DECISION NUMBER:

20220138

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

M. RODRIGUES, APPEALS RESOLUTION OFFICER

OCTOBER 5, 2022

ISSUE

The worker, through their representative, is objecting to the case manager’s decision of September 14, 2021. That decision determined the worker’s lumbar strain fully resolved by September 10, 2021 with no permanent impairment.

BACKGROUND

On September 11, 2020, this electrician was performing monthly programming maintenance on an AS1 conveyor belt and twisted their lower back while trying to go down feet-first to the platform below. The worker reported their injury to the employer immediately and sought health care the following day. They did not lose time from work and returned to modified duties. Initial entitlement was accepted for health care benefits for a lower back sprain/strain injury.

The worker continued to experience ongoing low back pain and was referred to the WSIB back and neck specialty clinic in April 2021. In a decision letter of September 14, 2021, the case manager limited the diagnosis to a lumbar strain and determined it fully resolved by September 10, 2021 with no permanent impairment. Entitlement to mild degenerative changes and disc bulging was denied. On April 12, 2022, the decision was reconsidered, but the original decision was upheld.

The worker representative disagreed and objected to the decision of September 14, 2021 in regards to the low back injury fully resolving.

AUTHORITY

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2014

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find a permanent impairment is evident for the lumbar strain. The worker’s objection is allowed.

Worker position

In the submission of March 22, 2022, the worker representative argued the worker’s low back was asymptomatic prior to the September 2020 workplace accident and was not contributing to the current level of impairment. They stated this was supported by the clinical evidence in the case record. They opined the work-related low back sprain/strain injury did not resolve, indicating the worker had a permanent impairment and was entitled to a non-economic loss assessment

The representative stated the specialty clinic reports confirm the worker’s low back symptoms resulted from the work-related lumbar strain. They noted the assessors did not identify a non-work-related diagnosis, but had indicated the worker had reached maximum medical recovery (MMR) at the medium/heavy physical demand capacity with residual back pain. In support of their position, they attached the worker’s responses to questions they posed, along with a decision from the British Columbia Workers’ Compensation Appeal Tribunal (BC Tribunal). They also referenced policy 11-01-13 (Benefit of Doubt) and section 119(2) of the Workplace Safety and Insurance Act (WSIA) and clinical reports of May 27, 2021 and September 10, 2021.

Employer position

The employer chose not to participate in this appeal and did not provide any submissions for my review.

Policy

In order to determine if a worker has fully recovered from his/her work-related injury, the information needs to show whether an ongoing work-related impairment exists. This is detailed in policy 11-01-05 (Determining Permanent Impairment). The policy states an impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

Recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached. MMR means that a plateau in recovery has been reached and no further significant improvement is expected. To determine if MMR is reached, decision-makers consider whether recent clinical evidence indicates any change in the work-related injury, the worker is receiving or will receive treatment that is likely to improve the work-related injury, or the worker is receiving treatment or using medication to maintain the current level of recovery. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.

Findings

The worker representative referenced one decision from the BC Tribunal in support of their position that even if an underlying condition contributed to the current level of impairment, the appropriate standard of causation and factual issues must be decided in favour of the worker. It is important to note I am not

bound by prior decisions from the BC Tribunal. Each case is adjudicated on its own merits using the available evidence and relevant policies.

In the BC Tribunal decision xxxxx of June 24, 2016, the issue was whether entitlement was in order for the workers’ breast cancer, as a result of their employment as a laboratory technician. As such, the BC Tribunal had to determine whether a causal link could be established. However, based on the available evidence in this case record, I found the circumstances different in this claim.

First, I noted the legislation used by the BC Tribunal differs to that used in Ontario, given that different policies and Acts govern provinces. Secondly, the issue in the BC Tribunal decision deals with an occupational disease due to the nature of employment. Whereas, in this claim, the issue is whether the work-related low back injury fully resolved based on a disablement of an unexpected result of working duties and not due to a long-term exposure or occupational disease. As such, I did not place weight on the BC Tribunal decision.

The worker representative referenced policy 11-01-13 (Benefit of Doubt) and section 119(2) of the WSIA. However, I did not find the evidence for or against the issue in this claim to be equal in weight. I relied on policy 11-01-05 (Determining Permanent Impairment) to help me make my decision about whether the worker’s lumbar strain fully resolved and if a permanent impairment was evident. Based on the available clinical evidence in the case record, I find a permanent impairment is evident for the worker’s lumbar strain. I found the specialty clinic report of September 10, 2021 persuasive in reaching my conclusion. My reasons for why are outlined below.

I noted the case manager limited entitlement to a lumbar strain in this claim, indicating there was no entitlement to the findings in the MRI. The worker representative stated the May 27, 2021 specialty clinic report indicated a non-work-related diagnosis was not given for the worker based on the MRI findings. In reviewing this report, I came to the same conclusion as the representative.

I noted the worker had an MRI taken on May 9, 2021 of their back. The MRI report was not included in the case record. However, the May 27, 2021 specialty clinic report stated the findings revealed mild degenerative changes at the lumbarsacral junction with mild bilateral neural foraminal narrowing. There was also an incidental 4.1-cm T2 bright lesion in the upper pole of the right kidney that was likely a cyst. A recommendation was made for a correlation with a targeted abdominal ultrasound. However, I noted one was not completed.

In reviewing the MRI findings, the assessor identified a retrolisthesis of L5 on S1, which was secondary to the mild disc degenerative disease and disc bulging. However, the assessor noted there was no acute disc herniation, identifiable acute disc injury, or evidence of nerve root compression. They opined that overall, the spine looked quite healthy. The worker continued to be diagnosed with a work-related unresolved lumbar strain. The assessor did not identify a non-work-related diagnosis. As such, I find it compelling that a non-work-related diagnosis was not given for the worker’s low back at that time.

I accept the worker representative’s position that a permanent impairment is evident for the worker’s lumbar strain. I find the available clinical evidence does not support the worker’s low back injury fully resolved by September 10, 2021. While the August 20, 2021 specialty clinic treatment discharge report indicated the low back range of motion was normal, I noted the worker continued to have restrictions in place for their low back injury. However, in the September 10, 2021 specialty clinic report, I noted the worker’s low back range of motion findings were not within the normal limits for flexion and extension. Their range of motion findings for flexion and extension had fluctuated over the treatment period.

Furthermore, I afforded weight to the assessors’ opinion in the September 10, 2021 specialty clinic report. I find it significant the assessor identified permanent restrictions for the worker’s lumbar strain for lifting, pushing/pulling, ladder climbing and bending/twisting on a repetitive basis. I noted the assessors based their opinion on the functional testing in the treatment discharge report and the worker’s current presentation at the specialty clinic on September 10, 2021. At that time, I also noted the worker was performing modified duties and had not returned to their pre-injury duties with or without accommodation.

Noting policy 11-01-05 (Determining Permanent Impairment), I find the available clinical evidence supports the worker’s continuous low back symptoms and their persistence following the workplace accident. I find the available clinical evidence supports a permanent impairment for the worker’s lumbar strain arose out of the September 2020 workplace accident.

While the worker representative included statements from the worker in regards to their restrictions, I placed weight on the assessors’ opinion in the specialty clinic report of September 10, 2021. I am satisfied the available clinical evidence supports the worker has permanent restrictions for their low back injury. I find it significant that the assessors based their opinion on the functional testing of the lumbar strain. I noted the worker had limited range of motion for flexion and extension of their low back and had not resumed their pre-injury duties at that time. Thus, I find the worker’s lumbar strain did not fully resolve by September 10, 2021 and a permanent impairment is evident.

CONCLUSION

A permanent impairment for the lumbar strain is evident. The worker’s objection is allowed.

DATED October 5, 2022

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division