APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230026
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER – not participating
HEARING: teleCONFERENCE – February 1, 2023
HEARD by: C. Marr, appeals resolution officer DATED: FEBRUARY 2, 2023
ISSUES
The worker is objecting to the following decisions, made by the Case Manager (CM):
- The denial of entitlement to benefits for injuries resulting from a fall down stairs in December 1999 as a second accident, dated September 9, 2022.
- The denial of entitlement to section 147(4) supplementary benefits, dated August 16, 2021.
- The denial of a reassessment of the worker’s permanent disability (PD) award for their compensable chronic pain disability (CPD), dated August 16, 2021.
BACKGROUND
On September 24, 1989, this part-time grocery store worker injured their low back when lifting a case of frozen dough.
In a decision dated April 26, 1992, the Hearings Officer determined that the workplace accident and injury aggravated the worker’s pre-existing fibromyalgia.
On June 8, 1993, the Worker’s Compensation Appeals Tribunal (WCAT) granted the worker total temporary (TT) disability benefits from June 22, 1990.
The worker was granted section 147(2) supplementary benefits from September 1992 while they participated in a self-directed vocational rehabilitation (VR) program. The worker studied to become a social worker. The supplementary benefits were paid until April 25, 1995, when the worker commenced full-time employment in this field.
The provisional PD award for the worker’s compensable CPD was confirmed at fifteen percent in April 1997.
The worker reportedly experienced a fall down stairs in December 1999, sustaining further injury. They stopped working as a social worker after this incident and have not worked since it occurred. The worker did not contact the WSIB until approximately fourteen years later. They claimed benefits through other agencies after 1999.
The worker requested a PD reassessment in 2013. This was denied on October 2, 2013.
The worker was referred for an inter-disciplinary medical assessment in 2018. Coverage for this assessment was allowed on September 6, 2018. The worker was subsequently granted coverage for extended periods of physiotherapy and psychological treatment.
The worker representative again requested a PD reassessment for the worker. They also requested entitlement to supplementary benefits for the worker under section 147(4) dating back to 2000.
As explained in correspondence dated August 16, 2021, the CM determined that the worker was not entitled to section 147(4) supplementary benefits. The CM also denied the worker’s request for a PD reassessment as any deterioration in their condition was found to be due to multiple falls.
The worker representative subsequently reported that the worker’s fall in December 1999 was caused by their compensable condition.
The CM was unable to establish that the worker’s compensable CPD caused them to fall down the stairs in December 1999. Entitlement to benefits related to injuries sustained or worsened in this accident was denied, as per correspondence dated September 9, 2022.
Worker’s Position
The worker representative argued in part that the worker’s symptoms from the work-related injury sustained in September 1989 caused the worker to fall at home in December 1999. The fall caused a significant and permanent worsening in the worker’s compensable condition. They have not been able to work since the fall. The worker should be entitled to benefits related to injuries sustained in the fall, including section 147(4) supplementary benefits and a reassessment of the worker’s PD award.
AUTHORITY
Operational Policies
Published
15-05-01 Resulting from Work-Related Disability/Impairment 15-02-03 Non-Work-Related – Second Accidents 18-07-01 Determining the Degree of Disability 18-07-10 Sections 147(2) and 147(4) Supplements (Permanent Disability)
April 9, 2021 November 3, 2008 January 2, 2015 April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
1. Second Accident
The worker is not entitled to benefits for injuries sustained in a fall at home in December 1999. I cannot determine that the compensable injury was the cause of the fall.
WSIB Operational Policy 15-05-01 Resulting from Work-Related Disability/Impairment states in part:
Workers sustaining 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.
The policy also states:
If a worker suffers a second accident, benefits are payable only if it is established that the work-related impairment caused the second accident.
The worker has entitlement to benefits for fibromyalgia under the policy for chronic pain disability (CPD). They had this condition for years prior to the date of injury under this claim. It was accepted that on September 24, 1989, the worker aggravated their pre-existing fibromyalgia when they lifted a heavy object in the workplace. The worker was assessed with a fifteen percent permanent disability (PD) award.
Sometime in December 1999 - the worker could not recall the date at the hearing - they were descending the stairs in their home. They said that they would get some pain and numbness down their left leg and left foot prior to this. The worker said that this symptom caused them to fall on the stairs. They said that they fell forward and down approximately six steps, using their arms to break their fall.
The worker said that they had not fallen prior to this. Between the date of injury under this claim and the date of the fall, their condition was stable. They were able to function. Prior to the fall, they had been working as a social worker for approximately four years.
The worker testified that they stopped working immediately after the fall. They have not worked at all since. They also said that they did not seek immediate medical attention after the fall. They said that they did not go to the hospital or to see their family doctor at the time.
The worker testified that their life changed dramatically after this fall. Their pain symptoms significantly increased. They had headaches, neck and back pain, facial pain and muscle twitching. Their vision was affected. They could not sleep. They developed psychological issues.
In their submission at the hearing, the worker representative referenced a medical report from April 3, 2002. In this report, the doctor referenced some of the worker’s family doctor’s (FD) chart notes. These indicate that the worker occasionally saw their FD for back pain. They reported back pain on December 3, 1999 and worsening back pain on December 21, 1999. The representative argued that this supports that the worker’s back pain caused them to fall.
In my opinion, the chart notes do not support this. The date of the fall is unknown. I presume that it occurred sometime between December 3, 1999, when the worker had back pain, and December 21, 1999 when they reported having worse back pain. This does not mean that the worker’s compensable fibromyalgia caused the fall. There is no indication of this in the references to the FD’s notes.
Dr. Reynolds was the primary care provider for the worker in the initial period after the fall. They first assessed the worker on April 7, 2000. The worker did not relate the fall to their fibromyalgia symptoms to Dr. Reynolds, based on the medical report. The subsequent medical reporting also does not state that the work-related injury was the cause of the fall, either in the opinion of the worker or the doctor.
In their submission, the worker representative made reference to Dr. Reynolds’ January 18, 2007 report in which they state that the worker experienced “some light-headedness causing falls.” This differs from what the worker states was the cause of the December 1999 fall. In addition, this report is from seven years after the index fall. The worker testified that they have fallen many times since December 1999. This report does not support that the worker’s compensable fibromyalgia was the cause of the December 1999 fall.
After the fall, the worker did not contact the WSIB until May 2, 2013. When asked why they waited nearly fourteen years to report an accident and worsening in their condition that dramatically changed their life and prevented them from ever working again, the worker had difficulty providing an explanation. They said it was “one of those things.” They then explained that as they were working for a different employer and the fall occurred at home, they did not think to contact the WSIB.
I note that in their call to the WSIB on May 2, 2013, and in their letter dated September 13, 2013, the worker requested a PD reassessment. They did not mention the fall. They did not report that the compensable injury caused them to fall in December 1999, resulting in them not having been able to work since.
The worker representative suggested that there might have been an issue with the worker’s relationship with their previous representative that caused the worker not to contact the WSIB. The worker did not obtain this previous representative until 2012. They still had twelve years during which they could have contacted the WSIB to report this material change on their own.
The worker’s request for a PD reassessment was denied on October 2, 2013.
It was not until the worker representative made a submission for an appeal on March 3, 2022 that the claim that the worker’s fall in December 1999 was caused by the compensable injury was made.
I am unable to establish that the worker’s compensable condition caused them to fall down the stairs in their home in December 1999. There was no immediate reporting of this possible causation by the worker to their health care providers. The worker did not report the material change to the WSIB for over thirteen years, and even then did not mention the fall. It was not until March 2022 that the worker or their representative suggested that the work-related injury caused the fall in December 1999. Had the symptoms from the compensable condition caused the worker to fall, suffering a significant worsening in their condition to where they immediately and permanently stopped working and that dramatically altered their life, they would have reported this to their doctor and the WSIB soon after.
As the work-related impairment did not cause the second accident, the worker is not entitled to benefits for injuries sustained in the fall.
I also considered whether the worker might be entitled to further benefits for the injuries and worsening impairment caused by the fall under policy 15-05-03 Non-Work-Related – Second Accidents. This policy states in part:
The WSIB does not accept entitlement for an injury as a result of a second accident that is due to a non-work-related cause. If a work-related impairment/disability is aggravated by a non-work-related second accident, the aggravation may be accepted depending on the extent of recovery of the work-related impairment/disability.
The policy also states:
If an injured worker has a second accident while receiving WSIB benefits, but the second accident is not caused by a work-related injury, there is no entitlement for the second accident.
If the second accident is not caused by the work-related impairment/disability, but does aggravate it, one of the following may apply
if the work-related impairment/disability is at, or near, full recovery, benefit payments may cease, or
if the work-related impairment/disability is not at, or near, complete recovery, (e.g., a recently reduced fracture in which the second accident has caused a re-fracture at the same site), the aggravation of the work-related impairment/disability may be accepted.
The second accident was not caused by the work-related injury, but it did aggravate it. However, the worker is not entitled to further benefits under the provisions of this policy. Their compensable condition was stable. They had been assessed with a fifteen percent PD award for the work-related aggravation of their pre-existing fibromyalgia. The provisional rating was made permanent in April 1997. The worker had been working in a new position since 1995 and continued in this capacity until December 1999. They testified that they were able to function at work and at home with their compensable fibromyalgia prior to the fall in December 1999. Maximum medical recovery for the work-related impairment had been achieved years prior to the fall.
Therefore, the worker is not entitled to benefits for the aggravation of the work-related injury suffered in the second non-work-related accident.
2. Section 147(4) Supplement
The worker is not entitled to supplementary benefits under section 147(4) of the relevant legislation.
Policy 18-07-10 Sections 147(2) and 147(4) Supplements (Permanent Disability) states in part:
A worker with an injury date prior to January 2, 1990 who was in receipt of a partial permanent disability benefit after July 26, 1989 may be entitled to a supplement if the worker:
would likely benefit from and co-operates in a return-to-work (RTW) plan that could help to increase the worker's earning capacity to the extent that the sum of the worker's earning capacity after the RTW plan and the amount of the worker's partial permanent disability benefit approximates the worker's pre-injury gross average earnings or pre-injury net average earnings (NAE) (s. 147(2) supplement), or
is not likely to benefit from a RTW plan or if the worker's earning capacity did not increase to the extent expected following completion of a RTW plan (s. 147(4) supplement).
Regarding Section 147(4) Supplements, the policy states:
A worker who is receiving a partial permanent disability benefit is entitled to a s. 147(4) supplement if the WSIB determines:
the worker is not likely to benefit from a RTW plan as described in the “Entitlement: s. 147(2) supplement” section, or
the worker’s earning capacity after completing a RTW plan did not increase to the extent that the worker's earning capacity after the RTW plan and the amount of the worker’s partial permanent disability benefit approximates the worker’s pre-injury gross average earnings or pre-injury NAE.
At the time of the workplace accident and injury, the worker was working part-time in a grocery store. According to memorandum XX, the worker was paid $11.85 per hour and averaged 24 hours of work per week in their pre-accident position.
The worker returned to school after the workplace accident. They studied to become a social worker. This retraining was retroactively classified as a self-directed return to work (RTW) program. The worker was granted a section 147(2) supplement from September 1992 to April 25, 1995.
The worker’s earnings capacity significantly increased following the completion of the RTW program. At the hearing, the worker said that they think they earned approximately $34000 per year working as a social worker. This greatly exceeded their pre-accident earnings.
In their previous written submission, the worker representative referred to notes from the vocational rehabilitation case worker that indicate that the worker’s social worker job was expected to only be temporary. This may have been the initial expectation, but it was proven to not be the case. The worker worked as a social worker for over four years, only stopping after sustaining further injury in an accident in the home. As per their testimony at the hearing, the worker was able to sustain work as a social worker given their compensable condition for years until the fall at home.
The worker benefitted from a RTW plan. After the completion of the plan, the worker’s earning capacity increased to where their salary greatly exceeded their pre-injury gross weekly earnings or net average earnings, even without including their PD benefit.
Therefore, these is no basis for paying the worker a section 147(4) supplement under this claim.
3. PD Reassessment
The worker is not entitled to a reassessment of their PD benefit. Any worsening in their condition was caused by a significant new non-work-related accident.
The worker had fibromyalgia for years prior to the workplace accident and injury. It was accepted that the act of lifting a heavy object permanently worsened their pre-existing condition. In their decision dated October 26, 1992, the Hearings Officer concluded that the worker’s pre-existing fibromyalgia did not preclude the worker from working part-time in the grocery store for several years. Following the workplace accident and injury, the fibromyalgia condition became aggravated.
The same rationale applies to the December 1999 fall at home. The worker’s fibromyalgia condition was at a new baseline level of impairment as recognized by the fifteen percent PD award. This impairment did not preclude the worker from completing a retraining program and working as a social worker for approximately four years. Following the home accident, which was objectively more significant than the workplace accident, the worker’s fibromyalgia condition became further aggravated.
By the worker’s testimony, the injuries sustained in the fall caused them to have a much greater degree of impairment. Prior to the fall, they could work on a full-time basis. They state that they have been unable to work in any capacity since the fall. As argued by the worker representative, the medical evidence supports that the fall caused a significant worsening in the worker’s condition. The worker’s self-reported symptoms and degree of impairment were worse after the fall. The worker began to require strong medication for their pain. The worker said that their impairment after the fall affected all aspects of their life. They could not sleep, they lost their appetite, they developed psychological issues, their relationships were strained, and they lost interest in their hobbies. They socialize less than they did before the fall. While the claim file evidence supports that there were other contributing factors to some of these issues, it is clear that the fall at home was the cause of any worsening in the worker’s fibromyalgia.
There are numerous medical reports that support the worker representative’s position that the fall at home in December 1999 caused a worsening in the worker’s condition. As outlined above, however, there is no entitlement to benefits for injuries or an aggravation of the worker’s CPD caused by the fall.
Regarding PD reassessments, policy 18-07-01 Determining the Degree of Disability states in part:
If a permanent disability worsens, the WSIB may reassess the worker's disability. The degree of worsening is determined based on health care information submitted to file. The pensions awards considered include both monthly awards and previously commuted lump sum awards.
The claim file evidence and the testimony and arguments presented at the hearing support that the fall at home in December 1999 was the cause of any worsening in the worker’s compensable condition. Their compensable condition had been stable for years prior to this accident. There is no reason to conclude that this baseline level of impairment would not have been maintained were it not for the significant home accident and resulting injuries. As such, I cannot determine that there has been a worsening in the compensable disability to warrant a PD reassessment. Any new injuries or greater degree of disability experienced by the worker are due to a non-work-related accident.
Therefore, the worker is not entitled to a PD reassessment.
CONCLUSION
- The worker is not entitled to benefits for injuries sustained in the fall at home in December 1999.
- The worker is not entitled to section 147(4) supplementary benefits.
- The worker is not entitled to a PD reassessment.
The objection is denied.
DATED February 2, 2023
C. Marr Appeals Resolution Officer Appeals Services Division