Worker denied, then wins ongoing benefits for back impairment

Medical opinions pointed to workplace accident as cause of compression fractures – except for WSIB’s medical consultant

The Ontario Workers’ Compensation and Appeals Tribunal has overturned the denial of impairment and loss-of-earnings benefits for a worker who was diagnosed with compression fractures in his back after jarring it while driving a truck.

The 60-year-old worker was a truck driver in Ontario. He occasionally experienced twinges of pain in his back, but nothing he felt was serious and over-the-counter pain medication usually took care of the problem.

In May 2014, the worker drove his truck over a sharp dip in the road, causing the truck to bounce. The air seat he was sitting in didn’t work properly, causing the worker to jolt upward abruptly, hitting his head on the truck cab’s ceiling. He then was jolted down to the bottom of the seat’s range. The worker immediately felt a sharp pain in his lower back and, after a few days where he couldn’t drive because of the pain, he sought treatment.

The worker’s family doctor reported that the worker had a contusion to the back with a possible disc herniation from the accident and referred the worker for additional assessment.

Another doctor diagnosed the worker with “sprain/strain/disc pattern directional preference” from which the worker should be able to recover within 28 days with physiotherapy and pain medication. Three weeks later, on July 30, the worker saw a physiotherapist who diagnosed a disc herniation that presented symptoms of inflammation and a reduced range of motion. The physiotherapist reported the worker was not able to bend, twist, climb, lift, kneel, operate heavy equipment, push, pull, sit, or stand, and should stay off work for at least another four weeks.

An Aug. 10 MRI revealed compression fractures of two vertebrae.

WSIB declared injury resolved

The worker was initially granted entitlement to workers’ compensation benefits for a low back strain, consisting of loss of earnings benefits. On July 14, 2014, the worker’s case manager from the Ontario Workplace Safety and Insurance Board (WSIB) determined the worker’s employer had suitable work available for him and discontinued his benefits — the employer had offered the worker a security guard position at a location more than 100 kilometres from his home, but the worker declined. About three weeks later, on Aug. 5, the case manager found the worker’s low back strain had resolved and he was able to perform is regular duties. As a result, all workers’ compensation benefits were stopped as of that date.

The WSIB medical consultant provided his opinion that “the force of the spinal impact does not seem sufficient to cause compression fractures” and “there was no evidence of decreased bone density or quality.”

However, the worker claimed two of his vertebrae were fractured in the accident and he should be entitled to ongoing entitlement for the back injury and full loss-of-earnings benefits. An appeals resolution officer denied his claim and the worker appealed to the tribunal. The worker also claimed that he continued to experience back pain and limited motion, rendering him unemployable because of his ongoing impairment.

On Aug. 26, 2014, the worker was diagnosed with osteoporosis that, in the presence of a prior fracture, would increase to severe osteoporosis.

The court found that since the worker experienced significant pain immediately after the incident and continued to have pain and reduced range of motion afterwards without interruption, it was likely the compression fractures with which he was diagnosed were the result of the May 2014 accident. It also found that the mechanism of the injury — the jolting upward and downward motion of the truck seat — was also consistent with the compression fractures.

The court noted that the WSIB’s medical consultant didn’t have the benefit of the worker’s osteoporosis diagnosis and its accompanying bone mineral density report when he provided his opinion that the accident itself shouldn’t cause the compression fractures. However, it was important to note that the worker’s family doctor was of the opinion right from the beginning that the accident caused the fractures — explaining later that the worker’s low bone density contributed to the worker’s condition but the workplace accident actually caused the fractures — and the worker hadn’t complained of back pain prior to the accident. In addition, the second doctor and physiotherapist shared that opinion.

“While the worker’s osteoporosis likely made the worker more vulnerable to injury, given the opinion of (the worker’s doctor), the compatibility with the mechanism of injury and the compression fractures diagnosed, and the continuity of severe symptomology from the accident date onward, we find that the work accident was a significant contributing factor in the worker’s compression fractures of the T12 and L1 vertebrae,” said the tribunal.

The worker also presented evidence that the fractures continued to be detected in the worker’s MRI in August 2014 as well as subsequent MRIs in March 2015 and April 2017 and he continued to suffer from symptoms. This demonstrated the injury did not resolve by Aug. 5, 2014, and the worker was entitled to ongoing entitlement beyond that date, said the tribunal.

The tribunal disagreed with the finding that the worker’s employer had available suitable work by July 14 and the injury resolved by Aug. 5, 2014. The medical reporting from all of the worker’s health providers indicated the worker couldn’t return to work at all — in fact, the physiotherapist reported on July 30 that the worker needed at least four more weeks to recover. The worker also had a note from his doctor in mid-August that said he was unable to return to work until Oct. 7, 2014.

In addition, the distance of the suitable work the employer offered from the worker’s home required a lot of driving, which was particularly difficult for someone with a back problem. The position was not only unsuitable because the worker couldn’t perform any work at the time, but especially because of the worker’s medical restrictions, said the tribunal.

The tribunal determined that the worker was entitled to benefits for his compression fractures to the spine, ongoing entitlement for a back impairment beyond Aug. 5, 2014, and full loss-of-earnings benefits from July 14, 2014, to the date of the hearing less any earnings made from seasonal work the worker performed.

For more information see:

Decision No. 2579/17, 2017 CarswellOnt 14817 (Ont. Workplace Safety & Insurance Appeals Trib.).

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