Jaw injury not a permanent disability more than 30 years later

An Ontario worker who pursued a permanent disability award following a workplace injury to his jaw has come up empty after more than three decades of claims after the province’s Workplace Safety and Appeals Tribunal found the worker’s ability to work and function wasn’t impaired enough to warrant an award for disablement.

The worker was employed with an Ontario paving company in the position of foreman. On Nov. 17, 1972, the then 26-year-old worker was working with a dump truck that started malfunctioning. The truck’s box was raised and the worker looked down through the frame to see if he could identify the problem. However, while was looking, the truck’s box came down on his head, pinning him between the box and the truck’s frame.

The worker’s brother was with him and raised the truck’s box quickly. However, the worker lost consciousness and fell to the ground once he was released from being pinned.

The worker was taken to a hospital, where he was diagnosed with a fractured left mandible and neck swelling. He remained in hospital for about two weeks and received outpatient care and physiotherapy after he was released. He received workers’ compensation benefits until he returned to work in his pre-injury position at the paving company on March 19, 1973.

Ten days after he returned to work, the worker informed the Ontario Workers’ Compensation Board (WCB) that, even though he was able to work, he still suffered from a disability as he couldn’t chew his food properly because of his jaw injury and it was still sore. A medical assessment in March 1973 found some limitation in movement in the worker’s jaw, but there was a “satisfactory range of opening and closing his mouth.” The doctor reported that the worker was capable of returning to work, but should see a dentist regarding “a slight mal-alignment of his teeth.”

Worker refused surgical option

Over the next year, the worker continued to complain of discomfort and the alignment of his teeth and saw various doctors, dentists, and an oral surgeon. The oral surgeon observed that the worker’s jaw shifted to the left when opened and he had “post-traumatic” pain. The surgeon suggested surgery to correct the condition, but the worker refused because his jaws would be wired shut for six to 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 reported 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 mandible 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. However, when the doctor explained the TMJ treatment plan to him, the worker said he wasn’t interested in treatment but rather in compensation for his injury.

Still complaining of jaw discomfort, the worker was referred to another oral surgeon in May 1986, but the surgeon found the worker’s occlusion and other issues within normal limits and surgery wasn’t necessary. The surgeon suggested that the worker’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 advisor found there was “no assessable residual disability evident” and a claims adjudicator denied the worker’s request for another permanent disability assessment. The worker’s doctor followed this up with a letter to the WCB stating that the worker continued to experience symptoms of clicking and pain in his TMJ and suggested another consultant assess the worker for a permanent disability award. The WCB relented, but the consultant 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 backhoe on jobs.

In 2004, the 58-year-old worker informed the WCB’s successor, the Workplace Safety and Insurance Board (WSIB), that he still sought compensation. His dentist sent a report indicating 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 indicated 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 compensation. 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 prescribed medication for his jaw, but sometimes had to take Tylenol. 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 degree of disability, which stated that when residual impairment continued through the “maximum medical recovery,” the WSIB should undertake a permanent disability evaluation. The minimum permanent impairment award was 0.4 percent — any residual impairment estimated to be below that figure was not considered an impairment of earning ability.

The tribunal found that the worker had been examined and assessed “on numerous occasions since his accident in 1972” and at no time was there found to be permanent impairment. Though there was some discomfort, 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 Association guide for degree of disability — used for pre-1985 injuries in Ontario — the minimum percentage of impairment given for “mastication and deglutition” required a diet limited to semi-solid 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 compensation 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 contemplated by the (Ontario Workplace 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 accident,” said the tribunal in dismissing the worker’s claim for a permanent disability award.

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