Canadian HR Reporter

CANADIAN HR REPORTER APRIL 2019 FEATURES 23 HEALTH AND SAFETY Permanent impairment entitlements can be long time coming Ontario case involved worker with pre-existing condition harmed by workplace accident By Jeffrey R. Smith A n Ontario worker has been granted permanent impairment benefits for a pre-existing back condition — 17 years after it was determined the condition had returned to its state before a workplace accident. The 71-year-old worker was employed as a utility gas fitter and meter installer, hired by his employer in 1985. He had a long- standing history of pain in his lower back, as well as incidents of sciatica over the course of his lifetime. However, by 2000, he claimed things were "pretty good" with his back, except for the "odd lit- tle muscle spasm" that would go away within a day. He also suf- fered a right ankle fracture in November 1975 for which he re- ceived an eight-per-cent perma- nent disability award. Despite his back issues, he didn't seek medical attention and was able to perform his regular job duties. e worker underwent a full- body bone scan in June 2000, as he had arthritis in his hands and his doctor wanted to check his other joints to rule out rheumatoid arthritis. The scan revealed osteoarthritis in his lumbar spine, both shoulders, right ankle, knee joints, hands, and wrists. In October 2000, the worker began feeling pain in his lower back and right leg because of what he felt was an uncomfort- able seat in his service van. He submitted a report of injury regarding the pain and his em- ployer eventually provided him with a different vehicle. Workplace accident aggravated back condition e worker continued to work for another two months until Dec. 18, 2000, when he drove his service vehicle over a large bump in the road. He immediately felt "excruciating pain" in his back and leg significantly greater than what he had felt previously. Soon after, he began feeling numbness in his right foot, which continued for over a year. e worker was off work for about one month following the accident. In February 2001, he returned to work on modified duties, though his back contin- ued to bother him. His work- ers' compensation benefits were discontinued due to a doctor's report indicating his arthritis hadn't prolonged his healing and his condition had improved to 75 per cent. The worker drove a service vehicle but his modified duties excluded heavy lifting and in- stallation work, though he had to do some standing, bending and stair climbing that aggravated his back pain. He mostly worked partial days and went home when he couldn't tolerate the pain anymore. He also wasn't able to partake in activities that he had done be- fore his workplace accident, such as golfing, fishing, walking long distances or shovelling snow. e worker's doctor complet- ed a functional abilities form in October 2001 that indicated the back pain was chronic and "most likely permanent by nature." An- other assessment in February 2002 stated the worker hadn't improved with aggressive treat- ment and his symptoms were most likely permanent. By December 2001, the work- er's back pain was at the point where he couldn't perform even his modified duties. He stopped working and received short-term benefits for one year, then was placed on long-term disability benefits. He applied for and was granted Canada Pension Plan dis- ability benefits in 2003. e Ontario Workplace Safety and Insurance Board (WSIB) also granted him health-care and loss- of-earnings benefits for "an aggra- vation of a pre-existing condition" related directly to his job duties. After the worker stopped work- ing, his back pain lessened but didn't completely go away. He occasionally received injections and consulted a neurosurgeon or visited walk-in clinics. He was told by doctors that he would have to learn to live with some back pain, so he didn't seek regular medical treatment. Usu- ally, if his back started bothering him, he would take pain medica- tion and rest, but his mobility was limited. New treatment plan By 2010, the worker had a family doctor who referred him for phys- iotherapy, massage and acupunc- ture as treatment for his back. e doctor suggested the worker should receive worker's compen- sation benefits to help pay for the treatment since it was related to a workplace accident. e worker also received chiropractic treat- ment between 2011 and 2014, but stopped going because he was told nothing could be done to im- prove his back pain. In January 2010, the worker contacted the WSIB to see if it would cover his physical therapy and massages, as well as ongoing entitlement for his right ankle in- jury. A WSIB adjudicator advised that his file was closed and there was no ongoing entitlement from his claim without medical evidence "to support ongoing continuity directly related to the accident." e same was said about his ankle injury entitlement, as he had already received a permanent disability award. e worker disagreed, arguing he had a permanent low back im- pairment radiating into his right leg that warranted entitlement to full loss-of-earnings benefits from when he stopped working in December 2001 to May 2012, when he turned 65 years old. The WSIB sought a medical opinion about whether the work- er's workplace injury had caused a permanent aggravation of his pre- existing back condition. A WSIB doctor found the worker had "a long-standing his- tory of lower back pain, prior epi- sode of sciatica, as well as general- ized osteoarthritic changes" and the mechanism of the December 2000 workplace injury wasn't sig- nificant — it was simply a jarring of the lower back while driving a work vehicle. e doctor determined that the evidence of degenerative changes that were happening before the injury and the relative minor ex- tent of the accident didn't support a conclusion that the permanent aggravation was related to the workplace accident. e worker's claim for ongo- ing entitlement was denied. An appeals resolution officer agreed after the worker appealed. Tribunal weighs in e worker took his claim to the Ontario Workplace Safety and In- surance Appeals Tribunal, which took a different view of the work- er's circumstances. e tribunal found that it was significant that before the December 2000 work- place accident, despite the fact the worker suffered from some back pain, he was able to perform his full job duties and didn't require medical attention. However, after the accident, he could only perform modified duties and eventually had to stop working altogether. ough the WSIB had deter- mined the worker had no ongoing entitlement because his condition had returned to its pre-accident state when he returned to work, the reality was the worker contin- ued to be hindered. The medical evidence indi- cated the worker had arthritis and other degenerative changes before the workplace accident, but these were worse afterwards — the October 2001 and Febru- ary 2002 functional abilities as- sessments indicated the worker's back pain was chronic and likely permanent. The tribunal also noted the worker continued to suffer pain and numbness in his lower back and leg that affected his mobility and the activities he could do. It was also apparent that while the worker had a period of sev- eral years where he didn't receive medical treatment, this was be- cause he had been told nothing could be done and he didn't have a family doctor — not because he wasn't experiencing symptoms of his condition, said the tribunal. e tribunal determined that the Dec. 18, 2000, workplace ac- cident permanently aggravated the worker's pre-existing osteo- arthritic condition in his lower back and the worker was entitled to non-economic loss benefits for his permanent impairment. It also found the worker was entitled to loss-of-earnings ben- efits between 2001 and 2012 and referred the case back to the WSIB to determine the amount of those benefits. For more information, see: • Decision No. 2421/18, 2018 C a rs wel lOnt 1723 8 (Ont . Workplace Safety & Insurance Appeals Trib.). GET INSTANT ACCESS TO YOUR LEGAL COMMUNITY 2019 BRITISH COLUMBIA LEGAL TELEPHONE DIRECTORY Includes British Columbia, Northwest Territories, Nunavut and Yukon British Columbia's vast legal community is readily available with the British Columbia Legal Telephone Directory. You get instant access to more than 11,000 lawyers and law offices. Each year we ensure this directory includes the most up-to-date names, phone numbers, mailing addresses and emails, so you don't have to search anywhere else. Order your copy today! Visit www.store.thomsonreuters.ca or call 1.800.387.5164 for a 30-day no risk evaluation. Spiralbound • October 2018 • $50.50* Order No. L7798-8404 • ISBN 978-0-7798-8404-9 Multiple copy discounts available *Plus applicable taxes and shipping & handling. Prices subject to change without notice. Medical evidence indicated the worker had arthritis and other degenerative changes before the accident.

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