DECISION NUMBER:

20230096

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by: DATED:

S. JOHNSON, APPEALS RESOLUTION OFFICER JUNE 5, 2023

ISSUE

The worker objects to the Case Manager’s decision letter dated February 5, 2020 that concluded the worker reached maximum medical recovery for their lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression on April 22, 2020 with no evidence of a functional impairment.

BACKGROUND

On April 26, 2019, this associate attempted to push a manual iron cart loaded with 120 empty totes when they experienced a sudden onset of lower back and right leg pain.

Initial entitlement was allowed for a lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression.

The worker participated in extensive medical treatment plans that included the Lower Back Injuries Program of Care physiotherapy treatment program from April 26, 2019 to June 22, 2019, the functional treatment program at the WSIB Back and Neck Specialty Program from July 18, 2019 to January 24, 2020 and the enhanced functional treatment program from January 3, 2020 to January 22, 2020. They also attended regular medical assessments at the Occupational Health Assessment Program (OHAP) and WSIB Back and Neck Specialty Program during the period from July 18, 2019 to January 22, 2020.

During the period from May 29, 2019 to April 20, 2020, the worker participated in a graduated return-to-work plan with the employer. On April 20, 2020, the worker returned to full duties.

In a decision letter dated February 5, 2020, the Case Manager concluded the worker reached maximum medical recovery for their lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression on April 22, 2020 with no evidence of a functional impairment.

This is the issue for determination.

AUTHORITY

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Maximum Medical Recovery Reached with no Functional Impairment

I find the worker reached maximum medical recovery on March 10, 2020 with evidence of a functional impairment arising from their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression.

The OPM Document No. 11-01-05 – Determining Permanent Impairment – states a work-related impairment is considered permanent when it continues to exist after maximum medical recovery has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery is reached.

This policy provides the following definitions:

Impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

Maximum Medical Recovery means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.

Permanent Impairment means impairment that continues to exist after the worker reaches maximum medical recovery.

In determining when maximum medical recovery is reached in all cases, the decision-maker considers whether:

• recent clinical evidence indicates any change in the work-related injury/disease,

• the worker is receiving or will receive treatment that is likely to improve the work-related injury/disease, or

• the worker is receiving treatment or using medication to maintain the current level of recovery.

Worker Representative Submission:

In a submission dated March 14, 2023, the worker representative submits the worker did not achieve a full functional recovery from their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression on April 22, 2020. In support of this position, the worker representative submitted a medical report dated June 2, 2022. In this report, the neurosurgeon documented the following:

• The worker is a patient known to their OHIP practice since November 19, 2020.

• The medical report is based on in-person medical assessments with the worker on November 19, 2020, January 18, 2021, October 4, 2021 and March 19, 2022 in conjunction with the medical brief.

• The occupational diagnosis is an L5-S1 disc herniation with chronic S1 lumbosacral radiculopathy affecting the right leg region. This is irreversible and continues to cause chronic right leg pain.

• Since the work incident of April 26, 2019, the worker continues to experience reduced tolerances with walking, standing, sitting, bending, pulling, pushing and lifting.

• They should avoid strenuous activities involving heavy lifting, pushing and pulling.

• They will find it challenging to sit for extended periods of time due to the chronic S1 lumbosacral radiculopathy.

• They had to take online preparatory classes for the bar exam as they found it difficult to sit for extended periods.

• They will experience chronic lower back and right leg pain.

• Treatment to control and manage symptoms include aqua fit therapy, occupational therapy, physiotherapy, massage therapy, acupuncture and chiropractic care without spinal adjustments. They also require personal training to strengthen and maintain the core and lower back muscles and to maintain mobility in the thoracic and hip flexors. This will reduce further stress on the lower back.

• Prognosis in the future is guarded and the worker’s chronic lower back pain with right leg symptoms will continue to have an adverse impact on activities of daily living, social and recreational activities, gainful employment and ongoing future care.

Attached to the neurosurgeon’s medical report was a copy of the EMG report dated September 15, 2021 that observed chronic large neurogenic motor units with reduced recruitment in the right S1 innervated muscles without active denervation, in keeping with a right-sided chronic S1 lumbosacral radiculopathy.

Employer Submission:

In a letter dated July 17, 2020, the employer was advised of the worker’s intention to appeal the decision letter dated February 5, 2020 at the Appeals Services Division. The employer was instructed to complete and return the Employer Participant Form to the WSIB within 30 days if they wish to participate in the Appeals Services Division process.

The Employer Participant Form was not completed and returned to the WSIB at the time the worker’s appeal was referred to me for my review and determination.

Findings:

In my examination of the totality of the medical evidence before me, I agree with the worker representative’s position this worker did not achieve a full functional recovery from their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression on April 22, 2020. In coming to this conclusion, I accord the greatest amount of weight to the WSIB Back and Neck Specialty Program reports dated January 22, 2020 and March 10, 2020 that documented the following:

• The occupational diagnosis remains an unresolved lumbar strain with right L5-S1 disc herniation and right leg radiculopathy without any nerve root compression.

• The worker will be considered at their maximum medical recovery date after they completed their return to full-time work hours.

• The worker requires XX visits to ensure they progress to full work hours safely and provide instruction on the home exercise program.

• Continue to ingest Gabapentin as prescribed for at least another two to four months for the right leg pain.

• No further consultations or diagnostics are required.

• The worker achieved a level of partial recovery and still not functioning at the required medium physical demands capacity level to perform their pre-injury work duties due to ongoing lower back and right foot pain.

• The worker is to contact the WSIB Service Delivery team if they require a follow-up reassessment.

• At the time of discharge from XX on March 10, 2020, the physiotherapist documented the worker was performing modified duties at the light physical demands capacity level at full-time work hours. Based on functional testing completed at this assessment, the worker was discharged with functional restrictions on walking, standing and sitting. An FAF was completed at this visit. The worker was instructed to continue with an independent home exercise program and work with return-to-work planning activities.

• In the FAF dated March 10, 2020, the physiotherapist documented the worker’s abilities are at a light physical demands capacity level with the following functional restrictions:

o walking and standing up to 30-40 minutes

o sitting up to 60 minutes

o utilize task rotation, micro-breaks and pacing

o lifting waist to floor up to 25 pounds on an occasional basis

o lifting waist to crown up to 20 pounds on an occasional basis

o front carrying up to 20 pounds on an occasional basis

In my view, there is nothing in the medical evidence from the orthopaedic surgeon and physiotherapist at the WSIB Back and Neck Specialty Program that suggests the worker achieved a full functional recovery beyond March 10, 2020. The functional restrictions were recommended to ensure the worker safely returns to a full work shift. The worker was also discharged with a recommended treatment program that included a home exercise program and medications to manage symptoms and limitations arising from their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression. Both the orthopaedic surgeon and physiotherapist at the WSIB Back and Neck Specialty Program did not express a medical opinion to suggest the worker’s lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression was fully resolved at the time they were discharged on March 10, 2022.

The clinical objective findings documented by the health professionals at the WSIB Back and Neck Specialty Program mirrors the clinical objective findings documented in the neurosurgeon’s medical report dated June 2, 2022 previously summarized on page three of this decision. I find this medical evidence supports the worker’s unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression has not resolved and is chronic. The worker’s functional limitations and tolerances have remained unchanged since 2020 and include avoid strenuous activities involving heavy lifting, pushing and pulling and sitting for extended periods of time. Treatment recommendations were made to assist with the worker’s ongoing management of chronic symptoms and to maintain their level of recovery. No further active medical treatment plans were recommended or required that would improve the worker’s unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression.

I accept the neurosurgeon’s medical report dated June 2, 2022 that unequivocally attributes the worker’s ongoing impairment to the work incident of April 26, 2019. The medical report is balanced, objective and based on an accurate understanding of the facts and circumstances that existed at each clinic appointment. The neurosurgeon had the opportunity to examine the diagnostic studies and obtained EMG studies that are consistent with the chronic right leg radiculopathy. The description, location and area of the worker’s pain and limitations have remained the same since the work incident of April 26, 2019. The worker continues to experience difficulties with walking, standing, sitting, bending, pulling, pushing and lifting.

The medical evidence is consistent with the worker’s evidence. In a telephone conference call with the worker, the worker representative and the employer on April 7, 2020, the Return-to-Work Specialist instructed the worker they were expected to return to full duties on April 20, 2020 as a full recovery was anticipated by April 22, 2020. The employer explained the process for the worker to pursue non-occupational benefits. The worker advised they have an appointment booked with their family doctor on April 12, 2020 to pursue non-occupational benefits due to their ongoing lower back impairment.

I acknowledge there is a slight gap in medical evidence from March 10, 2020 to November 19, 2020. Despite this gap, there is no dispute that, at some point in time after March 10, 2020, this worker was referred to the neurosurgeon for persistent symptoms arising from their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression. In reaching this finding, I relied upon the neurosurgeon’s medical report dated June 2, 2022 that documented the worker is a known patient through the OHIP practice since November 19, 2020 and continues to be seen in follow-up for their irreversible L5-S1 disc herniation with chronic S1 lumbosacral radiculopathy affecting the right leg region and causing chronic right leg pain.

There has been no medical or other evidence submitted to the case record to suggest the worker’s ongoing lower back impairment is due to something other than the work incident of April 26, 2019. In coming to this conclusion, I relied upon the case record that does not provide any evidence of substance to suggest the worker had a prior low back condition or impairment before the work incident of April 26, 2019. Since the work incident of April 26, 2019, the worker has continuously and consistently reported the same pain symptoms and experiences involving the lower back and right leg regions.

Based on the above, I find it reasonable to conclude on a balance of probabilities that the worker reached maximum medical recovery for their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression at the time they were discharged from the WSIB Back and Neck Specialty Program and XX Program on March 10, 2020 with evidence of a work-related impairment as the threshold criteria in the OPM Document No. 11-01-05 – Determining Permanent Impairment – have been established based on the following:

• The physical abnormality or loss is captured in the lumbar MRI report dated July 1, 2019 that observed a right paracentral disc protrusion at the L5-S1 level and in the EMG report dated September 15, 2021 that revealed chronic large neurogenic motor units with reduced recruitment in the right S1 innervated muscles without active denervation in keeping with a right-sided chronic S1 lumbosacral radiculopathy.

• The area, location and description of the worker’s symptoms have remained unchanged.

• The worker continues to experience difficulties with walking, standing, sitting, bending, pulling, pushing and lifting.

• No active medical treatment plans, specialist referrals, further tests and investigations were recommended or required to improve the work-related unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression at the time of discharge from the WSIB Back and Neck Specialty Program and XX Program on March 10, 2020.

• Treatment plans recommended beyond March 10, 2020 were to maintain the worker’s level of recovery, mobility and strength.

CONCLUSION

I conclude the worker reached maximum medical recovery on March 10, 2020 with evidence of a work-related permanent impairment arising from their unresolved lower back strain with right L5-S1 disc herniation and right leg radiculopathy without nerve root compression. The Case Manager is directed to refer the worker’s case to the Non-Economic Loss (NEL) Clinical Specialist to determine the degree of permanent impairment. The results of the NEL assessment are to be communicated to all workplace parties, in writing, subject to the usual right of appeal.

The worker’s objection is allowed.

DATED June 5, 2023

S. Johnson Appeals Resolution Officer Appeals Services Division