Workers’ compensation benefits for missed return-to-work period

Benefits ended even though worker didn’t return to work as expected; Workplace accident didn’t cause condition but definitely aggravated it

An Ontario worker has won an appeal for workers’ compensation benefits for a period following a back injury when couldn’t return to work by the expected date and benefits were discontinued.

The 66-year-old worker was employed as a full-time labourer and delivery driver for a company that sold wholesale appliances since 2008. On Oct. 18, 2013, the then-61-year-old worker was bending over to place a dolly underneath a freezer when he injured his lower back. He sought medical treatment and was diagnosed with a lumbar strain.

Two weeks after the workplace injury, on Oct. 31, the worker underwent an x-ray of his lumbar spine. The x-ray revealed mild degenerative changes but no significant or traumatic injuries.

However, less than a month later on Nov. 19, the worker had a CT scan of his lumbar spine. This scan showed the worker had a significant disc bulge in his lower back and adjacent minor compression of the spinal canal and nerve root.

The worker was off work after the injury and his symptoms persisted for several months. The Ontario Workplace Safety and Insurance Board (WSIB) granted him workers’ compensation benefits and referred him for an evaluation by an orthopaedic specialist and occupational therapist. They diagnosed sciatica that prevented him from returning to work for some time and recommended a six-week program of active therapy followed by a graduated return-to-work program.

However, in late January 2014, a return-to-work specialist assessed that a return-to-work plan with the wholesale appliance company wasn’t possible because no suitable work could be identified. The following month, a WSIB medical consultant determined that the CT scan showed degenerative changes that weren’t compatible with the mechanism of the workplace injury and the worker’s back strain likely aggravated his underlying condition. The WSIB determined the worker should be able to return to work by April 24 and granted entitlement to benefits until that date.

However, the worker didn’t return to work until May 26, when he started performing modified duties such as sweeping and picking up garbage. He underwent another CT scan in early May that indicated similar degenerative changes to his spine but nothing significantly different from the first scan.

Modified duties didn’t work

The worker worked for about three weeks until June 18, when he experienced significantly greater pain in his lower back while bending over to pick up garbage. He had to go off work again and the WSIB granted him loss-of-earnings benefits due to a recurrence of his workplace injury as of that date.

The worker sought entitlement to benefits during the period he had tried to come back to work, which were denied by the WSIB and an appeals resolution officer. The officer found that the worker’s “underlying lumbar spine findings are not compatible” with the workplace accident causing disablement, but noted that the WSIB medical consultant felt that the worker’s back strain likely aggravated the underlying condition and contributed to the back pain and sciatica.

The worker appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal and attended a WSIB back and neck clinic, where he was diagnosed with a lumbar strain and a small disc herniation. The clinic recommended therapy and a reassessment if he couldn’t return to work.

In December, the appliance company confirmed it couldn’t provide suitable modified work on a permanent basis, so the worker was referred to work transition services. He was enrolled in academic upgrading for a suitable occupation of electronics assemblers, fabricators, inspectors and testers.

The WSIB granted the worker a non-economic loss award of 5.25 per cent for residual impairment of his lumbar spine, but the worker felt his injury warranted more. He appealed and an appeals resolution officer determined the worker’s pre-existing degenerative changes contributed to his lower back impairment, but were of moderate severity. The officer increased the worker’s non-economic loss award to 14 per cent, but he still didn’t receive benefits for the period when he tried to return work in 2014.

In early 2016, the work transition services were closed and the worker returned to work with the wholesale appliance company, but at a wage loss due to modified duties. The WSIB granted him partial loss-of-earnings benefits to make up the difference between his new wages and his pre-accident earnings.

The tribunal found that the various medical reports indicated that the worker’s symptoms were worse after the workplace accident and the appeals resolution officer agreed with the fact the accident aggravated the worker’s condition. The tribunal noted that the worker didn’t experience any back pain prior to the workplace accident, but afterwards suffered from persistent pain and episodes of sciatica.

Condition aggravated by workplace injury

The tribunal noted that the WSIB medical consultant’s findings — which the appeals resolution officer used in his decision — found the worker’s condition wasn’t compatible with the mechanism of injury, but the back strain suffered at work likely aggravated that condition. This was enough to warrant entitlement to benefits for aggravation of the worker’s underlying degenerative condition, said the tribunal.

The tribunal found that the worker was not capable of returning to work on April 24, 2014, the date that was recommended by the WSIB medical assessment, and the appliance company didn’t have modified duties until the worker actually returned on May 26, 2014. As a result, the worker was entitled to loss-of-earnings benefits from the time he stopped receiving benefits on April 24, 2014, and the date he stopped working because of his recurrence of back pain on June 18, 2014, less  any employment earnings for that period.

For more information see:

Decision No. 1517/18, 2018 CarswellOnt 19440 (Ont. Workplace Safety & Appeals Trib.).

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