decision-maker must Identify thata sudden and unexpected traumatic event occurred. A traumatic event may be a result of acriminal act, harassment, or a horrific accident, and may involve actual or threatened death orserious harm against the worker, a co-worker, a worker's family rfiember, or others.
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In all cases, theevent must arise out ofand occur in thecourse oftheemployment, and bee clearly and precisely identifiable .o objectively traumatic, and® unexpected in thenormal ordaily course oftheworker's employment orwork
environment.
Sudden and unexpected traumatic events includeo witnessing a fatality or a horrific accidento witnessing or being the objectofan armedrobbery» witnessingor beingthe objectof a hostage-takingo being the object of physical violencee being the object of death threats• being theobject of threats ofphysical violence where theworker believes thethreats
are serious and harmful to self or others (e.g., bombthreats or confronted with aweapon)
• being theobject ofharassment that includes physical violence orthreats ofphysicalviolence (e.g., the escalation ofverbal abuse Into traumatic physical abuse)
« being theobject of harassment thatincludes being placed in a life-threatening orpotentially life-threatening situation (e.g., tampering with safety equipment; causingthe worker to do something dangerous).
The worker must have suffered or witnessed the traumatic eventfirst hand, or heard thetraumatic event first hand through direct contactwith the traumatized individual(s) (e.g.,speaking with the victim(s) on the radio ortelephone as the traumatic event is occurring).
This policy defines anacute reaction as a significant orsevere reaction by theworker tothework-related traumaticevent that results in a psychiatric/psychological response. Such aresponse isgenerally Identifiable and must result in anAxis IDiagnosis in accordance with theDiagnostic and Statistical Manual ofMental Disorders (DSM-IV).
14^5-03- Second Injury and Enhancement Fund (SIEF)
This policy states that if a prior disability caused orcontributed tothe compensable accident, orif theperiod resulting from anaccident becomes prolonged orenhanced due toa pre-existingcondition, all or partofthe compensation and health care costsmay be transferred from theaccident employer in Schedule 1 tothe SIEF. Both physical and psychological disabilities areincluded.
Y8-03-02 - Payment and ReviewingLOEBenefits (Prior to Final Review)
Policy 18-03-02 statesthatif the nature orseverity ofan injury prevents a worker from returningto any type ofwork, theworker isentitled tofull LOE benefits, providing theworker co-operatesin treatment as recommendedbythe health care practitioner and approved by the WSIB.Ifthe workerdoes notco-operate, the WSIB mayreduce or suspend the worker's LOE benefits.With respect towork reintegration (WR) activities, workers areentitled to full LOE benefits ifthey co-operate in WR activities and continue toexperience a full loss of earnings.
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19^02-01 - Work Relntegration Principles, Concepts and Definitions
As perpolicy 19-02-01. the WSIB views WR as a process thatgenerally starts as soon as theemployer learnsthat a worker has suffered a work-related injury and continues throughout therecovery and impairmentperiod. The WR process Includes the stay at work process for thoseworkers who do not lose any time fromwork or return to workwith accommodations soon afterthe injury. In these cases, the workplace parties are expected to put in place a plan thatachieves a return to the pre-lnjury job an^orrestores pre-injury earnings where appropriate.
The workplace parties are primarily responsiblefor planning WR, Identifying WR opportunities,and identifying WR issues. The WSIB providessupport as required. The workplace parties arerequired to co-operate and fulfill all of theirWR obligations. Incases where education, casemanagement, dispute resolution, and a waming have failed to bring either or both workplaceparties into compliance withtheir requiredWR activities, the WSIB may reduce or suspend theworker's benefits, and/or levy a penalty on the employer.
IMS-OS" Work Transition Plans
The WSIB determines ifa WT plan is required based on the followingo information about the worker includingmedical, functional and vocational« information received from the workplace parties or third party providers through
assessment reports• discussions between the WSIB and the workplace parties regarding SOs available
with the injury employer, and• SO Information relating to the local and broader labour market.
The WSIBdevelops the WTplan In partnership with the worker, injury employer, (whereappropriate) as well as union representatives, other authorized representatives and the treatinghealth professional as necessary. The WT plan outlines activities designed to optimize theworker's current skills or provide the worker wth new skills to prepare the worker foremployment in a SO. English as a Second Language (ESL) services may be Included in theWT plan ifthe WSIB believes that the worker's English communication skills are a barrier inachieving a WR in the identified SO.
'/8-02-03- Determining Long-term Average Earnings: Workers in Permanent Employment
This policy states that generally, a worker's long-term average earnings are the same as theworker's short-term average earnings and a recalculation is not necessary. A recalculation maybe done if it is not fair to continue paying LOE benefits based on the worker's short-termaverage earnings. It is considered unfair ifthe worker's short-term average earnings profile doesnot reflect the long-term average earnings profile.
Short-term average earnings may not reflect a worker's long-term earnings profile Ifthe worker• had prior earnings that are not included in the short-term average earningse worked irregular overtime that is or is not included in the short-term average earnings• earned irregular bonuses or commissions, or• experienced temporary layoffs due to work shortages, retooling, or holiday shutdowns.
EXHIBITS
Exhibit A- Report from Dr. R. L Schnayer datedMay 3,2016Exhibit B- Copy ofe-mails provided by the employer datedAugust 8,2013 and August 9, 2013Exhibit C - DriverA/ehicle Examination Report - October 23,2015
ANALYSIS
In reviewing this objection, Ihave had regard for theclaim file information, relevant policy andlegislation andfor thearguments andtestimony presented during the hearing. At theoutset, Iwish to remarkon the complexity of the issues before me. Despite the traumatic natureof theworkaccident, the evidence suggests the potential for other non-compensable factors to haveinfluenced the worker's emotional reaction, including his strained relationshipwith his employerand concern fortermination ofemployment. The reliability and credibility of the worker'stestimony is further complicated byhis inconsistent and,at times, peculiar presentationthroughout the courseofthe claim. In response tothe employer's objections, Ifind as follows:
Denial of entitlement to second iniurv and enhancement fund fSIEF) relief
Theemployer's representative argued thatthe pre-existing degenerative condition affecting thecervical spine had likely prolonged the worker's recovery, thus qualifying the employer forSIEFrelief. The employer's representative is seeking 50 percent SIEF based on a moderately severeaccident history and a moderate pre-existing condition.
As per policy 14-05-03, ifa prior disability causedorcontributed to the compensable accident,or ifthe period resulting from an accident becomesprolonged or enhanceddue to a pre-existingcondition, all or part ofthe costs may be transferred to the SIEF. To supportthe application ofcost relief, however, 1must be satisfiedthat the degenerative conditions affecting the cervicalspine were, infact, a major contributing factorto the duration ofthe worker's recovery. Inthiscase, I am not persuaded that the pre-existing neckimpalmient prolonged the worker'srecovery.
Medical investigations confirmed the presence ofdiscspace narrowing at C6-7with marginalosteophyteformation and neural foraminal stenosis at C3-4 onthe right. An EMG studyinFebruary 2012 confirmed mild dysfunction ofthe ulnar nervesat the elbows bilaterally and milddysfunction ofthe left median nerveat the wrist. Therewas no clinical evidence that hissymptoms werecaused bythe cervical spine. Aclinical chartnotation in July 2012 noted anassessment for right carpal tunnel syndrome. There is no medical history between July 2012and the work accident of August 8, 2013.
Post-accident, medical reports confirmed persistent pain and symptoms affecting multiple areasof the body, in particular the hands and amis. Physiotherapy treatment focused primarily on thebilateral hand injuries. A Functional Abilities Form (FAF) dated September16,2013 indicatedthat the worker was able to perform modified work provided there was no requirement to use hishands. Subjectively, the worker endorsedsymptoms of headaches, fatigue and dizziness withany amount of exertion.
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During the October 23,2013 REC assessment, theworker described pain affecting ail aspectsofhis upper body including theupper and lower back, dally headaches, elbows, foreanns, upperarms and hands. Rangeofmotion ofthe neckwas restricted; however, the examination wasfound to be limited dueto guarding and elevated pain perception. It wasconcluded that theworker had myofascial pain which was attributed to guarding ofmovement post-accidentThere is no indication that the underlying degenerative changes were impacting or contributingto the worker's persistent symptoms.
Although the REC examiner expressed concem about theworker's ability to drive dueto therestricted range ofneck movement, anassessment at the"Drive Again" program in January2014 found that the workerdemonstrated"appropriate" cervical spine rotation to check blindspots on both the left and right.
The July 2014 chiropractor's report noted diagnoses to include whiplash associated disorder(WAD) II and bilateral elbow tendonitis. Agrade II WAD describes neck symptoms reflective ofa decreased range ofmotion and point tenderness in the neck butthereare no neurologicalfindings. Given theabsence ofanyneurological abnormalities, there is noindication thattheunderlying degenerative changes were impacting his recovery. Furthermore, the describedsymptoms are alsocharacteristic ofmyofascial pain conditions andtherefore itremains unclearwhether WADor myofascial pain is the most accurate diagnosis.
The neurosurgeon's report ofAugust 18,2014noted that the worker's examination wascompletely normal with normal reflexes and plantar responses. Despite the presence ofthedegenerativechanges, he did not believe that thiswas ofanysignificance. He notedthat theworker had developed some chronic pain issues since the accident.
The worker's symptom complex remained essentially unchanged throughout the course oftheclaim. The workercontinues to endorse symptomsof bilateral hand painand weakness, pain inthe right elbow, left shoulder, neckand back. Medical reports have suggested the presence ofapain syndrome and while all ofthese physical ailments continue to impact the worker, Iwouldarguethat the worker's psychological impairment has beenthe primary impairment affecting theworker's returnto workand prolonging his recovery. Inthe absence of any confirmed medicalreporting to substantiate that the underlying degenerative changes inthe neck are a significantcontributor to the worker's prolongedrecovery, the employer's request for SIEF reliefis denied.
Allowance of entitlement to traumatic mental stress (post-traumatic stress disorder)
in assessing the employer'sobjection to the allowance ofentitlement fortraumatic mentalstress, I have considered not onlythe initial entitlementgranted under this policy but theworker's ongoingentitlement. I note that while the CM obtained the five years priormedicalhistory from the family physician, theydid not requestany prior psychological medical reports.
I cannotdisregard the fact that the accident would, instraightforward, uncomplicated situations,meet the definition of a sudden and unexpected traumaticaccident. The psychologist's report ofSeptember 13, 2013 described the worker expressingfear that he was goingto be killed in thetruck accident. The only diagnosis providedat that time was PTSD. Given that nature of theaccident, I do not find the worker's response to be unexpected and it was reasonable that hemay have developed a temporary traumatic mental stress response following the accident.
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Atthe same time, I acknowledgethat the employerhas presented legitimate and genuineconcerns regarding the allowance fortraumatic mental stress (TMS). Despite his testimony tothe contrary, I am satisfied that the worker was cognizant ofthe potential repercussions ofthisaccident (namely thetermination ofemployment). Iam persuaded that the potential loss ofemploymentwas a partial contributing factor In his psychological response.
The existence of other issues Impactinga worker's psychological response does not, however,necessarilynegate entitlement Rather, the evidencemust supportthat the workermeets thethreshold for entitlement to TMS byestablishing the work accident as an overwhelming factorcontributing to the onset ofthe TMS. 1am satisfiedthat the nature ofthe work accident, onewhich could have potentially resulted In a fatality, was sufficient to support entitlement to TMS.
In accepting the Initial allowanceof TMS, I have considered the worker's ongoing entitlementand whether the compensable TMS continues to be an ovenwhelming factor in the worker'spsychological condition. In this regard. Iam not persuaded that the worker's ongoingpsychological symptoms are the direct result oftraumatic mental stress, namely post-traumaticstress disorder, which arose out of the accident.
Evidenceconfirmed that prior to the August8.2013 motorvehicle accident (MVA), the workerwas involved In another accident only one week prior on August1,2013 when he rear-ended aflatbed truck. Althoughthere were no injuries,the worker testified that the owner of thecompanyspoke with him afterthe August 1,2013 incident and told him to "Just be careful". Theworker stated that he had a clear driving record and that his employmentwas not in jeopardy asa result of this accident. The employer, however, presented evidence to the contrary, verifyingthat onlythree days priorto the workaccident, the workerhad received.a written caution withthreat of termination of employment ifhe was Involved in another at-fault accident.
The worker discussed his concerns about being terminated with the CM in October 2013 afterhe stopped participating inthe modified work program. He expres^d fear that his employmentwould end once his WSIB case was closed. On February 12,2014, the psychologist stated thatthe worker was unable to return to work due to anxiety and depression. He presented withincreased distress and anxietyafter his last interaction with the employerwhere he was told toleave the building. The workerendorsed anxiety being around trucks which caused him to feeldizzy and nauseous. The psychologistnoted that itwas quite evident that the employer was"blaming" the worker for the MVA and that this further exacerbated his anxiety.
The psychologist's report is devoid of a number of critical facts, however, and therefore Itremains unclear whether the psychologist had ful) knowledge and understanding of the situationconfronting the worker. The psychologist accused the employer of blamingthe worker for theMVA. Yet, there were noother vehicles involved, no other factors Identified in contributing tothe accident other than driver distraction and the worker was charged by police. Thepsychologist makes no reference to the fact that this had been the worker's second MVA in aweek or that the worker had been wamed of termination of employment after the first MVA.
In a report dated April1,2014, the psychologist provided an updated DSM-IV diagnosis. TheAxis I diagnoses included adjustment disorder with mixed anxiety and depressed mood and apain disorder associated with both psychological factors and a general medical condition. AxisIVnoted contributing factors to include occupational issues, difficulties with the WSIB andpsychosocial difficulties. He reported that the worker was not prepared to return to his place ofemployment and cited concerns about whether the workplace could be viewed as a "safe
environment". He noted that the employer had taken theposition that the accident was entirelythe fault/responsibility of the worker. He suggested that there might be potential for return towork in the foreseeable future as the company was experiencing a change ofownership.
Ifound this report to be particularly compelling for several reasons. The psychologist no longerprovided a diagnosis of PTSD. He did not comment on the worker's emotional reaction to beingaround trucks but rather his strained relationship with the employer as a primary factor affectingthe potential for return to work. He Is either unaware, or neglects to mention, the fact that theworker was ultimately convicted of anunsafe move (reduced from the original careless drivingcharge) in relation to this accident. He is either unaware, or neglects to mention, the worker'sconcems of being terminated asthis was his second violation after having already received awritten warning.
On May 7,2014, the worker was assessed at the PTP. The worker noted that he had been ableto progress his driving exposure over the past few months to the point where he was able todrive his sontoand from college three times per week (20 minutes in each direction). Hereportedly took the less busy side roads and took frequent breaks to walk and relax as he oftenexperienced increased anxiety and panic. His driving "exposure" was suspended once his sonbegan his summer break but he continued to make short trips once per week.
The worker endorsed Incident re-experiencing, including nightmares and reliving episodes,incident related avoidance, intermittent depressed mood and low motivation, physical pain andphysical impairment (hand weakness). The report noted employment Issues, citing the fact thatthe employer accused the worker of discontinuing modified duties due to a lack of motivation forwork. His employer threatened to fire him and refused to talk to him. The worker deniedexperiencing any significant pre-incident work related difficulties. This was despite havingreceived a threat oftermination only three days prior tothe accident if hewas found tobeat-fauit for any future incidents.
The worker denied experiencing any personal distress requiring treatment prior totheworkaccident. Yet he received treatment from the psychologist between 2005 and 2007 admittedlytodeal with his wife's psychological issues and to reclaim his children from thefoster caresystem. Given the fact that the worker was making an effort to reclaim his children, Ifind itirregular that these issues did not cause him any personal distress. The PTP assessmentreported that the worker denied experiencing any symptomology representing unexpected panicattacks, agoraphobia, sodal phobia, specific phobia, obsessions orcompulsions.
His reported symptomology was consistent with diagnostic criteria for PJSD, in partialremission. The worker endorsed improvement in some ofhis symptoms, including areas relatedto interpersonal detachment, restricted affect, impaired sleep and irritability. His persistent post-traumatic stress symptoms (primarily re-experiencing and avoidance) produced moderatedistress and moderately interfere with hisoccupational functioning.
Based on the information and statements contained in this report, it again remains unclearwhether the PTPexaminerwas fully informed ofthe employment situation. The report notedthat the employer threatened tofire him and refused totalk tohim but itdoes not elaborate onthe fact that the threat oftermination had manifested prior to the workaccidentfor just cause.This distinction is important as It delineates between a valid threat (given the employer'sgenuine intent to terminate theworker if hecaused another at-fault accident) and one who issimply voicing threats as a gesture offrustration.
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The PIP assessment concluded that the worker was capable of engaging in modified dutieswith temporary psychological work restrictions for driving in any capacity orworking In thevicinity oftrucks. Although the report recommended a restriction from driving in any capacity,the worker described that he had been able to drive his car and that he made a point of drivinghis car at least once per week. Therefore, the worker's demonstrated ability to driveand thePTP conclusion that he should be restricted from driving altogether are inconsistent.
Although the restrictions recommended thatthe worker avoid working in the vicinity oftrucks,surveillance evidence revealed that the rear yard of the worker's home faces ,a designated truck route for thecity of Clearly, the location oftheworker's homewould expose him to almost constant visual and auditory triggers oftrucks passing the backyardof his home on a regular basis throughout the day and night. Iwouldquestion whether thiswould have impacted the RTF's recommendations had they been aware ofthe worker'ssurrounding home environment
Less than one month after the PTP assessment, the worker's psychologist provided anotherreport. Again, he does not identify a diagnosis ofPTSD but rather anxiety and depression. Thepsychologist concluded that the worker's attempts to retum to the workplace had contributed tohisongoing psychological condition. Specifically, he referred to the worker's last interaction withhisemployer where he was told to leave the building. Although he reported anxiety aroundtrucks, it is compelling that the psychologist Identified the strained relationship with the employeras the primary contributing factor. It is also apparent that the worker was experiencingheightened anxiety in response to his dealings with the WSIB as the psychologist identified partof the treatment objectives to include better understanding of the WSIB process and dealingwith various professionals.
On August 11, 2014, the workerattended a follow-up session at the PTP. He was nowpresenting with symptoms of drowsiness, weakness and dizziness which he experienced daily,it was noted that the worker's fatigue posed some limitation resulting inshorter sessions. Theworker was reluctant to participate in any exposure-based therapy. Although the worker hadhoped to return to his position as a truck driver, he now expressed concerns surrounding hiscapacity to work at all. Most compelling is the fact that the report does not reference the workerhaving received notification of termination of his employment only four days prior.
The psychologist's report of September 30, 2014 reiterated that the worker was not prepared toretum to work to truck driving although the psychologist was evidently aware that the worker'semployment had been terminated. Future treatment sessions were recommended to assist theworker in resuming driving behaviour and "increase his emotional readiness to return to work".
The worker eventually met with the WSIB Work Transition Specialist (WTS) in March 2015where, paradoxically, he described having a "good relationship" with the previous owner. Sincehis referral for WT services the worker's presentation during various assessments can only bedescribed as inconsistent and dubious. I have noted, In particular, the following reports:
• In June 2015, the worker attended a neuropsychovocational assessment at the March ofDimes. It was noted that the worker's persistent lack of engagement and motivation toparticipate in various assessments rendered it difficult to accurately assess his true level offunctioning. Testing revealed that the worker was functioning at a very low range and lowerthan one percent of individuals his age. His academic achievement was at the low
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elementary level. He was found toperform In the impaired range on all behaviouralmeasures ofmental ability. Yet, this is an individual who not only completed high school buta threeyearcollege level diploma in land surveying in 1984.
In contrast, during the PTP assessment, theworker described himself as achieving aboveaverage academic performance and noted no teaming orsocial difficulties during hiseducation. During thehearing, theworker testified that hereceived recognition for hisexemplary record keeping during his employment asa truck driver. It is difficult to conceivethatan individual can maintain outstanding record keeping yetperform lower than theonepercentileof individuals his age;
During the psychovocational assessment in April 2015, it was recommended that English asa Second Language (ESL) training beincorporated into his retraining program. Yet theworker has attended mostof his medical and psychological assessments without theassistance ofan interpreter. The worker presented his testimony throughout the oral •hearing in a clear and comprehensive manner. Consequently, Ifind the recommendation forESL training to beinconsistent with theworker's demonstrated level of comprehension andcommunication in English;
The worker's responses throughout the hearing suggested a perception ofbeing victimizedby the employer. The psychologist's reports described the worker's upset at the employer"blaming him" for theaccident. Throughout much of the hearing, the worker was incapableofproviding responses tomany of theemployer representative's questions, oftenresponding with "I don't know, I'm not sure, maybe Idon't remember". Conversely, theworker wasquite lucid andable toanswer thequestions oftheARO and his representativein a direct and forthright manner.
The worker described hissymptoms to vary from mild to severe. When asked to elaborate,the worker explained that during periods when he was notbeing bothered or whentherewas no contact from theWSIB, his symptoms were better. Theworker suggested that if theWSIB hadsimply left him alone for a yearortwo, his symptoms may have improved quickerbut insteaditonly made him worse. Theworker was upset at the fact that the employer hadcontracted an investigator toconduct surveillance of his activities. He replied ^at theemployer "didn't believe" that hewas injured and that they ultimately "kicked him out on thestreet".
Theworker's presentation throughout the hearing magnifies the uncertainty surrounding theissues which are likely perpetuating hisemotional response. This was particularly evident onMarch 30,2016 when the employer arrangedforthe worker to attend an IndependentMedical Examination (IME). White I have notgiven much weight to the results ofthisassessment (as a full assessment could notbe completed), Ifound the worker's reaction tothisentireprocessto be particularly compelling. Initially, the worker's representativeresponded thattheworker wasdeclining the invitation toattend the IME. However, theworker ultimately did attend.
Atfirst, the worker appeared to be profoundly fatigue and did notmakeany eye contactwiththe examiner. However, as the assessment progressed he became less tired and moreengaged, establishing a good level ofrapport After lunch break, however, theworker againpresentedas being extremely tired and had to be woken up inthe waiting room.
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The afternoon session began with an attemptto administer testing. However, Itwas difficultto engage the worker. He fell asleepduring their discussion. Hepresented with significantcomprehension difTiculties that were not evident earlier that morning. Thesession brokewhile awaiting arrival of an interpreter, hoping that this would assist with the process. At1:45p.m., the worker was found asleep In the waiting room and despiteattemptstheywerenot able to wake him.
At2:45, the workerbegan to rouse somewhat, however while walking him back to theinterview room, he fell asleep standing up with is head against the doorframe. Fearingthatthe worker may have ingested somethingduring his lunch, an ambulance was called. At nopoint did the worker make anyeffort toexplain hispresentation. At 3:15 the interpreterarrived. As the interpreter entered the room and introduced himself, the workerlooked up atthe interpreterand responded "yes" and then became unresponsive again.
The Ambulance Call Reportnoted that the workerwas found sitting in a chair, "sleeping"with his eyes open and alert to voice. There was no evidence of distress and the workersimply reportedfeeling tired. Hewas able to walk to the ambulance. The worker had nocomplaints exceptforthefact that he was tired. The hospital emergency reportalso notedthat the worker was tired but provided a discharge diagnosis of anxiety. Itwasrecommended that he follow up withhis psychologist at home.
The worker testified that he could not recall what he told the examiner before beingtransported to hospital. Infact, he denied recalling anything about the assessment. Whenasked whyhe did not inform the ambulance attendants that he was simply tired (ratherthangoingto hospital unnecessarily) the workerwas not able to provide a reasonableexplanation.
a Finally, I have considered the evidence presented by the surveillance video. Inthe video,the worker is observed walking about to\^, gettingon and off buses, crossing very busystreets, at one point having a large truck cross in front of his path, yet the worker show^ noreluctance, hesitancy, reaction or change in his demeanour. Icannot disregard the fact thaton May 1,2015, the family physician provided a note stating that the workerwas unable touse public transportation (bus) as this exacerbated his PTSD symptoms. He recommendedthat the WSIB providethe woilcer vnth taxi transportation. Yet only one month later, thesurveillance evidence depicts the worker getting on buses and transfernng buses withoutany evidence of adverse response.
inconsistencies and presentations which suggest an apparent attempt to exaggerate symptoms(orthe extent ofone's impairment) are critical inthe assessment of psychological Impairment. Itspeaks to the veracity and reliability ofan individual's psychological condition. Medical reportingwhich reflects the "full picture" in a consistent and comprehensive manner is more reliable as itallows for a transparent assessment ofallfactors that mightbe affectinga worker'spsychological response. Inthis case, the lackoftransparency In the medical reporting (i.e.reports vrtiereexaminers are not aware of the threat of termination of employmentor that thetermination had been executed), the inconsistent presentations and the worker's inability toprovide a reasonable explanation for these inconsistencies during his testimony allcontribute toa deficiency in the reliability of the worker's presentation.
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As of April 1, 2014, reports from the treating psychologist no longer identified a diagnosis ofPTSD. Given thepsychologist's continuous psychotherapeutic relationship with theworker, Ihave placed considerable weight on his reporting and Iam satisfied that the worker's PTSD hadresolved as of April 1,2014. The psychologisfs reports thereafter highlight the worker's anxiety,depression and emotional response to his relationship with the accident employer, ifind that asof April 1,2014, the worker's traumatic mental stress had resolved and that any residualimpairment was attributable to an adjustment disorder arising out of employment-related issues(in particular, conflict between the parties and fear of termination ofemployment).
Policy 15-03-02 states that there is no entitlement for traumatic mental stress due to anemployees decisions or actions that are part of the employment function, such as terminations,demotions ordisciplinary action. 1find that beyond April 1,2014, theworker's psychologicalcondition was Influenced primarily byemployment related issuesand therefore theentitlementfor traumatic mental stress is deemed to have ended as of April 1,2014.
Allowance of loss of earnings (LOE) benefits from October 11. 2013- worker deemed tobe totally impaired
Basedonthe evidence before me, Iaccept thatthework Injuries did notpreclude the workerfrom continuing inthe modified dutiesbeyond October 11,2013.
The September 12,2013 return towork plan assessed potential modified duties based onphysical restrictions to avoid the use of both hands and avoid repetitive movements of the neckand left shoulder. Modified work offered bythe employer included monitoring trucks in and outof the year, monitoring cameras, reviewirig safety videos for research, assisting with orientationtraining and inspecting thetrucks and trailers in the yard. The employer would providetransportation to/from work while accommodating his treatment three days per week.
The psychologist's report dated September 23.2013 did not identify any psychologicalrestrictions affecting theworker's ability to return towork. He noted thatpsychologically theworker was depressed andexperienced episodes ofanxiety related specifically to driving atruck. Hedid notidentify anypsychological response to being around trucks. He noted that theworker was"not prepared to retum towork" at thetime. He recommended thattheworker begiven additional time toallow him to rehabifitate himself from thetrauma. He also noted that,"...given the noted physical problems" it was doubtful that the worker could perform the workfunctions without furtherstressing his bodyand prolonging his rehabilitation.
Thepsychologist's report did not identify any concerns with theworker's ability to return toworkbased onthe psychological impairment The psychologist anticipated thatthe worker would beable to return to work following eight treatment sessions. He alsoanticipated that someform ofsystematic desensitlzation would be necessary tofacilitate theworker's ability to return totruckdriving. There isnoindication in the subsequent medical reports that this desensitlzationtreatment was ever carried out.
The chiropractor concluded that the worker was notable to return to work butdidnot provideanysignificant objective findings to support thisconclusion. Theworker testified that he wasunable to continue with the modifiedduties as he was not able to watch the trucks or be aroundany trucks. When asked what explanation he gave the employer for his inability to watch thetrucks, initially he replied that he was "stressed" butthen responded that he could not recall
what excuse he provided the employer. He countered that he simply did not feel he could work.The employer's representative pointed out that the worker was never required to work outside ofthe building or in the direct vicinity of the trucks.
When questioned about the fact that there was no view of the trucks while in the building, theworker agreed but stated that he simply"knew they were there". He added that the mere factthat the buildingwas associated with trucks caused him stress. The worker noted that while atwork, other employees would ask him questions which increased his anxiety. He noted thatthey would compare stories of their own accidents which ultimatelymade him feel worse.Although the worker testifiedthat he expressed his concerns to the employer, there is noevidence of this inthe file or during the employer's testimony.
He recalled the company owner, , telling himthat he "cost himtoo much". When askedwhat he thought the employer may have been referencing by this comment, he suggested that ithad to do with the escalating costs of the claim. However, he did not perceive the possibilitythat the comment may have been in reference to the costs associated with the accident itself(repair of truck, damages to the products being transported) in addition to the costs of the claim.According to the employer's testimony, the worker did not express or exhibit any increasedanxiety or distress being around the tnjcks.
The worker claimed that he eventually stopped working as he simply could not be in thebuilding. Yet according to the employer, the worker's assignment in the officeand in the trainingroom in the basement would not have exposed the worker to any direct visual or auditory cuesfrom the trucks. The worker later testified that he was not able to continue the modified dutiesas he was unable to attend every day or be expected to report for work on time because of hissymptoms. The contemporaneous file evidence confirms that up until October 22,2013, theworker attributed his absences from the modified work program to pain that was caused by hisphysiotherapy treatment.
According to the employer representative, the worker did not identifyany concern with beingaround trucks until November 6,2013. I find this evidence to be consistent with other evidencecontained in the file, in particular,the psychologist's report of September 23,2013 whichidentifiedphysical factors affectingthe worker's ability to retum to work but did not identify anyincreased anxiety or adverse reaction as a result of being around trucks.
The employer testified that the worker attended seven shifts between September 24,2013 andOctober 11,2013. He worked two to four hours per shift in the aftemoon (which allowed him toattend medical appointments in the morning). He was paid full wages regardless of the numberof hours worked. There were regular absences throughout the modified work prc^ram. Theemployer confirmed that the reasons providedfor not attending included pain resulting fromphysiotherapy treatment, headaches, and/or all over body aches. The worker endorsedsymptoms of headaches and dizziness; yet, there is no evidence of a significant head injury andtherefore it is unclear what may have been contributingto these symptoms. Entitlement for theheadaches and/or dizziness has not been recognized in the claim.
The employer confirmed that modified workcontinuedto be available. Other possible dutiesincluded dispatch, auditing logs or performing inspections in the yard. The employer testifiedthat the workerdisplayed no observable issues or emotional reactions while performing themodified work. She noted that the workerdid not appear to be enthused about being at workand gave the impression that he simply did not wish to be there.
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The employer was not aware of the worker's psychological reaction to being around trucks untilNovember 6,2013 when he notifiedthem that he no longer needed to report for work becauseof his stress being around trucks and that the WSIB was going to pay him. The employertestified that she was "shocked" to leam this, particularly giventhe fact that the workerneverdisplayed any untoward reaction to being around trucks or Inthe building.
During his discussion with the CM on November6.2013, the workerclaimed he was unable towork due to pain and headaches. He described being scared when in proximity of a truck buthe did not identify being inthe employer's building as exacerbating his anxiety or fears. Hedescribed "jumping" whenever he heard a truck. The workerwas questioned extensively duringthe hearing over what he meant by a "jumping" response.
The worker acquiesced that while it may not appear evident on the outside that he "jumps", hedescribed experiencing a reaction on the inside. He added that, as opposed to a visible startlereaction that would be evident to those around him, it is more so a feeling where he does "notfeel good" on the inside. I am inclined to concur with the employer representative's argument,however, that ifthe worker had experienced a genuine psychological reaction to being aroundtrucks, this would have been apparent to those around him. This was not the case.
The worker last attended the employer's premises on November 6,2013 in order to pick up hispay cheque. Although he notified the CM on this same date that he was unable to work due topain and headaches, he did not mention the discussion which ensued with his employer on thatday. The employer told the worker that he did not wish to see him again and that he would betaking legal action to have his employment terminated. The employer issued a letter on thissame date advising the worker that his employment status was in jeopardy and referenced thetwo motor vehicle accidents within a week. Yet the worker made no mention to the CM of hisemployer's reaction or his threats of job termination.
He did not feel he could return to work given the fact that his employer did not want him there.In a discussion with the CMon October 18,2013, the worker expressed concern that hisemployment might be terminated once the claim was closed. Only a couple of weeks later, theworker was subjected to an acrimonious confrontation vriththe employer where he was againthreatened with job termination. I cannot disregard the fact that the worker's psychologicalreaction was, in all probability, influenced by the fact that he did not feel supported by theemployer and that he had been threatened repeatedly with job termination.
In early 2014, the psychologist reported that the worker was not able to return to work with theaccident employer as the workplace presented an "unsafe work environment". On June 3,2014the discharge summary from the Centre for Addiction and Mental Health (CAMH) PsychologicalTrauma Program (PTP) program co-existing contributors to the psychological impairment toinclude the worker's perceived lack of support in the workplace and the accident employer'ssale of his business (employment uncertainty). The PTP report concluded that while the workerlikely had temporary psychological restrictionsrelated to driving and working in the proximity oftrucks, being near or in the buildingshould not be psychologically distressing.
In this case, I would argue that being in the employer's building would likely generate significantpsychological distress but this distress was, in all probability, attributable to the contentiousrelationship between the employer and the worker rather than being in the vicinity of trucks.The worker's claim of being incapable of continuing Inthe modified duties is undermined by thefact that the psychologistdid not identify working around trucks as a limiting factor and the
Page 16
worker demonstrated the ability to return to the employer's building without exhibiting anyanxiety reaction or distress.
Both the worker's testimony and contemporaneous statements on file suggest that the workerdid not believe he should have been forced to return to modified duties and that his recoverywould have been accelerated if he had simply been left alone.
Based on the evidence before me, I find that the work Injuries, both physical and psychological,did not precludethe workerfrom continuing inthe modified work duties provided bytheemployer. Consequently, the worker's entitlement to LOE benefits beyond October11,2013 isretracted.
Increase in LOE benefit rate following long term recaicuiatlon of benefits
In March 2014, the worker's earnings basis was recalculated to the long term rate, resulting inan increase to the worker's benefits. The basis for the employer's objection to this decision isunclear. Given the fact that I have now concluded that the worker should not have been entitledto LOE benefits beyond October 11, 2013, the issue of the LOE benefit rate increase becomesa moot point.
Regardless, I have reviewed the earnings information provided bythe employer intheircorrespondence dated March6,2014 and I am satisfied that the long term benefit rate wascorrectly recalculated based on the worker's total gross earnings for one year prior to theaccident. The employer's objection to the LOE benefit Increase following the recalculation tothe long term rate is therefore denied.
Allowance of full LOE benefits following termination of emolovment on August 1.2014
On August 1,2014, the employer terminated the worker's employment with "just cause". Noformal ruling has been made by the Operating Area regarding any potential breach of there-employment obligation and this issue is not before me. Consequently, i must proceed withmy deliberations with regard for the fact that the termination of employment was motivated byemployment issues related to the worker's driving record. I am unable to conclude that theworkplace injuries played any role In the employer's decision to terminate the worker'semployment.
The employer's representative cited a number of incidents over the years which contributed tothe decision to sever the worker's employment including:• A fine in 2005 for being over the designated weighto Damage to a truck and a traffic violation in Ohio in 20050 A charge of carelessness and violation of safety rules in 2007. This incident allegedly
resulted in damages to parts and the worker received a warning and a three-monthsuspension at that time
o An accident on August 1,2013 in which he received both verbal and written notification oftermination of employment ifhe were to be involved in another at-fault accident
o On November 6,2013 (after the accident) he received a written warningfromthe employerby registered mail stating that his employment status was in jeopardy.
Page 17
The employer's representative has argued that the modified duties continued to be available tothe worker throughout and that the worker would have maintained his employment until suchtime as the new owner decided to sever the employment relationship due tothe worker's drivingrecord. As Ihave now determined that the injuries did not preclude the worker from continuingin themodified work offered by theemployer, Imust also find that theworker's inability tocontinue working beyond August 1.2014 was not a direct result of the work injuries but anemployment situation which resulted in his termination. As such, any loss of earnings incurredby the worker beyond August 1,2014 would be not be attributable to the workplace injury.
Consequently, the worker is not entitled to full LOE benefits following his termination ofemployment on August 1,2014.
Aiiowance of work transition fWTI services including the provision of English as aSecond Language fESU training
As Ihave concluded that theworker was not entitled toLOE benefits following his termination ofemployment on August 1,2014,1 must also find that the worker was not entitled to worktransition services.'
TheWSIB Work Transition Specialist (WTS) determined that, basedontheworker's preliminaryvocational assessment report, he may require English as a Second Language (ESL) training inorder to support his return to work in the open labour market. However, Ido not find sufficientevidence tosupport that the worker required ESL training in order toenhance his ability tosecure employment inthe general labourmarket.
The worker has demonstrated the ability to participate in most of his medical asse^ments inEnglish without the assistance of an interpreter. The worker was able to present his testimonyover a two-day hearing in a clear andlucid manner without requiring assistance from aninterpreter. The mere fact that the worker has managed to work as a truck driver (where hemust communicate in English with customers, border security, dispatchers, etc.) and hasworked in a customer service relatedfield (as a casinodealer)also suggests that the workerdoes not have a deficiency in his English verbal communication aptitudethat would reflect aneed for ESL training.
In May 2014, theemployer reiterated their offer of modified duties. The only restriction In placeat that time related to the worker'sability to retumto truckdriving. Physically, the workerendorsed symptoms ofrecurring headaches and loss ofsensation andgripping with both hands.It should be noted that neither the headaches nor the loss of sensation in the hands has beenaccepted as part of the claim.
An updated report from the psychologist in August 2015 Identified that the following factors wereaffecting the worker's recovery and hisability to participate inwork transition activities:
1. Inability to cope with chronic pain affecting the arms, hands, neck, shoulders and back.Chronic symptomsemanating from these areas continue to contribute to the worker'sdepression. As noted by the CM, however, the worker does nothaveany continuingentitlement for any physical impairment affecting these areas;
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2. The worker expressedsymptoms ofextreme fatigue. Thesurveillance evidence howeverdemonstrated the worker walking and travelling forextendedperiods oftimewithout anyrequirementfor breaks or a rest due to fatigue;
3. The worker continues to experience depression as a result ofa number offactors including:o His inability to provide financially forhisfamily which, inturn, was contributing to a
negative sense of sel^• Ongoing financial difficulties represent a major stress;« The worker'spaincondition and poorphysical health are major concerns.
The surveillance evidence does not depictthe worker as an individual who is severely limited bychronic pain or poor physical health. Thepsychologist noted that heworker's symptonns wereallegedly exacerbated by triggers such as being around trucks, cars, ona bus, etc. This isinconsistent with the surveillance evidence which demonstrates the worker's ability to function inan environment comprised of heavytraffic as well as an ability to travel via public transit.
OnFebruary 24,2016, theworker wasassessed by a new psychiatrist, Thefamilyphysician referred the worker tothe psychiatrist for asse^ment ofhisPTSD. Thediagnosisconcluded bythe psychiatrist wasthatofa mood disorder, not otherwise specified (NOS). Thepsychiatrist recommended thattheworker taperoff his medications ofclonazepam, quetiapineand Paxil and that he continue taking Gabapentin and Elavil to assist with sleep and his mood.
The worker currently maintains his AClicense and therefore he retains the option of securingemployment as a truckdriver or bus driver should he choose to do so. The worker's testimonyconsistentlyreflected his belief that he remains totally disabledfrom returning to any type ofemployment at present. However, it was also evidentthat the workerhas not ruledout a returnto truck driving in the future.
The worker's CommercialVehicleOperator Record (CVOR) confirmed that the worker's AClicense is due to expire on October 7,2016. The only infraction noted on the CVORrelated tothe "unsafe move"violation arising out of the compensable accident on August 8, 2013. Theworker had no demerit point deductions and therefore, I do not believe that his driving recordposes any impediment to his ability to continue truck driving.
The worker testified that medical clearance from his physician had to be submitted to theMinistry of Transportation in June 2015. The worker confirmed that his family physiciansubmitted the necessary medical report to the Ministry identifying only one restriction related toa driving limitation of 10 to 15 minutes. As far as the workeris aware, He passed the medicalrequirement to continue driving.
When asked whether the worker planned to renew his AC license in October 2016, the workerreplied that he "can try, but he's not sure". The worker clarified that the renewal in October willrequire him to take a written exam which is repeated every five years. Ifhe does not take thetest in October 2016, any desire to reinstate his AC license in future will require him to pass adriving examination as well as the written test. This testimony was consistent with the worker'scomments during the FTP where he advised the examiner that while he did not feel physicallyor psychologically able to return to truckdriving, his goal was to eventually return.
Psge 19
1make no finding regarding the worker's ability to resume his pre-accident job asa truck driveras the issues before me arepredicated on theworker's ability toperform themodified workduties. Ihave accepted that the worker was capable of continuing with the modified duties. Ihave alsoconcluded that his inability tocontinue working beyond August 1,2014wasnotadirect result of thework injuries but anemployment situation which resulted in his termination.Having regard for these conclusions, the worker was not entitled to work transition services.
CONCLUSIONS
1. The employer's request for second injury and enhancement fund (SIEF) relief is deniedas Ifind insufficient evidence tosupport that theunderlying degenerative changes in theneck were a significant contributor tothe worker's prolonged recovery;While Iam confirming theworker's entitlement for traumatic mental stress, in particularfor the diagnosis of post-traumatic stress disorder (PTSD), Ialso find that the traumaticmental stressappeared tohave resolved by April 1,2014. Thereafter, theworkercontinued toexperience symptoms related toanxiety and anadjustment disorder.However. Ifind thatonthe balance ofprobability these conditions arose primarily outofemployment-related issues including conflict between the worker and employer and theworker's fear of termination of employment;
3. As Iam not persuaded that the physical and/or psychological injuries precluded theworker from participating in the modified work offered by the employer, and as theemployerwas prepared tooffer the modified duties atno wage loss, the worker'sentitlement to full loss ofeamings (LOE) benefits from October 12,2013 Is rescinded.As perWSIB's policy regarding benefit related debts, theWSIB will not pursue recoveryofa benefit-related debt ifthe debt is a result ofa previous entitlement dedsionovertumed dueto an appeal. Therefore, theworker Isnot required to repay any debtarising out of this decision;
4. Further tomy determination in point #3, theworker isnot entitled to full LOE benefitsfollowing his termination of employment on August 1,2014, Ifind that the worker'sinability tocontinue working beyond August 1,2014 was not a direct result of the workinjuries but anemployment situation which resulted in his termination of employment;
5. While this is now a moot point, Iam satisfied that the adjustment totheworker's LOEbenefits following the long term recalculation wascalculated In accordance with theWSIB's policy and guidelines. Therefore, the employer's objection tothe LOE benefitadjustment is denied;
6. As the worker was deemed to be capableofcontinuing with the modified duties and as Ihave determined that his Inability to continue working beyond August 1,2014 was not adirect result ofthework injuries but an employment situation, Iconclude thattheworkerwas not entitled to work transition services. I also find that the worker did not requireESL training as he has demonstrated sufficient aptitude when communicating in Englishthat this wouldnot be a barrier to his employability in the general labour market.
2.
The employer's objections are therefore allowed in part.
