Worker was diagnosed with herniated disc in back several months after fall at work, but there was no medical evidence it arose from the accident
An Ontario worker has been unsuccessful in getting workers’ compensation benefits for the recovery period following surgery to repair a herniated disc the worker claimed was caused by a workplace injury.
The 58-year-old worker was an overnight stocker at a retail store since September 2006. Her job duties involved restocking shelves in the store during the nighttime hours while the store was closed, including “facing” the product — moving product from the back to the front of the shelf. When moving product from storage in the back of the store to the retail area, the worker used a machine designed to help carry heavy skids of product.
In December 2008, the worker was trying to move a product skid that had become stuck. She lost her balance and fell backwards, hitting her back on a display case of batteries. The worker went to see her doctor immediately for treatment and reported the accident to her employer.
The worker was off work for about one month and applied for workers’ compensation benefits. The Ontario Workers’ Compensation Board approved her claim for medical care only. Her doctor indicated she could return to work with restrictions on bending, lifting, working overhead, and climbing ladders. When the worker returned to work in January 2009, the store put her on modified duties and provided her with an assistant to stock the lower and higher shelves that she couldn’t reach due to her bending and lifting restrictions.
Second accident followed herniated disc diagnosis
The worker was still complaining of ongoing pain in July 2009, so her family doctor ordered an MRI. The MRI revealed a large disc protrusion in her back.
Two months later, in September, the worker slipped on a tube of either eyeliner or lipstick that was lying on the floor. According to the worker, this caused her to “fly up in the air and fall directly onto her back.” The worker reported the second accident to her employer and applied to the WSIB, which granted her medical care benefits only once again.
Following this second accident, the worker again returned to work on modified duties, this time using a rolling chair to perform assigned duties involving affixing security tags to product. She was unable to work above her shoulders or bend over.
A second MRI in November 2010 showed the same disc herniation in the worker’s back, but it had become larger.
The worker continued to work with modified duties until September 2011, when she underwent surgery to correct the protruding disc in her back. Recovery required her to take four months off work.
The worker applied for workers’ compensation benefits for the recovery time from the surgery, claiming the purpose of the operation was to correct an injury suffered in the December 2008 workplace accident and aggravated in the September 2011 workplace accident. Her family doctor provided a report dated June 20, 2011 — three months before the surgery — that stated the worker had “chronic low back strain from her work accident dated back on 2008” that required medication. Her chiropractor also submitted a report that indicated he was treating her for multiple disc herniations that were revealed in her July 2009 MRI.
Both the WSIB and an appeals resolution officer denied benefits, finding there was no evidence of a causal connection between the disc herniation and the two workplace accidents. The WSIB based its decision on its policy on injury recurrences, which stated: “A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is a clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity.”
The worker appealed to the Workplace Safety and Insurance Appeals Tribunal.
The tribunal noted that the disc herniation was first observed in an MRI which was done before the second workplace accident. The worker reported back pain leading up to the MRI, but there was no medical evidence before then.
The tribunal also noted that the worker’s family doctor reported in June 2011 that the worker had a “chronic lower back strain” but made no mention of the MRIs indicating a herniated disc. There were also no medical reports linking the disc herniation to the worker’s initial workplace accident and the worker was able to perform modified duties for several months following that accident.
The tribunal found that the worker’s claim for benefits from the surgery was based on a projection that the herniated disc “must have arisen from the workplace injury,” but there was no medical evidence from her family doctor, chiropractor, or anyone else connecting the worker’s initial injury to the herniated disc. As a result, the tribunal upheld the earlier denials of benefits for the worker’s recovery from back surgery.
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