Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | October 2017 | News Worker wins appeal for compensation for degenerative back condition Workplace back injury and subsequent heavy labour known factors for development of protruding discs in lower back: Tribunal BY JEFFREY R. SMITH AN ONTARIO labourer has won an appeal for workers' compen- sation benefits for a degenerative condition in his back that need- ed surgery. The 56-year-old worker worked various jobs in the con- struction and warehousing industries all his life and all in- volved heavy labour. As a result, he had several back injuries — mostly muscle strains — over the course of his career. The follow- ing injuries were reported to the Ontario Workplace Safety and Insurance Board (WSIB): • In June 1978, August 1984, October 1986, and April 1988, the worker strained muscles in his lower back, usually while lifting heaving objects. Each time, he missed a few days of work with the exception of the 1986 accident where he missed three weeks and in 1988, when his employer developed a modified work plan that allowed the worker to continue working without missing any time. • In February 1990, the worker was employed with a fibreglass installer and slipped on a wet floor in the shower room. He fell and hit a bench, causing him to develop pain in his upper and lower spine. He didn't remember if he went to the hospital, but he missed 14 shifts over a month before returning to his normal duties. • In August 1995, while working as a shipper-receiver using a forklift to load and unload trucks, the worker slipped on an oily floor and landed on the forklift's fork, straining his back. The employer's physician diagnosed a lower lumbar back strain and the worker returned to work one week later, performing modified work for one month before resuming normal duties. The worker also said the forklift had no shock absorbers so he was constantly bounced while operating it, which he could feel compressing his back and his back got progressively worse. • In July 2002, the worker felt back pain while lifting at work. He filed a claim for workers' compensation benefits but was denied. The worker also claimed have been injured in April 1998 when he fell from the second storey of a house he was framing, but his employer paid him full wages during a two-week absence and neither he nor the employer re- ported the injury to the WSIB. The worker also didn't seek medical attention. Worker developed degenerative disc disease The worker had x-rays taken in May 1991 and August 1995 that were both normal, but a September 1997 x-ray showed moderately severe degenerative disc disease in his lower back. An MRI in November 2002 showed a three herniated discs in his lower back and a sciatica causing pain in his right leg. An orthopaedic surgeon noted in his report that the worker's pain history went back five years to 1997 when the degenerative disc disease showed up in x-rays. The surgeon performed a discecto- my in May 2003, but the worker's pain soon returned. The surgeon said he wouldn't do a second op- eration yet because the worker was too young at 42 years old. The worker filed a claim for workers' compensation benefits for his lower back injury relat- ing to the August 1995 and April 1998 falls, as well as a disable- ment as a result of his job duties over many years and a perma- nent impairment award follow- ing his back surgery. The worker said the August 1995 fall while working with a forklift "set the whole ball rolling" towards his back surgery and impairment, and the 1998 fall from the second storey of a house aggravated the situation. The worker couldn't remem- ber details of some of the acci- dents that had been reported, only remembering the 1990, 1995, 1998, and 2002 injuries. He also couldn't remember the name of his employer at the time of the 1998 accident and the WSIB claims investigator couldn't find the employer. The WSIB claims adjudicator denied the worker entitlement to workers' compensation ben- efits a few months after the sur- gery, and the worker appealed, seeking entitlement to benefits dating to his last injury in July 2002 plus a permanent impair- ment award and labour market re-entry services. An appeals resolution officer denied the worker's appeal, so the worker took his claim to the tribunal. The tribunal referred to an orthopaedic surgeon's letter it had on file explaining that disc protrusions can be caused by repetitive simple injuries such as bending, twisting, or lifting, so significant trauma wasn't always needed to cause them. In addition, factors from aging can make disc protrusions more likely in jobs with repetitive bending, and "a definite history of trauma to the back produc- ing back pain and sciatica would draw attention to the accident itself being the source of the disc protrusion," the surgeon's letter said. The letter also indicated that it would be difficult for investiga- tions to determine that a specific accident was the cause of back and leg pain if there were "multi- ple episodes" caused by "several accidents or several flare-ups of pain" and "if an accident pro- duced a significant back prob- lems but not a disc protrusion it could result in acceleration of deterioration of the disc and predispose it at a future time to a disc protrusion." The tribunal found that the evidence showed the worker worked in occupations that were considered high-risk. The worker's x-rays in 1991 and 1995 were normal, but the 1997 one — taken a little over one year after the 1995 fall — showed degen- erative disc disease. Consider- ing the worker complained of low back and leg pain following that accident, the tribunal found it likely that the 1995 workplace accident "accelerated the deteri- oration of the disc" and qualified as "a definite history of trauma to the back" that contributed to the worker's back pain and leg sciatica. The tribunal found it didn't matter much that the worker couldn't remember many details about his accidents before 1990, as it wasn't necessary to deter- mine their role in the worker's condition. There was a "medical compatibility between the 1995 injury and the condition that re- quired surgery," said the tribunal. "There is no objective evidence of any non-work-related factors that could have caused it." The tribunal allowed the worker's appeal, determining that he had "cumulative, re- petitive micro-trauma superim- posed on the 1995 injury" and the 1995 accident and heavy labour while working in construction in the years following significantly contributed to the development of the worker's protruding disc and sciatica. The worker was granted entitlement to benefits for the degenerative disc disease that required surgery. For more information see: • Decision No. 317/07, 2007 CarswellOnt 11851 (Ont. Workplace Safety & Ins. Appeals Trib.).

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