Canadian Safety Reporter - sample

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | May 2018 | News Workplace injury aggravated pre-existing back condition: Tribunal Worker had degenerative condition and previous back injuries, but was able to perform regular duties before workplace accident BY JEFFREY R. SMITH A WORKER with pre-existing degenerative changes in his back may still be entitled to a per- manent impairment award if a workplace injury is likely to have worsened the condition and the worker had been able to perform regular duties before the injury. This was the reasoning of the Ontario Workplace Safety and Appeals Tribunal when it over- turned a denial of such an award by the province's workers' com- pensation board. The 59-year-old worker worked as a flooring installer with more than 20 years of ex- perience. In 2005, he received workers' compensation ben- efits for a back injury and the following year he was off work, receiving additional benefits for a similar injury. He underwent chiropractic treatment on his back and eventually began wear- ing a back brace. Though he con- tinued to wear the back brace, he was able to return to regular work as a flooring installer. The worker saw a physiatrist in October 2010, who reported that worker was experiencing some discomfort in his lower back — "same old, same old," ac- cording to the worker — but it wasn't debilitating. The worker was hired by the accident employer in 2011, where he continued doing floor installa- tion work — including heavy lift- ing — without any ongoing issues or medical treatment. On Aug. 31, 2015, the worker tried to lift two buckets full of cement — each weighing 60 pounds. The worker injured his back in the process and was diag- nosed with a low back strain and suffering from back spasms. His family doctor provided a list of restrictions on what the worker could do, including no stooping, bending, lifting, working on the floor, climbing ladders, operat- ing forklifts, and no repetitive activities. MRI reveals extent of injury However, the worker had an MRI on Sept. 21, three weeks after his workplace accident, that showed multi-level disc bulges and a disc herniation as well as degen- erative changes throughout the lumbar spine. The worker ap- plied for and received workers' compensation benefits for the injury until Nov. 12, which the Ontario Workplace Safety and Insurance Board (WSIB) deter- mined was the date the worker's injury reached full recovery and he was able to perform his regular duties again. The WSIB agreed the worker had an ongo- ing impairment in his back, but it was due to his pre-existing dis- ability stemming from his prior back problems. The worker appealed the WSIB's determination that he was entitled only to limited ben- efits and his impairment was tied to an aggravation of his pre-ex- isting condition that happened in the Aug. 2015 workplace ac- cident. An appeals resolution officer upheld the decision, so the worker took his claim to the tribunal. The tribunal agreed with the findings that the worker had pre-existing degenerative changes in his back that con- tributed to occasional back problems over the worker's ca- reer. However, it pointed out that these problems didn't pre- vent the worker from perform- ing his normal duties as a floor- ing installer. The worker hadn't missed any work or had to go on modified work in his four years with the accident employer and had been injury-free for nine years before the 2015 accident. The tribunal noted that there who two possibilities regard- ing the disc herniation in the worker's back: the worker either herniated the disc while lifting the cement buckets, or the her- niation was present at the time of the accident and the worker permanently aggravated it when he lifted the buckets. Since there was no medical evidence of a disc herniation before the 2015 accident, the tribunal favoured the idea that the work injury in some way significantly contrib- uted to it. The tribunal referenced the WSIB policy document on pre-existing conditions, which states that "the presence of a pre-existing condition does not necessarily mean it is a cause of the worker's impairment or that the impairment is no longer work-related," and found that while the worker's degenerative changes in his back may have made a disc herniation more likely, the August 2015 accident could still have been a precipi- tating factor. The tribunal found that the worker's pre-existing condition "was occasionally troublesome but not in any ongoing and con- tinuous fashion," as the worker was able to perform his normal heavy work. Though he had de- generative changes in his back, the evidence was convincing enough to find that the work- place accident and resulting in- jury was a contributing factor to the worker's permanent impair- ment afterwards. The tribunal ordered the WSIB to conduct a non-eco- nomic loss assessment to deter- mine the worker's entitlement to an ongoing permanent impair- ment award to replace the lim- ited benefits previously granted to the worker. For more information see: • Decision No. 3007/17, 2018 CarswellOnt 3889 (Ont. Workplace Safety and Insurance Appeals Trib.). Credit: Shutterstock/ Sever180

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