DECISION NUMBER:

20230079

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

REPRESENTED by:

NONE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

H. MOHAMED, APPEALS RESOLUTION OFFICER

JUNE 6, 2023

ISSUES

The worker representative (WR), on behalf of the worker, objects to the Eligibility Adjudicator’s (EA) decision dated March 11, 2022, and reconsideration decision dated January 5, 2023, which denied initial entitlement to a low back injury both on its own merits as well as on an aggravation basis.

BACKGROUND

A WSIB claim was registered on June 5, 2018, when the worker’s family physician submitted a Health Professional’s Report (Form 8) dated May 30, 2018, indicating that the worker, who was employed as a millwright, had sustained a gluteal and hamstring strain while pushing a heavy crate at work. The accident date was documented as April 25, 2018.

On January 8, 2019, the worker submitted a Worker’s Report of Injury (Form 6) indicating that they had injured their lower back while moving the Main Steam Inlet valves with two other colleagues. The worker indicated the valves weighed between 4000-4500 lbs. The worker documented they did return to work following the injury but they was subsequently laid off shortly thereafter. The worker indicated they now required low back surgery because of this injury.

The worker’s claim was initially denied on the basis that the worker had not met the six-month time limit to claim benefits. However, an Appeals Resolution Officer (ARO) decision dated January 15, 2022, granted an extension to the time limit and directed the Operating Area to render a decision on the merits.

Following the ARO decision, the Operating Area obtained the worker’s medical records and noted that the worker had a significant low back condition that pre-dated the workplace injury. It was noted the worker had undergone disc decompression surgery at the L4-L5 level in 2016.

The claim was subsequently referred to a Medical Consultant (MC), who opined that there was no evidence to support that the worker’s pre-existing condition was worsened by the workplace accident and that the worker’s ongoing low back symptoms were likely a progression of degenerative changes that were unrelated to the workplace injury.

In a decision dated March 11, 2022, the EA allowed the worker’s claim for a right gluteal and hamstring strain as per the initial Form 8. However, based on the MC opinion, the EA denied entitlement to a low back injury as well as any radiating symptoms. In a subsequent decision dated January 5, 2023, the EA denied entitlement to a low back injury on an aggravation basis. The WR has objected to both of these decisions.

Accordingly, the only issue I need to determine in this appeal is whether the worker has initial entitlement to a low back injury under this claim.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

November 3, 2008

15-02-04 Aggravation Basis

November 3, 2014

18-03-02 Payment and Reviewing LOE Benefits

January 2, 2018

ANALYSIS

For the reasons that follow, I find the worker has entitlement to right L5 radiculopathy on an aggravation basis. However, I find the aggravation ceased by October 4, 2018. In reaching this decision, I have considered the claim file, the submissions provided by the WR, as well as the relevant operational policies.

In her submission dated March 5, 2023, the WR submits that the initial diagnosis of gluteal and hamstring strain was simply a provisional diagnosis based on the location of the worker’s pain and the described symptoms. This diagnosis was likely incorrect given that the subsequent MRI confirmed a disc herniation with L5 nerve root impingement. The worker was subsequently seen by Dr. Siddiqui who confirmed that the worker had been doing fairly well since their previous low back surgery in 2016 until the workplace accident of April 2018. Dr. Siddiqui confirmed the worker had an L5-S1 disc herniation that was affecting the exiting L5 nerve root. Prior to this accident, the worker had been able to work full duties in a fairly heavy industry working 50 hours a week. Following the injury, the worker was barely able to walk and was in extreme pain. Accordingly, the workplace accident of April 25, 2018, was a significant contributing factor. Dr. Sohanpal, who had been treating the worker’s chronic low back pain prior to the workplace accident, confirmed that a repeat MRI showed further injury to the discs causing herniation resulting in the radicular pain. He opined that the injury sustained on April 25, 2018, was the cause of this new injury. The WR submits that the MC opinion should be given little weight because the MC was never asked to comment on whether the workplace injury could have caused an aggravation of the worker’s pre-existing low back condition. Instead, the MC was asked to comment on whether the low back condition was worsened due to the right hip injury. The WR submits there was never a right hip injury and that this was simply a misdiagnosis. Accordingly, the WR requests that entitlement to a low back disc herniation be accepted under this claim as a direct result of the April 25, 2018 accident.

Alternatively, the WR requested entitlement be accepted on an aggravation basis of a pre-existing condition.

The employer is not participating in this appeal and provided no submissions for my consideration.

Pre-accident medical review

There is no dispute the worker has a significant pre-existing low back condition that was symptomatic in the weeks and months prior to the workplace accident. An MRI from 2014 revealed multilevel degenerative disc disease (DDD) with severe desiccation of the disc at the L4-L5 level along with a moderate sized posterior disc bulge resulting in severe central canal stenosis and moderate right lateral recess stenosis. The case record confirms the worker underwent an L4-L5 lumbar decompression and fusion surgery on September 2, 2016. A CT scan from 2017 confirmed that the worker had L5-S1 disc space narrowing with vacuum disc phenomenon, mild facet narrowing, no disc herniation, no spinal canal stenosis, and mild bilateral neural foraminal stenosis.

The clinical records confirm the worker was seen on November 23, 2017 (five months prior to the workplace accident). The entry documented the worker had recently moved from Province X. The worker had back surgery in September 2016, when they were hit by a truck and had to be on life-support for one week. The worker reported they feel their “legs go on fire” and that the worker had an appointment with a pain specialist. The worker reported working in construction and having to do regular heavy lifting. The worker was questioning whether it was possible to see a specialist for spinal injections in City A. The worker was also getting cortisone shots in the elbow and wrist and there was also mention of a right shoulder issue.

Just a few weeks before the work injury, on April 9, 2018, the worker underwent an EMG assessment to reassess right L5 radiculopathy. The EMG Intake Form completed by Dr. Lacerte noted the worker reported ongoing pain in the S1 region, bilateral with right gluteal and lower extremity symptoms. The report noted the worker had been previously seen by Dr. Phillips and was receiving pain management treatment with Dr. Sophanpal (the worker’s next appointment was scheduled for April 30, 2018). The worker was given a steroid injection in their lower back. The EMG study itself revealed both chronic and active right L5 radiculopathy, and it was noted that these findings were not significantly different from the worker’s previous assessment.

Post-accident medical review

The workplace accident occurred on April 25, 2018. According to the Form 6, the worker reported they were pushing a heavy box with the assistance of two coworkers when they felt pain in the lower back region. However, the worker did not seek immediate medical attention and continued to perform their full regular job duties.

According to the clinical notes, the worker was seen by Dr. Dadmarzi on May 2, 2018 and complained that they strained their right cheek muscle while pushing a heavy cart. The worker was diagnosed with a muscle sprain. The worker was seen again on May 8, 2018 and reported right buttock pain for approximately one week that was getting worse. This entry indicated that this started after heavy lifting and that the pain was radiating down the lateral right leg up to the feet. Dr. Dadmarzi noted that on examination there was some tenderness on the right buttocks but no increased tenderness in the lumbar spine compared to baseline. It was noted the worker’s low back range of motion (ROM) was normal and that straight leg raising (SLR) test was negative bilaterally. Dr. Dadmarzi provided a diagnosis of right sciatica and recommended ice/heat, Naproxen, as well as Cyclobenzaprine.

The worker saw Dr. Lacerte again on May 14, 2018, and steroid injections were administered in the lower back. Dr. Lacerte documented the worker had been given a right L5-S1 transforaminal epidural steroid injection and a right sacroiliac (SI) joint injection on April 30, 2018, but a few days after this the worker

was pushing a box on a cart and started experiencing some pain going down the right lower extremity into their calf. This report suggests the workplace accident occurred after April 30, 2018.

In her clinical entry dated May 24, 2018, Dr. Dadmarzi documented the worker continued to report right buttock pain for 2.5 weeks. The worker now said that this started after pushing a heavy box around 4000 lbs when they felt pain in their right buttock. The worker reported the pain had been constant and severe and radiated down the right lower extremity up to the foot. The worker had been seen at a pain clinic and was taking morphine as well as Percocet regularly with no effect. Dr. Dadmarzi now indicated that there was some limitations in back ROM and SLR was now positive on the right side. The diagnosis remained right sciatica and the worker was referred for an MRI.

I note the worker was permanently laid off on May 24, 2018, due to a shortage of work. It appears the worker was able to work until that date.

The MRI dated June 25, 2018, confirmed multilevel DDD as well as nerve encroachment of the left L3, L4 and L5 roots. There was also severe encroachment of the right L5 nerve root with mild encroachment of the right L4 nerve root. There was severe disc space narrowing with diffuse disc bulging and endplate osteophyte formations at the L4-L5 and L5-S1 levels.

Dr. Siddiqui, neurosurgeon, saw the worker and August 1, 2018. Dr. Siddiqui noted the worker underwent an L4-5 decompression and stabilization surgery in 2016. The worker said they were doing well up until 2-3 months ago when they were pushing an object at work and began to experience a new onset of predominantly right leg discomfort and a fairly prototypical L5 distribution. An EMG study demonstrated an active radiculopathy. While this had improved, it was still persistent. The examination was essentially normal and SLR test was negative. Dr. Siddiqui reviewed the MRI scan and confirmed that there was an L5-S1 foraminal disc herniation affecting the exiting L5 nerve root.

Subsequent clinical entries in 2018 indicate the worker continued to report back pain and they were trying to look for employment that was less physical. The entry dated October 4, 2018, noted that the worker reported a 25% improvement in back pain since the previous month. The worker reported they were taking gabapentin and said there was no more radiating pain down the leg. However, the worker rated the low back pain at 7-8/10. The worker was diagnosed with chronic low back pain and it was noted they continued to take opioid medication.

In her last clinical entry dated February 25, 2019, Dr. Dadmarzi noted the worker continued to report that their low back was very sore. The worker had been performing exercises as recommended by the surgeon and they were attending a gym. The worker was attending physiotherapy once a month, chiropractic treatment three times a week, and said that the pain had improved by 25%. The worker continued report constant low back pain with radiation down the right leg into the buttocks. The worker was taking 30 mg of morphine twice a day and was also getting cortisone injections and lidocaine once a week. There was no weakness in the lower extremities and the worker reported walking on a treadmill for up to 25 minutes. On examination, there were some deficits in range of motion and there was also some tenderness in the lumbar spine. Dr. Dadmarzi diagnosed chronic back pain, and prescribed the worker three months of morphine. A referral was sent to the worker’s previous surgeon Dr. Henderson who had performed the worker’s surgery in 2016.

Dr. Dadmarzi’s letter dated April 24, 2019, noted the worker was suffering from chronic low back pain since May 2018 along with intermittent radiating pain down the right leg. The worker reported feeling numbness and tingling in the lower back. On examination, the worker had tenderness in the lumbar

spine around the L4-L5 area as well as tenderness on the right mid-buttock close to the sciatic nerve. Motor a neurological examination however were normal.

In his letter dated July 25, 2022, Dr. Sohanpal confirms the worker has been a long standing patient whom they have treated for chronic low back pain as well as radicular pain following the 2016 low back surgery. Dr. Sohanpal indicates the worker was able to return to work with radiofrequency ablation and epidural for radicular pain. Overall, the worker’s pain was reasonably well managed. However, the worker sustained a workplace injury when they were moving a heavy valve “which fell on him and caused further injury.” The repeat MRI showed there was further injury to the discs causing herniation which accounted for the radicular pain. With therapy such as radiofrequency ablation and epidurals as well as medication management pain was improved but not to the same extent as it was prior to this incident. As such, Dr. Sohanpal felt that the injury of April 25, 2018, was the direct cause of the worker’s ongoing impairment and radicular symptoms, which likely exacerbated the worker’s underlying degenerative disc disease and disc herniation.

Discussion and Reasoning

Policy 11-01-01 (Adjudicative Process), states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of accident and compatibility of the diagnosis to the accident or disablement history.

The Operating Area has accepted that the worker sustained a workplace injury on April 25, 2018 while pushing a crate with a steam Inlet. Based on the Form 8, the accepted diagnosis is right gluteal and hamstring strain. However, I agree with the WR that this was likely a misdiagnosis based on the worker’s presentation at the emergency clinic. Since no other healthcare practitioner mentioned this diagnosis, I find the worker likely did not injure the gluteal area or hamstring. Based on the clinical records provided by Dr. Dadmarzi, the injury was an exacerbation of the worker’s underlying symptomatic low back condition. Specifically, Dr. Dadmarzi provided a diagnosis of right sciatica. According to medical literature, sciatica is commonly caused by compression of one of the nerve roots that make up the sciatic nerve, usually the last lumbar nerve root L5 or the first sacral nerve root S1 as they exit the spine. When the L5 nerve root is compressed the pain and numbness generally runs down the outside of the leg and onto the top of the foot. Dr. Siddiqui confirmed that the worker had an active L5 radiculopathy caused by a disc herniation. Accordingly, I find right sided L5 radiculopathy is the more appropriate diagnosis in this case as opposed to gluteal and hamstring strain.

However, I am not convinced that any of the findings identified on the June 25, 2018 MRI were caused by the workplace accident. There is no medical report or opinion that directly relates any of the MRI findings to the mechanism of injury described by the worker. Dr. Siddiqui concluded the worker had a disc herniation at the L5-S1 level. While the MRI report did not identify a disc herniation at this level, it is possible that Dr. Siddiqui had the benefit of reviewing the MRI image as opposed to just reviewing the report. As such, I accept the worker likely has a disc herniation at this level. Nevertheless, there is no compelling evidence to support this disc herniation was caused by the mechanism of injury described by the worker. Given the fact that the EMG, which confirmed the active L5 radiculopathy, pre-dated the workplace accident, and noting the Dr. Siddiqui did not say that the herniation was caused by the work injury, I find the disc herniation at the L5-S1 level likely also pre-dated the workplace accident. I cannot place much weight on Dr. Sohanpal’s opinion on causation given that he was under the (incorrect) impression that a heavy valve “fell” on the worker. In stead, I prefer the opinion of the MC who concluded that all the findings identified on the MRI were pre-existing. In the absence of any opinion to

the contrary, I find there is no entitlement to a disc herniation at the L5-S1 level. However, I am prepared to accept that the work accident exacerbated the worker’s right-sided L5 radiculopathy.

Policy 15-02-04 (Aggravation Basis) notes that in cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. The policy states that decision-makers should first determine entitlement in the claim and that entitlement is not limited if there is no evidence of a pre- accident impairment. The policy defines a “pre-accident impairment” and a “minor” accident as follows:

A minor accident is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury/illness.

A Pre-accident impairment is a condition that has produced periods of impairment/disease requiring health care and has caused a disruption in employment (lost time and/or modified work). Although the period of time cannot be defined, the decision-maker may use a one to two year timeframe as a guide.

In order for a claim to be allowed on an aggravation basis, therefore, two conditions have to be met once entitlement has been accepted – a minor injury and a pre-accident impairment. The policy provides very clear definitions for both these terms.

In my view, pushing a heavy crate with two-coworkers would not be expected to cause anything more than a non-disabling or minor disabling injury in an average person. Accordingly, I am satisfied that the accident would be classified as minor. I am also satisfied that the worker had a pre-accident impairment given that they underwent surgery in September 2016 - approximately 18 months prior to the workplace accident. The worker’s employment was clearly disrupted as a result of undergoing this procedure, and therefore, the definition of a pre-accident impairment has been met. Accordingly, I find the worker has entitlement to right L5 radiculopathy on an aggravation basis.

However, Policy 15-02-04 also states that when entitlement is granted on an aggravation basis, it is limited for the acute episode only and benefits continue until the worker returns to the pre-accident state.

The evidence in this case supports that the worker was symptomatic prior to the workplace injury. The worker was seeing a pain specialist for their chronic low back condition and was receiving injections in order to maintain their level of function and mobility. Five months prior to the workplace injury, the worker reported to the family physician that they felt that their “legs go on fire” and they were requesting to see a specialist for spinal injections in City A. An EMG study just a few weeks before the workplace accident confirmed both a chronic and active right L5 radiculopathy. Dr. Lacerte remarked that the worker reported ongoing pain in the S1 region, bilateral with right gluteal and lower extremity symptoms.

Post-accident, the worker’s symptoms were almost identical to what they had reported to Dr. Lacerte on April 9, 2018. The only difference was that the severity of pain was far greater than what the worker reported previously. Consequently, I accept that while the L5 radiculopathy was already present and active at the time of the accident, the workplace incident exacerbated the radiculopathy resulting in an increase in pain. However, I find that by October 2018, the aggravation caused by the work-related injury had ceased and the worker had returned to their pre-accident state. Dr. Dadmarzi’s clinical entry dated October 4, 2018, noted the worker had reported a 25% improvement in back pain and also reported that radiating pain down the leg had resolved. By February 2019, the clinical entry indicated the worker was able to walk up to 25 minutes on a treadmill and that there were no lower extremity symptoms or

weakness. Accordingly, I find the worker reached their pre-accident state by October 4, 2018, with no ongoing work-related impairment beyond this date.

With regards to benefits flowing from this decision, I note the worker was laid off from their employment on May 24, 2018. The employer confirmed the layoff was due to a shortage of work. I note the worker’s family physician provided a medical note also dated May 24, 2018, indicating that the worker was to avoid heavy lifting, twisting and bending, as well as prolonged standing and ladder climbing. It is unclear whether the worker was laid off before or after they obtained this note.

In determining entitlement to Loss of Earnings (LOE) benefits, I am guided by Policy 18-03-02 (Payment and Reviewing LOE Benefits. The policy states, in part, that if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the Return to Work (RTW) process.

Given the restrictions identified in the May 24, 2018 medical note, it is unlikely the worker would have been able to return to work as a millwright with any other construction company. As such, I find the worker is entitled to full LOE benefits from May 24, 2018 until October 4, 2018, when they returned to their pre-accident state (minus any other income or benefits the worker received during this period).

CONCLUSION

Based on the foregoing reasons, I conclude:

1. The worker has entitlement to right L5 radiculopathy on an aggravation basis. There is no entitlement to any of the findings identified on the June 2018 MRI report including an L5-S1 disc herniation.

2. The aggravation ceased by October 4, 2018, when the worker returned to their pre-accident state.

3. The worker is entitled to full LOE benefits from May 24, 2018 – October 4, 2018, minus any benefits or earnings received during this period.

The worker’s appeal is allowed in part.

DATED June 6, 2023

Mr. H. Mohamed

Appeals Resolution Officer Appeals Services Division