Worker v. Employer, 2023 CanLII 74857

Appeals Resolution Officer Decision

Decision Number: 20230088

Objecting Party: Worker Represented by: Worker Representative

Respondent: Employer Represented by: Self (not participating)

Hearing: Hearing in Writing Heard by: C. da Cunha, Appeals Resolution Officer Dated: July 20, 2023

Issues

The worker objects to the Case Managers’ (CM) decisions of March 17, 2023 and April 27, 2022. These decisions, respectively:

• Denied secondary entitlement to irritable bowel syndrome, with diarrhea (IBS-D); and, consequently,
• Denied entitlement to full loss of earnings (LOE) benefits from March 10, 2022 to August 10, 2022.

The worker seeks:

1. Secondary entitlement to IBS-D; and, consequently,
2. Entitlement to full LOE benefits from March 10, 2022 to August 10, 2022.

Background

On September 29, 2021, the worker slipped on a wet floor, falling and striking their head on the corner of a recycling container. They had worked with the employer as a Secondary School Teacher for almost 22 years at the time.

The WSIB granted initial entitlement to a concussion, a cervical strain, and multiple bruises to the upper and lower extremities. The worker did not return to work and the WSIB granted entitlement to full LOE benefits from September 30, 2021.

On January 18, 2022, the worker started attending treatment at the Neurology Specialty Program (NSP) of Hospital X. They subsequently developed explosive diarrhea and vomiting, which the NSP considered to be Covid-19-like symptomatology. On this basis, the NSP prohibited the worker from attending the program effective February 8, 2021.

The worker’s symptoms improved after changing their medication regimen and, on August 10, 2022, they returned to the NSP. Therefore, the WSIB reinstated their full LOE benefits effective that date.

On August 13, 2022, Dr. L.L. Win, Gastroenterologist, performed an endoscopy and colonoscopy on the worker. The worker consulted Dr. Win in follow-up on September 7, 2022. On that date, Dr. Win stated that the most likely diagnosis was IBS-D, and that it had likely come on due to a change in bowel sensitivity that can be associated with post-concussion stress or taking Cymbalta.

The Decisions under Appeal

On March 17, 2023, the CM denied secondary entitlement to the IBS-D. The CM found that the evidence showed that the IBS was a pre-existing condition. Furthermore, given that the worker was having Covid-19-like symptoms at the time of onset, the reported onset of the IBS-D occurred after taking magnesium, and the presence of pre-existing fibromyalgia, which is compatible with the onset of IBS, the CM stated that she was not able to relate the worker’s gastro-intestinal (GI) symptoms to the claim.

Another CM denied entitlement to full LOE benefits from March 10, 2022 to August 10, 2022 on April 27, 2022, finding that the worker’s inability to participate in treatment during this period was caused by a post-accident, non-work related change in circumstances.

The Worker’s Position

The worker representative argues that the medical evidence and expert medical opinion on record shows that, on a balance of probabilities, the consumption of Cymbalta and post-concussion stress were significant contributing factors to the onset of the IBS-D. Therefore, secondary entitlement to the same is in order.

Furthermore, as the worker was not able to attend the NSP because of this secondary condition, entitlement to full LOE benefits from March 10, 2022 to August 10, 2022 is also in order.

Authority

Section 43 of the Workplace Safety and Insurance Act, 1997 (WSIA)

Operational Policy Manual Published 15-05-01: Resulting from Work-Related Disability/Impairment April 9, 2021

Analysis

I have carefully considered all of the available information, relevant legislation, and appropriate operational policies in reaching this decision. Having done so, I find that:

1. Secondary entitlement to IBS-D is in order; and, consequently,
2. Entitlement to full LOE benefits from March 10, 2022 to August 20, 2022 is also in order.

Operational policy, 15-05-01, Resulting from Work-Related Disability, prescribes that entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability or impairment due to an increased dependency following a work-related injury to the right knee is an example of such a secondary condition.

Furthermore, section 43 of the WSIA prescribes that a worker who has a LOE because of the injury is entitled to payments beginning when the LOE begins.

The test for determining causation in WSIB claims is that of a significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.

The standard of proof applied is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”.

Therefore, in order to grant entitlement to LOE benefits from March 10, 2022 to August 10, 2022, the evidence must show that the use of Cymbalta and the post-concussion stress, on a balance of probabilities, were significant contributing factors to the onset of the IBS-D in early February 2022. This is, essentially, a medical question.

In reviewing the case file, I note the following:

• The worker had IBS in 1996. On the date of injury (DOI), the worker had pre-existing fibromyalgia, a sleep disorder, anxiety, and stress, and had consulted a Dietician with respect to suitable meal plans for someone with fibromyalgia. However, the evidence does not show that, prior to the DOI, the worker was symptomatic with IBS or GI symptoms. That is, the evidence does not show that the distant IBS present in 1996 was present on September 29, 2021;
• The worker consulted Dr. K. Xu on October 21, 2021, who recommended, in part, that they start taking magnesium to help with sleep, which had worsened following the concussion;
• The NSP assessed the worker on December 17, 2021 and December 22, 2021, and the worker started attending the program on January 18, 2022;
• On February 10, 2022, the worker informed Dr. F.A.T. AlRawi that, while they had a brief episode of diarrhea when they first started taking magnesium, they had been experiencing explosive diarrhea for about a week. Dr. AlRawi suspected that the diarrhea could be related to the transition from venlafaxine, which they had been on for seven years to treat the pre-existing sleep disorder, to Cymbalta, which the NSP recommended in order to help with both the headaches and sleep. Dr. AlRawi advised the worker to speak with their family doctor and Pharmacist about the issue and their medications. Dr. AlRawi also recommended that the worker stop taking the magnesium;
• While the NSP described the explosive diarrhea as a “covid-19-like” symptom, there is no evidence on record that the worker tested positive for a Covid-19 infection at that time;
• The NSP barred the worker from attending its program not because they had a Covid-19 infection but because they had Covid-19-like symptoms. In other words, consistent with the protocols in place at that time, the NSP, in order to protect its staff and patients, prohibited the worker from continuing to attend the program effective February 8, 2021;
• On April 1, 2022, the worker advised Dr. S. Nutt that they had experienced more diarrhea and vomiting overnight, after eating vegan cheese. The worker reported that the onset of the GI symptoms occurred when they started taking the Cymbalta. On this basis, Dr. Nutt recommended that the worker stop taking Cymbalta and return to the venlafaxine; and,
• The worker returned to the NSP on August 10, 2022, and underwent an endoscopy and colonoscopy with Dr. Win on August 13, 2022. On September 7, 2022, Dr. Win confirmed that the worker’s diarrhea was partially better, but that they still had two to four bowel movements per day. Upon reviewing and considering the investigative results, Dr. Win opined that the worker likely had developed IBS-D, which was likely caused by a change in bowel sensitivity that can be associated with post-concussion stress or taking Cymbalta. Noting Dr. Win’s area of expertise, I place a significant amount of evidentiary weight on their expert medical opinion. There is no contrary expert medical opinion of greater evidentiary weight on record.

While I acknowledge and appreciate that the evidence on record shows that the worker was, more likely than not, someone vulnerable to GI difficulties on the DOI, and that that vulnerability was, likely, a significant contributing factor in the development of the IBS-D, the facts and circumstances on record also lead me to find that the post-concussion syndrome and the resulting use of the Cymbalta, on a balance of probabilities, were significant contributing factors to the onset of the IBD-D in early February 2022. Therefore, secondary entitlement to the condition is in order.

Furthermore, as the worker was not able to participate in the NSP from March 10, 2022 to August 10, 2022 because of the IBS-D, I find that their wage loss during this period was caused by their work-related conditions because they followed the advice, demands, and protocols put in place at that time by the health care authorities. In other words, they met all their health care obligations in relation to their work-related conditions during this period. Therefore, entitlement to full LOE benefits from March 10, 2022 to August 10, 2022 is in order.

Conclusion

I find that:

1. Secondary entitlement to irritable bowel syndrome, with diarrhea, is in order; and, consequently,
2. Entitlement to full loss of earnings benefits from March 10, 2022 to August 20, 2022 is also in order.

The worker’s objections are, therefore, allowed.

DATED July 20, 2023.

C. da Cunha Appeals Resolution Officer Appeals Services Division