Canadian Safety Reporter - sample

6 Canadian HR Reporter, a Thomson Reuters business 2016 CSR | August 2016 | News Worker's claim for absence from recurrence of workplace injury rejected Pain was a recurrence of old workplace injury, but it wasn't enough to render him incapable of working in some capacity BY JEFFREY R. SMITH A NEW BRUNSWICK worker who suffered pain related to a previous workplace injury is not entitled to workers' compensa- tion benefits because he was still capable of working with restric- tions, the New Brunswick Court of Appeal has ruled. Glendon Russell was a letter carrier for Canada Post hired in 1971. He suffered a serious shoulder muscle sprain leading to chronic myofascial pain syn- drome —where pressure on cer- tain points of the muscle cause seemingly unrelated pain else- where — when he fell through a porch while delivering mail in 1992. Russell was off work for six years and received work- ers' compensation benefits for his injury. He eventually was able to return to work in 1998 and Canada Post treated him as having a permanent partial disability. The corporation ac- commodated him by providing a right-hand drive van in which he could deliver mail on a spe- cific route. Russell delivered mail with the van for the next 14 years without reporting any problems related to his injuries. In 2012, Canada Post replaced the right-hand drive van with a new left-hand drive van. Russell expressed concern to Canada Post's disability benefits pro- vider about the phasing out of right-hand drive vehicles dur- ing discussions on scheduling a permanent partial disability as- sessment, which was delayed be- cause Russell didn't have a family doctor at the time. The benefits provider report- ed Russell's concerns to Canada Post, but Canada Post didn't consider a right-hand drive van necessary as its records showed only restrictions on walking, lift- ing and carrying. It believed that when Russell had requested the route where he could use the right-hand drive van, he was self- accommodating and the corpo- ration went along with it. Russell tried working his route with the new vehicle and was able to complete the route, though it took longer. However, Canada Post installed a rack for holding mail in the front passenger seat area of the van, which made it even more difficult for him. With the rack installed, Russell had to frequently lift above his shoul- der, which caused increased pain in his shoulder. Russell told his supervisors that the new van and its configu- ration exacerbated the pain he had from his old injuries. After working with the new van for one month, Russell went on a week-long vacation. Doctor placed worker off work until assessment During his vacation, Russell had an introductory appointment with his new family doctor. He explained the history of his inju- ry to the doctor and mentioned he had a permanent partial dis- ability assessment scheduled for January 2013 with Canada Post's disability management provider. His doctor decided to put Russell off work for two months until the assessment was completed and the extent of Russell's disability and necessary accommodation could be determined. Russell informed the benefits provider that he was off work because of difficulties he had with the change in vehicles and he was provided with short- term disability benefits. He had the assessment and a functional capacity evaluation on Jan. 31 and Feb. 1, 2013. The result of the evaluation was that he was capable of performing general work tasks at the "sedentary physical demand level, nearing the light physical demand level." He remained off work with de- pression, anxiety, and insomnia. When Russell's short-term disability benefits ran out at the end of February, he was advised to apply for long-term disability benefits. However, the benefits provider — different from the disability benefits provider — denied his claim. Russell then applied for work- ers' compensation benefits but Canada Post challenged the claim, telling the New Bruns- wick Workplace, Health, Safety and Compensation Commis- sion (WHSC) that he had been put off work by his doctor due to a "non-occupational condition." The corporation said Russell didn't report a specific incident and therefore didn't believe the injury arose out of and in the course of employment. It re- ferred to the report of Russell's doctor that stated Russell had myofascial pain syndrome from a recurrence of symptoms after change in equipment. Credit: Shutterstock/mikecphoto Absence > pg. 7

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