Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2018 News | December 2018 | CSR Pre-existing disability didn't contribute to new workplace accident: Tribunal Employer denied cost relief for worker's loss-of-earnings benefits during recovery in absence of evidence linking knee injury to earlier accident BY JEFFREY R. SMITH AN ONTARIO employer's at- tempt to obtain cost relief for a worker's knee injury that it ar- gued was worsened by a previ- ous knee injury five years earlier has been quashed by the Ontario Workplace Safety and Insurance Appeals Tribunal. The 59-year-old worker was a shot blast operator, operating equipment to clean dirt, scale, and core materials from steel castings using blasts of steel shot. On Jan. 5, 2015, the worker was walking in the employer's parking lot when he slipped on some ice. He fell, twisting his right knee in the process. He sought medical attention and was diagnosed with a tear of his right anterior cruciate ligament (ACL) and tears of his medial and lateral meniscus. In addi- tion, examination of his knee re- vealed that he had a small Baker's cyst that had ruptured. An MRI also revealed that the worker had some degenerative changes such as mild cartilage thinning in the right knee. The worker was off work for just over one month, returning on Feb. 11. When he returned, he had to wear a knee brace. The Ontario Workplace Safety and Insurance Board (WSIB) grant- ed the worker loss-of-earnings benefits for the period he was off work. The worker continued to work with a knee brace for eight months until Oct. 22, 2015, when he underwent surgery to reconstruct his right ACL and fix his meniscus. He was given a choice of wearing a brace or reconstructive surgery, and he chose surgery because he liked to cycle, though the orthopae- dic surgeon was concerned such surgery at a relatively advanced age and the fact the worker smoked one pack of cigarettes per day would mean a "high risk of healing complications and infection." His recovery time was expected to be about six months. The worker was off work fol- lowing the surgery and during his physiotherapy, which was run at a slow pace due to soft tis- sue and graft issues related to his age. He received loss-of-earn- ings benefits for 10 months until Aug. 18, 2016, when he returned to full duty. ACL weakened in previous accident: Employer The employer felt the length of time the worker received ben- efits was longer than expected, so it applied to the WSIB for cost relief from the board's second injury and enhancement fund (SIEF), the fund to help employ- ers where an employee's injury or recovery period is worsened because of a pre-existing condi- tion. It noted that the worker had a similar incident regarding the worker's right knee in 2010, after which surgery had been recom- mended but the worker declined after his knee improved. At the time, the worker missed two days of work with a doctor's note and had to wear a knee brace for some time. The WSIB rejected the appli- cation on the basis there was no evidence to support the claim that the worker had a pre-existing condition, pointing to the WSIB policy regarding the SIEF that de- fined a pre-existing disability as "a condition which as produced periods of disability in the past re- quiring treatment and disrupting employment" and a pre-existing condition as "an underlying or asymptomatic condition which only becomes manifest post-acci- dent." The proportion of costs for which the employer receives re- lief depends on the evaluation of how significant the pre-existing condition or disability is and the severity of the accident. An appeal resolution officer upheld the decision, finding the degenerative changes that had been found in the worker's MRI weren't of "particular clinical sig- nificance" and the worker hadn't experienced any symptoms be- fore the workplace accident. The employer appealed the matter to the Ontario Work- place Safety and Insurance Ap- peals Tribunal. The worker provided the opinion of an orthopaedic sur- geon who stated that the work- er's ability to resume normal activity after the 2010 injury didn't mean he didn't have a pre- existing condition — it was pos- sible to function fairly well with a torn ACL. The evidence was that the worker didn't participate in sports activity other than cycling after the 2010 injury, while he had before the injury, which sug- gested his ACL had been partly damaged and he wasn't partici- pating in activities that would stress it. The surgeon noted that complete ACL tears such as the one the worker suffered in Janu- ary 2015 were normally associat- ed with rapid impact or changes of direction, so the fact that the worker tore his ACL in a "simple slip and fall" meant is was "likely partially torn and weakened as a result of the injury in 2010." The tribunal found that while the orthopaedic surgeon was knowledgeable and experienced with ACL tears in general, there was no evidence to corroborate his opinion and noting specific to the worker's circumstances. Without specific evidence indi- cating the worker's 2010 acci- dent and injury contributed to the 2015 accident, the tribunal couldn't grant SIEF relief to the employer. "I do not see that (the 2010 accident and injury) caused or contributed to the (2015) acci- dent; the worker simply slipped on ice and fell," the tribunal said. "There is nothing in the report- ing to indicate that the worker's pre-existing disability in the knee played any role in the ac- cident." For more information see: • Decision No. 2871/18, 2018 CarswellOnt 17441 (Ont. Workplace Safety & Insurance Appeals Trib.). Credit: Shutterstock/Praisaeng

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