APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER
20220101
OBJECTING PARTY:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by: DATED:
Kelly Gordon, appeals resolution officer JULY 15, 2022
ISSUES
The employer, through their representative is objecting to the following decisions:
The March 18, 2021 decision made by the Operations Division that allowed initial entitlement to a low back injury
The Eligibility Adjudicator’s (EA) reconsideration decision dated November 15, 2021, that denied entitlement on an aggravation basis
The Case Manager’s (CM) decision dated November 26, 2021 that denied entitlement to Second Injury and Enhancement Fund (SIEF) cost relief
BACKGROUND
On March 11, 2021, this worker and a co-worker transported a patient using a stretcher. The stretcher was faulty, and pulled to the right instead of going straight. As such, the worker had to use force to push and pull the stretcher in order to redirect it, and prevent it from hitting the walls. While pushing the stretcher, the worker felt a sharp pain in their lower back. The worker reported the accident and sought medical attention the same day. Initial entitlement to health care benefits for a low back strain was accepted in the decision dated March 18, 2021.
Although the worker began losing time from work starting March 13, 2021, the EA denied entitlement to loss of earning (LOE) benefits as the employer offered the worker suitable modified duties, and the worker did not return to the duties offered.
The employer representative submitted the Intent to Object (ITO) Form dated August 20, 2021, confirming the employer’s objection to the allowance of initial entitlement. On the ITO Form, the representative refers to the March 16, 2021 MRI findings, and argues the worker has pre-existing conditions that are not compatible with the mechanism of injury accepted in this claim. The representative requested entitlement be considered on an aggravation basis only for the acute aggravation period.
The EA considered the representative’s objection, and their request for entitlement to be accepted on an aggravation basis. However, in the reconsideration decision dated November 15, 2021, the EA states the criteria to consider entitlement on an aggravation basis has not been met. Therefore, the EA upheld the allowance of initial entitlement to the low back injury on its own merits, and denied entitlement on an aggravation basis.
The worker participated in treatment at the Low Back Program of Care (POC), and the worker underwent an assessment at the Occupational Health Assessment Program (OHAP). The worker returned to their regular job duties with no further issues on January 10, 2022.
On October 27, 2021, the employer representative submitted a request for SIEF cost relief noting the
pre-existing conditions identified on the lumbar spine MRI. However, in the decision dated
November 26, 2021, the CM denied entitlement to SIEF cost relief as the CM did not find medical evidence to support the worker’s pre-existing conditions caused or contributed to the accident, or that there is evidence of a pre-existing condition that enhanced or prolonged the recovery of the low back strain.
The employer representative submitted the Appeal Readiness Form (ARF) dated March 29, 2022, confirming the employer’s objection to the allowance of initial entitlement, and the denial of SIEF cost relief.
The employer’s objection to the allowance of initial entitlement and the denial of SIEF cost relief forms the basis of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA) Section 13 (1) (2)
Operational Policy Manual
Published
11-01-01 Adjudicative Process 15-02-01 Definition of an Accident 15-02-02 Accident in the Course of Employment 15-02-03 Pre-existing Conditions 15-02-04 Aggravation Basis 14-05-03 Second Injury and Enhancement Fund (SIEF)
November 3, 2008 October 12, 2004 October 12, 2004 November 3, 2014 November 3, 2014 February 20, 2006
ANALYSIS
I find the worker does have initial entitlement to a low back strain. I find the criteria to allow entitlement on an aggravation basis has not been met. I find the employer does not have entitlement to SIEF cost relief. In reaching these decisions, I have carefully considered all of the available information on file, the employer representative’s submission, the legislation, and the relevant operational policies.
On the ARF, the employer representative refers to their submission dated October 27, 2021. In this submission, the representative argues initial entitlement should be allowed on an aggravation basis only, and the employer should be granted entitlement to 90 to 100 percent SIEF cost relief.
The representative states that prior to the workplace accident on March 11, 2021, the worker had a long history of musculoskeletal pain, including a prior diagnosis of fibromyalgia and major depressive disorder (MDD). The medical evidence supports the worker sought medical attention and was prescribed medication for these conditions. The representative also notes these pre-existing conditions caused several periods of disability, and the worker was performing modified duties at the time of the workplace accident. For these reasons, the representative argues entitlement should have been allowed on an aggravation basis only, and health care benefits should be accepted for the acute period only. The representative also argues the medical evidence supports a significant pre-existing condition and a minor accident history. Therefore, the employer is requesting this appeal allow entitlement to 90 to 100 percent SIEF cost relief.
The worker is not participating in this appeal, and no submissions have been provided for my review.
- Has the criteria to allow initial entitlement to a lower back injury been met?
For the reasons that follow, I find the worker does have initial entitlement to a low back strain.
In this case, the employer representative argues the worker has pre-existing conditions, and as such, entitlement in this claim should be denied. Noting this argument, I find it important to refer to
Policy 15-02-03 that states entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker’s ongoing impairment.
I also refer to Policy 15-02-01, “Definition of an Accident”, that states an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable, unintended event, which causes an injury. The definition of disablement includes a condition that gradually emerges over time, or an unexpected result of work duties.
In this case, I find the evidence does not support a chance event accident. In stating this, I have placed
significant weight on the evidence in which the worker confirms there was not a specific identifiable,
unintended event that caused the injury. Instead, the worker is claiming the low back injury occurred as a
result of performing their regular job duties while pushing a stretcher on March 11, 2021. As such, I find
the worker is claiming a disablement type accident.
As per WSIA section 13 (1) (2), the presumption clause does not apply when determining entitlement in disablement cases. Consequently, the onus is on the worker to demonstrate the injury occurred during the course of the employment and arose out of the employment. It is not sufficient to establish a possible relationship with the workplace activities. The evidence must support, on the balance of probabilities,
that the work duties made a significant contribution to the development of the injury.
Policy 11-01-01 states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of an accident, and compatibility of the diagnosis to the accident or disablement injury. For the reasons that follow, I find all criteria in Policy 11-01-01 have been met.
Worker and Employer
I have reviewed the Worker’s Report of Injury and the Employer’s Report of Injury, and I accept the evidence supports there is a worker and an employer in this claim. I also note that neither the employer, nor the worker object to the determination that there is a worker and an employer. I find the criteria under
Policy 11-01-01 regarding a worker and an employer have been met.
Personal work-related injury
Policy 15-02-02 states that a personal injury by accident occurs in the course of employment if the place, time, and activity indicate that the accident is work-related. The importance of the three (3) criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker. In this case, the worker reported that they felt an immediate low back pain on March 11, 2021, while they were performing their regular job duties. Specifically, the worker and a
co-worker were transporting a patient that was on a stretcher from the emergency department to diagnostic imaging for a CT scan. At the time of the accident, the worker states they were working on their assigned shift, and at their assigned work location. In my review of the evidence, I note that although the employer argues the worker has pre-existing conditions that contributed to the workplace injury, the employer provides no argument that the worker was not in the course of their employment at the time of the injury. As such, I accept the evidence supports the criteria for place, time, and activity have been met. Therefore, I find the worker’s low back injury occurred in the course of the worker’s employment.
While I accept the injury occurred in the course of employment, the evidence must also support the accident arose out of the employment. The requirement for an accident to arise out of employment refers to the need to show a causal connection between the injury and the employment. As such, proof of accident and compatibility must be established.
Proof of accident
For the following reasons, I find proof of accident has been established.
Policy 11-01-01 allows decision-makers to consider the following when examining proof of accident:
Does a disablement situation exist?
Are there any witnesses?
Are there any discrepancies in the date of accident/disablement and the start of lost time?
Was there any delay in the onset of symptoms or in seeking medical attention?
As per the Employer’s Report of Injury, Form 7, the employer states that at 3:45 pm on March 11, 2021, the worker reported a workplace low back injury that occurred 15 minutes prior. Specifically, the worker reported they were pushing a patient on a stretcher from the emergency room to a CT scan. Due to the faultiness of the stretcher, the worker had to use force to push and pull the stretcher in order to keep it moving straight, and to prevent it from hitting the walls. The employer notes the worker sought medical attention the same day, and although the employer offered the worker modified duties, the worker did not accept the duties offered and lost time from work as of March 13, 2021.
As per the Worker’s Report of Injury, Form 6, the worker provides the same accident history as stated on the Employer’s Report of Injury. The worker reports that on March 11, 2021 at 3:30 pm the worker and a co-worker were transporting a patient on a faulty stretcher. The worker describes keeping their body tense in order to overcorrect the movement of the stretcher that was pulling to the right. While pushing the stretcher, the worker felt a sharp pain in their lower back. The worker had to stop pushing the stretcher due to the back pain. The worker then continued to push the stretcher, and once they arrived at the CT scan, the worker told their co-worker they were not doing well. The co-worker offered to take the patient back on their own. The worker reported the accident to the employer at 3:45 pm the same day, and the worker reports seeking medical attention the same day.
Dr. Hassan, completed the Health Professional’s Report of Injury, Form 8 dated March 11, 2021. As per this form, the worker was diagnosed with a low back strain/sprain.
Based on my review of the evidence, I find proof of accident has been established. In making this determination, I have placed significant weight on the evidence that supports the worker was performing their regular job duties when they felt an immediate low back pain. The worker reported the accident to the employer 15 minutes after the accident occurred, and the worker sought medical attention the same day. I accept the evidence supports a disablement situation did occur, and I find no discrepancies in terms of the accident date or the description of the accident. I also find no delays in the onset of symptoms, when the accident was reported, or when the worker sought medical attention. For these reasons, I find proof of accident has been established.
Compatibility
In this case, the worker describes an immediate low back pain while pushing a faulty stretcher that was pulling to one side. As such, the worker had to use force to push the stretcher straight, and keep the stretcher from hitting the hallway wall. As per the medical evidence, the worker was diagnosed with a low back strain/sprain.
I find it significant to note the worker underwent an assessment with Dr. Elliott at the OHAP on September 8, 2021. As per the assessment report on file, Dr. Elliott provides the occupational diagnosis as low back strain. Dr. Elliott also confirms this diagnosis is consistent with the mechanism of injury described in this claim.
As there are no medical opinions on file that argue Dr. Elliott’s opinion, I accept Dr. Elliott’s opinion that the diagnosed low back strain is compatible with the mechanism of injury accepted in this claim. Therefore, after considering all of the evidence, I find compatibility between the diagnosed low back strain and the mechanism of injury has been established.
In summary, I accept the worker’s low back strain/sprain arose out of and in the course of employment.
I find all criteria to allow entitlement under Policy 11-01-01, 15-02-01 and 15-02-02 have been met. Therefore, I find the worker does have initial entitlement to the low back strain/sprain in this claim.
- Has the criteria to allow entitlement on an aggravation basis been met?
For the reasons that follow, I find the criteria to allow entitlement on an aggravation basis has not been met.
The employer argues initial entitlement should be accepted on an aggravation basis noting the worker’s pre-existing conditions. However, I find no evidence to support this position.
Policy 15-02-04, states that 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.
Policy 15-02-04 goes on to state that 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.
In this case, while I note the evidence does confirm the worker has pre-existing conditions, I do not find the evidence supports a relationship between the pre-accident impairment and the degree of impairment resulting from the accident. In stating this, I refer to the OHAP assessment report in which Dr. Elliott refers to the MRI findings of mild multilevel facet arthrosis, an L1 to L2 posterior disc bulge and S2 Tarlov left cyst. Dr. Elliott confirms these are non-occupational pre-existing conditions. Dr. Elliott goes on to state that these findings are not related to the current injury or pain. As there are no medical reports on file that argue Dr. Elliott’s opinion, I accept Dr. Elliott’s opinion supports there is no relationship between the pre-accident impairment and the worker’s degree of impairment from the workplace accident.
I also find it significant to note the employer refers to the worker’s pre-existing conditions of musculoskeletal pain, including a prior diagnosis of fibromyalgia and major depressive disorder (MDD). However, as per Policy 15-02-04 for entitlement to be accepted for an aggravation of a pre-accident impairment, the worker must suffer a minor work-related injury/disease to the same body part or system as the pre-existing condition. Although I accept the workplace low back injury is minor in severity, this workplace injury is not to the same body part as the pre-existing conditions of fibromyalgia and MDD. Therefore, I find the pre-existing conditions identified by the employer do not meet the criteria to allow entitlement on an aggravation basis.
For the reasons stated above, I find the criteria to allow entitlement on an aggravation basis has not been met.
- Does the employer have entitlement to SIEF cost relief?
After considering all of the evidence, I find the employer does not have entitlement to SIEF cost relief.
Policy 14-05-03 states in part that if a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF.
Both physical and psychological disabilities are included.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
Severity of the Accident
In determining the severity of the accident, WSIB evaluates the accident history. Factors to be considered include the mechanics (lift, push, pull, fall, blow, etc.) positioning (kneeling, standing, sitting, squatting, bending etc.) and the environment (lighting, temperature, weather conditions, terrain, etc.).
The severity of the accident is defined as follows:
Minor: Expected to cause non-disabling or minor disabling injury
Moderate: Expected to cause disabling injury
Major: Expected to cause serious disability, probable permanent impairment disability
As reported by both the employer and the worker, the worker felt a sharp low back pain while they were pushing a patient on a stretcher from the emergency room to a CT scan. The stretcher being pushed was faulty. As a result, the worker had to use force while pushing the stretcher in order to keep it moving straight, and to prevent it from hitting the walls. The worker described keeping their body tense in order to overcorrect the movement of the stretcher that was pulling to the right.
Based on the accident history described, I would expect the accident to cause a non-disabling or minor disabling injury. In stating this, I have placed significant weight on the evidence that supports the worker was performing their regular job duties at the time of the accident. While I note the stretcher being pushed was faulty, transporting patients while on stretchers was not a new activity for the worker. The worker was also not pushing the stretcher alone, but had assistance from a co-worker that was pushing the stretcher with the worker at the time of the accident. The worker did not suffer a fall, nor was the worker hit in the back. Instead, the worker reported an immediate pain due to pushing the faulty stretcher. Noting the mechanism of injury described, I would not expect anything more than a non-disabling or minor disabling injury. Therefore, I find the accident severity is minor.
Significance of Pre-existing Condition:
In determining the significance of a pre-existing condition, it must first be determined that the pre-existing condition caused, or contributed to the compensable condition or that it enhanced, or prolonged the recovery from the compensable condition. Once this has been determined, the pre-existing condition will be considered “minor” if it made the worker slightly more liable to develop a disability of greater severity than a normal person. The pre-existing condition will be considered “major” if it made the worker extremely liable to develop a disability of greater severity than a normal person. A moderate pre-existing condition will be considered if the worker’s condition was more than slight, but less than extreme.
Dr. Hassan completed the Health Professional’s Report of Injury, Form 8 dated March 11, 2021. On this form, Dr. Hassan indicates they are unaware of any pre-existing conditions or other conditions/factors that may be impacting the worker’s recovery.
I note that on the Low Back POC initial assessment report dated March 24, 2021, the worker is reported to have pre-existing fibromyalgia. The physiotherapist states this condition may delay recovery. However, on the Low Back POC Outcome Summary report dated June 23, 2021, under complicating factors that delayed recovery, the physiotherapist states none.
As per the OHAP assessment report dated September 8, 2021, and the follow up report dated
October 28, 2021, Dr. Elliott provides an occupational diagnosis of low back strain. Under relevant
non-occupational diagnosis, Dr. Elliott refers to the MRI findings of mild multilevel facet arthrosis, the
L1 to L2 posterior disc bulge and S2 Tarlov left cyst. Dr. Elliott states there may be a possible mild aggravation of the facet changes, but goes on to state that the MRI findings are not felt to be related to the current injury, or to the worker’s pain. In terms of barriers to return to work, Dr. Elliott does not refer to the MRI findings as barriers for return to work.
As recommended by Dr. Elliott, the worker participated in an enhanced treatment program starting September 29, 2021. I have reviewed the treatment reports on file, and I find no evidence of a
pre-existing condition that delayed the worker’s recovery or interfered with the worker’s treatment.
I have also considered the clinical notes submitted by Dr. Shankary, the worker’s family doctor. While
I note the worker sought medical attention for low back pain twice in 2016, once in 2018, and twice in 2019, there is no evidence the worker was diagnosed with a low back condition, or that the worker continued to seek medical attention for their low back after 2019. I also note that on June 27, 2019, the worker underwent diagnostic testing on their lumbar spine, bilateral hands and wrists, and bilateral shoulders. The lumbar spine results identified only very mild DDD, and no other significant abnormality. Although the worker sought medical attention in 2020 for back complaints, the clinical notes indicate the worker reported upper back, shoulder and neck pain. The worker did not report low back pain in 2020.
Based on my review of the medical reports on file, I note that while there is evidence to support the worker has pre-existing conditions, the identification of pre-existing conditions alone does not allow for SIEF cost relief. Instead, the evidence must support the pre-existing condition caused or contributed to the accident, or enhanced or prolonged the recovery. Having considered the medical reports on file, I find no evidence to support the pre-existing conditions made these contributions to the accident, or to the workplace injury. In stating this, I have placed significant weight on the multiple medical reports on file that relate the worker’s low back strain to the workplace injury alone. Specifically, I place weight on
Dr. Elliott’s OHAP report as Dr. Elliott addresses both the worker’s occupational diagnosis and relevant
non-occupational diagnosis. Dr. Elliott provides the opinion that the pre-existing conditions identified on the lumbar spine MRI are not related to the low back strain. I also find the evidence supports that in the two (2) years prior to the workplace accident, the worker was not seeking medical attention for low back complaints, and there are no medical reports on file that relate the worker’s pre-existing conditions to the workplace accident, or the worker’s recovery.
For the reasons provided above, I do not find the evidence supports the worker has a pre-existing condition that caused or contributed to the compensable condition. I also do not find the evidence supports the worker has a pre-existing condition that has enhanced or prolonged the recovery from the work related injury. Therefore, I find the employer does not have entitlement to SIEF cost relief in this claim.
CONCLUSION
I find the worker does have initial entitlement to a low back sprain/strain
I find the criteria to allow entitlement on an aggravation basis has not been met
I find the employer does not have entitlement to SIEF cost relief.
The employer’s objection is denied.
DATED July 15, 2022
Appeals Resolution Officer
Appeals Services Division