Worker had degenerative condition and previous back injuries, but was able to perform regular duties before workplace accident
A worker with pre-existing degenerative changes in his back may still be entitled to a permanent impairment award if a workplace injury is likely to have worsened the condition and the worker had been able to perform regular duties before the injury. This was the reasoning of the Ontario Workplace Safety and Appeals Tribunal when it overturned a denial of such an award by the province’s workers’ compensation board.
The 59-year-old worker worked as a flooring installer with more than 20 years of experience. In 2005, he received workers’ compensation benefits for a back injury and the following year he was off work, receiving additional benefits for a similar injury. He underwent chiropractic treatment on his back and eventually began wearing a back brace. Though he continued to wear the back brace, he was able to return to regular work as a flooring installer.
The worker saw a physiatrist in October 2010, who reported that worker was experiencing some discomfort in his lower back — “same old, same old,” according to the worker — but it wasn’t debilitating.
The worker was hired by the accident employer in 2011, where he continued doing floor installation work — including heavy lifting — without any ongoing issues or medical treatment.
On Aug. 31, 2015, the worker tried to lift two buckets full of cement — each weighing 60 pounds. The worker injured his back in the process and was diagnosed with a low back strain and suffering from back spasms. His family doctor provided a list of restrictions on what the worker could do, including no stooping, bending, lifting, working on the floor, climbing ladders, operating forklifts, and no repetitive activities.
MRI reveals extent of injury
However, the worker had an MRI on Sept. 21, three weeks after his workplace accident, that showed multi-level disc bulges and a disc herniation as well as degenerative changes throughout the lumbar spine. The worker applied for and received workers’ compensation benefits for the injury until Nov. 12, which the Ontario Workplace Safety and Insurance Board (WSIB) determined was the date the worker’s injury reached full recovery and he was able to perform his regular duties again. The WSIB agreed the worker had an ongoing impairment in his back, but it was due to his pre-existing disability stemming from his prior back problems.
The worker appealed the WSIB’s determination that he was entitled only to limited benefits and his impairment was tied to an aggravation of his pre-existing condition that happened in the Aug. 2015 workplace accident. An appeals resolution officer upheld the decision, so the worker took his claim to the tribunal.
The tribunal agreed with the findings that the worker had pre-existing degenerative changes in his back that contributed to occasional back problems over the worker’s career. However, it pointed out that these problems didn’t prevent the worker from performing his normal duties as a flooring installer. The worker hadn’t missed any work or had to go on modified work in his four years with the accident employer and had been injury-free for nine years before the 2015 accident.
The tribunal noted that there who two possibilities regarding the disc herniation in the worker’s back: the worker either herniated the disc while lifting the cement buckets, or the herniation was present at the time of the accident and the worker permanently aggravated it when he lifted the buckets. Since there was no medical evidence of a disc herniation before the 2015 accident, the tribunal favoured the idea that the work injury in some way significantly contributed to it.
The tribunal referenced the WSIB policy document on pre-existing conditions, which states that “the presence of a pre-existing condition does not necessarily mean it is a cause of the worker’s impairment or that the impairment is no longer work-related,” and found that while the worker’s degenerative changes in his back may have made a disc herniation more likely, the August 2015 accident could still have been a precipitating factor.
The tribunal found that the worker’s pre-existing condition “was occasionally troublesome but not in any ongoing and continuous fashion,” as the worker was able to perform his normal heavy work. Though he had degenerative changes in his back, the evidence was convincing enough to find that the workplace accident and resulting injury was a contributing factor to the worker’s permanent impairment afterwards.
The tribunal ordered the WSIB to conduct a non-economic loss assessment to determine the worker’s entitlement to an ongoing permanent impairment award to replace the limited benefits previously granted to the worker.
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