Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | November 2017 | News Worker's previous back injuries led to pre-existing condition Latest accident would not have caused disc herniation on its own; employer granted 90 per cent relief from costs BY JEFFREY R. SMITH AN ONTARIO employer has been granted 90 per cent relief from its workers' compensa- tion costs from a minor work- place accident after the Ontario Workplace Safety and Insurance Appeals Tribunal determined the injured worker had a major pre-existing back condition that contributed to his injury. The 45-year-old worker was a construction labourer. In 2006, he injured his lower back and leg when he twisted around to get off a machine. He required chiropractic and massage ther- apy treatments and he was off work for almost one month with workers' compensation. He was able to return to his regular du- ties and hours with no pain. Four years later, in 2010, the worker was in a motor vehicle accident in which he fractured a rib and his sternum. The ac- cident occurred while he was off duty, so he was unable to get workers' compensation benefits. He required ongoing chiroprac- tic and acupuncture treatments for sternum pain. In July 2014, the worker ex- perienced low back pain after carrying a sheet of plywood up seven flights of stairs. He had to take one week off work and re- ceived benefits while receiving massage therapy. He was able to return to his regular hours and duties once the pain subsided. However, a couple of months later, on Sept. 22, 2014, the worker was on a construction site where a house was being built. The work- er was building wooden steps for the home. He bent over to pick up a piece of wood that was about three feet long and eight inches wide and felt a sharp pain in his lower back. His legs gave way and he fell to the ground. He was later diagnosed with a disc herniation in his lower spine. The worker briefly tried to return to work with modified duties, but the employer had no modified work that suited his restrictions, so he had to stay off work while receiving loss-of- earnings benefits. The worker began retraining in February 2015 for computers and resume writing. The Ontar- io Workplace Safety and Insur- ance Board (WSIB) determined a suitable occupation for him was light duty assembler, but by May 2015 the worker still had constant low back pain when he had to stand for a prolonged pe- riod of time and handled materi- als. He didn't have pain radiating down his leg anymore but was considered a high risk for re-in- jury if he returned to working a physically demanding job. The worker found a part- time job as a light assembler and moved to a full-time position in September. He still received partial loss-of-earnings benefits as his wages were significantly lower than his pre-injury em- ployment. Previous accidents a factor in new injury: Employer The worker's employer learned of the worker's 2010 motor ve- hicle accident and his resulting injuries, as well as his previous workers' compensation claims, so it requested 100 per cent relief from the WSIB's second injury and enhancement fund (SIEF) – a fund meant to assist employ- ers with workers' compensation costs when a workplace accident is at least partially caused or re- covery delayed by a pre-existing condition. A WSIB case manager re- jected the employer's request, finding there was no evidence to support that a pre-existing con- dition caused or contributed to the worker's injury. The employ- er appealed the decision. The appeals services branch recognized that the worker had previous instances of low back pain, but the worker had indicat- ed he had fully recovered each time and returned to regular work duties. In addition, none of the medical professionals who had treated the worker indicated the degenerative changes in the worker's back had impacted his recovery. The employer's appeal was denied. The employer appealed once again, this time reducing its claim to 90 per cent relief of its costs from the SIEF. The tribunal noted that WSIB policy defined a pre-accident disability as "a condition which has produced periods of disabili- ty in the past requiring treatment and disrupting employment," and a pre-existing condition was "an underlying or asymptomatic condition which only becomes manifest post-accident." The tribunal looked at a Sep- tember 2015 x-ray that showed no fracture or acute bony ab- normality in the worker's spine and an October 2015 MRI that showed no issues with his lum- bar spinal alignment or soft tis- sues, with the disc protrusion from his herniation impinging a nerve root. The tribunal found that the worker experienced back pain and lost time at work in both 2006 and 2014, and obtained medical treatment for both. This met the WSIB's definition of a pre-existing disability. The tribunal also found that the worker's September 2014 disc herniation — experienced after carrying a piece of wood that wasn't that heavy — could not be expected to result from that kind of activity if there was no pre-existing disability. The worker also indicated that he felt a twinge about 10 minutes before the injury when he was bent over screwing nails into the stairs — something that also shouldn't contribute to a disc herniation without a pre-exist- ing condition, said the tribunal. The tribunal found the worker's pre-existing condition at least contributed to, if not caused, the worker's injury and the employer was entitled to SIEF relief. It determined that the accident was minor in sever- ity as the worker wasn't doing anything too strenuous when the injury happened. However, the worker's pre-existing dis- ability made him more liable to develop a more severe disability with more injuries, so the pre- existing disability was major in severity, said the tribunal. The tribunal found the em- ployer was entitled to 90 per cent relief with the combination of a minor accident and a major pre- existing condition. The WSIB was ordered to make a retroac- tive adjustment to the employ- er's account. For more information see: • Decision No. 2398/17, 2017 CarswellOnt 13947 (Ont. Workplace Safety & Insurance Appeals Trib.). Credit: Shutterstock/Pop Paul-Catalin

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