WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100004
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: January 11, 2010
ATTENDEES: Worker, Worker Representative
Employer, Employer Representative
ISSUE
The worker is objecting to the Adjudicator’s letter dated January 27, 2009 which denied a recurrence and lost time from October 9, 2008 to November 17, 2008, as it was determined the employer had suitable modified work available for the worker.
HOW THE ISSUE ARISES
On August 14, 2008, after moving furniture around while performing his job as a custodian, the worker attempted to pick up a large plant with a base full of soil and injured his back.
The employer was able to provide the worker with modified duties until the worker claimed a recurrence on October 8, 2008. The worker remained off work from October 9, 2008 until November 17, 2008; however, his request for consideration to loss of earnings (LOE) benefits, to compensate the employer for paying him advances, was denied. The Adjudicator determined that although the worker had experienced a flare-up, he should have been able to co-operate in the Early and Safe Return to Work (ESRTW) program designed by the employer. The worker has objected to this determination.
AUTHORITY
As per the Workplace Safety and Insurance Board (WSIB) Operational Policy Manual (OPM)
18-03-02 Payment of LOE Benefits
19-02-02 The Goal of Early and Safe Return to Work and the Roles of the Parties
19-02-03 Workplace Party Co-operation
19-02-04 Functional Abilities Form (FAF) for Planning ESRTW
19-04-06 Suitable Employment
11-01-15 Aggravation Basis
15-03-01 Recurrences
11-01-05 Determining Maximum Medical Recovery (MMR)
ASSESSMENT OF THE EVIDENCE
On August 14, 2008, the worker experienced a low back strain while lifting a potted plant. No lost time was immediately experienced from work as the worker commenced a vacation and the employer was able to provide suitable light duties upon his return.
The worker continued on the modified duties for more than a month and according to the medical reports, his condition gradually improved as he underwent physiotherapy treatments. The employer provided the worker with an assistant who performed the heavier custodial duties, while the worker did the jobs of a lighter nature. The worker testified there were certain duties, such as using the auto scrubber, which he found difficult to perform.
On October 8, 2008, the worker testified he commenced experiencing increased levels of pain, especially including a new sciatica-type pain in his left leg. He attributed this to some of his job duties involving awkward positioning of his body and the types of exercise he was performing during physiotherapy. He indicated no new accident or incident occurred to cause this pain.
Upon seeing his family doctor the following day, the worker was authorized off work and was referred for an x-ray. In addition, a non-steroidal anti-inflammatory (NSAID) medication was prescribed, along with Tylenol 3 for the pain. The family doctor provided a note indicating the worker was considered to be totally disabled as of this date; unfortunately, no physical findings were provided on the note.
On October 11, 2008, the worker went to the Emergency department of his local hospital. On the emergency report provided to the WSIB it was noted the worker was experiencing sciatica, was undergoing physiotherapy, the medications would remain the same and a CT scan was being scheduled by the family doctor. The report indicated the worker was capable of work within certain limitations.
The physiotherapy clinic provided an FAF dated October 16, 2008 indicating the worker “may benefit (from) a gradual RTW re: 2 hrs for one week, three hours the next and increase the hours as able. We will monitor his progress in physiotherapy. Sees doctor again October 20, 2008. Frequent change of position and stretching.”
Based on this report, the employer was able to create a modified work program which included clerical duties on graduated hours. The program was to commence on October 20, 2008; however, the worker advised the employer that he would not participate in the program until he was cleared to return to work by the family physician. It was also around this time that the worker changed his physiotherapy provider. He testified he was not satisfied with his progress from the first facility and was finding it difficult to drive the distance to this facility. His new physiotherapy provider was only four minutes away from his home. The operating area approved the change in location for the physiotherapy treatments. When seen on October 20, 2008, the family physician provided the worker with another note authorizing lost time. No physical findings were provided in this letter. The new physiotherapy clinic provided a form dated October 24, 2008 which indicated the worker was not to return to work. It noted the worker’s activity tolerance was very limited and his condition had deteriorated after the previous return to modified work.
On the REO8 (Health Professional Continuity Report), the family physician noted the x-ray had demonstrated discogenic low back pain with S1 nerve root radiculopathy. The doctor provided limitations on the form and indicated a return to work had been discussed with the worker; however, he further indicated “unable, too severely limited.” Continuing lost time from work was authorized.
The CT scan performed on October 30, 2008, demonstrated “degenerative disc changes all three levels lower lumbar spine; greatest at L5-S1. No focal disc protrusion.”
The worker did return to work on November 17, 2008 on the modified work program similar to the one originally proposed in mid-October. A complete recovery has since been experienced by the worker.
The Adjudicator reviewed the documentation and determined the worker was capable of performing the modified work program from October 9, 2008 and denied the allowance of lost time benefits for the approximate six weeks the worker was off work.
The worker testified he received full advances from the employer during the lost time and was paid his full wages during the ESRTW program which commenced on November 17, 2008.
The worker’s representative noted the following:
The original injury and diagnosis were not in dispute. The issue is dispute revolves around whether the worker’s injury had deteriorated while performing his modified duties rendering him totally disabled and unable to perform the subsequent modified duties offered by the employer until November 17, 2008.
The findings of the family physician and second physiotherapy clinic support a conclusion the worker was totally disabled during this period.
The evidence supports the modified duties prior to October 9, 2008 resulted in a flare-up which totally disabled the worker.
The employer’s representative noted the following:
- Since there was an underlying degenerative condition identified, there were no
activities during the first period of modified duties to attribute to the advent of sciatica on
October 8, 2008.
The emergency report and first physiotherapy clinic’s October 16, 2008 report support a finding of partial disability.
The employer created and offered a suitable ESRTW program to the worker which was refused; therefore, as per WSIB policy, he would not be entitled to LOE benefits.
ANALYSIS:
With regards to the issue as to whether the worker’s onset of pain on October 8, 2008 was related to the August 14, 2008 incident, I note there was an underlying condition present in the form of degenerative disc disease; however, it was asymptomatic prior to the accident. In addition, I note the worker was on continuous modified duties since the August 14, 2008 incident, which would indicate a complete recovery had yet to be achieved.
As per the Operational Policy Manual Document 15-03-01, “Recurrences”, ongoing entitlement is identified when confirmation of clinical compatibility between the original injury and the current condition, or a combination of clinical compatibility and continuity, has been established. Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence.
After reviewing the entire claim record file, I conclude the worker’s October 8, 2008 onset was related to the original August 14, 2008 incident which required modified duties. Although a sciatica condition was added to the diagnosis on October 9, 2008 by the family physician, considering the continual need for medical treatment for the low back and type of modified work which was performed, i.e. manual labour (though it was lighter in nature than the worker’s usual work), I consider it sufficient enough to affect an already susceptible back condition.
The employer is to be commended for having an ESRTW program in effect; witness it’s ability to offer the worker modified employment immediately after the August 14, 2008 incident resulting in no lost time being experienced. I also find the employer to have acted in a judicious manner in responding to the FAF provided by the first physiotherapy clinic.
I consider the issue of entitlement to the lost time experienced between October 9, 2008 and November 17, 2008 to revolve around whether the worker was totally disabled, as the employer had a suitable ESRTW program ready for the worker if he was partially disabled.
Based on the testimony and documentation in the claim record file, I conclude the worker was totally disabled during this time period. I base this conclusion on the following:
The report from the emergency department on October 11, 2008 may have indicated partially disability; however, I consider the emergency department physician was more concerned over whether additional treatment was immediately required, or whether the worker should return to his current treating practitioners, than with the worker’s work status.
The first physiotherapy clinic’s report of October 16, 2008 provides an indication that modified duties were a possibility at the time; however, I also consider it prudent for the worker to consult with his family physician with regards to whether a return to work was in order, especially noting a CT scan was in the process of being arranged.
The family physician was very specific that the worker was to remain off work and was not to return to work in any capacity.
The second physiotherapy clinic also supports a finding of total disability.
I accept the worker’s testimony that he found it difficult driving to a physiotherapy clinic which was further away from his home after the onset of sciatica. I also accept his testimony that the October ESRTW plan involved driving to a school which was beyond his capabilities at the time.
In summary, I consider there is sufficient evidence to support a finding a total disability during the period October 9, 2008 to November 17, 2008; therefore, the worker was not able to participate in his ESRTW.
CONCLUSION
I conclude the worker was totally disabled between October 9, 2008 and November 17, 2008.
The worker’s objection is allowed.
DATED January 21, 2010
N. Norvack
Appeals Resolution Officer
Appeals Branch