Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | March 2017 | News Car accident caused new injury, not recurrence of workplace injury Worker argued accident aggravated shoulder injury, but diagnosis and assessments led to conclusion original injury had healed BY JEFFREY R. SMITH THE ONTARIO Workplace Safety and Insurance Appeals Tribunal has denied benefits to a worker for a shoulder impairment, find- ing a similar injury from a work- place accident had been resolved and her impairment was from a non-compensable car accident. The 44-year-old worker was hired by a manufacturer of prod- uct displays for retail outlets to be a production supervisor in January 2006 and worked for four years without any issues. However, on April 30, 2010, she was bending over near a shelf to pick something up when a five- pound roll of film fell onto her neck and right shoulder. She later went to the hospital, where x-rays revealed no fractures or other significant injuries. Her injury was subsequently diag- nosed as a soft issue strain. The worker, who was preg- nant, was able to return to work on modified duties a few days af- ter the accident. She also under- went physiotherapy for several months without further shoul- der complaints and stayed on modified duties — with no lifting or handling of products — for full-time hours for several weeks until she went on sick leave due to pregnancy-related issues. The sick leave rounded out her preg- nancy until she gave birth in No- vember 2010, at which time her maternity leave began. Early on in her maternity leave —Dec. 20, 2010 — the worker was in a motor vehicle accident. She hurt her shoulders in the ac- cident, but didn't go to the hos- pital. Eventually, she had to seek treatment as she felt pain in her neck and back, while her shoul- der continued to bother her. A medical report prepared soon after the motor vehicle ac- cident indicated she complained of pain in her neck lower back, right leg, and right shoulder. The report noted that the worker's "past history is really otherwise entirely noncontributory" to the pain she was experiencing. The worker's maternity leave finished in early November 2011, at which time she took three weeks' vacation that she had earned. She was scheduled to return to work at her normal duties on Nov. 28, 2011, but she claimed that she still suffered from pain and impairment in her right shoulder. She remained off work with shoulder pain, which she said stemmed from her April 30, 2010, workplace accident. The worker was unable to return to work in any capac- ity and a shoulder specialist recommended in March 2012 she undergo surgery. She told the specialist that her pain had been present "for approximately one-and-one-half years." Her employment was terminated on April 19, 2012, and she had sur- gery in November. The worker filed a workers' compensation claim for ben- efits for a recurrence of her April 2010 injury. She noted that her neck and back pain from the motor vehicle accident had re- solved themselves, but the right shoulder pain persisted and the accident had aggravated the ex- isting injury. She also argued the surgery was for the impairment she suffered in the April 2010 workplace accident. The tribunal referred to the Ontario Workplace Safety and Insurance Board (WSIB) pol- icy on injury recurrences that stipulates "workers are entitled to benefits for a recurrence of a work-related injury where there is clinical compatibility between the original injury and the cur- rent condition, or a combination of clinical compatibility and con- tinuity." Clinical compatibility in- cludes whether it's the same parts and functions of the body that are affected, the degree of restric- tion compared to the original injury, and how similar the clini- cal conditions are to the original injury. Continuity must include ongoing complaints, symptoms and treatments, modified duties, and a lifestyle change since the original accident. Finally, there must not be a "significant new accident," or else the injury is not considered a recurrence. The tribunal found that when the worker went to the hospital after her 2010 workplace acci- dent, there was no evidence of "significant bone, joint, or soft tissue abnormality in the right shoulder." The diagnosis of a soft tissue injury indicated that full re- covery was expected. In addition, the medical assessments leading up to the recommendation of surgery referred to the source of the injury as the car accident. In addition, the severity of the symptoms and the degree of impairment the worker suffered following the motor vehicle ac- cident were not consistent with the assessment and diagnosis following the original accident — a soft tissue shoulder injury with no structural abnormali- ties shouldn't have caused the ongoing pain and limitation the worker experienced at the end of her maternity leave. There was also evidence the worker had no complaints of shoulder pain af- ter she left work on her medical leave in July 2010 before the car accident, said the tribunal. The tribunal found a lack of continuity with the worker's original injury and her right shoulder pain and impairment. In addition, the motor vehicle accident qualified as a "signifi- cant new accident" that caused the impairment and led to shoul- der surgery. However, the new accident didn't qualify for work- ers' compensation benefits as it didn't occur in the course of em- ployment, so the worker wasn't entitled to such benefits. "In our view, the injury to the worker's right shoulder that arose as a result of the workplace accident on April 30, 2010, was essentially resolved around the time that she stopped attend- ing physiotherapy and began her sick leave in July 2010," the tribunal said in dismissing the worker's appeal. "This finding is supported by the fact the worker no longer raised the issue of her right shoulder with her medical advisors at the time, until follow- ing the Dec. 20, 2010, motor ve- hicle accident." For more information see: • Decision No. 2570/16, 2016 CarswellOnt 18433 (Ont. Workplace Safety & Insurance Appeals Trib.). Credit: Shutterstock/I'm friday

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