DECISION NUMBER:

20230107

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

H. MOHAMED, APPEALS RESOLUTION OFFICER

MAY 8, 2023

ISSUES

The worker representative (WR), on behalf of the worker, objects to the following decisions:

1. The Re-employment Case Manager (RECM) decision dated June 17, 2022, which determined the employer did not breach their re-employment obligation when they terminated the worker’s employment.

2. The Case Manager (CM) decision dated August 23, 2022, which determined the worker had fully recovered from their work-related neck injury by August 18, 2022, and that any ongoing neck issues, including the proposed neck surgery, were related to a pre-existing condition.

BACKGROUND

In early March 2021, this then 62-year-old control engineer had to perform labour intensive work over a one-week period that required using both arms to hammer drill holes in order to secure and fasten a new conveyor system at a customer site. The worker usually performed sedentary office duties and was unaccustomed to this type of labour-intensive work. The worker complained of left shoulder pain to their family physician on March 25, 2021, but did not specifically report a work-related injury at that time. The worker continued performing regular job duties and did not mention anything to their employer until

May 8, 2021. The employer indicated the worker did not report any injury to them until July 13, 2021, which prompted them to file a Workplace Safety and Insurance Board (WSIB) claim the same day.

On August 11, 2021, the worker’s family physician submitted a medical report indicating the worker was suffering from cervical and left upper extremity strain as well as degenerative disc disease (DDD). An MRI of the cervical spine revealed cervical spondylosis at multiple levels and some evidence of neuroforaminal impingement which was worse at the C3-C4 and C5-C6 levels. Imaging studies of the left shoulder revealed acromioclavicular (AC) arthrosis as well as chronic tendinopathy.

While the claim was initially denied on the basis that proof of accident could not be confirmed, entitlement to a left shoulder and neck strain injury was accepted on reconsideration. The accident date was

established March 25, 2021. In a subsequent decision dated November 24, 2021, a CM expanded the worker’s entitlement to include aggravation of asymptomatic cervical DDD and spinal stenosis.

The worker was seen by Dr. Jacey at the Upper Extremity Specialty Program (“Specialty Clinic”) on February 17, 2022. Dr. Jacey diagnosed the worker with a neck strain with aggravation of underlying asymptomatic cervical spondylosis, AC joint strain with aggravation of underlying AC joint arthrosis, and left shoulder scapulothoracic strain that had resolved. Dr. Jacey recommended treatment through the Specialty Clinic and ongoing modified duties. In a follow-up assessment, Dr. Jacey recommended the worker be seen by a neurosurgeon to discuss if surgery might be warranted.

Dr. Dyer, neurosurgeon, assessed the worker on March 31, 2022, and provided an updated diagnosis of acute cervical disc herniation C5-C6, aggravation of degenerative cervical neck pain, musculoskeletal pain, and discogenic neck pain. Dr. Dyer concluded the worker was a surgical candidate for a two-level anterior cervical discectomy and fusion (ACDF) procedure. Dr. Dyer recommended the worker trial a short period of conservative treatment before deciding whether they wanted to pursue surgery.

On March 21, 2022, the worker was terminated from their employment. The worker was initially offered a voluntary retirement package, but when the parties could not reach an amicable separation agreement, the employer terminated the worker’s employment. The employer argued the worker was let go due to inappropriate conduct resulting in progressive discipline and termination. The claim was referred to a RECM to determine whether the employer had breached their re-employment obligations.

In a decision dated June 17, 2022, the RECM concluded there was insufficient evidence to support that the worker’s injury or claim for benefits had contributed to the employer’s decision to terminate the worker’s employment. Accordingly, the RECM determined the employer had not breached their re- employment obligations when they terminated the worker’s employment. This decision was reconsidered and upheld on August 29, 2022. The WR has objected to both these decisions.

In a decision dated June 30, 2022, the CM concluded that the worker had fully recovered from their left shoulder injury as confirmed by the Specialty Clinic report dated June 30, 2022. This decision is not part of the current appeals agenda.

The worker was seen again by Dr. Dyer on July 21, 2022, who noted the worker had not experienced any significant improvement with conservative treatment. As such, he recommended the worker undergo a two level ACDF surgical procedure.

After obtaining a medical opinion, the CM determined that the proposed surgery was to address the worker’s pre-existing condition, and therefore, would not be considered the responsibility of this claim. The CM determined that the worker’s pre-existing condition was so great that it had overwhelmed the impact of the work-related injury rendering it insignificant. Accordingly, the CM concluded the worker had fully recovered from the work-related injury by August 18, 2022 with no ongoing work-related impairment beyond this date. This was communicated in a decision dated August 23, 2022. The worker has objected to this decision.

Accordingly, the following questions will be addressed in this appeal:

• Did the employer breach their re-employment obligations when they terminated the worker’s employment as of March 21, 2022?

• Is there an ongoing work-related impairment beyond August 18, 2022?

AUTHORITY

Workplace Safety and Insurance Act (WSIA) 1997 – Section 33(1)

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2014

15-02-03 Pre-existing Conditions

November 3, 2014

19-02-09 Re-employment Obligations

November 30, 2020

ANALYSIS

For the reasons that follow, I find the employer did not breach their re-employment obligations when they terminated the worker’s employment. However, I find the worker has ongoing work-related neck impairment beyond August 18, 2022, and the proposed ACDF surgery is the responsibility of this claim.

1. Re-employment breach

In his submission dated April 17, 2023, the WR argues that the employer terminated the worker’s employment without cause because the worker did not accept an early retirement package. The WR argues the employer changed the narrative once the WSIB began investigating the breach. Prior to the WSIB investigating the matter, there was no mention of the employer having any issues with the worker’s behaviour, abrasiveness, or any type of insubordination. There was no mention of any type of misconduct during the entire time the worker was performing accommodated duties. The termination letter also made no mention of these alleged issues and a note from the HR manager dated March 29, 2022, clearly documented that the worker was terminated without cause. Finally, the record of employment (ROE) also indicated that the worker’s termination was without cause. Therefore, at each instance prior to the WSIB investigating the matter, there is no evidence of any misconduct or disciplinary issues. The WR points out that none of the emails after March 2022 from the company president makes any reference to the worker’s behaviour or misconduct. Furthermore, the examples that were subsequently provided to justify the termination are not disciplinary in nature. In fact, there is only one email that explicitly indicates that the worker was being warned in writing. Finally, the “Progressive Discipline Policy” provided by the employer was only created in January 2022 with no policy prior to this date. In other words, this policy was created just two months before the worker’s termination and after the worker’s alleged infractions.

The employer representative (ER) essentially submits the worker was terminated for reasons unrelated to the work injury. The ER submits that whether the employer was justified in terminating the worker’s employment is not the issue. Rather, the issue is whether the accident or claim for benefits played a role in the termination. The ER submits that it did not. The ER argues the termination was related to the worker’s actions and attitude particularly after a change in their supervisor. The ER submits that the worker’s employment relations deteriorated to the point where the employer decided to ask the worker to voluntarily leave by offering a retirement package. Once the worker declined this offer, the employer terminated the worker’s services. The ER notes that prior to the offer of retirement, the worker was provided with written and oral warnings. Accordingly, the ER argues the employer has not breached their reemployment obligations.

In determining whether a re-employment breach has occurred, the first step is to establish whether the employer had an obligation to re-employ the worker (also known as the “re-employment threshold”). In

so doing, I am guided by Policy 19-02-09 (Re-employment Obligations), which states, in part, that non- construction employers have an obligation to re-employ their injured workers if the following three conditions are satisfied:

• the worker has been “unable to work” as a result of the work-related injury

• the worker was continuously employed with the injury employer for at least one year before the date of injury, and

• the employer regularly employs 20 or more workers.

The second and third criteria are met because the worker was continuously employed with the employer for many years prior to the date of injury and the employer usually employs more than 20 workers. As for the “unable to work” criteria, I note the worker was performing accommodated pre-accident duties since the accident date, but no loss of earnings benefits were paid. Policy 19-02-09 states that a worker is considered “unable to work” if they are absent from work due to the injury, work less than regular hours, and/or require accommodated work that pays, or normally would pay, less than the regular pay regardless of whether the injury employer reimburses a worker for an actual loss of earnings or not. The worker’s pre-accident job title was control engineer. The job was primarily computer-based in an office setting, but also required the worker to attend customer sites to perform mechanical work and installation of systems. It was this last portion of the worker’s job duties that were accommodated by the employer. Consequently, the Operating Area determined that the worker met the criteria for “unable to work” as per the decision dated April 5, 2022. Since the ER has not raised any concerns or issues regarding the re- employment threshold, I am satisfied the employer had a re-employment obligation in this case.

Since the re-employment threshold has been met, the next step is to determine the duration of the obligation. Policy 19-02-09 states that the employer is obligated to re-employ a worker until the earliest of;

• the second anniversary of the date of injury

• one year after the worker is medically able to perform the essential duties of his or her pre-injury employment, or

• the date on which the worker reaches 65 years of age.

As the worker had not resumed the essential duties of their pre-injury job at the time of termination, and noting the accident date was established as March 25, 2021, the employer had an obligation to re- employ the worker until March 25, 2023. The worker, however, was terminated on March 21, 2022 – approximately one year prior to the end of the re-employment obligation period.

Policy 19-02-09 states that if a worker is terminated within six months of being re-employed, the WSIB presumes that the employer has not fulfilled their re-employment obligation. The employer may rebut the presumption by showing that the termination of the worker’s employment was not related to the injury.

In this case, the worker’s termination did not occur within the first six months of being reemployed. As such, there is no automatic presumption of a breach and I must consider the evidence objectively.

According to the information in the case record, the worker was offered a voluntary early retirement package on February 23, 2022. The letter indicates that the worker would continue to receive ongoing salary continuance as well as healthcare benefits until December 31, 2022. The employer agreed to continue making monthly RRSP contributions for the worker until December 2022 and the worker would be allowed to stay on the company cell phone plan. The letter indicated that this offer was valid until March 11, 2022.

There are a number of back and forth emails between the worker and the president of the company after this offer was made. These emails primarily deal with the worker trying to negotiate a better retirement offer and some changes were made to the offer. However, what is abundantly clear from reviewing these emails is that there is no indication that this offer is anything but an early retirement package. In other words, there is no mention of any violations of company policy or misconduct issues. However, following a revised offer on March 7, 2022, the worker noted that it appeared the early retirement offer had now turned into a termination notice (email dated March 8, 2022). The worker observed that upon review of the initial offer it was their understanding they were being presented with an early retirement offer with no mention of termination if the offer was not been accepted. The worker remarked “it is very apparent that I have offended someone and it appears they will go to great lengths to get rid of me.” Another revised offer was presented on March 11, 2022, and further emails were exchanged. In the president’s final email dated March 12, 2022, the president stated that they believed they had acted in good faith and felt the offer was fair and extremely generous despite not agreeing with the worker’s lump sum payment request.

Since the worker did not accept the early retirement package, they were terminated on March 21, 2022. The termination letter dated March 25, 2022, confirmed the worker would receive eight weeks of termination pay in lieu of notice and 22 weeks of severance pay. I note the HR manager submitted a note to the WSIB on March 29, 2022, confirming that the worker was terminated “without cause” as of March 21, 2022.

It was only after the Operating Area sent a letter to the employer on April 5, 2022 confirming that the re- employment threshold had been met and the case was being referred to a RECM for further review that we learned that the termination was due to “cause.”

In their package dated April 14, 2022, the employer’s lawyer indicated that in March 2021, XX was promoted to the position of Director of Engineering and became the worker’s supervisor. The worker did not agree with the promotion and the worker’s attitude and conduct deteriorated shortly after. By February 2022, the employer determined that the worker’s attitude and conduct deteriorated to the point that they did not feel the worker could continue working any longer for the company. It was only out of good faith, and in consideration of the worker’s years of service, that the employer chose to negotiate a satisfactory retirement package for the worker. Had they wanted, the employer could have asserted just cause for the termination of the worker’s employment due to insubordination and other indiscretions. While the worker initially agreed to the retirement option, the negotiations broke down and as a result the employer terminated the worker’s employment. The letter indicates that the worker’s termination was not related to the injury and that the injury did not prevent the worker from satisfactorily performing their job responsibilities. Rather, it was the worker’s “attitude and associated conduct” that was substandard and unacceptable. They noted that the worker was warned verbally and in writing “several times” before the termination of their employment.

The employer’s lawyers have relied on the following infractions for the employer’s decision to terminate:

• An email from the president of the company dated March 29, 2021. The email, which was addressed to the worker and their supervisor, states that they were not happy that an internal issue (promotion of a work colleague) was broadcasted on external social media channels. The email ends with a conciliatory note that it was the wish of the president that both the worker and supervisor could get along for the betterment of the operations group and the company. It concludes by noting that there is no need to respond to the email or explain it further and that they were “happy to put this behind us, forget about it and move on…” There is no written warning or threat of discipline in this email.

• An email dated May 9, 2021 from the worker’s supervisor regarding a particular project that the worker was working on (I note the worker provided a detailed chain of emails that led to the culminating email of May 9, 2021, which had not been provided by the employer’s lawyer). A number of employment related issues and disagreements were raised in this email but the supervisor confirmed they had no issue with the worker’s volume or quality of work. The supervisor said they had a lot of respect for the worker in that regard. The issue seemed to be the worker’s attitude. According to the supervisor, the worker consistently demonstrated arrogance, abrasiveness and a sense of entitlement that was not acceptable. There was no mention of any disciplinary action or warning. I note the supervisor stated they would not be sharing the email with their superiors. The email ends with the supervisor stating that they hoped the worker would take the “feedback” seriously and were willing to discuss how they could improve. I note the worker subsequently filed a harassment claim against the supervisor because of their demand for excessive overtime and threat to take away approved vacation during this project. The employer investigated the harassment complaint and concluded there was no evidence of harassment.

• An email dated September 19, 2021, from the supervisor regarding employment related issues on a specific project. This is the only document on file where the worker was given a written warning about their behaviour. The worker was warned that disciplinary action would follow if they continued to behave in this way. I note there were a string of emails provided by the worker that led to the September 19, 2021 warning and provided further context. I note that all issues are employment/project related.

• An email dated September 22, 2021 from the supervisor. This email appears to be a follow-up to a possible enquiry from the worker on a leadership position. The supervisor states they would love for the worker to take on a leadership/mentorship role especially with a new wave of junior engineers that were coming on board. However, the supervisor stated that given the worker’s abrasive behaviour, they could not take the risk of putting the worker in such a position. The supervisor stated they would need to see “dramatic changes” in their behaviour in a number of areas including the trouble the worker apparently caused the travel and scheduling staff, conflict with customers, and the idea of management versus workers. I note this email does not end with any disciplinary warning.

• The employer’s lawyer also indicated that the employer had a verbal conversation with the worker for unacceptable behaviour sometime in December 2021. There is no documentation regarding this conversation on file. However, according to the worker’s letter on file, this was related to a scheduled employee review with the company president who had taken over the duties of operation manager from the worker’s supervisor. According to the worker’s recollection, the president made reference to the door swinging both ways and that if the worker was not happy they should quit. The president also said the worker had made somebody in the company cry. When asked for further details, the worker said the president did not divulge.

I note the employer did not have a progressive disciplinary policy in place at the time that any of these alleged infractions took place. A new policy was created on January 10, 2022, and the worker signed the “Code of Conduct” on January 19, 2022. There is no evidence of any infractions after this date.

In addition to the submissions provided by the WR, I have also reviewed the extensive documentation provided by the worker including all the emails that the worker submitted to provide additional context to each of the infractions identified by the employer.

Having considered the evidence in its totality, I am not persuaded on a balance of abilities that the work- related injury or claim for benefits played a factor in the employer’s decision to terminate the worker’s employment.

Before I explain my rationale, it is important to emphasize that it is not within the scope of my role as the final decision maker of the WSIB to make findings of fact on the appropriateness and legality of the employer’s decision to terminate the worker’s employment and nor does the WSIA require me to do so. Whether or not I believe the employer had “just cause” to terminate the worker’s employment is only of marginal relevance to the issue of whether the employer breached their re-employment obligations.

There are other legal avenues through which the worker can seek redress if they believe they were wrongfully terminated (civil court, human rights tribunal etc...) This is also the position held by the Workplace Safety and Insurance Appeals Tribunal (WSIAT). For instance, in decision 2520/08I, the following is noted:

In our view, application of a “just cause” test imports a labours relations analysis into the workplace safety and insurance context. The term “just cause” is not found in the governing legislation. Nor is it found in Board policy under the [Workplace Safety and Insurance Act]. While, in some cases, it may seem clear that “just cause” exists, application of that test would necessarily require legal submissions on what constitutes just cause. The majority does not think it likely that the Legislature intended the Tribunal to undertake this sort of inquiry and analysis. If it had, the term “just cause” could easily have been used in the legislation. Of course, the fact that an employer believes in good faith that it has just cause to terminate a worker or that it applied progressive discipline or other workplace policies appropriately may be relevant in deciding whether the worker’s injury or impairment was a factor in the decision to terminate

the worker’s employment.

As correctly noted by the ER, and also reinforced in numerous other WSIAT decisions, the appropriate test that needs to be applied here is whether the work-related injury or the claim for benefits played a factor in the employer’s decision to terminate the worker’s employment. This means that regardless of whether the employer had just cause, if the work-related injury or claim for benefits was a factor in the employer’s decision to terminate the worker’s employment, the employer could be found in breach of their re-employment obligations provided the other threshold criteria have also been met. Having examined the facts of this case, I do not believe the worker’s claim or the claim for benefits was a “factor” in the employer’s decision to terminate the worker’s employment. I have come to this conclusion based on the following facts:

• There was interpersonal conflict between the worker and their supervisor since March 2021, when the supervisor was promoted to that position. This was alluded to in the president’s email from March 29, 2021, when he hoped that the worker and his supervisor could get along and left it to the supervisor to address “whatever is between you.” This confirms the president was aware of some underlying conflict or tension between the worker and YY.

• According to the trail of emails from May 2021, there were a number of issues between the worker and supervisor regarding the scope of a project they were working on. The supervisor felt the worker consistently demonstrated unacceptable behaviour that included arrogance, abrasiveness and a sense of entitlement. Eventually, the worker ended up filing a harassment claim against the supervisor that did not go in the worker’s favour. While the worker may believe that all of these issues began after the workplace injury, which is technically correct since the accident date is March 25, 2021, I note the worker had not reported a WSIB claim at this time and nor was anyone aware of a work-related injury. Even though the worker referenced having shoulder issues to the supervisor on May 8, 2021, I note it was brought up in the middle of a long

email as an example of the personal sacrifices the worker had made due to the Pandemic. An injury was not formally reported until July 2021. Accordingly, I find that the issues between the worker and supervisor predated the worker’s claim for benefits. Put another way, there is no evidence to suggest that the deteriorating relationship with the supervisor had anything to do with the worker reporting an injury.

• The worker also acknowledges that there were interpersonal issues with the supervisor. In an undated letter addressed to the RECM, the worker notes the supervisor had a questionable employment history with the employer that gradually led to the supervisor eventually leaving the company. The worker notes that the emails provided by the employer highlight the difference of opinion and method of operation between the supervisor and the worker. The worker goes on to note that once the supervisor left the company and the president took over the position of operations manager, there was no documentation of any negative interaction during the four- month period after this individual had left the company. This further proves that the issue was an interpersonal issue between the worker and the supervisor that had nothing to do with the work injury.

• Under the manager comments section of the worker’s performance appraisal from 2019, it was noted that the worker’s frustration with the roles and responsibilities of other parties tended to build into “perceived animosity and frustration” with colleagues and clients. The manager noted that while the worker’s intentions were good and valid, “sometimes the displayed response is not appropriate.” This proves that the employer’s concerns with the worker’s attitude pre-dated the workplace injury or claim for benefits.

• Aside from the May 8, 2021 email, none of the emails from the date of accident until the date of termination make any mention to the workplace injury, the worker’s claim for benefits, or the worker’s requirement for accommodation. All of the emails pertain to employment related issues with no reference to the work injury. I note the worker was frequently in communication with the Operating Area and also utilized the WSIB’s messaging centre to send two-way text messages to raise any issues or concerns they were having with the administration of the claim. However, at no point did the worker raise any concerns about being ostracized or mistreated by the employer as a result of filing a WSIB claim and nor did the worker raise any questions about the employer’s ability to accommodate them.

• Since the majority of the worker’s pre-accident job duties were office/computer-based, I note the employer did not have any difficulties accommodating the worker’s impairment with minor workstation adjustments. When entitlement was later expanded to include aggravation of the worker’s underlying pre-existing condition in November 2021, the employer did not raise any objections and agreed to continue providing accommodated duties. While it is clear from reviewing some of the memos that the employer was not very familiar with the WSIB and its return to work processes, there is no evidence the employer was having any difficulties accommodating the worker and nor did they express any issues in the worker’s ability to perform the accommodated duties. In my view, this provides further evidence that the work injury did not factor in the employer’s decision to terminate the worker

• The worker also did not initially believe the termination was motivated by the injury or claim for benefits. In the worker’s online message to the WSIB dated April 11, 2022, the worker indicated that they had just received the CM’s letter outlining the employer’s re-employment obligations (referring to the letter dated April 5, 2022). The worker went on to state: “In it there is a statement regarding that I believe that I was terminated because of the WSIB case. I have not mentioned that statement and it is not my direct belief that I was terminated due to it in any means… The

reemployment obligation is something that came to life thru (sic) asking questions of WSIB. If WSIB cares a follow-up on the case to ensure (the employer) is following the rules and regulations that is of their decision. I am not expecting any compensation resulting from any rules or regulations that may or may not of (sic) being broken. I have a lawyer who is actively seeking damages for my wrongful termination.” (Emphasis added).

What can be gleaned from the evidence is that the employer had concerns about the worker’s conduct and attitude that had begun to surface shortly after YY was promoted to a supervisory position. Over the next 10 months or so, there was escalating interpersonal conflict between the worker and supervisor.

Rather than terminating the worker of cause, the employer decided to offer the worker an early retirement package out of good faith in the hopes that the departure would be amicable and to the mutual benefit of both parties. Based on the emails, it appears the worker was amenable to accept the early retirement package, but on their terms. I find it instructive that at no point during the early emails did the worker ever express any surprise that such a package is being offered. When negotiations broke down, the employer decided to terminate the worker’s employment for reasons related to attitude and insubordination. Whether this was the correct approach and whether the employer was justified in terminating the worker’s employment are both legitimate questions that will likely have to be addressed as part of the wrongful dismissal suit that the worker has filed against the employer. However, I do not need to make any findings on either question. Rather, what I need to determine is whether any part of the employer’s decision to terminate the worker’s employment was motivated by the work-related injury or claim for benefits. In that regard, and for the reasons I have already articulated, I do not believe the evidence supports this proposition. Since there is no evidence on file to suggest that the work-related injury and claim for benefits played any part in the employer’s decision to terminate the worker’s employment, I find that the employer did not breach their re-employment obligations.

2. Ongoing neck entitlement and surgery

The WR essentially submits that there is a plethora of medical evidence that supports the worker has an ongoing impairment related to the neck. The WR argues that no weight should be given to the medical consultant’s opinion who concluded that the worker’s ongoing impairment was due to the pre-existing condition. The WR provides a printout from the College of Physicians and Surgeons website to support that the medical consultant, Dr. Briscoe, has a specialty in family medicine. Presumably, the WR is asking that I give more weight to the opinion provided by the Specialty Clinic.

The ER submits that the proposed surgery is to treat the severe nerve compression and severe DDD, which is a pre-existing impairment. The ER submits that significant weight should be given to the medical consultant’s opinion who conducted a very thorough review of all the medical information on file before arriving at the conclusion that the worker’s ongoing impairment was due to the underlying pre- existing condition. The ER also points out that according to the medical information on file, the worker did not report any neck injury for many months after the date of accident and was able to continue working their full pre-accident job duties for four months. As such, the injury was likely insignificant and would not should not warrant a neck surgery.

I acknowledge the ER’s concerns regarding the significant delay in reporting a neck injury both to the employer as well as the family physician. The clinical notes from the worker’s family physician confirms that the first mention of neck pain did not occur until August 11, 2021 - more than five months after the worker performed labour-intensive duties in early March 2021. However, since initial entitlement is not properly before me in this appeal, I will not be addressing this issue.

According to the clinical notes provided by Dr. Oozeer, the worker was first seen on March 25, 2021 complaining of left shoulder pain. Dr. Oozeer documented the worker had shoulder pain for years that

was intermittent but had been increasing over the past month and a half as they had been more active “shoveling snow etc.” The worker reported occasional paraesthesia to the left arm. The worker was seen again on July 13, 2021 continuing to complain of left shoulder pain getting worse. There was no mention of any neck pain at either visit.

The first mention of neck pain is documented in the clinical entry dated August 11, 2021. I note the worker was sent for an x-ray of the cervical spine on August 3, 2021 which revealed multilevel DDD, most severe at C5-C6. It is unclear when this referral was made as there is no corresponding clinical entry supporting this requisition. However, I do note that the reason for the x-ray was documented as “headaches.” In any case, Dr. Oozeer completed a Health Professional’s Report (Form 8) providing a diagnosis of cervical and left upper extremity strain plus DDD.

A CT scan of the cervical spine dated September 14, 2021, revealed advanced degenerative changes throughout the cervical spine most significantly at C5-C6 and C6-C7 levels with at least moderate to severe central canal stenosis resulting in cord compression. There was also multilevel severe neural foraminal stenosis with exiting nerve root impingement that was most severe at C5-C6 bilaterally, C3-C4 on the left and C6-C7 on the right. An MRI was recommended and it was suggested the worker be seen by a neurosurgeon.

The worker was seen by physiatrist, Dr. Charron, on November 24, 2021. Dr. Charron reported that the worker was doing some anchoring at work for about a one week time span and began noticing lateral shoulder pain and left shoulder blade pain. However, currently the worker described the pain was between the neck and the left shoulder. Based on his examination, Dr. Charron concluded that the worker’s diagnosis was consistent with trapezius myofascial pain.

The MRI dated December 13, 2021, confirmed the findings of the CT scan. Additionally, it revealed severe left neuroforaminal stenosis and moderate left lateral canal stenosis at the C3-C4 and C5-C6 levels. There was also moderate central canal stenosis along with posterior disc osteophyte at various levels.

The worker saw Dr. Charron again on January 5, 2022 in a follow-up visit. After reviewing the worker’s MRI report, Dr. Charron came to the conclusion that the worker’s symptoms were likely due to left-sided nerve root irritation. He recommended a trial of cervical traction treatment.

The worker was seen by orthopedic surgeon, Dr. Jacey at the Specialty Clinic on February 17, 2022. Dr. Jacey documented that the worker initially reported a gradual onset of left shoulder pain, shoulder blade pain and neck pain with occasional numbness and tingling in the left arm. The worker did not report the injury until June 2021. Following a comprehensive examination, Dr. Jacey provided a diagnosis of neck muscle strain/sprain injury with aggravation of underlying pre-existing asymptomatic cervical spondylosis, left AC joint sprain/strain with aggravating underlying AC joint arthrosis and resolved the left shoulder parascapular strain. The cervical spondylosis and neuroforaminal impingement at the C5-C6 and C3-C4 levels was considered a non-occupational diagnosis.

The worker was seen by neurosurgeon, Dr. Dyer, on March 31, 2022. After reviewing the worker’s MRI report, Dr. Dyer diagnosed an acute cervical disc herniation C5-C6, aggravation of degenerative cervical neck pain, musculoskeletal pain, and discogenic neck pain. Dr Dyer recommended a two level ACDF at the C5-C6 and C6-C7 level for a 50% reduction in neck pain and an 80% reduction in radicular arm symptoms. However, before undergoing surgery, the worker was asked to trial lyric or and continue with physiotherapy. In her follow-up report dated July 21, 2022, Dr. Dyer noted that the worker reported no symptomatic relief from radicular left shoulder pain by taking Lyrica. As such, Dr. Dyer felt that the worker would benefit from a two level ACDF procedure.

The worker’s claim was reviewed by Dr. Briscoe, a medical consultant. As correctly pointed out by the WR, Dr. Briscoe specializes in family medicine and is not an orthopedic surgeon or neurosurgeon.

However, Dr. Briscoe had the benefit of reviewing the entire claim file in formulating his opinion.

In response to the question of whether the worker has a continued work-related impairment, Dr. Briscoe opined that the worker has a significant pre-existing condition that is taken years or decades to develop and was not caused by the workplace injury. Based on the MRI findings, and noting that the family physician documented the worker had shoulder pain for years, Dr. Briscoe opined that it could be stated that the worker had a significant “symptomatic” pre-existing condition that was causing the worker’s current symptoms and impairment. It was extremely likely that this severe DDD and severe nerve compression would eventually cause impairment in the worker, regardless of any occupational exposures. Dr. Briscoe states that it is possible that due to the occupational history the pre-existing condition was exacerbated. However, Dr. Briscoe also questions the delayed onset of neck pain that took many months to surface. Dr. Briscoe goes on to state the following:

It is impossible to state with absolute certainty whether the worker would have the same level of impairment from (their) pre-existing condition without the occupational injury. Based on the balance of probabilities, the worker’s current neck and arm symptoms are more likely related to the worker’s underlying pre-existing degenerative disc disease than they are to (the) occupational injury. In other words, the worker’s current impairment is associated greatest to (their) underlying PEC [pre-existing condition].

In response to the question of whether the pre-existing condition was exacerbated by the work-related injury, Dr. Briscoe states that the identified pre-existing condition could have been exacerbated by the accident history described by the worker. However, Dr. Briscoe reiterates that the worker’s current symptoms were more likely related to the underlying severe DDD and its natural progression as opposed to the exacerbation of the pre-existing condition. While he could not state with absolute certainty that the occupational injury had no impact on the worker’s current symptoms, Dr. Briscoe felt that on a balance of probabilities the current symptoms were more related to the natural progression of the underlying condition.

Finally, in response to whether the surgery recommended by Dr. Dyer was due to the work-related injury of the pre-existing condition, Dr. Briscoe opined that the surgery was proposed to treat the worker’s severe nerve compression and severe DDD which is related to the worker’s pre-existing impairment.

When it comes to determining whether a worker has recovered from a work-related injury, I am guided by Policy 11-01-05 (Determining Permanent Impairment), which states that workers are considered to have reached maximum medical recovery (MMR) when they have reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment. In all cases, decision-makers identify when MMR is reached. Decision-makers consider 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. In order to determine that a permanent impairment exists, the decision-maker must confirm that

• MMR has been reached

• evidence of ongoing impairment exists, and

• the ongoing impairment is a result of the work-related injury/disease.

“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; “Permanent impairment” means impairment that continues to exist after the worker reaches MMR.

Having reviewed the evidence, I agree with Dr. Briscoe that the worker suffers from a significant pre- existing condition that pre-dated the workplace injury. The MRI of the cervical spine revealed multilevel degenerative changes as well as osteophyte complexes. There was also significant bilateral foraminal stenosis at the C4-C5 and C5-C6 levels. There is no medical evidence to support that any of these findings identified on the MRI were caused by the workplace injury. However, there is also no evidence to suggest that the worker’s underlying condition was symptomatic or causing any issues prior to the work-related injury. I note Dr. Briscoe felt that the worker’s pre-existing condition was “symptomatic” based on the fact that the worker was complaining of left shoulder pain for several years as documented in the clinical records. Presumably, Dr. Briscoe felt the left shoulder pain mentioned in the clinical entry was evidence of referred pain from the neck going into the left shoulder and arm. However, pre-accident medical records going back five years made no mention or reference of any neck issues or radiating arm pain. While the clinical entry from March 2021 mentioned occasional tingling and numbness down the left arm, it is unclear whether this particular symptom had also been ongoing for “years” or whether that was a more recent occurrence. Unfortunately, Dr. Oozeer’s clinical notes are not very detailed in that regard. Nevertheless, I note the worker also suffers from AC joint degeneration of the left shoulder and also had previous left shoulder injury. As such, I do not correlate the reference to years of left shoulder pain as evidence of the worker being symptomatic for the neck issues. In my view, they are two separate issues.

Besides, in a decision dated November 24, 2021, an Eligibility Adjudicator granted entitlement to an aggravation of “asymptomatic cervical DDD/stenosis.” This decision is not before me and nor did the employer ever object to this decision.

Since I accept the worker was asymptomatic for any neck issues prior to the workplace injury, and noting the significant nature of the pre-existing condition, I have relied on Policy 15-02-03 (Pre-existing Conditions) to assist me in determining ongoing entitlement.

Policy 15-02-03 states that if the pre-existing condition is impacting the worker’s impairment, benefits will generally continue as long as the work-related injury/disease continues to significantly contribute to the worker’s impairment. As to whether the pre-existing condition is impacting the worker’s ongoing impairment, the policy asks the decision maker to consider the following:

• the impairment affects the same body part or system as the pre-existing condition

• the impairment continues beyond the expected recovery period, given the work-related injury/disease

• the impairment is unexpectedly severe given the work-related accident

• there is a change in the worker’s ability to perform the pre-accident work, beyond what was expected given the work-related injury/disease.

The policy goes on to note that “where the clinical evidence demonstrates that a pre-existing condition has been aggravated as a result of a work-related injury/disease, benefits continue until the worker recovers from the aggravation of the pre-existing condition.”

Since there is no evidence the worker had any neck issues related to their pre-existing condition, and noting the fact that the Operating Area accepted that the asymptomatic pre-existing condition had been aggravated by the work-related injury, I find the work-related injury continues to make a significant

contribution to the worker’s ongoing impairment. There is no evidence to suggest that, in the absence of the work-related injury, the worker would have required surgery to correct the underlying condition. It is just as probable that the worker may never have experienced any impairment due to the degenerative changes.

Policy 15-02-03 asks the decision maker to consider the well-established legal principles of

“thin skull” and “crumbling skull” doctrines in considering ongoing entitlement. The essence of the “thin skull” doctrine is that entitlement to benefits is not reduced due to a pre-existing condition which made the worker more vulnerable to injury, where the work accident has made a significant contribution to the resulting injury. The “crumbling skull” doctrine, however, deals with a worker who has a much more unstable pre-existing condition which was likely symptomatic and would have eventually required some degree of intervention.

While I accept that the MRI confirmed a severe amount of degeneration in the cervical spine, I am not convinced that the worker’s underlying condition falls within the ambit of the “crumbling skull” doctrine. Rather, I find that the weight of the evidence before me indicates that the worker’s pre-existing condition contributed to the worker’s overall impairment in terms of its severity. I find that the worker’s pre-existing condition fits the “thin skull” doctrine, in that they had an asymptomatic condition that predisposed them to far greater impairment from the workplace accident than would have been the case if they did not have those findings. As a result, I find that the worker’s pre-existing condition did not overwhelm the compensable workplace injury, but rather the workplace injury made the asymptomatic condition symptomatic, and the workplace injury continues to be a significant cause of the worker’s ongoing impairment. Accordingly, I find the worker has ongoing neck impairment beyond August 18, 2022.

Since I have accepted ongoing entitlement, I find that the surgery recommended by Dr. Dyer would be the responsibility of this claim. Section 33(1) of the WSIA provides the following:

“A worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury.”

In my opinion, the surgery is both necessary and appropriate given that the aggravation of the worker’s asymptomatic degenerative neck condition has not resolved despite the worked having tried various treatment modalities.

CONCLUSION

Based on the foregoing reasons, I conclude:

1. The worker was terminated on March 21, 2022, for reasons unrelated to their injury or claim for benefits. Accordingly, I find employer did not breach their re-employment obligations.

2. The worker has ongoing entitlement to their neck injury beyond August 18, 2022. Furthermore, the surgery proposed by the Specialty Clinic would be the responsibility of this claim should the worker choose to go ahead with this procedure.

The nature and duration of benefits flowing from this decision is remitted back to the Operating Area for further adjudication.

The worker’s objection is allowed in part.

DATED May 8, 2023

Mr. H. Mohamed

Appeals Resolution Officer Appeals Services Division