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Canadian Safety Reporter
Sep 4, 2018

Partial permanent impairment not a recurrence of injury

Worker claimed additional entitlement after taking time off from new job due to knee problems, but he already had received an award for partial impairment
By Jeffrey R. Smith
    
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An Ontario worker who had ongoing problems with his knee after a workplace accident that limited his abilities in a new job didn’t suffer a recurrence of the injury that deserved new entitlement, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.

The 54-year-old worker started employment as an arborist — a professional involved in the cultivation and management of trees and shrubs — in 1994. Early on in his employment, on June 28, 1994, the worker was involved in an accident while on the job — he was harnessed to a tree when an upper limb of the tree gave way and struck his left leg, while a rope tightened around his leg that had to be cut to release him. The worker was taken to hospital, where it was determined he had broken his left tibia and fibula. He underwent surgery to his left shin and leg the next day and hardware was inserted into his leg.

The worker had no previous injuries to his left leg, though he had injured his right knee before, from which he had fully recovered.

During the worker’s recovery, his employer determined that it wouldn’t be able to provide suitable modified work for him when he was able to work again. As a result, the Ontario Workplace Safety and Insurance Board (WSIB) referred the worker for vocational rehabilitation services to help him find suitable alternate employment while granting him initial entitlement for the broken bones.

In September 1995, the rehabilitation services determined that he should train for the occupation of assembler. The potential earnings for the position of assembler were less than the worker’s old job of arborist, so the WSIB granted him a future economic loss award to make up for the discrepancy. Around the same time, a medical assessment determined that the worker had a permanent impairment because of “left lower leg standard restrictions.”

However, the worker didn’t feel capable of returning to work yet, so his vocational rehabilitation plan was closed in December 1995. He remained off work through the following two years.

In November 1997, the WSIB referred the worker to labour market re-entry services, which developed a new occupational objective of certified network engineer, with a retraining program to begin in January 1998. However, the worker was unable to progress in the retraining program, so it was closed in April 1998. Five months later, the WSIB granted the worker a nine-per-cent non-economic loss award for a partial disability in his left knee, which hadn’t been able to completely recover from his injury.

Unsuccessful retraining

The worker attended some retraining and tried to return to work as a tree cutter, but was unable to do the work. He then found a job as a truck driver in 1998. He was able to continue working as a truck driver, but he could only work for so long before his left knee started swelling, which then limited his ability to perform his duties as he couldn’t press the truck’s clutch when his knee was bothering him. As a result, he switched employers several times and couldn’t work over a full year before needing to take time off. He usually received employment insurance benefits when he couldn’t work, but he still made less money than other truck drivers because he couldn’t perform the full duties of the position — his restrictions meant he couldn’t use a pump truck and he could only do jobs with “no touch freight” driving that involved no lifting, strapping, binding, or tarping the cargo.

The worker occasionally had medical procedures done on his knee, including scoping and removing fluid or granules. In 2008, he told the WSIB that he had to stop working because of his knee injury that was from the 1994 workplace accident. An MRI that same year revealed deterioration in his left knee, including “stable degenerative changes,” a “mild to moderate MCL sprain,” joint effusion, a cyst, and some degeneration in his medial meniscus. There was also evidence of arthritis.

The worker saw his doctor in February 2015 because of swelling and soreness in his knee, and was referred to a surgeon. The surgeon said nothing could be done for the knee other than possibly a replacement and he advised that the worker should consider another line of work. The worker wanted to return to work as a truck driver, but couldn’t without a knee replacement.

The worker filed a claim for entitlement to a future economic loss supplement and a higher non-economic loss award due to a permanent disability in his knee stemming from a recurrence of his original workplace injury.

The WSIB and an appeals resolution officer both rejected the worker’s claim, so he appealed to the tribunal.

The tribunal noted that in order for the worker to be entitled to benefits for a recurrence of the workplace injury, the WSIB policy on recurrences required that the deterioration must not be from a significant new incident or exposure and be clinically compatible with the original injury.

The tribunal found that the medical evidence indicated the worker had arthritis and some other degenerative changes in his knee, but these couldn’t be considered a recurrence of the original injury. The original injury for which the worker underwent surgery and received benefits involved broken bones and related conditions, which left the worker with lingering issues that affected his ability to work. However, the worker was able to work to a certain extent and didn’t need “active clinical treatment” to continue working as a truck driver.

The tribunal agreed that the worker had a partial disability due to his knee condition, but the nine-per-cent non-economic loss award he had already been granted was sufficient. It found there was no medical evidence of significant deterioration in his knee and the accommodations as a truck driver were keeping with his permanent disability. The worker’s appeal was denied.

For more information see:

Decision No. 3421/17, 2017 CarswellOnt 19876 (Ont. Workplace Safety and Appeals Trib.).
    
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