Back pain doesn’t get better; worker entitled to benefits for recurrence of injury

An Ontario worker has successfully won his appeal for entitlement to workers’ compensation benefits after he was able to show his low back and leg pain that forced him off work were a recurrence of an earlier workplace injury.

The 34-year-old worker was employed as a welder in Ontario. In January 2012, he was carrying a heavy welding bottle — a container holding gas to use with a welding torch weighing about 75 to 80 pounds — up a flight of stairs. He held the welding bottle on his left shoulder and held the railing with his right hand as he ascended. At one point, the worker slipped, causing him to twist backwards and miss the step behind him. He fell hard on the stairs, knocking the wind out of him. He immediately felt a sharp pain in his lower back that radiated down his left leg.

The next day, the worker couldn’t get out of bed because of the pain, so he visited his local emergency department. He was diagnosed with left sciatica and sent home. A few days later, he visited his family doctor, who ordered an x-ray. After the x-ray came back normal, the doctor diagnosed the worker with a back strain. He prescribed rest, physiotherapy, pain medication, and muscle relaxants.

The worker applied for and was granted workers’ compensation benefits for a low back strain. The employer wasn’t able to provide modified duties while the worker was recovering from his injury, so the Ontario Workplace Safety and Insurance Board (WSIB) also granted the worker loss-of-earnings benefits.

The worker returned to work on April 2, 2012, a little over two months after his injury. However, he was still limited by his injury — though it had improved with physiotherapy — and he was unable to perform the full scale of his pre-injury job duties. He continued with an exercise routine that was designed to alleviate stiffness and pain, but continued to take pain medication. He reported that he was “doing fine” and was on his way to a full recovery, so the WSIB closed his file.

The worker resigned his employment with the accident employer in November 2012 and began working for a new employer in January 2013 in a position with light maintenance duties. However, the job involved frequent lifting, hoisting, bending, and kneeling, and soon his low back pain increased and the pain radiating down his left leg returned.

Symptoms worsened

The worker soon found it difficult to walk, go up and down stairs, get dressed, sit for periods of time, or perform tasks such as mowing the lawn and loading the dishwasher, so he sought medical attention. An MRI in August 2013 revealed disc protrusion and an “associated annual tear” in his lower back. It also identified “moderate degenerative disc disease” and arthropathy, a degenerative disease in the spine joints and cartilage.

On Oct. 21, 2013, the worker stopped working and advised the WSIB that although his symptoms had initially improved, the pain in his low back and left leg had never fully ceased and was now increasing. Two months later, he underwent a surgical procedure to relieve pressure on his spinal nerve caused by a herniated disc.

The worker filed a workers’ compensation claim for a recurrence of the original 2012 injury, supported by a report from his family doctor that the original diagnosis of a back strain was incorrect. The WSIB and an appeals resolution officer both denied the claim, finding the worker’s atest injury wasn’t compatible nor had continuity with the original strain injury. The worker appealed to the Ontario Workplace Safety and Appeals Tribunal.

The tribunal referred to the WSIB operational policy manual document relating to injury recurrences, which outlined the factors for determining if the worker’s current condition was a recurrence:

• whether the parts of the body affected are the same as the original injury

• whether the body functions affected are the same

• the degree to which body functions are affected compared to the initial condition.

In addition, the policy manual document required a continuity between the current condition and the initial condition, such as complaining of the condition on an ongoing basis since the original injury, ongoing symptoms, work restrictions or modifications, ongoing treatment, or a lifestyle change since the original accident. There also had to be no new significant accident that could have caused the new injury.

The tribunal found that the worker experienced ongoing symptoms in his lower back and left leg. Even though he went back to work two months after the original injury, he continued to experience pain and limitation in what he could do. He may have felt that he was on the road to a full recovery, but he continued to work modified duties and experienced an increase in his symptoms with his new employer in June 2013.

The tribunal also found that the areas affected by the symptoms remained the same the entire time from the original injury through to his claim of a recurrence — the lower back and left leg, which were consistent with the diagnosis of sciatica and eventually degenerative disc disease. The worker also received ongoing medical treatment through physiotherapy and regular doctor’s visits, up to his August 2013 MRI and December 2013 surgery, said the tribunal.

In addition, the tribunal referred to its medical discussion paper on low back pain that linked radial leg pain to compressed nerve roots caused by disc herniation — consistent with the worker’s ongoing symptoms that started with the original workplace injury.

The tribunal determined there was compatibility between the worker’s initial injury in January 2012 and his recurrence in the fall of 2013 in his new position — the symptoms never fully resolved — and there was no new significant injury. Because the worker was unable to perform his full duties due to this recurrence and had to go off work in October 2013, the tribunal ruled he was entitled to benefits. It remitted the claim back to the WSIB for determination.

For more information see: