APPEALS RESOLUTION OFFICER DECISION
decision number:
20230062
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATVE
RESPONDENT:
employer (not participating)
REPRESENTED by:
N/A
HEARING:
HEARING IN WRITING
HEARD by: DATED:
J.L. Hughson, appeals resolution officer MARCH 2, 2023
ISSUES
The worker is objecting to the Case Manager’s (CM) decision dated May 19, 2021, which denied the worker’s entitlement to benefits from March 3, 2021, as a result of a recurrence.
BACKGROUND
On November 21, 2020, this Electrician sustained a lower back injury when they reached in to start up their van without sitting in the seat. They reported their injury, sought medical treatment, and began to lose time from work on November 23, 2020. The worker returned to work on November 30, 2020, performing modified duties, and began physiotherapy treatment on November 24, 2020. They attended their last physiotherapy appointment on December 2, 2020.
On March 3, 2021, the worker reported to their employer that their lower back pain had returned. The worker took a previously-scheduled vacation from March 15 to 29, 2021, and began to lose time from work on March 30, 2021. On April 1, 2021, the worker’s claim was allowed for initial entitlement to benefits for their lower back injury.
In their decision dated May 19, 2021, the CM denied the worker’s entitlement to a recurrence on March 3, 2021, as they were unable to establish continuity between the original workplace injury and the recurrence.
The worker objects to the decision dated May 19, 2021, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
15-02-05 Recurrences
April 9, 2021
The above-noted policy version was in effect as of the date of the decision under appeal.
ANALYSIS
I find the worker is entitled to health care benefits as a result of the recurrence on March 3, 2021, for their left posterolateral disc herniation at L5-S1. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the worker’s representative (WR) contended that the worker’s recurrence in March 2021 should be allowed for entitlement to benefits as the medical information shows continuity from the time of the original injury to the recurrence.
The employer did not indicate they would participate in this appeal, and did not provide a submission on this issue. However, I have considered all prior submissions made by the employer.
Policy 15-02-05, Recurrences, states in part that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:
- does not result from a significant new incident/exposure, and
- is clinically compatible with the original injury/disease.
Is there a significant deterioration?
Policy 15-02-05, Recurrences states in part that the term significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. Indicators of a significant deterioration may include:
- the need for active (non-maintenance) clinical treatment
- a change in functional abilities, or
- a change in the ability to perform a job or suitable occupation.
I find the worker experienced a significant deterioration in their lower back condition as of March 3, 2021. The worker attended their last physiotherapy appointment on December 2, 2020. From that date, they did not seek medical assistance for their lower back until March 15, 2021. At this time, the family doctor stated in their notes that the worker had a recurrence of their lower back pain that was worse than before, with radiating pain in their knee and leg. The family doctor also recommended that the worker have an MRI completed to investigate their symptoms further. Following this, the worker began treatment again as well as massage therapy, as indicated in the family doctor’s chart notes dated March 23, 2021. Additionally, the worker’s functional abilities changed. As noted in the Health Professional’s Report (Form 8) dated March 23, 2021, the worker was unable to bend, twist, or lift. As the worker again required active treatment, with a change in their functional abilities, I find there was a significant deterioration as defined in policy 15-02-05.
Was there a significant new incident?
Policy 15-02-05, Recurrences, defines a significant new incident/exposure as one of some consequence or importance (e.g., falling from a ladder). An insignificant new incident/exposure is one of negligible consequence or importance (e.g., reaching for an object on a shelf).
The employer did not identify a significant new incident in their correspondence to file. As described in the memo dated April 19, 2021, the worker stated they could not remember anything specific, but noted they were getting in and out of the car a lot, and the cold weather may have contributed. In the memo dated May 5, 2021, the worker provided more detail, stating that their back pain flared up from time to time, and in March they were working at a new location which required a lot of bending in the basement and tunnel, with a lot of walking and getting in and out of their car. Given the above, I find there was no significant new incident.
Is the significant deterioration clinically compatible with the original injury?
Policy 15-02-05, Recurrences, states in part that in order to establish that the significant deterioration is clinically compatible with the original injury/disease, the WSIB must determine that:
- the body parts and/or functions affected now are the same as, or related to, those affected by the original injury/disease, and
- there is a causal link between the significant deterioration and the original injury/disease.
Same area of injury
The medical information supports that the area of injury as of March 3, 2021, is the same as that of November 21, 2020. The MRI requisition, dated March 15, 2021, confirmed that the area for study was the lower back. This is also confirmed in the Form 8, dated March 23, 2021, and the Functional Abilities Form (FAF) dated May 3, 2021.
Causal link
In establishing a causal link, policy 15-02-05, Recurrences, states in part that the WSIB may also consider whether a worker has experienced continuing symptoms since the original injury/disease. Generally, continuing symptoms are an indicator of a causal link, though they are not required to establish a causal link. Indicators of continuing symptoms may include:
- continuing clinical treatment
- continuing workplace accommodations, or
- evidence that continuing symptoms were reported to health care providers, supervisors or co-workers on an ongoing basis.
In the CM’s decision dated May 19, 2021, they determined that there was no continuity between the original date of injury and March 3, 2021. I disagree. The WR provided witness statements from three of the worker’s colleagues, which each supported that the worker had told them about ongoing lower back issues from December 2020 to March 2021. Additionally, the worker stated they required workplace accommodation, as provided a written statement dated July 18, 2022, which stated in part,
Between December 2020 to March 2021, I continued to work on a reduced workload and did not perform work that involved climbing on a ladder. I did not resume my regular pre-injury duties or workload. I mostly performed light maintenance and inspection type work.
In support of this statement, the worker provided timesheets from this period which indicated that the worker was primarily conducting inspection and testing type work. While these timesheets may indicate the type of work performed, they do not confirm the job tasks performed. Further, the worker indicated in the Worker’s Report of Injury (Form 6), dated April 19, 2021, that they had returned to their “full regular duties” as of December 7, 2020. Additionally, the employer indicated in multiple documents, including in the Employer’s Report of Injury (Form 7), dated March 26, 2021, that the worker performed their regular job tasks from December 7, 2020, until March 15, 2021, when they went on a previously-scheduled vacation. Based upon the available information, I find that the worker self-accommodated their regular job duties from December 2020 until the recurrence on March 3, 2021. Although the worker originally indicated in their Form 6 that they had returned to regular duties, the WR clarified in their submission that the worker had self-accommodated their regular job duties, and this is not otherwise disputed on file.
Given there is evidence that the worker reported ongoing symptoms to co-workers, and self-accommodated their job tasks, I find there is a causal link between the significant deterioration and the original injury, as required in policy 15-02-05.
Diagnosis
The MRI results, dated May 27, 2021, indicated the worker had a left posterolateral disc herniation at L5-S1. The family doctor’s chart notes, dated June 3, 2021, stated the worker had a disc herniation, with no other pathology. In the physiotherapist’s report, dated May 26, 2022, the physiotherapist noted that
It is quite possible that a disk injury was present at the time of the initial injury. In the case of a low back strain, one month of rehabilitation is not enough to make sure that the patient will be at a stage where other injuries can be prevented. A disk injury could be the result of weakness caused by the first injury.
Although this report was completed by a physiotherapist who did not see the worker at the time of the recurrence, as their report indicates they began treating the worker on April 4, 2022, I accept the physiotherapist’s opinion on the progression of the worker’s lower back condition. Further, there is no indication of any other event, work-related or otherwise, which contributed to the diagnosis of disc herniation. Given the family doctor accepted the cause of the worker’s lower back symptoms at the time of the recurrence as a disc herniation, as identified in the MRI dated May 27, 2021, and a physiotherapist who later treated the worker supported that the disc injury was likely related to the original workplace injury, I find that the diagnosis of left posterolateral disc herniation at L5-S1 is clinically compatible with the original workplace injury, and developed as a direct result of the original workplace injury of November 21, 2020.
Summary
As the criteria within policy 15-02-05, Recurrences, have been met, I am allowing the worker’s entitlement to health care benefits as a result of the recurrence on March 3, 2021, for their left posterolateral disc herniation at L5-S1.
I leave a decision regarding the worker’s entitlement to LOE benefits from March 30, 2021, to the operating area to determine, once additional information is gathered regarding the availability and suitability of modified work.
CONCLUSION
The worker’s objection is allowed. The worker is entitled to health care benefits as a result of the recurrence of March 3, 2021, for their left posterolateral disc herniation at L5-S1.
I leave the nature and extent of benefits to the operating area to determine.
DATED March 2, 2023
J.L. Hughson
Appeals Resolution Officer
Appeals Services Division