APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240013
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEOCONFERENCE – January 18, 2024
HEARD by:
l. mansueti, appeals resolution officer
ADDITIONAL ATTENDEES:
appeals resolution officer, observer
appeals resolution officer, observer
JANUARY 25, 2024
ISSUE
The worker objects to the Eligibility Adjudicator (EA) decision dated July 15, 2022, denying entitlement to benefits for a low back injury as a disablement-type injury.
BACKGROUND
On or about June 6, 2022, the worker developed low back, left leg and foot pain, which she attributed to performing her regular work duties, which included providing care to elderly residents, namely toileting and completing transfers with mechanical lifts. The worker was working as a personal support worker (PSW), and she had worked with the employer for approximately 2 years.
The worker initially sought medical attention on June 7, 2022, and the incident was formally reported to the employer on July 4, 2022. She was diagnosed with Cauda Equina Syndrome (CES) and a disc herniation. The decision letter dated July 15, 2022 denied entitlement to benefits.
The worker objected to the July 15, 2022 decision. The operating area reconsidered and upheld the decision to deny entitlement, as per the reconsideration letters dated September 21, 2022, April 19, 2023, May 5, 2023, May 16, 2023 and September 21, 2023. The worker continued to object to the July 15, 2022 decision, and this is now the issue before the Appeals Services Division (ASD).
AUTHORITY
Section 13 of the Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
15-02-03 Pre-existing Conditions
Adjudicative Advice Document: Initial Entitlement (Disablement)
November 8, 2008
October 12, 2004
November 3, 2014
January 2005
ANALYSIS
I have carefully considered all of the available information, legislation, relevant operational policies and testimony in reaching this decision. For the reasons that follow, I find the worker is entitled to benefits for her low back injury.
Description of Pre-Injury Job Duties & Physical Demands
The worker was working with the employer since September 2020 in the capacity of a PSW, providing care to elderly residents at a nursing home. The worker testified she was employed part-time but she worked full-time hours at approximately 37.5 hours per week (8 hours shifts, approximately 5 shifts per week), which is corroborated with the evidence in the record. The worker stated her pre-injury job involved extensive physical activities, including reaching, use of mechanical lifts, rolling, pushing and pulling residents.
The worker testified she was moved to locked unit in May 2022 wherein she was responsible of caring for residents with dementia. She indicated caring for the residents in the locked unit was very different from caring for residents in the regular unit in that the residents were very unpredictable, and they required constant supervision and more assistance. She stated there were a total of 3 PSWs working in the locked unit during a shift, and together they were responsible for the care of 17 to 18 residents. The worker testified some of the tasks were completed independently, while other tasks, such as mechanical lift transfers, are completed with a partner.
The record contains a Physical Demands Analysis (PDA) for PSW completed by J. Barney, Certified Kinesiologist, dated October 29, 2010. The job objective is to provide personal care and support for residents living in the facility, including bathing, dressing, transferring to/from bed, eating, and toileting incontinence care. Each PSW is assigned to one unit in the facility, and they are responsible for with the care of the residents with a co-worker. It is noted there is no specific job rotation between the units; however, the physical demands are similar in all areas. Job duties are performed in the residents’ rooms, the tub/shower room, the dining area and the nursing station. PSWs use a variety of equipment, including bathtub, shower, care cart, nourishment cart, wheelchairs, Sara Lift, Maxi Lift, bathing chairs, wash cloths, laundry bins, and computer terminals.
The essential job duties involves providing personal care for residents requiring minimal and total assistance. The job duties are as follows:
Personal Care – residents requiring minimal assistance
Residents requiring minimal assistance include residents that are physically capable of sitting, standing, and ambulating, without the utilization of a two-person transfer within their assigned unit
Resident is supported as they get out of bed, and their walker or wheelchair is placed within their reach, the resident is guided into the washroom and assisted as they sit on the toilet
The resident is assisted with the removal of clothing and undergarments, and their legs, feet, and waist regions are washed with a washcloth. Personal hygiene assistance for upper body is also provided as needed or requested by resident
The resident’s bed is stripped weekly on bath days and as needed, dirty laundry is placed in laundry bags
The resident is assisted while dressing, supported as they rise from the toilet, personal hygiene, and guided to the common room or dining area
For residents having a shower, the PSW will support the resident into the shower or bathtub. The PSW will assist with removing the resident’s clothing, helping them into the shower chair, and helps them with cleaning their body. The PSW will help the resident dry off using a towel, applies any creams and support them while they dress.
This process typically requires 10 to 20 minutes to complete
Bathing – residents requiring minimal assistance
For residents having a bath, the PSW will transfer them into the bathtub using an automatic chair lift and helps them clean their body
For residents having a bed bath, the PSW will clean the resident with a washcloth and water basin while in bed. The resident will be repositioned several times during the process, and any resident who is physically unable to assist with the process is bathed by two PSWs simultaneously
Requires 15 to 20 minutes to complete per resident, with an average of 3 to 4 residents bathed during the day shift
Personal Care – residents requiring total assistance
PSW will complete the personal care for residents requiring total assistance
The process is similar to that outlined for the residents requiring minimal assistance, with the exception that the PSW will work with another team member to complete a two-person transfer of the resident from their bed to the washroom using one of two automatic lift devices:
o The Maxi Lift is a mobile lift that is used with a sling. The PSW with their teammate will reposition the resident in order to ensure the sling is in place, attaches the sling to the lift, and manually transfers the resident.
o The Sara Lift is a mobile lift that is used with cushioned belts. The PSW with their teammate repositions the resident in a seated position in bed, secures the belts around the resident, raises the resident into a semi-standing position, and manually transfers them to the washroom.
- Requires 15 to 20 minutes to complete, per resident
Bathing – residents requiring total assistance
The PSW will support residents while bathing in the shower or bathtub
This process is similar to that outlined for the residents requiring minimal assistance, with the exception that the PSW will work with another team member to complete all two-person transfers
The PSW will provide additional assistance to the residents when cleaning the various areas of their bodies in order to ensure optimal hygiene is maintained
The process requires 15 to 20 minutes to complete
Additional Essential Job Duties:
Transfer residents to the dining area. This task is completed for residents in wheelchairs who are physically unable to transport themselves. The PSW will also guide ambulatory residents to the dining area, when necessary. Requires less than 5 minutes to complete.
Serve and feed food to residents at mealtime. For residents that are not independent with feeding themselves, the PSW will serve food to the residents at mealtime. Food is transferred on trays from the kitchenette in the dining area to the dining room tables. The PSW will assist two residents simultaneously by sitting between them at the same table, offering supervision.
Requires 15 to 30 minutes to complete per mealtime
Complete charting and documentation of resident care, requires 20 to 30 minutes to complete per work day
Participate in daily meetings with members of the nursing staff to update the status of resident care and any recent incidents, requires 10 minutes to complete
Dispose of dirty laundry bags and garbage bags into the required chutes on within the unit, completed once per shift, 5 to 10 minutes to complete
Complete nourishment deliveries to resident rooms, occurs once per work shift, and requires 15 to 20 minutes to complete
Respond to residents’ call bells, typically for assistance with toileting. For residents requiring assistance, the PSW will assist with the placement of the walker and removal of clothing. For residents requiring the utilization of an automatic lift device, the PSW with another co-worker will reposition the resident and transfers them to the washroom using the lift.
Respond to emergency situations (i.e. resident falls). In an emergency, the PSW will follow the direction of a registered nurse or registered practice nurse in the unit. If a resident has fallen, the PSW will transfer the resident into bed, with the assistance of co-workers and the automatic lift devices, and a nurse has assessed for injuries and given the direction to transfer the resident.
Restock residents’ rooms with essential personal care items (washcloths, briefs, towels), requires less than 5 minutes to complete
Relevant Physical Demands Analysis
- Lifting/lowering
o Less than 2 to 3.6kg, maximum 16.6kg
o Performed on an occasional basis (11 to 33 per cent of a work shift)
o Lifting includes food items, cleaning cloths, residents’ personal items, clothing, repositioning residents, bags of laundry, bags of garbage
- Carrying
o Less than 2 to 6.2kg, maximum 8.8 to 9kg
o Performed on a rare basis (1 to 10 per cent of a work shift)
o Carrying includes food times, cleaning cloths, residents’ personal items, bags of laundry, bags of garbage
- Pushing (Force Weight)
o Less than 5 to 13.6kg, maximum 22kg
o Performed on a frequent basis (34 to 66 per cent of a work shift)
o Pushing includes care cart, Hoyer lift, wheelchairs, Sara lift, repositioning residents, unit doors, laundry cart, nourishment cart, shower chair
- Pulling (Force Weight)
o Less than 5 to 13.6kg, maximum 22kg
o Performed on an occasional basis (11 to 33 per cent of a work shift)
o Pulling includes care cart, Hoyer lift, wheelchairs, Sara lift, repositioning residents, laundry cart, nourishment cart, shower chair
- Horizontal reaching
o Near reaching performed on an constant basis (67 to 100 per cent of a work shift)
o Completed while performing the majority of job tasks
o Far reaching performed on an occasional basis (11 to 33 per cent of a work shift)
o Performed when completing residents’ personal care and bathing
- Vertical reaching
o Above shoulder performed on a rare basis (1 to 10 per cent of a work shift)
o Waist to shoulder reaching on a constant basis (67 to 100 per cent of a work shift)
o Below waist reaching on a rare basis (1 to 10 per cent of a work shift)
- Dynamic standing
o Completed while performing the majority of job tasks
o Estimated static time 20 minutes
o Performed on a constant basis (67 to 100 per cent of a work shift)
- Walking
o Completed while performing the majority of job tasks
o Estimated static time less than 5 minutes
o Performed on a frequent basis (34 to 66 per cent of a work shift)
- Forward and lateral trunk flexion
o Repetitive and sustained forward flexion may be performed when completing personal care and bathing of residents, repositioning residents, completing two-person transfers, or accessing lower level shelves and drawers. Estimated static time less than 2 minutes
o Performed on a frequent basis (34 to 66 per cent of a work shift)
- Torso rotation
o Performed intermittently when feeding, bathing or repositioning residents, or completing two-person transfers
o Performed on an occasional basis (11 to 33 per cent of a work shift)
- Kneeling & Squatting
o Accessing low shelves and completing some personal care tasks for residents
o Estimated static time less than 1 minute
o Performed on a rare basis (1 to 10 per cent of a work shift)
- Neck rotation, lateral flexion, flexion, and extension
o Repetitive and sustained flexion and rotation are performed while completing the majority of job tasks
o Performed on a constant basis (67 to 100 per cent of a work shift)
Worker Statement
As per the Worker’s Report of Injury (Form 6) dated July 3, 2022, the worker submitted she developed pain in her low back on June 6, 2022, which she attributed to providing care to residents, including using mechanical lifts for transfers, and assisting with toileting and dressing. The worker advanced the residents “are very resistive on this unit (locked unit),” and the pain “spread from my lower back to my left hip, buttock, upper leg, lower leg, and eventually foot and toes.” She indicated she pushed through the unbearable pain until her shift ended at 11pm, at which time she limped to her car as she could barely walk.
The worker testified that on June 6, 2022, she started her shift at 3pm as usual. She indicated she did not have any issues or problems with her back whatsoever, as she spend the earlier part of her day at home performing regular household tasks. The worker described the incident in question involved assisting a male resident with toileting. She indicated her co-worker was nearby preparing the resident’s clothing while the worker was with the resident. The worker indicated the resident was seated in his wheelchair and the Sara lift was positioned directly in front of the resident while she was positioned in front of the resident beside the Sara lift. The worker proceeded to place the sling from the Sara lift around his body. She indicated the resident was not co-operative when she asked him to lean forward, and he eventually leaned forward with the worker’s guidance and verbal cues. The worker indicated this resident is known to be unpredictable and physically aggressive. She indicated she observed the sling was positioned too low on his back. While the resident was still leaning forward, she manoeuvered her body forward to adjust the sling and in that moment, the resident leaned back into the wheelchair. The worker testified she immediately felt a sharp twinge in her back as though there was a “slice in my back.” She advised her co-worker that something was wrong with her back. The worker indicated her back pain did not go away, instead, she experienced a burning pain radiating down her body. She indicated she struggled to finish her shift, and limped to her car at the end of the shift in the hopes her pain would resolve before her next scheduled shift, which was in 3 days.
In terms of reporting, the worker testified her co-workers were made aware of her back pain because she was struggling to get through her shift, and she was encouraged to go home. The worker testified she informed her direct supervisor on June 6, 2022 that she had back pain after adjusting the resident’s sling, and the supervisor reportedly told the worker to be careful and asked her if she wanted to go home. The worker indicated she wanted to finish her shift, and she was hopeful that being off work for the next 3 days would be sufficient time to allow her back pain to resolve. The worker indicated she was unable to report to work at her next scheduled shift. She testified her daughter contacted the employer on her behalf, either by phone or by email, to report her absence from work. The worker stated her employer did not reach out to her about her time off from work.
A WSIB Customer Service Representative (CSR) obtained a statement from the worker on July 7, 2022. The worker indicates she reported her injury to the employer; however, she did not initially indicate it was work-related because she did not know she was supposed to specify her injury was work-related, and she indicated the employer did not ask her how the injury occurred. The worker also stated she was in a lot of pain, and she was not thinking clearly. The worker indicated she developed back pain at work on June 6, 2022, and she denied having back pain prior to this date. She advised the CSR she was working with very resistant patients since mid-May 2022, which required frequent bending, pushing, twisting, and pulling. She indicated prior to the new ward assignment, she performed PSW duties with patients that did not require as much care. The worker denied doing anything outside of work that may have contributed to her injury. She advised the CSR she was involved in a motor vehicle accident (MVA) in 2017 wherein she injured her back, and she confirmed she achieved a full recovery.
As documented in memorandum A dated September 21, 2022, The EA contacted the worker and obtained a statement from her. The worker indicated there were no changes in her job duties prior to June 6, 2022, and it was documented there was no specific incident to have caused her back pain that day. The worker testified that at the time the EA contacted her, she was on narcotics and she tried her best to answer their questions. The worker explained she did not regard toileting a resident and adjusting the sling on June 6, 2022 qualified as an “incident.” She clarified that from her perspective, she believed an “incident” was something physical such as a fall or being hit by a resident. She did not think what happened to her on June 6, 2022 was an incident because it was a routine part of her job.
The worker testified she attributed her back injury to performing her regular work duties, specifically, the incident on June 6, 2022, wherein she adjusted the strap on the resident’s back, and felt an immediate onset of back pain when he leaned back. The worker stated there was nothing outside of her work duties that may have caused or contributed to her low back injury. The worker testified she returned to work with the employer in February 2023, performing modified duties at reduced hours.
Employer Statement
As per the Employer’s Report of Injury (Form 7) dated July 7, 2022, the worker reported to the employer she injured her back and she was marked off as sick as of June 10, 2022; however, this was not reported as a work-related injury until July 4, 2022. The employer advanced the worker did not go through the usual process for accident reporting, thus an incident report was not completely in a timely manner. The worker was marked off as sick as the employer was unaware the absence was associated with a work-related injury. The employer disputes claim entitlement on the basis the diagnosis of sciatica is not compatible with the accident history.
Pre-Accident Medical Evidence
The worker testified she was involved in a non-compensable motor vehicle accident (MVA) on November 17, 2017 when she was rear-ended by another vehicle. At the time of the MVA, the worker was employed with another employer working as a PSW. She was off work for a period of time while she recovered from her injuries.
The record contains medical chart notes dating back to 2017. The medical reporting supports the worker was involved in a MVA on November 17, 2017, wherein her car was rear-ended while stopped at a red light. The worker had limited range of motion (ROM), pain and numbness down both legs, and she was referred for chiropractic treatment. She was diagnosed with a low back strain, and a possible disc herniation. An x-ray of the lumbar spine dated December 13, 2017, showed evidence of minimal narrowing of the disc space at L4-5 level, which was compatible with an acute disc injury.
Dr. D. Harding, Orthopaedic Surgeon, assessed the worker on December 22, 2017. The worker presented with ongoing low back pain since the MVA, as well as intermittent radiation of pain and numbness down both legs to the knees. The worker’s lumbar ROM was limited and moderate tenderness was reported in the midline of the lumbar spine. Reference was made to the lumbar spine x-ray showing mild narrowing at L4-5. There was no evidence of CES. A magnetic resonance imaging (MRI) scan of the lumbar spine dated February 26, 2018, showed evidence of degenerative disc disease (DDD) and endplate osteophyte and left far lateral annular tear at L4-5 and L5-S1. In April 2018, there was indication the worker was experiencing pain across their low back and numbness in her legs in April 2018. The worker had restrictions for heavy lifting, twisting, and bending; and she was advised to see a chiropractor.
On June 5, 2018, Dr. O. Naeem, Neurologist, assessed the worker for post-MVA headaches along with visual disturbances. The report indicated the worker was experiencing ongoing low back pain as well as tingling and numbness down her lower extremities. There was indication the worker did not have problems with bowel or bladder control; however, she reported that she could no longer hold her bowel movements for a longer period. Dr. Naeem prescribed Amitriptyline and recommended physiotherapy and massage therapy.
The worker underwent a neurology assessment on July 5, 2018, completed by Dr. L. Majl. The worker was determined to have sustained a moderate myofascial injury of the cervical and lumbar muscles. Dr. Majl recommended the worker undergo an electromyography (EMG) of her right lower extremity to rule out a nerve or nerve root damage. The worker was also recommended to undergo a physiatry assessment to assess her musculoskeletal system, as well as a chronic pain assessment. An EMG dated September 14, 2018, indicated there was no evidence of significant neuropathy or active radiculopathy.
On November 2, 2018, Dr. I. Robertus completed a chronic pain assessment. The worker was noted to have shifted from an acute pain state to a chronic pain state regarding their multiple impairments owing to the November 2017 MVA. With respect to the low back injury, the worker continued to have ongoing pain and physical limitations.
The record indicated the worker was off work for approximately 1 to 1.5 years following the MVA. The worker indicated the pain settled down, but it was always present to some extent. The worker was able to resume her regular work duties despite the pain. The worker testified she returned to work with her pervious employer in March 2020, performing her full regular duties and hours. The worker commenced her employment with the employer in September 2020 as a PSW. She testified she did not have any restrictions, she was not taking any medication, and she was not involved in any health care treatment at the time.
Post-Accident Medical Evidence
The worker testified her back pain following the June 6, 2022 incident worsened when she was arrived home to the point where she was in tears. She indicated she could not feel her legs and she denied ever having these types of symptoms before. The worker testified her adult daughter secured a medical appointment with Dr. D. Prosia, Chiropractor. She indicated she had not seen Dr. Prosia before.
The record indicates the worker sought chiropractic treatment on June 7, 2022 from Dr. Prosia. The chart note for the June 7, 2022 visit indicated the worker was experiencing left-sided sciatica for the last couple of weeks and it was getting worse. It was noted she worked as a PSW, and engaged in a lot of bending, twisting and assisting. The worker was experiencing sharp shooting pain down the posterior thigh and sometimes to the foot. The worker testified that her daughter spoke to Dr. Prosia on her behalf due to her excruciating pain. She indicated Dr. Prosia’s notes were not accurate, in that she was not experiencing back pain in the last couple of weeks, rather she had previous back pain in the last couple of years (following the MVA). The worker reiterated she did not have any incidents of back pain immediately prior to the June 6, 2022 incident.
The record contains an ambulance call report dated June 8, 2022 indicating the worker was experiencing debilitating back pain to the point of not being able to walk or stand. The worker was experiencing numbness down the left buttock area and into the lower leg. The report indicated the worker’s “daily back pain became worse and worse.” She was taken to the Emergency Department. The worker was diagnosed with sciatica, and she was discharged home with Naprosyn. The worker testified that her daughter again communicate to the paramedics on her behalf due to her debilitating back pain. She denied she experienced daily back pain prior to the June 6, 2022 incident, citing she was functioning normally, she was not in any active treatment, and she was pain-free.
Dr. D. Bednar, the worker’s primary care physician, assessed the worker via telecommunication on June 9, 2022 for reports of back pain. The chart note indicated the following:
The [patient] is not feeling well for the last week
For a week the low back progressively worse
For the last 4 days the pain is radiating down the left leg
The worker was diagnosed with left-sided sciatica. She was advised that if she experiences any cauda equina symptoms, she is go to hospital emergency.
The worker returned to the Emergency Department on June 16, 2022. The Emergency Room (ER) consultation report indicated the worker was experiencing significant back pain. The worker indicated she was unable to walk, and she had been using a bedpan to go the bathroom and she was wearing incontinent undergarments are night. An MRI of the lumbar spine dated June 17, 2022, showed evidence of a large L5-S1 left paracentral disc extrusion with inferior migration measuring 2.6 x 1.3 x 1.3 cm compressing the left S1 nerve root. The worker was transferred to Hospital X and she was admitted acutely as she presented with progressive sciatica and evolving perineal numbness in keeping with CES. Dr. A. Bednar, Orthopaedic Surgeon, assessed the worker on June 17, 2022. The consultation report indicated the worker had a history of low back pain dating back to a MVA, and her back pain remained fairly constant, but the pain was not disabling and she was not heavily medicated. The report indicated that on June 6, 2022, the worker’s back pain atraumatically spread down through the left buttock and leg all the way into the lesser border of the foot with a limp list and antaglia favouring that leg as well as numbness and electrical shocking sensations. Dr. Bednar reviewed the MRI, and noted that given the degree of sciatic distress surgical care was strongly indicated on an urgent basis. The worker underwent discectomy and decompression L5-S1 surgery on June 18, 2022.
The record contains a Health Professional’s Report (Form 8) for a visit on July 7, 2022 completed by Dr. Bednar. The report indicated the worker was diagnosed with a disc herniation and post-operative CES. The worker was determined to be unable to work due to their condition. The post-operative consultation report for this visit indicated the worker underwent a discectomy for massive prolapse with an incomplete CES.
Dr. Bednar reassessed the worker on August 9, 2022. The report indicated the worker was advised to not to return to vigorous physical work for a minimum of 3 to 4 months. The worker advised Dr. Bednar that on June 6, 2022, she was wrestling a 350lb patient, which brought on back pain. She indicated she tried to power through her pain until she could not manage it any longer, and went off work.
On November 24, 2022, the worker representative submitted a letter to Occupational Health Clinic for Ontario Workers (OHCOW), requesting an expert medical opinion with respect to this case. The worker representative requested responses to the following questions:
Please confirm any diagnoses related to the worker’s low back
Please provide your opinion as to whether any identified diagnosis are compatible with the WSIB accident history, with explanation regarding your findings
Please provide your opinion regarding what role, if any, the worker’s job duties played in the development of their low back condition(s) and need for surgical intervention
Please comment on any other pre-existing or concurrent factors, which may have contributed to the onset of flare-up of any low back conditions
Please provide your prognosis for any identified related to the worker’s low back
Dr. M. Pysklywec, OHCOW Physician, submitted a report responding to the worker representative’s questions dated January 31, 2023. The worker described a number of years of back symptoms that were relatively manageable until a significant worsening in June 2022. The worker was found to have sciatica with possible early cauda equina. The worker underwent surgery for L5-S1 disc herniation causing sciatica with possible early cauda equine symptoms.
Dr. Pysklywec submitted the general work of a PSW is known to contribute to back pathology. There are repeated physical tasks that may predispose to lumbar injury. Reference was made to medical literature that supported a high prevalence of low back amongst nursing aides, orderlies and PSWs in long-term care environments. Dr. Pysklywec noted the worker had underlying back issues; however, those pre-existing symptoms had settled down. Dr. Pysklywec surmised the worker’s pre-existing condition was relatively asymptomatic, thus, it was likely her previous underlying degenerative condition predisposed somewhat to the more recent 2022 disc herniation. It was noted there were no other factors in her life that would seemingly contribute to her back injury.
Dr. Pysklywec indicated the worker’s clinical presentation would strongly insinuate that she had an acute injury on June 6, 2022. While the worker had preceding back pain, this was relatively mild and tolerable. The worker then had an injury while toileting a combative patient. The cumulative compression/torsion/loading mechanism likely damaged her spine. The worker then had a rapidly deteriorating clinical course over the next couple of days. The post-accident MRI showed a new, large, left-sided disc herniation causing an acute sciatica. It was noted this was an acute change in her clinical course. Dr. Pysklywec indicated the incident on June 6, 2022 caused an acute disc prolapse, which was a significant change and severe exacerbation of a relatively asymptomatic underlying condition.
In response to the worker representative’s questions, Dr. Pysklywec provided the following responses:
The worker developed an acute left-sided disc herniation on June 6, 2022. The MRI confirmed this pathology.
On the day of the back pain onset, the worker was toileting a combative patient, which required bending, lifting, and twisting. Biomechanical consideration would implicate compressive and torsional postural loading with axial force amplification in contributing to disc strain. This would lead to disc failure and resultant herniation.
The acute nature of the herniation was evidenced by the sudden significant change in her functional ability. The worker went from being to fully work as a PSW to being totally disabled as of June 6, 2022. As well, the serial MRIs demonstrated an acute disc herniation in the days after their injury.
The worker’s condition required surgical treatment.
The worker has underlying back issues. The worker described an MVA in 2017. The MRI at that time indicated some DDD. It is likely they had some pre-existing back issues but these were relatively minor as they settled to the point that they were able to function and have little in the way of limitation.
The worker worked for a number of years as a PSW preceding their acute disc herniation in 2022. In this job, there were extensive physical requirements including reaching, lifting, and pushing that would have imparted strain on the lumbar structures. There is literature demonstrating the risk of back injury in the PSW profession.
Assessment of the Evidence
In order to establish initial entitlement to benefits, operational policy 11-01-01 states in part:
Five point check system
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."
An allowable claim must have the following five points:
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
With respect to the “five point check system,” the issues to be determined are whether there is evidence of a personal work-related injury, proof of accident, and compatibility of the diagnosis with the accident history.
The Workplace Safety and Insurance Board recognizes four different types of accidents, two of which are categorized as being disablements. With regard to this, operational policy 15-02-01 states in part:
Accident includes
a wilful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment.
Chance event
A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
Disablement
The definition of disablement includes
a condition that emerges gradually over time
an unexpected result of working duties.
The worker is claiming entitlement for a disablement-type accident as an unexpected result of working duties on June 6, 2022. For a disablement-type injury, the worker does not have the benefit of the presumption under Section 13(2) of the WSIA, which states:
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
The onus is on the worker to demonstrate the injury not only occurred during the course of the employment, but that it also arose out of the employment. In other words, the evidence must clearly show that the work caused the injury. In accordance with the Section 13 of WSIA, the burden to prove the work-relatedness of the disablement falls upon the worker.
The first question to be determined is whether the worker sustained a personal work-related injury. The employer representative submitted there is insufficient evidence of any injuring process that could have reasonably caused or significantly contributed to the worker’s low back condition. The employer representative further submitted the worker was performing her routine job duties and she was not engaged in any activity or task that was out of the ordinary when she experienced back pain on June 6, 2022. It is the position of the employer representative that simply having back pain at work does not necessarily mean it is caused by work. The worker representative is of the view the worker’s low back injury arose out of and in the course of her employment. She submitted the worker’s pre-injury job is physically demanding and repetitive, and these job duties placed a heightened strain on the worker’s low back, which ultimately resulted in the June 6, 2022 incident wherein she tweaked her back while securing a strap on a resident. In review of the facts and circumstances of this case, I agree the worker experienced a personal work-related injury on June 6, 2022 when she was assisting a resident with toileting, and upon adjusting the strap on his back, he leaned back unexpectedly, which caused an immediate onset of back pain.
With respect to establishing proof of accident, operational policy 11-01-01, indicates decision-makers consider the following:
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?
The employer representative is of the position proof of accident has not been established. She pointed to the fact the worker did not formally report having sustained a workplace injury at the time it occurred, and noted that it was only after benefit entitlement was denied that the accident history details became more specific, evidenced by Dr. Pysklywec’s report. I do not agree with the employer representative’s argument on this point. The record supports the worker completed a Form 6 on July 3, 2022, detailing she had injured her back while performing work duties on June 6, 2022, which is corroborated with Dr. Pysklywec’s report and her testimony. While I acknowledge the specific details were more precise as per Dr. Pysklywec’s report, I find this information was likely drawn through Dr. Pysklywec’s questions, who likely attempted to understand the mechanics of the accident and the onset of her back pain. The worker representative argued proof of accident has been established in this case. She indicated the worker developed an immediate onset of low back pain on June 6, 2022 while engaged in a work task and the worker’s back pain was observed by co-workers and reported to a supervisor that day (informally). In addition, there are no discrepancies in the date of the accident and the date the worker stopped working, and there were no delays in the onset of symptoms or in seeking health care attention.
With respect to the delay in formally reporting the incident as work-related to the employer, the worker representative pointed to the Adjudicative Advice Document titled, Initial Entitlement (Disablement), which states, in part:
The fact that a worker cannot immediately associate the problem/pain with the work activity or that the activity is not different, is not in itself a reason to doubt the validity of the claim. Some conditions that emerge over time as a result of normal work activity do not always reach a level of discomfort to require medical treatment or reporting until well after the work tasks were first commenced.
In review of the facts of this case, I acknowledge the worker did not immediately associate her back pain on June 6, 2022 with any “accident” or “incident” at work even though she experienced an immediate onset of back pain while performing a work task. This, in my view, would not disentitle her to benefits under this claim on the basis I find the worker’s explanation on this point to be reasonable. The worker explained she did not regard the June 6, 2022 event of adjusting the strap to be an “incident” because there she did not fall, trip, and she was not hit/struck by a resident. The evidence supports the worker did not return for her next scheduled shift, which in my view, would provide the employer the opportunity to further investigate the nature of the worker’s absence given it was known something had happened to her back on June 6, 2022 while at work. The fact there was a delay in formally reporting a workplace injury does not negate the significance of the temporal element in this case.
The employer representative argued there is a lack of compatibility between the disablement history and the diagnosis. She pointed to the worker’s pre-existing back condition owing to the November 2017 MVA. The employer representative indicated there is sufficient evidence in the record to suggest the worker had ongoing non-compensable back issues prior to June 6, 2022, which more likely the source of her subsequent complaints. The employer representative pointed to Dr. Prosia’s report wherein it was documented the worker had back pain for a couple of weeks, the ambulance report that stated the worker had daily back pain, and Dr. Bednar’s June 9, 2022 chart note which indicated the worker was not feeling well for the last week.
I have not placed significant weight on the medical reporting that indicated the worker had back issues prior to the June 6, 2022 incident. The worker explained her daughter spoke to the health care professionals on her behalf, and it is reasonable to accept some of the information may not have been documented correctly. Even if the worker was experiencing some degree of back pain prior to June 6, 2022 as suggested by the employer representative, there is no indication the worker was symptomatic with respect to her back, given she did not have any restrictions and there is no evidence of her being in active health care treatment prior to June 6, 2022.
I acknowledge the worker has a pre-existing low back condition due to her 2017 MVA. With respect to pre-existing conditions, operational policy 15-02-03 states, in part:
Entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker’s ongoing impairment.
The fact the worker has a pre-existing back condition would not preclude her entitlement to benefits under this claim. Even if she did in fact experience occasional pre-accident back pain, the evidence in the record supports the worker was fully functional, did not require any restrictions or limitations, and she was not involved in active health care treatment when she injured her low back at work on June 6, 2022.
With respect to compatibility, I accept the medical opinion provided by Dr. Pysklywec. The January 2023 report states, in part:
Regarding the work-relatedness, [the worker] attributes the onset of her back symptoms to work that she was doing on that day of June 6. She describes toileting a combative patient and straining in moving to do this task. In the act of bending, lifting and twisting to manage this patient, she injured her back with increasing to the point of clinical presentation.
For a biomechanical perspective, such actions could cause disc herniation and sciatica. Bending of the back leads to flexural loading on the lumbar spine. There is resultant compressive force on the anterior spinal structures, notably the fibrous intervertebral discs. This compressive loading is further accentuated by the lifting activities which serve to amplify axial loading. Thirdly, [the worker] reported a twisting element. The additive torsional strains on the lumbar structures increase the resultant forces on the discs. The cumulative effect of this is heightened strain on the intervertebral discs leading to mechanical wear and propensity for annular tear and resultant disc herniation.
Dr. Pysklywec concluded:
Given all of this, it is my impression that [the worker] developed an acute disc prolapse on June 6, 2022. This progressed to the point of her requiring surgery. I believe that the physical demands on that day in June 2022, and of her work in general, were the contributing factors for this disc herniation. Besides her work, there seemed to be no other important injury or risk factors to contribute to back pathology.
I have placed significant weight on the medical opinion provided by Dr. Pysklywec. In the absence of a medical opinion countering Dr. Pysklywec’s position on compatibility, I find deference ought to be afforded to their expert opinion. Based on the foregoing, I accept the disablement history of June 6, 2022 is compatible with the worker’s acute disc prolapse, which progressed to the point of requiring surgery.
In summation, I find there is sufficient evidence to support the worker’s low back injury arose out of and in the course of her employment on June 6, 2022. I accept the “five point check system” has been satisfied in this case. As such, I agree entitlement to enefits are in order for an acute disc prolapse sustained on June 6, 2022 requiring surgical intervention.
CONCLUSION
I conclude the worker is entitled to benefits for an acute disc prolapse/herniation on June 6, 2022, requiring surgical intervention.
The operating area shall determine the extent and duration of benefits flowing from this decision, subject to the usual rights of appeal.
The worker’s objection is allowed.
DATED January 25, 2024
L. Mansueti
Appeals Resolution Officer
Appeals Services Division