Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20090049
Objection By: Employer
Worker: Participating
Representative: N/A
Hearing Date: N/A
Attendees: N/A
Issues
The employer is objecting to the allowance of initial entitlement and payment of full Loss of Earnings (LOE) benefits from December 24, 2008, due to the recurrence.
How the Issues Arise
This now 52 year old worker reported injuries to the low back and left ankle, describing a gradual onset of symptoms while performing her regular duties as a letter carrier. The date of injury and reporting are one in the same, November 24, 2008.
The employer expressed concerns about the work injury at the time of reporting as the worker, in their opinion, had not provided an accident history and they were also questioning if there was a causal relationship between the work performed and the gradual onset of symptoms in the identified areas of injury.
The adjudicator obtained further clarification about the accident history and was satisfied with the accident history, and subsequently allowed initial entitlement for the low back only, for health care benefits. This decision was communicated to the employer with a letter dated January 28, 2009.
The worker was offered modified work by the employer following the work related injury, which the worker accepted and continued to perform until laying off of work on December 24, 2008, due to an increase in low back symptoms.
The adjudicator allowed entitlement for the recurrence and the payment of full LOE benefits from December 24, 2008 and communicated this decision to the employer with a letter dated March 4, 2009.
The employer is objecting to the decisions dated January 28, 2009 and March 4, 2009 and theses matters are now before me.
Authority
11-01-01 – Adjudicative Process
15-02-01 – Definition of an accident
15-03-01 – Recurrences
18-03-02 – Payment of LOE Benefits
Resolution Method and Process
60 Day Decision Option
I would also like to acknowledge that the employer had provided a letter dated July 8, 2009 that included a copy of an email. The email indicated the worker had contacted the employer and advised of having been hospitalized on May 5, 2009 for 3 days due to a heart problem.
I contacted the worker to obtain further information about the heart problem as the employer had indicated the heart problem was a pre-existing condition. The worker stated the heart problem was new and essentially was not evident until the first week in May 2009.
I contacted the employer to provide the information that the heart problem the worker experienced did not become evident until after the date of injury and date of the recurrence. I confirmed the issues before me were the allowance of initial entitlement, allowance of the recurrence and payment of LOE benefits from December 24, 2008. The issue of the worker’s level of impairment after May 5, 2009 must first be addressed by the operating area and is not before me now.
The employer agreed to move forward with the issues before me as stated.
Assessment of the Evidence
I have reviewed the record and considered the evidence.
As per OPM Document 15-03-01, “Recurrences”,
“The WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity.
If a significant new work-related accident occurs, the WSIB establishes a new claim.
To establish clinical compatibility, a decision-maker compares the worker's current clinical condition to that following the initial accident. The decision-maker considers
whether the parts of the body affected now are the same as, or related to, those affected initially
whether the body functions affected now are the same as those affected initially, and
the degree to which body functions are affected now (as compared to the effect of the initial condition).
To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has
complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury
demonstrated ongoing symptoms since the original injury
required work restrictions or job modifications
had ongoing treatment for the original condition, or
experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?).”
The adjudicator contacted the worker to obtain a statement regarding the gradual onset of low back and left ankle symptoms that occurred on November 24, 2008. The worker reported that due to the weather conditions on the date of injury, the cart normally used to transport the mail for delivery was not an option due to the slushy and snowy conditions. Instead, the worker loaded the mail and parcels into letter carrier bags for delivery.
The worker was asked why a detailed accident history had not been reported to the supervisor on the date of injury and the worker attributed this to being in extreme pain and not thinking straight.
The worker reported she slipped, but did not fall on two occasions on the date of injury. Also of note is that the worker stated the route assigned on the date of injury consisted of two long streets and was a difficult walk and that this contributed to the gradual onset of symptoms in the low back and left ankle. The adjudicator accepted the weather conditions contributed to the disablement situation and allowed initial entitlement for health care benefits.
The decision letter of January 28, 2009 from the adjudicator states that the pushing and pulling of the cart through slushy and snowy conditions is the unaccustomed strain. However it is clear that the basis for the decision was not only the weather conditions but the carrying of the mail bag through these conditions as the cart was not an option.
In assessing the evidence before me, I acknowledge that there are two other accident histories that have been reported for the date of injury. One is documented by the physiotherapist in the report of January 26, 2009 which states:
“Patient felt sharp/severe pain in low back, left leg and foot and fell due to pain”
The second is in the history section of the Regional Evaluation Centre (REC) report of May 19, 2009 where it is written:
“However, on November 24, 2008, after loading her shoulder bags with mail, she developed a sudden sharp pain from the left calf all the way up to the hips that caused her legs to collapse and she fell onto her back”
There are three somewhat different accounts of what transpired on the date of injury, but it is clear that something did in fact occur on November 24, 2008, involving the low back. It is more likely than not that the worker did slip on two occasions while delivering mail on her route, and that the weather conditions contributed to the worker’s unsure footing and gradual onset of low back and left ankle symptoms.
I reviewed the historical data on the Weather Network website and it indicates that in Sudbury Ontario on November 24, 2008, 5 mm precipitation fell and the temperature fluctuated between -2.7 and 1.9 degrees Celsius for that date.
The worker went for medical attention on November 24, 2008 and provided the accident history of a gradual onset of back pain, progressing throughout the day. The worker presented with pain, stiffness, decreased flexion and rotation of the lower back. The diagnosis given was mechanical low back pain. The treatment recommendation was rest, medication was prescribed and the worker was authorized off work for 2 – 3 days with restrictions for bending and twisting.
In assessing the evidence before me with respect to whether or not proof of accident has been established, it is clear the worker has described a disablement situation and provided the same accident history to the physician, reporting a gradual onset of low back symptoms, increasing throughout the working day, establishing the accepted accident history.
I find that there is compatibility between the accepted accident history, disablement as an unaccustomed strain and the diagnosis as provided by the initial treating physician on the date of injury, thus establishing a causal relationship. I accept that initial entitlement for the low back has been allowed by the operating area appropriately according to policy, based on the evidence on record.
The worker performed the modified duty offered by the employer following the work injury, which in my view, demonstrated a willingness to remain at work and it is most likely that because there was flexibility with accommodations due to the efforts by the employer, the worker was able to remain at work.
However, on December 24, 2008, the worker felt that the modified work was no longer sustainable due to an increase in low back symptoms and the worker went off work, claiming a recurrence. The worker notified the adjudicator of the recurrence and absence from work on January 30, 2009. Up until this date, no information regarding the lost time had been received from any other source. A letter was sent to the employer dated February 18, 2009, asking for information concerning the recurrence and more specifically, details about the modified duty that had been offered.
Although not before me, I am making a finding on the issue of entitlement for the left ankle. The left ankle was reported as having been injured on November 24, 2008, however, I note there has not been any medical reporting pertaining to the left ankle received on record and as such entitlement for the left ankle is not allowed.
The worker began physiotherapy on January 26, 2009 and the reported medical findings were left L3-5 extension dysfunction, spasm, decreased range of motion by 50% and antalgic gait with the working diagnosis of Left L3-5 extension dysfunction (possible disc). The restrictions identified were:
No lifting, No prolonged standing/sitting for greater than 10 minutes and No lumbar flexion.
The adjudicator did a comparison between the worker’s restrictions and the modified job offered by the employer. It was determined that the worker’s physical condition prevented the acceptance of the modified job offer and subsequently the recurrence was allowed and full LOE benefits were authorized from December 24, 2008.
The modified work offered to the worker on record is also dated December 24, 2008. This offer indicates that modified work is available and “will continue to be assigned that is sedentary in nature (specifically sorting letters) that this work could be performed at the worker’s comfort level and at a safe pace”.
The worker reported to the adjudicator that the modified work she was doing prior to the recurrence of December 24, 2008 was sorting mail, and that this did involve bending/twisting of the torso and occasional lifting. Upon doing my own comparison of the worker’s physical restrictions to the modified work offered, whether it was sedentary and self paced or the worker’s version involving bending/twisting and occasional lifting, not to be suitable as that the findings on record, in my opinion supported total disability.
I have considered the clinical evidence and restrictions and it is my opinion that the worker was unable to accept the modified job offered by the employer beyond December 24, 2008, as the medical would support the worker was totally disabled and not fit for any work.
There is no evidence to support that the worker was off due to reasons other than the work related injury. The worker was asked by the adjudicator if disability benefits had been sought through Manulife due to a non-work related impairment as alluded to by the employer and the worker stated this was not the case. I have also clarified with the worker that the heart problem did not become apparent and require surgery until the first week in May 2009 and therefore was not a contributing factor in the recurrence or lost time subsequent to December 24, 2008.
Therefore, I conclude after assessing the evidence on record, that the acceptance of the December 24, 2008 recurrence is in keeping with the policy on recurrences and that the allowance of full LOE benefits from December 24, 2008 are appropriate, as the worker’s physical limitations prevented the acceptance of the modified job offer.
I am accepting that the worker was totally disabled and not able to return to modified work from December 24, 2008 to May 5, 2009. However, based on the new evidence that the worker had a non-compensable heart condition that required treatment, the operating area is to determine the worker’s level of impairment as it pertains to the low back and fitness to return to work as of May 5, 2009 and communicate this decision to the workplace parties.
Conclusion
I am upholding the allowance of initial entitlement for the low back only as entitlement is not allowed for the left ankle.
I am upholding the allowance of the recurrence and payment of LOE benefits from December 24, 2008 to May 5, 2009. The payment of LOE benefits beyond May 5, 2009 is left to be reviewed by the operating area.
The objection is denied.
DATED July 15, 2009
C. Anzil
Appeals Resolution Officer
Appeals Branch