Worker Successfully Appeals Denial of Workplace Injury Benefits

Written on behalf of Peter McSherry

If you are injured on the job, it is important to report the accident to your employer and seek medical attention immediately. Taking care to ensure the injury is properly reported is essential down the line if the employer takes issue with your entitlement to disability benefits, including those provided through the Workplace Safety and Insurance Board. In a case before the Workplace Safety and Insurance Appeals Tribunal, a worker’s due diligence allowed her to receive benefits for an injury that her employer disputed.

Worker suffered back, neck, and shoulder injuries; no Non-Economic Loss granted for shoulder

The worker was employed at a nickel refinery for approximately 14 years. She was injured while bending forward and moving a large, 25-pound hose in April 2018. The Workplace Safety and Insurance Board (WSIB) granted her benefits for injuries to her upper back, neck, left shoulder, and low back.

By June 2019, the WSIB Case Manager assigned to the worker’s case declared that the worker had achieved Maximum Medical Recovery as of April 2019. The Case Manager indicated that she likely had a permanent impairment of her low back and referred her for a Non-Economic Loss assessment. The worker objected to the Case Manager’s determination. The Case Manager reconsidered and reaffirmed his position.

In October 2019, the WSIB granted the worker 14% Non-Economic Loss for “a low back annular tear at the L5-S1 level”. The worker objected on the basis that she should have a Non-Economic Loss assessment for her neck, shoulder, and back as well. The Appeals Resolution Officer partially allowed the appeal, declaring that there should be a Non-Economic Loss assessment for the worker’s upper back and neck. However, the Appeals Resolution Offer decided the worker was not entitled to a Non-Economic Loss assessment of her shoulder.

Worker entitled under legislation to Non-Economic Loss for permanent impairment

The worker appealed the issue of a Non-Economic Loss assessment for shoulder injury to the Workplace Safety and Insurance Tribunal.

At the time of the worker’s injuries, the Workplace Safety and Insurance Act, 1997 was operative in Ontario. The Act at that time provided:

13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

(2) If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

If the worker’s injury leads to permanent impairment, the worker’s entitlement extends to compensation for Non-Economic Loss. Under the Workplace Safety and Insurance Act, 1997, permanent impairment is an “impairment that continues to exist after the worker reaches maximum medical recovery.” Maximum medical recovery is reached when the worker’s recovery plateaus, and it is unlikely that there will be a significant improvement in their medical condition.

Factors to determine permanent impairment

The Workplace Safety and Insurance Board’s Operational Policy Manual (Document No. 11-01-05) states that three factors must be satisfied to conclude that a sick or injured worker has a permanent impairment:

1. They have reached maximum medical recovery for their disease or injury;
2. There is evidence of ongoing impairment; and
3. The ongoing impairment is the result of a work-related injury or disease.

Maximum medical recovery

Under the WSIB Operational Policy Manual, a worker reaches “maximum medical recovery” when there has been a plateau in their recovery process with no likelihood of any further significant improvement in the work-related injury or disease.

Ongoing impairment

Once maximum medical recovery is established, the WSIB reviews the clinical evidence to determine whether there is an ongoing impairment. The WSIB considers the following:

• a physical abnormality to be a change to or damage to a body part or organ system;
• a physical loss to be a loss of some or all of a body part or organ system;
• a functional abnormality to be a malfunction of a body part or organ system;
• a functional loss to be a loss of some or all of the functioning of a body part or organ system;
• a disfigurement to be an altered or abnormal appearance such as an alteration of colour, shape, structure, or a combination of these; and
• psychological damage to be the loss of or abnormal psychological functioning.

Type or duration of treatment is not typically considered as proof of ongoing impairment without supporting clinical evidence.

Injury/disease related to work

Finally, to determine whether an injury or disease is related to work, the WSIB considers:

• whether the current diagnosis is the same as or compatible with the initial work-related injury/disease diagnosis;
• whether the clinical evidence of impairment is related to the current diagnosis; and
• whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment.

Pre-existing conditions and non-work-related factors are considered as potential contributors to the degree of impairment. If those conditions or factors are the sole cause of the impairment, there is no permanent impairment.

Workplace Safety and Insurance Appeals Tribunal considered history of worker’s injuries

The Workplace Safety and Insurance Appeals Tribunal first considered the accident history and the worker’s initial diagnosis. She reported the accident to her employer and sought medical attention the same day. Three of the worker’s Workplace Safety and Insurance Board forms did not mention her left shoulder. Instead, the WSIB granted entitlement for the worker’s upper back, neck, and left shoulder based on a Memo dated just under a month after the accident.

Next, the Workplace Safety and Insurance Appeals Tribunal considered the worker’s job duties. The worker worked long hours in a physically demanding role. While performing duties for her job, she felt a pop in her back that caused pain from her back to her neck. When she returned to work the next day, she took on data entry instead of physical duties.

Worker had medical evidence to prove her pain was ongoing

The Workplace Safety and Appeals Tribunal found medical evidence of ongoing functional loss to her shoulder. This finding was supported by evidence from the worker’s physiotherapist. Moreover, the worker’s injury was consistent with her workplace’s accident history.

In terms of a pre-existing condition, the employer submitted the worker’s reduced range of motion was caused by an earlier workplace accident. However, the Tribunal found that although a prior workplace accident affected her shoulder, there was no evidence that it had caused her ongoing issues.

Worker awarded Non-Economic Loss assessment for her left shoulder

After consideration of all the evidence, the Workplace Safety and Appeals Tribunal found that the worker’s ongoing impairment was connected to the 2018 injury. Permanent impairments were recognized for her back and neck as a result of the accident. Combined with the work accident history and initial entitlements given for her back, neck and shoulder, the Tribunal found on a balance of probabilities that the worker was entitled to a Non-Economic Loss assessment for her left shoulder due to ongoing impairment.

Guelph Employment Lawyer Peter A. McSherry Advocates for Workers Injured on the Job

Peter A. McSherry Employment Lawyer regularly helps employees who have been injured at work to obtain the workplace disability insurance needed to help them recover. We will advise you on your rights and entitlements under the law and will prime your case for success.

Our office regularly assists employees on a variety of employment-related issues, including termination, wrongful dismissal and severance issues. Peter A. McSherry is conveniently located in Guelph and represents clients throughout the Greater Toronto Area. To schedule a confidential consultation, contact us online or by phone at 519-821-5465.