WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100051
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Not Participating in Claim xxxxxx56 Participating in Claim xxxxxx89
REPRESENTATIVE: Employer in Claim xxxxxx89
RESOLUTION METHOD & PROCESS
Although a hearing was scheduled in London on April 16, 2010 the objection was resolved in a pre-hearing meeting with the worker and the employer’s representative.
ISSUE
The worker is objecting to the Case Manager’s decision dated June 30, 2009 which denied entitlement for a low back injury on May 25, 2009.
HOW THE ISSUE ARISES
The worker is a former employee relations assistant at a local hospital.
On March 22, 2004 she experienced a herniated disc in her lumbar spine while unloading 35-lb bags of pamphlets at a job fair exhibit. Her claim was accepted for health care and lost time benefits as number xxxxxx56.
The worker was off for a few days in March 2004 then returned to modified duties. She went off work again in May 2004. In October 2004, she returned to graduated hours. By January 2005 she had returned to full time regular duties.
In December 2007, the worker started a new job as a human resources assistant at a local college. On May 15, 2009 she experienced a flair-up of low back pain while getting up from her chair at work.
Entitlement for the May 2009 flair-up was denied as a new injury in claim xxxxxx89 or as a recurrence in claim xxxxxx56.
AUTHORITY
- 15-03-01 Recurrences
ASSESSMENT OF THE EVIDENCE
A worker is entitled to benefits for a recurrence of work-related injury. 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.
There was no significant new work-related accident on May 25, 2009. The worker was merely getting up from her chair when she experienced a flair-up of low back pain. Consequently there is no entitlement for a new accident in claim xxxxxx89.
The worker experienced a low back injury in March 2004 that kept her off work until January 2005. On September 22, 2004 Dr. A diagnosed resolving discogenic right sciatic. There is no evidence the worker’s low back injury ever fully resolved.
Dr. A also commented:
I advised her on how to minimize chance of recurrence. If she does however develop a recurrence in the future I would be pleased to reassess her.
Following a flair-up of low back symptoms on May 25, 2009 the worker went off work until June 8, 2009 when she returned to graduated hours.
During our meeting on April 16, 2010, the worker advised that she did not fully recover from her injury of March 22, 2004. She continued to experience stiffness in her low back which she treated with over-the counter medication and home exercises.
The worker also advised that she experienced another flare-up of low back symptoms on September 1, 2009. She was off work until September 14, 2009 then returned to graduated hours. (See worker’s objection form dated September 24, 2009).
The diagnosis on the Form 8 dated May 27, 2005 is lumbar radiculopathy. The flair-up on May 25, 2009 is compatible with the low back injury on March 22, 2004. Continuity is established by the worker’s evidence of continuing symptoms which she self-treated with over-the-counter meds and home exercises.
I am satisfied that the incident on May 25, 2009 is a recurrence of the worker’s low back injury on March 22, 2004. I am also satisfied that the worker experienced a similar recurrence at home on September 1, 2009.
CONCLUSION
The worker’s objection is, therefore, allowed.
Entitlement for the May 25, 2009 flair-up of low back symptoms is accepted as a recurrence in claim xxxxxx56.
The worker is entitled to loss of earnings (LOE) benefits in May/June, 2009 as requested in her objection form dated September 24, 2009.
The case manager is directed to obtain medical documentation to support the time lost from work in September 2009.
Claim xxxxxx89 shall be amalgamated within claim xxxxxx56.
The worker is entitled to a non-economic loss (NEL) assessment in claim xxxxxx56.
DATED: April 26, 2010
F. J. Mackin
Appeals Resolution officer
Appeals Branch