APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220106
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
s. di carlo, appeals resolution officer
ISSUE
The worker through their representative objects to the Case Manager’s (CM) decision dated
December 14, 2021, which determined the worker’s low back strain fully resolved with no evidence of an ongoing impairment. The decision was reconsidered on February 9, 2022, and upheld.
PRELIMINARY ISSUE
On the Appeal Readiness Form (ARF) dated March 23, 2022, the worker representative enclosed an additional submission and outlined the worker is seeking full loss of earnings (LOE) benefits beyond December 15, 2021, on the basis that the worker remains partially disabled and unable to resume the full duties of their pre-injury job as a baggage station attendant.
For the purpose of this appeal, I must clarify that the issue before me is not whether the worker is entitled to LOE benefits from December 15, 2021, onward, rather did the worker’s low back strain fully resolve without evidence of an ongoing impairment. The reason I must clarify this issue is further to the worker representative’s submission of March 23, 2022, they are seeking entitlement to LOE benefits from December 15, 2021, onward on the basis that the worker remains unable to resume the regular duties.
In reviewing the CM’s decision of December 14, 2021 and the subsequent reconsideration of
February 9, 2022, the CM never reviewed entitlement to LOE benefits rather determined the worker’s low back strain fully resolved, therefore the issue of LOE benefit is not before me and I make no findings of fact on this issue within this appeal.
BACKGROUND
On July 31, 2021, this baggage station attendant was lifting a heavy bag when they experienced an immediate onset of pain in the lower back. Entitlement was accepted for a lower back strain.
The employer offered modified duties to the worker; however, the worker began to lose time from work as of August 1, 2021.
The EA determined that LOE benefits were not in order as the modified sedentary administrative duties were suitable; however the EA reconsidered entitlement for lost time and determined the worker was entitled to full LOE benefits from August 1, 2021 to October 7, 2021, as the employer was unable to offer the worker modified duties within their restrictions.
The worker received partial LOE benefits from October 8, 2021 to November 25, 2021, when they returned to work further to a graduated return to work plan.
The worker received conservative treatment with a physiotherapist in the community and the worker made slow gains during treatment. The case was referred to a Return to Work Specialist (RTWS) to assist with return to work opportunities, as the worker did not progress to their pre-injury duties and continued with full hours performing modified duties.
The CM determined in a decision dated December 14, 2021 that the worker’s low back strain fully resolved with no evidence of an ongoing impairment. Following this determination, the RTWS referral was cancelled. The decision was reconsidered on February 9, 2022, and upheld.
The worker representative’s objection to the decision of December 14, 2021, now forms the basis of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997. Section 2.
Operational Policy Manual
Published
11-01-05 – Determining Permanent Impairment
November 3, 2014
ANALYSIS
I have carefully considered all of the available information, the worker representative’s submission, legislation and relevant operational policies in reaching this decision. I find the worker’s low back strain injury has not recovered as of December 14, 2021, and the worker has ongoing entitlement to the low back, which requires further adjudication. The following is my rationale.
The worker representative’s submission of March 23, 2022, submits that while the worker slowly responded to treatment, the worker was participating with both medical and return to work activities during the recovery aspect of their injury. The representative notes that Functional Abilities Forms (FAF) were submitted to the case record and demonstrate ongoing limitations for the worker’s workplace injury. The worker representative contends the worker was blindsided by the cancellation of the December 15, 2021 return to work meeting with the RTWS and that this action was premature and detrimental to the worker’s recovery. The worker representative contends there is little by way of analysis as to why the worker’s benefits were closed and the representative seeks recognition that the worker’s compensable back injury has not resolved as of December 14, 2021 and the medical opinions of the treating practitioners on file should have prevailed.
The employer is participating in this appeal; however, no submissions were provided for my consideration.
Turning to the issue before me, in determining maximum medical recovery (MMR), I refer to Policy
11-01-05, titled “Determining Permanent Impairment”, which outlines when a worker reaches MMR, the WSIB attempts to determine the degree of the worker’s permanent impairment by considering all relevant health care information in the claim file. To determine that a permanent impairment exists,
decision-makers must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work-related injury/disease.
According to Section 2(1) of the Workplace Safety and Insurance Act (WSIA), “impairment” means physical or functional abnormality or loss (including disfigurement) which results from the injury and any psychological damage arising from the abnormality or loss. This section defines “permanent impairment” as an impairment that continues to exist after the worker reaches MMR. A worker reaches MMR when it is not likely that there will be any further significant improvement in his or her medical condition.
In my review of the file information, I note entitlement in this claim was accepted for a low back sprain/strain as a result of the July 31, 2021 workplace injury. The CM in the decision of
December 14, 2021, determined the worker’s “acute” back sprain/strain could not account for the worker’s ongoing pain issues and that there were other non-work-related factors present that could account for the worker’s non-resolving symptoms. From the outset, it is unclear as to why the CM would state an “acute” back strain as part of the worker’s entitlement when the case was accepted for a low back sprain/strain injury. Secondly, the CM did not delineate what other “non-work-related factors” were present that could account for the worker’s non-resolving symptoms. Therefore, I would agree with the worker representative on the lack of analysis as to why the worker was determined to have recovered from their workplace injury as of December 14, 2021.
The Health Professional’s Report (Form 8) dated August 4, 2021, diagnosed the worker with a lower back strain/sciatica and outlined ongoing limitations.
A physiotherapist further to the Low Back Injuries Program of Care Initial Assessment Report of
August 25, 2021 initially assessed the worker. The worker was diagnosed with lumbar derangement and mechanical low back pain. Reduced active range of motion (ROM) was outlined and treatment recommendations consisted of manual therapy two (2) times a week for eight (8) weeks. Limitations for the low back were outlined and the physiotherapist indicated the worker could perform light duties if available.
The physiotherapist completed a Low Back Injuries POC Care & Outcomes Summary report on
October 20, 2021, and detailed continued reduced active ROM and low back pain without radiation. It was noted the worker walks slower than normal and dresses slower with difficulty putting on socks and that they avoid bending or kneeling. The physiotherapist indicated that the worker has not achieved their physical pre-injury level of overall function and complicating factors that may delay recovery include the work environment with concerns regarding the worker’s pre-injury job duties. The physiotherapist indicated an extension of treatment and noted it was approved. The physiotherapist referred to the FAF of October 20, 2021, for the worker’s outlined physical limitations.
The FAFs completed by the treating physiotherapist of October 20, 2021, November 5, 2021,
November 19, 2021, December 1, 2021 and December 13, 2021, detail ongoing back limitations with respect to walking, standing, lifting, ladder climbing and bending/twisting activities. It was noted in the December 13, 2021 FAF, that the worker was to be re-assessed in two (2) weeks and that the worker could continue with full-time hours yet required modified duties.
The CM spoke with the worker’s treating physiotherapist further to memo A0043 who confirmed little change with the worker’s low back. It was confirmed that the physiotherapist did not start treating the worker until the end of August 2021 and that the worker could not progress to regular duties as outlined in the graduated return to work plan. The physiotherapist opined due to the nature of the worker’s
pre-injury job duties they were not supporting that the worker resume regular duties due to the repetitive nature of carrying and lifting bags as this will make the worker more prone to re-injury. The CM and physiotherapist discussed that a Specialty Clinic assessment can be considered due to the ongoing recovery delay.
The CM wrote to the worker’s family doctor on December 10, 2021, requesting clinical notes from
July 31, 2018, onward with all diagnostic imaging and consultations reports related to the worker’s low back.
On December 13, 2021, the worker’s family doctor responded to the CM’s request for clinical notations and provided typed clinical notations from July 19, 2021 to October 22, 2021. While I note a clinical note dated July 19, 2021, referred to a recurring cyst on the worker’s back, the size of a loonie, the
August 18, 2021, clinical note outlined the small bump to the upper back area was removed two (2) weeks ago by a plastic surgeon. No further reference of this cyst was made.
In this case, the CM determined the worker achieved MMR as of December 14, 2021; however, in my review of limited medical information there is no indication that the worker plateaued in their medical condition for the accepted low back sprain/strain injury. Memo A0026 outlined physiotherapy was allowed for eight (8) treatments from October 21, 2021 to December 2, 2021; however, the FAF of December 13, 2021, detailed ongoing physical limitations and that the worker would be reassessed in two (2) weeks. Following the closure of benefits a subsequent FAF dated January 4, 2022, was completed by the treating physiotherapist, noted ongoing functional limitations, and indicated difficulty in assessing the worker’s status as the worker has been off work for the last two (2) weeks as the worker informed no light duties were available.
Policy 11-01-05 provides definitions and stipulates MMR means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease. In my view, there is no evidence that the worker had plateaued in their medical recovery for their low back sprain/strain injury on December 14, 2021 as the FAF of December 13, 2021 and January 4, 2022, both detail ongoing physical restrictions by the treating physiotherapist. While I acknowledge the worker’s recovery appears to be progressing slowly, this does not confirm the worker has plateaued. The CM queried a referral to a Specialty Clinic further to memo A0043; however, this does not appear to have been actioned with the Nurse Consultant. Given the worker’s ongoing back limitations and inability to resume their pre-injury duties, a referral to a Specialty Clinic for assessment and/or treatment recommendations would be applicable should the worker provide consent to participate. In my review of the medical evidence, I remain satisfied that the available medical evidence does not support the worker has achieved MMR for their low back sprain/strain as of
December 14, 2021. As such, the worker has ongoing entitlement to their low back sprain/strain injury, which requires further adjudication.
An offer of temporary modified duties dated December 10, 2021, was made available to the worker for the period of December 10, 2021 to December 15, 2021, and noted a new FAF was due for
December 15, 2021. It is unclear whether the FAF dated December 13, 2021, was provided to the employer, or whether a subsequent offer of modified work was made available. As this issue remains unclear based on the available information before me, I also remit the issue of LOE benefits from December 15, 2021 onward back to the Operating Area for further adjudication, subject to the usual rights of appeal. The Operating Area should consider with the consent of the worker of referring the worker for a comprehensive assessment via a Specialty Clinic to clarify the prognosis of the worker’s compensable low back sprain/strain injury and the worker’s entitlement to lost time following
December 15, 2021, onward. Therefore, the nature and duration of benefits flowing from this decision is remitted back to the Operating Area for consideration subject to the usual rights of appeal.
CONCLUSION
The worker did not achieve MMR as of December 14, 2021, and has ongoing entitlement to a low back sprain/strain injury. Further adjudication is required by the Operating Area to determine when MMR has been achieved. In addition, entitlement to LOE benefits from December 15, 2021, onwards is remitted back to the Operating Area for further adjudication subject to the usual rights of appeal.
The worker’s objection is allowed.
August 17, 2022
S. Di Carlo
Appeals Resolution Officer
Appeals Services Division