APPEALS RESOLUTION OFFICER DECISION
decision number:
20220112
OBJECTING PARTY:
WORKER
REPRESENTED by:
worker representative
RESPONDENT:
EMPLOYER, NOT PARTICIPATING
HEARING:
TELECONFERENCE – AUGUST 24, 2022
HEARD by:
Dorothy Zaffino, appeals resolution officer
ISSUES
The worker objects to the eligibility adjudicator decision dated May 18, 2021, which denied initial entitlement to the worker’s lower back.
Preliminary Issue
The worker representative clarified the worker is seeking entitlement to a lower back injury. Reference to the right thigh and right lower leg is in reference to pain radiating from the back. The worker is not seeking entitlement to the right thigh and right lower leg.
BACKGROUND
On March 19, 2021, this personal support worker was assisting a patient weighing approximately 280 pounds from a chair to their bed when the patient fell backwards with their full weight onto the worker. The worker remained upright while holding the patient. The worker sought medical attention on April 9, 2021 and reported their injury to the employer on April 27, 2021.
In the decision letter dated May 18, 2021, the eligibility adjudicator denied entitlement to the lower back, right thigh, and right lower leg given they were unable to establish proof of accident as all four immediate factors were not met. The eligibility adjudicator concluded the delay in reporting the accident and the delay in seeking medical attention was not reasonable and were unable to establish continuity between the accident history from March 19, 2021, and the sciatica diagnosis provided on May 5, 2021.
On April 4, 2022, the decision was reconsidered and upheld. The eligibility adjudicator concluded they were unable to establish proof of accident due to the delay in reporting the injury to the employer and due to the delay in seeking medical attention. The eligibility adjudicator denied entitlement to sciatica given they did not find the diagnosis compatible with the accident history.
The worker’s objection to initial entitlement to a lower back injury forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
15-02-03 Pre-existing Conditions
November 3, 2008
October 12, 2004
November 3, 2014
ANALYSIS
I have carefully considered all of the available information, testimony, legislation and relevant operational policies in reaching this decision and find in favor of the worker. My reasons for this finding are outlined below.
WORKER POSITION
In their opening and closing arguments, the worker representative submits the worker sustained a personal injury by accident arising out of and in the course of their employment and the criteria to establish initial entitlement to a lower back injury has been met.
The representative submits the available claim file evidence is in harmony with the worker’s story. The representative notes the consistent accident history of experiencing back pain after preventing a patient from falling on March 19, 2021. The representative states the statutory “benefit of the doubt” principle also applies as the evidence is equal in weight.
The representative submits they disagree with the operating areas decision, which states there was a delay in seeking medical attention and a delay in reporting the injury to the employer. The representative argues the worker testified they advised their supervisor of their injury the next day and did not seek immediate medical attention at first given the worker thought their back pain was a flare-up related to their pre-existing lower back condition. The representative points out the worker called their family doctor to report their lower back injury on March 21, 2021, which is only a few days following their workplace injury; however due to the Covid-19 pandemic, the worker was not given an appointment until April 2021.
The worker’s representative referenced the following evidence in support of their position:
Dr. Ferguson’s clinical chart notes dated March 12, 2021, April 9, 2021, May 5, 2021, September 22, 2021 and October 4, 2021
Dr. Ferguson’s medical note dated May 19, 2022
MRI dated 2015
Text messages from worker and employer
In summary, the worker representative submits entitlement to a lower back injury and exacerbation of the worker’s pre-existing back condition is in order.
EMPLOYER POSITION
The employer did not submit a respondent form and is therefore not participating in this appeal.
RELEVANT POLICY
When deciding on initial entitlement in a claim for WSIB benefits, policy 11-01-01 Adjudicative Process states 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
In my review of the worker’s claim, I must turn my attention to whether the criteria for a work-related injury has been satisfied. A personal work-related injury means there is an injury that arose out of and occurred in the course of employment. In other words, the injury happened at work and happened because of the work. It is not sufficient that a person has experienced pain at work. The evidence must show that the work was the cause of the injury.
Proof of accident means that the injury is a result of a work-related accident and is demonstrated by the relationship between the work activity and the onset of the condition. The closer the reporting, medical attention and lay off from work to the onset of the injury, the greater the causal relationship.
Compatibility refers to the relationship between the injury/illness history and the medical diagnosis of the injury. The requirement for a causal relationship between the injury/illness history and a worker’s medical diagnosis must be present and clearly documented to satisfy the compatibility criteria.
I also had regard for policy 15-02-01 (Definition of an Accident) which defines an accident as:
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.
Policy 15-02-03 (Pre-existing Conditions) states entitlement for a work-related injury 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. The policy defines a pre-existing condition as any condition that existed prior to a work-related injury and includes injuries, diseases and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence. The condition may have been evident prior to the work-related injury or it may have become evident afterwards.
When assessing the impact of a pre-existing condition on a worker’s ongoing impairment, the decision-maker determines whether the work-related injury continues to be a significant contributing factor or if the pre-existing condition is so great it is has overwhelmed the impact of the work-related injury, rendering it insignificant.
Where the clinical evidence demonstrates that a pre-existing condition has been aggravated as a result of a work-related injury/disease, benefits continue until the worker recovers from the aggravation of the pre-existing condition.
In cases where it appears the worker has an impairment that continues to exist after maximum medical recovery is reached, caused by both the work-related injury/disease and a pre-existing condition, the work-related impairment is determined.
The work-related injury/disease does not need to be the sole cause of the impairment for the degree of the work-related permanent impairment to be assessed.
WORKER TESTIMONY
The worker testified they were employed for approximately six months with the employer at the time of their injury. The worker states they were not working the year prior to their injury due to their pre-existing back condition. The worker states they did not feel they were able to work and they returned to work with the employer once their back was better.
The worker states they injured their lower back approximately three years pre-injury and were diagnosed with a disc bulge based on MRI findings. The worker testified they did not attend treatment but completed home exercises.
The worker testified that while working with the employer their pre-existing back condition did not affect their ability to work and carry out tasks as a personal support worker. They stated they did not take any time off work due to back pain from the start of their employment with the employer to the date of injury.
The worker testified their job duties included assisting patients, preparing the patients for bed, applying ointments if necessary, assisting patients to and from the bed and to the commode, assisting with supper and retrieving food or items. The worker states that when lifting some patients they were required to attend the patient with a two-person lift, which included the worker and another co-worker. The worker states lifts were performed everyday.
The worker states that prior to the injury, they had no issue with performing lifts, either independently or with a co-worker.
On the date of injury, the worker testified the patient they were assisting was in their chair and needed to go to the commode. The worker states the patient weighed approximately 280 pounds and required a two-person lift. The worker states they were behind the patient with one hand on the patient’s back and one hand on the walker when the patient began to fall and placed all of their weight on the worker. The worker states they had stuck out their knees to catch the patient from falling. The worker states the patient was then placed on the floor and both the worker and their co-worker waited for ambulance assistance. The worker states the patient was too heavy to move from the floor to the bed.
Following the incident, the worker testified the patient was in bed and the worker assisted them with their supper, assisted with dishes and continued to prepare patients for bed. The worker completed their shift following the incident.
The worker testified they felt immediate pain following the injury but thought it was a ‘flare-up’ from their pre-existing back condition. The worker did not report any prior flare-ups. The worker states they could not bend at all due to the pain and experienced shooting pains up their back, which gradually worsened. The worker reports that shooting pains down their right thigh and leg occurred much later after seeing their family doctor.
In response to the worker representative’s reference to a medical note dated March 12, 2021, the worker testified they did not recall this note or that their back was bothersome. The worker stated they had pain here and there. The worker stated they did not miss time from work with the accident employer prior to their injury of March 19, 2021 and were performing their regular work duties on the date of injury.
The worker testified that after work that day their back was very sore. The worker states they returned to work the next day given the employer was short-staffed due to the Covid-19 pandemic and the worker felt they had no choice. The worker states they worked for a couple of days until contacting their family doctor.
The worker states that they self medicated by applying Voltaren to their back and took Tylenol.
The worker testified they mentioned the incident to a few people at work and told their supervisor about the incident the next day and states their supervisor laughed at them. The worker indicated no paperwork was completed.
The worker testified they called their family doctor on March 21, 2021 to report their back pain. Due to the Covid-19 pandemic, their doctor was not seeing patients in person. The worker states they were given a telephone appointment for April 9, 2021. The worker states they reported to their family doctor they were calling due to an injury to their back at work.
The worker states they stopped working at the end of March 2021. They testified that all their regular job duties were aggravating their lower back pain, especially stooping and bending and they could no longer tolerate the pain.
During the worker’s medical appointment of April 9, 2021, the worker states they requested a note from their family doctor for work and were referred for an MRI. The worker states their family doctor advised them they had another disc bulge, which was ‘worse than before’.
The worker reported they had never heard of WSIB until their roommate mentioned it to them. The worker testified they spoke with their employer once after stopping work.
The worker testified they are limited to twenty minutes of sitting or standing at present. They indicated they remain in bed for most of the day due to the pain. The worker states they did not have any limitations with standing or sitting prior to their injury.
The worker testified that further to the Employer’s Report of Injury (Form 7) they did not stop working due to a domestic dispute, as referenced by the Form 7. The worker testified they moved in with a roommate in February 2021, prior to their workplace injury.
Prior to their injury, the worker testified they would sleep until 1:00 pm, make lunch and make supper to bring to work. The worker states they worked 3:00 pm until 11:00 pm five days a week. At work, their duties consisted of supper preparation, receiving and assisting patients, preparing patients for bed. At home, the worker testified they completed all their own cooking, cleaning and shopping.
Following the injury, the worker states they find it difficult to get out of bed in the morning. The worker states they may prepare a small meal; however, they are unable to clean, cook or complete shopping. The worker testified their roommate’s brother completes the cooking, cleaning and shopping for them. The worker states they may attempt to help with dishes, but they are limited to standing for only a maximum of twenty minutes.
The worker reports they currently wear a back brace which was funded by the Ontario Disability Support Program (ODSP). The worker testified they had been on ODSP previously for a prior knee condition.
The worker testified there was no option to file for short term or long-term disability benefits with the employer and are currently in receipt of ODSP benefits.
The worker testified that the injury at work caused their back pain and worsened their pre-existing back condition.
The worker states they are not a candidate for surgery and aside from wearing a back brace receives epidural injections every five months to treat their lower back injury. Physiotherapy has been recommended; however, the worker states they are unable to afford to pay for therapy out-of-pocket.
The worker testified that following their last day worked in late March 2021, the worker called in sick and spoke with the ‘guy or girl’ who answer the phone. The worker states they did not discuss the incident or provide a reason why they were calling in sick. The worker states they formally reported their injury to the employer after seeking medical attention.
RELEVANT CASE DETAILS
In Dr. Ferguson’s clinical chart note dated March 12, 2021 it states the worker’s back was bothersome with radiating pain to the right buttock, which limits them at work. Dr. Ferguson reviewed the worker’s MRI from 2015, which showed a right disc bulge. The worker queried additional imaging. The worker was diagnosed with sciatica.
In the clinical chart note dated April 9, 2021, it states a history of chronic back pain, no injuries. Dr. Ferguson notes the worker’s job is quite physical and involves a lot of twisting and lifting. A patient was falling and the worker reached out to catch them, which ‘seems to have trigger her pain’. The note indicates the current pain is similar but worse than previous. The note states the worker is unsure when they can return to their pre-injury job given the physical demands. The worker was diagnosed with sciatica.
MRI dated April 21, 2021 showed early degenerative changes of the spine. There is again an asymmetrical disc bulge at L5-S1, which is mildly posteriorly displacing the traversing right S1 nerve root.
The worker’s claim was established by the Form 7 dated May 5, 2021, which states the worker reported an injury to their back while preventing a client from falling. On page 4 of the Form 7, it states the worker reports an injury to their back on March 19, 2021. The worker returned to work performing their regular work duties. The worker began to lose time from work on March 31, 2021 due to personal reasons. The worker sought medical attention on April 9, 2021 and the worker reported their workplace injury to the employer on April 27, 2021. The worker was offered modified duties on April 29, 2021.
In the Health Professional’s Report (Form 8) dated May 5, 2021 it states the worker was injured when they caught a patient from falling and strained their back. A history of pre-existing back pain was noted and has been worsened by the injury. The worker was diagnosed with sciatica and authorized off work. The Form 8 states the worker has pain at rest and worsened with any physical activity.
In the clinical chart note dated May 5, 2021, Dr. Ferguson states the worker was seen in follow-up for chronic back pain and states they will complete WSIB forms since the worker’s pain seems to have been exacerbated by trying to catch a patient at work.
Clinical chart note dated July 6, 2021 states back pain is still bothersome and the worker needs a note for work. The worker does not think they can return in the near future due to ‘too much lifting’. The worker was referred to an orthopaedic surgeon, but suspects the worker will not be a surgical candidate and cannot afford physiotherapy and states it was not helpful in the past.
Imaging dated August 13, 2021 for the sacroiliac joints revealed the sacroiliac joints were unremarkable with no evidence of sacroiliitis.
In Dr. Ferguson’s chart note dated September 22, 2021 the worker’s diagnosis was unchanged, sciatica.
On October 4, 2021, the worker was seen by Dr. Chow at the Sports Medicine Centre for assessment of lower back pain. The report states the worker was hurt at work when helping a 280-pound patient back to bed from a geriatric chair. The report states this is not a WSIB case as the worker did not file the injury report at the time. The lower back pain was reproduced with lumbar flexion and right lateral bending. Upon testing, Dr. Chow opined this may be a sign of a chronic back pain syndrome starting to set in. Intensive physiotherapy was recommended and there were no spinal surgery indications.
On April 4, 2022, the decision was reconsidered and upheld. The eligibility adjudicator had requested further medical information to determine if there was a delay in seeking medical given the worker indicated they sought medical attention the week of March 22, 2021. Further to their review, the eligibility adjudicator determined the medical information indicated the worker sought medical attention complaining of back issues on March 12, 2021, which is prior to the date of injury. The chart notes from this visit indicate the worker had an MRI in 2015, which showed a right disc bulge. According to the medical chart notes on file, the worker sought initial medical attention on April 9, 2021 during which time they did not report the specific accident from March 19, 2021 to their physician during this visit.
In Dr. Ferguson’s medical note dated May 19, 2022, they indicate the worker does have a history of back pain but that their symptoms have been greatly exacerbated in recent months, which the worker attributes to the injury at work. Dr. Ferguson states they only discussed the worker’s back on one occasion prior to April 2021 and are not sure exactly when the work injury took place but since April 2021, there have been a large number of telephone calls, messages, investigations and referrals for the worker’s back pain and therefore it does not appear to be significantly worse since then.
Undated text messages from the worker and the employer, which are part of the case record state the following:
‘So I am in a real fine mess, cannot get my holiday pay unless I quit, cannot get any emergency money anywhere, and my rent and bill are in on the 28th.
I cannot even get help from welfare because I work…my back is a result of stopping XX from hitting the floors one night’
‘YY, this is very concerning to me as it’s a reportable incident and this is the first that anyone is hearing about it. If you injured your back at work there should have been an incident report completed. The Nurse, ZZ and I should have been made aware and WSIB forms completed and submitted. If this is the case I need you to come in and complete all of the paperwork.’
ASSESSMENT OF THE EVIDENCE
In my review of this case and having regard for the requirements under policies 15-02-01 (Definition of Accident), 11-01-01 (Adjudicative Process) and 15-02-03 (Pre-existing Conditions), I find the worker does have initial entitlement to a lower back injury, which exacerbated the worker’s pre-existing lower back condition.
Policy 15-02-01 (Definition of Accident) provides two types of disablements: a condition that emerges gradually over time (also called a disablement, gradual onset), and an unexpected result of working duties (also called a disablement, unexpected result).
A disablement that is an unexpected result of working duties occurs when a worker is performing their regular job duties and experiences a sudden onset of pain. The injury itself is not observable.
In this case, the worker caught a patient weighing approximately 280 pounds from falling when they felt an onset of back pain. The worker has identified a specific action and a specific incident that caused their injury. Although they intended to assist the patient, it is reasonable to presume they did not intend to injure their back.
I am therefore satisfied the worker’s injury is a disablement unexpected result type of accident. I must now turn my attention to whether the worker has met the criteria for initial entitlement.
When deciding on initial entitlement in a claim for WSIB benefits, Policy 11-01-01 (Adjudicative Process) states 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.
As there is no dispute there is an employer and a worker in this claim, I shall focus my assessment of the remaining three points.
Personal Work-Related Injury
A personal work-related injury means an injury happened at work and because of the work the individual was doing. The evidence must show the work was the cause of the injury.
In this case, I note the worker reported a specific incident on a specific day. The worker denied experiencing acute back pain from the start of their employment with the employer until the date of injury. I further note at the time they were injured, the worker was performing their regular job and duties.
The worker testified they experienced an immediate onset of pain following the incident.
The worker’s representative puts forth that the available claim file evidence is in harmony with the worker’s story. The representative notes the consistent accident history of experiencing back pain after preventing a patient from falling on March 19, 2021.
I agree with the worker representative in this regard.
As the worker experienced lower back pain following this specific incident I find it more probable than not that this was the cause of the worker’s lower back pain. I am therefore satisfied the worker sustained a personal work-related injury as a result of the duties they were performing on March 19, 2021.
Proof of Accident
Based on my review of the information on file and the worker’s testimony, I find that proof of accident is established.
Proof of accident means there is evidence a work-related accident happened. In the course of adjudicating claims, WSIB staff frequently look for the four “immediates”. These are immediate onset of pain, immediate reporting of the injury, immediate lay-off and immediate medical attention. The closer the pain, reporting, medical attention and lay off from work to the onset of the injury, the stronger the evidence an accident and injury occurred.
Policy 11-01-01 (Adjudicative Process) requires proof of accident as one of the five points required in order for a claim to be allowable. Policy provides decision-makers to consider the following factors when examining proof of accident:
does an accident or disablement situation exist?
are there any witnesses?
are there discrepancies in the date of accident and the date the worker stopped working?
was there any delay in the onset of symptoms or in seeking health care attention?
The worker testified they advised their supervisor of the injury and incident the next day. While there is no evidence of this in the case record, I find the worker’s accident history to be consistent. The worker also states that initially they believed their back pain was due to a ‘flare-up’ of their pre-existing back condition and thought the pain would go away. The worker testified that while they returned to work following the injury, they self-medicated with Voltaren and Tylenol and when they could no longer manage the pain, they called their family doctor on March 21, 2019 to seek medical attention. This represents a two-day delay in seeking medical attention.
While I can appreciate the case record is absent of this telephone call taking place, I am compelled by the explanations provided in that this telephone call occurred during the Covid-19 pandemic and the worker’s family doctor was not seeing patients in person. The worker states they were given the first available appointment on April 9, 2019. In the chart notes dated April 9, 2019 the worker reported a patient was falling and the worker reached out to catch them, which ‘seems to have trigger her pain’. The worker was diagnosed with sciatica. I find the worker’s testimony to be credible and straightforward; therefore, I find the delay in seeking medical attention to be reasonable and not due to the worker’s own actions but due to the unprecedented Covid-19 pandemic. In addition, while Dr. Ferguson did not complete a Form 8 until May 5, 2019, the chart notes clearly demonstrate the worker reported the work-related injury on April 9, 2019. While the incident date is not noted, the claim file evidence appears consistent with respect to the date of incident.
With respect to the delays in reporting the injury to the employer, the worker testified they advised their supervisor of the incident the next day and WSIB forms were not completed. The worker testified they stopped working at the end of March 2019 given they could no longer perform their regular work duties as they were aggravating their lower back. The worker testified they formally reported their injury to the employer after seeking medical attention.
The medical evidence available to me confirms the worker was seen by their family doctor some three weeks post-injury on April 9, 2019 for treatment of lower back pain.
There is no evidence in the case record of any intervening event that occurred between the date of accident and the date the worker sought medical attention.
I am satisfied the criteria for proof of accident has been met. Although there were delays in reporting the accident and seeking medical attention, there has been no evidence provided to suggest the reason the worker sought health care on April 9, 2019 was for any reason other than the work-related injury they sustained on March 19, 2019
Compatibility
Compatibility refers to the causal relationship between the injury and the worker’s medical diagnosis. There must be a relationship between the injury and the diagnosis to satisfy the compatibility criteria.
Policy 15-02-03 (Pre-existing Conditions) states entitlement for a work-related injury 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.
In this case, the worker’s pre-existing lower back condition diagnosed as L5-S1 disc bulge is not in dispute. The issue currently before me is initial entitlement to a lower back injury diagnosed as sciatica. I must establish whether the available diagnosis is compatible with the mechanism of injury.
Based on Dr. Ferguson’s clinical chart note dated April 9, 2019 and the Form 8 dated May 5, 2021 the worker was diagnosed with sciatica. Dr. Ferguson’s chart note also states the worker’s current pain is similar but worse than previous. Therefore, in my review of the mechanism of injury as described by the worker and well documented in the case record, I find the diagnosis of sciatica compatible with the accident history and am limiting entitlement to an exacerbation of the worker’s pre-existing disc bulge and find the sciatica symptoms are a result of the exacerbation.
In conclusion, I find the worker sustained a personal work-related injury to their lower back as a result of the workplace injury of March 19, 2019 and the criteria for initial entitlement has been met.
The issue of benefits flowing from this decision and the worker’s ongoing entitlement and the impact of any pre-existing condition on the worker’s ongoing impairment is remitted to the operating area to determine.
CONCLUSION
The worker’s objection is allowed.
DATED August 26, 2022
Dorothy Zaffino
Appeals Resolution Officer
Appeals Services Division