WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20100034
OBJECTION BY: Worker
EMPLOYER: Participating
HEARING DATE: October 14, 2009
ATTENDEES: Worker, Worker Representative, Employer Representative
ISSUE
Initial entitlement was granted under this claim following the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision of November 5, 2008. The case manager’s decision of March 23, 2009 limited entitlement to loss of earnings (LOE) benefits for the period October 17 to 23, 2006. The worker objects to this decision and seeks additional LOE benefits and services from December 2, 2006 and ongoing.
HOW THE ISSUE ARISES
The worker was employed as an electrician and began his employment in December 1998. On October 11, 2006, at 28 years of age, he returned to the work site after having lunch and stepped in a manhole cover injuring his back. The diagnosis was sciatica and medication as well as physiotherapy was prescribed.
The claim was initially allowed for no lost time. Then, in December 2006, the worker claimed further LOE benefits. Another adjudicator reviewed all of the information on record at that time and revoked initial entitlement indicating the worker’s injury did not arise out of and in the course of his employment. The worker objected to this decision and the matter was referred to the Appeals Branch for review.
The appeals resolution officer (ARO) decision of September 12, 2007 confirmed the adjudicator’s decision to deny initial entitlement. The worker again objected and the matter was reviewed by WSIAT.
In their decision of November 4, 2008, WSIAT concluded the worker was in the course of his employment on October 11, 2006 when, after eating lunch at the nearest restaurant, and on his way back to the job site, he stepped in the manhole cover injuring his back. Initial entitlement was re-established for a back condition resulting from the accident and the claim was remitted to the WSIB to determine the nature and duration of benefits flowing from the decision.
A claims investigation was necessary to gather all of the outstanding details including medical documentation as well as statements from the workplace parties.
The worker claimed LOE benefits from October 17, 2006 to October 23, 2006, and then further LOE benefits from December 1, 2006 and ongoing. The claims investigation confirmed that he was receiving benefits from Great West Life Insurance Company (long-term disability).
From October 23 to November 30, 2006, the worker had returned to work with the employer performing modified duties and working his regular 36 hours per week, at four days per week.
The claims investigation revealed that while a passenger in his brother’s car on
December 2, 2006, the worker claimed that he suffered a sudden, spontaneous worsening of his back condition. He said he did not return to work following this. He requested his Record of Employment (ROE) in March 2007 from the employer and did not attempt to return to even modified duties after December 2, 2006.
The investigation also revealed a medical history of the worker reporting he injured his lower back in January 2004 while getting out of a bathtub. He said he was off work from January until December 2004, and then returned to work and had no further issues with his back until October 11, 2006.
The adjudicator reviewed all of the information obtained from the claims investigation and concluded the worker was entitled to LOE benefits for the period October 16 to 23, 2006 only. Entitlement to benefits from December 2, 2006 and beyond was denied as a causal link between the aggravation of October 11, 2006 and the spontaneous onset of back pain on
December 2, 2006 could not be established. Initial entitlement was granted on an aggravation basis with the aggravation effectively ceasing on November 9, 2006 when the worker self-discharged himself from the program of care with few restrictions.
The adjudicator acknowledged that the program of care typically is 12 weeks in duration and the worker commenced his program of care on October 18, 2006. He then self-discharged himself three weeks later on November 9, 2006 and continued to work his full regular hours throughout. He did not seek additional treatment and at the time of discharge the only restrictions listed were the avoidance prolonged standing and ladder climbing. There were no lifting, carrying, bending, pulling or pushing restrictions. The adjudicator ascertained that the worker’s back condition had essentially resolved as of November 9, 2006 and noted he chose to remain on modified duties and his employer chose to continue accommodating him in this way. As a result, LOE benefits were limited for the period October 16 to 23, 2006 only. All of the above was explained in the case manager’s decision of March 23, 2009. The worker objected to this decision and the matter was referred to the Appeals Branch for review.
AUTHORITY
Operational Policy
11-01-01 – Adjudicative Process
11-01-15 – Aggravation Basis
ASESSMENT OF THE EVIDENCE
I have reviewed the record and have considered the matter.
The worker testified that he only worked for this company as an electrician and did not perform electrician duties with any other employers.
Reference was made to the December 2003 medical reporting with regard to the time that he fell out of a bathtub. The worker acknowledged this and confirmed that he was on benefits with Great West Life at the time for about six months and then returned to work. Treatments consisted of physiotherapy. With reference to the bathtub incident, the worker estimated his pain level a 4 or 5 on a pain scale of 1 to 10.
In January 2004, he said his range of motion was slightly impaired but he was not completely debilitated. He said he had difficulty bending forward but had difficulty recalling specifics as quite some time had passed since that time. He confirmed he was taking Vioxx, an anti-inflammatory medication in January 2004 and recalled that he was on this medication up until June 2004, to the best of his recollection.
Reference was also made to Dr. Quok’s report of April 21, 2004. The worker confirmed that this assessment was arranged by Great West Life. The report referenced back difficulties from snow shovelling and the worker confirmed this. In January 2004, the family physician sent him for a CT scan which identified a small disc bulge. He then had an MRI in May 2004 and he said this was also arranged by Great West Life. He said at that time, his functional abilities were limited to some degree but he was not bedridden.
The worker also confirmed that he was born with a hole in his heart but said this did not affect him in any way. He said he was still able to play hockey and participate in other activities without difficulty.
After the bathtub incident, he attended Totenham Physiotherapy which included flexion and extension exercises. He said his family doctor referred him for this treatment. From January to June 2004, he said he experienced no weight loss and his diet was not impacted in any way. He had no difficulties with his medication regime at that time. He explained that from
January 2004 into June 2004, he was experiencing pain in his buttock area and hamstring area of the right leg. He explained that he was off work from January to December 2004 but this period of lost time was not only due to the low back injury. He explained there was a shortage of work with the employer and said there were also some political issues other than his back injury which was the reason why he was off work for part of this time. He explained his father is part owner of the company. He said some political issues and issues that his father had with his other partners required him to be off work for some of this period of time as well.
Reference was made to the employer’s submission of 2007 which explained he had returned to work in 2005. The worker maintains that he returned to work to his regular duties in 2005 which included climbing ladders, pulling wire, working on motors, and working in tight quarters. He explained he had no difficulties doing the job at that time.
The worker’s representative made reference to the clinical notes in 2005 which indicated he was still seeing his family doctor. The worker explained that he was not taking any medication nor was he undergoing physiotherapy in 2005. Towards the end of 2005 and the beginning of
January 2006, reference was made to the employer’s payroll records which indicated he missed periodic dates from work. The worker explained that his absences from work were not due to the back injury from January to March 2006. He explained as he was off for personal reasons. He explained he was going through a divorce during this time and said his father was aware of this. He said he was unaware as to whether the other partners of the company knew of his situation.
Reference was made to the investigation notes and specifically the Great West Life application of March 28, 2006. The worker applied for a union disability application to Great West Life Insurance when he stubbed his baby toe against the wall. He said he could not work because of the toe injury.
He said he also applied for short term disability in June 2006 for difficulties with the low back and made an application to Great West Life for this as well. He said he was off from May 16 to June 12, 2006. He explained he was reaching for a box and strained his back and groin area. He explained that on a pain scale of 1 to 10, his pain level was a 3 or 4 out of 10 during this time. Functionally, he explained that his family doctor told him to take it easy but to keep active. He said his range of motion was not that limited and said he could bend forward. He experienced no weight loss at that time.
For the year 2006, the worker summarized and explained he had the toe injury in March 2006 and also had the back incident in May or June 2006. He also explained that during the period from January to June 2006 he was having matrimonial difficulties and this coincided with these two incidents. On June 12, 2006, his benefits with Great West Life ended but he did not return to work with the accident employer until September 2006. The first job he worked at was at the University of Guelph. He said his work involved carrying heavy wire upstairs and this required two people to do it. He also did some ladder work but had no difficulties performing this work. He worked 7 am to 4 pm and worked for a few weeks at this job site until they went to the Brampton Performing Arts Building and then following this the William Osler Hospital for other jobs as well. The nature of his work involved running conduit, drilling. He explained there was no need for any physiotherapy or medication during this time and he had no difficulties with his back.
He then again summarized the details of the October 11, 2006 accident. He explained that his leg fell through the manhole with his left leg going into the hole and his right leg staying up causing him to jar his back. He said he caught his chest on the front of the manhole. His groin was also scraped inside the left leg. He said his co-worker assisted him to get out of the hole. Right after this, he testified that his back, leg and groin area were all in discomfort. He said he went back to the office and tried to finish up the day and then went home.
He initially attended the family physician but did not see him as the doctor was too busy. The next day, on October 12, 2006, he attended the hospital emergency for assessment. At the time, he explained his back was sore with leg and groin pain as well. He said the pain was like a jabbing, steady, throbbing pain.
Reference was made to the Employer’s Report of Injury/Disease (Form 7) that indicated he returned to work to his regular duties on October 12, 2006. The worker explained that he performed modified duties during this time. He said that his pain scale was about a 7 or 8 out of 10 during this time. He explained he had limited forward and backward flexion was on medication and pain killers and muscle relaxants with anti-inflammatory medication being prescribed as well. He said he attended Totenham Physiotherapy in October 2006 and the physiotherapy report indicated that he later self-discharged himself in November 2006. The worker explained that he was not fully recovered but discharged himself because he could not afford to pay for the physiotherapy treatment at the time. He said his WSIB claim had not yet been approved and he needed to pay for the treatment on his own and he could not afford it.
From November 9, 2006 to December 2, 2006, the worker explained that he was at work doing very light duties during this time. He did not perform any heavy work at all and said this was confirmed by the statement of his co-worker, as confirmed in the investigation notes. He said the co-worker’s statement confirmed he was performing light duties during this period.
Reference was made to the office secretary’s statement, which indicated the worker, returned to work to his regular duties. The worker disagreed with this statement and indicated that the secretary was never on the job site and he disagreed with this statement. He explained that during this time, his pain was not as bad in the morning but it did get worse by the end of the day.
Reference was also made to the December 2, 2006 incident. The worker explained that he was pulling into a Tim Horton’s restaurant and felt an onset of pain in his back. He said he was just sitting and felt the pain come on with intense pain down his back. He explained this had never happened before. He said the pain just came on. He explained he was slow to get out of the car. He said he was in a lot of pain with the pain travelling down his right leg and sometimes into his left leg.
He explained that after the December 2, 2006 incident, he was in extreme pain for the first six months and was almost bedridden. He said the pain was worse than ever and he was unable to perform anything or do any household activities such as washing the dishes, doing the groceries, et cetera.
In January and February 2007, he explained his range of motion was very limited and this did not improve until approximately October 2007 when he had nerve blocks done that seemed to help to some degree. He was also on medication during this time. He also attended the Canadian Back Institute for physiotherapy treatment.
The worker also said he lost a lot of weight during this time and explained that he could not eat because of the pain he was in and the medication he was taking. He said that after eating he felt nauseous and this caused him to lose a lot of weight. He said he never returned to work after the December 2, 2006 incident as an electrician. He explained that he was on Great West Life Insurance benefits until approximately August 2009. On August 10, 2009, he started working with a new employer, as a building systems coordinator. He explained that after
December 2006, he could not return to work and perform the duties of an electrician but still did his exercises and has occasional pain. He explained that his doctor really helped him and arranged for the specialists, who also helped his condition. He explained that he never needed surgery because of the back difficulties.
Reference was made by the employer’s representative of the worker’s statement provided to the claims investigator. On Page 5 of the investigation notes, the worker explained that following the January 2004 home incident while getting into the bathtub, he was off work from the accident employer from January to December 2004. The investigation notes confirm the worker’s statement indicating that he was fine as far as his back was concerned with no ongoing medical or complaints after this incident until October 11, 2006. The employer’s representative made reference to the May 2006 incident. The worker acknowledged that he did make a complaint in May 2006 and just said that he did not recall the incident at the time he was questioned by the investigator. He acknowledged this was the one complaint of low back discomfort following the bathtub incident.
The employer representative also made reference to the incident when the worker was in his garage and felt pain in his right leg. At the time he was on medication and physiotherapy was prescribed as outlined in the June 2006 medical notes. The worker explained that he did not undergo physiotherapy despite what may have been noted in the report. Reference was also made to the family physician’s June 2006 medical note where it indicated that the worker had back pain and pain with leg raising with a diminished range of motion. The worker said it was not that bad despite what is recorded in the record. Treatment consisted of medications and the report indicated he was to start physiotherapy. The worker explained that he never did undergo physiotherapy. He said that he had pain down his right leg at this point but that it had resolved.
During the period July, August and September 2006, he said he had no treatment to his back. He said he returned to work with the accident employer at the end of August or the beginning of September 2006. He explained that he was doing another project with his brother-in-law from the middle of July to sometime towards the end of August or beginning of September 2006. He said his father knew what was going on in his life at the time and he needed to complete this project because of his family issues and that it was a side job that he did on his own with his brother-in-law. He explained that he began this side job the year before, sometime in 2005 when he was working for the employer. The job was completed in late August or early September 2006.
Reference was also made to the January 3, 2006 medical report indicating the worker returned to work to his regular full duties. The worker explained that he was able to work full days on light duties. The employer’s representative made reference to the employer’s time records and stated that for the first week he worked four days, the following week he worked four days, and the week ending November 11, he worked five days. On the week ending November 26, he also worked a full week and the notation for November 18 indicates that he worked three hours of overtime and also some overtime on November 25, 2006. The worker maintains he was doing light duties during this time.
The worker representative explained entitlement was granted on an aggravation basis with the aggravation policy appropriately applied. He explained the manhole incident was not a minor accident, and explained that prior to October 11, 2006, the worker had no work modifications on his duties. He explained that from October 11, 2006 until the December 2, 2006 incident, the worker did not recover and suffered a recurrence of the October 2006 injury. He asserts that every doctor who assessed the worker after October 2006 related or emphasized the manhole incident. He explained the December 2006 incident was not a new accident, and said the worker had not recovered from the October 2006 accident. The worker representative explained the November 11, 2006 physio discharge report explained the worker was cleared for modified duties at regular hours. He maintains the worker never returned to work because of the ongoing difficulties resulting from the October 2006 accident and did not make a full recovery. He contends the worker suffered a permanent aggravation of his pre existing condition that warrants ongoing benefits, and made numerous references to the medical record which he stated supports this position.
The employer representative is of the view that the December 2006 incident and subsequent lost time from work was not related to the October 2006 incident. She noted the worker had a history of a pre existing back condition. Reference was made to the October 13, 2004 medical reporting which identified the worker injuring his back shovelling snow. She noted the CT scan of 2004 identified mild disc bulges, and the MRI of May 2004 identified a disc protrusion. She explained the worker returned to work to regular duties from December 2004 to July 2005 but referenced the January 10, 2005 reporting that suggested the worker had to be careful with his back. She suggested the worker likely never did return to his regular duties. Reference was also made to the home incident of April 2006 with the worker complaining of back pain and pain in his leg.
The employer representative explained the worker had an ongoing low back condition and impairment prior to the October 11, 2006 incident necessitating several episodes of lost time. She confirmed the October 11, 2006 accident was appropriately allowed for the acute episode only. She noted the worker continued working the day following on October 12, 2006 and the day after that. She acknowledged that LOE benefits were appropriately granted for his lost time from work from October 16 to the 24, 2006 with the worker returning to work with the employer. Reference was made to the medical reporting which she noted suggests a recovery of symptoms. She also referenced the fact the worker self discharged himself from physiotherapy and did not seek further medical treatment and was performing his regular duties and was also able to perform some overtime as required. She suggests the worker stated he was doing light duties but the evidence on record suggests otherwise.
The employer representative went on to explain that the December 2006 incident was not related to the manhole incident of October 11, 2006 and is of the view the worker further aggravated his pre existing back condition. She suggests the December 2006 incident was a new incident and is not associated to the October 11, 2006 accident. She also explained the worker’s explanation of the December 2006 incident was not consistent with what has been recorded on the case record on numerous occasions. She also referenced Board Policy on Non-Work-Related - Second Accidents and suggested entitlement cannot be considered having regard for this policy.
The worker was claiming LOE benefits for the period October 17, 2006 to October 23, 2006 and then from December 2, 2006 and continuing. The WSIAT granted initial entitlement with the extent and duration of benefits referred to the Operating area for consideration.
The record confirms the worker returned to work with the employer and performed modified duties from October 23, 2006 to November 30, 2006 working his regular 36 hours per week, 4 days a week. The worker explained he suffered a sudden, spontaneous worsening of his back condition while a passenger in his brother’s car and remained off work as a result of this until he returned to work with a new employer on August 10, 2009. He said he was just sitting and felt intense pain come on, down his back and that it had never happened before. He said he was almost bedridden for a good 6 months thereafter.
I note in March 2007, the worker requested his Record of Employment (ROE) from the employer and did not attempt a return to even modified duties with the employer after the onset of symptoms in December 2006. He said he was having difficulties with his benefits with Great West Life and felt it would be to his benefit to get the ROE.
The worker confirmed and testified that he injured his back in December 2003 getting out of a bathtub and required an extensive period of time off work. He said he was off work for an entire year following this incident. The CT scan of January 21, 2004 identified a disc bulge at the L4-5 level. The May 28, 2004 MRI confirmed the disc bulge and noted a central protrusion at the L5-S1 level. There were also complaints of back pain noted in 2005 and 2006. I also note very similar findings identified in the February 13, 2007 MRI reporting as those recorded in 2004.
It is apparent in my view that the December 2003 incident was very significant, requiring an extensive period of lost time from work and ongoing medical treatment as evidenced by the medical reporting on the case record. In fact, the notation of June 2006 in Dr. Niedboa’s chart notes identifies a very significant reduced range of motion still present which is several years following the December 2003 incident. It is obvious in my view, that the incident of
October 11, 2006 aggravated the worker’s ongoing low back condition. However, I am of the view that the worker’s ongoing difficulties with the low back were more likely associated with the effects of the December 2003 injury. The worker required a year off work for this incident but the October 11, 2006 incident required a week off work with a return to modified duties thereafter. He was working full hours while performing these duties until the December 2, 2006 incident. He said he did not perform the heavier tasks required in his job.
The worker was engaged in a program of care following the October 11, 2006 incident. Typically, these programs run for 12 weeks in duration. He started the program on
October 18, 2006 and then self discharged himself on November 9, 2006. During this interval, he continued performing his full hours and there is no record of treatment during this time. There was a slight improvement in pain reduction, increased mobility with right groin and buttock pain intermittent and no calf pain. The only identified restrictions on his return to work were to avoid ladder climbing and prolonged standing.
It is my finding that the worker’s low back condition resolved in or around November 9, 2006, when he self discharged himself from the program of care. The aggravation ceased at that time. The record suggests he continued on modified duties and may have been accommodated by the employer in this regard. LOE benefits granted for the period October 16 to October 24, 2006 were appropriately granted. I do not accept that the onset of pain in December 2006 can be casually related to the October 11, 2006 incident but rather, are more likely than not, attributed to the well established pre existing back condition that pre dated the incident of October 11, 2006.
CONCLUSION
I conclude the worker is not entitled to LOE benefits from December 2, 2006 and ongoing.
The worker’s objection is denied.
Dated this April 14, 2010
F. Bruno
Appeals Resolution Officer
Appeals Branch