WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100141
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVES: Worker Representative, Employer Representative
ISSUE
The employer objects to the decision of April 13, 2010, allowing entitlement for a non-work related second injury “at home” on November 13, 2010.
The employer seeks that all benefits related to the incident of November 13, 2010 be rescinded.
HOW THE ISSUE ARISES
On January 25, 2007, this then 40 year old Housekeeper was removing laundry from a dryer when she twisted her lower back. The worker developed pain in her mid and low back with low back pain radiating, on occasion, into her legs and calves bilaterally. The worker was initially diagnosed with thoracolumbar pain. Loss of Earnings (LOE) benefits were paid from January 26, 2007 to April 3, 2009.
The worker returned to a graduated/modified return to work program on April 3, 2009. Partial LOE benefits were paid from April 3, 2009 to November 13, 2009, as the worker gradually increased her work hours while on modified duties.
The WSIB medical consultant reviewed the worker’s file in November 2009 and noted she had a permanent impairment for thoracolumbar strain.
On November 23, 2009, the worker contacted her Workplace Safety and Insurance Board (WSIB) case manager and reported that on November 13, 2009, she was going to put clothes in her washer at home when her left leg gave out due to her back condition, which resulted in a fall down ten stairs. The worker visited the emergency department the following day for pain in her low back/buttock, left hip and left arm. The worker requested full LOE benefits from November 13, 2009.
In a decision dated April 13, 2010, the operating area determined the worker had a recurrence of back problems which was responsible for the fall at home on November 13, 2009, aggravating her ongoing back condition. Full LOE benefits were paid from November 13, 2009.
The employer representative objected to the decision of April 13, 2010. The operating area upheld their decision and the worker’s file was forwarded to the Appeals Branch for further consideration.
AUTHORITY
Operational Policy Manual (OPM) documents:
15-05-03 Non-Work-Related –Second Accidents
15-05-01 Resulting from Work-Related Disability
15-03-01 Recurrences
RESOLUTION METHOD AND PROCESS
The employer representative submitted a 60 day expedited decision option which was received by the Appeals Branch on August 12, 2010. This election requires the Appeals Branch to make an expedited decision (within 60 days) based on the information on file. The 60 day time frame in this case expires October 8, 2010.
ASSESSMENT OF THE EVIDENCE
The employer representative’s view is that there is no medical relationship between the worker’s compensable low back condition and home injury of November 13, 2009. I disagree. I find the worker’s ongoing low back condition was responsible for her left leg “giving out” as described on November 13, 2009. I will explain my findings.
In this case, the nature of the incident, falling down a flight of stairs, is significant and the home incident of November 13, 2009 must be considered under OPM policy document
15-05-01 “Resulting from Work-Related Disability”, which states:
If a worker suffers a second accident, benefits are payable only if it is established that the work-related impairment caused the second accident.
The worker’s neurologist was seen in April 2008 and reported the worker had normal muscle bulk and strength in her legs and did not identify any evidence of radiculopathy or spinal stenosis. The worker was diagnosed with mechanical lower back problems.
In the Worker’s Progress Report (Form 41) dated April 20, 2008, the worker reported that her legs give her pain however there was no indication of her leg or legs were “giving out”.
The worker’s orthopaedic specialist provided a consultation report dated May 23, 2008 and noted the worker’s MRI revealed mild degenerative changes in the back with a “benign appearing lesion in the right ileum”. The worker was diagnosed with mechanical back pain.
The worker was seen by a sports medicine specialist for chronic low back pain and bilateral lower limb pain in November 2008. The sports medicine specialist noted in part:
Manual muscle testing reveals breakaway weakness at the left hip flexors and knee extensors with grade 5/5 power elsewhere from L3-S1 bilaterally.
It was the sports medicine specialist’s opinion the worker had a chronic pain disorder that may have emerged from a prior disc herniation.
A Functional Abilities Form (FAF) on file dated October 22, 2009 provided precautions which indicated the worker had full abilities to climb stairs provided there was a handrail; no carrying greater than 2 kilograms (kg) up or down stairs; ladder climbing limited from one to three steps; floor to waist lifting maximum of 12.5 kg less than 5% of the day; and waist to overhead lifting maximum of 6 kg less than 5% of the day. The worker was noted to be able to work within these precautions, eight hours per day, 40 hours per week.
A Functional Abilities Evaluation (FAE) was conducted in October 2009 and it was recommended, in part, that the worker use only one to three steps when using a ladder and to avoid higher step levels due to a decreased balance in the left leg.
The worker visited the emergency department the day following her home injury of
November 13, 2009. The emergency medical report dated November 14, 2009 recorded the worker fell down 12 stairs “yesterday”. There was no recording of the cause of the fall at that time. The worker returned to the emergency department on November 26, 2009 and reported that she fell downstairs at home two weeks prior when her left leg “gave out”.
Although the worker did not report the cause of her fall down the steps to her WSIB case manager until November 23, 2009, and there was no prior documentation of the left leg “giving out”, there is evidence that the worker had decreased balance in the left leg and “breakaway weakness” at the left hip flexors.
The worker’s back condition had progressively improved and she reached maximum medical recovery (MMR), at which point her medical progress plateaued, on September 28, 2009 as noted by the WSIB medical consultant in Memo 65. Despite the progress, a permanent impairment was noted in the thoracolumbar spine by the medical consultant.
There is a diagnosis on file for chronic pain disorder on file. Although this would represent a non organic component to the worker’s back condition, I will only comment on the worker’s organic findings.
I find there although there is medical information on file which suspected the worker’s pain and instability in the left leg was as an irritation of the L5-S1 nerve root, this was never clinically confirmed.
In this case, there is no evidence the worker’s fall was the result of a slip or non-compensable event which caused the fall. The evidence lies with the worker’s statement as reported to the WSIB case manager and medical documentation. Although there were no documented reports of a similar episode of the left leg “giving out”, the worker stated she had reported this to her doctor and physiotherapists. There is evidence of left leg pain, weakness and decreased balance in the medical file.
I am persuaded that on the balance, the evidence supports the view the worker’s fall down her steps at home on November 13, 2009 was the result of her left leg “giving out”, the result of her ongoing compensable thoracolumbar condition.
CONCLUSION
In reaching my conclusion, I considered all the documentation in the worker’s claim file, the relevant sections of the WSIB Act and operational policy.
The employer’s objection is denied.
DATED September 27, 2010
M. Barbeau
Appeals Resolution Officer
Appeals Branch