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Canadian Safety Reporter
Mar 1, 2019

Permanent impairment entitlement a long time coming

Years of enduring increased symptoms and being unable to work led to eventual determination that workplace accident permanently aggravated worker’s pre-existing condition
By Jeffrey R. Smith
    
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An Ontario worker has been granted permanent impairment benefits for a pre-existing back condition — 17 years after it was determined the condition had returned to its state before a workplace accident.

The 71-year-old worker was employed as a utility gas fitter and meter installer, hired by his employer in 1985. He had a longstanding history of pain in his lower back, as well as incidents of sciatica over the course of his lifetime. However, by 2000 he claimed things had been “pretty good” with his back, with the exception of the “odd little muscle spasm” that would go away within a day. He had also suffered a right ankle fracture in November 1975 for which he had received an eight-per-cent permanent disability award. Despite his back issues, he didn’t seek medical attention and was able to perform his regular job duties.

The worker underwent a full-body bone scan in June 2000, as he had arthritis in his hands and his doctor wanted to check his other joints in order to rule out rheumatoid arthritis. The scan revealed osteoarthritis in his lumbar spine, both shoulders, right ankle, knee joints, hands, and wrists.

In October 2000, the worker began feeling some pain in his lower back and right leg because of what he felt was an uncomfortable seat in his service van. He submitted a report of injury regarding the pain and his employer eventually provided him with a different vehicle.

Workplace accident aggravated back condition

The worker continued to work for another two months until Dec. 18, 2000, when he drove his service vehicle over a large bump in the road. He immediately felt “excruciating pain” in his back and leg significantly greater than what he had been feeling previously. Soon after, he began feeling numbness in his right foot, which continued for over a year.

The worker was off work for about one month following the accident. In February 2001 he returned to work on modified duties, though his back continued to bother him. His workers’ compensation benefits were discontinued due to a doctor’s report indicating his arthritis hadn’t prolonged his healing and his condition had improved to 75 per cent.

The worker drove a service vehicle but his modified duties excluded heavy lifting and installation work, though he had to do some standing, bending, and stair climbing that aggravated his back pain. He mostly worked partial days and went home when he couldn’t tolerate the pain anymore. He also wasn’t able to partake in activities that he had done before his workplace accident, such as golfing, fishing, walking long distances, or shovelling snow.

The worker’s doctor completed a functional abilities form in October 2001 that indicated the back pain was chronic and was “most likely permanent by nature.” Another assessment in February 2002 stated the worker hadn’t improved with aggressive treatment and his symptoms were most likely permanent.

By December 2001, the worker’s back pain was at the point where he couldn’t perform even his modified duties. He stopped working and received short-term benefits for one year, then was placed on long-term disability benefits. He applied for and was granted Canada Pension Plan disability benefits in 2003. The Ontario Workplace Safety and Insurance Board (WSIB) also granted him healthcare and loss-of-earnings benefits for “an aggravation of a pre-existing condition” that was related directly to his job duties.

After the worker stopped working, his back pain lessened but didn’t completely go away. He occasionally received injections and consulted a neurosurgeon, though for several years he didn’t have a family doctor so he visited walk-in clinics. He was told by doctors that he would have to learn to live with some back pain, so he didn’t seek regular medical treatment. Usually, if his back started bothering him, he would take pain medication and rest, but his mobility was limited and he had to drive using both feet.

New treatment plan

By 2010, the worker had a family doctor who referred him for physiotherapy, massage, and acupuncture as treatment for his back. The doctor suggested the worker should receive worker’s compensation benefits to help pay for the treatment since it was related to a workplace accident. The worker also received chiropractic treatment between 2011 and 2014, but stopped going because he was told nothing could be done to improve his back pain.

In January 2010, the worker contacted the WSIB to see if it would cover his physical therapy and massages, as well as ongoing entitlement for his right ankle injury. A WSIB adjudicator advised that his file was closed and there was no ongoing entitlement from his claim without medical evidence “to support ongoing continuity directly related to the accident.” The same was said about his ankle injury entitlement, as he had already received a permanent disability award.

The worker disagreed, arguing he had a permanent low back impairment radiating into his right leg that warranted entitlement to full loss-of-earnings benefits from when he stopped working in December 2001 to May 2012, when he turned 65 years old.

The WSIB sought a medical opinion about whether the worker’s workplace injury had caused a permanent aggravation of his pre-existing back condition. A WSIB doctor found the worker had “a long-standing history of lower back pain, prior episode of sciatica, as well as generalized osteoarthritic changes” and the mechanism of the December 2000 workplace injury wasn’t significant — it was simply a jarring of the lower back while driving a work vehicle. The doctor determined that the evidence of degenerative changes that were happening before the injury and the relative minor extent of the accident didn’t support a conclusion that the permanent aggravation was related to the workplace accident. The worker’s claim for ongoing entitlement was denied. An appeals resolution officer agreed after the worker appealed.

The worker took his claim to the Ontario Workplace Safety and Insurance Appeals Tribunal, which took a different view of the worker’s circumstances. The tribunal found that it was significant that before the December 2000 workplace accident, despite the fact the worker suffered from some back pain, he was able to perform his full job duties and didn’t require medical attention. However, after the accident, he could only perform modified duties for awhile and eventually had to stop working altogether. Though the WSIB had determined the worker had no ongoing entitlement because his condition had returned to its pre-accident state when he returned to work, the reality was he worker continued to be hindered.

The medical evidence indicated the worker had arthritis and other degenerative changes before the workplace accident, but these were worse afterwards — the October 2001 and February 2002 functional abilities assessments indicated the worker’s back pain was chronic and was likely permanent.

The tribunal also noted the worker continued to suffer pain and numbness in his lower back and leg that affected his mobility and the activities he could do. It was also apparent that while the worker had a period of several years where he didn’t receive medical treatment, this was because he had been told nothing could be done and he didn’t have a family doctor — not because he wasn’t experiencing symptoms of his condition, said the tribunal.

The tribunal determined that the Dec. 18, 2000, workplace accident permanently aggravated the worker’s pre-existing osteoarthritic condition in his lower back and the worker was entitled to non-economic loss benefits for his permanent impairment. It also found the worker was entitled to loss-of-earnings benefits between 2001 and 2012 and referred the case back to the WSIB to determine the amount of those benefits.

For more information see:

Decision No. 2421/18, 2018 CarswellOnt 17238 (Ont. Workplace Safety & Insurance Appeals Trib.).
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