Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20090033 Objection By: Employer Worker: Not Participating Representatives: Employer Hearing Date: N/A
Issues
The employer requests:
1Recognition that the worker’s recurrent lower back problems of June 24, 2007 did not preclude him from attempting accommodated work duties as of June 25, 2007.
2The rescinding of full loss of earnings (LOE) benefits provided to the worker from June 25, 2007 to July 3, 2007 inclusive, for four hours on July 4, 2007 for eight hours on July 5, 2007 and from July 10, 2007 to July 23, 2007 inclusive.
3Recognition that the workplace accident of May 17, 2005 did not result in an accident-related permanent impairment of the worker's lower back.
4The rescinding of the 16% permanent impairment non-economic loss (NEL) benefit determined for the worker's lower back condition.
5The rescinding of the decision to provide labour market re-entry (LMR) services to the worker and the full and partial LOE benefits provided to him since April 20, 2008.
6An appropriate adjustment to the employer's accident cost record for any of the benefits and LMR service costs rescinded with a retroactive adjustment to the employer’s accident cost record.
7An increase in the Second Injury and Enhancement Fund (SIEF) cost relief provided for this claim from 75% to 90%, with a retroactive adjustment to the employer’s accident cost record.
How the Issues Arose
This claim recognizes a workplace accident on May 17, 2005 in which the worker received an injury to his lower back. The attending health care practitioners diagnosed a lower back strain, mechanical back pain and directed a conservative treatment program. The worker was able to return to pre-accident work duties as a press operator for the employer but experienced recurrent lower back problems on June 16, 2005 and May 18, 2006.
An assessment at a regional evaluation centre (REC) on September 21, 2006 and a subsequent MRI scan identified that the worker had bulging discs at the L3-4 and L4-5 levels and a bilateral L5-S1 spondylolysis with a broad based right–sided disc protrusion. The diagnosis became one of mechanical lower back pain and underlying spondylolysis. The REC team was equivocal about the need for permanent precautions but the family doctor believed they were necessary on a preventative basis.
The operating area concluded that an accident-related permanent impairment had resulted and it initiated the NEL assessment process. It also approved 75% SIEF cost relief for the employer because of the pre-existing degenerative disc disease and spondylolysis, although it considered the disc protrusion as accident-related. The need for accommodated work duties remained essentially unresolved and the worker experienced recurrent lower back problems on June 27, 2007 and again on July 10, 2007.
The operating area accepted these recurrences as accident-related. The employer disputed the need for LOE benefits for the recurrences in June and July 2007 as it believed the worker could have undertaken the accommodated work duties it offered. The worker returned to the workplace again and he experienced recurrent lower back problems on November 19, 2007. The employer provided accommodated work duties after the last recurrence but it could no longer do so as of April 20, 2008. It then placed the worker on permanent lay-off as of that date.
The operating area re-instated full LOE benefits from April 21, 2008 and it initiated the LMR assessment and plan development process. The worker received a 16% permanent impairment NEL rating for his lower back condition on May 13, 2008. On September 28, 2008, the employer's representative objected to the level of SIEF cost relief provided and asserted that 90% cost relief was called for. He also suggested that the identified disc protrusion was not accident-related; it pre-existed the workplace accident and that the lumbar strain associated with this accident should have resolved in 12 weeks time.
The operating area approved a LMR plan for the worker to prepare him for the suitable employment or business (SEB) as a heavy equipment operator. The employer's representative also objected to the provision of LOE benefits for the periods in June and July 2007, the recognition of a permanent impairment, the 16% NEL benefit approved and the provision of LMR services to the worker. He made these arguments in further submission to the operating area dated October 9, 2008 and provided a consolidated objection form.
The operating area noted that the worker completed his LMR plan on November 28, 2008 and it implemented a 23.11% partial LOE benefit payment from November 29, 2008, based on the expected entry level wage of $16.00 per hour in the of SEB of heavy equipment operator. The claims adjudicator explained this decision to the workplace parties on December 22, 2008. She also confirmed that the decisions made regarding the employer's objection remained correct and referred the issues to the Appeals Branch on January 27, 2009.
Authority
Operational Policy Manual documents:
11-01-05 Determining Maximum Medical Recovery (MMR)
11-01-15 Aggravation Basis
14-05-03 Second Injury and Enhancement Fund (SIEF)
14-05-04 SIEF Application to NEL, FEL, and LOE Benefits
15-03-01 Recurrences
15-06-03 Entitlement Following Work Disruptions: Permanent Layoffs
18-03-02 Payment of LOE Benefits
18-05-03 Determining the Degree of Permanent Impairment
19-02-02 The Goal of ESRTW and the Roles of the Parties
19-02-03 Workplace Party Co-operation
19-02-04 Functional Abilities Form for Planning Early and Safe Return to Work
19-03-02 LMR Assessments
19-03-04 Entitlement to LMR Plans
22-01-03 Workers' Co-operation Obligations
Resolution Method and Process
On March 26, 2009, the employer's representative requested that I deal with the presenting issues through an expedited 60-day decision-making process. He also asked that I refer to his previous submissions made on the employer's behalf for the document review carried out.
Assessment of the Evidence
Accident-Related Permanent Impairment
The operating area has concluded that an accident-related permanent impairment has resulted from the workplace of May 17, 2005. It notes that the worker experienced a popping sensation in his lower back on this date as he repetitively reached into a press machine to transfer parts from one stage to another. In its view, the mechanism of the injury, the popping sensation felt by the worker and the subsequent identification a disc protrusion at the L5-S1 level are compatible.
The employer's representative notes that a MRI scan on October 13, 2006 identified the disc protrusion for the first time. The medical evidence before that did not support such a diagnosis and remained lumbar strain and mechanical lower back pain. The MRI scan also identified pre-existing degenerative disc disease and a bilateral spondylolysis at the L5-S1. In his view, the disc protrusion was most likely a result of this degenerative process and did not arise from the workplace accident.
The employer's representative submits that the worker had asymptomatic pre-existing conditions of the lower back. He asserts that the disc bulging at the L3-4 and L4-5 levels, the bilateral L5-S1 spondylolysis and the right-sided disc protrusion at the L5-S1 predated the workplace accident of May 17, 2005. The minor workplace activity on May 17, 2005 and at the time of the subsequent recurrences served only to temporarily aggravate these underlying conditions.
As such, the employer's representative believes that the worker's accident-related condition remains a lumbar strain and the original aggravation and subsequent recurrences should have resolved within 12 weeks. The worker's lingering symptoms relate to the pre-existing conditions and not to the effects of the workplace accident. For these reasons, he asserts that the decision to recognize a permanent impairment and to determine a NEL benefit is inappropriate. The provision of LMR services is also incorrect.
The medical reference material enclosed with the submission of the employer's representative of October 9, 2008 explains that a spondylolysis originates from a defect of the pars interarticularis, the supporting bony structure located posterior to each disc of the spine. The defect weakens the structure and can lead to a forward slipping of the affected disc onto a lower one (spondylolisthesis).
The causes of spondylolysis are listed as congenital, isthimic, degenerative, traumatic and pathologic. The condition can develop in the first two decades of an individual in cases associated with congenital and isthimic causes and in the fourth decade and later for degenerative cases. Trauma and pathologic associated cases can occur at any time.
An individual can have spondylolysis and not experience symptoms at all until the slippage (spondylolisthesis) of the affected disc begins to impact on the other disc or the nearby nerve roots. In the worker's specific case, the cause of his bilateral L5 spondylolysis is not known. The x-ray evidence and MRI scan have not identified any associated spondylolisthesis.
The crux of the argument put forth by the employer's representative is that the worker's spondylolysis most likely caused the changes above and below the affected level at the L5. This would include the disc bulging at the L3-4 and L4-5 levels and the right-sided disc protrusion at the L5-S1. Without evidence of any spondylolisthesis, I would suggest that the medical evidence does not support this view.
The worker performed work duties as a press operator for the employer from the commencement of his employment on November 2, 1995. He injured his lower back previously in 1995 and 1999 before the workplace accident of May 17, 2005. There is no evidence that these prior injuries resulted in any long term difficulties or required permanent workplace accommodations.
However, the worker experienced the onset of significant lower back pain with the work duties performed on May 17, 2005 and at the time of his subsequent recurrences. These health care practitioners came to believe that the worker would need to avoid activities that required repetitive bending, twisting and lifting or likely experience acute recurring lower back difficulties.
In my view this establishes that the workplace activities contributed in a significant way to the aggravation of the worker's underlying spondylolysis; they most likely caused the disc protrusion and that the aggravation did not cease. I am satisfied that an accident-related permanent impairment has resulted from the workplace accident of May 17, 2005. The operating area decision to arrange a NEL assessment and determine a 16% permanent impairment NEL benefit rating is confirmed as appropriate.
LOE Benefits June & July 2007
The operating area approved the payment of LOE benefits for the worker's recurrences in June and July 2007. It did so because it believed that he experienced acute lower back symptoms. In reaching this conclusion, the operating area noted that his acute lower back symptoms required a visit to the local hospital on June 24, 2007 with an overnight stay.
The employer's representative submits that the objective medical evidence does not support the need for the worker to leave the workplace. He remained capable of undertaking accommodated work duties throughout his absences in June and July 2007. As the employer was prepared to accommodate him at no wage loss, he should not have received LOE benefits for these periods of time.
The family doctor assessed the worker on June 25, 2007; he noted pain, tenderness and a reduce range of motion of the back and he authorized a week away from the workplace. The worker attempted lighter work duties as of July 4, 2007 for four hours; he was off July 5, 2007 and from July 10, 2007 to July 24, 2007. The family doctor authorized the further layoff on July 9, 2007 and commented that he may have prematurely authorized a return to work on the initial visit of June 25, 2007.
The medical evidence from the family doctor does support the worker's need to leave the workplace in June and July 2007. The worker has also demonstrated a willingness to co-operate in his medical and ESRTW programs since the original lower back injury in 2005. I do not see any evidence of non-co-operation in June or July 2007. The operating area decision to approve LOE benefit payments for the following periods is also appropriate:
June 25, 2007 to July 3, 2007 inclusive,
for four hours on July 4, 2007,
for eight hours on July 5, 2007 and,
July 10, 2007 to July 23, 2007 inclusive.
LMR With LOE Benefits From April 2008
The operating area approved LMR services and a LMR plan once the employer could no longer provide accommodated work duties for the worker as of April 21, 2008. It also provided full LOE benefits during his participation in the approved plan and partial LOE benefits from November 29, 2008 when the plan ended. The employer's representative has objected to these decisions based on the view that an accident-related permanent impairment had not resulted.
I have already concluded that an accident-related permanent impairment has resulted and permanent precautions for the worker's lower back condition are required. As such, the operating area decisions to direct LMR services and provide full and partial LOE benefits from April 21, 2008 are appropriate.
SIEF Cost Relief
The operating area has approved 75% SIEF cost relief for this claim. It classed the workplace accident as minor in nature and the pre-existing conditions of the worker's lower back as moderate in severity. This allows for 75% cost relief under the policy. The employer's representative argues that the worker's pre-existing conditions warrant a major severity classification and this would result in 90% cost relief under the policy.
The x-rays and MRI scan identify a bilateral spondylolysis at the L5 level of the worker's spine without any evidence of spondylolisthesis. There is also mild disc bulging at the L3-4 and L4-5 levels, along with a right-sided disc protrusion at the L5-S1 level. In my view these findings do warrant a severe classification and the moderate classification provided remains correct. The 75% SIEF cost relief approved for this claim remains appropriate.
Conclusion
I conclude that:
1 The workplace activities contributed in a significant way to the aggravation of the worker's underlying spondylolysis; they most likely caused the disc protrusion and that the aggravation did not cease.
2 An accident-related permanent impairment has resulted from the workplace accident of May 17, 2005.
3 The operating area decision to arrange a NEL assessment and determine a 16% permanent impairment NEL benefit rating is confirmed as appropriate.
4 The operating area decision to approve LOE benefit payments for the following periods is also appropriate:
a) June 25, 2007 to July 3, 2007 inclusive,
b) for four hours on July 4, 2007,
c) for eight hours on July 5, 2007; and,
d) July 10, 2007 to July 23, 2007 inclusive
5 The operating area decisions to direct LMR services and provide full and partial LOE benefits from April 21, 2008 are appropriate.
6 The 75% SIEF cost relief approved for this claim remains appropriate.
The employer's objections are denied.
DATED May 28, 2009
L. J. Vaccarello Appeals Resolution Officer Appeals Branch