DECISION NUMBER:
20230018
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER REPRESENTATIVE
REPRESENTED by:
NOT REPRESENTED
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
D. PEDDLE, APPEALS RESOLUTION OFFICER
December 16, 2022
ISSUE
The worker objects to the Eligibility Adjudicator’s (EA) March 8, 2022 decision denying initial entitlement to benefits for a low back injury.
BACKGROUND
On February 24, 2022 while employed as a lead hand, this worker was changing the blade on a sidewalk snowplow with a colleague. The 100-pound blade did not align correctly, so the worker and their colleague began lifting, tipping and pushing the blade and the plow. The worker reported that back and radiating left leg pain onset approximately one hour after their shift. The worker arrived at work the following morning, but ceased working shortly thereafter as their symptoms necessitated medical attention at an emergency room (ER).
On March 8, 2022, the EA denied initial entitlement noting the worker had a pre-existing, unspecified disc herniation with multilevel spinal degeneration identified via November 2021 MRI. On May 20, 2022, the EA reconsidered and upheld their decision as the February 25, 2022 Form 8 provided an alternate accident history of driving, medical records indicated the worker’s diagnosis was not work-related and in their view sciatica is a common symptom caused by many health conditions. The worker objects to the EA’s decision.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
November 3, 2008
October 12, 2004
ANALYSIS
Having carefully considered all available information, legislation and relevant operational policies I find that initial entitlement to benefits is not in order; my rationale follows.
Worker’s Position
The worker representative’s (WR) Appeals Readiness Form (ARF) dated July 5, 2022 requests that initial entitlement be authorized based on an aggravation of a pre-existing condition. The ARF does not reference any supportive documents, medical records, or elaborate on details supporting their position.
Employer’s Position
The employer’s March 1, 2022 submission asserts initial entitlement to benefits is not in order because the worker’s condition for which benefits are sought, is pre-existing and non-work-related. Further, the worker’s pre-existing condition necessitated work cessation from June 8 to July 1, 2021 and the worker performed modified duties upon their return, until reporting this injury.
Evidence and Analysis
Pursuant to operational policy 11-01-01 Adjudicative Process, all decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system known as the "five point check," stipulates an allowable claim must have the following five points:
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
There is no dispute regarding the first two criteria. However, there is contention regarding the final three. Operational policy 15-02-01 Definition of an Accident states workplace accidents include
a willful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment.
The definition of disablement includes
a condition that emerges gradually over time
an unexpected result of working duties.
The record is most consistent with a disablement, unexpected result of working duties. I recognize that the first Form 8 states symptoms onset while driving. However, all other records - including the worker’s report to the employer on February 25, 2022, the same date the ER medical doctor (MD) authored the Form 8 - state symptoms onset after installing a plow blade. Thus, it is evident that the worker reported an accident in the form of installing a plow blade. However, in order to authorize entitlement and recognize that a workplace accident occurred, there must also be evidence indicating that an injury arose out of one; in this case, I find no such evidence.
Dr. Lam’s February 25, 2022 Form 8 provided a diagnosis of sciatica, of unknown etiology on a background of pre-existing sciatica. Dr. Lam, ER MD, referred the worker back to their general practitioner (GP) for injury management.
During the CSR eligibility phone call on March 3, 2022, the worker reported that their GP is Dr. McDonald. The worker stated Dr. McDonald diagnosed L4-5 sciatica and did not refer them for any diagnostic imaging, but rather reviewed a previous MRI from just months before this accident.
The November 16, 2021 lumbar MRI states the worker was referred due to chronic back pain and sciatica and a previous MRI in 2016 demonstrated spondylolytic degeneration with mild impingement of the left L5 nerve root. A contemporaneous x-ray showed L4-5 anterolisthesis with moderate facet joint degeneration. The November 2021 study was less descriptive, noting non-specific multilevel spinal degeneration with an L1-2 posterior disc bulge indenting the thecal sac, combined with bilateral facet joint degeneration.
A March 7, 2022 physiotherapy assessment noted severe low back and left leg pain, a positive left-sided straight leg raise test, weakness in the L1-L4 myotomes and provided a working diagnosis of an unspecified disc herniation with sciatica.
The worker sought medical attention with another family medicine MD and on March 17, 2020 Dr. Sharma authored a Form 8 with a diagnosis of L4-5 radiculopathy. Similar to Dr. Lam, Dr. Sharma advised the worker to follow up with their GP for diagnostic imaging or specialist referrals, of which there is no evidence.
Dr. McDonald submitted a March 21, 2022 letter stating they reassessed the worker and the worker was unable to work - due to unspecified medical conditions. Dr. McDonald did not provide a diagnosis, repeat diagnostic imaging, nor mention any specialist referrals.
Having carefully examined the evidence, I find that a workplace accident and injury did not occur. The WR requested that entitlement be authorized based on an aggravation of an unspecified pre-existing condition. However, I do not find any medical professionals offering such an opinion. In order to reach such a conclusion there would need to be evidence confirming that the pre-existing condition deteriorated, which I do not find.
I recognize the worker reported low back pain and left-sided sciatica the morning after they installed a plow blade, which could conceivably cause a spinal injury. However, the employer objected to this claim stating the worker ceased working for a period - months before this accident, because of the same condition - and the WR has not refuted this point. Moreover, during the CSR eligibility phone call the worker reported these symptoms onset in 2021, after a previous denied claim that is not before me, indicated they did not recover afterward, and the pain persisted since.
Although most of the worker’s pre-injury medical records are not on file, a November 16, 2021 MRI elucidates the pre-existing condition. The MRI for chronic low back pain with sciatica demonstrated L1-2 thecal sac compression with moderate degeneration and the symptoms were already longstanding given a 2016 MRI identified left L5 nerve root impingement with moderate L4-5 degeneration and an MD indicated the worker was still suffering from L4-5 radiculopathy in March 2022.
Whether symptoms manifested in 2021 as the worker reported at the outset of this claim - or earlier, as the MRI indicates - is inconsequential to this appeal, as they were extant when the worker reported this injury. Again, I acknowledge the worker reported low back pain and left-sided sciatica flared after installing the plow bade. However, symptoms (or a flare of pre-existing symptoms) in themselves do not constitute an injury. In my view, in order to establish that a work-related injury occurred in this scenario, there would need to be clinical evidence demonstrating that the underlying structural spinal pathology deteriorated; there is no such evidence.
Although multiple MDs assessed the worker in early 2022, none ordered diagnostic imaging, or referred the worker to a specialist, but rather referred the worker back to their GP - who simply revisited the previous MRI with the worker, an MRI the worker underwent for the same symptoms only a few months before reporting this injury. For the reasons set out above, I find no evidence of a personal work-related injury.
In summary, the third criterion under operational policy 11-01-01 is not met, and initial entitlement to benefits is not in order - for a standalone injury, or an aggravation of a pre-existing condition; there was no work-related injury.
CONCLUSION
The worker’s appeal is denied; initial entitlement to benefits is not in order.
DATED: December 16, 2022
D. Peddle
Appeals Resolution Officer Appeals Services Division