Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 News | April 2017 | CSR Worker entitled to benefits for effects of accident caused by pre-existing condition Truck driver denied workers' compensation for seizure suffered while working, but benefits allowed for injuries sustained in accident BY JEFFREY R. SMITH AN ONTARIO worker is not en- titled to benefits for a seizure he suffered while driving a compa- ny truck for work but is entitled to compensation for the injuries he sustained from the resulting accident, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The 61-year-old worker was a truck driver for an Ontario- based freight company, hired in 2005. During the course of sev- eral years of employment, the worker had no significant health issues arise, except for a seizure in 2009. The worker's healthy run ended on Aug. 14, 2012, when was delivering a load to New York City. After he crossed the border into the United States, the worker suffered a seizure while driving his truck. The sei- zure caused him to drive through barriers on the road and off the road. He was found on the side of the road confused and incontinent, along with musculoskeletal and soft tissue injuries caused by the accident. The worker was taken to a hos- pital in New York State and was diagnosed with "convulsions/ seizures." He was later given an MRI which revealed indications of venous angioma – a congeni- tal malformation of veins in the brain. This condition can poten- tially cause a seizure disorder. The worker filed a workers' compensation claim for loss of earnings from his injuries stem- ming from the accident and healthcare benefits. Seizure not related to employment An adjudicator for the Ontario Workplace Safety and Insur- ance Board (WSIB) found the worker's seizure was not work- related and rejected the work- er's claim. The worker respond- ed by submitting additional medical information and said that his job caused him to suffer from sleep deprivation and fa- tigue, and these conditions con- tributed to his seizure. The WSIB considered the worker's additional information and arguments, but reiterated the denial of benefits. The worker appealed the deci- sions, and the appeals resolution office found there was no medi- cal evidence diagnosing fatigue and sleep deprivation, nor any evidence that linked them to the worker's seizure. Because of this, the worker's seizure – and the accident it caused – were not re- lated to the worker's employ- ment. As a result, the appeals resolution office also found the injuries the worker suffered in the accident were not related to his employment. The worker agreed that his seizure was not related to his employment and he was not en- titled to workers' compensation benefits for the seizure. How- ever, he appealed the denial of benefits for his injuries from the accident, arguing they were re- lated to his employment because his employment was the reason he was driving a truck at the time of his seizure. The employer accepted the worker's acknowledgement that his seizure was not related to his employment, and in turn sup- ported the worker's argument that he was entitled to compen- sation for the injuries suffered in the accident. The worker ap- pealed the appeals resolution office decision armed with the settlement with the employer and focused on the injuries, not the seizure. The tribunal found that the original WSIB decision focused only on the seizure entitlement and the appeals resolution of- fice ruled on the accident inju- ries without either the worker or the employer making their full cases regarding the physi- cal injuries. Therefore, the case regarding the injuries should be remitted back to the WSIB for a full hearing, said the tribunal. "The worker does not have entitlement for the Aug. 14, 2012, seizure," the tribunal said. "The worker has entitle- ment for the physical injuries sustained in the motor vehicle accident of Aug. 14, 2012. The nature of those physical injuries and the benefits that flow from that entitlement to the physical injuries are to be adjudicated by the board with all usual rights of appeal." For more information see: • Decision No. 3047/16, 2016 CarswellOnt 20317 (Ont. Workplace Safety & Insurance Trib.). Credit: Shutterstock/vasara

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