Worker v. Employer, 2023 CanLII 112873

20230121

REPRESENTED by:

HEARD by:

DATED:

OCTOBER 11, 2023

ISSUE

The worker representative is objecting to the denial of initial entitlement to a low back injury, as per the eligibility adjudicator’s (EA) decision dated October 24, 2022.

BACKGROUND

On September 8, 2022, this personal support worker (PSW) stated that they were walking and slipped on hand sanitizer that was on the ground. A couple of days later they began experiencing mild left ankle pain and severe low back pain. The worker was treated on September 23, 2022 and was diagnosed with a severe L4-L5 focal stenosis and cauda equina.

In the October 24, 2022 letter to the worker, the EA noted that the worker reported on September 8, 2022 that they were walking and slipped on hand sanitizer that was on the ground. The worker reported the injury on September 8, 2022, returned to their regular duties, sought medical treatment on

September 23, 2022, and began losing time from work. Following this, they had emergency surgery. Noting the delay in seeking medical attention, and the performance of regular duties following the fall, proof of accident could not be established, as medical attention was not immediately sought following the injury. Entitlement to benefits were denied.

In the subsequent December 2, 2022 reconsideration decision, the EA noted that proof of accident was established as the accident history was confirmed with the witness. However, the diagnosis was not compatible with the mechanism of injury noting the worker had a long history of lower back issues and surgical intervention was previously reviewed with the worker as an option. The MRI of

September 23, 2022 showed no changes from the previous March MRI. Therefore, it could not be established that the fall of September 8, 2020 worsened the low back condition. The medical information showed that the surgery would help with symptoms in the leg and not help with her back. The medical notes indicate the back pain and leg pain bother the worker equally, and the worker wanted to have surgery to improve their leg symptoms. The surgery of September 26, 2022 was reported as optional, and it could not be established that the emergency surgery was a result of the fall of September 8, 2022

and it was more in line with ongoing treatment the worker had a ready been receiving as a result of the pre-existing low back condition.

In a subsequent letter dated July 13, 2023, the EA reviewed entitlement again in response to the request for entitlement under Operational Policy Manual (OPM) document 15-02-04 Aggravation Basis. Although a pre-accident impairment was established, it could not be established that the accident itself of September 8, 2022 was minor. This was a chance event type accident that occurred as a slip and fall while walking in a hallway was not considered minor. Entitlement on an aggravation basis was denied, and initial entitlement remained denied, as compatibility could not be established.

AUTHORITY

Operational Policy Manual Published

11-01-01 Adjudicative Process 11-02-02 Lost Time Claims

15-02-04 Aggravation Basis

15-02-05 Recurrences

15-05-01 Resulting from Work-Related Disability/Impairment

18-03-02 Payment and Reviewing Benefits (Prior to Final Review)

November 3, 2008

April 9, 2021

November 3, 2014

April 9, 2021

September 1, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find in favour of the worker, and I have set out my reasons in more detail below.

I begin this review with part of OPM document 11-01-01 Adjudicative Process, and it notes the following: Five point check system

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This

system is known as the "five point check system."

An allowable claim must have the following five points

an employer (see 12-01-01, Who is an Employer?)
a worker (see 12-02-01, Workers and Independent Operators)
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.

There is no dispute here there is an employer and worker relationship. I must establish that the worker sustained a personal work-related injury, proof of accident and that the diagnosis is compatible with the accident history.

In that regard, I note in the claim file record that the eligibility adjudicator (EA) contacted the employer in Memo A dated November 10, 2022. In that memo, the employer noted that following the incident the worker complained they had some pain and the employer advised the worker to seek medical treatment. The worker noted they were fine. The worker continued to perform their regular duties from September 9 to 22 but the union reached out to them in the week of September 19, 2022 noting that the worker was in a lot of pain, and the worker was advised to go to the doctor.

In the subsequent Memo B dated November 18, 2022, the EA received a call from the Witness S, who noted that when the worker fell they slid on their left foot and fell on their right-sided buttock. The

worker complained about the pain from the fall and they had constant pain and were still complaining of pain until they went off work.

In Memo C dated November 22, 2022, the EA spoke with the worker regarding the delay in healthcare treatment. The worker noted that they called their family doctor but that they were full, and they attempted to get into a walking clinic but it was fully booked. They continued to work, as they did not have sick days. When they went to the emergency an MRI was booked the same day, because they were losing feeling in their legs and their back was giving them so much trouble. They also noted that leading up to the accident they had sciatica pain and was getting treatment from a pain specialist but they were able to go back to work with treatment and pain medication.

I also reviewed the medical documentation and note that the emergency reporting dated

September 25, 2022 shows that the worker had a “long-standing history of low back pain and right leg pain and has been followed by pain specialist at Hospital X. The report also noted the following:

The worker was getting about three weeks of relief with steroid injection for both her back and leg symptoms, but OHIP only covers a certain amount per year. The worker experienced good relief with pain medications and noted that chiropractic treatment did not last as long as steroid injections. The worker had presented at Hospital X a few days ago with continued pain and an MRI done there showed stenosis and arthritis in her lumbar spine, unchanged from her previous MRI in March of this year. We previously discussed the option of surgery for the leg pain symptoms and the worker was given some time to think about their options. She tells me today that she was actually supposed to have consultation tomorrow with Dr. Ginsberg for surgical consideration to treat her pain.

AND

……The worker was extremely frustrated with her pain symptoms and continued to want to solution that will immediately and effectively alleviate her symptoms, and also repeatedly expressed to be me that she does not want to continue with the pain medications, injections, physiotherapy, and other pain management strategies “for the rest of her life”. I again explained that the goal of surgery would be to help the leg symptoms, and would not help her back pain. Furthermore, it is possible that her back pain may worsen after surgery, for sure in the immediate period after surgery, but also possibly in the long-term. I reiterated that if her main issue was the back pain, we would not be discussing surgery as we know from the literature and experience that surgery does not help with the issue and the treatment would be to continue with the pain specialist as she has been. Her back pain is constant, and her leg symptoms are not consistent with neurogenic claudication.

In the follow-up Neurosurgery Progress Note-Final report dated September 26, 2022, the worker was seen on the hallway stretcher in the emergency department by Dr. DeCosta and Dr. Ben Davidson, and the following was noted:

She described her ongoing symptoms of leg heaviness, weakness, troubles walking, and a preference for leaning forward for support-all classic symptoms of neurogenic claudication, which can be attributed to her severe L4-L5 focal stenosis. We explained that in this situation, it would be reasonable to move forward with and L4-5 lumbar laminectomy to decompress the neural elements in hopes of improving her claudication, but we emphasized that improvements in back pain should not be expected. The worker understood this, and consented to move ahead with the surgery while here.

Prior Medical Information

I also reviewed the prior medical information and found the following medical reporting pertinent to this review:

In the Toronto Pain Clinic March 1, 2022, report by Dr. Rodrigo Castro the following was noted: Pain history:

Nine-month history of lower back pain, progressive since that time. No specific trauma or inciting injury. February 21, 2021 collapsed at work due to pain, taken to ED. Also gone to MG Hospital, given one week off. Was seen by neurologists, no red flags for bowel or bladder dysfunction. Pain down right greater than left. Numbness, aggravated by activity, standing, and bending. EMG/NCS Was normal, repetitive movement at work.

Limitations:

Lifting: significantly limited

Domestic: limited due to pain, yes Recreation: limited due to pain, yes Entertainment: limited due to pain, yes Social Activity: limited due to pain, yes

Diagnosis: lumbago with radiculopathy-sensation diminished along right lower leg; no specific dermatomal pattern; strength 4/5 of right with dorsiflexion, plantarflexion and long toe extension. Multidisciplinary pain management plan:

Further Investigation by way of MRI being performed tomorrow

Medications: T3 for pain; continue with Pregabalin, and tizanidine as needed for muscle spasm Physical Therapy

Injections: Nerve block injections will perform once MRI obtained Lifestyle Guidance, diet, exercise, activity adjustment

In considering the totality of the evidence before me, I am satisfied that the worker sustained a personal work-related injury on September 8, 2022 when they slipped and fell on their buttocks injuring their low back. While the worker continued to work performing their regular duties as a PSW following the accident, the worker reported the injury immediately and complained to co-workers about their back pain. Furthermore, they reached out to the union on September 19, 2022 requesting assistance with their work. The worker also noted their family doctor was not available for an early appointment. I acknowledge that the worker has a significant pre-existing condition; however, a pre-existing condition is not a bar to entitlement.

In that regard, the work-related injury must be a significant contributing factor to the low back severe L4-L5 focal stenosis resulting in cauda equina. A significant contributing factor is one of considerable effect or importance or one, which added to the workers pre-existing condition in a material way to

establish a causal connection. In my view, the fall of September 8, 2022 on the workers buttocks was the significant contributing factor to the exacerbation of the worker’s underlying pre-existing condition, that is the worker’s severe L4-L5 focal stenosis and resulting cauda equina. The short period of time that the worker attempted to return to work in their employment as a PSW, does not detract from the serious nature of the fall the worker experienced on September 8, 2022 and resulting exacerbation of the low back condition. I am further convinced of this view, because the worker was able to perform their duties as a PSW leading up to the September 8, 2022 work-related injury. As noted in the above Memo #A0011 dated November 22, 2022, while they were receiving treatment for their back they were able to continue to work with pain medication.

I am satisfied that proof of accident is established through the reporting and complaints affirmed by the worker’s co-workers, and complaint to the union, and subsequently seeking medical treatment on

September 23, 2022. I also find that the exacerbation of the severe L4-L5 focal stenosis and cauda equina is compatible with the mechanism of injury and therefore, the requirements in OPM document 11-01-01 Adjudicative Process are met. I am granting initial entitlement to a low back injury.

Entitlement Based on an Exacerbation of a Pre-Existing Condition

It is important to note initial entitlement is granted based on an exacerbation of a pre-existing condition. This is distinct and separate from entitlement on an aggravation basis, which does not apply in the case here, and I will explain.

OPM document 15-02-04 Aggravation Basis notes 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 consider for the acute episode only and benefits continue until the worker returns to the pre-accident state.

The medical documentation shows that the worker’s low back condition was symptomatic prior to the work-related injury of September 8, 2022, and this meets the definition of a pre-accident impairment because the worker required healthcare prior to the September 8, 2022 work-related injury. However, there were two requirements to meet entitlement on an aggravation basis. The second part is it must be a minor accident. The definition of a minor accident is defined as one that, in the absence of a pre-accident impairment, it would be expected to cause non-disabling or minor disabling injury/disease. In my view, the accident history here is not minor as the worker slipped on hand sanitizer twisting their ankle and falling on their buttocks. In my view, this is more than a minor accident. In summary, entitlement on an aggravation basis is not applicable here.

Benefits Flowing -Surgery

On September 29, 2022, the medical documentation shows that the worker had surgery at Hospital Y for their L4 – L5 severe focal stenosis, with an L4 – L5 laminectomy, decompression, and duraplasty and dural repair. This surgical procedure did not result from any new incident and is clinically compatible with the original accident and injury of September 8, 2022. Consequently, this meets the requirements set out in in accordance with OPM document 15-02-05 Recurrences. I am granting entitlement to the surgical procedure that is the L4-L5 laminectomy and decompression. I will now turn to the duraplasty and dural repair.

Benefits flowing-Secondary Condition

As a result of the September 29, 2022 L4 and L5 laminectomy and decompression, a small focal tear in the dura with two small nerve rootlets visible were discovered, a CSF leak. This was corrected during surgery. I also observe that in the October 31, 2022 Discharge Report from Hospital Z the following was noted:

The worker initially presented to Hospital X on September 23, 2022 with back pain radiating to the right leg, along with right leg weakness. This was in the context of chronic back pain since about February 2022 that recently got worse after slip and fall at work on September 8, 2022. An MRI showed severe central stenosis and bilateral moderate neural forminal stenosis at L4 and L5. She was transferred to Hospital Y for L4-L5 laminectomy, decompression on September 29, in operatively this was, located by CSF leak, requiring duraplasty.

Staples were removed October 11.

She ultimately stabilizing was brought to HB H for ongoing rehabilitation. Rehab: seen by our interdisciplinary rehab teen and made good gains.

OPM document 15-02-01 Resulting from Work-Related Disability/Impairment notes that worker sustained 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. I find that this CSF leak is causally linked to the work-related injury as required in the policy, and therefore I am granting entitlement to the CSF leak and resulting surgery the duraplasty and dura repair.

Benefits Flowing -Loss of Earnings (LOE) Benefits

OPM document 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) notes that a worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The evidence is clear that the worker’s loss of earnings from September 22, 2022 to February 7, 2023 was a result of the

work-related injury. In reaching this conclusion, I reviewed the medical information in the claim file record.

In that regard, I observe that the worker sought treatment at the emergency department on September 23, 2022 was admitted and had surgery on September 29, 2022, the resulting complications led to a discharge on October 31, 2022 (see above reporting). The worker was followed by their family physician beyond this as indicated in the available chart notes in the claim file record.

The worker was then assessed on February 7, 2023 by Dr. Kevin M Grant, Orthopedic Surgery and Spine Disorders, who noted that the worker was five months following the lumbar decompression surgery and has had ongoing issues with mechanical low back pain and residual right leg pain. Their symptoms were in keeping with the failed back surgery syndrome. The exact ideology of her symptoms were not entirely clear because they did not have the imaging that was recent. Another MRI with and without GAD was ordered. The worker was to return to Dr. Dacosta for assessment. As they were to manage the worker postoperatively.

OPM document 11-02-02 Lost Time claims notes that while the worker is unable to perform any type of work, the WSIB issues wage loss benefits or loss of earnings benefits. Given the above medical information, I am satisfied that the worker was unable to work from September 22, 2022 to

February 7, 2023. There is no further medical information available for my review beyond February 7, 2023 and the worker should provide the operating area with both their earnings and

up-to-date medical information. The nature and duration of any further benefits beyond February 7, 2023 is left to the operating area to determine.

CONCLUSION

Initial entitlement to the workers low-back exacerbation of their severe L4-L5 focal stenosis and cauda equina is granted. Entitlement on an aggravation basis is not applicable here.
Entitlement to the L4-L5 laminectomy, decompression surgery is granted.
Entitlement to the secondary condition of a CSF leak requiring a surgical correction by way of the duraplasty and dura repair is granted.
Entitlement to full LOE benefits is granted from September 22, 2022 to February 7, 2023.
The nature and duration of entitlement to further benefits beyond February 7, 2023 is left to the operating area to determine.

The objection is allowed.

DATED October 11, 2023

Pauline Jones

Appeals Resolution Officer Appeals Services Division