Worker totally disabled from liver disease caused by hepatitis C contracted during surgery for work-related injuries
An Ontario worker who contracted hepatitis C from blood transfusions he received during surgery for work-related injuries is entitled to ongoing total disability benefits because of the lasting effects of his disease, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The worker fell 20 feet while on the job in November 1979, causing multiple fractures in his leg and lower spine. He had to undergo multiple surgeries to help fix his injuries. The injuries were serious enough to affect his mobility, so he was unable to return to his pre-accident job.
The Ontario Workers’ Safety and Insurance Board (WSIB) placed the worker into vocational rehabilitation training to learn skills that would help him find new employment that he could perform with the limitations from his injuries. He attended a three-year business administration program that led to a job with a chemical company. He worked at various positions with the chemical company, eventually becoming an inventory analyst in late 1996.
In June 1990 the worker learned from doctors that he had contracted hepatitis C from blood transfusions that he had received during his surgeries. Because the disease was related to his compensable injuries, the worker received workers’ compensation for it.
In October 2004, the worker started treatment of his hepatitis C with new drugs. The treatment caused side effects that — according to the worker — drained him mentally and physically, making it difficult for him to work, so the WSIB granted him temporary total disability benefits for six months in late 2004 and early 2005, and then from April 2006 until March 2010. Early on in the second period of total disability benefits, the chemical company closed and relocated.
Worker developed liver disease
A gastroenterologist submitted a report in December 2009 stating that the worker had successfully undergone antiviral therapy for his hepatitis C. However, the disease had caused liver cirrhosis that contributed to unpredictable “lassitude and weariness” that made it “very unlikely that at this point in time this gentleman would ever be able to return to either full- or part-time work.” The doctor noted that many patients with liver cirrhosis had significant problems with listlessness and weariness, making them unable to work.
In March 2010, the WSIB — on the advice of a medical consultant who reviewed the worker’s file — determined that the worker had recovered sufficiently from his hepatitis C and related treatment that he was able to return to work. The worker disagreed, claiming he was unable to work because his weariness was so bad he could only work for 30 minutes before having to stop. He said he investigated training to be a welding inspector, but the duties were beyond his physical and mental abilities because of his injuries and condition.
The worker argued he should be entitled to special supplemental benefits under the Ontario Workers’ Safety and Insurance Act for workers whose wage loss is at least partially related to a pre-1990 work injury and are unlikely to benefit from a vocational rehabilitation plan. Such supplemental benefits are payable until the worker is eligible for benefits under the federal Old Age Security Act.
However, an appeals resolution officer dismissed the worker’s appeal, agreeing with the WSIB that the worker’s total temporary disability benefits should be discontinued and the worker wasn’t entitled to supplemental benefits, since his treatment for hepatitis C had been deemed successful.
The worker’s physiotherapist completed a functional abilities form in May 2010 that indicated the worker was unable to return to work due to his chronic knee injuries and liver disease. A second report from the gastroenterologist in October reiterated that the worker had “severe dysfunctional lassitude” that prevented him from working, and the worker’s family doctor also indicated the worker “remains unable to perform any type of work as a result of pain in his lower limbs and lassitude related to chronic liver disease.” In addition, the worker had to visit an orthopaedic specialist every three months for cortisone shots to both knees and his right hip.
The tribunal noted that temporary total disability warranting such benefits comes about when a worker is unable to earn full pre-accident wages for a certain amount of time because of the physical effects of a work-related injury and related treatment. The worker received these benefits for more than four years until March 2010.
Treating doctors agreed that worker was unable to work
The tribunal found that the worker’s physiotherapist, gastroenterologist, and family doctor were all of the opinion that the worker was unable to work due to a combination of his leg injuries and his liver cirrhosis. These opinions all carried significant weight — as they were of medical practitioners who were treating the worker — and should be treated with more priority than the WSIB’s medical consultant’s review of the worker’s file, said the tribunal. In addition, the tribunal found the worker to be “straightforward and credible” in the description of his condition and he had already been granted a permanent disability benefit of 55 per cent — the latter demonstrating that the level of permanent disability was already significant.
The tribunal also noted that the first report that the worker was totally disabled and couldn’t return to work — from the gastroenterologist in December 2009 — was issued months before the WSIB discontinued his temporary total disability benefits. Subsequent medical reports were consistent in this view, and the only dissenting one was the WSIB’s medical consultant — who wasn’t actually involved in the worker’s treatment, the tribunal said.
The tribunal found that the evidence indicated the worker was totally disabled and his temporary total disability benefits should have been continued after March 2010. In addition, the worker experienced wage loss because of his ongoing knee pain and the effects of his liver disease, which were related to his compensable work-related accident.
In addition, since the worker was totally disabled, he was unlikely to benefit from more vocational training and therefore was entitled to the supplemental benefits for workers with such conditions from pre-1990 injuries. The WSIB was ordered to pay the worker continuing total disability benefits and supplemental benefits until he was eligible for old age security payments.
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