Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | November 2018 | News Worker's pre-existing disability not cause of injury from fall at work Employer sought financial relief from workers' compensation costs due to worker's disability, but tribunal found no medical evidence linking it to worker's tumble BY JEFFREY R. SMITH AN ONTARIO employer has lost its attempt to gain special relief for its workers' compensation costs stemming from an acci- dent where a blind worker fell and injured himself in the work- place. The 65-year-old worker was employed as a social worker, hired by his employer in 1986. He suffered from retinal detach- ment, glaucoma, and uveitis, which made him completely blind for 40 years. As a result, he used a visual aid stick when walking around. On June 20, 2016, the worker was sitting in the office recep- tion area. He stood up to leave, but realized he forgot to ask the receptionist something. He turned around, lost his balance, and reached for a chair, but he missed and fell to the ground, landing on his left hip. The worker was taken to hospital, where an orthopaedic surgeon diagnosed the worker with a left hip fracture and noticed signs of osteoarthritis and some dis- placement. Because of these conditions and the worker's age, the surgeon recommended a full hip replacement. The worker had hip replace- ment surgery the day after his accident, though his osteoar- thritis was still present after- wards. A week later, the Ontario Workplace Safety and Insurance Board (WSIB) approved his claim for health care benefits for the hip fracture and a soft-tissue elbow injury the worker had also suffered in the fall at work. Worker's compensation for four months off work The worker was off work for four months, returning to graduated duties with accommodations on Oct. 17, 2016. The worker claimed entitlement to loss of earnings benefits, saying he tripped over his own feet and there were no external trip haz- ards. The WSIB also granted him loss of earnings benefits for the period he was off work re- covering from his surgery. On Nov. 8, the employer con- tacted the WSIB requesting enti- tlement to 100 per cent cost relief from the board's Second Injury and Enhancement Fund (SIEF). The SIEF is a fund that provides employers with financial relief from workers' compensation costs when a workplace accident is caused by an employee's prior disability, or a pre-existing con- dition contributes to a prolonged recovery from a workplace acci- dent. The employer argued that the worker's loss of balance and fall at work was caused by his blindness, and the extent of his disability was significant enough to warrant full cost relief. A WSIB case manager found the worker's blindness didn't con- tribute to the worker's injury or any delayed recover, so the em- ployer's claim was denied. The employer appealed to the Ontar- io Workplace Safety and Insur- ance Appeals Tribunal, referring to a U.S. medical article on visual impairment and measured bal- ance that reported reduced visual inputs could weaken the body's systems that maintain balance and "self-reported falling diffi- culties were significantly more common among those having (vision impairment) compared to those having normal vision." The employer argued that there was a medical consensus that having a visual impairment was associ- ated with poor balance and pre- disposed the worker to incurring an injury. The tribunal referred to the SIEF policy document, which defines a pre-accident disabil- ity as "a condition which has produced periods of disability in the past requiring treatment and disrupting employment" and a pre-existing condition as "an underlying or asymptomatic condition which only becomes manifest post-accident." Turning around caused fall, not blindness: Tribunal The tribunal disagreed that there was medical evidence indicat- ing the worker's fall was caused by his blindness. The article to which the employer referred was a general journal article and not specific medical evidence on the worker's accident. There was a doctor's report describing the worker's fall as "likely due to a combination of factors includ- ing decreased vision, existing arthritis, peripheral neuropathy, and mechancial factors," but this report didn't fully explore the ac- cident history — particularly the fact the worker fell while abrupt- ly turning around. The employer submitted that there were no risk factors at the workplace that contributed to the worker's fall and the trig- gering factor was the worker's blindness, but the tribunal found there was no proof of this. The tribunal found that it was the act of turning that precipitated the loss of balance and resulting in- jury, not the worker's blindness. And since the worker's blindness wasn't the cause of the accident, the employer wasn't entitled to full relief of its costs, said the tri- bunal. The tribunal also found that the worker's blindness wasn't a pre-existing condition or dis- ability as defined in the SIEF policy document for eligibility for relief. The blindness wasn't something that was asymptom- atic and manifested after the ac- cident. In addition, though the worker may have had periods of disability requiring treatment, there was no evidence his blind- ness disrupted his employment — the worker had a longstand- ing employment relationship with the employer for 30 years, said the tribunal. The tribunal determined that the worker's blindness wasn't the cause of his workplace accident and injury and it didn't prolong or enhance the worker's recov- ery. The employer's claim for relief for its costs from the SIEF was denied. For more information see: • Decision No. 1625/18, 2018 CarswellOnt 13560 (Ont. Workplace Safety and Appeals Trib.). Credit: Shutterstock/Ververidis Vasilis

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