20230133

REPRESENTED by:

HEARD by:

DATED:

NOVEMBER 2, 2023

The employer is objecting to the February 2, 2023 decision of the Case Manager that the worker reached maximum medical recovery by December 16, 2022 with a permanent low back impairment.

On February 19, 2022, this then 50-year old personal support worker assisted a patient with transferring from sitting in a tub chair to a standing in order to dry their lower extremities. After assisting the patient, the worker developed upper and lower back pain. They reported the injury immediately, stopped working the following day and sought medical attention on February 22, 2022. A doctor diagnosed a low back strain. The worker attempted to return to modified duties on February 23, 2022 but left early due to pain. A February 28, 2022 letter from the Operating Area approved initial entitlement to health care benefits for a lower back injury.

In a decision dated March 10, 2022, the Eligibility Adjudicator confirmed initial entitlement to a low back strain. The Eligibility Adjudicator also approved the payment of full loss of earnings (LOE) benefits from February 20, 2022 to February 21, 2022 and from February 24, 2022 to February 25, 2022. The worker returned to modified duties at less than regular hours on February 28, 2022 and the employer elected to pay the worker full wages from that date.

The worker continued with modified duties. They participated in physiotherapy treatment and underwent an MRI of the low back on April 14, 2022 that showed degenerative changes. The worker later attended assessments at a WSIB Back and Neck Specialty Clinic where the assessors diagnosed a low back strain and an aggravation of an underlying L4-5 grade 1 spondylolisthesis. The Specialty Clinic assessors recommended the worker undergo a radiofrequency ablation procedure that the Case Manager approved as a responsibility of the claim. The ablation procedure took place on December 7, 2022. The worker remained off work after the procedure until December 14, 2022 when they resumed modified duties. The worker subsequently attended a final assessment at the Specialty Clinic on December 16, 2022.

In a December 19, 2022 decision, the Case Manager extended entitlement in the claim to include an exacerbation of the L4-5 grade 1 spondylolisthesis. The Case Manager determined the L4-5 spondylolisthesis was asymptomatic before the accident and accepted that the accident had exacerbated the underlying condition. The Case Manager also approved payment of full LOE benefits from

December 7, 2022 until December 13, 2022 (inclusive) as they determined the worker was unable to return to work during the period after the ablation procedure.

In a February 2, 2023 decision, the Case Manager concluded the worker had reached maximum medical recovery (MMR) by December 16, 2022 when they attended the final Specialty Clinic assessment. The Case Manager also determined the worker had a permanent residual impairment that remained ongoing at the time the worker reached MMR. The worker later received an 11% Non-Economic Loss (NEL) award for the permanent low back impairment on February 7, 2023.

The employer, through their representative objected to the February 2, 2023 decision of the Case Manager and the matter was referred to the Appeals Services Division for consideration.

Operational Policy Manual

Published

11-01-05 – Determining Permanent Impairment

November 3, 2014

I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the February 2, 2023 decision of the Case Manager is appropriate. I find the worker reached MMR by December 16, 2022 with a permanent work-related low back impairment and the reasons for my decision are explained below.

The Employer’s Position

In correspondence dated September 8, 2023, the employer’s representative submitted the following:

The worker has several pre-existing conditions in the same area as the work injury.
The WSIB Back and Neck Specialty Clinic anticipated a full recovery with no restrictions.
From the date of the injury to the date the worker was determined to have reached MMR, they did not make any improvements despite performing modified work and never returning to regular job duties.
Assisting a resident to get up from a seated position should not have resulted in a severe injury and numerous permanent functional restrictions.

Maximum Medical Recovery and Permanent Impairment

According to Policy 11-01-05 (Determining Permanent Impairment), impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

A work-related impairment is considered to be permanent when it continues to exist after maximum medical recovery (MMR) has been reached. The policy states 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. To determine whether permanent impairment exists, the decision-maker must confirm that:

MMR has been reached
Evidence of ongoing impairment exists, and
The ongoing impairment is a result of the work-related injury.

In order to determine when a worker reaches MMR the policy indicates that decision makers consider whether:

Recent clinical evidence indicates any change in the work-related injury.
The worker is receiving treatment that is likely to improve the work-related injury, or
The worker is using medication to maintain the current level of recovery.

I find the worker reached MMR by December 16, 2022. In reaching that conclusion, I took particular note of the following:

An October 6, 2022 WSIB Back and Neck Specialty Clinic report from Dr. Mohammed, a neurosurgeon, confirmed the worker had previously undergone a bilateral L4-5 peri-articular lumbar facet injection that resulted in a 30% improvement in low back and right leg pain. Due to the mostly positive result, Dr. Mohammed also noted the worker had undergone medial branch nerve block injections at the L3-4 and L4-5 facets that provided a 90% resolution of symptoms fro one hour. He recommended the worker attend an assessment with a pain management specialist to determine if they were a candidate for a radio-frequency ablation procedure.
The worker completed an Enhanced Functional Treatment (EFT) program at the WSIB Back and Neck Specialty Program on October 24, 2022. The October 24, 2022 EFT discharge report from Mr. Trincao, a physiotherapist, recommended the worker continue with a home exercise program and complete any recommended pain management interventions.
Dr. McDonald, a specialist in physical medicine and rehabilitation, ultimately performed bilateral L2, L3 and L4 medial branch radio-frequency ablation injections targeting the L3-4 and L4-5 facets on December 7, 2022.
In a December 16, 2022 Specialty Clinic report, Dr. Mohammed indicated the worker had experienced a precipitation of an exacerbation of radicular symptoms and low back pain with pre- existing degenerative spondylolisthesis as a result of the work injury. He noted the worker had completed the EFT program and reported worsened pain levels decreased functional abilities after undergoing the radio-frequency ablation procedure. Dr. Mohammed further indicated the worker could attempt to manage their ongoing condition conservatively or consider low back surgery. He advised the worker the best option was a conservative approach and discharged the worker from the Specialty Clinic.
A January 23, 2023 Specialty Clinic report from Dr. Mansour, a physical medicine and rehabilitation specialist, recommended the worker trial the mediations Amitriptyline and Duloxetine for the management of chronic pain but did not recommend any further radio-frequency ablation injections.

I find the evidence referenced above establishes that by December 16, 2022, the worker had reached a plateau in their recovery with no further significant improvement likely in the work-related low back injury. The worker completed the EFT program on October 24, 2022 and underwent radio-frequency ablation injections on December 7, 2022. When they subsequently attended the December 16, 2022 Specialty Clinic assessment with Dr. Mohammed, he noted the injections had not improved the worker’s symptoms and recommended they manage their ongoing condition conservatively rather than surgically. Similarly, Dr. Monsour suggested medications but did not endorse any further radio-frequency ablation injections noting the absence of appreciable improvement. Given the reporting of Mr. Trincao at the EFT program and Dr. Mohammed and Dr. Monsour Specialty Clinic, I conclude the worker reached MMR by December 16, 2022.

Having concluded the worker reached MMR by December 16, 2022, I next considered whether there was an ongoing work-related impairment.

Policy 11-01-05 (Determining Permanent Impairment) states that once MMR has been determined decision makers consider whether there is an ongoing impairment based on the clinical evidence.

In order to determine the work-relatedness of an ongoing impairment, decision makers consider:

Whether the diagnosis is the same as or compatible with the initial work-related injury diagnosis.
Whether the clinical evidence of impairment is related to the diagnosis, and
Whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment.

With respect to ongoing impairment, the WSIB considers:

A physical abnormality to be a change to or damage to a body part or organ system
A physical loss to be a loss of some or all of a body part or organ system
A functional abnormality to be a malfunction of a body part or organ system
A functional loss to be a loss of some or all of the functioning of a body part or organ system
A disfigurement to be an altered or abnormal appearance such as an alteration of color, shape, structure, or a combination of these, and
Psychological damage to be the loss of or abnormal psychological functioning.

Factors such as the type or duration of treatment are generally not considered as indicators of ongoing impairment in the absence of other clinical evidence of impairment.

Given the evidence before me, I find the worker has an ongoing impairment resulting from the work- related injury that continued to exist after they reached MMR.

The employer representative submitted the mechanism of injury should not result in a permanent impairment. He also submitted worker has a number of pre-existing low back conditions and the Specialty Clinic provided a prognosis for a full functional recovery. While I acknowledge the submissions, I must point out that although I agree the worker has a pre-existing grade 1 L4-5 spondylolisthesis, the Operating Area accepted the accident exacerbated that condition in their December 19, 2022 decision and that decision is not properly before me in this appeal. Accordingly, I make no finding on initial entitlement to the exacerbation of the grade 1, L4-5 spondylolisthesis as that is not within my jurisdiction to address.

In the December 16, 2022 Specialty Clinic report, Dr. Mohammed stated he expected the worker to achieve a full functional recovery within three to four weeks. When considering the report in its entirety and noting that Dr. Mohammed discussed low back surgery as a treatment option with the worker, I interpret the prognosis for a full functional recovery within four weeks to relate solely to the diagnosis of a lumbar muscular strain and not the L4-5 spondylolisthesis.

With respect to the accepted exacerbation of the grade 1 L4-5 spondylolisthesis, I find the exacerbation of that condition had not ceased and the worker continued to have a functional abnormality when they reached MMR on December 16, 2022. In the December 16, 2022 Specialty Clinic report, Dr. Mohammed confirmed the range of motion of the worker’s low back was less than full. He also reported they continued to experience persistent low back symptoms that limited their functional abilities, strength and endurance. In addition, Dr. Mohammed recommended the worker should limit any bending or twisting of the trunk to an occasional basis, avoid prolonged sitting for more than 30 minutes and lifting more than 10 kg.

Regarding the spondylolisthesis, Dr. Mohammed opined that as the L4-5 spondylolisthesis was not symptomatic before the accident, it could result in a prolonged and partial functional recovery. In the January 23, 2023 Specialty Clinic report Dr. Monsour indicated the worker continued to experience functionally limiting back pain that was a barrier to optimal recovery in the workplace. He provided the prognosis of a partial functional recovery.

Noting the accepted exacerbation of the pre-existing L4-5 spondylolisthesis, the persistent functionally limiting low back symptoms, the less than full range of motion of the lumbar spine and the prognosis for a partial functional recovery reported by Dr. Mohammed and Dr. Monsour, I conclude the worker continued to have an ongoing work-related impairment at the time they reached MMR. As such, I find the low back impairment is permanent pursuant to Policy 11-01-05 (Determining Permanent Impairment).

In summary, I find the worker reached MMR by December 16, 2022 with a permanent work-related low back impairment. Therefore, I conclude the February 2, 2023 decision of the Case Manager is appropriate.

CONCLUSION

I conclude the worker reached MMR for the work-related low back injury December 16, 2022 with a permanent impairment.

The employer’s objection is denied.

DATED November 2, 2023

C. Goegan

Appeals Resolution Officer Appeals Services Division

Employer v. Worker, 2023 CanLII 122895

Case Summary

The Employer’s Position

Maximum Medical Recovery and Permanent Impairment

CONCLUSION