• Services
• Workshops
• Why Choose Us

WSIAT Decision No. 823/09 – Aggravation Basis

The worker injured his right hip in a work-related slip and fall incident.  The incident was minor, but the worker had a prosthetic hip due to a total hip replacement approximately 12 years prior to the work injury.  Following the work injury, the worker required revision surgery to repair the existing hip prosthesis.  The Board determined that the work-related incident permanently aggravated the worker’s pre-existing condition, and allowed entitlement for a non-economic loss (NEL) award, as well as ongoing loss of earnings (LOE) benefits, as the worker was not able to return to work following the surgery.

The employer appealed the ongoing entitlement.   The employer obtained an opinion from an orthopaedic specialist, and had the specialist provide testimony at the hearing, but only after the Vice Chair ruled that the specialist could attend as an expert witness.  Based largely on the opinion of the employer’s expert witness, the Vice Chair concluded that the work-related accident did not create the need for the surgery, but the injury significantly aggravated the pre-existing condition, and accelerated the need for surgery.  On this basis, entitlement was limited to the surgery and related recovery period, and all ongoing entitlement was rescinded.

The WSIAT decision is important for two reasons.  First, the decision confirms that although it is not the usual practice to have expert witnesses testify, WSIAT will allow experts to provide testimony when warranted by the facts of the particular case.  It is noted that the Vice Chair required submissions and issued an interim decision as to whether the employer would be permitted to call an expert witness.

More importantly, the decision confirms the correct test to be applied in cases where pre-existing conditions are aggravated by work injuries.  Ongoing entitlement is often determined in aggravation basis claims based on whether the worker’s condition returned to the pre-injury state following the accident; it if does not, a permanent impairment is accepted. The Vice Chair in this case, however, found that the question to be answered was whether the worker was in the same position that he would have been in if not for the work injury. Although the worker’s pre-existing condition was worse following the injury and surgery, he had returned to the same condition he would have been in if the work injury had not occurred, and any ongoing impairment related to the non-compensable condition, and not the work injury.  It is also a rare case where entitlement for surgery is granted without a corresponding permanent impairment and NEL award.

WSIAT Decision No. 686/10 – Occupational Disease

The worker appealed a decision of the WSIB Appeals Branch, which denied him entitlement for chronic obstructive pulmonary disease (COPD). The “Schedule 2” employer participated in the worker’s appeal and also pursued an appeal of a decision of the WSIB Appeals Branch, which confirmed the worker’s entitlement to a non-economic loss (NEL) assessment for pleural abnormalities and a resulting 30% NEL award.

As background, the worker worked for the Schedule 2 employer from 1964 to 1973 as a service man where he was exposed to some asbestos, which was the obvious cause of his pleural abnormalities later in life. He worked elsewhere as a quality control inspector until 1989 and thereafter as a heavy equipment operator in the construction industry.  In 1997, he developed COPD and unsuccessfully sought WSIB compensation for this condition.  Pleural abnormalities were later identified and the worker was granted entitlement for this by the WSIB in the form of a 30% NEL award.

At the Tribunal, the Schedule 2 employer was successful in defending against the claim for COPD to be recognized as compensable and work-related. The Schedule 2 employer was also successful in arguing that the 30% NEL award was incorrect. In their view, the NEL award essentially compensated for an overall respiratory impairment associated with the worker’s non-compensable COPD condition instead of being actually related to an impairment associated with the compensable pleural abnormalities. The Tribunal agreed with the Schedule 2 employer and replaced the 30% NEL award with a 5% NEL award, which was meant to strictly exclude the portion of respiratory impairment associated with the worker’s non-compensable COPD condition.

This case highlights the importance of employers, especially Schedule 2 employers, actively participating in appeals where significant non-occupational factors, such as smoking history and genetic predisposition, are intertwined with occupational factors such as exposure to asbestos and respirable dust. Since the worker died after the Tribunal hearing, it was clear that had the worker’s COPD-related appeal been successful at the Tribunal, a further claim for survivors’ benefits would have been successfully pursued at the WSIB by the worker’s estate. Thus a robust defence to occupational disease claims, where significant non-occupational underpinnings exist, is a very important risk-management tool and financial liability avoidance strategy for Schedule 2 employers. This case also stands for the proposition that the Tribunal can and will take a nuanced approach to eliminating the non-occupational component from a worker’s impairment when determining the correct quantum of a NEL award, which is a very novel and rare medico-legal adjudicative result that would be favourable to many employers in similarly-situated circumstances.