Highlights of Noteworthy Decisions

Decision 872 20
21/08/2020
R. Horne
  • Recurrences (compensable injury)
  • Subsequent incidents (outside work)

The worker suffered a low back injury, including a disc protrusion at L4-5, in November 2011, for which the Board granted the worker a 19% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for recurrences in June 2012, April 2015, and October 2015.

In June 2012, the worker experienced acute low back pain and sciatica when she awoke one morning. Board Operational Policy Manual, Document No. 15-03-01, on recurrences, notes entitlement to a recurrence may be granted where there is clinical compatibility between the work accident and the further period of disability. In this case, the onset of pain was in the same area as the original accident. The description of pain radiating into the right leg was consistent with the allowed L4-5 disc protrusion. The Vice-Chair found that compatibility was established. While not required to establish entitlement, the presence of continuity can strengthen the causation argument. In this case, there was clear continuity of treatment.
The policy also requires that consideration be given to whether a new accident contributed to the further period of disability. The presence of a new accident does not necessarily bar entitlement if the accident is considered to be insignificant. In this case, there was no outside non-occupational incident that triggered the further period of disability. Even if she slept the wrong way, this cannot be classified as a significant new accident. It is at best an insignificant accident.
In April 2015, the worker experienced an acute onset of low back pain after doing some weeding in her garden. In October 2015, the worker's back became sore after a nine-hour car trip. Document No. 15-02-05, on recurrences, applied to these incidents. To establish entitlement for a recurrence under this policy, there must be compatibility between the original accident and the recurrence, the absence of a significant new accident and evidence of significant deterioration in the work related condition. While not required, continuity can strengthen the relationship between the work accident and the recurrence.
On the evidence, there was compatibility. Further, there was no significant new accident. The acts of gardening and travelling in a car are everyday activities that, on their own, should not have resulted in an onset of low back pain. The fact that the events occurred outside of the workplace and were personal activities was not material to the determination. The Vice-Chair was satisfied that the compensable accident was a significant contributor to the further periods of disability. Also, there were indications of significant deterioration following both episodes. On both occasions, the pain and disability were severe enough to interfere with the worker's ability to perform her job functions. She was completely off work for approximately two weeks after April 2015, and almost two months after the October flare up. In addition, the Vice-Chair found there was continuity.
The worker had entitlement for the recurrences. The appeal was allowed.