Employer v. Worker, 2023 CanLII 34289

20230047

REPRESENTED by:

HEARD by:

DATED:

FEBRUARY 21, 2023

ISSUE

The employer, through their representative, is objecting to the Eligibility Adjudicator’s decision dated

May 16, 2022 (and reconsideration of January 3, 2023) authorizing secondary entitlement to a lower back strain/sprain injury with full loss of earnings (LOE) benefits from April 28, 2022 to May 15, 2022.

BACKGROUND

On April 11, 2022, the worker was in the course of their employment when they stepped off a platform onto an angle iron, rolling their right ankle. The employer offered modified duties on April 12, 2022. The employer representative’s correspondence of April 13, 2022 confirmed the employer’s ability to offer taxi services, onsite shuttle service, and support by the Health Centre in recovery. The letter confirms the availability of sedentary duties with the option for self-paced work with ability to change positions. On April 14, 2022, entitlement was accepted for a sprain/strain of the right foot which was subsequently expanded to include a fracture.

The worker performed modified duties from April 18, 2022 to April 27, 2022 at no wage loss. Lost time resumed on April 28, 2022. The worker sought medical attention for lower back pain on April 28, 2022 and May 2, 2022. A chiropractor diagnosed right-sided joint dysfunction on May 4, 2022. On May 13, 2022, the chiropractor provided a diagnosis of an acute right lower back strain associated with the right foot being in an air cast.

The worker returned to modified duties on May 16, 2022. The Eligibility Adjudicator’s decision letter of May 16, 2022 accepted that the worker developed back pain from using crutches and the air cast associated with the right foot fracture. The decision letter determined that the modified duties were no longer suitable as of April 28, 2022 given the new low back restrictions of limited walking, sitting, and standing. The worker was advised on May 18, 2022 to wean off the crutches and air cast boot. A Case Manager’s decision letter dated August 8, 2022 determined that maximum medical recovery was reached on July 25, 2022 with no permanent impairment. The Appeal Readiness Form of December 6, 2022 requested that the employer’s objection to the allowance of secondary entitlement was to be resolved as a hearing in writing. The issue is now before me.

AUTHORITY

Operational Policy Manual

Published

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

15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances

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

April 9, 2021

September 1, 2021

ANALYSIS

I find that secondary entitlement for the low back is not appropriate. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Employer representative’s position

The employer representative argues that the evidence does not support there being a secondary injury. Briefly, the employer representative submits that there is no objective clinical testing to support the diagnosis. It is presented that there is no evidence of any awkward gait to provide a mechanism of injury or any medical literature to support that such a diagnosis can result from three weeks of using crutches.

The written submission of December 6, 2022 maintains that the worker had been performing suitable accommodated duties on April 18, 2022 prior to being diagnosed with non-work-related back problems on April 28, 2022. Based on this view, the argument is made that neither secondary entitlement nor LOE benefits from April 28, 2022 are in order. As an alternative argument, the employer representative suggests that the medical evidence from May 2, 2022 does not preclude the worker from having the ability to participate in suitable alternative employment.

Is secondary entitlement in order for the lower back?

In my opinion, the necessary criteria for secondary entitlement to either a lower back strain/sprain or joint dysfunction are not met.

Policy 15-05-01, Resulting from Work-Related Disability/Impairment, outlines that benefits are only payable if it is established that the secondary conditions are causally linked (or related) to the

work-related injury. Policy provides the authority to consider secondary entitlement if the injury results from a malfunction of an artificial appliance, including wheelchair malfunction. Policy 15-05-01 also provides the example of the development of a left knee impairment due to an increased dependency following a work-related right knee injury.

There is general agreement that the modified duties the worker performed from April 18, 2022 to

April 27, 2022 were sedentary. The job description for the X Centre Administrator position contained in the case record states that the job does not involve lateral flexion, extension, or rotation of the back. Sitting and standing is self-directed. The employer representative’s letter of April 13, 2022 explains that the modified job involves sedentary duties with the option for self-paced work that permits changes in sitting and standing.

On April 28, 2022, the employer representative verbally confirms that the worker’s return to work on April 18, 2022 was completely off-line in the X Centre monitoring people who are learning tasks such as signing in. The employer representative states that the worker then informed the employer on April 28, 2022 that they were unable to work due to back pain caused by the crutches and the knee scooter they were using. I am aware that the doctor’s letter of April 28, 2022 documents significant back pain relating to using crutches and a knee scooter at work. Medical reporting from May 2, 2022 documents increasing thoracic (or mid-back) pain requiring medication. However, the chiropractor’s note

of May 4, 2022 recommends treatment of the lower back (not thoracic or mid-back) for issues associated with the air cast/crutches.

The worker’s verbal statement of May 12, 2022 indicates being unable to move due to back pain and having decreased mobility from using the knee scooter and crutches. According to the worker, there is a one kilometer walk from the security door to the work area and that some days there is no one to drive them. The worker explains that they purchased the knee scooter due to the walking requirement as the crutches were hurting them. Additionally, the worker indicates that sitting in a chair for eight hours is causing issues.

In contrast, the employer representative’s verbal statement of the same date states that it is approximately a three-minute walk from the front doors to the working area. The employer representative maintains that the worker could be dropped off at the door which would require a 100-metre walk to the working area. The employer representative’s verbal statement outlines that the worker was advised that security could drive them to the doors of the work area every day. Further, the employer representative explains that a wheelchair could have been brought to assist with the 100-metre walk had the worker informed the employer of their concern.

To summarize, I appreciate that the worker is claiming secondary entitlement due to the use of medical devices required for the work-related right foot injury. All the same, I accept that the modified duties were sedentary and provide the ability to change position as required. Policy 15-05-01’s example involves increased dependency on the opposite leg. In this case, I find that there is insufficient evidence to explain how the force and duration involved in using the crutches and air cast would cause a right-sided lower back injury. Therefore, it is my view that there is no evidence to explain how the use of crutches, air cast, or knee scooter results in a mechanism of injury involving the lower back.

Finally, I find that there is insufficient evidence to establish that the worker was required to travel long distances while using either the crutches or knee scooter that they purchased. I similarly find that there is no evidence of either device requiring significant lumbar flexion, extension, rotation, or twisting. As a result, I find that the policy criterion of a causal connection or link between the work-related right foot injury and the diagnosed low back strain/sprain and/or joint dysfunction is not met.

Loss of earnings benefits from April 28, 2022 to May 15, 2022 inclusive

I find that there can be no entitlement to LOE benefits from April 28, 2022 as there is no secondary entitlement to the lower back.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), requires the wage loss to be as a result of the work related injury. Full LOE benefits may be in order if the work-related injury prevents a return to any type of work. Policy 18-03-02 provides the authority for decision-makers to consider entitlement to partial LOE benefits in cases where the worker is able to return to some form of work but is unable to restore all of the pre-injury average earnings in suitable and available employment.

Policy 15-06-08, Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances, states that a worker’s status may change in ways that may not be related to the work-related injury, including a non-work-related physical condition or a deterioration of a pre-existing condition. Policy states that benefits may be adjusted to reflect the degree of the work-related impairment.

For the reasons outlined above, I do not accept that secondary entitlement is in order for the lower back.

Consequently, I view the lower back diagnosis of a strain/sprain injury and/or joint dysfunction as a non-work-related change in circumstance that occurs after the workplace injury and initial period of

modified duties. Accordingly, I find that the wage loss is not the result of the workplace injury. Therefore, it is my opinion that there is no basis under Policy 18-02-03 for payment of LOE benefits for the inclusive period from April 28, 2022 to May 15, 2022 given that worker had been performing the available modified duties at no wage loss prior to the onset of low back symptoms.

CONCLUSION

I conclude that secondary entitlement for a lower back strain/sprain injury and/or joint dysfunction is not in order.

There is no entitlement to loss of earnings (LOE) benefits for the inclusive period from April 28, 2022 to May 15, 2022.

The employer’s objection is allowed.

DATED February 21, 2023

K. MacMillan

Appeals Resolution Officer Appeals Services Division