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WORKPLACE SAFETY AND INSURANCE BOARD
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## APPEALS RESOLUTION OFFICER DECISION
**DECISION NUMBER:** 20180082
**OBJECTING PARTY:** Worker
**REPRESENTED by:** Worker Representative
**RESPONDENT:** Employer (Not Participating)
**HEARING:** Hearing in Writing
**HEARD by:** L. Cirillo, Appeals Resolution Officer
**DATED:** May 22, 2019
____________________________________________________________________________
## ISSUES
The worker objects to the Case Manager’s (CM’s) decision dated September 13, 2018 which determined the following:
- Denied an exacerbation of the worker’s pre-existing lower back condition;
- Denied ongoing entitlement for a lower back strain.
I must note that in correspondence dated December 11, 2018 the worker’s representative has requested additional entitlement for an annular tear. This issue was considered and denied by the CM on January 9, 2019; however, the decision was not communicated to the workplace parties, and has not been objected to or referred to the Appeals Services Division (ASD). Therefore, this issue is not within my jurisdiction and as a result no finding of fact will be rendered in this regard.
## BACKGROUND
On December 4, 2017 the worker was walking with an arm full of costumes weighing approximately 10-15 pounds when she tripped over a rug, stumbled approximately 10 steps and hit a door jamb to stop herself from falling. In doing so she twisted her lower back. The worker was 53 years of age at the time and had been working for the employer as a Background Wardrobe Assistant for two months. Note is made that the worker suffered from a long-standing history of pre-existing back problems.
Initially the worker was able to continue working; however, her pain prevented her from being able to complete her full regular duties and as a result she stopped working as of December 9, 2017. The worker sought medical attention on December 6, 2017 and was diagnosed with a lumbar strain/sprain.
Initial entitlement for a lower back strain and Loss of Earnings (LOE) benefits were allowed and the worker participated in conservative treatment. The worker returned to work from January 11, 2018 until January 19, 2018; however, she subsequently lost time stating that she was unable to sustain her regular duties and there was no modified work available.
Despite her participation in treatment the worker reported ongoing symptoms and as a result she was referred to the WSIB Neck & Back Speciality Clinic. In the initial report Dr. Sennik, Orthopaedic Surgeon noted that the worker was suffering from pre-existing issues affecting her lower back in addition to a work-related lumbar strain. Additional treatment was recommended; however, a full recovery was anticipated.
In April 2018 the worker attended a follow up assessment at the speciality clinic. At that time it was determined that the worker would reach a full functional recovery within 6 weeks’ time; however, it was suggested that the worker undergo Magnetic Resonance Imaging (MRI) investigation to further assess her condition.
The May 2, 2018 lumbar spine MRI report was compared to a previous examination of
December 10, 2011. The radiologist noted that there was a progression of anterolisthesis of L5 on S1 on the basis of bilateral pars interarticularis spondylolysis, resulting in greater narrowing of the neural foramina, encroaching on the (and possibly compressing) the exiting L5 nerve roots, bilaterally. Progression of degenerative disc disease (DDD) at the same level with a small annular tear was also noted.
The worker was re-assessed at the speciality clinic and in their report dated May 11, 2018 it was noted that the occupational diagnosis remained lumbar sprain/strain with a non-occupational diagnosis of pre-existing L5-S1 spondylolisthesis with grade 1 split. Dr. Wilson, Orthopaedic Surgeon noted that the disc material had tracked out the back of the L5 and up into the foramen to compress the right L5 nerve root and as a result the worker required an L5-S1 decompression and instrumented fusion.
The operating area referred the file to the WSIB Medical Consultant (MC) in order to obtain an opinion on whether or not there was evidence of an ongoing work-related impairment, if the workplace accident exacerbated the pre-existing condition and if so, whether or not the proposed surgery was the responsibility of the claim.
Following review by the WSIB MC on July 13, 2018 and August 7, 2018 it was concluded that the occupational lumbar sprain/strain had resolved without sequelae and that the work injury did not exacerbate the pre-existing condition. As a result ongoing entitlement and entitlement for the proposed surgical intervention was denied. The decision was communicated to the worker in correspondence dated September 13, 2018.
It appears the worker underwent the surgical procedure sometime in early 2019.
The worker objected to the denial of ongoing entitlement; however, the decision remained unchanged and as a result the matter was referred to the ASD for further consideration.
### Worker’s Position:
In correspondence attached to the Appeal Readiness Form (ARF) dated December 11, 2018 the worker’s representative provides a detailed claim background which will not be repeated in its entirety.
In summary, she argues that the true merits and justice of this case have not been adequately addressed. She states that on the date of injury the worker tripped on a carpet, stumbled forward and twisted her lower back which resulted in immediate pain.
She states that while the worker was involved a motor vehicle accident (MVA) in 2000 and had previous back issues, she was able to take time to heal from that injury and return to work. She states that upon her return to work she had no physical limitations preventing her from working in a physically active/demanding job for 90+ hours per week. She further argued that the clinical notes from 2002 to 2017 reveal doctor’s visits that are sporadic when compared to the visits following the workplace accident.
The representative states that according to the worker, she worked from 2002 to 2017 without any debilitating lower back problems and she was capable of her full regular duties, although she occasionally complained to her family doctor about aches and pains. She further argued that the MRI completed in 2011 was done as part of a regular routine check to keep an eye on the worker’s well-being and to provide preventative treatment, if required.
The representative argued that the 2018 MRI took place to determine the cause of the difficulties arising from the work injury. In her view, when comparing the two reports, there is a considerable difference between the two. She states that in the more recent MRI there was mention of some inconsistencies in the measurements from the previous MRI but on the whole the previous report only noted very mild DDD at the lumbosacral junction and that the worker was not in any pain at the time and that she was not necessarily a candidate for surgery.
In her view, the act of tripping and twisting was a significant contributing factor in the development of the worker’s pain and the fact that she continued working immediately following the incident, further aggravated her condition. The representative argues that from the onset the worker complained of intense pain, which in her view, was supported by the findings identified on the MRI (i.e. the annular tear) and while the WSIB MC opined that the worker’s condition was naturally occurring, the fact is that this is not reasonable, noting she was functioning beforehand. In her view, there is no evidence that surgery was being contemplated prior to the work accident and in fact the worker’s pre-existing condition was asymptomatic prior to the workplace accident and only became manifest post-injury.
She further states that Dr. Wilson does not provide an accurate picture of the evidence in the claim (it appears she is actually referring to the WSIB MC, Dr. Dessouki) as he did not take into account the worker’s explanation of her injury before and after the accident and to decide the outcome of a claim on a limited amount of information does not serve the justice and merits of the claim. But for the work injury, she argues, that the worker would have been working earning a living. As a result she requests ongoing entitlement for the proposed surgery and LOE benefits.
## AUTHORITY
### Operational Policies:
11-01-05 Determining Permanent Impairment
15-02-03 Pre-existing Conditions
15-02-04 Aggravation Basis
## ANALYSIS
I have reviewed the record and considered the information and relevant operational policies in reaching this decision. In considering all of the evidence including the medical reports on file from Dr. Patroi, Dr. Sennik, Dr. Wilson, as well as the opinion from the WSIB medical consultant, in addition to the arguments presented, I find there has not been an exacerbation of the worker’s pre-existing impairment and the ongoing pain/disability stems from the worker’s pre-existing, chronic back issues. I also find that the accepted lumbar sprain/strain has resolved without sequelae and as a result there is no ongoing entitlement for the lower back. The rationale for my decision is as follows.
As is already outlined above, entitlement in this claim was allowed for a lumbar sprain/strain type injury. The evidence on record confirms the worker has had a long history of pre-existing lower back issues.
The medical reporting on file from 2000 notes the following:
- August 8, 2011 – MRI lumbosacral spine. Diffuse degenerative disc bulge at L5-S1 without significant central canal stenosis. Mild facet joint hypertrophy and ligamentum flavum hypertrophy noted;
- August 27, 2011 – Consultation letter from Dr. Prutis, Rheumatologist. The worker reported the onset of back pain following a MVA. The diagnosis was early lumbosacral spine DDD;
- September 22, 2003 – Report from Dr. Inoque, Chiropractor. The worker’s lumbar range of motion (ROM) was limited by approximately 20% with end-range pain, most pronounced in flexion. Diagnosis – lumbar spine strain/sprain;
- October 11, 2011 – x-ray – bilateral spondylolisthesis at L5 with associated grade 1 anterolisthesis;
- October 23, 2011 – Dr. Patroi – worker presents for follow up of back pain without leg weakness – diagnosis – spondylolisthesis;
- November 22, 2011 – Dr. Patroi – back pain prevents her from working – also reports numbness in one leg that has resolved;
- December 6, 2011 – Progress note Dr. Lange-Mechlen, Rheumatologist – pain following an assault from her daughter. Reported a new finding of bilateral spondylolisthesis L5 with grade 1 anterior listhesis;
- December 10, 2011 – MRI Lumbar spine – grade 1 spondylolisthesis of L5 upon S1 with bilateral L5 spondylolysis which results in mild bilateral neural foraminal stenosis. The mild anterolisthesis of L5 upon S1 is approximately 8 mm. There is no central canal stenosis or nerve root compromise;
- March 1, 2013 – note Dr. Florica, Rheumatologist - the worker’s lumbar ROM is decreased, notable in lateral flexion, extension and rotation. Hyper lordosis of the lumbar spine and mild paravertebral muscle contracture is noted. Schober’s test is 2 cm;
- January 9, 2014 – CT scan notes bilateral spondylolysis with less than grade 1 spondylolisthesis;
- July 13, 2014 – chart note Dr. Patroi – diagnosis – back pain;
- April 29, 2015 – CT (kidney) – grade 1 spondylolisthesis at L5-S1;
- December 7, 2017 chart note Dr. Patroi – worker reported workplace injury;
- December 11, 2017 – x-ray lumbar spine – spondylolysis at L5 with associated moderate anterolisthesis of L5 on S1 likely on the basis of bilateral pars interarticularis defects;
- February 21, 2018 – WSIB Neck and Back clinic report – Dr. Sennik, Orthopaedic Surgeon – occupational diagnosis is lumbosacral spine strain/sprain and non-occupational diagnosis is pre-existing L5-S1 spondylolisthesis with a grade 1 split;
- MRI May 2, 2018 – study is compared to the previous examination from December 2011 – the previous report indicated the L5 on S1 anterolisthesis as 8 mm, but it was likely overestimated and closer to 6 mm. There is progression of anterolisthesis of L5 on S1, 9-10 mm, on the basis of the bilateral pars interarticularis spondylolysis, resulting in greater narrowing of the neural foramina, encroaching on (and possibly compressing) the exiting L5 nerve roots bilaterally. There is also progression of DDD at the same level with a small annular tear;
- May 11, 2018 – Dr. Wilson – Neck & Back Clinic – confirms the occupational diagnosis as lumbar sprain/strain and non-occupational diagnosis of pre-existing L5-S1 spondylolisthesis with grade 1 split. Dr. Wilson reviewed the MRI and noted that disc material had tracked out back of the L5 and up into the foramen to compress the right L5 nerve root and as a result he suggested an L5-S1 decompression and instrumented fusion.
Operational Policy 15-02-04, Aggravation Basis states in part:
In cases where the worker has a pre-accident impairment and suffers a minor work-related injury/disease to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis.
Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.
Definitions
Aggravation: is the temporary effect that a minor work-related injury/disease has on a pre-accident impairment requiring health care and/or leading to a loss of earnings.
Minor accident: is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury/disease.
Pre-accident impairment: is a condition that has produced periods of impairment/disease requiring health care and has caused a disruption in employment (lost time and/or modified work). Although the period of time cannot be defined, the decision-maker may use a one to two year timeframe as a guide.
Pre-accident state: is the worker's level of impairment and work capacity prior to the work-related injury/disease.
Entitlement for aggravation of a pre-accident impairment is accepted when the clinical evidence demonstrates a relationship between the pre-accident impairment and the degree of impairment resulting from the accident, and the impairment after the accident is greater than would be expected owing to the pre-accident impairment.
When it is accepted that a minor work-related accident aggravated a pre-accident impairment, benefits are paid until the worker returns to the pre-accident state.
Operational Policy 15-02-03, Pre-existing Conditions states in part:
If the pre-existing condition is impacting the worker’s impairment, benefits will generally continue as long as the work-related injury/disease continues to significantly contribute to the worker’s impairment.
Once the existence of a pre-existing condition has been established, ongoing work-relatedness is determined by considering the relationship, if any, between the pre-existing condition, the work-related injury/disease, and the worker’s impairment, based on the clinical evidence.
When assessing the impact of the pre-existing condition on the worker’s ongoing impairment, the decision-maker determines whether the work-related injury/disease continues to be a significant contributing factor. To make this determination, the decision-maker considers the significance of the work-related injury/disease and the pre-existing condition, relative to each other.
In some cases, the clinical evidence may demonstrate that the significance of the pre-existing condition is so great it has overwhelmed the impact of the work-related injury/disease, rendering it insignificant. When this occurs, the work-related injury/disease cannot be considered to be of sufficient significance in comparison to the pre-existing condition, for benefits to continue.
It is my understanding that anterolisthesis, otherwise known as spondylolisthesis is a spinal condition in which the upper vertebral body, the drum shaped area in front of each vertebrae, slips forward onto the vertebrae below. The amount of slippage is graded on a scale from 1 to 4.
Anterolisthesis is often due to sudden blunt force or fractures. These can be the result of trauma typically experienced in an auto accident or a fall. Anterolisthesis can also develop over time through strenuous physical exercise. Aging is another common cause of the condition, which occurs naturally over time as the cartilage between the vertebrae weakens and thins. It can also be liked to conditions such as weak bones and arthritis.
Anterolisthesis can cause constant and severe localized pain, or it can develop and worsen over time. Pain may be persistent and often affects the lower back or the legs.
Mobility issues due to pain can lead to inactivity and weight gain. It can also result in loss of bone density and muscle strength. Flexibility in other areas of the body may also be affected.
Other symptoms of anterolisthesis include:
- muscle spasms
- pulsating or tingling sensations
- inability to feel hot or cold sensations
- pain and poor posture
- weakness
In severe cases, the following symptoms may occur:
- difficulty walking and limited body movement
- loss of bladder or bowel function
In this particular case, there is no question that the worker suffered from a pre-existing impairment in the form of DDD and L5-S1 spondylolisthesis with grade 1 split well before the date of injury in this claim. While I acknowledge the arguments presented by the worker’s representative in that that worker did not have any issues and was capable of her full regular duties prior to the December 2017 work accident, I respectfully disagree. The medical evidence clearly demonstrates that the worker has had long-standing, pre-existing chronic back issue dating back to the year 2000. The worker underwent MRI investigation in 2011 and I am not persuaded that this was simply for preventative maintenance. In my view, a physician would not order such intricate test had the worker been well and had no complaints of pain. I also note that in her letter dated July 17, 2018 Dr. Patroi, the worker’s family doctor, confirms the worker had a long history of back pain and osteoporosis and that she had several episodes of pain during the last few years.
I note the representative has argued that the worker did not have any issues immediately prior to December 2017; however, the information on file supports that the worker only commenced her employment with the employer in October 2017. In addition, there is evidence that in the 2 years prior to the date of injury, the worker did not work in any capacity during two separate periods including April 2, 2016 to June 15, 2016 (due to a reported non-occupational medical issue) and again from January 15, 2017 to June 20, 2017 (due to a reported lack of work). While I acknowledge the worker’s explanation for the reason for the time off, I am not persuaded that the worker was in fact fully capable of her regular duties at all times immediately prior to the date of injury.
The file was reviewed by the WSIB MC Dr. Dessouki, Orthopaedic Surgeon and in his memos dated July 13, 2018 and August 7, 2018 he notes that the worker has a significant history of low back problems, including anterolisthesis of L5 on S1. He noted that in 2011 it was stated that the condition measured at 8 mm; however, it was later believed to actually be closer to 6 mm. In addition, the worker suffers from DDD, bilateral L5 spondylolysis/pars defects, mild bilateral neural foraminal stenosis at L5-S1 and that she had her tailbone removed in the 1990’s and also suffered vertebral fractures from L3 to L5 in 2000.
I note Dr. Wilson (Neck & Back Clinic) suggested surgical management in the form of an L5-S1 decompression and instrumental fusion; however, in my view, this was solely to treat the worker’s pre-existing condition. While I acknowledge the worker tripped and twisted her back at work on the day of injury, the fact of the matter is that she was already suffering from spondylolisthesis (also known as bilateral pars interarticularis defects) and anterolisthesis of L5 on S1 as early as December 10, 2011. While the MRI completed in 2018 demonstrated anterolisthesis that had increased to 9 or 10 mm I am not persuaded that the progression in the condition was caused by the workplace injury. Instead I am more persuaded by the opinion of the WSIB MC, an orthopaedic surgeon, in that it has been suggested that 2% progression of this condition occurs per year. The MC also opined that the difference between the anterolisthesis from 2011 and 2018 can be attributed to natural progression of the condition, and not related to the claim or work injury whatsoever. This, in my view, is supported by the fact that there is objective medical evidence that the worker had decreased lumbar ROM prior to the date of injury in this claim. I acknowledge the representative’s argument in that the worker did not continue working until January 19, 2018; however, she did continue working for a few days post-accident, albeit with pain. The MC opined and I agree, that had she had an acute exacerbation of her pre-existing impairment related to the workplace accident, she would not have been able to continue, even for a few days.
Therefore, in considering all of the above, I find the workplace accident did not aggravate the worker’s pre-existing impairment and as a result there is no entitlement for the proposed surgery.
Operational Policy 11-01-05 states the following in part:
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.
It is my understanding that lumbar sprain/strains are expected to resolve within 12 weeks at most. As outlined in the MC’s memo, the worker is noted to have experienced significant back pain and limited lumbar ROM prior to the date of injury in this claim and in his opinion, the ongoing impairment and requirement for surgical management is related to the pre-existing conditions rather the work-related sprain/strain, which would have been long since resolved.
In considering the above, and in the absence of any medical opinion to the contrary, I find that the accepted lumbar sprain/strain has resolved and the worker’s ongoing pain/disability stems from her pre-existing, chronic back issues.
For these reasons, I concur with the operating area in that there is no ongoing entitlement for the worker’s lower back strain.
## CONCLUSION
I conclude the following:
- The workplace accident did not aggravate the worker’s pre-existing impairment and as a result there is no entitlement for the proposed surgery or related benefits;
- The accepted lumbar sprain/strain resolved without sequelae and as a result ongoing entitlement is not in order.
The worker’s objection is therefore, denied.
DATED: May 22, 2019
L. Cirillo
Appeals Resolution Officer
Appeals Services Division
minicounsel