Pain was a recurrence of old workplace injury, but it wasn’t enough to render him incapable of working in some capacity
A New Brunswick worker who suffered pain related to a previous workplace injury is not entitled to workers’ compensation benefits because he was still capable of working with restrictions, the New Brunswick Court of Appeal has ruled.
Glendon Russell was a letter carrier for Canada Post hired in 1971. He suffered a serious shoulder muscle sprain leading to chronic myofascial pain syndrome —where pressure on certain points of the muscle cause seemingly unrelated pain elsewhere — when he fell through a porch while delivering mail in 1992.
Russell was off work for six years and received workers’ compensation benefits for his injury. He eventually was able to return to work in 1998 and Canada Post treated him as having a permanent partial disability. The corporation accommodated him by providing a right-hand drive van in which he could deliver mail on a specific route. Russell delivered mail with the van for the next 14 years without reporting any problems related to his injuries.
In 2012, Canada Post replaced the right-hand drive van with a new left-hand drive van. Russell expressed concern to Canada Post’s disability benefits provider about the phasing out of right-hand drive vehicles during discussions on scheduling a permanent partial disability assessment, which was delayed because Russell didn’t have a family doctor at the time.
The benefits provider reported Russell’s concerns to Canada Post, but Canada Post didn’t consider a right-hand drive van necessary as its records showed only restrictions on walking, lifting and carrying. It believed that when Russell had requested the route where he could use the right-hand drive van, he was self-accommodating and the corporation went along with it.
Russell tried working his route with the new vehicle and was able to complete the route, though it took longer. However, Canada Post installed a rack for holding mail in the front passenger seat area of the van, which made it even more difficult for him. With the rack installed, Russell had to frequently lift above his shoulder, which caused increased pain in his shoulder.
Russell told his supervisors that the new van and its configuration exacerbated the pain he had from his old injuries. After working with the new van for one month, Russell went on a week-long vacation.
Doctor placed worker off work until assessment
During his vacation, Russell had an introductory appointment with his new family doctor. He explained the history of his injury to the doctor and mentioned he had a permanent partial disability assessment scheduled for January 2013 with Canada Post’s disability management provider. His doctor decided to put Russell off work for two months until the assessment was completed and the extent of Russell’s disability and necessary accommodation could be determined.
Russell informed the benefits provider that he was off work because of difficulties he had with the change in vehicles and he was provided with short-term disability benefits. He had the assessment and a functional capacity evaluation on Jan. 31 and Feb. 1, 2013. The result of the evaluation was that he was capable of performing general work tasks at the “sedentary physical demand level, nearing the light physical demand level.” He remained off work with depression, anxiety, and insomnia.
When Russell’s short-term disability benefits ran out at the end of February, he was advised to apply for long-term disability benefits. However, the benefits provider — different from the disability benefits provider — denied his claim.
Russell then applied for workers’ compensation benefits but Canada Post challenged the claim, telling the New Brunswick Workplace, Health, Safety and Compensation Commission (WHSC) that he had been put off work by his doctor due to a “non-occupational condition.” The corporation said Russell didn’t report a specific incident and therefore didn’t believe the injury arose out of and in the course of employment. It referred to the report of Russell’s doctor that stated Russell had myofascial pain syndrome from a recurrence of symptoms after change in equipment.
The WHSC denied Russell’s claim, noting that Russell didn’t complain of any ongoing pain or discomfort, nor did he report a specific workplace incident. Given he was able to perform his job with the new van until he went on vacation in November 2012, the WHSC determined he wasn’t disabled and he was placed off work for non-occupational reasons.
Worker capable of work in some capacity: Tribunal
Russell appealed to the WHSC appeals tribunal, which dismissed his appeal in a split decision, finding there was no objective medical evidence showing Russell’s functions had changed since the original injury. In addition, Russell said that he was willing to return to work if Canada Post accommodated his restrictions, leading the tribunal to determine he was capable of work and not entitled to workers’ compensation benefits. Russell appealed that decision to the New Brunswick Court of Appeal.
The court found that Russell was put off work because his original injury was aggravated by delivering mail in the new vehicle. Though he worked with the new van for one month before going on vacation and subsequently being put off work, Russell informed Canada Post that using the new van caused him pain and difficulties. His doctor only put him off work when he explained the pain and difficulties to his physician, and this was only intended to be until he had his assessment, said the court.
The court also found that Canada Post and the disability benefits provider both knew by the time of the assessment that Russell was not claiming to be off due to a non-occupational injury but rather due to his 1992 injury and the upcoming assessment. In addition, they could not point to the fact he waited six months to apply for workers’ compensation benefits as suspicious, since he was receiving short-term disability benefits and believed the assessment would assist his return to work.
The court looked to the WHSC policy on recurrences, which defined them as return or reactivation of the original compensable injury, without a new incident. While it found there was no doubt Russell suffered pain related to his 1992 injury after the change in vehicles, the court agreed with the appeals tribunal that Russell’s condition did not disable him and cause him to lose time at work.
The court pointed out that Russell had indicated he was willing to return to work immediately if he could use a right-hand vehicle or have some other accommodation. This was evidence he was capable of work in some capacity and not disabled. In addition, Canada Post had positions that were often used to accommodate postal workers who had injuries preventing them from working in their regular jobs — if Russell came back to work they could examine the possibility of placing him in such a position.
The court ruled Russell’s absence from work was not due to the recurrence of his original work injury and dismissed the appeal.
For more information see:
• Russell v. New Brunswick (Workplace Health, Safety and Compensation Commission), 2016 CarswellNB 206 (N.B. C.A.).
