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WSIAT decision 1824/12 represents a case precedent for all employers to be aware of when dealing with injured workers on modified work. A worker on modified work subjected to ill-treatment by co-workers and piers lead to WSIB entitlement.

The mandate of the Workplace Safety and Insurance Appeals Tribunal (the "WSIAT" or "Tribunal") is to hear and decide appeals from final decisions of the Workplace Safety and Insurance Board (the "WSIB" or "Board") and represents the final level of appeal within the Workplace Safety and Insurance Act (WSIA).

In WSIAT Decision 1824/12, a worker suffered a low back injury in June 2004 when moving heavy equipment. WSIB accepted the claim for health care benefits as the worker participated in modified work. Eventually, WSIB accepted that the worker had a permanent impairment and was granted a 16% Non Economic Loss (NEL) award in April 2006.

In May 2006, the worker reported that he was subject to a company internal investigation regarding the legitimacy of his 2004 injury and that he began to notice changes in his health which seriously impacted the quality of his life.

The worker submitted a WSIB claim for traumatic mental stress and psychotraumatic disability in May 2006. The Board granted entitlement for psychotraumatic disability resulting from the 2004 back injury.

In reaching their decision, the Board considered the provisions of the Psychotraumatic Disability Policy, which permits entitlement in the following circumstances:

The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socio economic factors, the majority of which can be directly and clearly related to the work related injury. The Board found that the work-related injury was the cause of the supervisor's actions, or rather the disbelief that an injury occurred or that it was as severe as the worker presented. Noting that there was no other history of depression, the Board concluded that the claim was allowable under the Psychotraumatic Disability policy, albeit under an unusual set of circumstances.

The employer appealed the Board's decision to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

WSIAT concluded in their decision 1824/12, that the medical evidence established that the worker developed a psychiatric disability as a result of his treatment while participating in a modified work program following the compensable back injury. The mistreatment included suggestions by his supervisor that he was faking his injury, isolation by co-worker and the worker being followed to his home.

WSIAT jurisprudence establishes that a worker is entitled to benefits for psychotraumatic disability where the psychiatric condition results from mistreatment by a supervisor or co-workers in a medical return-to-work program related to a compensable physical injury.

The employer submitted that entitlement was precluded by the mental stress provisions of the Workplace Safety and Insurance Act (WSIA), but the Panel noted that those provisions apply to a claim for stress that is not associated with an accepted physical injury. Mistreatment related to a compensable physical injury is adjudicated under the psychotraumatic disability policy.

The worker's psychiatric condition was not predominantly attributable to the disciplinary process but, rather, to humiliating treatment from his supervisor, unfounded attacks on his integrity and the legitimacy of his claim, being ostracized by colleagues and unwarranted surveillance at his home. This mistreatment was directly related to the worker's compensable physical injury and the subsequent modified work program. WSIAT upheld the Board's decision granting entitlement for psychotraumatic disability related to the 2004 back injury.

What can employers learn from this decision?

The Tribunal's decision to uphold the Board's decision sends a message to employers that unwanted vexatious comments and or mistreatment by co-workers or management while a worker is on modified work can be considered compensable under WSIB policy. Accordingly, it is recommended that employers take proactive steps to control these types of behaviours when a worker is on modified work.

It is recommended that employers update, review and educate front-line staff and worker's on the employer's workplace harassment policy. Safety meetings should discuss and stress the importance of non-discrimination and tolerance. Written documentation on the part of the employer, as always, is recommended on such matters.

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