APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230045
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER, NOT PARTICIPATING
HEARING: HEARING IN WRITING
HEARD by: C. marr, appeals resolution officer
DATED: MARCH 6, 2023
ISSUES
The worker is objecting to the following decisions, all made by the Case Manager (CM):
The determination that the worker’s compensable right knee injury resolved by February 10, 2020 with no ongoing or permanent impairment, dated September 18, 2020.
The determination that the worker achieved maximum medical recovery (MMR) from their compensable low back injury by June 29, 2021 with no ongoing or permanent impairment, dated August 11, 2021
The denial of entitlement to benefits for a non-organic condition under the policy for chronic pain disability (CPD), dated January 27, 2022.
The denial of further loss of earnings (LOE) or health care benefits, dated August 11, 2021.
BACKGROUND
On February 2, 2019, this truck driver slipped and fell as they were trying to climb into their cab. They sustained injuries to their low back and right knee. Entitlement to benefits was granted for strain injuries to these areas.
Full or partial LOE benefits were approved for various periods of lost time from work. The employer was ultimately unwilling or unable to provide the worker with suitable modified work on a sustainable basis.
On September 18, 2020, the CM notified the worker that their compensable right knee strain was determined to have resolved by February 10, 2020 with no ongoing or permanent impairment.
In a letter dated January 8, 2021, the worker was informed that their ongoing low back impairment was due to a pre-existing condition and not the compensable strain injury. Entitlement to benefits for cervical and thoracic spine conditions was denied. The worker was told that their LOE benefits would cease as of January 22, 2021.
On February 25, 2021, the CM determined that the workplace accident aggravated the worker’s pre-existing condition. Entitlement to benefits was still limited to the low back strain, which was said to have resolved. LOE benefits were extended and closed effective March 12, 2021.
The worker’s entitlement to benefits was extended subsequent to the February 25, 2021 decision. On August 11, 2021, the CM informed the worker that LOE benefits were approved for the period from April 6, 2021 to June 29, 2021 while the worker participated in treatment for their compensable back injury. LOE benefits remained denied for the period from March 12, 2021 to April 6, 2021. MMR for the compensable low back injury was now determined to have been reached by June 29, 2021.
LOE benefits were further extended to August 10, 2021. Even though the worker was found to no longer have a work-related impairment as of June 29, 2021, the CM explained in correspondence dated November 19, 2021 that they were entitled to six weeks of LOE benefits due to communication issues.
The worker requested entitlement to benefits for a non-organic condition under the policy for CPD. As outlined in correspondence dated January 27, 2022, entitlement to benefits for a non-organic condition was denied as each of the criterion outlined under the policy were not met.
Worker’s Position
The worker representative argues in part the worker did not have a pre-existing low back condition. The medical evidence supports that the worker has permanent organic impairments as a result of the work-related low back and right knee injuries. In the alternative, the worker should be granted entitlement to benefits under the policy for CPD. The worker should be awarded a Non-economic Loss (NEL) assessment. The worker is also seeking further LOE benefits and work transition services.
AUTHORITY
Operational Policies
Published
11-01-05 Determining Permanent Impairment
15-02-03 Pre-existing Conditions
15-04-03 Chronic Pain Disability
18-03-02 Payment and Reviewing LOE Benefits
November 3, 2014
November 3, 2014
April 9, 2021
January 2, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
1. Permanent Impairment – Right Knee
The worker does not have a permanent impairment as a result of their compensable right knee injury. The clinical evidence does not support that they have a permanent organic knee injury.
The worker sustained injuries to their low back and right knee in a workplace accident that occurred on February 2, 2019. They were granted entitlement to benefits for a right knee strain.
The worker did have some knee symptoms in the pre-accident period. On June 5, 2018, they told their family doctor (FD) that they had struck their knee on a table two years previous and had pain since. The clinical examination of the knee was normal. An x-ray of both knees was negative.
Post-accident, the worker reported a high degree of knee pain. This will be discussed in more detail below. An ultrasound conducted on February 14, 2019 was normal. An MRI of the right knee performed on March 20, 2019 showed a tiny Baker’s cyst, but no other pathology. There were no findings to support that the worker had a tear or something that would be expected to cause a significant impairment.
After an initial course of physiotherapy treatment, the worker continued to report symptoms and limitations regarding their right knee injury. On April 23, 2019, the FD documented that there was no swelling of the knee, but flexion was reduced.
Dr. Kirwin assessed the worker on May 27, 2019. The worker’s gait was normal. Active flexion of the right knee was reduced. The worker was diagnosed with “non-specific knee pain.”
Another MRI performed on September 6, 2019 showed very small knee effusion and a trivial Baker’s cyst.
An MRI of the right knee conducted on January 17, 2020 was “unremarkable”.
Dr. VanVliet, orthopaedic surgeon, assessed the worker’s knee on February 21, 2020. The worker reported having constant pain in the right knee that they said tended to fall in the range of six to seven on a scale where ten is the worst pain. They walked with a noticeable limp with decreased weight-bearing on the right. There was no significant swelling, but there was significant tenderness. The worker demonstrated numerous pain behaviours, including screaming when the knee was lightly touched. Due in part to the worker’s reported symptoms and their presentation, an enhanced functional treatment program was recommended for their back and knee injuries. Dr. VanVliet stated that there was no need for them to see the worker again as pathological and structural injuries to the knee had been ruled out.
The worker did not make any gains with the treatment program. At the time of discharge in September 2020, the worker said that while there had been some improvement in their knee condition, their pain levels remained high. They were unable to fully flex the knee due to pain. They wore a knee brace.
Another MRI of the worker’s right knee was completed on October 1, 2020. This one had new findings that were not present on the previous three MRIs or the ultrasound. At this time, there was a sprain of the anterior cruciate ligament (ACL), a small tear of the medial meniscus, and some effusion with a recent rupture of a Baker’s cyst.
WSIB Operational Policy 11-01-05 Determining Permanent Impairment defines an “impairment” as “a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.”
An impairment is considered to be permanent if it continues to exist after maximum medical recovery (MMR) is achieved.
The worker representative argues in part that the worker does have a permanent right knee impairment. They reference Dr. Marshall’s report in which they state that the worker has “neuropathic pain syndrome,” which the representative states is pain inconsistent with any organic findings, but is treated as an organic injury. They also reference a report from Dr. Kirwin in which they state that the worker has consistently reported severe right knee pain and that it is likely that the pathology finally identified in the October 1, 2020 MRI was the result of the workplace accident 20 months previous.
The imaging studies of the right knee do not support that the worker had any significant pathology resulting from the workplace accident that could lead to a permanent organic impairment of the right knee. This was the opinion of the orthopaedic surgeon. Even the findings from the October 1, 2020 MRI would not be expected to cause the degree of pain and impairment that the worker reported. There was no pathology warranting surgical intervention. As noted by the Medical Consultant (MC) on December 4, 2020, there was no objective evidence of a significant organic right knee injury. A strain injury would be expect to improve with treatment and the course of time.
It is noted that the worker continued to report significant knee pain to Dr. Kirwin into 2022 and that some interventions to address the worker’s pain were tried and proven to be unsuccessful. This will be discussed in more detail below, but the reports from the times when Dr. Kirwin evaluated the worker in person do not provide clinical evidence to support that the worker has a permanent organic right knee impairment resulting from the work-related injury.
Therefore, the worker is not entitled to a Non-economic Loss (NEL) assessment for an organic right knee impairment.
2. Permanent Impairment – Low Back
The worker does not have a permanent impairment as a result of their compensable low back strain.
The worker did have a pre-existing condition in their low back. Policy 15-02-03 Pre-existing Conditions defines a pre-existing condition as follows:
A pre-existing condition is any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.
It is noted that the worker was treated for a thoracic spine injury prior to the workplace accident. An x-ray performed on June 5, 2018 showed a compression fracture at the T-8 level. The worker complained of chronic thoracic pain in the pre-accident period, including seeing their FD for this condition a week before they fell at work.
The worker may not have had a known symptomatic low back condition in the pre-accident period, but they still had a pre-existing condition as defined under the policy. The MRI of the lumbar spine performed on June 9, 2019 showed multi-level degenerative disc disease (DDD). This was not caused by the workplace accident and represents a pre-existing condition.
Once again, this will be discussed in more detail below, but the worker’s reported pain symptoms and presentation were inconsistent with the organic findings for their low back injury. Multiple physicians and health care providers commented on this, from the FD’s early assessments of the worker’s injuries through to 2022. This made it difficult for the treating providers to determine the actual extent of any organic injury.
The worker’s low back injury did improve to a degree with the initial treatment program, as noted by the physiotherapist on May 16, 2019. Yet after the next course of treatment completed on July 19, 2019, the worker’s low back condition had worsened.
An EMG performed on June 22, 2019 did not show evidence of a peripheral nerve abnormality in the right leg.
Dr. Drew, orthopaedic surgeon at the Back and Neck Specialty Program, assessed the worker on November 11, 2019. The worker reported having a high level of constant back pain. Range of motion (ROM) of the lumbar spine was significantly reduced. The worker was diagnosed with strain/sprain injuries to the lumbar and thoracic spine. The pre-existing T8 compression fracture was not expected to affect the worker’s recovery, though Dr. Drew expressed that the lumbar spine DDD could. The worker’s extreme symptom reporting and other psychosocial factors were identified as a barrier to recovery. Further treatment was recommended.
The worker commenced treatment through the Specialty Program on November 18, 2019. They were reassessed by Dr. Drew on January 29, 2020. Dr. Drew expressed that the worker’s symptom presentation was not consistent with the MRI findings. The worker said that they had not been making progress with their treatment program due to their pain levels. ROM of their lumbar spine had improved but remained reduced. The diagnoses remained unchanged.
The worker was discharged from the treatment program on February 6, 2020. They had made some gains in terms of their function and lumbar spine ROM, but continued to report limitations due to their pain levels. The physiotherapist concluded that the worker did not make significant progress. This is atypical of a strain/sprain injury a year post-accident.
At the March 9, 2020 assessment, ROM of the worker’s spine was reduced and there was tenderness to palpation. The worker again reported constant pain that they rated highly. Dr. Schofield recommended a multi-disciplinary treatment program for the worker, given their reported high pain levels. Claim file documentation indicates that this treatment became unavailable soon after this recommendation due to pandemic-related restrictions.
The worker commenced another course of treatment through the Specialty Program on July 10, 2020. Treatment was provided virtually. The worker continued to report high levels of back pain. Psychosocial factors were identified as a barrier to the worker’s recovery.
Dr. Drew reassessed the worker on August 21, 2020. The worker reported having experienced minimal improvement with treatment. They still had constant back pain. They said that medication was not really helping. ROM of their lumbar spine was much worse than it was on January 29, 2020. In my opinion, this is inconsistent with a strain injury and the mild DDD in the worker’s lumbar spine. A consultation with a pain specialist was recommended. Dr. Drew did not anticipate that the worker would make a full recovery.
The worker was discharged from the treatment program on September 29, 2020. The worker continued to report high levels of pain. They did not make significant gains with treatment.
Dr. Tumber evaluated the worker on September 30, 2020. It was noted that there was no identified pathological or structural cause for the worker’s back and knee pain. Trigger point injections to the worker’s low back area were recommended. The worker finally agreed to try this intervention in May 2021, but did not have any sustained pain relief.
An MC reviewed the available medical reporting on December 4, 2020. They expressed that it was difficult to assess the worker’s injury due to their pain behaviours. The MC stated that it was unlikely that the worker had an ongoing impairment related to the compensable strain injury. Any ongoing pain was likely due to the worker’s pre-existing condition or non-organic factors.
The worker was assessed by Dr. Drew again on January 5, 2021. The worker continued to report significant back pain. Their back was sensitive to touch. The worker exhibited fear avoidant behaviour during the examination. ROM of their lumbar and thoracic spine was greatly reduced due to pain. Dr. Drew noted all of the consultations and treatment the worker had received. They indicated that the worker was close to reaching MMR.
The MC reviewed the medical record again on February 11, 2021. They continued to be of the opinion that there was no evidence of an ongoing or permanent impairment related to the compensable low back injury. The workplace accident did not cause any change in the pre-existing spinal pathology.
The worker representative argues in part that the pre-existing condition was not a significant contributing factor to the worker’s ongoing impairment. They primarily reference Dr. Drew’s reports to support their position. I share this opinion. The medical evidence does not support that there was a time where the lumbar spine DDD or pre-existing thoracic spine condition were clearly identified as the primary cause for the worker’s ongoing impairment.
However, it is also my opinion that the clinical evidence does not support that the worker has a permanent impairment as a result of their compensable organic low back injury. I do agree with the MC that the worker’s presentation made it very difficult to assess their condition. Multiple physicians indicated that the worker’s reported symptoms and their pain behaviours were inconsistent with the spinal pathology or with a strain injury. This does not translate to a permanent organic impairment. The lack of improvement with extensive treatment and the passage of time is inconsistent with a strain injury, or the degree of the pre-existing condition. I do not find that the worker has a permanent impairment as a result of their compensable low back strain. The worker’s ongoing impairment is more in keeping with a non-organic condition, as will be outlined below.
3. Chronic Pain Disability
The worker is entitled to benefits for a non-organic condition under the policy for chronic pain disability (CPD).
Policy 15-04-03 Chronic Pain Disability outlines five criterion, each of which have to be met in order for a worker to be entitled to benefits for a non-organic condition under the policy. These are as follows:
A work-related injury occurred.
The chronic pain is caused by the injury.
The pain persists six or more months beyond the usual healing time of the injury.
The degree of pain is inconsistent with the organic findings.
The pain impairs earnings capacity.
The first criterion is met. It was accepted that the worker injured their low back and right knee in a workplace accident.
I find that the second criterion is met. As outlined above, the worker did have some degree of chronic pain due to their upper back condition in the pre-accident period. This was symptomatic and the worker was referred for an MRI right before the workplace accident occurred. The worker was managing their work duties with this condition until the workplace accident.
The worker continued to have a degree of pain in the thoracic area in the post-accident period. They did have some pain related to the pathology in their thoracic spine, but this also was a lesser degree of pain compared to that from the work-related injuries. Dr. Drew stated in multiple reports that while the pre-existing spinal pathology might serve to prolong the worker’s recovery, it was not seen to be a significant contributing cause of the worker’s pain and their impairment. The worker’s chronic pain cannot be attributed to the underlying degenerative changes in their spine.
The medical evidence supports that the worker’s chronic pain was due to their right knee and low back injuries. I made some reference to this above. There are multiple reports from various specialists and health care providers that indicate that the worker consistently reported having a high degree of pain in their right knee and low back areas. The occasional report mentions other sources of pain, such as the left leg or from headaches, but these are the exception and did not make a meaningful contribution to the worker’s pain experience, and primarily were referenced after the worker’s chronic pain was established.
The third criterion is met. As noted by the MC, the worker’s compensable strain injuries would typically be expected to resolve within twelve weeks from the date of injury. This worker consistently reported chronic pain well beyond this. The Case Manager (CM) determined that MMR was not achieved for the worker’s organic low back injury until June 29, 2021, approximately two years beyond the usual healing time for their strain injury. The worker continued to be treated and assessed for their pain through at least 2022, based on the available medical record.
The fourth criterion is met. I made reference to numerous medical reports above in which it was documented that the worker reported a high degree of pain. The degree of pain was much greater than would be expected given the clinical findings and underlying pathology. The FD noted pain behaviours in the early medical record. Dr. Drew’s reports consistently stated that the worker reported extreme symptoms. The MC expressed that it was difficult to assess the worker’s impairment due to the worker’s pain behaviours. While most of Dr. Kirwin’s reports are of limited value given that they were based on telephone consultations with the worker, they do support that the worker consistently reported a high degree of right knee and low back pain on an ongoing basis, which did not respond to various treatment interventions. There is no evidence to support that the worker’s pain ever fully resolved.
The worker’s chronic pain has impaired their earnings capacity and caused a marked life disruption. Regarding the concept of a “marked life disruption,” the policy states in part:
There must be a clear and distinct disruption to a worker's life, but there is no particular requirement for this disruption to be either major or minor. The disruption in the worker's personal, occupational, social, and home life must be consistent, though the degree of disruption in each need not be identical.
The presence of "and" in the statement "social, occupational, and home life" suggests that all 3 must be present. However, there is no requirement that all 3 aspects of a person's life must be disrupted to the same degree.
The worker’s occupational life has been disrupted by their pain. They have not been able to return to their pre-injury job duties. They only briefly worked in a limited capacity in the post-accident period.
The worker reports that their social activities are limited due to their pain. They state that they rarely go out. They are less active in the community. Some family members come to the worker’s home to visit, but they do not go visit them. They no longer participate in the same social activities as they did before the workplace accident.
The worker also states that the pain has disrupted their home life. They said that their marriage is strained. The worker reported going to counselling with their spouse. They feel that their pain has affected their relationship with their children. They are unable to complete household chores as they did before.
As each of the five criterion outlined under the policy are met, the worker is entitled to benefits for CPD. The worker is entitled to a Non-economic Loss (NEL) assessment. As the worker representative did not make any submissions regarding the MMR date for the CPD condition, this should be determined by Operations with the usual right of appeal. The worker is entitled to health care benefits related to this condition.
4. LOE Benefits
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers who experience a wage loss due to the work-related condition are entitled to loss of earnings (LOE) benefits. If a worker is unable to work due to their injury, or if they are unable to perform their regular job duties and no suitable work is available, LOE benefits are payable if the worker is cooperating in their medical rehabilitation and any work reintegration interventions.
I first must address the period from March 12, 2021 to April 6, 2021 for which LOE benefits were not paid. The worker was paid full LOE benefits for the year prior to this period. On February 25, 2021, the CM informed the worker that their compensable injuries had fully resolved. Their LOE benefits were extended beyond the MMR date and then closed effective March 12, 2021.
Subsequent to this decision, the worker participated in further treatment for their injury. Trigger point injections were administered to the worker’s low back on May 3, 2021. It was accepted that the worker would be temporarily totally disabled for a period following this treatment. LOE benefits were approved for the period from April 6, 2021 to June 29, 2021, as per correspondence dated August 11, 2021. Benefits were approved for four weeks prior to the treatment as this was reportedly when the worker decided to proceed with the injections. The MMR date was adjusted to June 29, 2021.
The worker’s LOE benefits were further extended on November 19, 2021. The CM explained that as the worker was not told that their LOE benefits would cease as of June 29, 2021 until August 11, 2021, their LOE benefits should be extended to August 10, 2021. Note that the worker was not informed about the allowance of the LOE benefits from April 6, 2021 until June 29, 2021. There is no provision in the policy to pay LOE benefits beyond the date the worker’s compensable injuries were determined to have resolved.
There is no reason not to pay LOE benefits for the period from March 12, 2021 to April 6, 2021. LOE benefits should be paid for this period given my decision to grant entitlement to benefits for CPD. However, even without this change in the worker’s entitlement, if it was accepted that they remained disabled from their compensable injuries to June 29, 2021, and there was no suitable work available to the worker, they remained entitled to ongoing LOE benefits from March 12, 2021.
Therefore, LOE benefits for the period from March 12, 2021 to April 6, 2021 are in order.
The worker’s entitlement to further LOE benefits beyond August 11, 2021 is to be determined by Operations noting my decision to allow entitlement to benefits for CPD. The worker’s level of impairment must be determined. They should be asked about any efforts they have made to mitigate their wage loss since this date. Work reintegration services may be offered to the worker if required.
CONCLUSION
The worker does not have a permanent impairment as a result of their compensable right knee injury.
The worker does not have a permanent impairment as a result of their compensable low back injury.
The worker is entitled to benefits for a non-organic condition under the policy for CPD. They are granted a NEL assessment. The nature and duration of further benefits is to be determined by Operations.
The worker is entitled to full LOE benefits from March 12, 2021 to April 6, 2021. The rate and duration of LOE benefits beyond August 11, 2021 is to be determined by Operations.
The objection is allowed in part.
DATED March 6, 2023
C. Marr
Appeals Resolution Officer
Appeals Services Division