APPEALS RESOLUTION OFFICER DECISION
decision number:
20220033
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
REPRESENTED by:
not rerpesented
HEARING:
HEARING IN WRITING
HEARD by:
m. haughton, appeals resolution officer
ISSUE
The worker is objecting to the Case Manager’s (CM) decision dated January 12, 2021, which denied secondary entitlement to the lower back.
BACKGROUND
On October 30, 2017, this welder was cutting a steel ring with a torch when a four (4) foot piece of metal weighing between 400 and 500 pounds fell and landed on the worker’s right foot. The worker reported the injury to the employer and sought medical attention on October 30, 2017. Initial entitlement was accepted for a crush injury to the right foot, including fractures to the right second to fifth toes and amputations of the right first to third toes.
The CM determined the worker reached maximum medical recovery for the accepted right toe fractures and toe amputations on December 1, 2018 and a permanent impairment was evident. The CM accepted the worker had permanent functional precautions for prolonged standing and walking for more than one (1) hour, limited use of ladders, limited walking on uneven ground and limiting kneeling and crouching to an occasional basis. On September 26, 2019, the worker received a five (5) per cent Non-Economic Loss (NEL) award for the right toes. On May 6, 2021, the NEL Clinical Specialist reconsidered the September 26, 2019 decision and increased the worker’s NEL award for the right toes to six (6) per cent.
On June 3, 2020, entitlement to psychotraumatic disability was accepted. The CM determined the worker reached maximum psychological recovery on December 18, 2020 and a permanent impairment was identified. The CM indicated there were no psychological restrictions that would prevent the worker from returning to work. On January 7, 2021, the worker received a NEL award for an adjustment disorder with mixed anxiety and depressed mood. The worker has a 30 per cent whole person impairment for their accepted organic and non-organic injuries.
The worker was unable to return to work with the employer. As a result, the worker was provided with work transition services. The worker participated in a retraining program for the suitable occupation (SO) of Industrial Technician. The worker successfully completed their work transition plan on December 14, 2020.
On November 23, 2020, the worker requested entitlement to the lower back as a secondary condition. On January 12, 2021, the CM denied entitlement to the lower back as a secondary condition. The CM noted they were unable to determine how the worker had developed a sacroiliac dysfunction due to altered gait as the worker indicated they had not returned to work and did not stand or walk for prolonged periods. The CM noted the medical information on file regarding the lower back was mostly pain reports and subjective findings. The CM noted the worker’s treating health care professionals had not provided any objective findings to support the worker’s back pain was directly related to the accepted right foot injury. The CM also noted the medical reports supported the worker had no gait issues in 2018, while other reports indicated the worker had mild gait issues. The CM indicated that an antalgic gait would need to be severe and prolonged in order to have a significant impact on the spine. The CM stated there was insufficient evidence to support secondary entitlement for the low back, as the worker’s low back complaints and subsequent diagnoses did not appear to be causally linked to the compensable injury.
The worker’s objection to the CM’s decision dated January 12, 2021, forms the basis for this appeal.
AUTHORITY
Operational Policy Manual
Published
Policy 15-05-01 Resulting from Work-Related Disability/Impairment
February 15, 2013
PRELIMINARY ISSUE
On the Appeal Readiness Form dated August 27, 2021, the worker representative also identified the long-term rate calculation as an issue under appeal. On October 18, 2021, the worker representative withdrew this issue. As a result, my review will be limited to the worker’s entitlement to the lower back as a secondary condition.
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker has secondary entitlement to the lower back. My findings and analysis are provided below.
The worker representative included a submission with the Appeal Readiness Form. The representative submitted the workplace accident significantly contributed to the onset of the worker’s lower back impairment. The representative stated the worker had been limping and had an altered gait due to the work-related injury. The worker representative provided a summary of the pertinent medical information on the claim file and referenced decision 1331/10 from the Workplace Safety and Insurance Appeals Tribunal to support their position.
Following the work-related injury, the worker sought immediate medical attention. On October 30, 2017, the worker underwent surgery to repair right foot open fractures of the distal interphalangeal (DIP) joints of the second, third and fifth toes, a closed fracture of the distal phalanx of the fourth toe and a partial amputation of the great toe. On November 22, 2017, the worker underwent amputation of their right second and third toes due to gangrene.
The worker was seen by the orthopaedic surgeon on December 15, 2017. The worker’s right toes were swollen and uncomfortable; however, the wounds were totally healed and radiographically the fractures were healed. The worker was noted to be suffering from crush injury soft tissue injuries. The orthopaedic surgeon indicated the worker was unable to return to work as standing and walking short distances was difficult. The worker was also referred to a psychologist.
A report from the orthopaedic surgeon dated January 29, 2018, indicated the worker reported continued pain and they walked with a very mild limp. Further physiotherapy, pool therapy and treatment with a TENS machine were recommended.
A March 1, 2018 report from the orthopaedic surgeon noted the worker reported therapy was decreasing the worker’s pain and improving their gait and stamina.
The worker was seen at the Foot and Ankle Specialty Program on March 13, 2018. The worker reported difficulty walking their dog for longer than 15 to 20 minutes and they were unable to go downstairs to do laundry. The worker reported increased foot pain with any weight bearing tasks. The worker also reported pain in the plantar arch as well as along the posterior aspect of the medial and lateral malleolus and numbness in the fourth and fifth toes. The worker had hypersensitivity of the tip of the right first to third toes and cold sensitivity to the right foot. The worker had decreased push off with the right foot when ambulating and they put most of their weight through the lateral aspect of the right foot. The worker was diagnosed with a crush injury to the first, second and third toes leading to surgical amputation of the first, second and third distal toes. Functional precautions for the right foot were provided and further treatment was recommended.
A report from the orthopaedic surgeon dated April 3, 2018, noted the worker was walking with a normal gait and they were able to heal walk. The worker had some sensitivity to the plantar aspect of the second and third toes, but otherwise the worker’s foot had healed with no evidence of callouses or complicating process.
A May 8, 2018, follow up report from the specialty program noted the worker continued to participate in treatment. The worker indicated they were completing weight bearing exercises and they had started on a trial of ice and heat to assist with the sensitivity. The worker also stated they were participating in a desensitization program. The worker reported their pain was improving. The worker indicated their symptoms were worse after treatment and their condition was aggravated by weight bearing and eased with elevation of the right foot. The worker was observed to ambulate with a mild antalgic gait. Further treatment was recommended.
A subsequent report from the specialty program dated June 19, 2018, noted the worker was observed to ambulate with a mildly antalgic gait. The worker demonstrated good heel strike with inversion of the right ankle and toe off through primarily the fourth and fifth toes. The worker demonstrated independence with all transitional movements with no pain behaviours observed. Functional precautions for the right foot were provided and further treatment was recommended.
An August 14, 2018 report from the specialty program noted the worker reported a sensation of “hot needles” in the second and third toes that radiated into the right forefoot. The worker also reported muscle spasms in the right foot, especially at night. The worker indicated their right foot symptoms were aggravated by crouching, running, balancing on the right foot and weight bearing. The worker was observed to ambulate with a slightly antalgic gait with intoeing of the bilateral feet.
A report from the orthopaedic surgeon dated October 11, 2018, noted the worker had post-crush injury neuralgia, which caused the worker to walk on the side of their foot, which was causing discomfort in their hip and back.
On October 23, 2018, the worker was seen in follow at the specialty program. The worker reported difficulty ambulating stairs and difficulty putting pressure on the forefoot, such as when sitting, squatting and standing. The worker indicated they were working on balance and gait retraining. The worker reported they had been experiencing lower back pain for a few months. The worker was noted to present with an antalgic gait pattern and they avoided push off on the right side and compensated during ambulation. Further treatment was recommended.
A December 1, 2018 report from the specialty program noted the worker presented with an improved gait pattern; however, the worker continued to present with decreased push off on the right compared to the left. A home exercise program was recommended. Permanent functional precautions were provided for prolonged walking for greater than one (1) hour, prolonged standing for greater than one (1) hour, ladder use, limiting crouching and kneeling to an occasional basis, lifting no more than 25 pounds and limiting walking on uneven ground to a rare basis.
An Attending Physician’s Statement – Disability Benefits dated January 15, 2019, noted that the right foot partial amputations of the first through third toes prevented sustained walking and the worker had difficulties with their gait and with weight bearing. A clinical record dated January 15, 2019, noted that orthotics were recommended for gait issues secondary to partial amputation of the right first to third toes.
A psychology report dated June 22, 2019, noted the worker reported increased pain in the leg, hip and back, which could be compensatory in nature. A physiotherapy assessment was recommended. The psychologist confirmed this recommendation in a report dated January 6, 2020.
Medical notes dated January 14, 2020, noted the worker required bilateral orthotics and massage therapy for the back.
A Low Back Injuries Program of Care Initial Assessment Report dated March 13, 2020, noted the worker was limping and weight bearing inefficiently which had resulted in low back pain. The worker was diagnosed with right sacroiliac dysfunction and L4 to L5 facet irritation. Functional precautions for the lower back were provided.
A report from the chiropractor dated March 16, 2020, noted the work-related injury had predisposed the worker to asymmetrical gait imbalances and their inability to weight bear and biomechanically walk correctly had resulted in a vulnerability to low back pain. Clinical records for the lower back support the worker received treatment for their lower back in March 2020. No additional medical information has been provide subsequent to March 2020.
Policy 15-05-01, Resulting from Work-Related Disability/Impairment, states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
In review of the medical information on the claim file, I note that following the work-related injury, the worker had some changes to their gait. The worker was noted to have an antalgic gait, they had issues with weight bearing and they avoided push off with the right foot and compensated during ambulation. On October 11, 2018, the orthopaedic surgeon noted the worker had post-crush injury neuralgia that caused the worker to walk on the side of their foot, which was causing discomfort in their hip and back. A report from the specialty program report dated October 23, 2018 indicated the worker reported they had been experiencing lower back pain for a few months. The worker was noted to present with an antalgic gait pattern and they avoided push off on the right side and compensated during ambulation. The worker reported lower back pain to the psychologist in 2019 and later sought treatment with a chiropractor in 2020. The chiropractor indicated the worker’s back pain was caused by asymmetrical gait imbalances and the inability to weight bear and biomechanically walk correctly.
I find the worker sustained a lower back injury secondary to the accepted right foot fractures and amputations. I find the medical information on the claim file supports there is a causal relationship between the worker’s altered gait post-injury and the diagnosed right sacroiliac dysfunction and L4 to L5 facet irritation. As a result, I find the worker has entitlement to the lower back as a secondary condition.
The worker representative has requested review of entitlement to a permanent impairment of the lower back; however, no medical information has been provided subsequent to March 2020 and a discharge report from the chiropractor has not been provided to the claim file. As a result, I have made no findings regarding entitlement to a permanent impairment of the lower back. The worker may pursue this issue with the Operating area.
CONCLUSION
The worker’s objection is allowed.
The worker has secondary entitlement to the lower back.
DATED February 28, 2022
M. Haughton
Appeals Resolution Officer
Appeals Services Division