DECISION NUMBER:

20220044

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

Dated: MARCH 10, 2022

ISSUE

The worker, through their representative, is objecting to the Case Manager’s decision of May 11, 2021 to deny entitlement to a recurrence dated August 22, 2020, including the amalgamation of case file XXXXXXXX into case file YYYYYYYY.

BACKGROUND

On March 26, 2017, the worker and a co-worker were moving a patient who had fallen to the floor. As the lift did not reach the ground, the patient had to be lifted in the sling so that it could be attached. While doing so, the worker experienced a sudden onset of intense pain in the low back and left hip area. Lost time began on March 27, 2017. The worker returned to modified duties in June 2017. Loss of earnings benefits were authorized from August 10, 2017 to October 26, 2017.

A Case Manager’s decision letter dated October 31, 2017 accepted entitlement to the updated diagnosis of a L4-5 and L5-S1 disc herniations. On January 18, 2018, the worker began medical leave due to their pregnancy. A Case Manager’s decision letter dated January 18, 2018 suspended entitlement to loss of earnings benefits from February 5, 2018 until the worker was able to participate in return-to-work activities.

On August 22, 2020, the worker and another co-worker attempted to lift a patient from the floor into a chair. As the worker stood up, they felt excruciating lower back pain. The worker representative’s correspondence of April 29, 2021 requested that the new claim (case file XXXXXXXX) be amalgamated back into case file YYYYYYYY. The Case Manager’s decision letter of May 11, 2021 denied entitlement to a recurrence and an amalgamation of claims as there was a specific new incident on August 22, 2020. The Appeal Readiness Form signed September 3, 2021 requested that the worker’s objection be resolved as a hearing in writing. The denial of entitlement to a recurrence dated August 22, 2020 is now before me.

AUTHORITY

Operational Policy Manual

Published

15-02-05 Recurrences

April 9, 2021

ANALYSIS

I find that there is no entitlement to either a recurrence or the requested amalgamation of case file XXXXXXXX into case file YYYYYYYY. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Is entitlement to a recurrence in order?

I am not persuaded that entitlement to a recurrence dated August 22, 2020 is appropriate under case file YYYYYYYY.

Policy 15-02-05, Recurrences, outlines that a recurrence of a work-related injury may be in order if the worker experiences a significant deterioration that does not result from a significant new incident and is clinically compatible with the original injury. In order to determine the question of clinical compatibility, Policy 15-02-05 provides decision-makers with the authority to consider if the worker has experienced continuing symptoms since the original injury. More importantly, Policy 15-02-05 requires

decision-makers to determine if there is a causal link with the original injury.

The worker representative’s amalgamation request of April 29, 2021 argues that the incident of

August 22, 2020 should not be considered an intervening event as lifting patients is part of the worker’s regular job duties. The written submission dated September 3, 2021 argues that the medical information repeatedly shows that the worker’s low back injury is easily aggravated. It is presented that it is far more likely that the workplace accident of August 22, 2020 is a recurrence, rather than a new injury, as it happened during the course of the worker’s regular job duties. In the worker representative’s view, it is also more likely than not that the two nearly identical injuries are related.

Incident of August 22, 2020

It is my opinion that the workplace accident of August 22, 2020 is a significant new incident.

I appreciate that both of the incidents from March 26, 2017 and August 22, 2020 involve lifting a patient off of the floor with a co-worker. I recognize that the Employer’s Report of Injury dated March 28, 2017 and the Worker’s Report of Injury signed October 1, 2017 confirm the pre-injury job as being a Personal Support Worker. I acknowledge the presented argument that lifting patients is part of the worker’s regular job duties. There is also general agreement that the incident of March 26, 2017 consisted of the worker pulling on the strap in order to connect with the lift. All the same, Policy 15-02-05 defines a significant new incident as one of some consequence or importance.

The Worker’s Report of Injury dated September 15, 2020 confirms that the incident of August 22, 2020 involved lifting a patient back into their chair from ground level. I observe that there is no indication of the use of a sling or lift. Policy 15-02-05 defines an insignificant new incident as being of negligible consequence such as reaching for an object on a shelf. In my view, the lifting of a patient, even with a

co-worker, from the floor to a chair is more significant than reaching for an object on a shelf. For this reason, I accept that the incident of August 22, 2020 represents a significant new incident as defined by Policy 15-02-05. Accordingly, I find that a key criterion required for entitlement to a recurrence is not established.

Clinical compatibility

I find that the necessary policy criterion of clinical compatibility is not evident. The worker representative suggests that the worker has a predisposition for this type of injury as neither co-worker had an injury on either March 26, 2017 or August 22, 2020.

I realize that the physiotherapist’s report of July 10, 2017 notes that the worker’s recovery has been variable. However, the report also states that the worker’s high degree of pain and variable trajectory of symptom resolution/aggravation is not entirely consistent with the diagnosis. The physiotherapist recommends an assessment at the Back and Neck Speciality Clinic for further evaluation prior to continuing with treatment. I observe that the Back and Neck Speciality Clinic’s assessment report dated August 14, 2017 provides a diagnosis of low back pain with possible left-sided L5 radiculopathy. The report recommends remaining off of work until reassessed after the MRI scheduled for

September 1, 2017.

The next assessment report from the Back and Neck Specialty Clinic dated September 18, 2017 confirms the MRI result of L4-5 and L5-S1 disc herniations. The Back and Neck Specialty Clinic’s report of October 24, 2017 recommends further investigations, such as a MRI, as the worker’s pain is in an unusual location. An addendum clarifies that any further investigations to determine the diagnosis and prognosis must wait until after the worker has their baby. As pointed out by the worker representative, the Case Manager allowed the updated diagnosis of L4-5 and L5-S1 disc herniations on October 31, 2017.

I note that the Back and Neck Specialty Clinic’s report dated January 9, 2018 documents that the assessors cannot provide a good physiological reason for the worker’s global left leg numbness and pain. The report indicates that the worker seems to have significant pain that is disproportionate to the MRI findings. The worker stopped working due to their pregnancy on January 18, 2018. As noted within the worker representative’s written submission of September 3, 2021, the worker felt significant relief to the lower back and left hip after their child was born. The written submission states that the worker slowly continued to recover over the next few months. Importantly, the worker representative confirms that the worker was able to return to work doing regular job duties following the maternity leave and did not have significant issues with the lower back until August 22, 2020.

In reviewing the medical evidence dating after August 22, 2020, I note that the MRI performed on November 1, 2020 references the prior MRI of September 1, 2017. I observe that the updated MRI findings relate to a new right lateral recess disc herniation at L5-S1. Similarly, the orthopaedic report dated November 26, 2020 confirms severe pain in the worker’s right leg. The orthopaedic specialist documents that the worker’s prior similar injury in 2017 involved sciatica that resolved. The orthopaedic specialist also verifies that the more recent MRI shows a right-sided disc herniation at L5-S1.

Another MRI of the lumbar spine on February 17, 2021 identifies a right disc protrusion at L5-S1. The orthopaedic report dated March 29, 2021 states that the worker definitely has a disc herniation on the right at L5-S1. The report indicates that neither the right S1 nerve root block nor the epidural steroid injection helped. The orthopaedic specialist’s next report of May 10, 2021 identifies right-sided sciatica and a large right L5-S1 disc herniation. Finally, the orthopaedic specialist states that the only recommendation that would help the worker is having a right L5-S1 laminectomy and discectomy.

Policy 15-02-05 provides the authority to consider if the worker has experienced continuing symptoms since the original injury. While not required to establish a causal link, continuing symptoms are identified as an indicator of a causal link. In this case, the worker representative suggests that the worker slowly continued to recover in the months following the birth of their child. The worker then had the ability to perform regular job duties without significant issues prior to August 22, 2020. As previously discussed, Policy 15-02-05 requires clinical compatibility to have a causal link between the significant deterioration and the original injury. After reviewing the medical evidence, I observe that the worker’s symptoms after August 22, 2020 involve the right leg, not the left hip/leg symptoms documented in 2017 and 2018.

To summarize, I find that the workplace incident of August 22, 2020 represents a significant new incident. Additionally, I find that the low back injury of August 22, 2020 is not clinically compatible with the original injury based on the MRI of November 1, 2020 and orthopaedic report dated November 26, 2020.

Therefore, I find that entitlement to a recurrence under case file YYYYYYYY is not appropriate as the necessary criteria required under Policy 15-02-05 are not met. Consequently, I find that there can be no entitlement to amalgamate case file XXXXXXXX into case file YYYYYYYY.

CONCLUSION

I conclude that entitlement to a recurrence dated August 22, 2020 is not in order.

The request to amalgamate case file XXXXXXXX into case file YYYYYYYY is denied.

The worker’s objection is denied.

DATED March 10, 2022

K. MacMillan

Appeals Resolution Officer Appeals Services Division