SUMMARY DECISION NO. 1826/00. Aggravation (preexisting condition) (spondylitis) (ankylosing).

Transcription

1 SUMMARY DECISION NO. 1826/00 Aggravation (preexisting condition) (spondylitis) (ankylosing). DECIDED BY: Farago DATE: 30/11/2000 NUMBER OF PAGES: 16 pages ACT: WCA

2 2000 ONWSIAT 3333 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1826/00 [1] This appeal was heard in Toronto on July 18, 2000 by Tribunal Vice-Chair M. Farago. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer, E. Mroczek, dated July 15, 1999 which concluded that the worker was not entitled to ongoing benefits beyond June 30, 1993 for a disability allegedly resulting from his compensable accident of June 24, [3] The worker appeared and was represented by P.D. Franco, consultant. The employer was advised of the appeal proceedings but chose not to participate in the hearing. THE RECORD [4] I considered the material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1). In addition, I considered a copy of a letter from the Officer of the Vice- Chair Registrar to the worker s representative confirming the arrangements made for the worker s hearing (Exhibit #2) and Addendum No. 1 to the Case Record, containing a related claim file from an accident that the worker had in 1987 (Exhibit #3). [5] At the hearing, Mr. Franco asked me to accept a report from Dr. D.A. Logan dated June 23, This report had been solicited by Mr. Franco, although he advised that it was not requested with a letter. Mr. Franco advised that he only obtained the report on June 30, which was after the Tribunal s three-week deadline for the submission of new evidence. Despite the late submission of the report, I found that it did constitute relevant evidence that would assist in the adjudication of the worker s claim. Therefore, I agreed to accept the report and I marked it as Exhibit #4. [6] I heard oral evidence from the worker. Submissions were made by Mr. Franco. THE ISSUES [7] I am required to determine whether the worker is entitled to further benefits from June 30, 1993 on the basis that he was still disabled as a result of his accident of June 24, Specifically, it was argued that the worker s accident had aggravated his pre-existing condition of ankylosing spondylitis and that, were it not for the accident, he would have been able to continue working.

3 Page: 2 Decision No. 1826/00 THE REASONS (i) Background [8] The worker was born on February 4, He was hired in a full-time seasonal job as a maintenance worker and general labourer at a golf course. He started work on May 12, 1992, helping to build a long stone wall, made of a variety of sizes of stones. Some would weigh several hundred pounds while others would be just a few pounds. After a couple of weeks, the worker advised his employer that he had back pain but he wanted to continue working. [9] On June 24, 1992 the worker was using a metal rod in an attempt to move a large stone weighing several hundred pounds. He started to experience back pain at that time. The next day his pain had increased and he could not put on his shoes. He did not go to work, but he did not report the accident to his employer immediately as hoped that his back condition would improve. After about a week, the worker informed his employer of the injury. [10] The worker saw his family physician, Dr. C. Cretiu, on June 30, claiming that he was not able to work. Dr. Cretiu reported that while lifting heavy weights at work, the worker developed a low backache. The worker was advised to remain off work. [11] In a letter dated September 22, 1992, Dr. Cretiu explained that when the worker was seen initially in June, he had a tender low back. The worker was diagnosed with an acute low backache and he was recommended to take the analgesic and anti-inflammatory medication, Surgam. [12] At that time, it was agreed that the worker would try to return to work on July 6, 1992, but on July 2 the worker returned to the doctor and stated that he was not able to return to work because of back pain. The worker was then referred for physiotherapy treatments. [13] The worker was seen again on July 13 and on July 15 the doctor completed his Physician s First Report. The doctor was then on holidays for the month of August. [14] The worker was next seen on September 10, at which time he still had a low backache. The worker was undergoing physiotherapy treatments three times weekly. [15] Dr. Cretiu reported on the worker s previous back injuries. On April 20, 1987, the worker had a back injury. He was seen by his previous family physician on April 23, 1987 and by Dr. Cretiu on April 28, He had tried working a few days after the accident but he his back was still bothering him so he remained off until May 19, The worker returned to his regular job and no further recurrences were reported under this claim. [16] On April 18, 1988, the worker was off work again for a low backache and he returned to work on April 29, The worker was again seen by Dr. Cretiu on May 4, 1988 and May 13, 1988, when he complained of low backache. [17] The worker was also seen for a low backache on December 10, 1990; November 20, 1991; April 1, 1992; and May 4, 1992.

4 Page: 3 Decision No. 1826/00 [18] The worker had attended a Board Regional Evaluation Centre on September 17, 1992, where he was seen by neurosurgeon Dr. S.R. Iwan, and a physiotherapist. In a report dated September 22, 1992, it was reported that the worker had pain in the low back radiating to both buttocks and occasionally going down the right leg. [19] On examination, the worker was able to flex to the mid-shin level and this would cause him low back pain. Extension was full, with an increase in buttock pain. Lateral flexion was fairly full and unrestricted. [20] Dr. Iwan diagnosed the worker as having lumbosacral strain. It was felt that the worker s prognosis was poor in the short-term but was good over the range of three to six months. The worker was still attending physiotherapy and it was suggested that he also receive back education. [21] In October 1992 the Board considered the worker s entitlement to benefits. Although it was noted that the worker had prior back problems even in the month prior to his injury, it was acknowledged that his job involved heavy lifting. The Board also contacted Dr. Cretiu to confirm his diagnosis of the worker. The doctor stated that when he indicated that the worker had a low back ache this should be interpreted as being synonymous with low back strain or lumbar strain. [22] The claim was reviewed by Board doctor, Dr. M. Schofield on October 28, In her opinion, there was a minor pre-existing condition. The diagnosis of lumbosacral strain was compatible with the accident history. A permanent impairment did not appear likely at that time, given the physical findings in the Regional Evaluation Centre report. Based on these findings, the worker s claim was allowed on an aggravation basis. [23] The worker saw Dr. R. Faraawi, rheumatologist, on November 23, In a report dated November 29, Dr. Faraawi indicated that the worker still suffered from severe low back pain which radiated to the groin. [24] Dr. Faraawi reported that the worker s younger brother was also his patient and that the brother had ankylosing spondylitis. He was also positive for the HLA B-27 antigen. The significance of this finding is explained later in this decision. [25] The worker also told Dr. Faraawi that he had another brother and sister who suffered from lower back pain. [26] On examination, the worker had severely restricted forward flexion and extension. He had tenderness of both sacroiliac joints. Diffuse swelling and redness was observed on the worker s second and third toes. The toe joints were tender as well. [27] According to Dr. Faraawi, the worker s history and his clinical examination were highly consistent with a finding of ankylosing spondylitis. The worker was described as having dactylitis of the second and third right toes. His lower back pain was considered to be inflammatory in origin.

5 Page: 4 Decision No. 1826/00 [28] Dr. Faraawi was of the opinion that the worker s ankylosing spondylitis was not workrelated but that his symptoms were precipitated at work. The worker was given antiinflammatory medication. [29] The worker was contacted on November 26, 1992 and advised that, based on the recommendation of the Regional Evaluation Centre, he was partially disabled and capable of light duties. The worker advised that he was totally disabled and he was not prepared to participate in Vocational Rehabilitation services at that time. As a result, his benefits were reduced to 50% effective one week from the Board letter dated December 18, [30] Following the recommendations of the Board s Regional Evaluation Centre, the worker was referred for physiotherapy at the Canadian Back Institute. The worker was examined there on December 8, 1992 by D. Wilkinson, Registered Physiotherapist. Mr. Wilkinson reported that the worker had bilateral back pain across the lumbar and thoracic paravertebrals. The symptoms would radiate down into the right buttock area. [31] The symptoms were considered to have improved since they first began, but they were not completely gone. The worker described his symptoms as being constant and they were worse with bending or sitting longer than 20 minutes. Although the worker had received about three months of therapy at another clinic, no significant improvement was reported. [32] According to the physiotherapist, the worker appeared to have a mechanical type of back pain which was primarily the result of shortened and irritable lumbar soft tissues. It was recommended that the worker undertake a comprehensive program of exercises aimed at restoring his flexibility and strength. If he was involved in specific work-related tasks, it was expected that the worker could be restored to employability. [33] The worker underwent a whole body bone scan on December 11, This found mild symmetric increased activity involving the sacroiliac joint regions bilaterally. It was felt that this could indicate a mild sacroiliitis. There was also a mild diffuse uptake in the right hip joint region which could represent a mild arthropathy. There were also diffuse findings involving the right second and third and left second MTP joints of both feet. [34] In a report dated December 22, 1992, Dr. Faraawi reported that the worker s inflammation of his second and third right toes had improved dramatically with the anti-inflammatory medication. There was no tenderness and swelling of the second and third toes on the right. [35] According to Dr. Faraawi, an x-ray of the sacroiliac joint was normal. However, this did not rule out the diagnosis of ankylosing spondylitis. On testing, the worker was found to have a positive sign for the HLA-b27 antigen. Dr. Faraawi stated that the worker had ankylosing spondylitis with peripheral arthritis. The worker was treated with an anti-inflammatory medication. [36] A report from D. Wilkinson, physiotherapist, dated December 22, 1992, indicated that the worker was being discharged from the Canadian Back Institute. The worker had been receiving treatment for about a week and a half. However, he said that Dr. Faraawi felt that the worker s exercise program was not appropriate. The worker was referred to another clinic.

6 Page: 5 Decision No. 1826/00 [37] According to the physiotherapist, the worker had made some improvement in his subjective reports of pain and his objective exercise tolerance. It was felt that the worker needed to continue with an active rehabilitation program rather than with passive modalities. [38] The November 29 report from Dr. Faraawi was reviewed by Dr. Schofield on December 23, At that time it was concluded that there were no physical findings in Dr. Faraawi s report to indicate a deterioration in the worker s condition. As a result, the restrictions noted in the Regional Evaluation Centre report were considered to remain suitable. [39] In the early months of 1993, the worker reported in his Progress Reports that his back was slightly better than it had been in the previous year. [40] The worker contacted the Board on February 15, 1993 to advise that he was in agreement with the medical restrictions listed in his file and that he was willing to co-operate with Vocational Rehabilitation services. He had remained off work since June 30, [41] Dr. Schofield again reviewed the worker s file on May 31, She stated that based on Dr. Faraawi s report of December 22, 1992, it appeared that the worker s back problems were related to his non-compensable ankylosing spondylitis. Given the recommendations of the Regional Evaluation Centre report of September 17, 1992, it appeared that the worker had fully recovered from his compensable injuries. [42] In a letter dated June 24, 1993, the worker was advised that, based on the medical evidence, he had recovered from his compensable condition, but he was considered to have a major pre-existing condition. The worker s benefits were closed as of June 30, [43] The worker obtained a representative who, on September 10, 1993, wrote to the Board to object to the closure of benefits. [44] The Board was later provided with a report from Dr. Faraawi dated September 20, This indicated that the worker was seen on September 16 with complaints of pain and stiffness in both ankles and feet. His arthritis was reported to have acted up. A few weeks earlier, the worker s right knee had acted up and Dr. Cretiu had started the worker on Voltaren. [45] The matter was ultimately remitted to the Decision Review Specialist, who requested a medical opinion regarding the worker s claim of permanent impairment from Board doctor, Dr. A. Malayil, on March 8, [46] In a memo dated March 11, 1994, Dr. Malayil summarized the history of the worker s claim. She stated that, based on all the evidence on file, it appeared that the worker had reached maximum medical rehabilitation by no later than June 30, It did not appear that there were any permanent restrictions as a result of the injury of June 24, The restrictions that were recommended by the worker s treating physicians appeared to be due to the worker s preexisting ankylosing spondylitis. [47] Based on Dr. Malayil s opinion, the worker s claim for further benefits was denied.

7 Page: 6 Decision No. 1826/00 [48] The worker s claim ultimately came before an Appeals Resolution Officer. In preparation for this hearing, the worker s representative submitted some general medical information on the topic of ankylosing spondylitis. [49] Much of this information is similar to that found in the reports on ankylosing spondylitis that were prepared by Dr. D.D. McCarthy for the Tribunal. These reports are described later in this decision. [50] In written submissions, the representative noted that one article by Austin D. Johnston and Lois Caswell from 1976 stated the following regarding precipitating factors of ankylosing spondylitis: Studies have also been made of precipitating factors. In most cases no immediate precipitating factor could be detected while in the others findings were variable and included trauma, exposure, infection and psychic stress. In 8 percent of cases minor back trauma brought on the symptoms but doctors feel that the injury only made clinical an already existing condition. [51] In addition, the representative referred to Tribunal Decision No. 379/87 (November 8, 1989). In that case, a 40 year-old construction worker suffered an accident in 1977 when he slipped on ice and fell backwards. The worker was diagnosed with cervical and lumbosacral sprain and it was expected that he would be disabled for several weeks. [52] The worker never returned to work and, after some investigation, it was eventually concluded that the worker was suffering from ankylosing spondylitis. [53] Board doctor, Dr. Doyle, was asked for an opinion regarding the compensability of the worker s condition. In Dr. Doyle s opinion, the Board could not accept that the worker s single episode of trauma could play a significant part in the causation of his ankylosing spondylitis. It was suggested that the worker should be granted a relatively small permanent disability award to recognize the stress of the accident to the worker s cervical and lumbar regions. However, the majority of the worker s disability would be considered to be attributable to the worker s preexisting condition. The Board also received an opinion from a neurologist, Dr. J. Swanson, which suggested that the accident was sufficient to stir up trouble in the worker which was previously asymptomatic. Dr. Swanson later elaborated by stating that the worker was able to work despite his ankylosing spondylitis until he injured his neck and back. Subsequent to his accident, the worker was considered to be totally incapacitated. [54] The Board accepted Dr. Doyle s opinion and awarded a 20% pension to the worker. When the issue came before the Tribunal Panel, a medical opinion was requested regarding the causal relationship between the worker s disability and his compensable accident. [55] Dr. D.D. McCarthy provided a report dated February 3, After reviewing the claim in some detail, Dr. McCarthy responded to questions from the Panel by stated that he did not see evidence that the worker s ankylosing spondylitis became symptomatic prior to his compensable accident. Furthermore, there was no indication it would have continued to become symptomatic in the absence of his accident.

8 Page: 7 Decision No. 1826/00 [56] Dr. McCarthy did state that there was a probable relationship between the accident and the onset of the worker s symptoms of ankylosing spondylitis. The Panel in Decision No. 379/87 accepted the opinions of Dr. McCarthy and Dr. Swanson and found that the worker s industrial accident rendered the worker s pre-existing condition of ankylosing spondylitis symptomatic. Applying the Board s policy regarding pre-existing conditions, it was concluded that the worker was entitled to benefits for the condition of ankylosing spondylitis. [57] Before making a decision in the present case, in April 1999 the Appeals Resolution Officer requested a further opinion from Dr. Malayil. The Appeals Resolution Officer noted arguments put forward by the worker s representative which suggested that the worker s condition of ankylosing spondylitis was an underlying and pre-existing condition which was aggravated by the accident and the worker had not recovered to his pre-accident state. As a result, it was claimed that the worker did have a permanent impairment as a result of his compensable injury. [58] In her response of May 4, 1999, Dr. Malayil stated that she did not think there was any new information on file which would change her previous opinion that the worker had recovered from his compensable soft tissue strain of the low back. Dr. Malayil noted that the worker had a history of recurrent episodes of low back pain up until May Dr. Malayil suggested that the condition of ankylosing spondylitis could have been the reason for the worker s previous episodes of low back pain. [59] Dr. Malayil stated: Ankylosing spondylitis is a form of inflammatory arthritis and symptoms develop due to its own inflammation. Trauma to the bones, such as fractures or injury through the joints, may aggravate or increase the degree of inflammation present, but in this worker s case, the medical information on file does not indicate any bony or joint involvement. Studies have shown no significant evidence to indicate that an injury accelerates the progress of the disease. In the Discussion Paper from Dr. Dale McCarthy dated June 1992, he has stated that the degree of symptoms may vary markedly from one period of time to another within the same individual, depending on the degree of inflammation present at that time and the use of anti-inflammatory medications. [60] In light of these facts, Dr. Malayil stated that it was unlikely, in her opinion, that the worker s compensable injury of June 24, 1992 caused an aggravation of the worker s preexisting ankylosing spondylitis. [61] Based on this opinion, the Appeals Resolution Officer denied the worker s claim in his decision of July 15, [62] Included in the Case Record that was prepared for the purposes of the hearing before the Tribunal were two reports from Dr. D.D. McCarthy, specialist in internal medicine. These were generic reports on the issue of ankylosing spondylitis that were prepared at the request of the Tribunal s Medical Liaison Office. [63] The first report, dated March 16, 1988, provided the following general information regarding the condition of ankylosing spondylitis: Ankylosing spondylitis is a form of inflammatory arthritis that primarily affects young males. The joint inflammation tends to involve the sacroiliac joints and later may involve

9 Page: 8 Decision No. 1826/00 the small joints of the vertebral column and the large joints such as shoulders and hips, although about twenty percent may have involvement of the small peripheral joints as well. Age of onset is usually in late teens or early twenties. [64] With respect to the symptoms, Dr. McCarthy stated that these usually consisted of pain centrally located in the lower back which may radiate from there. At times, the symptoms may be attributed to muscular strain and the condition may not be recognized for several years. The cause of the pain is usually the inflammation of the sacroiliac joints. The inflammation may cause an anatomical change which may eventually lead to the fusion of the joint. The same process may involve the small joints of the vertebral column in the lumbar region as well as in the neck and middle back. [65] Dr. McCarthy stated that the disease is known to be associated with the tissue antigen identified as HLA B-27. He went on to say: This particular tissue antigen is found in approximately eight percent of the Caucasian population and it is estimated that possibly up to five percent of this group of people may develop ankylosing spondylitis either partially or fully developed. Other incidence figures will quote 1:1000 population. [66] With respect to the relationship between an external trauma and the condition of ankylosing spondylitis, Dr. McCarthy stated that the symptoms of the disease might be aggravated by trauma, particularly if there had been some degree of previous stiffening occurring in the back. [67] In July 1992 Dr. McCarthy provided the Tribunal with an addendum to his previous report which elaborated on the question of the relationship between injury and the development of the disease. He stated: There is little evidence to indicate that injury may accelerate the progress of the disease. It is a condition which progresses to variable extent in different individuals, from radiological evidence of sacroiliitis only at one end of the spectrum, to complete ossification (bony fusion) of the entire vertebral column, at the other end of the spectrum. It is fair to say that a back injury might aggravate a pre-existing condition on a mechanical basis. [68] As mentioned above, prior to the hearing in this matter, the worker saw Dr. D. Logan, general practitioner. Dr. Logan submitted a report dated June 23, 2000 which was marked as Exhibit #4. In his report, Dr. Logan stated that all movement of the worker s back were somewhat restricted by 10 to 20 % of the normal range. According to Dr. Logan, the worker had proven ankylosing spondylitis which was asymptomatic prior to his compensable accident of June 24, Subsequently, the worker developed chronic back pain with exacerbations of his inflammatory spinal problem. In Dr. Logan s opinion, the compensable accident was significant, and it rendered a previously asymptomatic pre-existing condition symptomatic. (ii) The worker s testimony [69] The worker described his previous compensable back injury in At that time he was working in a factory. After lifting the landing gear of an airplane weighing greater than 200 pounds, the worker could not breathe and he went home.

10 Page: 9 Decision No. 1826/00 [70] The worker was off work for about two weeks and then returned to his normal work, polishing parts for airplane landing gears. Shortly thereafter, the worker found another job at a meat processing facility where he worked as a butcher. This was a difficult job which involved cutting meat and bone with a knife. The worker would frequently work overtime shifts, bringing his weekly hours of work to 50 or 55 hours. [71] The worker was asked whether he recalled what had brought on instances of back pain between 1988 and his accident in A few such instances were recorded by Dr. Cretiu in his report of September 22, The worker could not recall any particular accident or other event that would bring on the pain. However, he stated that he was working hard and that he could have felt pain after working long hours at work. [72] In June 1992, the worker was employed building a wall made of heavy rocks. He estimated that boulders at the base of the wall weighed 200 to 300 pounds, while those that were higher on the wall were somewhat smaller. The worker started working May 12 and he would work hard, from 6 a.m. to 7 p.m. each day. [73] On June 24, 1992, he felt a pain in his back and finished work that day. [74] With respect to his medical treatment, the worker indicated that following his assessment at the Board Regional Evaluation Centre in September 1992 his back condition actually became worse, rather than improving. [75] Dr. Faraawi had told the worker that he would have to live with his symptoms. The worker had not seen Dr. Faraawi in the recent past. However, he continued to see his current family physician, Dr. Saeed, for his medication. [76] The worker was asked if he looked for work after his benefits were discontinued in June The worker indicated that, given his restrictions against lifting, bending and climbing, he did not know where he could find work. In the past, he could do physical work but he felt very weak following his 1992 accident. The worker did recall that he may have been referred to some employers but he was ultimately not successful in obtaining employment. He did not work again until the year [77] In February of 2000 the worker had begun part-time work as a pastor in a church. He would also be responsible for opening and closing the church and for translating from time to time. He was paid to work 20 hours each week. The worker indicated that he was able to do this job because he was allowed to stand or sit as needed and he did not have to be in one place all the time. [78] The worker was asked whether his back condition had changed. He indicated that it changed a little, in that it was not acute as it had been in the past. However, the worker had pain from his neck, down his back, to his calf. His right hip would sometimes be in pain. The worker indicated that he had trouble sleeping at night and that his hands would sometimes go numb. His fingers would also be stiff in the morning. The worker was not able to sit for a long time and, during the hearing, he demonstrated a need to stand up after having been seated for a period.

11 Page: 10 Decision No. 1826/00 [79] Finally, the worker testified that he came from a family of 10 children. As far as he knew, only one brother had the condition of ankylosing spondylitis. He indicated that other siblings did not have such back problems. (iii) Submissions on behalf of the worker [80] The worker s representative submitted that the worker was requesting compensation from June 30, 1993, including assessments for a Non-Economic Loss award and a Future Economic Loss award. In addition, he requested a Labour Market Re-entry assessment. [81] The worker s representative submitted that, prior to his accident in June 1992, the worker had sporadic incidents of back pain. However, he was always able to continue with his job duties involving heavy physical work. He did not have knowledge of his pre-existing condition of ankylosing spondylitis and was not affected by it. [82] The representative claimed that the specific incident of June 24, 1992 was the precipitating factor which rendered the worker s pre-existing condition symptomatic. [83] The worker never returned to his pre-accident state, in which he had been able to engage in heavy labour. Ultimately, it was argued, the Board stopped paying the worker benefits without having regard to the effect of the worker s accident on his pre-existing condition. [84] It was argued that the worker should at least be considered to be partially impaired since the date of his accident. [85] The representative submitted a copy of Tribunal Decision No. 320/87 (November 9, 1989). This was an appeal involving a worker who suffered a series of strain injuries to his back in 1968, 1970 and After short periods of lost time in May 1970, November to December 1970 and March 1971, the worker was able to return to his pre-accident employment. [86] The worker in Decision No. 320/87 suffered exacerbations of his back disability in the winter of 1973 and the spring of He received further benefits during these periods. When the worker s diagnosis of ankylosing spondylitis was confirmed in 1975, the Board disallowed any further benefits on the basis that any continued disability was caused by his underlying preexisting condition, rather than his work-related accidents. [87] The worker argued that the worker s accident in 1968 aggravated his disease process, resulting in symptomatic ankylosing spondylitis. It was claimed that the worker did not suffer from any symptoms prior to [88] The Panel in that appeal considered medical evidence that suggested that severe trauma might aggravate the ankylosing spondylitis disease process to the point that the worker would develop clinically recognizable symptoms. The Panel also had the generic report from Dr. D.D. McCarthy which had been solicited by the Tribunal. In his report, Dr. McCarthy indicated as follows: The condition may become symptomatic by virtue of its own inflammation but the symptoms might be aggravated by trauma particularly if there has been some degree of previous stiffening occurring in the back. If the vertebral column becomes more rigid

12 Page: 11 Decision No. 1826/00 because of the changes in the joints and ligaments then, not being as pliable as normal, it may be more subject to discomfort arising out of jolting types of trauma The degree of symptoms may vary markedly from one period of time to another within the same individual depending on the degree of inflammation present at that time and the use of the anti-inflammatory medications. Over the period of years the tendency is for the symptoms to diminish... [89] The Panel in Decision No. 320/87 accepted the evidence of Dr. McCarthy and found that there can be a link between a physical trauma and symptomatic ankylosing spondylitis. That is to say, a previously non-symptomatic condition could be rendered symptomatic by trauma. [90] Based on the evidence before them, the Panel members accepted that the worker s ankylosing spondylitis was rendered symptomatic by his accident of August 1968 and it was further aggravated by the injuries sustained in 1970 and As a result, the worker was granted to further benefits for his low back disability. [91] At the hearing in the present appeal, I noted that Exhibit #2, the letter from the Office of the Vice-Chair Registrar, mentioned that the Medical Liaison Office had reviewed the worker s file. The letter stated that if the Panel (or Vice-Chair) was unable to reach a decision in the appeal, an assessor could be asked to review the case materials. I asked Mr. Franco whether he had any comments regarding this suggestion. Mr. Franco advised that he did not think it would be useful to ask for the assistance of a medical assessor in this case. (iv) Law and policy [92] As the hearing in this matter took place after January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. In particular, the WSIA provides that prior versions of the Workers Compensation Act continue to apply to pre-1998 injuries. In addition, section 126 of the WSIA requires the Tribunal to apply Board policy in reaching its decision in this appeal. [93] As the worker s claim dates from 1992, the pre-1997 Workers Compensation Act applies to this appeal. [94] The Board provided Operational Policy Manual Document # : Temporary Total & Temporary Partial Disability (August 9, 1991). A portion of this policy provides the following guidelines regarding temporary total and temporary partial disability: Temporary total disability is the complete inability to earn full pre -accident wages for a limited period of time as a result of the physical and psychological effects of the injury and the necessity for medical treatment. A worker who is unemployable as a result of a combination of a work-related injury and a number of personal and vocational (noninjury related) factors is not considered totally disabled. Temporary partial disability is a reduction in the ability to earn full pre-accident wages for a limited period of time as a result of the labour market s inability to accommodate the worker with the remaining physical effects of the injury. This includes workers who are partially disabled but unemployable without medical and vocational rehabilitation services and those who are not in need of rehabilitation services to return to work.

13 Page: 12 Decision No. 1826/00 [95] In addition, the Board provided Operational Policy Manual Document # : Determining Maximum Medical Rehabilitation (MMR) (February 20, 1991). This policy indicates that a worker reaches maximum medical rehabilitation (MMR) when there is unlikely to be any further significant improvement in the worker s medical condition. [96] Part of the policy guidelines read as follows: Identifying MMR In all claims where a permanent impairment is probable, the decision-maker determines and documents the date that MMR is reached. Once MMR is identified and recorded, this acts as a trigger to arrange a permanent impairment assessment, if there is a residual impairment. Defining MMR A worker reaches MMR when there is unlikely to be any further significant improvement in the worker s medical condition. MMR may have been achieved even if the worker is still receiving treatment, such as physical therapy or drugs, where the probability of improvement is low. Information used In reviewing the claims to determine if MMR has been reached, the decision-maker considers such factors as: whether the recent medical reports indicate that there has been any change in the medical condition of the worker whether the worker is currently receiving any treatment for the medical condition if treatment is being received, whether it is likely to improve the worker s condition. [97] The Board also provided Operational Policy Manual Document # : Secondary Injury and Enhancement Fund (September 4, 1991). This deals with the Board s policy on granting entitlement for an aggravation of a pre-existing condition. [98] The relevant portions of the policy read as follows: Temporary Disability A claim for an occupational injury involving a pre -accident disability is allowed for the acute episode only and entitlement to payment of compensation ceases when the worker s condition has returned to the pre-accident state. In a claim where there is a pre-existing condition but the worker is symptom-free at the time of the work-related accident there is no limitation of benefits throughout the period of temporary disability. Permanent Disability The presence of a pre-existing condition is reflected in any permanent disability award when the degree of residual disability is increased due to an underlying condition. Permanent disability awards to the worker, and cost transfers from the accident employer, Schedule I only, are made considering the medical significance of the pre-existing condition, the severity of the accident, and whether or not the pre-existing condition is measurable.

14 Page: 13 Decision No. 1826/00 Other Prior Conditions Worker Permanent Benefits When the pre-existing condition is not measurable, but creates a pre-accident disability that enhances a residual work-related disability, the worker s benefit for work-related disability may be reduced according to the percentage of disability produced by the preexisting condition. The following apply to a worker (sic) permanent benefits: no reduction is made if the prior condition was the result of the prior-work-related accident, unless a permanent disability award was granted in a previous claim. Pre-existing psychological disability is assessed in terms of the limitation that my have been produced by mental illness and/or defects of personality as revealed by the work record and/or social integration of the worker. The significance of the pre-accident disability is considered in terms of the likely clinical rating that would have been work-related, having regard for the range of disabilities usually encountered. If the pre-accident disability based on the foregoing criteria is unreasonable, the benefit is usually based on a medical estimate of the actual disability that might have resulted from the accident. The decision to grant an employer relief of some or all of a claim s costs is not influenced in any way by limitations placed on the worker s permanent impairment benefits. CONCLUSIONS [99] In this case, the evidence showed that the worker was employed in a variety of jobs doing rather heavy manual labour. [100] He had one prior claim in 1987 in which he sustained a discrete back injury but he returned to his regular factory employment after an absence of about one month. Subsequently, the worker saw his doctor on a few occasions with complaints of back pain. However, there was no evidence that the worker sustained any new injury or that he lost any time from work due to his pain. It does not appear that further medical investigations, such as x-rays, were carried out as a result of the worker s complaints. [101] In 1992 the worker was involved in very heavy manual labour, moving very large rocks in order to build a stone fence. He suffered a discrete injury for which entitlement was granted by the Board. [102] Subsequently, the worker was diagnosed as having ankylosing spondylitis. He reported having low back pain with radiation. From 1992 to 2000 the worker was not employed at all. In 2000, he obtained part-time work that did not require any heavy physical work and he was able to adjust his posture as necessary. [103] In considering the medical evidence on file, it appears that when Dr. Schofield reviewed the worker s file in May 1993 she used the recommendation of the Regional Evaluation Centre to conclude that the worker would have fully recovered from his compensable injuries.

15 Page: 14 Decision No. 1826/00 [104] Later, in March 1994, Dr. Malayil agreed that the worker had reached maximum medical rehabilitation by at least June 30, 1993 and that any ongoing restrictions were due to the worker s pre-existing ankylosing spondylitis. [105] Dr. Malayil was later asked for another opinion by the Appeals Resolution Officer in She referred to Dr. McCarthy s 1992 Discussion Paper and she stated: Studies have shown no significant evidence to indicate that an injury accelerates the progress of the disease. [106] The worker s representative contrasted this opinion with that of Dr. Logan, who suggested that the worker s compensable accident rendered a previously asymptomatic pre-existing condition symptomatic. [107] In this case, besides considering the individual medical opinions regarding causation, it is important to have regard to the worker s actual physical condition. [108] As noted earlier in this decision, the Board s policy on Second Injury and Enhancement Fund includes detailed provisions for the granting of entitlement for an aggravation of a preexisting condition. For example, it is stated that in a claim where there is a pre-existing condition but the worker is symptom-free at the time of the work-related accident, there is no limitation of benefits throughout the period of temporary disability. [109] With respect to a permanent impairment, such awards are made considering the significance of the pre-existing condition, the severity of the accident and whether or not the preexisting condition is measurable. [110] In light of the above evidence regarding the level of the worker s disability, I find that while Dr. Faraawi concluded that the worker had a pre-existing condition of ankylosing spondylitis, the condition was not symptomatic prior to his compensable accident of Although there is reference to prior instances of back pain, one episode was clearly due to a specific lifting incident at work and the other complaints of back pain were minor in nature and were not associated with any permanent impairment. [111] The evidence suggests that, after the compensable injury, the worker s condition changed significantly, such that he was no longer able to work in occupations requiring manual labour. In the words of previous Tribunal decisions, the workplace accident was a significant contributing factor to the worker s disability. As such, the worker is entitled to benefits for the condition. [112] In making this decision, I have regard to previous Tribunal decisions, Decision No. 320/87 and Decision No. 379/87. In both of these cases, Panels considered an opinion from Dr. McCarthy and found that a worker s compensable accident could render symptomatic the pre-existing condition of ankylosing spondylitis. [113] I find the facts of the present appeal are similar to those in the previous Tribunal decisions and I consider the reasoning of the previous panels to be persuasive. [114] Given my findings regarding the causal relationship between the worker s compensable accident and his ongoing impairment, I agree with the worker s representative that it is not necessary to request the assistance of a medical assessor in this appeal.

16 Page: 15 Decision No. 1826/00 THE DECISION [115] The appeal is allowed. The worker is entitled to compensation for the ongoing effects of his compensable injury of June 24, 1992 which aggravated his pre-existing condition of ankylosing spondylitis. The Board is directed to determine the nature and extent of benefits, including any Non-Economic Loss and Future Economic Loss award, to which the worker may be entitled. DATED : November 30, 2000 SIGNED: M. Farago