WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180036
OBJECTING PARTY: worker
REPRESENTED by: Self
RESPONDENT: employer
REPRESENTED by: Self
HEARING: Hearing in Writing
HEARD by: Judy Cantwell, Appeals Resolution Officer
Dated: May 18, 2018
ISSUE
The worker objects to the CM’s (CM’s) decisions dated September 10, 2015 and November 23, 2015 which found the work-related impairment ceased as of October 19, 2015.
BACKGROUND
On May 25, 2015, the worker, a 71 year old janitor dragged an extra-large garbage container from the north to the south of the building, lifted and dragged a large garden hose over wet grass, uneven lawn and a curb and lifted three more hoses to different water stations. Five minutes after dragging and lifting the hoses, he felt a popping sensation in his right lower back.
He finished his shift and worked the next shift, but had ongoing pain and sought medical attention on May 27, 2015. He was diagnosed with a lumbar strain. The employer provided modified duties and he continued to work.
The worker began treatment at a Program of Care (POC) on June 5, 2015. He completed his treatment on July 27, 2015. The treating physiotherapist indicated the worker had not returned to his pre-injury level of function.
The CM arranged for a Regional Evaluation Centre (REC) assessment. The REC assessors recommended additional treatment and a graduated return to pre-injury work. Based on the REC report, on September 10, 2015, the CM concluded the worker would fully recover by October 19, 2015. She also noted the REC report identified that the worker had lumbar spondylosis and osteoarthritis of the knees. She found these diagnoses were degenerative in nature and not related to the work injury.
The worker resumed physiotherapy from August 24, 2015 to October 19, 2015. He disputed he had recovered by October 19, 2015 and provided the discharge report from his physiotherapist in support of this. On November 23, 2015, the CM concluded the worker had ongoing symptoms, but she did not attribute his symptoms to the work injury.
The worker objected to the closure of the claim in November 2015. He completed an Appeal Readiness Form (ARF) in January 2018. This issue is now before me.
AUTHORITY
Policy 11-01-02 Decision-Making
Policy 11-01-05 Determining Permanent Impairment
ANALYSIS
I conclude the worker recovered from the work-related low back strain. I will review the applicable policy, the relevant evidence, and my reasons for reaching this conclusion.
Policy 11-01-05 titled Determining Permanent Impairment states: A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
Policy 11-01-02 titled Decision-Making states: If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for and against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.
The worker received treatment at the POC from June 5, 2015 to July 27, 2015. The clinical impression at the time of discharge was lumbar disc with QL (quadratus lumborum) muscle strain. The therapist recommended the worker stay on modified duties, regular hours. The worker had restrictions for bending, reaching and he was slow moving. He had chronic back pain. The therapist noted the worker had osteoarthritis of the knees and this could delay his recovery.
The worker had a thorough assessment of his condition when he was seen at the REC in August 2015. He reported constant low back pain that radiated into the posterior right leg to the calf. He also complained of weakness, paresthesias, and numbness in the right leg. He said those symptoms were not present prior to the work injury.
The worker reported that he was independent in self-care and the activities of daily living, but required help with heavier household chores. He continued to attend the gym daily (as he had for 20 years) but he was not able to exercise at his pre-injury level. He had functional limitations for standing, sitting and walking less than 30 minutes. He woke after 3 to 4 hours with right leg pain. He continued in modified work, working 20 hours per week, his pre-injury hours. He did not lift garbage or sweep floors.
Based on the examination, Dr. Willoughby, the REC physician, diagnosed a lumbar sprain/ strain. Full functional recovery was expected within 8 weeks. An additional 8 weeks of therapy was recommended, twice per week, with a focus on progressive strengthening. After four weeks of therapy, the REC assessors recommended the worker graduate back to regular duties, one hour per shift, over the subsequent four weeks. Temporary restrictions were identified for no heavy lifting/ pushing/ pulling; no ladders; limited prolonged standing/ walking/ sitting; and avoid prolonged awkward trunk positions/ spinal bending/ twisting.
Dr. Willoughby also identified two relevant non-occupational diagnoses: lumbar spondylosis and knee osteoarthritis.
The treating physiotherapist requested the worker be provided with a back brace to decrease his pain by the end of the day and to provide extra support. Memos 11 and 12 indicate this was actually a back support (not a brace) and it was approved under the claim.
The physiotherapist completed a discharge report on October 28, 2015. The clinical impression was that the worker had a lumbar strain. The worker completed the work conditioning program, had plateaued in his recovery, but had not returned to normal. He was to continue with a home exercise program and to use a back brace (support) and return to regular duties. No further improvement was expected.
Memo 13 documents a teleconference with the worker and his employer on November 16, 2015. The worker had not progressed back to his full duties. He said he had permanent precautions. The CM told the parties that the work injury had resolved and any ongoing health concerns were considered non-occupational.
It appears the worker continued to perform modified work. The worker provided copies of letters from the employer that show he was placed in a new building in December 2016 and he was terminated in April 2017. The December 2016 letter identifies the worker’s duties at the new building. His duties involved light cleaning tasks. On April 20, 2017, his employment was terminated related to job performance and timekeeping practices.
The worker did not provide a submission with his ARF. He provided an internet address for a Toronto Star article on pre-existing conditions. The employer did not provide a submission.
The worker has chronic back pain and it appears that he continued in modified duties after the claim was closed. The issue before me is whether the worker required modified duties for underlying age-related degenerative changes in his back and knees or whether he suffered a permanent lumbar strain.
Policy 11-01-05 indicates that recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached. In this case, the worker reached a plateau in his recovery with ongoing symptoms. Policy 11-01-02 indicates that when the evidence for and against the worker is equal, is the issue decided in the worker’s favour. I find the evidence is not equal and does not weigh in the worker’s favour.
The REC concluded the work injury was limited to a muscle strain. The worker was expected to fully recover and return to regular duties after strengthening. The treating physiotherapist initially suspected a disc injury, but by the time of discharge in October 2015, the working diagnosis was limited to a strain. The discharge report from the physiotherapist noted the worker had not returned to his pre-injury level. However, the treating therapist also said the worker was able to perform regular duties. She did not identify any ongoing physical restrictions. There is no report on the claim indicating the worker requires permanent restrictions.
Most soft tissue injuries resolve within a few months. In this case, the injury occurred near the end of May 2015 and the worker was determined to have recovered about five months later.
The worker was 71 years old at the time of injury and when he completed his work conditioning program. The REC report indicates the worker was taking a number of medications for his knees, prior to the work injury. This included: Tylenol # 3 twice a day which also helped take the sharpness out of his back pain; a number of medications related to cardiovascular health; Lenoltec, a narcotic for pain; Amitriptyline, a sleep aid and anti-depressant.
When I consider all the evidence, I conclude the worker recovered from the work-related muscle strain by October 19, 2015. Soft tissue strains generally resolve. The worker was able to strengthen his muscles sufficiently that his therapist approved his return to pre-injury work. He reports ongoing pain, but he has degenerative changes in his spine and his knees that did not arise out of the work injury. I conclude the worker’s ongoing pain and functional limitations are more likely related to progressive degenerative change rather than a persisting low back strain. I find the evidence does not establish on the balance of probabilities that the worker’s ongoing symptoms arise out of the work injury.
CONCLUSION
The worker recovered from the work-related muscle strain by October 19, 2015.
The worker’s objection is denied.
DATED May 18, 2018
Judy Cantwell
Appeals Resolution Officer
Appeals Services