ASTDs & Compensation Cons: When is a Work Injury Not a Work Injury?

Published By Categorized as Compensation Café

Soft tissue injuries of the muscles, tendons and nerves – injuries like tendonitis, epicondylitis and bursitis – have a special place in the compensation world. 

These injuries are often referred to as “repetitive strain injuries” or RSIs, because they develop gradually, rather than as a result of trauma. In the 1980’s, medical experts (and compensation boards) noticed that the frequency of RSIs, also called musculoskeletal injuries (MSI) or musculoskeletal disorders, seemed to explode.  Workers were developing painful disorders of the musculoskeletal system, mostly in the hands, wrists, elbows, neck and shoulders, even as work practices became increasingly more segmented, repetitious and fast-paced. 

In Ontario alone, RSI compensation claims nearly doubled between 1986 and 1991, with similar trends in the U.S., Europe, Japan and Australia.

Medical science found that these disorders were related to common movements which, while not harmful in ordinary life, became hazardous in work requiring continual repetitive motions, forceful or awkward postures, speed, lack of time for recovery, and/or constrained positions.  

The Canadian Centre for Occupational Health and Safety (CCOHS) now calls these disorders “Work-related Musculoskeletal Disorders” or WMSDs and reports that WMSD’s are now the most frequent type of injury in the modern workplace. The activities which most commonly lead to WMSDs include manual handling of materials (in construction and industrial workplaces), client handling activities in the health care sector and any job that requires significant computer work.

These WMSD injuries are so common that February 29th is International Repetitive Strain Injury Awareness Day  (this being the only non-repetitive day in the calendar).1  In 2022, the 23rd International Annual RSI Awareness Day was celebrated by the Occupational Health Clinic for Ontario Workers (OHCOW) with a series of seminars, now available on OHCOW’s excellent website

But in B.C…

In Ontario, musculoskeletal injures are the most frequent type of accepted workplace injury with the most common being Carpal Tunnel syndrome (CTS), Tendonitis and Bursitis.2   

The picture in B.C. is very, very different.

In B.C., these WMSDs are named “Activity-Related Soft Tissue Injuries” or ASTDs.  Since 2002, B.C. has been engaged in a type of WMSD denial through a complex system of policies and practices which effectively create barriers to the recognition of ASTDs as work injuries. Instead, the Board accepts that ASTDs are caused by work only in very limited circumstances and only when there is exhaustive documentation of the minutiae of repetitive actions.   

The impact of the ASTD compensation barriers in B.C. cannot be denied:

  • For most years between 2015-2019, the Board’s initial acceptance rate for ASTD injuries was below 50%, well below the general acceptance rate of about 90%. Most accepted ASTD claims do not include time loss. 
  • There was a dramatic difference in the acceptance rate of ASTDs by gender. About 35% of women had their ASTD claims accepted compared to about 60% of men.3 It is highly likely that this gender gap in accepted ASTD claims reflects a gender division in work. The Board has a firm view that repetition alone in extensive computer work cannot cause ASTDs and many more women than men are engaged in this type of work. In 2018, less than 2% of the accepted ASTD claims were from computer use – 23 claims out of over 5,000.
  • Most ASTD appeals were unsuccessful.4 The Review Division upheld almost 84% of the ASTD denials (16% appeal success rate); WCAT upheld about 60% of the ASTD denials (40% appeal success rate).

The impact of B.C.’s compensation barriers is most dramatic for serious MSI injuries. While WMSD claims account for almost 50% of time loss claims in other jurisdictions (like Ontario), ASTD claims accounted for about 2% of time loss claims in B.C.5

The ASTD barriers could be easily addressed by the Board, if it wished to do so.

  1. On the policy side, Board policy requires that ASTD’s be adjudicated as special occupational diseases rather than as gradual onset injuries. C. is an outlier in this approach. Eight other provinces/territories adjudicate all musculoskeletal injuries (MSI) as personal injuries.

    The Board has exclusive jurisdiction over its policy and could require ASTDs (or MSIs) to be treated as injuries, without any amendment to the Workers’ Compensation Act.6  With such a change, gradual onset injuries could then be treated for what they are – micro-injuries of the muscles, tendons and nerves – and there could be an honest assessment of work activities for “causative significance”. But despite the recent amendment of some ASTD policies7, the current framework remains intact.
  2. In practice, the Board’s approach to ASTDs empowers the already significant policy barriers. In many cases, an ASTD “investigation” starts with a dramatically poor or inaccurate ergonomic assessment, usually conducted by a case manager with minimal ergonomic training (not an ergonomist) and with deference to Practice Directive guidelines, which promote a restrictive, high and fragmented threshold for risk factors.  The resulting risk assessment is then sent to a Board Medical Advisor who follows the same approach to determine the work-relatedness of the injury. The BMA never sees the worker.

    This approach typically produces a denial of the ASTD’s work-relatedness at a very “low cost” (to the Board). It also effectively reverses the onus of proof for workers. Any ASTD appeal requires a detailed ergonomic assessment (paid for by the worker) and a medical opinion on causation (paid for by the worker) to meet the Board’s often flawed case. Most workers cannot afford these costs, and the high number of injuries means that worker advocates and unions often cannot help them all. 

As a result of both policy and practice, a massive number of WMSD type injuries go unreported, unacknowledged and uncompensated in B.C. But this is not all.
 

The B.C. Approach – Prevention, yes; Compensation, No.

B.C. has good ergonomic prevention regulations to prevent MSIs, thanks to a multi-year, multi-stakeholder review of the Occupational Health and Safety Regulations in the 1990’s (enforcing these regulations is another story).

But these well-founded prevention regulations are routinely dismissed as irrelevant to ASTD compensation.  It is like there are two world views. For Prevention, there is the knowledge of how musculoskeletal injuries (MSI) occur in real life and how they can be prevented. For Compensation, only certain types and levels of workplace activities may be potential causes of ASTDs. The gap between the two approaches is a space through which opportunities are missed to prevent further injury or serious injury. And in denying the science behind MSIs, the Board retreats from one of its prime directives – to protect workers from harm. 

This gap does not result from ignorance. It has been known for a long time that WMSD’s are preventable and that workplace measures are effective in preventing, managing and treating these conditions. In 2004, one expert noted:

…there is an international near-consensus that musculoskeletal disorders are causally related to occupational ergonomic stressors, such as repetitive and stereotyped motions, forceful exertions, non-neutral postures, vibration, and combinations of these exposures. A number of government and non-governmental agencies have codified this evidence in the form of ergonomics rules designed to prevent work-related MSDs, among them the American Conference of Governmental Industrial Hygienists (1999+); the European Agency for Safety and Health at Work, EU (1999); the SALTSA Join Programme for Working Life Research in Europe (2000); and the Washington State Department of Labor and Industries (2000). A sizable proportion of MSDs among exposed workers are preventable, and protective action is both warranted and necessary.8

With their gradual, preventable nature, WMSDs pose a certain challenge to the compensation system.9 However, the science is clear. As the CCOHS explains, muscles, tendons and nerves are gradually injured in different ways but there are 3 identifiable stages of injury for all WMSD injuries:

  • Early Stage – symptoms disappear at night.
  • Intermediate Stage – symptoms persist at night and there is a reduced work capacity.
  • Late Stage – symptoms persist. There is an inability to sleep or perform light duties.

CCOHS provides detailed guidelines about what should be done at the earliest stage of an WMSD, to prevent further harm to the worker. Denial of the developing work injury is not one of them.   

When the “stage” approach to WMSD/ASTD onset is fully embraced, effective prevention and treatment becomes possible. In the Review, some employers, particularly those whose business spanned other jurisdictions, were frustrated at the refusal of the B.C. Board to recognize and accept WMSDs in the early stages, or support employers looking to ameliorate these conditions by intervention or immediate action.

In Ontario, some Teachers’ unions have even integrated the “stage” understanding of WMSDs development to inform their workplace action. They recommend to members, that at stage 1 of the WMSD:

  • Notify your supervisor and see your doctor: ensure that a compensation claim is filed by both.
  • Ensure that the employer has met their obligations to prevent MSD’s including providing an ergonomic assessment, training, ergonomic supports (wrist rests for keyboard and mousing) etc.
  • If the work is unsafe, refuse the unsafe work and ensure that other workers know about the hazard before accepting replacement work.

Conclusion     

In B.C. the Board employs a myriad of ways to state that common workplace activities are not relevant risk factors for ASTDs and that the worker’s musculoskeletal injury is not a work injury. Workers must spend a lot of time or money to prove otherwise.   

The result? Unlike other jurisdictions, B.C. workers commonly are exposed to ongoing harm on the job and then are denied compensation for the resulting MSI. Claims suppression for ASTD means that these injuries cost the Board very little and that there is little incentive for the Board (or employers) to develop ways to intervene, treat and compensate these musculoskeletal injuries as they occur.   

It is time that these work-related soft tissue injuries (WMSDs)were properly named in B.C. and taken seriously.  Only when the true impact of work activities on the human body is recognized and accepted, can workers’ health be prioritized and protected within a smooth continuum of prevention, intervention, and treatment. 

  1. RSI Awareness Day is celebrated on February 28th in non-leap years! ↩︎
  2. As reported by the Ontario Safety Group (OSAG). This training and research group’s website has up-to-date information and training resources. ↩︎
  3. New Directions, pages 200-201. ↩︎
  4. ASTD Discussion Paper (2019), page 7. ↩︎
  5. This is based on 2018 statistics. Of the 55,668 accepted time loss claims, only 1009 (1.8%) were for ASTD claims. ↩︎
  6. In New Directions, I recommended that the Act be amended to require that ASTDs be classified as personal injuries (Recommendation #84, pages 203-204) but such an amendment, while helpful, is not necessary to achieve this change.  The initiative for change could be exercised by either the Minister or the Board. ↩︎
  7. The Board’s ASTD policies were amended in February, 2020 and while improvements were made, the framework remain. Yet the amendment process shows how completely the Board’s approach to these injuries is a creature of Board-generated policy. NOTE: The ASTD Policy Discussion Paper 2019 provides a good summary of the stakeholder comments around this contentious issue and a comparison of MSI policies in other jurisdictions. ↩︎
  8. Work-related musculoskeletal disorders: the epidemiologic evidence and the debate. L. Punnett and D. Wegman, Journal of Electromyography and Kinesiology 14 (2004) 13-23. Quote from page 19. ↩︎
  9. The Board is oriented to traumatic injuries with a clear “date of injury”. Even “Light Duties” are aimed at accommodating proven injuries, not at preventing them.  ↩︎

Originally published on the Worker Education website by former WELLS Director Janet Patterson.