Canadian Safety Reporter

December 2018

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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CSR | December 2018 | News Worker's chronic pain had other causes than workplace injury WEBINARS Interested in learning more about safety and HR issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as Ontario's sexual violence and harassment plan act, chemicals in the workplace, and fall protection. Visit www.cpdcentre.ca/cos for more information. permanent impairment and the cervical spine condition wasn't work-related. In addition, there was no medical evidence that the worker experienced ongoing symptoms following her return to full-time duties. The worker appealed for enti- tlement for a permanent impair- ment of her neck, shoulders, and back with evidence of treatment for her neck and shoulders up to 2012. The Ontario Workplace Safety and Insurance Appeals Tribunal found there was consis- tent evidence from the medical reports that the worker contin- ued to suffer pain in her neck and shoulders, and the impairment was "compatible with the nature of the original repetitive strain injury." The worker was granted permanent impairment benefits for her neck and shoulders — a non-economic loss award of eight per cent — but not her back. The worker then filed a claim for chronic pain disability (CPD), arguing the pain she continued to suffer since the workplace injury in her neck, shoulders, hands, and related headaches limited her ability to work, caused her anxiety, and affected her social activities. She also said she was forced to find work that didn't involve using her hands, arms, and fingers in a repetitive way because of her carpal tun- nel syndrome, but it wasn't easy to find such work — she found part-time work as a health care trainer through a vocational re- habilitation program, but could only work four to five hours per day for less pay. Her claim was denied, and the worker appealed the denial of entitlement for CPD to the tribunal. The tribunal noted that there was no dispute that the worker was injured at work — the WSIB had recognized her entitlement for shoulder and arm injuries. However, at the time of her in- jury in 2007, she was diagnosed with repetitive strain to the neck, shoulders, hands and risks, but not carpal tunnel syndrome. The tribunal found that from 2009 onward, the worker re- ceived diagnoses for various conditions while she lived in the U.S. — migraines, carpal tun- nel syndrome, thoracic outlet syndrome, and jaw pain. All of these were legitimate diagnoses supported by medical documen- tation, but they had their own organic causes that were respon- sible for the pain she felt in each area. Only the pain in the work- er's shoulders and arms were related to her workplace injury, and the worker already received workers' compensation benefits for that injury and returned to work after her recovery, said the tribunal in finding no compen- sable permanent impairment. "I recognize that the worker may subjectively attribute the symptomology in other areas, beyond the neck and bilateral shoulders, to the compensable repetitive strain injury and an evolution in its symptoms," the tribunal said. "However, the evi- dence before establishes that or- ganic causes have explained the worker's symptomology involv- ing other areas, associated with conditions for which she does not have entitlement, and are not areas of entitlement before me to consider in this appeal." The tribunal noted that the level of the worker's pain may be more than the eight-per-cent non-economic-loss award pro- vided, but it couldn't rule on that as the only issue in the appeal was the worker's entitlement for CPD. For more information see: • Decision No. 2176/18, 2018 CarswellOnt 14842 (Ont. Workplace Safety & Insurance Appeals Trib.). Chronic pain < pg. 5 ©2018 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Thomson Reuters, Media Solutions, Canada). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safety-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $139 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: customersupport.legaltaxcanada@tr.com Website: www.thomsonreuters.ca One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada Karen Lorimer Publisher/Managing Editor Todd Humber Lead Editor Jeffrey R. 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