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WORKERS’ COMPENSATION - Claims - Aggravation of pre-existing condition

Tuesday, July 30, 2019 @ 9:45 AM  

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Appeal by Murray from a decision by the Workers’ Compensation Appeals Tribunal. In 2017, the appellant completed a Form 67 Report of Accident or Occupational Disease. She claimed that in 2015, her employer reassigned her to a workstation that was ergonomically incorrect, with a transfer to a worse workstation seven months later. The appellant alleged that her hands were unsupported, and her job required typing and use of large books. After three months at the second station, the appellant requested an occupational therapist’s assessment to address the ongoing pain in her hands, wrists and forearms. In 2016, the appellant underwent surgery on one hand. In 2017, she reported pain in both hands to her physician. The appellant’s physician completed a Form 8 in support of a claim for workers’ compensation benefits based on aggravation of pre-existing osteoarthritis. The claim was initially denied. On review, WorkSafeNB found that the appellant’s condition was pre-existing, and would have worsened regardless of her work. WorkSafeNB found that there was no evidence that the appellant’s condition was aggravated by her work activities. The Appeal Tribunal denied the appellant’s claim for the same reasons. Murray appealed.

HELD: Appeal dismissed. The question of whether the appellant’s pre-existing condition of osteoarthritis was aggravated by her work fell squarely within the exclusive jurisdiction of the Tribunal to decide based on a preponderance of evidence. It did not reverse the onus and require the appellant to offer evidence to rebut WorkSafeNB’s conclusion her condition was not aggravated or exacerbated by reason of her workstation. The Tribunal’s decision was based on the preponderance of evidence that her symptoms were aggravated for a period, but that her condition had not worsened. The Tribunal’s conclusion was supported by objective medical evidence that the appellant’s condition was progressive in nature. In considering the issue of aggravation, the Tribunal correctly identified and applied the legal test and applicable policies. Although the Tribunal incorrectly stated it was bound to follow policy in accepting expert medical evidence over that of the appellant’s physician, the decision reflected a consideration of the totality of the evidence and its review role. Most of the medical opinions did not support the appellant’s assertion that her condition was aggravated by her work.

Murray v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2019] N.B.J. No. 157, New Brunswick Court of Appeal, K.A. Quigg, B.L. Baird and R.T. French JJ.A., June 20, 2019. Digest No. TLD-July292019005