WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20100159
OBJECTION BY: Worker
EMPLOYER: Not Participating
DATE: July 10, 2010
PARTICIPANTS: Worker, Worker’s Representative
ISSUES
The worker objects to
the denial of a psychological assessment referral,
the change in labour market re-entry (LMR)/suitable employment or business (SEB) and
the adjustment of loss of earnings (LOE) benefit entitlement to the SEB projected earnings.
The decision letter was dated July 16, 2009.
HOW THE ISSUES AROSE
This claim was accepted for an allowance on an aggravation basis for an accident of October 2, 2006. The worker indicated that he strained his low back while lifting a 30 pound object. Entitlement was accepted for the initial lost time from October 3 to 10, 2006 and then a recurrence from November 3, 2006 with allowance of entitlement paid to January 20, 2010.
The worker’s claim was accepted by the Operating area as a permanent aggravation of the low back condition.
The worker subsequently requested a psychological assessment which was not accepted by the Operating area as there was no indication that the accident was psychotraumatic to warrant a psychological referral.
The worker was provided with LMR services and the original SEB identified was subsequently changed given the circumstances of the LMR period of time. The worker objects to the change in the SEB.
The adjustment of LOE benefit entitlement came with the change in the SEB and given the worker’s pre-accident earnings of $11.00 an hour for a 44 hour work week and the SEB identifying $9.50 per hour for a 40 hour work week, the partial LOE benefit entitlement was outlined in the July 16, 2009 letter.
The worker objects to the change in the SEB, the reduction in LOE benefit entitlement to partial LOE benefit entitlement and to the denial of a psychological assessment referral and psychological entitlement in this claim.
The worker objects to these decisions made in this claim.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Section 121
Operational Policy Manual (OPM) Documents:
11-01-01 – Adjudicative Process
11-01-03 – Merits and Justice
11-01-15 – Aggravation Basis
15-03-01 – Recurrences
15-04-02 – Psychotraumatic Disability
18-03-02 – Payment of LOE Benefits
18-03-03 – Reviewing LOE Benefits
19-03-03 – Determining Suitable Employment or Business, and Earnings
19-04-06 – Suitable Employment
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In arriving at a decision in this claim, I have reviewed and considered the worker’s testimony and the further information provided by the worker representative. I also requested the initial family physician’s clinical notes from 2000 to 2006 in an effort to ascertain the extent of the worker’s prior low back problems which were referenced in the claim.
At the time of the accident, the worker was a short term employee. On October 2, 2006, the worker claimed to have lifted a 30 pound object and felt low back pain. Medical attention was sought two days later. Initial entitlement was accepted for the period October 3 to 10, 2006. The worker returned to work; however, had a recurrence from November 3, 2006 which was then reviewed by the Operating area and entitlement was accepted.
As part of my review of the file evidence, I note that following the initial medical attention with the original family physician, the worker then changed doctors to attend a physician within his home area. The worker has maintained this new physician to the present date.
The allowance of this claim on an aggravation basis needed review and this was identified to the worker representative that this allowance decision would also need to be reviewed.
I obtained the clinical notes from the original family physician in an effort to ascertain the extent of the worker’s prior low back problems given the references made in the worker’s post accident reporting of a prior low back condition.
In reviewing the medical information obtained from the original family physician, the worker clearly had ongoing low back problems dating back to the 1990s. Although the worker in his testimony claimed to have previously injured his low back on a work site sometime in the 1980s or 1990s, he confirmed that no claim was made and no medical attention was sought. The worker claimed through his testimony to have had had ongoing low back problems related to that prior work injury.
In reviewing this claim and given no previous claim was established, no indication of exactly when the accident happened, who the employer was and no initial medical attention was sought for any prior low back injury. The worker’s testimony of having had a low back injury occupationally related prior to October 2, 2006 is not accepted. The worker has not pursued a claim and this is not an issue in my review. The worker’s complaints of the low back which predated October 2, 2006 are, as documented in the medical reports, non-compensable and are not related to any occupational situation.
In reviewing original family physician’s reports, there is reference made to a motor vehicle accident in the late 1990’s but the worker, through his testimony, initially denied having had a low back injury in a motor vehicle accident. The medical reports on file do not support the worker’s testimony in which he denied prior low back injuries related to a motor vehicle accident.
I referenced that the reports which clearly document the worker’s low back problems dating to the late 1990s. There were several references to the motor vehicle accident made in these notes and in 2002, a referral for therapy related to the motor vehicle accident as well as prescriptions for Tylenol 3 and Vioxx. An independent medical assessment was done also in October 2002 relating to the low back, neck and knee injuries in the motor vehicle accident. The worker was referred by the family physician in October 2003 to see Dr. Isakowa for a follow up appointment relating to the motor vehicle accident and the left sciatica.
The pre accident reports refer to the worker having chronic low back pain many years prior to the October 2006 back strain. The history given was of low back pain since his motor vehicle accident. There was reference made to a knee strain in 2000; however, this was related to kicking a soccer ball.
In 2000, low back pain was noted related to a motor vehicle accident and the worker was prescribed Tylenol 3, Celebrex, therapy and he was referred to a back clinic. The back clinic reports are not on file.
Ongoing notations in the clinical notes document the worker’s ongoing low back pain, ongoing medical attention through his family physician and ongoing use of Tylenol 3 and anti-inflammatory medication at various periods of time as well as recommendations for physiotherapy.
In 2004, it is noted that the motor vehicle accident settlement was made and the worker stated that he received a settlement of $25,000. The clinical notes highlight treatment for the low back in 2002 ten times, in 2003 the worker was seen 19 times, in 2004 the worker was seen eight times, and 2005 the worker was seen five times.
Early in 2006 the worker was noted to have exacerbated his low back, had low back pain on an ongoing basis and the worker was indicated to be only fit for light work and was prescribed his ongoing medication of Tylenol 3. The lifting incident in October 2006, as documented by the original family physician, was lifting a 30 pound box and he experienced low back pain; however, the doctor went on to indicate “no change in left sciatica”. The notation by the family physician noted chronic low back pain and left sciatica pre-existing.
The worker was also previously diagnosed as having a left-sided L4-5 disc herniation as confirmed in the CT scan done in 2003. Reference was also made in 2002 of a referral for a psychological assessment at that time.
Psychological Entitlement
The worker sustained a lifting aggravation on October 2, 2006 which was accepted by the Operating area.
The worker’s request for psychological entitlement was considered. Although the worker’s representative references that Dr. Light was seen August 2009 and psychological problems were related to the accident, in reviewing the file evidence, there is no psychotraumatic accident that occurred on October 2, 2006. The worker clearly had an ongoing, long-term history of low back pain and low back treatment and medication predating October 2, 2006. Although the worker, in his testimony, denied prior psychological problems, the clinical note entry of a referral for psychological assessment was indicated in 2003 so it is not accepted that the worker did not have psychological issues predating the October 2, 2006 injury.
The lifting injury of October 2006 was not psychotraumatic in nature. There is no evidence to indicate that any psychological problems exist or any psychological entitlement exists related to the worker’s minor low back strain injury of October 2, 2006.
The request for psychological entitlement in this claim is denied.
Change in SEB & LOE adjustment to PLOE
The worker was referred for LMR assistance. The worker’s cooperation throughout the LMR program was less than adequate. The change in the SEB was required given the worker’s limited cooperation with LMR.
The new SEB identified minimum wage earnings of $9.50 per hour for a 40 hour work week and it is based on these projected earnings that the ongoing entitlement to partial loss of earnings benefits in this claim was accepted.
There is no information on file to indicate that this decision was incorrect. The worker has many life issues which cannot be attributed to the minor low back strain of October 2, 2006. The SEB of elemental entry occupation for the worker at minimum wage, working full time is accepted as appropriate.
The worker’s objections to the denial of psychological entitlement referral, change in the SEB and the adjustment of ongoing benefits to PLOE are denied.
The allowance of this claim was on an aggravation basis and the subsequent acceptance of a permanent aggravation of the worker’s low back was reviewed. A referral was made to the Appeals Branch Senior Medical Consultant for an opinion with the medical information submitted by the worker’s family physician from the late 1990s to the months prior to the back strain injury of October 2, 2006. The appeals resolution officer (ARO) outlined to the medical consultant the history of the worker’s injury and the history of the medical predating the October 2, 2006 injury.
The accepted entitlement in this claim is for a low back strain only, from a lifting incident on October 2, 2006.
The worker clearly, as documented in original family physicians clinical notes, had significant ongoing pre-existing low back chronic pain issues predating October 2, 2006. The worker was seen consistently by his family physician and the worker had ongoing pain and anti inflammatory medication including Tylenol 3 as well as referrals for physiotherapy, to specialists and CT scan which confirmed a prior disc herniation in 2003.
The allowance of this claim for a permanent aggravation was premature given that no medical history was obtained to review the extent of the worker’s low back problem predating the minor lifting incident of October 2, 2006. The prior review by the medical consultant in May 2007 also questioned whether an MRI was done or not and whether there was a disc herniation diagnosed previously. Reference was made to no investigation on file to confirm this diagnosis; however with this medical information obtained and the previous disc herniation identified as non-compensable, clearly the decision to allow this claim on a permanent aggravation was premature.
I provided the worker representative with a copy of the original family physician’s clinical notes and copies of my memo to the Senior Appeals Medical Consultant and the response received. I received no further submission from the worker representative despite being advised that it would be forthcoming.
It is with the complete medical information compiled in this claim, specifically from the initial family physician and the medical opinion obtained from the Senior Appeals Medical Consultant that I limit entitlement in this claim. The authority to do so is found in Section 121 of The Act “The Board may reconsider any decision made by it and may confirm, amend or revoke it. The Board may do so at any time if it considers it advisable to do so”.
The further review of the file evidence, with the complete medical information obtained, has resulted in the limitation of entitlement in this claim. The worker sustained an aggravation on October 2, 2006 of his low back condition, a condition that was chronic, ongoing and symptomatic for many years. The medical report, specifically in January 2007, post aggravation provided findings which would confirm that the worker’s condition returned to the pre-accident level. There is no medical information to substantiate that there was a permanent worsening of the already chronic, ongoing and symptomatic low back condition.
I highlight the pre accident medical and the post aggravation January 2007 medical entry in which the physical findings indicate that the worker’s condition returned to the pre aggravation level. The worker has no entitlement in this claim beyond January 2007. Entitlement to all benefits paid beyond January 2007 is rescinded. An overpayment is to be created and, as this was an administrative decision made with the benefit of further significant medical information requested and received, the overpayment in this claim will not be pursued.
CONCLUSION
The worker’s objection to the change in SEB, the denial of psychological entitlement and the ongoing LOE benefit entitlement paid is denied.
Also the allowance of the permanent aggravation of the low back condition is denied and all ongoing entitlement extended in this claim from January 2007 is rescinded.
The worker’s objection is denied.
Dated November 17, 2010
N. Grunenko
Appeals Resolution Officer
Appeals Branch