Canadian Safety Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | April 2018 | News Pre-existing back condition doesn't preclude benefits after accident Osteoporosis left worker more vulnerable to fractures but was stable before workplace injury; unable to work after accident BY JEFFREY R. SMITH AN ONTARIO worker has won his appeal for workers' compen- sation benefits for a back injury sustained after a fall at work, de- spite the fact the worker had a pre-existing condition that in- creased the likelihood of such an injury. The 63-year-old worker was employed as a cook in an On- tario restaurant and had worked as a cook for various employers since 1976. His experience as a cook included several years as a self-employed chip truck owner where he worked 12 to 14 hours per day from mid-April to mid- October and supplemented his income at the restaurant. He later began working full-time at the restaurant. The worker occasionally ex- perienced back pain from being on his feet all day, but the pain was taken care of with regular massages and Tylenol. As a re- sult, he was able to perform his full duties without having to take any time off work or work on modified duties at any time. The worker's rheumatologist re- ported in January 2014 that the worker was stable and he took vitamin D daily. A bone density test in June 2014 indicated his spine and hips had no significant decrease in bone density since a test two years earlier and his fracture risk was low. On July 8, 2014, the worker, then 59, slipped on a wet floor in the kitchen as he stepped out of a walk-in freezer. He fell and landed on his back. The worker reported the accident to his employer immediately, but he initially seemed to be fine. He continued to work that day and didn't miss any time in the short term. Pain came later However, the worker soon began to experience significant back pain so on July 31, he sought medical attention and his back was x-rayed. The x-rays revealed that the worker had multiple compression fractures to his thoracic spine. He also had pre- existing osteoporosis and pre- existing compression fractures. The worker continued at his job for a little while longer, but in September 2014 he had to go on leave due to back pain. He applied for workers' compensa- tion benefits, but the Ontario Workplace Safety and Insurance Board (WSIB) denied him en- titlement, finding the worker's pre-existing back conditions were likely a cause of his pain and a separate injury stemming from the workplace accident wasn't established. The worker ap- pealed, but an appeals resolution officer agreed with the WSIB's analysis. The worker appealed again to the tribunal, arguing he had been fine before the workplace accident, and it was that accident that aggravated his condition and made him unable to work. The tribunal noted that an accident warranting entitle- ment to benefits was defined by the Ontario Workplace Safety and Insurance Act as a wilful and intentional act by someone other than the worker, a chance event, or disablement arising out of and in the course of employ- ment. This didn't apply to an in- jury by disablement. In addition, the WSIB had an operational policy document that defined "accident" as an unintended or chance event and "disablement" as a gradually-emerging condi- tion or an unexpected result of working duties. Workplace accident a contributing factor The tribunal found that there was no doubt in light of the med- ical evidence that the worker had a pre-existing condition of osteoporosis — a condition that made him more vulnerable to spinal fractures. However, the medical evidence indicated that the worker's condition was sta- ble and he didn't have any signifi- cant symptoms that affected his ability to work prior to the slip and fall in July 2014. He wasn't receiving regular medical treat- ment and only took Tylenol or similar medication if he felt pain. The worker also found that the worker immediately report- ed the accident to his employer, and he waited three weeks be- fore seeking medical attention because he didn't experience any significant symptoms before that time. He also returned to work after his diagnosis of compres- sion fractures and "persevered" for a couple of months before he couldn't take the pain any longer and took time off in September 2014, said the tribunal. The tribunal determined that although the worker had a pre- existing condition in his back, it didn't affect his ability to work and it was the workplace acci- dent that injured him to the point where he wasn't able to work. The injury from the accident was "a significant contributing factor to the worker's increased symptoms" and the worker's in- ability to return to his pre-injury job after an attempt to, said the tribunal in allowing the worker's appeal and awarding him initial entitlement for his back injury. For more information see: • Decision No. 3754/17, 2018 CarswellOnt 2596 (Ont. Workplace Safety and Appeals Trib.). Credit: Shutterstock/REDPIXEL.PL

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