WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100039
OBJECTION BY: Worker
EMPLOYER: Out of Business
REPRESENTATIVES: N/A
ISSUE
The worker defined the issue as continued entitlement including a Non Economic Loss (NEL) assessment as related to the lumbar spine.
HOW THE ISSUE ARISES
This then general labourer on March 4, 1995 sustained a lower back injury when struck by a sheet of particle board. Medical reporting provided a diagnosis of superficial abrasions of the forehead and nose and lumbar muscle spasm. A conservative treatment program was undertaken and included a brief period of physiotherapy. Benefits were awarded to
April 10, 1995.
In December 2008, the worker requested additional entitlement. The case manager, following inquiries, as delineated in the correspondence dated January 20, 2010 concluded the current lower back problems were unrelated to the work accident of March 4, 1995. This is the issue for determination.
RESOLUTION METHOD & PROCESS
The worker submitted a 60 Day Decision Option Form.
AUTHORITY REFERENCE AND ASSESSMENT OF EVIDENCE
The appeals resolution officer considered the information on record.
The issue for determination on appeal is whether the worker's current lower back problems are causally related to the accident, which occurred March 4, 1995. It is an issue, which turns on medical compatibility.
Operational Policy Document 15-03-01 states ongoing entitlement will be accepted provided there is medical compatibility between the original injury and subsequent condition. Such a relationship can be established by examining elements of continuity such as medical treatment, complaints by the worker and work history. It must be shown; the nature of the impairment is compatible with the accident history and there can be no intervening factor, which would break the chain of causation between the original compensable injury and the claimed condition.
Section 46(1) of the Workplace Safety and Insurance Act addresses NEL issues and states:
“If a worker’s injury results in permanent impairment, the worker is entitled to compensation under this section for his/her non‑economic loss.”
Section 47(1) of the Workplace Safety and Insurance Act states:
“If a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment."
The Act defines impairment as any physical or functional abnormality or loss, which results from an injury.
To consider entitlement for a NEL assessment, it is necessary for the evidence to establish the worker has a permanent impairment and the impairment is a result of the compensable injury.”
In this case, the worker on March 4, 1995 sustained what can best be described as a minor lower back injury, with medical reporting proximal to the date of accident documenting a full resolution of symptoms.
At the time of accident, no medical investigations were carried out which speaks to the lack of objective physical findings. In fact, the physiotherapist in the discharge report dated
April 6, 1995 documents the worker had a full range of lumbar movement and was pain free.
The worker upon his return to work was able to perform all aspects of his duties, duties which were considered physically demanding; with no evidence the back condition limited his abilities. The worker continued with the accident employer until 1998 at which point he terminated the employment for a “better paying job” in Kitchener.
The appeals resolution officer also notes the worker has an established claim (xxxx4739) for a left shoulder condition with an accident date of October 1, 2000. Under that claim, the worker requested entitlement be extended to include the lower back. The appeals resolution officer in the decision dated March 18, 2009 concluded the back condition was not related to the worker’s work activities as a machine operator.
It is also noted, the worker in 2002 experienced back discomfort (non occupational) when he bent over at home. Under claim xxxx4739, a report from the Physiatrist dated August 24, 2005 references the October 2002 incident and that the worker felt a “snapping sensation.” X-rays revealed degenerative and osteoarthritis changes involving the facet joints. The physician was of the opinion the worker was suffering from mechanical back pain related to the facet joint function and arthritis.
Despite the worker’s position that he continued to experience back discomfort following his return to work, there is subsequently an 11 year absence of medical attention/medical continuity.
An MRI dated August 13, 2008 identified mild degenerative changes at L4-L5 and L5-S1 levels with mild disc bulges. It is reasonable to conclude these findings are in keeping with the ageing process and not related to the minor work incident of March 4, 1995.
The appeals resolution officer has also reviewed the medical documentation under claim xxxx4739 and despite the plethora of medical assessments, finds no evidence of any complaints or investigations relative to the lumbar spine until February 2005 when an x-ray was submitted confirming osteoarthritis. In fact, in a report dated April 4, 2001 when assessed at the Regional Evaluation Centre in Kitchener, the assessing physician questioned the worker with respect to other health issues. The worker though recalling the 1994 lower back injury confirmed that following a brief period of physiotherapy, he essentially recovered, with no suggestion of continued symptoms.
There is also the lack of supportive medical evidence from the attending physician as it relates to a causal relationship between the current lower back condition and work injury.
CONCLUSION
In the judgement of the appeals resolution officer, a causal relationship between the current lower back condition and minor March 4, 1995 incident has not been established. The worker attained a complete recovery from the lumbar strain following his return to work in April 1995, with no evidence a physical or functional abnormality or loss resulted. A Non Economic Loss assessment is not warranted
The worker’s objection is therefore denied.
DATED April 13, 2010
M. De Marco
Appeals Resolution Officer
Appeals Branch