Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2017 News | April 2017 | CSR Employer wins partial relief for cost of worker's workplace injury Degenerative condition in worker's knee didn't contribute to workplace accident, but delayed recovery BY JEFFREY R. SMITH AN ONTARIO employer is get- ting relief for three-quarters of the cost of a workers' compensa- tion claim because a pre-existing condition in a worker's knee contributed to a delay in the worker's recovery from a minor workplace accident, the Ontario Workplace and Safety Insurance Appeals Tribunal has ruled. The 60-year-old worker was employed with the accident em- ployer, a care facility, for 25 years. On Feb. 25, 2014, the worker was walking normally out of the resi- dents' dining room after feeding a patient and slipped on a piece of meat that had fallen on the floor. She lost her balance, caus- ing her to do the splits as she fell. She injured her left leg and right knee in the accident. The worker was approved for work- ers' compensation benefits for the injuries while she recovered. She returned to work on modi- fied duties until June 1, when she stopped working to promote healing of her knee. However, the worker soon began experiencing severe knee pain and went to the emergency room of her local hospital, where she was diagnosed with pseudo- gout and had her knee aspirated. She two weeks off to recover from the knee aspiration proce- dure, during which she received loss-of-earnings benefits. After two weeks, the employer had modified work available but the worker didn't return to work so the benefits ended and the work- er was on unpaid leave. The worker had an MRI in Au- gust 2014, which revealed a stress fracture in the knee. The MRI also showed a small cysts with prominent lymph nodes, and chondrosis — cartilage deteriora- tion in two places in the worker's knee. She returned to suitable modified work in November and soon after, was granted a non- economic loss award for residual impairment in her right knee. In April 2015, the employer applied to the Ontario Work- place Safety and Insurance Board (WSIB) for relief from the workers' compensation costs through the WSIB Second In- jury and Enhancement Fund (SIEF), a special reserve fund that subsidizes losses from a workplace injury where the acci- dent is caused by or the recovery period is prolonged because of a prior disability in the worker. Employer's claim for relief initially rejected A WSIB case manager found that although chondrosis was found in the worker's knee, there was no evidence that it or any other pre-existing condition could have contributed to the accident, made the injury worse, or delayed the worker's recovery. The employer took its case to the appeals resolution office (ARO), which found the MRI revealed a pre-existing condi- tion in the worker's right knee. However, the worker had been doing her job with similar duties for 25 years without the need for modified duties or time off, so any pre-existing disability in her knee hadn't affected her ability to perform her job. The ARO also noted that the worker had never received medical treatment for her knee before the accident. In fact, any delay in the worker's recovery could be attributed to the delay in proper treatment, as the pre-existing condition in her knee wasn't discovered until the August 2014 MRI, almost six months after the workplace acci- dent, said the ARO in dismissing the employer's appeal. The employer appealed once again, arguing the worker's pre- existing condition played a role in the length of her recovery. The tribunal noted that a pre- accident condition did not have to be associated with an actual disability prior to the workplace accident for it to be medically significant enough to have an ef- fect on an injury stemming from the accident. Additionally, the SIEF — of which one of the pur- poses is to encourage employers to hire workers with disabilities — could provide only partial re- lief, depending on factors such as the medical significance of the pre-existing condition and the severity of the accident. The tribunal also noted that a test had been established — in its Decision No. 1404/11 — that "the evidence must demonstrate that it is more likely than not that the underlying condition prolonged or enhanced the worker's dis- ability resulting from the work- place accident" or, if there was a disability, how much it contrib- uted to the accident. The tribunal found, as did the ARO previously, that the worker didn't miss work, been provided with modified duties, or received treatment for knee problems in the recent past. This made it easy to determine there was no pre-existing disability that could have contributed to the workplace accident. As for whether there was a pre- existing condition, the tribunal found the MRI and other medi- cal reports showed the worker did have one — particularly car- tilage deterioration in multiple locations in her knee. Most of the findings were of conditions that were degenerative in nature. The tribunal then looked at the stress fracture that was found in the worker's August 2014 MRI. Medical documen- tation indicated stress fractures take six to eight weeks of rest to heal. However, the worker's in- jury was in February 2014 and the injury was still detected in the MRI six months later. In- deed, an updated medical report in November 2015 revealed the worker was only partially recov- ered with "no further recovery expected" 21 months later. This delay in recovery was likely due to the worker's degenerative condition, said the tribunal. The tribunal pointed out that the accident was "minor in severity," as the worker simply slipped while walking normally with no force applied. Such a long recovery for a relatively mi- nor accident further supported the conclusion that the worker's pre-existing condition length- ened her recovery. "The worker has a number of different manifestations of age-related, or degenerative, changes in her right knee," the tribunal said. "In my view, these pre-existing conditions togeth- er more likely than not would cause the worker to be some- thing more than 'slightly' more liable to develop a disability of greater severity than a normal person. However, I am not per- suaded that it would render her 'extremely' more so." The tribunal allowed the ap- peal and overturned the ear- lier rejections of the employer's claim, finding the minor acci- dent and moderate pre-existing condition for the worker entitled the employer to 75 per cent relief of all costs of the worker's claim. For more information see: • Decision No. 2883/16, 2016 CarswellOnt 18847 (Ont. Workplace Safety & Insurance Trib.). A long recovery for a minor accident suggested pre-existing condition was a factor.

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