WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100014
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
ATTENDIES: Worker, Worker Representative, Employer Representative, Observer
HEARING DATE: November 18, 2009
ISSUES
Recurrence commencing March 20, 2007 with full loss of earnings (LOE) benefits from March 20, 2007 up to but not including April 2, 2007.
Recurrence commencing September 19, 2007 with full LOE benefits for the period September 19, 2007 up to but not including September 24, 2007 after which partial LOE benefits from September 24, 2007 up to but not including January 28, 2008 at which point she returned to working eight hours per day.
Percentage of the non-economic loss (NEL) award.
Recurrence commencing February 1, 2008 with full LOE for the period February 1, 2008 up to but not including February 11, 2008.
Recurrence commencing December 10, 2008 with full LOE benefits from December 10, 2008 up to but not including December 17, 2008.
Entitlement to massage therapy.
During the preliminary discussion phase of the oral hearing the issues relating to entitlement under the WSIB’s chronic pain disability policy and change of physician were withdrawn without prejudice.
HOW THE ISSUES AROSE
On July 13, 2005 this then 37 year old Food Services Attendant sustained an injury to her upper, mid and low back with pain radiating into her left leg while reaching overhead and lifting a large metal pan. The initial diagnosis was that of lumbar strain. Lost time did not occur until September 27, 2005. The claim was accepted and the worker received full loss of earnings (LOE) benefits from September 27, 2005 up to but not including October 6, 2005.
The worker sustained a recurrence in November 2005 which was allowed with full LOE benefits being paid for the period November 14, 2005 up to but not including November 22, 2005. When she returned to work she was performing modified work at full hours.
She had a further recurrence of symptoms on March 25, 2006 which resulted in no lost time. Entitlement to health care was granted.
Maximum medical recovery was deemed to have been achieved as of May 29, 2006 with a functional low back permanent impairment evident. The accepted diagnosis was that of mechanical low back pain/chronic lumbar strain. Permanent medical precautions of no lifting in excess of 50 pounds along with avoiding continuous bending, twisting and sustained postures were identified.
The worker had a flare-up in her low back condition for which she sought medical attention on November 13, 2006. She was off work from November 22nd to the 24th, 2006 inclusive. She did not seek medical treatment during the time she was off work. The Case Manager did not allow the lost time but did allow for health care. The decision was dated March 5, 2007.
Subsequently, the worker claimed further lost time for the period March 20, 2007 up to but not including April 2, 2007. When she returned to work it was to full hours performing modified work. She also claimed for a TENS machine and massage therapy. With medical guidance the Case Manager denied entitlement as per the July 4, 2007 decision.
Because the WSIB had recognized the worker had sustained a permanent impairment, she underwent a non-economic loss (NEL) assessment on April 17, 2007 so that her degree of permanent impairment could be determined. A WSIB NEL Clinical Specialist was concerned with the range of motion findings recorded in the NEL assessment report noting other medical reporting had shown the worker’s range of motion to be better. As such, a second NEL assessment was arranged to clarify the range of motion findings. The second assessment took place on September 26, 2007. The range of motion findings documented in the September 26, 2007 assessment forms were worse than those recorded in the initial NEL assessment. As such, the NEL Clinical Specialist found them to be inaccurate and did not include range of motion abnormalities when calculating the worker’s NEL award. As a result, her award was based on Specific Disorders of the Spine only, and her degree of permanent impairment calculated to be 7 percent. The worker objected to the percentage of the award.
The worker claimed further problems with her low back and stopped working on September 19, 2007. She returned to work on September 24, 2007 working three hours per day. She increased her work hours on an incremental basis so that by January 28, 2008 she was working full hours. With medical guidance it was determined the worker’s low back impairment was no worse than her 7 percent NEL award. In addition, the medical precautions identified by a WSIB Medical Consultant did not identify one relating to hours of work. As such, full or partial LOE benefits from September 19, 2007 were denied. In addition, it was determined a change in physician was not warranted. The decision was dated November 5, 2007.
The worker was off work again for the period February 1, 2008 up to and including February 11, 2008. However, she did not seek medical attention during this time and as such it could not be confirmed she was worse than her 7 percent NEL award. As such, entitlement was denied as per the Case Manager’s May 12 2008 decision.
With respect to the worker’s recurrence of December 10, 2008 entitlement was denied as per the Case Manager’s February 23, 2009 decision.
Although not an issue before me, the Case Manager denied entitlement under the WSIB’s chronic pain disability policy as per the May 12, 2008 decision.
The worker’s objections are now before the Appeals Resolution Officer.
AUTHORITY
Operational Policy Manual documents
11-01-03 – Merits and Justice
11-01-12 – Legislative Authority
11-02-02 – Lost time Claims
15-03-01 – Recurrences
17-01-02 – Entitlement to Health Care
18-03-02 – Payment of LOE benefits
18-05-03 – Assessing Permanent Impairment
EXHIBITS
Not applicable.
ASSESSMENT OF THE EVIDENCE
In rendering this decision I have considered the record, the worker’s testimony, the worker representative’s arguments and Workplace Safety and Insurance Board (WSIB) policies.
The worker provided general and specific testimony. Her general testimony will be recorded at this point with her specific testimony recorded under the appropriate issue.
Testimony - General
She had worked for the employer, the University of Western Ontario for approximately 20 years starting on September 12, 1989. Although she spent a couple of years as a level 2 supervisor the remaining time she worked as a food service assistant.
Her job responsibilities involved preparing food, serving customers, operating the cash register and dealing with the public. With respect to food preparation she indicated that she washed, chopped and cut ingredients to make sandwiches and salads. She would then make the sandwiches and salads and wrap them. She indicated the work could be very demanding depending on which cafeteria she was working in. Some cafeterias were very small while others were quite large.
With respect to her work injuries she indicated she initially injured her neck, and upper and lower back while performing the food service attendant position. Since her accident she occasionally had problems with her upper back and always had problems with her lower back on the left side. She had pain which radiated through her buttock and down her left leg.
After her injury she could not recall when she started modified work. She did recall having medical restrictions on and off for a number of years. The medical precautions accepted by the WSIB were those of no heavy lifting, repetitive bending/twisting and avoidance of static positions.
From July 2005 she performed regular duties for a period and then modified work as per her doctor’s instructions. There was a period of time when her doctor wanted her working only three hours per day. At the time of the oral hearing her family doctor had her on permanent restrictions.
Generally her symptoms were those of pain in the low back on the left side into the left buttock which generally went to the knee but occasionally it went to about mid calf. The pain did not go into her feet. She always had these symptoms. The only thing that changed was the intensity of the symptoms.
When her pain increased she felt it in the left lower back and sometimes on the right side. It would run down her left buttock and left leg. When this occurred it was if she could feel her heartbeat in her left leg. In addition, there would be a continuous throbbing in the left lower back with swelling. For all of her recurrences the symptoms were the same when her pain level increased.
After she obtained a TENS unit she found it helped a bit in the beginning as there was some decrease in her pain level and she could put her socks on more easily. She used the machine for approximately 20 minutes before she went to bed at night. In addition, even with the use of the machine she continued to have constant pain.
Since her accident she performed some of the lighter housekeeping duties around her house and some light gardening such as cutting roses and putting them in a vase. She was independent in self case but because she was stiff in the morning it took her time to put her socks on. Her husband did the majority of household chores. Prior to her accident she did perform some of the housework her husband now performed.
With respect to her social life she found she tired easily and did not get out as much as she previously did. She used to love to dance but cannot do much of that now. If she went to a restaurant she required a booth rather than a chair so that she could adjust her position more easily.
She belonged to a gym for about one year. She thought if she could strengthen her core muscles this would help. She found the exercising made her back worse so she discontinued her membership.
Her normal activities once she got home from work were as follows.
She would put the laundry on and check her e-mails. She would begin dinner by cutting up the vegetables and the like. After dinner she would watch television or read and then be in bed by 9:00 p.m.
Issue # 1: Recurrence commencing March 20, 2007 with full loss of earnings (LOE) benefits from March 20, 2007 up to but not including April 2, 2007.
Case Manager’s Position
Based on the July 4, 2007 decision, entitlement was denied on the basis a WSIB Medical Consultant opined the worker was partially impaired as of March 20, 2007 and as such was capable of performing the restricted work duties she had been doing at full hours.
Testimony
She thought she had been at work on March 19, 2007. She could not recall whether she was on modified work at the time but thought there might have been some work restrictions in place.
She could not recall there being a precipitating event which caused her to go off work. At the time she was working in her regular cafeteria performing her regular work. She was also making food for a Tim Horton’s location near the cafeteria she was working in. Her duties included the following.
Retrieving and putting back food items from the walk-in refrigerator.
Washing and chopping vegetables. She would retrieve these items from the walk-in refrigerator and wash and prepare them.
Preparing sandwiches. She would make approximately 50 sandwiches per day. The sandwiches were chicken and egg salad. The ingredients came in bags. With respect to the chicken it was in strips. She would use a chef knife and cut up about ten pounds of chicken stripes.
With either type of sandwich she would put the contents into a large bowl. She would then add other ingredients such as onion, celery and the like. The contents were then transferred to smaller containers.
She would lay the bread out on the counter and make the sandwiches. Once completed, she would wrap them. She would then apply a sticker which recorded the price, product and date made. She would then place the sandwiches in the walk-in refrigerator.
- Preparing deserts. This included cutting loaf cakes into individual pieces and wrapping each piece. Wrapping cookies individually. Obtaining tubs of yogurt from the walk-in refrigerator and preparing individual cups of yogurt.
At the time she was doing this work she was working an eight hour shift. She would stand four hours and then sit four hours doing cash.
Prior to the increase in her symptoms she thought she was taking pain and anti-inflammatory medication. After her symptoms increased she could not recall if the medication dosage increased of whether new medications were added.
With respect to onset of symptoms she could not recall if she experienced them at the end of the day but surmised she must have as she went to see her doctor. When she went to see her doctor she was experiencing left sided low back pain which went down into her left buttock into the back of her leg. She indicated that she has constant pain which can increase at any time.
She indicated that in general work activities which aggravated her condition related to getting items which were over top of the walk-in refrigerator and walking too much.
With respect to reporting of her problems she indicated her supervisor was told.
At the time her pain increased she was not performing home activities such as light gardening or putting the laundry on.
Prior to the increase in her symptoms her baseline sitting tolerance was approximately one hour. She was certain that after her symptoms increased her sitting, walking and standing tolerances changed although she could not say by how much.
When she saw her family doctor she was put off work. She could not recall being prescribed medication but thought she must have. Prior to this time she thought she had attended a lot of physiotherapy sessions. She could not recall if she had the TENS unit at that time.
While off work she kept in contact with the WSIB and her employer. She confirmed she returned to work on April 2, 2007. She thought she had returned working full hours. When asked what had changed in her condition to allow her to return to work on that day she thought her doctor had told her to return. In addition, she could not recall feeling she was unable to return. Her assumption was the combination of medication and time off work decreased her symptoms which allowed her to return to work.
Worker Representative’s Position
She noted the worker could not quite recall whether she had treatment during this time period. However, she referenced a March 22, 2007 chart note which showed the worker was prescribed physiotherapy from March 20, 2007. As such, in her opinion the worker had medical authorization for the period she was off work.
Information from the record
The WSIB accepted the worker had sustained a low back impairment which was permanent in nature. The accepted diagnosis was that of mechanical low back pain/chronic lumbar strain. Medical precautions were also identified. Initially in March 2006 the only medical precaution identified related to avoiding lifting in excess of 50 pounds. In June 2006 the WSIB also accepted medical precautions relating to avoiding continuous bending, twisting and sustained postures.
The worker had claimed for numerous recurrences prior to March 20, 2007. Recurrences in September and November 2005 were allowed along with the payment of full loss of earnings (LOE) benefits. A recurrence of November 13, 2006 was allowed for health care benefits but not for lost time sustained on November 22nd to the 24th, 2006 inclusive. The worker confirmed she had not sought medical attention during this period of lost time, hence the denial of LOE benefits for these dates.
The next recurrence commenced on March 20, 2007. The March 29, 2007 Employer’s Continuity Report recorded the worker had a flare-up of her back condition with no new injury occurring. The worker recorded on her April 24, 2007 Continuity Report that she had constant pain in her upper and lower back, left buttock with pain radiating down the left leg past the knee. She was relating her lost time from March 20th to the 30th, 2007 to her initial injury as she recorded it was the same pain, same injury, same symptoms and same medication. In addition, she recorded there was no further incident which aggravated her condition.
From a medical perspective the diagnosed condition continued to be that of low back strain.
Policy
- 15-03-01 – Recurrences
Findings
The policy document relating to Recurrences recorded the following in part.
A worker is entitled to benefits for a recurrence of a work-related injury or disease.
A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, 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.
Based on the evidence contained in the record and provided by the worker through her testimony, I accepted her circumstances met the policy requirements to be considered a recurrence. As such, the issue became whether the worker was entitled to full LOE benefits for the period in question.
Is the worker entitled to full LOE benefits for the period March 20, 2007 up to but not including April 2, 2007?
Information from the record
January 4, 2007 initial medical report from the family doctor which was based on a November 13, 2006 assessment. Although the report recorded the worker had been off work from November 22nd to the 24th, 2006 inclusive it also recorded the worker had no limitations. Medication at the time was Naprosyn.
March 6, 2007 clinical note entry from the family doctor recorded the worker’s back was not getting better. She continued to take Naprosyn. It appeared Mobicox had been added.
March 22, 2007 clinical note entry recorded the worker had been off work due to WSIB back pain since Tuesday. Work referred the worker to physio at Body Mechanics. The worker saw physiotherapy yesterday. Wants worker to take a break with physio to start April 2, 2007. Medication was prescribed. Appeared the worker stopped Mobicox due to side effects and was prescribed Celebrex instead. It was also recorded the worker was given a note for March 20th to April 2nd, 2007.
An Employer’s Subsequent Statement recorded the worker returned to full hours on April 2, 2007 with some restrictions. It was recorded the worker could sit in a chair if it was available.
A WSIB Medical Consultant as per memorandum number 24A dated June 29, 2007 opined the worker was partially impaired. The opinion was based on the family doctor’s March 22, 2007 clinical note entry and April 24, 2007 medical report.
Policies
Operational Policy Manual documents
11-02-02 – Lost Time Claims
18-03-02 – LOE Benefits
Findings
Based on Operational Policy Manual document 18-03-02 there were three scenarios under which full LOE benefits could be paid. One scenario related to a worker being completely unable to return to any type of work due to the nature or seriousness of the injury. Under this scenario the worker must be co-operating in health care measures as recommended by the attending health care practitioner and approved by the WSIB. This was the scenario which applied to the recurrence in March 2007 as the worker was claiming she was unable to perform any type of work during the period she was off work.
At the time of the lost time the worker had accepted medical precautions which according to the WSIB were those of no lifting in excess of 50 pounds, avoiding continuous bending, twisting and sustained postures. Based on the worker’s testimony she indicated that generally her symptoms were those of pain in the low back on the left side into the left buttock which generally went to the knee but occasionally it went to about mid calf. The pain did not go into her feet. She always had these symptoms. The only thing that changed was the intensity of the symptoms.
When her pain increased it was felt in the left lower back and sometimes on the right side. It would run down her left buttock and left leg. When this occurred it was if she could feel her heartbeat in her left leg. In addition, there would be a continuous throbbing in the left lower back with swelling. For all of her recurrences the symptoms were the same when her pain level increased. Work activities which aggravated her condition related to getting items which were over top of the walk-in refrigerator and walking too much.
With respect to the onset of her symptoms, the reason for the increased symptoms, treatment provided and so on the worker’s recall was vague. However it was known from her testimony that her work activities as described were demanding. I also noted the employer’s physical demands analysis information but when compared with the worker’s testimony it only provided part of the picture with respect to the worker’s work duties. It did not include the work the worker had to perform in preparing the food.
With respect to medical reporting the worker did seek medical attention and the family doctor suggested rest and medication. It was important that the worker sought medical attention as Operational Policy Manual document 11-02-02 recorded the following in part
If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot (emphasis added) be paid.
Although the worker sought medical attention this did not automatically mean she was entitled to full LOE benefits. For entitlement to be granted for this period of time, it needed to be accepted the worker was unable to perform any type of work during the period in question. With respect to this point there was a difference of opinion between a WSIB Medical Consultant and the family doctor. The former opined the worker was partially impaired for the period in question while the latter thought otherwise. In this particular case I place more weight on the family doctor’s opinion as she was assessing the worker on an ongoing basis and her prescribed treatment of rest and medication provided positive results as the worker was capable of returning to modified work as of April 2, 2007. As such, I found the worker met the relevant policy criteria and hence was entitled to full LOE benefits for the period in question. As advances were paid, payment would be directed to the employer.
Issue # 2: Recurrence commencing September 19, 2007 with full LOE benefits for the period September 19, 2007 up to but not including September 24, 2007 after which partial LOE benefits from September 24, 2007 up to but not including January 28, 2008
Case Manager’s Position
Based on the November 5, 2007 decision entitlement was denied on the basis the worker’s objective findings were no worse than at the time of the NEL assessment.
Testimony
As far as she could recall she was on modified work but working a regular eight hour shift. She continued to perform the same work which she previously described. She was working in the same cafeteria as before. She had worked in the same cafeteria three of the last four years (2007, 2008, and 2009). The cafeteria was in the North Campus Building. The cafeteria was midsized.
Once again there was no precipitating event and her doctor said as much. She indicated she always had pain but at times it became more intense. Generally the intense pain came on while she was at work.
When she saw her doctor she was told to take time off. She would not have taken time off without medical approval as she had to provide the employer with medical confirmation she could not work.
She returned to work on September 24, 2007 and started working three hours per day. With her doctor’s recommendation she gradually increased her hours to eight per day as of January 28, 2008.
With respect to treatment she could not recall if she received treatment during this time period but she thought she might have been getting physiotherapy through Body Mechanics, the Canadian Back Institute and through the university where she worked. She indicated that over time since her accident she had undergone about one hundred sessions of physiotherapy. In addition, she had some chiropractic treatment. One of her physiotherapists wrote a letter on her behalf in support of a TENS machine. She still has the machine.
Worker Representative’s Position
She noted that on August 20, 2007 which was just prior to the worker’s September 2007 lost time there was medical reporting from the Canadian Back Institute asking for approval of a TENS unit. The representative read from the report. She took this report to show the worker was receiving treatment up to the time of her recurrence.
With respect to medical reporting at the time of the recurrence she referenced the September 19, 2007 functional accommodation form and read portions of it into the record. Based on this report she noted the worker’s lifting precaution which the WSIB had accepted as being 50 pounds had been adjusted downwards to 5 kilograms. She also noted that previous functional accommodation forms had set her lifting capacity between 5 and 15 pounds.
She also referenced the September 20, 2007 initial medical report completed by the family doctor and read portions of the report into the record. She noted the medical precautions provided in this report were those of zero lifting with pushing and pulling being limited to 5 kilograms. She also noted that Tylenol #3 was prescribed along with four other medications and physiotherapy.
She opined the WSIB could not continue to say the worker was at her NEL level when the amount she could lift changed and she continued to have ongoing problems which led to numerous recurrences.
Information from the record
- April 17, 2007 NEL assessment report showed the worker’s range of motion findings to be as follows.
Flexion 15 to 29 degrees
Extension 10 degrees
Right lateral rotation 15 degrees
Left lateral rotation 15 degrees
There was an April 24, 2007 medical report from the family doctor which although not providing specific range of motion values recorded the worker’s range of motion had decreased since she saw the NEL Physician. At the time of the assessment the worker had just finished physiotherapy and continued to take Celebrex. It was also recorded there was no limitations relating to the worker working.
Memorandum # 18 dated April 24, 2007 noted the worker had called and was asking about entitlement to massage therapy and a TENS Unit. She indicated she had just finished a course of physiotherapy which had not helped.
A May 10, 2007 memorandum from the employer recorded it had received an update on the worker’s medical precautions which related to no lifting in excess of 50 pounds.
May 11, 2007 note from the family doctor which recommended massage therapy and a TENS machine for back pain management.
After a trial period the WSIB authorized a TENS machine for the worker. Authorization was provided on September 18, 2007 as per memorandum number 35. The worker would have been using a rental unit at least until September 12, 2007 as per memorandum number 33 dated August 27, 2007.
As per memorandum number 36 dated September 19, 2007 the worker left a voice message indicating she was off work due to extreme pain and making arrangements to see her doctor. When the Case Manager spoke with the worker, she indicated that there was no precipitating event which caused her pain to increase. The worker also indicated that she would be seeing her doctor the next day.
The worker provided two Continuity Reports one dated September 24, 2007 and the other dated March 23, 2008. In the September 2007 report she recorded she was lifting 20 plus number ten boxes overhead and did not feel pain immediately but later at night. She also indicated that she had constant pain but it was worse after lifting the boxes. In her March 23, 2008 report she provided similar information relating to lifting boxes. However, in this report she indicated she was not certain whether the lifting of the boxes was the cause of her problem. She also recorded that on September 19, 2007 she could hardly walk.
The employer provided an Employer’s Continuity Report dated September 24, 2007 which recorded the worker had a flare-up of her back with spasm. The report also recorded there was no new injury.
There was a completed functional accommodation form prepared by the family doctor based on a September 19, 2007 assessment. Treatment consisted of medication. The form also recorded the worker could return to work with modifications. The modifications were those of alternating positions, avoiding repetitive bending, twisting and pushing and pulling and lifting greater than 5 kilograms. It also recorded the worker should work modified hours of three hours per day for two weeks after which re-evaluation would occur.
The family doctor also provided a September 20, 2007 medical report. In this report it was recorded that on September 18, 2007 the worker was lifting boxes but was uncertain if this was the cause of her further problems. On examination flexion was reported to be 5 degrees, extension at 15 degrees with lateral flexion being reduced although the number of degrees of active motion was not provided.
It was also reported the worker was waiting to see a specialist on September 26, 2007 for her NEL.
A WSIB Medical Consultant as per memorandum number 39A dated October 29, 2007 compared the active range of motion findings provided by the family doctor in his September 20, 2007 report with those from the September 26, 2007 second NEL assessment forms. Based on the NEL assessment forms the active range of motion findings were flexion 5 degrees, extension 10 degrees and right and left lateral flexion of 2 degrees. Based on the comparison he found the worker was not below her NEL level between September 19th and September 24, 2007. He/she also commented on medical precautions which included avoiding heavy lifting, avoiding bending and twisting and avoiding prolonged static positions.
In memorandum number 40 dated October 11, 2007 the worker told her Case Manager that she had been working three hours per day since September 24, 2007 as per her doctor’s advice. She also indicated she was to see her doctor again on October 18, 2007.
An April 24, 2008 Health Professional’s Continuity report showed that after September 20, 2007 the worker was seen on October 2nd and the 18th, November 1 and the 15th, one day in December and January 28, 2008. During this period treatment consisted of medication.
The worker’s March 23, 2008 Continuity report provided the following information relating to dates she saw her family doctor, treatment prescribed and hours of work from September 20, 2007.
With respect to dates she saw her family doctor these were listed as September 20th, October 2nd and 18th, November 1st and 15th 2007. She recorded that at that point the doctor provided a functional accommodation form once per month.
With respect to treatment she utilized a TENS machine two times daily for 15 to 30 minutes. Through Rehab Services with the employer she received a disabled parking permit. She also used an Obus form and back roll along with Tylenol # 3 and two other medications.
With respect to hours worked from September 24, 2007 up to and including October 19th she worked three hours per day. From October 22, 2007 to November 2nd she worked four hours per day, from November 5th, 2007 up to November 23rd she worked five hours per day, from November 26th to December 31, 2007 she worked six hours per day, from January 1, 2008 to February 1st she worked seven hours per day and as of February 4, 2008 she worked eight hours per day. During this time she was working with medical precautions relating to alternating position every 30 minutes, avoiding repetitive bending, twisting, pushing and pulling.
Policies
Operational Policy Manual documents
11-02-02 – Lost Time Claims
15-03-01 – Recurrences
18-03-02 – LOE Benefits
Findings
The evidence supported a finding the worker sustained a recurrence of her symptoms versus a new accident as of the date she laid off work in September 2007. She had ongoing impairment related to her low back noting the WSIB had determined she had a permanent impairment. At the time of the recurrence the worker had already undergone a NEL assessment in April 2007 but the findings were not accepted by the NEL Clinical Specialist. A second NEL assessment did not occur until September 26, 2007 at which point the worker was back to modified work working modified hours. There was no evidence that a new accident occurred to increase her symptoms. As such, the issue became whether the worker was entitled to either full or partial LOE benefits from September 19, 2007 up to January 28, 2008.
With respect to the issue of LOE benefits, Operational Policy Manual document 11-02-02 titled Lost Time Claims recorded the following in part.
If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot (emphasis added) be paid.
In this case the worker did see her doctor. As such, she met the criteria for consideration of LOE benefits. Hence, the question became whether the worker met the policy criteria set out in Operational Policy Manual document 18-03-02 titled Payment of LOE benefits. Under this policy there were three scenarios recorded by which a worker could be entitled to full LOE benefits. Of the three, two are applicable to this case. In the first scenario a worker required medical reporting to show that the nature or seriousness of the injury precluded him/her from performing any type of work while the second scenario required the worker to agree he/she was capable of modified work and was co-operating with the employer in early and safe return to work activities. Such activities would include returning to suitable modified work offered by the employer or assisting the employer in identifying the same.
With respect to scenario number one, a WSIB Medical Consultant opined the worker was not below her NEL level for the period September 19, 2007 up to but not including September 24, 2007. Although not explicitly stated, the Medical Consultant was saying the worker was partially impaired and able to work within the medical precautions identified. This opinion was in keeping with the medical reporting provided by the family doctor as per the September 19, 2007 functional accommodation form and the September 20, 2007 medical report. The only difference being the family doctor was of the opinion the worker should return to work working three hours per day to start.
It was known the worker was completely off work from September 19, 2007 returning to modified work on September 24, 2007. In my opinion the medical information provided by the family doctor showed the worker continued to be capable of performing modified work but at reduced hours. As such, I find she was not entitled to full LOE benefits for this period.
With respect to the family doctor’s recommendation that the worker return to work with accommodation and modified hours this would appear appropriate for the following reasons.
I was aware the second NEL Assessor expressed concerns about the accuracy of the range of motion findings recorded in his September 26, 2007 assessment forms. The reason for his concern was because the worker was pain focused and the active range of motion findings were not in keeping with the CT scan results. What he was not aware of was the worker had experienced an exacerbation in her symptoms some eight days prior to the NEL assessment. As such, she was still in the acute phase of her recovery. Hence a decision maker would expect range of motion findings to be worse in the early stage of recovery. Technically her recovery did not occur until January 28, 2008 when she once again returned to her pre-accident work hours with accommodation.
In addition, the objective findings provided by the second NEL Assessor were not that dissimilar to those provided by the family doctor in his September 20, 2007 report.
Also, although the range of motion findings found in the initial NEL assessment forms were not used to calculate the worker’s NEL award, they did help in determining whether her condition had deteriorated from April 17, 2007 to September 26, 2007. The following chart showed that in fact the worker’s range of motion findings had deteriorated.
1st NEL Assessment April 17, 2007 2nd NEL Assessment September 26, 2007
Flexion 15 to 29 degrees 5 degrees
Extension 10 degrees 10 degrees
Right lateral flexion 15 degrees 2 degrees
Left lateral flexion 15 degrees 2 degrees
In addition her lifting medical precaution changed to less than five kilograms after her September 2007 recurrence.
Based on the evidence I find that from for the period September 19, 2007 up to January 28, 2008 the worker was partially impaired. I accept the family doctor’s opinion the worker was to return to work on modified hours commencing at three hours per day. The three hours per day would commence as of September 19, 2007 as I found she was capable of performing modified work as of that date versus not being able to work at all as she claimed.
With respect to the payment of LOE benefits there was little in the way of information from the family doctor in report form or by way of functional accommodation forms indicating at what point the worker was to increase her work hours. I gather the employer was provided with the requisite information as it did not contact the WSIB to indicate it did not have appropriate medical information to support the need for incremental work hours. As such, I accepted the worker’s need for incremental work hours was supported by medical reporting.
Also, although the worker provided information relating to her hours of work and when they increased, this information will need to be confirmed with the employer. Once confirmation is obtained the payment is to be made to the employer as advances were paid.
Issue # 3: Percentage of the non-economic loss (NEL) award.
NEL Clinical Specialist’s Position
Based on the November 13, 2007 decision the NEL Clinical Specialist determined the worker’s degree of permanent impairment to be 7 percent.
Testimony
Not applicable.
Worker Representative’s Position
She noted the worker underwent two NEL assessments as the first one was not accepted by the WSIB. With respect to the second assessment the worker received a letter which indicated she and the employer had to agree on the NEL Medical Assessor. She opined the Act did not give the WSIB the authority to allow the accident employer to participate in the NEL Roster Physician selection. She further stated that in her opinion an error was made in allowing the employer to participate in this process.
With respect to the need for two NEL assessments she noted the worker had had numerous recurrences post her initial NEL assessment. She opined this gave one pause to question whether the second NEL assessment was accurate. She opined that the first assessment might have produced another outcome as well as a different treatment outcome. She asked me to consider the first NEL assessment.
She also asked that if I could not change the percentage of the NEL award that I recommend a NEL reassessment and perhaps a Regional Evaluation Centre Assessment as she was of the opinion it was not beneficial to the worker if she continued to have recurrences.
Policies
Operation Policy Manual documents
11-01-12 – Legislative Authority
18-05-03 – Assessing Permanent Impairment
Findings
With respect to the worker representative’s first concern relating to the WSIB’s authority to allow the employer to participate in the process of selecting the second NEL Roster Physician I would say this.
I would agree that the legislation and current policy 18-05-03 do not make mention that the employer was to be involved in the process when a second NEL assessment was deemed necessary. However, I am not certain whether the previous policy recorded that both parties were to be involved noting the current policy applies to all decisions made on or after July 2, 2008, for accidents on or after January 2, 1990. In this case the decision to request a second NEL was made in 2007 which meant the current policy did not apply.
If the previous policy did not specifically indicate the employer was to be involved in the selection process, then based on the fact there was a form letter sent out, I would conclude that it was the WSIB’s practice and/or procedure at the time to involve both parties. Operational Policy Manual document 11-01-12 titled Legislative Authority did provide the WSIB with the authority to develop its own policies, practice and procedures.
Regardless, I really did not see where the mutually agreed to selection of a NEL Roster Physician in this case was a detriment to the worker. The reason being, all NEL Roster Physicians were provided with the appropriate medical reporting from the record and report forms to complete by the WSIB. Also, the NEL Roster Physicians were experienced in obtaining range of motion findings and other necessary clinical information as per the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition Revised.
With respect to the issue of the percentage of the worker’s NEL award, in the case of a low back impairment, the following factors are considered.
Abnormal range of motion findings
Specific Disorders of the Spine
Neurologic impairment (sensory and motor deficit)
In this particular case the worker’s NEL award was determined based on impairment for Specific Disorders of the Spine only. Although there was a point of contention between the two NEL Assessors as to the severity of the impairment under this category, one recording category B and the other recording category C, the NEL Clinical Specialist used the later as it provided a higher percentage of award than if category B was used. This action resulted in the worker receiving a 7 percent NEL award.
A review of both NEL assessments showed that neither NEL Assessor found the worker to have neurologic impairment. As such, there was no impairment value to include in the NEL calculation.
With respect to abnormal range of motion findings the NEL Clinical Specialist did not accept the information provided by the initial NEL assessor as it showed the worker had marked limitation whereas earlier medical reporting including a May 2006 physiotherapy report showed the worker had full range of motion. What the NEL Clinical Specialist might not have realized was the worker was just recovering from a recurrence in March 2007 and at the time of the April 17, 2007 NEL assessment was just in the process of completing her physiotherapy. I believe the physiotherapy stopped on or about April 24, 2007 which was one week after the April 17, 2007 NEL assessment. I would doubt that one additional week of physiotherapy would have dramatically changed the range of motions findings. However, the recurrence more probably than not explained why the range of motion findings had deteriorated over time. As such, it would be reasonable to conclude that the April 17, 2007 range of motion findings more likely than not represented the worker’s ongoing degree of permanent impairment at that time.
This conclusion was supported by the first NEL assessor as she ticked off the box indicating that she was satisfied the medical assessment of the area of permanent impairment accurately reflected and was consistent with the WSIB medical section sent.
I also noted the comments from the second NEL assessor who saw the worker on September 26, 2007. Based on the reporting provided, range of motion findings were worse than those found in the April 17, 2007 NEL assessment. At the time of the second NEL assessment the NEL Assessor commented the worker was pain focused and the range of motion findings were not in keeping with the CT scan results. What the NEL Assessor appeared not to be aware of was the worker was in the acute phase of a recurrence which began on September 19, 2007. As such, he was correct in noting the range of motion findings were not consistent with what one would expect to see based on the medical reporting in the record as after all, when he saw the worker her condition was supposed to be static which of course it was not. As such, I would conclude the second NEL assessment was not valid.
One of the worker representative’s suggestions was that a NEL determination be granted. I found such an assessment would not resolve the issue of the worker’s retroactive degree of permanent impairment which currently stood at 7 percent. The reason being, the results would reflect her degree of permanent impairment now, which might be better or worse than they were back in 2007. As such, a more accurate reflection of the worker’s degree of permanent impairment would result by using contemporaneous medical reporting. Hence, I would agree with the worker representative’s second suggestion, that being, use the results of the first NEL assessment for NEL calculation purposes. Although the NEL Clinical Specialist had some concern about the accuracy of the range of motion findings, in my opinion, when one considered the evidence in its entirety, the findings recorded were in fact an accurate reflection of the worker’s degree of permanent impairment at the time. As such, the worker’s NEL award is to be recalculated to include the range of motion findings recorded in the relevant April 17, 2007 NEL assessment reporting forms.
Issue # 4: Recurrence commencing February 1, 2008 with full LOE for the period February 1, 2008 up to but not including February 11, 2008.
Case Manager’s Position
Based on the May 12, 2008 decision, entitlement was denied on the basis the worker did not seek medical treatment during the period of time in question. As such, it could not be determined whether she was temporarily worse than her degree of permanent impairment which was 7 percent.
Worker Representative’s Position
As there was no medical reporting for this period of lost time she was relying on the worker’s testimony to request loss of earnings benefits be paid.
Information in the Record
The employer provided a Continuity Report dated March 10, 2008. In this report it recorded the worker had a recurring back injury/back irritated with no new injury. Other information showed the date last worked was February 1, 2008.
The worker indicated she did not see her doctor when she went off work and that she was off for one week.
The family doctor completed a Continuity Report dated April 24, 2008. The report referred to the worker’s lost time in February 2008 although it was evident from the report the physician did not see the worker for her lost time in February 2008. The diagnosis continued to be that of strain/sprain of the low back.
Policies
Operational Policy Manual documents
11-01-03 – Merits and Justice
11-02-02 – Lost Time Claims
18-03-02 – LOE Benefits
Findings
It was known the WSIB recognized the worker had a permanent impairment relating to her low back for which she was in receipt of a 7 percent NEL award. The fact she had a NEL award did not preclude her from receiving full LOE benefits if it could be shown that at the time of the lost time a permanent or temporary deterioration in her degree of permanent impairment had occurred.
The worker’s representative acknowledged the worker did not seek medical attention during this period of time and asked that I rely on the worker’s testimony to grant entitlement. To comply with the representative’s request, as per the WSIB’s Merits and Justice policy I would need to be satisfied that by applying the relevant policy an absurd or unfair result that the WSIB never intended would occur.
The worker’s testimony was as follows
She had just returned to work on January 28, 2008. She had told her doctor she did not think she was ready to go back to full time hours but her doctor told her to go to work and she did. She was still in a great deal of pain when she returned. When she returned to work she thought she was on modified work doing the work previously described but at full hours.
With respect to what caused her to go off work she indicated nothing specific came to mind although she thought she had returned too soon. She indicated that her pain fluctuated and it could be increased by changes in the weather.
Also it was noted the worker did not seek medical attention during the period she was off work in February 2008.
Operational Policy Manual document 11-02-02 titled Lost Time Claims recorded the following in part.
If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot (emphasis added) be paid.
In addition, Operational Policy Manual document 18-03-02 titled Payment of LOE benefits recorded three scenarios under which a worker could be entitled to full LOE benefits. Of the three scenarios two were applicable to this case. In the first scenario one required medical reporting to show that the nature or seriousness of the injury precluded the worker from working while the second scenario related to the worker accepting she was able to perform some type of work and was co-operating with the employer in identifying appropriate work.
With respect to the first scenario, I required objective medical evidence which included range of motion findings and neurologic deficits if present, to compare with the objective findings recorded in the April 17, 2007 NEL assessment to determine whether the worker’s degree of permanent impairment was worse during the period in question noting I was dealing with an organic impairment. Increased pain without objective medical evidence to support the necessity for lost time was in of itself insufficient reason to grant full loss of earnings. Although I could accept the worker had periods in which her pain increased, without objective medical evidence to show a permanent or temporary deterioration in her degree of permanent impairment had occurred, it could not be concluded she was unable to perform any type of work due to the nature or seriousness of her injury.
The second scenario by which a worker could be entitled to full LOE benefits was if he/she was co-operating in early and safe return to work (ERSTW) activities and continued to have a full wage loss. In this case, prior to her February 2008 lost time the worker had been co-operating in ESRTW activities as she was performing her pre-accident job with accommodation. After she returned to work on February 11, 2008 she returned to the same type of work. This meant the work was available to her during the period she was off work. Had she continued performing this work there would have been no wage loss.
The above analysis would be applied to similar fact situations in other claims. In addition, not all claims for lost time are approved by the WSIB or for that matter the Workplace Safety and Insurance Appeals Tribunal. As such, it cannot be said that by applying the relevant policies to the fact situation related to the February 2008 lost time, that an unfair or absurd result not intended by the WSIB would result. As such, I found the worker was not entitled to full LOE benefits on the basis the nature or seriousness of her injury precluded her from performing any type of work. In addition, I found she was not entitled to full LOE benefits on the basis she was co-operating in early and safe return to work activities as she was not.
Issue # 5: Recurrence of December 10, 2008 with full LOE benefits from December 10, 2008 up to but not including December 17, 2008.
Case Manager’s Position
As per the February 23, 2009 decision entitlement was denied as the worker had not sought medical attention.
Testimony
Three times per year the staff was moved amongst the 17 cafeterias at the university. Some of the cafeterias were much larger than others. The moves occurred in the summer, at Christmas time and during Reading week.
Prior to going off work she was working at a different location that being at the “Subway” in the University Community Centre. While working her restrictions continued to be those of standing half of the time and sitting half of the time. Her job duties included the following.
She started at 6:30 a.m. to bake bread. As I understood it she first would get heavy items out of the fridge. She would then get heavy trays off the rack for proofing. She would then put the trays on the racks and then put them into the oven. With this work she was constantly bending and twisting. In addition, although she was supposed to be sitting for half the time this did not occur. The reason being, while she was sitting and working cash she was constantly getting up to obtain cookies for the “combo” deals or heating up apple pies in the microwave and the like. She performed this work for two days then was off for the week-end and then worked two more days.
She expressed concerns to the area Manager and she also provided him with a copy of her restrictions. He looked at the restrictions and said his superior had told him the job she was doing was within her restrictions and as such nothing changed.
She also indicated that she asked the University to have an Ergonomist perform an assessment on the work she did but it was not done. It was her understanding there was a cost issue.
She also indicated that she had not undergone an assessment at a WSIB Regional Evaluation Centre.
Worker Representative’s Position
She noted the worker testified that she had spoken with her manager and provided him with her medical precautions as she had concerns about the suitability of the work being performed. Her manager replied it was appropriate and to get on with it.
She acknowledged there was no medical reporting for this period of lost time but she noted the worker’s testimony showed she was specific about where she worked and what she was doing at the time she stopped working. She noted that because of the work she was performing she was unable to sit for four hours as per her medical precautions.
She was of the opinion the worker was a credible witness who testified that she had received quite a bit of physiotherapy through her employer and elsewhere. She asked that before denying entitlement I obtain information from these sources.
Also, she referenced Operational Policy Manual document 18-03-02 which related to the payment of loss of earnings benefits.
Information from the Record
The worker was off work from December 10, 2008 returning to work on December 17, 2008 working half days for December 17th to the 19th, 2008 and then full hours when the school term recommenced on January 5, 2009.
There were worker and physician Continuity Reports and they have been well summarized by the Case Manager as per memorandum number 53 dated February 18, 2009. As such this information will not be repeated in this decision.
Policies
Operational Policy Manual documents
11-01-03 – Merits and Justice
11-02-02 – Lost Time Claims
18-03-02 – LOE Benefits
Findings
The worker representative acknowledged that there was no medical reporting for the period in question and asked that before I considered denying the lost time that I attempt to determine whether she received treatment from the employer or other sources. I have not complied with this request as the worker was well aware from various decisions made in her claim of the importance of medical reporting and medical authorization when considering entitlement to LOE benefits. The worker’s objections were assigned to me on March 2, 2009 and the oral hearing occurred on November 18, 2009. Between these two dates a period of approximately eight months elapsed. This was more than enough time for the worker to obtain the medical information on her own.
In addition she would not be entitled to full LOE benefits based on the same rational as recorded under Issue # 4.
Also, the worker representative was of the opinion an ergonomic assessment of the worker’s work duties would be useful noting the number of recurrences she had experienced. I was not certain what such an assessment would accomplish noting for the most part the worker was unable to relate her increase in symptoms to any particular work activity.
Nevertheless, the worker and/or her representative are free to approach the Operations Section or the employer with the request. I included the employer as it was my understanding from the worker’s testimony it had access to such a resource. For my part, I made no specific finding as to entitlement to an ergonomic assessment as the issue was not properly before me.
Issue # 6: Entitlement to Massage Therapy
Case Manager’s Position
See July 4, 2007 decision.
Testimony
- She indicated that during the periods she was off work she had massage therapy and used a TENS unit. She found both types of treatment helpful. She was not out of pocket for the massage therapy as the employer benefit plan paid for it. What she was asking was to have this type of treatment available to her in the future.
Worker Representative’s Position
She noted the worker had already had the treatment but because it was not allowed as part of this claim her doctor had to provide her with a different diagnosis so that she could claim through her extended care benefits plan with the employer.
She referenced the relevant health care policy and read portions of it into the record. Her primary point was the worker might require this type of treatment in the future and she hoped it would not be unjustly withheld.
Policy
Operation Policy Manual document 17-01-02 – Entitlement to Health Care
Findings
With respect to the issue of the massage treatment the worker had already received but was not accepted by the WSIB, there was no issue for me to address. The reason being, the costs of the treatment were covered by the employer’s benefit plan.
With respect to the issue of massage therapy being available to the worker in the future, the relevant policy recorded that a massage therapist was included as a health practitioner accepted by the WSIB. As such, in appropriate cases a worker could receive massage therapy with the costs of the treatment being paid for by the WSIB.
I got the impression the worker representative was asking me to direct the Operations Section to allow for massage therapy should it be required in the future. If my impression was correct I am unable to comply with her request. The reason being, the WSIB determined what medical treatment to accept on a case by case basis. As such, all I could say on this issue was that should massage therapy be recommended in the future that the worker obtain pre-approval from the WSIB before commencing the treatment.
As such I make no finding on this issue.
CONCLUSION
The objection is allowed in part.
Entitlement
Full LOE benefits for the period March 20, 2007 up to but not including April 2, 2007. Advances were paid.
Partial LOE benefits commencing September 19, 2007. As of that date I deem the worker capable of working three hours per day. She increased her hours of work incrementally over time until she was capable of performing eight hours of work as of January 28, 2008.
The hours worked during the period in question need to be confirmed with the employer. If the employer’s records show a different return to eight hour working days than January 28, 2008, the employer’s date is to be used. The worker is to be paid for the hours not worked during the period in question. Advances were paid.
- The worker’s NEL quantum is to be recalculated to include the range of motion findings found in the first NEL assessment report of April 17, 2007.
No entitlement
To:
Full LOE benefits from September 19, 2007 up to but not including September 24, 2007. For this period I determined the worker was entitled to partial LOE benefits on the basis she could have worked three hours per day during this time period.
Full LOE benefits for the period February 1, 2008 up to but not including February 11, 2008. There was neither contemporaneous medical authorization to be off work nor medical treatment sought for this period of lost time.
Full LOE benefits for the period December 10, 2008 up to but not including December 17, 2008. There was neither contemporaneous medical authorization to be off work nor medical treatment sought for this period of lost time.
No Finding
- Entitlement to massage therapy.
DATED January 12, 2010
Bob Howarth
Appeals Resolution Officer
Appeals Branch