All of worker’s restrictions need to be considered, including mental health concerns

Complainant: Community legal clinic

Problem: Disagreement over worker employability.

Resolution: Worker deemed not employable, loss of earnings granted.

A community legal clinic asked the Commission to help with the case of a woman with minimal English skills, work-related physical injuries, and social anxiety. The WSIB maintained the woman could be retrained to work as a retail sales clerk or a greeter. The WSIB required her to participate in a work transition program, including English as a Second Language training, so she could be re-employed in the designated suitable occupation (SO).

The clinic asked the WSIB to explain the rationale for its decision, but received no response. The Commission reviewed the file, which showed the worker had chronic pain associated with a permanent injury to her right hand, work-related hearing loss, and major depression. These facts were not in dispute and the WSIB was paying for psychological treatment.

When Commission staff took the case up with the WSIB manager, they presented those facts along with the notes of the worker’s work transition provider. The worker was frequently absent because of other appointments, complained of severe headaches, and was having anxiety attacks. The provider had to twice ask a family member to come and take the woman home, once because she was motionless and unresponsive for a half hour, and once because they had called an ambulance but the woman refused to be treated in hospital.

Despite all the information documented, the WSIB manager insisted the woman could go back to work, that she needed to develop better coping strategies, and that her suicidal thoughts were “passive”. That meant, according to the WSIB, the woman was not at risk because she had no active plan to end her life.

The Commission moved the case up a level to a WSIB director, who committed to review the file. Several weeks later, the WSIB said the woman didn’t have to work as a greeter or sales clerk because of her language barrier and significant anxiety in dealing with the public. Instead, she could work as a light assembler. No, said the legal clinic. Her work-related injury and physical restrictions prevented her from lifting her arms.

The Commission then contacted the vice-president, who committed to a further review. That’s when things changed. The WSIB decided there was no suitable job for the worker and asked that she apply for Canada Pension Plan disability benefits.

The WSIB then confirmed by letter that the woman was, in fact, not employable and was awarded loss of earnings benefits until age 65.