WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090093
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative
HEARING DATE: N/A
ISSUES
Ongoing entitlement for the low back, including a permanent impairment/non-economic loss (NEL) assessment.
Entitlement for cervical spine injuries sustained as a result of a motor vehicle accident on September 28, 2007.
Entitlement to loss of earnings (LOE) benefits from September 24, 2007.
HOW THE ISSUES AROSE
Entitlement was accepted in this claim for a back injury sustained as a result of an accident at work on April 30, 2007. On that date, the worker, a packager of automotive parts, was walking on the receiving floor when she tripped on a lag sticking up from the floor. The information on file indicates the worker did not fall, but sustained a jar to the back. The initial medical report indicated she sustained a lumbar strain. Entitlement was accepted and full LOE benefits were paid from May 1, 2007 to June 25, 2007.
Efforts were made to return the worker to suitable modified duties on a graduated basis. Effective June 26, 2007, the worker returned to work in a position of “labelling”. She continued to receive partial loss of earnings (PLOE) while participating in the graduated return to work. It was expected that she would resume full-time modified duties effective October 1, 2007. The information on file also indicated that there was a reduced hourly wage on the modified job.
The worker was involved in a motor vehicle accident on September 28, 2007. According to the medical reporting on file she sustained a reaggravation of the work-related low back injury and a cervical spine/whiplash injury. She did not resume her full-time hours as scheduled on October 1, 2007, and in fact, did not continue in the modified work. Initially, the Operating Area accepted the injuries arising out of the motor vehicle accident, but concluded that the worker was not totally disabled and not prevented from returning to the modified duties. Accordingly, the Operating Area concluded that she was not entitled to any further LOE benefits. PLOE benefits were last paid to Sept 24, 2007.
The matter was initially referred to the Appeals Branch in 2008, but there were a number of entitlement issues that had not been appropriately addressed. As such, the file was returned to the Operating Area. The Operating Area subsequently concluded that there was no permanent impairment as a result of the work-related low back injury. Additionally, the Operating Area rescinded entitlement for the cervical spine injury arising out of the September 28, 2007 motor vehicle accident. Entitlement was also denied under the chronic pain disability (CPD) Operational Policy Manual (OPM) document.
AUTHORITY
OPM Documents:
18-03-02 – Payment of LOE Benefits
15-05-03 – Non-Work-Related - Second Accidents
15-05-02 – Secondary Conditions: Accidents Resulting from Treatment
METHOD OF RESOLUTION
A hearing was scheduled for October 8, 2009. The employer indicated they would be attending the hearing but did not show on the date. The worker’s representative requested to proceed in an informal matter. He made oral submissions on the issues in dispute; no testimony was taken from the worker. The representative elected to withdraw his objection on the matter of CPD entitlement.
It was agreed that there was insufficient information available to make a ruling on benefits beyond December 19, 2007, as further information would be required from the employer.
ASSESSMENT OF THE EVIDENCE
Entitlement for this motor vehicle accident of September 28, 2007
The worker was involved in a motor vehicle accident while travelling for physiotherapy treatment for the work-related low back injury. The worker’s representative argued that entitlement should be accepted for the injury sustained as a result of that accident. It was worker’s representative position that the worker had been directed to the treatment by the Workplace Safety and Insurance Board (WSIB). In support of his position, he referred to the Regional Evaluation Centre (REC) report of August 3, 2007, which indicated the worker required a period of physiotherapy treatment. Also, he referred to a memo from the claims adjudicator, which indicated that the physiotherapy treatment was in order.
The OPM document on accidents resulting from treatment states the following:
A worker may have entitlement if a second accident results from treatment for a work-related condition or if a second accident occurs while a worker is travelling at the direction of the WSIB.
The motor vehicle accident in this case did not result from treatment for a work-related injury but occurred while travelling for that treatment. The OPM document requires that the worker must be travelling at the direction of the WSIB. The OPM document goes onto clarify what is meant by travelling at WSIB direction. The OPM document states:
There may be entitlement if the
work-related disability/impairment dictates the means of travel, and
the worker takes the specified pre-arranged means of travel.
The OPM document does not state that the worker is covered while going to and from medical appointments for work related injuries. Although the WSIB may accept that the worker needs to see a treating doctor for the injury or may need specific treatment, a workers attendance at such appointments is not “travelling” at the direction of the WSIB. Travelling at the direction of the WSIB is related to situations where the WSIB directs a worker to an appointment scuh as the REC and directs the worker to the means of travel, such as train or taxi. In this case, the worker was not directed to a particular physiotherapy centre by the WSIB, nor was the means of travel dictated by the work related injury or WSIB. The worker was free to choose any means of travel, such as car or public transit. In fact, the policy on travel related expenses stipulates that workers are reimbursed for public transportation and only paid mileage if public transit is not available.
In conclusion, the worker was not travelling at the direction of the WSIB, and therefore, there is no entitlement for injuries arising out of the motor vehicle accident.
Ongoing entitlement for the low back/permanent impairment
The worker was seen at a REC on July 12, 2007. On examination, it was noted that lumbar spine movements were dramatically reduced with minimal flexion; extension was 50 per cent of normal, side and rotational movements were 1/3 of normal. Straight-leg raising was slightly positive on the right side at 60 degrees. All motor, reflex and sensory testing were reported as normal. The diagnosis was lumbar strain. X-rays and CT scans of the lumbar spine were reviewed and reported as unremarkable. However, an MRI study of the lumbar spine was recommended.
At the time of the July 12, 2007 REC assessment, the examiner concluded that the worker required ongoing restrictions of no prolonged posturing, no heavy lifting, and no repetitive trunk movement. A further comment was to be made upon review of the MRI scan. The MRI of August 17, 2007 indicated a minimal disc bulge at the L3-4 level with a left foraminal annular tear. No other significant findings were reported in the lumbar spine. The REC issued a further note on August 30, 2007 indicating the final diagnosis was lumbar strain with annular tear at L3-4. The prognosis was for partial recovery. The REC recommended a further four weeks of active therapy emphasizing core stabilization, weight training and development of a home exercise program.
The REC concluded that work restrictions were as outlined previously. The restrictions were to be in place for eight weeks followed by a further assessment to determine if there was a need for ongoing restrictions. It was felt that there would likely be a need to place permanent restrictions on heavy lifting. The reports on file from the treating doctor subsequent to the REC all indicated need for restrictions for the lumbar spine. The worker has continued to consistently complain of symptoms in the lumbar spine region.
The file was reviewed by a WSIB medical advisor, who concluded that there was no evidence of any permanent impairment related to the work-related injury. The claims adjudicator’s decision refers to the medical reporting on file from the physiatrist in early 2008, as indicating that there was no permanent impairment. I have reviewed those reports and find that the physiatrist only commented that there was no significant worsening in the worker’s condition. It was noted that the worker continued to describe right-sided symptoms. There is nothing in the report from the treating physiatrist to support that the worker had fully recovered.
The medical evidence on file from the treating doctors, as well as the REC reports, supports that there is evidence of a permanent impairment of the low back.
Entitlement to LOE benefits from September 24, 2007
The documentation on file indicates that the worker was on reduced hours on September 24, 2007 and was not scheduled to resume her full-time hours until October 1, 2007. Additionally, the worker was in receipt of a lower hourly wage in recognition of the modified job duties. The information on file with respect to the job duties is that it was a very light job that involved labelling and that there was no heavy lifting required. The worker did not dispute the suitability of the job, but indicated that she had a significant worsening in her low back condition as well as the new injuries to the lumbar spine resulting from the motor vehicle accident.
The worker’s representative referred to OPM document 15-05-03 indicating that even if the motor vehicle accident was accepted as not work-related, the OPM document does not preclude entitlement for aggravation of the compensable condition by the non-work-related event. The OPM document refers to cases where the work-related impairment/disability is not at or near complete recovery. In this case, the evidence at the time of the motor vehicle accident was that the worker would have a permanent impairment of the low back. However, the question remains as to whether the worker was partially or totally disabled as the result of the work-related impairment when the intervening event occurred.
At the time of the motor vehicle accident, the worker was performing modified duties and no evidence has been presented to support that those duties were not suitable for the work-related low back injury. She was expected to resume full-time hours on the modified duties effective October 1, 2007. There has been no evidence presented to me that those job duties would not have been available after October 1, 2007. The evidence clearly indicates that the sole reason the worker did not continue on the modified duties was because of the worsening of the low back condition as a result of the motor vehicle accident and the cervical spine injuries sustained in the motor vehicle accident.
Nevertheless, the evidence indicates that there continued to be a small wage loss as a result of the reduction in hours to six hours expected up to October 1, 2007 and a slightly lower hourly wage rate.
The evidence indicates that the worker felt capable of resuming her early and safe return to work (ESRTW) effective December 19, 2007. At that time, she was advised by the employer that they were unable to accommodate all of her restrictions. What is not clear is whether or not the employer was unable to accommodate the further restrictions arising out of the motor vehicle accident and related to the cervical spine or was unable to continue to accommodate the restrictions arising out of the low back. The availability and suitability of modified duties beyond December 19, 2007 is not clear and therefore I am unable to rule on benefits beyond that date.
CONCLUSION
There is no entitlement for the motor vehicle accident of September 28, 2007. Therefore, there is no entitlement for the cervical spine/whiplash injury.
There is evidence to support a permanent impairment of the low back as a result of the work-related injury. Accordingly, the worker is entitled to a NEL assessment for the low back injury.
The worker continued to have restrictions arising out of the work-related injury. She is entitled to PLOE benefits from September 24, 2007 (based on six hours and reduced hourly wage) up to October 1, 2007. She is entitled to PLOE benefits based on a reduced hourly wage from October 1, 2007 to December 19, 2007.
The matter of entitlement to further LOE benefits from December 19, 2007 is left to the determination of the Operating Area. The employer should be contacted to determine the availability of modified duties from December 19, 2007in relation to the low back injury. The employer should be asked to identify what job was available and how long it continued to be available, as well as reduction in wage.
The worker’s objection is granted in part.
DATED October 16, 2009
B. Craddock
Appeals Resolution Officer
Appeals Branch