WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090075
OBJECTION BY: Worker
WORKER: Participating
REPRESENTATIVE: Worker
EMPLOYER: (Not participating)
ISSUES
The worker is objecting to the adjudicator’s October 19, 2007 decision which overturned initial entitlement under the claim and which also denied loss of earnings (LOE) benefits beyond October 27, 2007.
HOW THE ISSUES ARISE
On April 26, 2007, while employed as a housekeeper, the worker was re-making one of the guest beds – as she lifted her arms to flip the bed cover she experienced a sudden pain at the base of her neck. She was 49 years old at the time of injury and had worked for her employer since August 2006.
The worker’s claim for a neck strain was allowed for health care and full LOE benefits. LOE benefits were paid from April 27, 2007 until October 27, 2007. An August 20, 2007 MRI confirmed large disc herniations at C4-5 and C6-7 along with degenerative changes at other cervical levels. Following evaluation by an orthopaedic surgeon, surgical intervention was recommended.
However, it was subsequently determined by the operating area in consultation with the WSIB medical consultant that the worker’s cervical disc herniations were not compatible with the worker’s general housekeeper job duties, nor would they cause an aggravation of the disc herniations. As a result, the operating area overturned initial entitlement under the claim and informed the worker her LOE benefits would cease within one week.
The worker objected to the above decision. Upon receipt of the worker’s completed Objection Form, the adjudicator upheld the decision to deny further benefits and the worker’s file was referred to the Appeals Branch for further review.
AUTHORITY
- Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
15-02-01 Definition of an Accident
15-02-02 Accident in the Course of Employment
18-03-02 Payment of LOE Benefits
- Adjudication Support Document, Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA, published March 1, 2002
RESOLUTION METHOD AND PROCESS
The worker’s representative requested a decision based upon the file information. The employer is not participating in the appeal.
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the applicable law and policy and for the arguments presented.
Review of the completed Worker’s Report of Injury/Disease (Form 6) and Employer’s Report of Injury/Disease (Form 7) forms confirms the accident history described earlier. The forms confirm the worker did not delay in reporting the injury to her employer nor had she had any prior neck problems.
The worker recorded in her Form 6 there had been an increase in the amount of work at the hotel. She also indicated she experienced a sudden pain at the shoulders following which she could no longer bend over. This information was corroborated in the Form 7.
The file medical information supports the worker sought medical treatment for her injury the same day. Pain and tenderness were recorded in the cervical region – diagnosis rendered was neck injury. X-ray of the neck revealed degenerative disc disease.
Ongoing medical reports submitted to file continued to support a neck impairment with restrictions for physical activity which included the avoidance of prolonged neck bending and heavy lifting. As indicated previously, the August 20, 2007 MRI confirmed large disc herniations at the C4-5 and C6-7 levels along with degenerative changes at other cervical levels.
The worker was assessed by an orthopaedic surgeon on August 31, 2007 who re-confirmed the worker’s neck pain had begun as previously described. The pain was noted to radiate from her neck down her right arm from the C6 nerve root – her thumb and index fingers were particularly involved. It was recommended the worker undergo surgery for spinal cord compression removal.
In response to Mr. Cook’s questions, the worker’s family physician submitted a July 15, 2008 report which indicated the worker first complained of neck pain on April 26, 2007 following an injury at work. He also documented the following in part:
“It is my opinion that her medical condition can be precipitated and aggravated by heavy lifting and frequent bending of her neck and back. … It will be beneficial to her if she can avoid heavy lifting and bending of neck and back.”
The worker was evaluated by a neurosurgeon on January 19, 2009 who indicated the worker continued to complain of neck pain, however, radicular symptoms had resolved. A repeat MRI showed the previous C6-7 disc rupture was resolving nicely, though the C4-5 disc rupture was still quite large. The report indicated the worker was not inclined to undergo surgical intervention, that she had ceased her prior housekeeper duties, and that she should continue with cervical traction. A review in six months’ time was recommended to assess whether the C4-5 disc would resolve as nicely as the C6-7 with the continued physiotherapy treatment.
Chart notes from the worker’s physician were submitted to file which confirmed ongoing cervical symptoms until late March 2009. The worker’s physician submitted a June 1, 2009 report which also confirmed ongoing neck pain with limited range of motion. It was his opinion the worker should avoid heavy lifting and bending of the neck and back.
As previously recorded, the WSIB medical consultant reviewed the worker’s file in October 2007, and was of the view the worker’s condition would have become symptomatic at some point regardless of the worker’s activity. As a result, the view expressed was that the disc herniations were not compatible with her work duties.
Policy 11-01-01, Adjudicative Process, requires that decision-makers use the “five point check system” for ruling on initial entitlement. An allowable claim must have: (1) an employer, (2) a worker, (3) a personal work-related injury, (4) proof of accident, and (5) compatibility of the diagnosis to the accident or disablement history. The point which requires further scrutiny in the worker’s case is point #5, compatibility of the diagnosis to the accident or disablement history.
Despite the two disc herniations and degenerative changes confirmed on MRI, the file information confirms the worker had no prior history of neck problems. Her physician also affirmed she had not previously been treated in the past for neck symptoms. The worker verified she had been performing more work than usual given the increase in the number of check-outs at the hotel. She also confirmed a specific incident occurred, i.e. lifting her arms to flip the bedcovers, following which her neck impairment commenced.
Following careful consideration of the file evidence, I must respectfully disagree with the medical consultant – I find the worker’s accident history is compatible with her diagnosis. Although the worker’s disc herniations likely pre-dated her injury under the claim, the worker had previously been asymptomatic. It is entirely likely the disc herniations at C4-5 and C6-7 worsened, or ruptured, with the movement in question on the day of injury following an increase in her work duties, causing her condition to become symptomatic. Consequently, I find the worker has met all five criteria for an allowable claim.
With respect to the worker’s level of impairment, I find the medical information supports ongoing impairment until at least June 1, 2009, date of the last medical report received to file. Although it is possible the worker has a cervical permanent impairment as a result of her accepted injury, the medical reports submitted, specifically the neurosurgeon’s, confirm a potential improvement in the worker’s condition. The worker was to have been re-assessed by the neurosurgeon in mid to late 2009, though his report has not yet been received to file. The question of a permanent impairment will therefore need to be reviewed upon receipt of additional medical information, specifically, the neurosurgeon’s subsequent evaluation.
The file information confirms the employer was unable to provide the worker with suitable work, hence the payment of LOE benefits until October 27, 2007. Restrictions for physical activity, as indicated by the worker’s physician, included the avoidance of heavy lifting and no repetitive bending of the neck and back. The worker’s regular housekeeper job duties exceeded her physical precautions.
The worker appears to have discontinued working as a housekeeper altogether, though her employment status with her employer will need to be confirmed, as well as whether the worker has attempted to mitigate her wage loss by securing alternate suitable employment. This information, which is required to determine entitlement to LOE benefits beyond October 27, 2007, must first be gathered. Once the appropriate information is obtained, payment of LOE benefits should be determined in accordance with the Adjudication Support Document entitled “Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA”.
CONCLUSION
I conclude the worker has entitlement to a cervical injury under the claim, with ongoing cervical impairment until at least June 1, 2009. The issue of a permanent impairment will need to be reviewed upon receipt of additional medical information, specifically, the neurosurgeon’s anticipated mid-to-late 2009 report. LOE benefits from October 27, 2007 should be determined in accordance with the Adjudication Support Document entitled “Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA”.
The worker’s objection is therefore allowed.
DATED November 19, 2009
L. Diaz Appeals Resolution Officer Appeals Branch