WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090010
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVES: Employer
HEARING DATE: N/A
ISSUES
The employer objects to initial allowance of this claim and to entitlement to Loss of Earning (LOE) benefits.
HOW THE ISSUES AROSE
On October 4, 2008, this worker was 56 years of age and employed as a truck driver. On that date, he was getting out of his truck at the weigh scale when he fell backwards and landed on the metal grill. This was a Saturday.
He reported the incident to the employer on Monday October 6, 2008 and sought medical attention that day. The initial diagnosis was a back strain. He was authorized off work.
The employer objected to the initial entitlement in this claim and the allowance of lost time from work. The file was reviewed by the claims adjudicator and it was determined that the delay in reporting was acceptable. Therefore, initial entitlement and lost time was upheld and this decision was outlined in the letter dated October 24, 2008.
The medical information on file initially showed the worker could return to modified duties in November 2008 with the restrictions of no lifting, no bending, and no prolonged static postures. A letter dated November 4, 2008 was sent to the employer and worker advising them of the above.
The worker’s treating physician provided medical documentation indicating the worker was not yet able to return to work. The file was reviewed and it was determined that a multi-disciplinary health care assessment (MDHCA) was required.
The worker underwent the MDHCA on January 27, 2009 at the regional evaluation centre. Following a review of the assessment results it was determined that the worker had partially recovered and had restrictions of no prolonged or repetitive bending or twisting, no heavy lifting and to avoid prolonged positions such as walking.
He returned to modified duties effective February 19, 2009 at four hours a day with a goal to eventually increase his hours. Loss of earning (LOE) benefits were paid accordingly. He worked until February 23, 2009. The worker had an appointment for an EMG on February 25, 2009 in Toronto.
The employer was given Second Injury Enhancement Fund (SIEF) relief in the amount of 25% in light of the moderate nature of the accident and the minor pre-existing condition.
AUTHORITY
Operational Policy #15-02-01, Definition of an Accident
Operational Policy #02-01-08, Temporary Total & Temporary Partial Disability
RESOLUTION METHOD AND PROCESS
On behalf of the employer, the employer’s representative, requested a decision based on the record as per the 60-Day Option Form.
ASSESSMENT OF THE EVIDENCE
I have reviewed this claim in its entirety and the following is my assessment of the evidence on record.
The worker indicated that he fell from his truck on October 4, 2008 and landed on a metal grill at the weigh scale. He fell on his back, right side. There was no witness to the accident.
In order to determine proof of accident, the following criteria must be met:
Immediate onset
Immediate reporting
Immediate medical attention
Immediate lay-off
As well, the diagnosis must be compatible with the accident history.
In this case, the worker indicated that he thought the pain would go away following the incident. He was off work the next day, a Sunday. He reported the accident on his first day back to work on Monday, October 6, 2008. This is still considered immediate reporting noting it was one and a half days after the accident.
He sought immediate medical attention and laid off work immediately. The diagnosis of a back strain is compatible with the accident history. Therefore, I am satisfied that initial entitlement was granted correctly and in keeping with Board policies.
I reviewed the medical documentation in the claim file and noted the worker’s condition was initially diagnosed as a back strain. The x-rays taken of the lumbar spine on October 6, 2008 indicated there was mild sclerosis at the SI joints, and mild degenerative changes to both hips.
The treating physician saw him on November 6, 2008 and again confirmed the accident history and indicated the worker had also hurt his right hip and thigh at the time of the accident. The diagnosis was an acute back and right thigh sprain.
In December 2008 the treating physician reported complaints of steady low back pain on the right side, radiating to the right knee. Cannot sit, stand or walk beyond 10 minutes, no driving. He indicated he could not assess the worker’s ability to return to modified work at that time.
The MRI dated January 8, 2009 of the lumbar sacral spine showed very mild post disc herniation at L1-2. The mild disc herniation was not causing canal or foraminal stenosis. There were similar changes at the L2-3, L3-4 level. At L4-5 there was mild post disc herniation with minimally effacing the thecal sac. There was no significant canal or foraminal stenosis. The conclusion was mild disc disease with no evidence of canal or foraminal stenosis.
The regional evaluation centre’s report dated January 27, 2009 noted there was no history of prior low back problems before the compensable accident of October 4, 2008. The report indicated that x-rays showed degenerative disc disease and some osteoarthritis in the hips.
The diagnosis was mechanical low back pain with suggestion of right lumbar sacral radiculopathy. The diagnosis for the leg pain could include osteoarthritis of the right hip. A referral for an EMG for the right leg was recommended.
The regional evaluation centre’s conclusion was that he was partially recovered with no further recovery expected. No further treatment was recommended other than home exercises. His restrictions included no prolonged or repetitive bending or twisting, no heavy lifting and to avoid prolonged positions such as walking.
I have considered the medical documentation and find that entitlement to loss of earning (LOE) benefits from the date of accident had been correctly granted. The medical documentation supported his inability to work until February 19, 2009, when he returned to work at modified duties.
As well, in reviewing the pre-existing condition, I find that the pre-existing condition was moderate in nature, rather than minor. As such, I find that an increase in the SIEF to 50% is warranted in this case, from the date of accident.
CONCLUSION
1-Initial entitlement is upheld.
2-Loss of Earning benefits from the day of accident is upheld.
3-SIEF relief is increased from 25% to 50%.
The employer’s objection is denied.
DATED May 27, 2009
M. St-Hilaire
Appeals Resolution Officer
Appeals Branch