Worker originally denied benefits for injury suffered from slip and fall related to unsteadiness with 2 artificial legs and 1 artificial arm
An Ontario worker is entitled to additional workers’ compensation benefits for injuries sustained in a fall caused by unsteadiness in his prosthetic limbs which he had from earlier workplace injuries, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The 63-year-old worker was seriously injured in a workplace accident on Sept. 9, 1980. His injuries included severe electrical burns which resulted in him having to have both legs amputated below the knee and his left arm amputated below the elbow. The Ontario Workplace Safety and Insurance Board (WSIB) granted the worker a 100 per cent permanent disability pension, an independent living allowance, and other benefits.
In the wake of the accident, the worker was fitted with prosthetic limbs for both legs and his left arm. He was able to continue a fairly active life, raising a family and restoring cars as a hobby, while living off his permanent disability benefits. He also became involved in his wife’s delivery business.
However, the worker often had difficulty with his balance because of his three prosthetic limbs, especially if the surface upon which he was walking changed. When he slipped, he couldn’t stop himself from falling without a railing and it was easy to trip. If his balance was thrown off, it was hard for him to react, so he had to concentrate on each and every step he took.
In February 2008, the worker stepped out of his truck onto uneven ground. He slipped and fell, hurting his right arm and shoulder. He visited his doctor a few days later and was referred for an ultrasound of his shoulder. The ultrasound discovered an injury to a tendon, but no tear. The doctor reported that the worker’s amputations caused him to have difficulties with his balance and the fall may have been caused by those balance issues.
The worker applied to the WSIB for benefits from his slip and fall, claiming it was the result of his lack of balance due to his amputations and prosthetic limbs, which constituted a secondary condition arising out of his original workplace injury and therefore arose out of and in the course of employment, as required under the Ontario Workplace Safety and Insurance Act.
In January 2013, an administrative error resulted in the employee receiving a duplicate cheque of his monthly independent living allowance. The duplicate cheque had a different bill identification number from the original cheque, so the worker — who received several different benefit cheques related to his disability and health care expenses related to his prosthetic limbs — didn’t realize the error and deposited the cheque. He thought the larger amount might be to cover mistakes made in the various things covered by the payments and no explanation was provided.
An appeals resolution officer denied the worker’s claim for the secondary injury resulting from his fall but granted a partial reimbursement for the cost of a four-wheel drive option for his truck. However, a WSIB case manager deducted the amount of the January 2013 overpayment from the reimbursement.
The worker appealed both the rejection of his benefits claim and the deduction of the overpayment.
Causal link between poor balance and original injury
The tribunal noted that the WSIB’s operational policy manual had a document covering secondary conditions resulting from a work-related disability. This document stipulates that such conditions that are “causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.”
The tribunal found that the report from the worker’s doctor and the worker’s experiences living with three prosthetic limbs indicated it was difficult for the worker to control his balance and prevent himself from falling. Even if there was ice on the ground at the time of the worker’s fall, his condition made it more likely he would fall, said the tribunal.
The tribunal referred to another policy manual document that covered artificial appliances. The document considered such appliances — or prosthetics — that when worn were extensions of the body. The document went on state: “If a work-related accident or disease results in a permanent impairment requiring the worker to use an artificial appliance, any subsequent injury resulting from the malfunction of the artificial appliance being worn is deemed to be within the worker’s entitlement.”
The policy document indicated that an injury occurring outside the workplace wouldn’t warrant entitlement unless it came from the malfunction of an artificial appliance, and gave an example of a worker with an artificial leg slipping while walking as not entitled to benefits. However, it also said entitlement for a secondary condition would be accepted if there was a causal link between the condition and the work-related injury.
The tribunal found there was some ambiguity in the policy and the appeal resolution officer rejected the worker’s appeal because his injury occurred outside the workplace. However, the tribunal felt the policy should be interpreted in a way that was consistent with the “general principle that workers sustaining secondary conditions that are directly causally linked to the work-related injury are entitled to benefits to compensate for new injuries.”
In this case, the worker’s fall was not due to reasons unrelated to the workplace injury, but due to the condition he was in because of the workplace injury, said the tribunal. To find otherwise would “have a disproportionately negative impact on the workers with the most severe injuries, namely, amputations requiring prosthetic limbs.”
“In my view, a restrictive interpretation of the provision would potentially create the absurd situation that a worker with a less severe injury, such as a soft tissue injury to the right knee, may be entitled to benefits for overuse of the left knee, whereas a worker with a traumatic amputation requiring a prosthetic limb is not entitled to benefits for a fall related to lack of balance caused by the prosthetic limb,” said the tribunal.
The tribunal found that prosthetic limbs resulting from work-related injuries should be considered secondary conditions of the work-related injuries and falls that are caused by such artificial appliances should be treated as related to the original injury. The worker’s appeal was allowed and his claim for benefits from his February 2013 fall was granted.
As for the overpayment of the worker’s independent living allowance, the tribunal found there was no indication the worker could have reasonably been aware of the error. The WSIB policy manual stipulates that the WSIB does not pursue the recovery of a benefit-related debt if it’s the result of an administrative error and the recipient couldn’t reasonably have known about it. Therefore, the overpayment from the duplicated cheques was not recoverable and the WSIB should not have made a deduction from the worker’s benefit payments.
For more information see:
