Worker v. Employer, 2023 CanLII 122906

20230136

REPRESENTED by:

VIDEOCONFERENCE – NOVEMBER 17, 2023

HEARD by:

DATED:

NOVEMBER 21, 2023

ISSUES

The worker is objecting to the following decisions, made by the Case Manager (CM):

The September 30, 2022 decision in which entitlement to loss of earnings (LOE) benefits was denied following an accepted recurrence from June 2021.
The August 30, 2023 decision in which entitlement to LOE benefits from February 6, 2023 was denied.

BACKGROUND

On September 27, 2004, this worker in a mill developed low back pain that they attributed to there being an improper seat on the loader they operated. Entitlement to benefits for a low back injury was granted under this claim.

The worker subsequently underwent surgery on their lumbar spine. Although there is no formal entitlement decision, benefits related to this procedure were approved under the claim.

It was determined that the worker has a permanent impairment as a result of the compensable low back injury. They were assessed with a sixteen percent Non-economic Loss (NEL) in October 2007.

The worker was not in receipt of LOE benefits 72 months post-accident, so a final benefit review was not conducted at that time.

The worker underwent two further surgeries on their lumbar spine in November 2018 and May 2019. It was accepted that these surgeries were required to treat the work-related condition. Entitlement to benefits related to these procedures was allowed under the claim.

The worker was sponsored in a retraining program. The goal of the program was to provide the worker with the skills and ability to be employable in the suitable occupation (SO) of professional occupations in business management consulting. The worker obtained employment in this field. Their wages greatly exceeded their escalated pre-accident earnings. The worker’s LOE benefits ceased as of

September 14, 2020. This essentially served as a final LOE benefit review following the reopening of the worker’s LOE benefits more than 72 months post-accident.

A NEL redetermination was conducted in June 2020. The worker’s NEL benefit was increased to 22 percent.

The worker stopped working in June 2021. Their employment contract had reportedly ended. They also claimed that their compensable back injury had worsened, preventing them from pursuing other employment. They did not contact the WSIB for approximately one year after they stopped working.

As explained in correspondence dated September 30, 2022, the CM accepted that the worker experienced a worsening in their compensable impairment as of June 2021. Entitlement to benefits for a recurrence was allowed. The CM determined that the worker was still partially disabled and fit to work in the identified SO. LOE benefits were denied, but further health care benefits were approved.

The decision was reconsidered on January 24, 2023. At that time, the CM explained that the worker was totally disabled as a result of their compensable condition from at least November 22, 2022. However, the CM stated that as the worker had completed their employment contract in June 2021, they were not experiencing an actual wage loss due to their work-related disability. LOE benefits remained denied.

The CM reconsidered and upheld the decision to deny entitlement to further LOE benefits again on May 18, 2023.

The worker submitted a document that they state was a job offer that they had to decline due to their compensable impairment. They requested LOE benefits from February 6, 2023, the date of the correspondence. As outlined in a letter dated August 30, 2023, the CM did not accept that the worker was offered an actual job. The CM determined that the worker still was not entitled to any further LOE benefits.

Worker’s Position

The worker representative argued in part that the medical evidence supports that the worker experienced a significant deterioration in their compensable low back condition. As a result of this, they have been unable to work in any capacity. The worker is seeking full LOE benefits from when they last worked to date and ongoing. The representative submitted a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision in which the WSIAT determined that a worker’s earnings capacity was the determining factor as to whether further LOE benefits were in order following a significant deterioration that occurred more than 72 months post-accident, not whether there was an actual wage loss.

AUTHORITY

Operational Policies Published

15-02-05 Recurrences

18-03-06 Final LOE Benefit Review

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the worker is entitled to full loss of earnings (LOE) benefits from

May 19, 2022, the date by which the medical evidence supports that there had been a significant deterioration in the work-related impairment.

The worker was injured in a workplace accident that occurred on September 27, 2004. Prior to the claimed recurrence of June 2021, the worker’s loss of earnings (LOE) benefits were last reviewed on October 7, 2020. The worker had obtained new employment at that time that fully restored their escalated pre-accident earnings. Their LOE benefits ceased as of September 14, 2020. This constituted a final review of the worker’s LOE benefits following a re-opening that took place more than 72 months

post-accident.

This worker has a recognized permanent impairment for their compensable low back injury. They were last assessed with a 22 percent Non-economic Loss (NEL) on June 16, 2020.

WSIB Operational Policy 18-03-06 Final LOE Benefit Review states in part:

The WSIB may review the LOE benefit after the 72nd month final review if the worker suffers a significant deterioration in their work-related condition (whether or not the work-related condition resulted in a permanent impairment). When a worker sustains a secondary condition post 72 months that is causally related to the work-related condition, this may also be considered a significant deterioration of the work-related condition for which LOE benefits may be reviewed post 72 months.

The policy goes on to state:

A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in clinical findings.

To determine if there is evidence of a significant deterioration, the WSIB considers factors such as:

the need for further active medical/health care intervention to improve the worker’s condition (e.g., surgery)
establishment of clinical evidence to support a significant deterioration
evidence of increased clinical restrictions or whether functional abilities have changed (e.g., evidence of an increase in restricted activities may support a finding of significant temporary deterioration), or
job change impacts.

While a worker may take an occasional day off from work, this is generally not indicative of a significant deterioration.

From September 2020 until approximately June or July 2021, this worker was employed out of province as a consultant in the mining industry. They have their own consulting company. The worker said that they worked as a “commissioning manager”. They had to hire a team to ensure that extracted ore from a gold mine was processed properly. It was the equivalent of a senior management position. The worker said that they had to attend meetings and sometimes work in the processing facility to ensure the work was being performing properly. In terms of the physical demands of the job, the worker said that they could more or less control how long they had to sit, stand or walk. They could avoid climbing stairs excessively. It was not a physically demanding position.

The worker said that while the job tasks were not physically difficult, their back and left leg pain increased while they were working. They testified that they had to increase their medication intake from four Tylenol 4s per day to six or nine per day.

The worker testified that they had to stop working in approximately June or July 2021 due to their pain levels. They said that they could have remained on the project until December 2021, but were physically unable to do so. They also turned down other opportunities to perform consulting work, as they knew they would not be able to complete the job tasks.

I asked the worker about their family doctor’s (FD) chart notes from June and August 2021. These imply that the worker’s time on the project was ending, and that they did not have any other work lined up or planned. The worker said that they do not know why the doctor wrote this in their notes. The worker states that they could have continued working or found new work, as there are many opportunities in mining. They were unable to so do because of their injury. The FD’s chart notes from this period do not state that the worker was unable to work due to their injury.

The worker also stated that when they had last seen Dr. Marion in 2020, they were told that they could contact the surgeon directly if they had any issues with their back. The FD referred the worker back to Dr. Marion in March 2022. The worker said they also contacted Dr. Marion’s office. When they were not getting a response, they went to the office. At that time, the worker was told that a referral had to come through the WSIB. This was when the worker finally contacted the WSIB in May 2022.

I asked the worker why they waited so long to contact the WSIB after they stopped working. They claim that due to their work-related injury, they have been unable to work since June or July 2021. They said that they had to turn down potential jobs. They were trying to get in to see the specialist and was having difficulty securing an appointment. I explained that if their work-related impairment was the barrier to their working, I would expect that they would not wait nearly a year to report this to the WSIB and seek assistance.

The worker said that they previously had recurrences where their condition improved again. They did not want to bother getting the WSIB involved if this was going to be the case this time as well. The worker representative argued that the worker did not have to seek assistance from the WSIB right away. The worker previously had to initiate interventions and coordinate them on their own, so this was their approach during this period. The worker said that they have previously received little guidance or consistent direction from the WSIB. Dr. Marion told them that they could contact the surgeon directly, so this is what they did. In my opinion, the worker was unable to provide a good explanation for their delay in contacting the WSIB.

The worker representative also argued that the worker experienced a gradual significant worsening in their condition. They state that the medical evidence supports this, and that the worker’s earnings capacity has been affected by their impairment. The worker is seeking full LOE benefits from when they last worked.

The NEL rating is the baseline for the worker’s level of impairment. At that time of the June 16, 2020 NEL rating, the worker had 40 degrees of flexion of the lumbar spine, five degrees of extension, and 25 degrees of lateral flexion, bilaterally. The NEL rating also included an impairment related to the lumbar spine pathology and the surgeries that had been performed. The worker did not receive an impairment rating for loss of strength or motor function.

The clinical evidence does not support that the worker experienced a significant deterioration in their compensable condition until perhaps May 2022.

The worker saw their FD on April 29, 2021. They reported that their pain had increased due to the demands of their job duties. On examination, there was some tenderness of the lumbar spine. Range of motion (ROM) was mildly decreased in all directions. The neurovascular examination was normal. These findings do not support that there had been a significant deterioration in the work-related condition. The worker’s lumbar spine ROM was worse at the time of the NEL assessment.

The worker spoke to the FD on June 16, 2021. They reported that they were taking four Tylenol 4s per day, which according to the worker’s testimony, is their baseline dosage, not representative of an increase. The worker testified that they were told to reduce their medication intake while they were off work, but the clinical notes do not indicate that this was the direction. The notes just state that the worker was taking four Tylenol 4s per day at this time.

The worker saw the FD again on August 3, 2021. The clinical findings were the same as they were on April 29, 2021. Their prescription was renewed at one Tylenol 4 every six hours. The worker was not referred for treatment or other interventions for their injury.

On October 20, 2021, the worker told the FD that there had been no change in their condition. There was diffuse tenderness in their lower back. Flexion of the worker’s lumbar spine was 45 degrees while extension was ten degrees. This represents an improvement when compared to the NEL assessment, not a significant deterioration. On November 20, 2021, the worker’s condition was still reported not to have changed and the same prescription and dosage of pain medication was renewed.

The worker next saw the FD on December 22, 2021. The worker reported that their back felt about the same. There was some tenderness. ROM of the lumbar spine was only mildly decreased. The neurovascular examination was normal. The FD noted that the worker was “in between jobs currently.” They did not state that the worker was unable to work due to their injury. The clinical findings still do not support that there had been a significant deterioration in the low back impairment. The worker was not referred for treatment or any other interventions.

On January 26, 2022, the FD documented that there was “no change overall” and “no change from previous visits.”

It was not until March 1, 2022 that the FD referred the worker to see a specialist, Dr. Marion. The worker reported that they felt their back pain was worsening again. The clinical findings did not change. The FD again documented that the worker had tenderness and mildly decreased ROM of the lumbar spine. The clinical evidence still did not support that the worker had experienced a significant deterioration below their recognized NEL level.

The FD did not examine the worker at their next visit of May 4, 2022. They were still waiting to hear from Dr. Marion. The worker was not referred for any treatment. As there was a lack of availability for their Tylenol 4, Tramacet was prescribed in lieu.

After the worker contacted the WSIB again in May 2022, the Case Manager (CM) wrote to the FD to request medical information. The FD responded on May 19, 2022. The FD stated that the worker’s pain increased to where they had to stop working in July 2021. On examination, the FD reported that the worker was tender over their lumbar spine, and that ROM was now moderately decreased in all directions. The FD stated that they were not optimistic about the worker being able to return to their usual form of employment. It is unclear if they were referring to the worker’s pre-injury job of machine operator or their consulting position. While the FD did not provide numerical measurements, it is my opinion that “moderately decreased” ROM in all planes represents a worsening when compared to the findings at the time of the NEL assessment, particularly in terms of lateral flexion.

The worker said that the WSIB told them that they had to provide a report with ROM findings as documented by the physiotherapist who had treated them previously. The worker’s FD still had not recommended treatment for them. The worker did not participate in any active rehabilitation for their low back injury until September 2023. They said that they regularly perform their home exercise program. On August 12, 2022, the physiotherapist reported that the worker stood with five degrees of flexion. They could forward flex to twelve degrees. Extension was minus five degrees. The worker had weakness and decreased sensation in their left lower extremity. The worker testified that they have pain and numbness

in their left leg now that travels from their hip into their great toe. Sometimes, their others toes are affected as well.

While the CM accepted that the worker experienced a recurrence of their compensable low back condition as of June 2021, the clinical evidence does not support that the worker had a significant deterioration that would warrant a review of their LOE benefits under policy 18-03-06. From April 2021 until at least May 2022, the clinical findings as reported by the FD do not support that the worker’s condition had worsened below the recognized NEL level. They were not referred for treatment. They were not referred for investigations. A referral to a specialist was not made until March 1, 2022. While the worker states that they stopped working due to their injury, the medical and non-medical evidence in the claim file supports that their time on the project was ending and they had not arranged further employment. This is what the worker reportedly told their FD, according to the FD’s chart notes. The FD did not state that the worker was unable to work due to their injury until perhaps May 19, 2022. Neither the worker nor their FD contacted the WSIB between June 2021 and May 2022, which strongly supports to me that the low back impairment had not worsened to where it was the reason why the worker was off work during this period.

As the evidence does not support that the worker experienced a significant deterioration in their compensable impairment as of June 2021, they are not entitled to a review of their LOE benefits as of this date. The medical evidence does not support that they could not perform their sedentary consulting work due to their low back condition. They had restored their earnings at the last LOE benefit review, so further LOE benefits are not in order.

I do accept that there was a significant worsening in the worker’s compensable low back condition as of May 19, 2022 when the FD reported that the worker’s lumbar spine ROM, which previously had only been mildly reduced, was now moderately reduced in all directions. The clinical findings documented by the physiotherapist on August 12, 2022 also support that the worker’s condition had worsened below the recognized NEL level. A review of the worker’s LOE benefits under policy 18-03-06 is warranted as of May 19, 2022.

The worker did not get to see Dr. Marion at the Back and Neck Specialty Program again until November 22, 2022. On examination, the worker only had 20 degrees of lumbar spine flexion and was unable to extend. Strength in the left lower extremity was reduced. The worker was observed to be in significant discomfort. The worker was referred for a chronic pain management assessment. Further

diagnostic imaging was ordered. Dr. Marion stated that the worker was “severely disabled currently,” and unable to work at all.

Dr. Marion reassessed the worker on March 22, 2023. The worker’s lumbar spine ROM continued to be reduced when compared to the NEL level. Dr. Marion reviewed the results of the imaging tests. Based on these and the clinical examination, the specialist expressed that the worker remained totally disabled from working, and that this may be permanent. The imaging did not show pathology that Dr. Marion believed could be addressed with a fourth surgery on the worker’s spine. Pain management interventions were suggested, although these were not expected to result in significant improvement. The worker testified that their appointment to be assessed for possible guided cortisone injections is upcoming.

When re-evaluated at the Specialty Program again on August 10, 2023, the worker could not even tolerate an examination of their lumbar spine ROM. Dr. Marion expressed that the preference was to try to treat the worker’s neurological symptoms conservatively to avoid further surgery. Aqua therapy and physiotherapy were recommended, to better position the worker should surgery be required. If the cortisone injections do not help the worker, then surgery would be recommended. The worker was said to continue to “exhibit severe disability.” Dr. Marion again stated that the worker was totally disabled and unable to work due to their low back impairment.

I note that the worker was not working at the time of the May 19, 2022 recurrence or significant deterioration. Policy 15-02-05 Recurrences states in part that workers who have an actual loss of earnings due to a recurrence are entitled to LOE benefits. Workers who were not working may be entitled to LOE benefits if they had not permanently exited the workforce and were expected to have actual earnings in the near future.

The worker representative submitted a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision for my consideration. I am not bound by previous WSIAT decisions. Each case is adjudicated on its own merits. In the case submitted by the representative, the WSIAT determined that a worker’s earnings capacity was the determining factor as to whether further LOE benefits were in order following a significant deterioration that occurred more than 72 months post-accident, not whether there was an actual or expected wage loss.

I find that this worker is entitled to full LOE benefits as of May 19, 2022, the start of the temporary deterioration in their compensable condition as supported by the medical evidence. The worker has been totally disabled from working due to the work-related impairment from this date. While they were not working at the time, they experienced a wage loss due to their injury. When LOE benefits are reviewed in relation to the final review or after a re-opening of a claim more than 72 months post-accident, the consideration is not whether they had an actual loss of income at the time of the worsening, but what their earnings capacity is from that date going forward. A new suitable occupation (SO) may have to be identified if the change of impairment rendered a previous SO no longer appropriate for a worker. It must be determined how the impairment affects the worker’s ability to earn a wage going forward and into the future.

While I do not accept the worker’s position that they have been unable to work due to their injury since June 2021, I do accept their testimony that if they could work, they would be working. The worker testified that they have had no income from work or any other source since June 2021. They have not applied for Canada Pension Plan (CPP) disability benefits. They said that there is demand for the type of consulting work they do. Their business is still registered, but they have not had any income through this since June or July 2021. Were it not for their impairment, they would be working.

The temporary deterioration in the worker’s compensable condition has not ceased. It very likely will be permanent as indicated by Dr. Marion, necessitating another NEL redetermination. Full LOE benefits are payable from May 19, 2022 to date and ongoing, pending a further lock-in decision under the provisions of policy 18-03-06, which state that the review occurs:

when a significant temporary deterioration ends
whenever the WSIB determines that a NEL determination or redetermination of the worker’s permanent impairment is not required, or
within 24 months of the NEL processing date if the NEL determination or redetermination confirms a significant deterioration of the permanent impairment resulting in a NEL or an increased NEL benefit, based on the facts of the case.

The worker’s objection is allowed in part. Full LOE benefits are payable from May 19, 2022 to date and ongoing, pending further review.

CONCLUSION

The worker did not experience a significant deterioration in their work-related condition that would warrant or allow for a review of their LOE benefits under policy 18-03-06 in June 2021.

They did experience a significant deterioration as of May 19, 2022. Since that date, they have been totally disabled and unable to work due to the compensable low back condition. The worker is entitled to full LOE benefits from May 19, 2022 to date and ongoing, pending further medical interventions and reviews of their ongoing entitlement to benefits (NEL and LOE). They have lost their earnings capacity due to the work-related impairment.

The objection is allowed in part.

DATED November 21, 2023

C. Marr

Appeals Resolution Officer Appeals Services Division