WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 930/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 930/06 BEFORE: V. Marafioti: Vice-Chair HEARING: May 8, 2006 at Sudbury Oral Post-hearing activity completed on August 31, 2007 DATE OF DECISION: October 9, 2007 NEUTRAL CITATION: 2007 ONWSIAT 2502 DECISION(S) UNDER APPEAL: WSIB ARO decision dated December 17, 2003 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Michael W. Shain, Manitoulin Legal Clinic Mr. Randy Noble, Consultant Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 930/06 REASONS (i) Background [1] The worker on May 1, 2001 was driving a truck which was hauling gravel. While descending a hill the worker discovered that the brakes on the vehicle failed, he jumped out of the vehicle falling onto the right side of his body. The worker was taken to the emergency department of a local hospital by a co-worker. He was diagnosed as having sustained an acute cervical facet strain and entitlement was granted for his ribs, knees, neck and upper and lower back. On June 13, 2001 the worker s family physician Dr. Hamilton diagnosed a neck strain. Dr. Hamilton declared the worker fit for modified duties at the end of June or July and the worker returned to modified duties with the accident employer in the Fall of The worker laid off work on November 12, 2001 due to an increase in symptoms. The Workplace Safety and Insurance Board (the Board ) Claims Adjudicator on November 13, 2001 found that the worker had no entitlement to Loss of Earnings (LOE) benefits effective November 12, 2001 as he was considered fit for modified work which was available with the employer. A functional abilities evaluation (FAE) scheduled for November 19, 2001 and November 20, 2001 was also cancelled. The worker objected to the Board decisions and the Appeals Resolution Officer (ARO) on December 17, 2003 concluded the following: In my view, the worker s reporting of increased symptomatology in the few days preceding the November 12, 2001 office visit is not corroborated by objective medical evidence demonstrating total disability. On this point, I am satisfied that [the worker] was partially disabled and capable of performing suitable employment when benefits ceased on November 12, Turning now to the issue of job suitability, the WSIB s Operational Policy Document speaks to the subject of suitable employment. The policy defines suitable employment as any work that: - the worker has the necessary skills to perform; or - the worker is able to acquire the necessary skills to perform; and - does not pose a health or safety risk to the worker or co-workers. I am satisfied, based on the worker s evidence with respect to the type of work he was performing prior to November 12, 2001 with the accident employer, that [the worker] had the functional abilities and aptitude for the job tasks and duties. I have also taken into consideration the degree of the worker s impairment and medical prognosis of the injury at the time and I find that the work was suitable as contemplated by the aforementioned policy. (ii) The Issues [2] I must determine the worker s level of disability and whether the employment provided was suitable as of November 12, 2001 when benefits ceased. (iii) The law and Board policy [3] On January 1, 1998, the Workplace Safety and Insurance Act 1997 (WSIA) took effect. However, pursuant to section 102 of the WSIA, the Workers Compensation Act continues to apply to pre-1998 injuries.

3 Page: 2 Decision No. 930/06 [4] Thus pursuant to section 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [5] The Legal Services Division of the Board confirmed that the following policy packages, Revision No. 6, would apply to the subject matter of this appeal. Policy Package #40 - Continuing Entitlement/NEL Date of Accident as of January 1, 1998 Policy Package #107 - Aggravation Basis or SIEF Policy Package #183 - Early and Safe Return to Work and LOE Benefits Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [6] The policies are extensive and will not be duplicated here for practical reasons. I have considered the policies in the context of the appropriate legislation when arriving at my decision. [7] As the accident occurred on May 1, 2001 the Workplace Safety and Insurance Act applies. (iv) The worker s position [8] Essentially Mr. Shain submitted that the modified work was not suitable. Mr. Shain also provided written submissions on August 2, 2007 which I have considered. Mr. Shain submitted that the WSIB decision to terminate benefits was improper and contrary to Operational Policy Manual (OPM) Document # and Document # Mr. Shain submitted that it is clear following the reports of Dr. Duncan Gordon that the worker s physical condition following his workplace accident on May 1, 2001 was as of November 2001 more debilitating than what had been estimated by the Board. He noted that Dr. Deslauriers from the Board did a paper review of the worker s condition and indicated that the worker was fit to return to modified work. Mr. Shain submitted that it was on this basis that the Claims Adjudicator advised the worker that he must return to modified work on November 12, According to Mr. Shain the severity of the worker s physical condition was underestimated by Dr. Deslauriers and by the Claims Adjudicator. He submitted that the worker s physical condition and the exact nature of his problems was poorly understood and this of course relates to the issue of the extent of involvement of the pre-existing medical condition of psoriatic arthritis and to the extent that it was a contributing factor to the worker s overall condition as of November 12, [9] Mr. Shain noted that Dr. Gordon confirmed that there was a significant underlying arthritic condition in the worker s spine and sacroiliac joints. He also noted that Dr. Gordon indicated that the worker was at a high risk to react adversely to any significant physical traumatic event. Mr. Shain noted that Dr. Gordon also confirmed that the worker s inflammatory arthritic condition was aggravated initially on a temporary basis at first and according to Mr. Shain, this explains the worker s delayed recovery. Mr. Shain noted that Dr. Gordon goes on to state that the accident permanently advanced the worker s disease.

4 Page: 3 Decision No. 930/06 [10] Mr. Shain noted that although Dr. Deslauriers declared that the worker was fit to return to modified work, there was a vague indication as to the worker s actual functional limitations. Mr. Shain noted that OPM Document # defines suitable work for the purposes of the early and safe return to work policy as work that is within the worker s functional abilities. [11] It is Mr. Shain s submission that it was wrong and premature for the Claims Adjudicator to have required that the worker return to work without objective evidence of what the worker s functional abilities were. [12] According to Mr. Shain, Dr. Gordon in his correspondence of July 3, 2007 makes passing reference to the worker s physical abilities essentially indicating that the worker is unemployable as a result of his aggravated arthritic condition. [13] Mr. Shain submitted that the Claims Adjudicator s decision was incorrect in that there was nothing defined as to what exactly the modified work would be that the worker was supposed to return to on November 12, This in turn allowed the worker to speculate that the employer would want him to perform tasks that would be beyond his abilities. Mr. Shain also noted that OPM Document # defines suitable work as work that does not pose a health or safety risk to the worker. He indicated that as of November 12, 2001 it could not have been said with any degree of certainty that this worker would be returned to work that was suitable within the meaning of OPM Document # [14] Mr. Shain submitted that the Claims Adjudicator decision to terminate benefits was unjustified and in contravention to OPM Document # He noted that the worker told the Adjudicator that he could not return to work on November 12 because of the severity of his compensable condition. At that point the Adjudicator, according to Mr. Shain, had a tool kit from which to choose the appropriate solution including providing mediation, ordering an FAE, or making accommodations in the workplace. He noted that there was no attempt made by the Claims Adjudicator in this regard. [15] Mr. Shain submitted that the worker did have a legitimate reason for not returning to work on November 12, 2001 and this was because he felt himself physically unable to do so. He followed the medical advice of his treating physician and Mr. Shain noted that Dr. Hamilton s report of November 21, 2001 confirms that the worker had suffered a flare-up of symptoms and was unable to return to work on November 12. Mr. Shain submitted that there is more than sufficient evidence to support the fact that the worker s level of disability was, as of November 12, 2001, below the level imagined by the Board doctor and the Claims Adjudicator. [16] Mr. Shain submitted that with regard to the issue of permanent impairment, the evidence does support the fact that the worker at the time of his compensable accident had an underlying but essentially dormant arthritic condition. Dr. Hamilton described it as being in remission as of the date of the accident. It was the worker s evidence that he had none of the typical symptoms associated with generalized arthritic condition for approximately a year before the accident. He was, according to Mr. Shain, asymptomatic at this time. It was also the worker s evidence for this period of time that he was able to maintain fairly demanding physical work. According to Mr. Shain the accident of May 1, 2001 resulted in a significant trauma to the worker that caused the underlying arthritic condition to emerge in full bloom. According to Mr. Shain there ought to

5 Page: 4 Decision No. 930/06 be no question that the accident was the causal agent for the occurrence of the arthritic symptoms. He submitted that Dr. Gordon has also confirmed that the accident permanently aggravated this inflammatory condition. According to Mr. Shain the worker should be considered a worker under the thin skull principle, which in this case was his underlying arthritic condition which made him more vulnerable in an accident situation than the average worker. This is supported by the report by Dr. Gordon according to Mr. Shain. (v) The position of the employer [17] Essentially the employer agreed with the decision of the ARO dated December 17, The employer submitted that modified work was provided to the worker within the medical restrictions. He noted the report from the Claims Adjudicator indicating that modified work was provided and he submitted that essentially the worker did not return to modified work on November 12, 2001 and as a result he failed to co-operate in the Early and Safe Return to Work (ESRTW). Essentially the employer submitted that the appeal by the worker should be denied and the ARO decision be upheld. (vi) The Vice-Chair s findings and conclusions [18] For the reasons that follow I am satisfied that the worker is entitled to further LOE benefits and that his appeal should be granted. In particular I was persuaded by the testimony of the worker at the hearing, the submissions provided, and in particular the report from Dr. Gordon dated January 16, (vii) The medical evidence [19] The medical evidence indicates that the worker had an onset of arthritis and psoriasis early in his life. Dr. D. Kangi, a rheumatologist on May 10, 2000 noted that the worker had symptoms of polyarthritis affecting the peripheral joints of his wrists, fingers and feet in association with neck and back pain. [20] The worker was seen by the family physician Dr. R. Hamilton on June 13, 2001 with neck strain. On August 15, 2001 the worker was evaluated by Dr. S. Cheung, neurologist, who noted limitation of the worker s neck and lumbar region with electromyographic studies reported to be normal. Dr. Cheung requested a lumbar CT scan which was performed on September 28, The examination reported by Dr. Paul Ho-Tai revealed a grade 1 spondylolisthesis of the L5-S1 with an anterior subluxation of the 5 th lumbar vertebrae on the first sacral about one centimetre. It also revealed diffuse disc bulging seen at the L3-4 and L4-5 without focal disc herniation. The radiological images were reviewed with Dr. Salonen. It appears that Dr. Deslauriers, the Board s Medical Consultant, was unaware of the diagnostic possibility when he commented that a CT lumbar scan showed only spondylolisthesis and disc bulging at the L3-4 and x-rays of the worker s cervicospine showed evidence of only mild spondylolisthesis from C2 through C5 with mild degenerative changes of the right shoulder. [21] Dr. Deslauriers expressed the view that permanent impairment appeared to be mostly caused by the pre-existing condition which was aggravated by the injuries suffered at the time of the accident on May 1, At this point Dr. Deslauriers expressed the opinion that the worker was fit for modified work.

6 Page: 5 Decision No. 930/06 [22] I also note the reports by Dr. Hamilton of November 21, 2001 and June 5, 2003 which indicated that the worker s requirement for medication and physiotherapy and in his August 14, 2003 report, he noted the possibility that the worker s pre-existing condition had been a contributing factor to his delayed and incomplete recovery from his work-related accident. Dr. Hamilton however was unable to state whether the accident aggravated a pre-existing condition or whether it was the pre-existing condition that delayed the recovery from his injury. He suggested that the disability was likely a combination of these two conditions. According to Dr. Hamilton the worker was suffering from a permanent impairment related to his neck and back. [23] I note from Dr. Gordon s report that the differential diagnostic possibilities in this case are as follows: 1. Post traumatic cervico, thoracic, and lumbar strain. 2. Cervico and lumbar degenerative disease. 3. Lumbar spondylolisthesis grade Psoriasis. 5. Psoriatic arthritis resembling rheumatoid arthritis. 6. Psoriatic spondyloarthropathy. 7. Psoriasis with coincidental rheumatoid arthritis. 8. Psoriasis with coincidental ankylosing spondylitis. [24] Since I have relied heavily on the opinions of Dr. Gordon it is important that his opinions be outlined below: 1. What is the medical significance of the pre-existing psoriatic arthritis? Persons with the common skin disease of psoriasis have an increased risk of developing arthritis. There are 5 different types of psoriatic arthritis that may occur: 1. Arthritis of the distal interphalangeal or terminal joints of the hands and feet. 2. Destructive (mutilans) deforming arthritis of the hands or feet. 3. Symmetric polyarthritis indistinguishable from rheumatoid arthritis, but seronegative. 4. Asymmetric oligoarthritis (arthritis affecting very few joints). 5. Spondyloarthropathy (inflammation of the spine and sacroiliac joints). In [the worker s] case, he shows the polyarthritis resembling rheumatoid arthritis, and based on his inheritance of the HLA B27 gene, he shows sacro-iliac features of a spondyloarthropathy that must have come on well before the age of 30. In my view, his psoriatic spondyloarthropathy symptoms have been predominant since the accident and his lumbar CT scan images support the idea of a significant underlying arthritic condition of his spine and sacro-iliac joints. The medical significance of his pre-existing psoriatic arthropathy relates to his work trauma sustained May 1, The role of this trauma is that persons with psoriasis are at

7 Page: 6 Decision No. 930/06 increased risk of developing problems associated with the different types of arthritis described. In [the worker s] case, he had symptoms of the polyarthritis and spondyloarthropathy well before the accident of May 1, However, symptoms of his spondyloarthropathy have been predominant since the accident and the medical significance of his pre-existing spondyloarthropathy relates to the impact of the work injury May 1, a) What is the usual course of this condition? The usual course of psoriatic spondyloarthropathy is that it develops in 20 to 40% of patients with psoriasis. Like [the worker], it predominantly affects men possessing the HLA B27 heredity, with spinal disease and sacroiliac progression causing pain and stiffness that may be associated with diminished mobility. However, the majority of patients maintain some mobility and independence throughout their life. Their ability to cope depends on the severity of pain and limitation of spinal movement that can be in association with other systemic features, such as chronic fatigue, eye inflammation, lung or heart involvement, bowel disease, neurogenic bladder involvement, or osteoporosis. Some of these complications may already be affecting [the worker]. b) What impact, if any, would this have on the worker s ongoing condition and the degree of impairment present? The possible effects of trauma on [the worker s] condition include the following: 1. A temporary aggravation of his pre-existing condition and delayed recovery from it. This is caused by the lack of mobility and disuse/deconditioning associated with injury. 2. Permanent advancement of his spinal and sacro-iliac arthritic condition. 3. The likelihood that the injuries only drew attention to an already existing physical impairment. 4. His disease would never have advanced if the trauma had not occurred. 5. He would have developed worse spinal symptoms anyway, whether he had been involved in an accident or not. After my review of his file, I conclude that based on his age, male sex and HLA B27 status, he was at high risk to react adversely to any significant physical traumatic event. However, a more up-to-date evaluation of his current clinical condition and its progress since the accident would include a follow-up radiologic lumbar and sacroiliac MR imaging as well as blood tests looking for markers of ongoing inflammatory disease. If these studies confirm worsening, or ongoing inflammatory disease since the accident, they would support the idea that the accident advanced his disease. Moreover, the fact that his sacroiliac joints were fused well before the age of 30 is an indicator of the preexisting severity of his spondyloarthropathy. The results of this update would also indicate whether there is any likelihood that he would be a suitable candidate for treatment with one of the newer biologic agents indicated for the treatment of psoriatic spondyloarthropathy or ankylosing spondylitis. c) Would this lead to any restrictions in the worker s ability to carry out the activities of daily living, or any particular work-related activities? Please explain. [The worker s] psoriatic spondyloarthropathy is a systemic condition that would be associated with progressive spinal pain and spinal limitation with associated fatigue, and possibly other systemic features that would limit his daily activities and fitness for gainful employment. As noted, many patients like [the worker] have other systemic features capable of compromising their general well being.

8 Page: 7 Decision No. 930/06 2. Does it appear that the inflammatory arthritis was aggravated by the compensable injury? If so, was this a temporary, or a permanent aggravation? Please explain. Yes. I believe that his inflammatory arthritis was aggravated on a temporary basis at first to explain his delayed recovery, but secondly, from the accident promoting advancement of his disease, this aggravation should be regarded as permanent. However, the severity of a permanent advancement and aggravation would be best determined by follow-up clinical evaluation, and radiologic studies of his lumbar and sacroiliac joints, as well as blood tests looking for markers of ongoing inflammatory disease. In other words, more followup information since May 2001 is needed to be able to confidently state that as a result of the accident he is now permanently disabled and incapable of gainful employment. If you have any other questions about these views or if I can be of further assistance to the Vice-Chair, please let me know. (viii) Conclusions [25] It is clear from Dr. Gordon s report that the role of the May 1, 2001 accident rendered the worker with an increased risk of developing problems associated with the different types of arthritis described. [26] In my opinion the WSIB terminated the worker s benefits prematurely and improperly contrary to Board policy. I am satisfied from the report of Dr. Duncan Gordon that the worker s physical condition following his workplace accident on May 1, 2001 was as of November 2001 debilitating and was underestimated by the WSIB. With due respect, in my view, Dr. Deslauriers, the Board s Medical Consultant, did not fully appreciate the worker s medical condition. In my opinion, the worker s physical condition and the exact nature of his problems were not fully canvassed and understood at that point. Dr. Gordon had confirmed that there was a significant underlying arthritic condition in the worker s spine and sacroiliac joint. Dr. Gordon also notes that the worker was at a high risk to react adversely to any significant physical traumatic event as occurred. Dr. Gordon submitted that the inflammatory arthritic condition was aggravated initially on a temporary basis. I am satisfied that the worker was not able to return to work on November 12, 2001 given the medical condition. The medical evidence of Dr. Hamilton and Dr. Gordon confirms that the worker s recovery was delayed because the accident had aggravated his underlying inflammatory condition. I am satisfied that given the medical evidence the worker s level of disability was as of November 12, 2001 below the level indicated by the WSIB doctor and Claims Adjudicator. The accident on May 1, 2001 resulted in a significant trauma that caused the underlying arthritic condition to emerge and become more symptomatic. I am satisfied that the accident was the causation of the emergence of the arthritic symptoms. The worker ought to be considered as a worker under the thin skull principle which in this case was his underlying arthritic condition which made him more vulnerable in an accident situation. It is clear from Dr. Gordon s report that the worker was at high risk to react adversely to any significant physical traumatic event which occurred in this case. The worker is therefore entitled to further benefits given the medical evidence I relied on.

9 Page: 8 Decision No. 930/06 DISPOSITION [27] The worker s appeal is allowed. The worker is entitled to further benefits. The file is returned back to the Board for the determination of the appropriate benefits. DATED: October 9, SIGNED: V. Marafioti.