WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100096
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative,
HEARING LOCATION: N/A
ISSUE
The worker is objecting to the October 22, 2009 decision which denied entitlement to a permanent impairment under the claim and a related Non-Economic Los (NEL) award.
HOW THE ISSUE ARISES
On August 13, 2008, while employed as a general labourer, the worker reported injuring his lower back carrying heavy material. He was 25 years old at the time of injury and had been with his present employer since April 2007.
The worker’s claim for a lower back strain was allowed for health care and full loss of earnings (LOE) benefits. Treatment was conservative, consisting of therapy and medication. He returned to modified work to partial hours on October 10, 2008, performing quality control work.
On February 3, 2009, the worker underwent a Regional Evaluation Centre (REC) assessment at the Toronto Western Hospital. The diagnosis of lumbar strain was confirmed. It was recommended the worker undergo a work hardening program for eight weeks following which it was anticipated he should return to his full regular duties. Temporary physical precautions included no heavy lifting, pushing, pulling or repetitive bending.
As a result of the aforementioned REC assessment, the WSIB Case Manager implemented a graduated return to work schedule, with a return to regular duties and hours by April 11, 2009.
The worker disagreed with the aforementioned schedule and impending return to regular duties. His file was re-referred for a subsequent REC assessment in April 2009 for reconsideration of the original opinion. Following review of the worker’s file, the opinion regarding the worker’s condition remained the unchanged. Consequently, the WSIB Case Manager upheld the decision relating to the worker’s graduated return to regular duties.
The worker objected to that decision, claiming he had sustained a permanent impairment as a result of his workplace injury. His file was then referred to the Appeals Branch for further review.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
11-01-05 Determining Maximum Medical Recovery (MMR)
RESOLUTION METHOD AND PROCESS
The worker’s representative requested a decision based upon the file information. The employer is not participating in the appeal.
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the applicable law and policy and for the arguments presented.
Review of the medical information submitted to file confirms the worker first sought medical attention for his back injury on August 14, 2008. Accident history recorded on the Form 8 was “fell at work yesterday and hurt tailbone”. The diagnosis rendered was lower back contusion. Pain, tenderness and decreased range of motion (ROM) were recorded.
The September 15, 2009 CT of the spine recorded a mild disc bulge at L4/5 with a very mild disc bulge at L5/S1. No central or foraminal impingement was noted.
The September 17, 2009 Form 8 by a chiropractor, provided a diagnosis of lumbar strain/lumbar discopathy. Symptoms and physical findings included pain, tenderness, decreased strength, ROM and sensation. Additional therapy was recommended.
The November 11, 2008 Progress Report noted bilateral L5/S1 soreness and pain, with the worker feeling weak in the left low back. Flexion, extension and rotation were limited.
On February 3, 2009, the worker underwent a REC assessment at the Toronto Western Hospital – he was evaluated by Dr. Gandhi, orthopaedic surgeon, and K. Nixon, Registered Physiotherapist. The report noted the worker’s primary complaint was right-sided back pain, with no significant radicular symptoms in either lower extremity. The worker had had previous episodes of low back pain. Physical examination revealed limited range of motion of his lumbar spine, with forward flexion to 30 degrees and extension to 10 degrees. The worker appeared stiff and sore, with pain upon flexion and extension. Straight leg raising was negative and reproduced back pain only at 45 degrees. Seated straight leg raising was full. Neurologic examination of the lower extremities was otherwise normal. The worker was able to heel and toe walk, however was tender to palpation at the paraspinal muscles on the right more so than the left. Diagnosis was re-confirmed as lumbar strain, with a full recovery anticipated within six to 10 weeks following a work hardening program.
MRI conducted on February 4, 2009 showed disc protrusions at L4/5 and L5/S1 with underlying short pedicles.
The worker underwent a REC re-assessment on April 13, 2009 at the Trillium Health Centre where he was assessed by Dr. Shutz, orthopaedic surgeon, and G. Benack, Physiotherapist. It was observed the worker was a well-developed muscular young man. Symptoms and physical findings included low back pain radiating to between the shoulder blades and into both legs. It was noted all pains were aggravated by activity. No paravertebral muscle spasm was recorded and there was no loss of lumbar lordosis. ROM was 50 per cent of normal in flexion, extension and rotation. However, there was no evidence of myelopathy or radiculopathy. It was documented straight leg raising was 60 degree bilaterally and restricted voluntarily. Sensory examination was intact.
It was noted the worker had not had six weeks of work hardening – the work hardening was recommended in light of nature of the worker’s job. The report indicated the worker was working in a modified capacity and should continue doing so while a period of work hardening was pursued.
The WSIB Case Manager requested the WSIB Medical Consultant provide an opinion as to whether the worker had sustained a permanent impairment – the following was the Medical Consultant’s comments, in part, further to memo #41:
“It appears that the i/w primarily has a lumbar strain. The disc findings on imaging do not entirely explain the reported symptoms, particularly the upper back ones.”
Memo #50 documents a secondary review and opinion of the worker’s file by another WSIB Medical Consultant regarding the issue of a permanent impairment:
“There are small L4-S1 multilevel protrusions/bulges (see Dr. Schutz 6/09) which are pre-existing.
He is a healthy muscular young male who should have vigorous and active work hardening program, Acc REC. Since he did complete work hardening program, repeat program is not indicated. Rather he should be graduated in his rtw, and not remain on modified – the best work hardening is actual work activities. As such, PI would not be anticipated.
I note the accident history initially recorded in Dr. Kruger’s August 14, 2008 report is different from that documented in Dr. Dossa’s report three days later, i.e., fall at work vs. lifting injury. The initial diagnosis provided by Dr. Kruger was a contusion, whereas Dr. Dossa diagnosed a lumbar strain.
In reviewing the subsequent medical information received to file, I note Dr. Dossa recorded in his November 11, 2009 report the worker was experiencing pain in his left back. However, when assessed in February 2009 at the REC, it was noted the worker complained of right-sided back pain with no radiculopathy. By April 2009, the REC re-assessment recorded new findings which included low back pain radiating to between the shoulder blades and into both legs.
Notwithstanding the above, I find the worker’s upper back and lower extremity reported radicular symptoms are not in keeping with the CT or MRI results which showed mild disc bulges at L4/5 and L5/S1, without evidence of impingement.
Overall, when considering the above inconsistent complaints of pain, the worker’s apparent normal musculature, the voluntarily restricted straight leg raising upon examination in April 2009, normal sensory examination, and given the relatively insignificant findings recorded on MRI and on CT, I do not find the evidence supports the worker has a permanent impairment in relation to his August 13, 2008 workplace injury.
CONCLUSION
I conclude the worker does not have a permanent impairment in relation to his August 13, 2008 workplace injury. He is therefore not entitled to a NEL assessment.
The worker’s objection is therefore denied.
DATED May 31, 2010
L. Diaz
Appeals Resolution Officer
Appeals Branch