WORKPLACE SAFETY AND INSURANCE

APPEALS TRIBUNAL

DECISION NO. 2115/15

BEFORE: C. M. MacAdam : Vice-Chair

B. Wheeler : Member Representative of Employers
A. Grande : Member Representative of Workers

HEARING: October 5, 2015 at Toronto

Oral
Post-hearing activity completed on April 15, 2016

DATE OF DECISION: June 13, 2016

NEUTRAL CITATION: 2016 ONWSIAT 1550

DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated

November 1, 2012, and January 9, 2014

APPEARANCES:

For the worker: Self-represented

For the employer: G. W.

Interpreter: W. Ochana, Arabic

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle

Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étage

Toronto ON M5G 2P2 Toronto ON M5G 2P2
 Decision No. 2115/15

REASONS

(i) Introduction
[1] The worker appeals two decisions of the ARO. The decision of November 1, 2012,
denied entitlement to loss-of-earnings (LOE) benefits from June 6, 2012, and denied entitlement
to physiotherapy beyond July 3, 2012. The decision of January 9, 2014, denied ongoing
entitlement for a lumbar strain. These remain the issues for determination in the appeal.
[2] At the end of the hearing on October 5, 2015, the Panel decided to request the clinical
notes and any specialist’s reports from the family physician. This evidence was received and is
found in Post-hearing Addendum #1, dated December 7, 2015.
[3] On December 15, 2015, and January 18, 2016, the worker submitted an unsolicited new
medical report. The Panel requested written submissions from the parties on the issue of whether
the new medical report should be accepted into evidence. That process was completed by
April 16, 2016, with the Panel deciding not to accept the new medical report into evidence.
[4] The worker’s final written submissions are dated March 30, 2016. The employer chose
not to make any further submissions to those made at the hearing.

(ii) Background
[5] On May 7, 2012, the then 32-year old worker experienced low back pain while lifting
sheets of wood in the course of his duties as an assembly helper. The claim was accepted for a
diagnosis of lumbar strain. The worker was off work and received LOE benefits to
May 14, 2012, when he returned to modified duties; however, he stopped working after two
hours on that date claiming that the job duties were not suitable. A Return-to-Work Specialist
(RTWS) met with the worker and employer at the workplace, on June 6, 2012. A Return-to-
Work (RTW) plan was drafted though the worker did not return to modified duties until
July 8, 2012. In a letter dated July 11, 2012, the Case Manager (CM) indicated that no further
benefits, including LOE benefits, were payable beyond June 6, 2012. The worker objected to the
decision. In the decision of November 1, 2012, the ARO confirmed the earlier decision on the
grounds that the modified duties offered to the worker on June 6, 2012 were suitable, and that the
worker had refused that offer over the recommendations of his treating health professionals.
[6] Subsequent to the ARO decision, the worker requested ongoing entitlement for his low
back due to continued pain and discomfort. In a letter dated June 6, 2013, the CM determined
that the compensable low back strain injury had resolved and that ongoing symptoms were
related to a non-compensable pre-existing condition, calcific ankyloses. The worker objected to
the decision, though it was confirmed, with the same reasoning, in the ARO decision of
January 9, 2014.
[7] The worker now appeals both ARO decisions to the Tribunal.

(iii) Law and policy

[8] Since the worker was injured in May 2012, the Workplace Safety and Insurance Act,
1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the
WSIA, as amended, unless otherwise stated.
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[9] Section 43 of the WSIA provides in part that:

43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments
under this section beginning when the loss of earnings begins. The payments continue
until the earliest of,
(a) the day on which the worker's loss of earnings ceases;
(b) the day on which the worker reaches 65 years of age, if the worker was less than 63
years of age on the date of the injury;
(c) two years after the date of the injury, if the worker was 63 years of age or older on
the date of the injury;
(d) the day on which the worker is no longer impaired as a result of the injury. 1997,
c. 16, Sched. A, s. 43 (1).
…
(3) The amount of the payment is 85 per cent of the difference between his or her net
average earnings before the injury and any net average earnings the worker earns after the
injury, if the worker is co-operating in health care measures and,
(a) his or her early and safe return to work; or
(b) all aspects of a labour market re-entry assessment or plan. 1997, c. 16, Sched. A,
s. 43 (3); 2000, c. 26, Sched. I, s. 1 (6).
[10] As noted above, the issue before the Tribunal is the worker’s entitlement to LOE benefits.
Under section 43(1) a worker who has a loss of earnings as a result of a compensable injury is
entitled to LOE benefits. A refusal of suitable work is not necessarily an act of non-cooperation,
but it may lead to a conclusion that the worker’s loss of earnings does not result from the injury.
Section 43(2) operates to reduce a worker’s benefits where the worker refuses suitable
employment. Thus, a worker who refuses suitable employment at no wage loss is not entitled to
LOE benefits because the loss of earnings is not caused by the injury, but by the refusal of
suitable employment.
[11] Tribunal jurisprudence applies the test of significant contribution to questions of
causation. A significant contributing factor is one of considerable effect or importance. It need
not be the sole contributing factor. See, for example, Decision No. 280.
[12] The standard of proof in workers’ compensation proceedings is the balance of
probabilities.
[13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages,
Revision #9, would apply to the subject matter of this appeal: 105, 224, 228, and 300.
[14] Operational Policy Manual (OPM) Document No. 19-02-01, “Work Reintegration
Principles, Concepts, and Definitions” states, in part, the following:
Suitable work
Suitable work means post-injury work (including the worker’s pre-injury job)
that is safe, productive, consistent with the worker’s functional abilities, and that,
to the extent possible, restores the worker’s pre-injury earnings.
[15] OPM Document No. 18-03-02 “Payment and Reviewing LOE Benefits (Prior to Final
LOE Review),” explains the circumstances in which “Treatment with No Return to Work” is
appropriate:
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If the nature or seriousness of the injury completely prevents a worker from returning to
any type of work, the worker is entitled to full LOE benefits, providing the worker
co-operates in health care measures as recommended by the attending health care
practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB
may reduce or suspend the worker's LOE benefits.

(iv) Testimony
[16] The worker immigrated to Canada on April 18, 2011. He was hired by the accident
employer on November 19, 2011. He testified that Dr. Atalla, the family physician, had told him
that his calcific ankyloses was hereditary. He testified that he had had no problems related to that
condition prior to the workplace injury. For this reason, he believes his ongoing pain is related to
the workplace injury. He continues to see Dr. Atalla.
[17] The worker testified that he had no problems with the modified job he returned to on
May 14, 2012. The worker described it as an “almost nothing job” where he gave out tools and
had no problems with it.
[18] The worker has not returned to work since he was last in physiotherapy in July 2012. He
Employment Insurance benefits for a period, then social assistance, and now receives Ontario
Disability Support Program (ODSP) assistance.

(v) Documentary and medical evidence

[19] The medical evidence at the time of the October 5, 2015, hearing included the following.
[20] On May 5, 2012, two days before the workplace accident, the worker underwent a lumbar
x-ray. The report of May 7, 2012, from the radiologist, Dr. J. Haroun, indicated a “complete
fusion of the sacroiliac joints bilaterally” and “squaring of the vertebral bodies” related to
“ankylosing spondylitis.” The impression was ankylosing spondylitis and clinical correlation was
recommended.
[21] A May 24, 2012 lumbar MRI report from the radiologist, Dr. B. Kwan, indicated a
history of ankylosing spondylitis, and findings of mild degenerative disc disease (DDD)
especially at the L4-5 level.
[22] A Health Professional’s Report (Form 8) was completed by Dr. S. Axler on the accident
date of May 7, 2012. The report indicates the worker had no pre-existing condition that may
delay recovery. The diagnosis was lumbar back strain with nerve irritation. Dr. Axler indicated
the worker could return to modified work
[23] On May 10, 2012, Dr. Atalla, completed a Functional Abilities Form (FAF) indicating
the worker could return to modified duties on May 12, 2012.
[24] A physiotherapy report of May 14, 2012, diagnosed an acute lumbar muscle strain and
authorized the worker off work to May 21, 2012.
[25] On May 17, 2012, Dr. Atalla completed a Progress Report indicating the worker could
return to modified duties. A May 18, 2012 MRI referral from Dr. Atalla indicated the worker had
“severe” ankylosing spondylitis.
[26] On May 22, 2012, the physiotherapist authorized the worker off work to May 28, 2012.
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[27] The lumbar MRI report from the radiologist, Dr. B. Kwan, noted the history of
ankylosing spondylitis. The impression was mild degenerative disc disease (DDD) of the lumbar
spine especially at the L4-5 level.
[28] On May 28, 2012, the physiotherapist authorized the worker off work to June 2, 2012.
[29] On June 5, 2012, the worker was assessed at a Regional Evaluation Centre (REC) by a
neurosurgeon, Dr. H. Smyth, and a chiropractor, Dr. D. Dos Santos, with the assistance of an
Arabic interpreter. The report of that date indicated the worker reporting no past injuries. The
MRI findings were noted. On examination, the assessors noted “self-limiting behavior” and the
physical examination was not completed. The diagnosis was lumbar sprain/strain with functional
overlay and symptom magnification. Four weeks of physiotherapy was recommended followed
by a recommended return to work with restrictions for lifting over 20 pounds, twisting, and
bending. A full recovery was expected with no permanent impairment. In a June 13, 2012
follow-up report, Dr. Smyth indicated the MRI study had been reviewed and did not change their
recommendations.
[30] On July 7, 2012, Dr. Atalla completed an FAF indicating the worker could return to
modified duties.
[31] On May 11, 2013, Dr. Atalla completed a Form 8 where he indicated the worker had a
past history of ankylosing spondylitis, and indicated that the worker could return to modified
work with low back limitations.
[32] On May 18, 2013, Dr. Atalla submitted his clinical notes to the Board for the period
June 2, 2012 to May 18, 2013. In his cover note, Dr. Atalla indicated the worker was “suffering
from ankylosing spondylitis (before the accident)” a condition that can affect the movement and
cause recurrent back pains for which he was seen by specialists. Dr. Atalla confirmed he had
seen the worker for ankylosing spondylitis on May 5, 2012, two days before the workplace
injury.
[33] The post-hearing medical documentation includes the following:
 A May 24, 2011 lumbar x-ray report from Dr. C. Bloom indicated slight scoliosis to the
left, no significant DDD and possible ankylosing spondylitis.
 A June 4, 2011 report from the rheumatologist Dr. J. Wan indicated the then 31-year-old
worker had a two-year history of progressive low back pain. On examination, the diagnosis
was ankylosing spondylitis.
 A September 30, 2011 report from an internal medicine specialist, Dr. J. Singh, indicated
the worker had a diagnosis of ankylosing spondylitis, where the worker had been
“experiencing chronic lower back pain over the past three to four years, made worse in cold
and better when he was back in [his home country].” The worker was complaining of
increased fatigue and reduced range of motion (ROM) in his trunk. Dr. Singh noted the
worker had been seen by “rheumatologists” who had diagnosed ankylosing spondylitis, and
the worker had indicated his cousin had a similar problem. On examination, Dr. Singh
confirmed the diagnosis, and indicated he advised the worker that “exercise is very
important to maintain good movements.” Dr. Singh referred the worker back to Dr. Wan.
 An October 26, 2013 report from a rheumatologist, Dr. F. Hamideh, noted the worker’s
opinion that his back problems began with the workplace strain injury, though on
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examination, the assessment was “ankylosing spondylitis especially in the presence of his
x-ray findings and chronic symptoms with family history.”
 The July 16, 2014 and July 22, 2015 reports from rheumatologist, Dr. M. A. Pinto,
indicated the worker being seen for “ankylosing spondylitis secondary to his x-ray findings
of complete fusion of the sacroiliac joints bilaterally and slowing syndesmophytes with
squaring of the vertebral bodies.” There is no mention of the May 2012 lumbar strain injury
in either report.

(vi) Submissions
[34] In his very brief written submission, the worker submits that he only experienced low
back pain for the first time after the May 7, 2012 workplace injury. On this basis, he argues that
his appeal should be allowed.
[35] At the hearing, the employer submitted that they had complied with the RTWS
recommendations concerning modified duties as set out in the Functional Abilities Forms (FAFs)
that had been submitted. The worker was placed in the tool supply section of the company that
involved light duties.

(vii) Analysis
[36] After considering all the evidence, the Panel finds the appeal should be denied. We find
the worker’s low back was symptomatic prior to and at the time of the May 7, 2012 workplace
strain injury, related to his history of ankylosing spondylitis. We find the workplace strain injury
had resolved by June 6, 2012, and that the worker’s need of physiotherapy after that date related
to the pre-existing condition. There is no ongoing entitlement for the workplace strain injury.
Our analysis follows.
[37] The medical reporting from Dr. Atalla and several of the specialists indicates the worker
had a longstanding history of ankylosing spondylitis prior to the reported May 7, 2012 workplace
injury. That condition was first diagnosed by Dr. Wan on June 4, 2011. Dr. Wan had indicated a
two-year history of progressive low back pain related to ankylosing spondylitis. On
September 30, 2011, Dr. Singh confirmed the diagnosis and indicated chronic low back pain for
the previous three to four years. That would indicate an onset of low back symptoms in 2007 or
2008. The worker was being treated for ankylosing spondylitis on May 5, 2012, as per the x-ray
report from Dr. Haroun and Dr. Atalla’s clinical note.
[38] The Tribunal’s Discussion Paper on Back Pain, by orthopaedic surgeons,
Dr. W. R. Harris and Dr. J.F.R. Fleming, states that ankylosing spondylitis is:
… an inflammatory arthritis that affects the spinal column, sacroiliac joints and
sometimes the hips. It occurs almost exclusively in young males. Its cause is unknown. It
produces fusion of the spinal column…It is characterized by intermittent flare ups of
back pain often with leg radiation…Eventually the process “burns out” leaving the
patient with a stiff but painless spine. Although some authorities believe that trauma
plays a role in its onset, the evidence is that it is not caused by trauma.
[39] The foregoing evidence persuades the Panel that the worker had been experiencing
intermittent flare-ups of low back pain related to ankylosing spondylitis for some years prior to
2012, and on May 5, 2012, prior to the workplace injury of May 7, 2012, as per Dr. Atalla’s
May 18, 2013 cover letter to his clinical note.
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[40] The other significant aspect of this case is that certain treating health professionals were
apparently unaware of the worker’s pre-existing ankylosing spondylitis. Dr. Axler, who
completed the Form 8 on the accident date indicated the worker reporting no previous condition,
despite the worker’s history of low back pain related to ankylosing spondylitis for which he had
been treated just two days before the workplace injury was reported. The physiotherapist, who
authorized the worker off work for several weeks, made no mention of the pre-existing condition
in their reports. The REC assessment report indicated the worker could not recall any past
injuries and there is no mention of the pre-existing condition in the report. We place full weight
on Dr. Harris and Dr. Fleming’s evidence in the Discussion Paper that ankylosing spondylitis is
characterized by intermittent flare-ups of back pain. We also place full weight on the evidence of
the specialist, Dr. Singh, who confirmed the diagnosis and indicated he advised the worker that
exercise is very important to maintain good movements. We prefer this evidence to that of the
health professionals who were apparently unaware of the pre-existing condition and who
authorized the worker off work after the workplace injury. We note that Dr. Atalla, who had
been aware and had been treating the worker’s pre-existing condition indicated in his Form 8
after the workplace injury that the worker could return to modified duties.
[41] We note the worker’s testimony that the modified job he returned to involved distributing
tools and caused no problems for him. The worker’s testimony does not explain why he refused
the modified duties after performing them for two hours on May 14, 2011, and why he refused
them again at the June 6, 2012 return-to-work meeting until July 8, 2012, when he returned to the
modified job. The copy of the employer’s May 10, 2012 written offer of modified duties is
consistent with the worker’s testimony that the job was very light and involved giving out tools.
The offer indicated the job involved “sign in and out light hand tools, issuing miscellaneous
items such as safety glasses, and dust masks to employees” and that the worker had limitations
for bending/twisting, climbing and lifting. We find the modified duties were suitable for the
worker.
[42] In summary, we find the REC assessor’s apparent mystification and reference to
functional overlay and symptom magnification on June 6, 2012 concerning the worker’s
condition is reasonably explained by their lack of awareness of the worker’s ankylosing
spondylitis. That condition, characterized by flare-ups of low back pain that the worker had been
experiencing from 2007 or 2008, and on May 5, 2012, two days before the reported workplace
injury, would, in our view, reasonably explain the worker’s symptoms in light of the MRI
findings before the REC assessors that indicated only mild DDD. We find therefore, that the
worker’s low back symptoms from June 6, 2012, were, on a balance of probabilities, related to
the underlying condition and were not related to the reported workplace injury. There is no
entitlement to LOE benefits beyond June 6, 2012, and no ongoing entitlement for the workplace
injury.
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DISPOSITION

[43] The appeal is denied. There is no entitlement to LOE benefits from June 6, 2012 and no
ongoing entitlement for the workplace low back injury.

DATED: June 13, 2016

SIGNED: C. M. MacAdam, B. Wheeler, A. Grande