Canadian Safety Reporter - sample

11 Canadian HR Reporter, a Thomson Reuters business 2018 News | April 2018 | CSR eight weeks followed by wearing elastics for four to six weeks — and the chances of improvement were only 50 per cent. The worker's doctor report- ed to the WCB in December 1974 that the worker's jaw pain continued and "if no surgery deemed possible there is no other treatment for this. Patient seems to want a cash settlement for his disability." In January 1975, the worker was assessed for a permanent disability. However, the doctor found the worker wasn't limited in opening his mouth, he could eat normally, could move his neck fully and without pain, and was capable of performing his regular job duties. Other than some tenderness in his mandi- ble and a scar on his chin, there were no limitations. The doctor could not recommend an award for permanent disability, so the WCB denied the claim. The worker objected and went for another medical assessment in April 1975, but the result was the same: his disability was deemed insufficient to warrant compensation for a permanent disability. In March 1983, the worker's family doctor referred him to a plastic surgeon for an adjustment of his teeth so they met properly with the hope that would reduce or eliminate his jaw pain. The worker didn't think his teeth were the source of his pain, but another medical assessment determined he had temporomandibular joint (TMJ) dysfunction and could benefit from TMJ therapy. How- ever, when the doctor explained the TMJ treatment plan to him, the worker said he wasn't inter- ested in treatment but rather in compensation for his injury. Still complaining of jaw dis- comfort, the worker was referred to another oral surgeon in May 1986, but the surgeon found the worker's occlusion and other is- sues within normal limits and surgery wasn't necessary. The surgeon suggested that the work- er's discomfort may be due to "clenching firmly during heavy labour movements" at work and suggested a jaw guard that could decompress pressure on the mandibular joint. Worker still had pain 15 years later, but not disabled In 1987, the worker, now 41, asked the WCB to consider him for a pension with regard to his jaw pain. A WCB medical advi- sor found there was "no assess- able residual disability evident" and a claims adjudicator denied the worker's request for an- other permanent disability as- sessment. The worker's doctor followed this up with a letter to the WCB stating that the worker continued to experience symp- toms of clicking and pain in his TMJ and suggested another con- sultant assess the worker for a permanent disability award. The WCB relented, but the consul- tant agreed there was no basis for such an award. In 1989, the worker left his employer and started his own excavating business. The move wasn't related to his injury, but rather a desire to become self- employed. He had one employee and the two of them operated the company's two trucks and back- hoe on jobs. In 2004, the 58-year-old work- er informed the WCB's succes- sor, the Workplace Safety and Insurance Board (WSIB), that he still sought compensation. His dentist sent a report indi- cating the worker had a painful jaw when eating, his TMJ clicked during opening of his mouth, his mandible deviated to the left when opened, and his maximum mouth opening was limited due to pain. The WSIB sought the opinion of an oral surgeon, who said the dentist's report indicat- ed possible TMJ dysfunction but it didn't "necessarily mean that by extension, he has a significant function deficit of significant and sufficient magnitude that restricts his ability to masticate, eat, and speak." Denied yet again, the worker took his case to the Workplace Safety and Insurance Appeals Tribunal for one last attempt for permanent disability compensa- tion. Though he didn't miss any time from work due to pain in his TMJ, he said he didn't take much time off for any illness or medical issues such as colds or the flu either. He didn't take pre- scribed medication for his jaw, but sometimes had to take Tyle- nol. He insisted, however, that he continued to have problems with his jaw and he had been left with a residual impairment from his 1972 workplace injury. The tribunal referred to the WSIB's policy document on de- gree of disability, which stated that when residual impairment continued through the "maxi- mum medical recovery," the WSIB should undertake a per- manent disability evaluation. The minimum permanent im- pairment award was 0.4 percent — any residual impairment es- timated to be below that figure was not considered an impair- ment of earning ability. The tribunal found that the worker had been examined and assessed "on numerous occa- sions since his accident in 1972" and at no time was there found to be permanent impairment. Though there was some discom- fort, pain, and misalignment in his TMJ, there was no notable hindering of his ability to eat normally or open his mouth, nor any effect on his ability to work. The tribunal also noted that in the American Medical Associa- tion guide for degree of disability — used for pre-1985 injuries in Ontario — the minimum per- centage of impairment given for "mastication and deglutition" re- quired a diet limited to semi-sol- id or soft foods. This wasn't the case for the worker, who could eat regular foods. The tribunal also found that the worker refused to pursue surgery or other non-surgical options identified by his doctors, who noted that the worker was focused on financial compensa- tion for his injury. "In these circumstances, while we recognize that the workplace accident has left the worker with a TMJ dysfunction, we do not find that the worker has suffered a function impairment as con- templated by the (Ontario Work- place Safety and Insurance Act); he returned to the same kind of work as he was doing prior to the accident; he subsequently missed no work as a result of his condition; he has gone on to build his own business in the same field; he is able to talk; there is no evidence of any difficulty with saliva management; there is no obvious facial deformity; he continues to eat the same kinds of meals as he did before the ac- cident," said the tribunal in dis- missing the worker's claim for a permanent disability award. For more information see: • Decision No. 1424/07, 2007 CarswellOnt 11880 (Ont. Workplace Safety and Insurance Appeals Trib.). Medical opinions didn't support claim of permanent disability Jaw injury < pg. 3 Credit: Shutterstock/graphbottles

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