Bus driver’s injuries not from driving a bus

Worker diagnosed with back and leg injuries believed they developed from sitting for hours on bus but injuries worsened after he stopped working
|Canadian Employment Law Today|Last Updated: 01/21/2014

The Ontario workplace Safety and Insurance Board (WSIB) has denied a bus driver’s claim for benefits for back and knee pain, which the driver claimed was the result of his bus driving duties.

The driver began his employment driving a city bus in January 2002. Over the years, he worked a significant amount of overtime in addition to his regular hours.

In 2008, he began feeling a jabbing pain in his lower back, numbness in his legs and pain in his right knee. The driver felt these injuries were the result of the countless hours he spent sitting in the same position while driving, along with the repeated pressure and vibration from using the gas and brake pedals. His knee pain, the driver believed, was the result of constantly hitting his knee on the fare box in the bus.

The driver indicated he always drove an older model of bus that had bad shocks, especially when the bus was full. In addition, part of his route featured road construction which caused a ride that was more bumpy than usual, exacerbating the vibration problem. The worker had no previous pain, so when his doctor checked him out he became aware his problems were likely related to years of driving a bus.

The driver’s knee injury was diagnosed as a medial meniscus tear and he had surgery in January 2009.

The driver considered his injuries to be a disability that developed from his work and filed a claim for worker’s compensation benefits.

The WSIB case manager assigned to the driver’s case didn’t accept that the driver’s impairments were causally related to his bus driving duties. The driver’s employer put him on short-term disability (STD) benefits with the intent to have him return to work, since his claim was denied. The driver appealed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

The WSIAT agreed with the WSIB, finding there wasn’t sufficient evidence to demonstrate the driver’s injuries were a direct result of his job duties. The tribunal found the sudden onset of pain in 2008, while there was no prior ailment, made it suspect that the driver’s pain was the result of gradual progression of injury over time. He also didn’t seem to think the injuries were caused by his job until he saw a doctor, said the tribunal.

The WSIAT also found the city buses underwent “rigorous inspection carried out by both maintenance staff and drivers” and the road construct was minor. In addition, the driver’s route featured an extra loop at one end that allowed for frequent breaks during which the driver could get up and move around. Also of note, the driver’s condition continued to worsen after he stopped driving a bus in 2008.

The medical evidence included x-rays and an MRI which showed disc protrusion in his back, but no neurological damage. In addition, the torn meniscus in his knee wasn’t consistent with the supposed cause of driving or bumping the knee on the fare box, said the tribunal.

“Bulging or protruding discs are common in the general public associated with the natural process of degenerative changes,” said the tribunal. “These changes occur regardless of trauma or injury.”

The tribunal determined the driver had “a spontaneous flare-up of pain” from his condition but it wasn’t causally connected to his job. The driver’s injuries did not arise from his employment, but rather were the result of a “degenerative condition which is disabiling in and of itself rather than evidence of a causation relationship between the work and the disability.”

This finding was supported by the fact the driver’s injuries continued to deteriorate after he stopping driving buses and went on disability leave. See Ontario Workplace Safety and Appeals Tribunal Decision No. 1168/13, 2013 CarswellOnt 15795 (Ont. W.S.I.A.T.).