DECISION NUMBER:
20240023
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
WORKER (PARTICIPATING)
REPRESENTED by:
WORKER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
H. SHAW, APPEALS RESOLUTION OFFICER
FEBRUARY 14, 2024
ISSUE
The employer is objecting to the allowance of a low back sprain/strain as a secondary condition, in the Case Manager decision of March 25, 2022.
BACKGROUND
The worker was employed as a merchandise handler. They were hired on October 1, 2021 and started working in the distribution centre on October 14, 2021. The worker reported developing a right shoulder injury on October 16, 2021, while moving a box onto a conveyor belt. The worker was in their late thirties when the injury developed.
A decision dated November 23, 2021, allowed entitlement for a right shoulder injury but denied loss of earnings (LOE) benefits because modified duties were available. The worker reported that pain was moving down into their back. This was confirmed in a Functional Abilities Form (FAF) completed by a physiotherapist on December 7, 2021. A Low Back Injuries Program of Care (POC) Initial Assessment Report dated December 14, 2021, diagnosed the worker with a right side lumbar strain.
Entitlement for a low back injury was accepted in claim file memo A dated December 16, 2021, but no letter was issued at that time. The Case Manager decision of March 25, 2022, allowed entitlement for a low back sprain/strain as a secondary condition. The modified duties were determined to be unsuitable and full LOE benefits were paid from December 1, 2021 to December 20, 2021. Partial LOE benefits were paid from December 20, 2021 to January 10, 2022 and from January 31, 2022 to May 16, 2022, based on the employer’s ability to provide alternate modified duties.
In a letter dated June 3, 2022, the employer representative requested a review of entitlement for the low back. Reconsideration letters dated July 26, 2022 and May 5, 2023, confirmed entitlement for a low back sprain/strain.
A decision dated August 24, 2022, determined the worker had fully recovered from the workplace injuries by August 2, 2022, with no ongoing entitlement.
AUTHORITY
Operational Policy Manual
Published
15-05-01 Resulting from Work-Related Disability/Impairment
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find entitlement remains in order for a low back injury as a secondary condition. My reasons are explained below.
The employer representative submitted an Appeal Readiness Form dated October 12, 2023, relying on their previous letter of June 3, 2022. They noted the worker started modified duties on October 16, 2021, and worked modified duties on the next scheduled shifts on October 19, 2021 and October 20, 2021. The worker called in sick on October 21, 2021 and October 22, 2021. The worker’s next scheduled shift was on October 27, 2021 and the worker presented a doctor’s note indicating they should avoid lifting. The worker performed modified duties on October 27, 2021, but called in sick on October 28, 2021 and October 29, 2021. The worker resumed modified duties on October 30, 2021.
The employer representative argued that between the end of October 2021 and November 27, 2021, the worker was performing a variety of light/modified duties in different areas of the distribution centre. The worker was not required to lift from floor to waist or from waist to shoulder, there was no bending/twisting or repetitive movement of the right shoulder, no work at or above shoulder level, and limited pushing/pulling with the right shoulder. On November 28, 2021, the worker stopped work and claimed to be unable to work. The employer representative had concerns that the date of the low back injury was reported to be November 30, 2021, but the worker had stopped work by then and was not at work that day. They also argued that prior to November 30, 2021, there was no indication that the worker was having issues with the low back. They claimed that the modified duties were light in nature, did not require regular or frequent twisting of the body, and the worker was provided with regular breaks to sit and rest.
The worker representative submitted a Respondent Form dated January 5, 2024, with an attached submission. It is their position that entitlement was appropriately allowed for the lower back, noting the evidence that the modified duties were unsuitable for the lower back. The worker described standing for the duration of their shifts and completing light duties, working on the conveyor line and adjusting packages with the left arm/hand, which required repetitive and frequent twisting of the trunk/body in order to avoid using the right arm as much as possible. This caused pain radiating from the shoulder to the lower back.
According to operational policy 15-05-01, entitlement for a secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
The employer representative argued that the worker did not report problems with the low back until November 30, 2021, after they stopped performing modified duties, but my review of the medical
evidence suggests that the worker was having back complaints prior to November 30, 2021. Chart notes from the worker’s doctor show that on October 29, 2021 and November 23, 2021, the worker reported back and shoulder pain. No specific diagnosis was provided for the back pain based on those initial complaints, but subsequent reports more clearly identified the area of complaint as low back pain. I specifically note the following evidence to support this finding:
The FAF completed by a physiotherapist on December 7, 2021, indicated the worker was complaining about their low back.
A Case Manager spoke to the worker on December 10, 2021, documented in claim file memo B. The worker reported being off work since the previous Wednesday, which would have been December 1, 2021, due to pain that was travelling to the lower back. The employer representative reported that the last day at work was actually November 27, 2021. The worker attributed the low back pain to turning their body/trunk too much when performing the modified duties. The worker noted that the health and safety manager tried to demonstrate how to perform the duties without twisting and turning, but the worker found it difficult due to the right shoulder injury. The worker reported that the job duties required them to stand constantly and twist/turn in order to accommodate the right shoulder injury.
A Low Back Injuries Program of Care (POC) Initial Assessment Report dated December 14, 2021, diagnosed the worker with a right side lumbar strain.
The worker was assessed at an Occupational Health Assessment Program (OHAP) on
January 21, 2022. It considered a diagnosis of a lumbar muscular strain/sprain in addition to the right shoulder strain/sprain, with findings of reduced range of motion in the lumbar spine.
- The OHAP follow-up assessment report dated April 8, 2022, confirmed the ongoing diagnoses as lumbar muscular strain/sprain and right shoulder strain/sprain.
The employer representative argued that the modified duties were very light and were not compatible with a secondary injury to the low back. The modified duties were reported to involve handling one item of clothing at a time, scanning the label for redirection and entering data on a keyboard. The duties also involved placing one piece of clothing in a plastic bag or cardboard box, printing a label and placing onto a conveyor belt. Although the duties did not involve heavy lifting, the worker reported that it was twisting and turning of the body that led to the onset of low back pain. The worker’s restricted use of the right shoulder meant they had to perform more turning motions with their trunk and body when handling items.
The employer representative argued that the duties were not repetitive, but it is not necessary to establish that the worker was performing highly repetitive movements in order to allow entitlement for a secondary condition. It must only be established that there is a causal link between the secondary condition and the work-related injury. Although the modified duties were not heavy or highly repetitive, the worker had to adapt their movements to accommodate the right shoulder. This could reasonably have caused the worker to engage in more turning and twisting movements, and resulted in an increased risk of a low back strain.
I am satisfied the evidence supports that when the worker was working modified duties between
the end of October 2021 and November 27, 2021, they performed more turning and twisting of their trunk and body while doing modified duties. The evidence also shows there was no specific incident and that the back pain developed gradually, with reports of back symptoms starting October 29, 2021 and further complaints noted on November 23, 2021. Noting subsequent medical reports diagnosed the worker with a low back strain/sprain, I find it more likely than not that the low back strain/sprain was causally related
to the worker’s altered movements from accommodating the right shoulder injury. Because a causal link can be established between the work-related right shoulder injury and the secondary development of a low back strain/sprain, I find entitlement remains in order for a low back injury as a secondary condition.
CONCLUSION
I conclude secondary entitlement remains in order for a low back sprain/strain. The employer’s objection is denied.
DATED February 14, 2024
H. Shaw
Appeals Resolution Officer Appeals Services Division