WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1012/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1012/10 BEFORE: B. Alexander: Vice-Chair M. Christie: Member Representative of Employers D. Felice: Member Representative of Workers HEARING: May 25, 2010, at Toronto Oral DATE OF DECISION: August 25, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1933 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated April 2, 2009 APPEARANCES: For the worker: For the employer D. Rangin, Paralegal Not participating 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. 1012/10 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which denied the worker initial entitlement for the right knee and low back. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The issues under appeal are whether the worker has initial entitlement for the right knee and low back. (iii) Background [3] The worker, who was born on November 15, 1944, began working for the employer, as a building superintendant, on August 20, [4] An Employers Report of Injury dated November 28, 1997, indicates that the worker had a no lost time claim as a result of twisting his back when a wheel on a heavy garbage bin he was pushing went into a drain. The report noted that the worker was able to continue with his regular duties. [5] An x-ray dated April 15, 2003, noted that the worker had severe DDD at L5-S1 and to a slight degree at L3-4 and L4-5. [6] In a report dated June 24, 2003, Dr. D. Jerome, a rheumatologist stated: As you know, [the worker] is a 59-year-old male who works as a superintendent of a high rise building here in Toronto. [The worker] reports back stiffness dating back at least five to six years. This is stiffness upon waking in the morning that resolves with activity. He does not recall any symptoms prior to that time. His back pain got particularly worse about three years ago when he had acute pain while changing a garbage bin. He tells me he was diagnosed with a back spasm and sent to physiotherapy. Within a few days things resolved. He had no further sharp pain, but a chronic aching pain. This pain had been on and off since that injury. He feels things have gotten worse in the last couple of months. Currently he complains of pain in the lumbar spine, more in the left buttock area. There was no radicular component. He describes it as an aching sensation with a significant stiffness component. He is bothered nocturnally and finds it hard to get into a right position. He has about an hour of stiffness in the back in the morning. After sitting for prolonged periods of time he is also stiff. He complains of some neck pain and stiffness. In general he says his back is better with activity, but gets a little worse at the end of the day as well. Investigations include x-rays done earlier this year. This showed severe degenerative disc disease of the L5-S1 level but also indistinct sacroiliac joints more on the right than the left. This was suggestive of possible sacroliitis. [7] Another report from Dr. Jerome dated May 14, 2004, advised that the worker had experienced ongoing problems with back pain over the last year. The report noted that the worker had been off work for several weeks and advised that he should return to work on light duties.

3 Page: 2 Decision No. 1012/10 [8] In a note dated May 20, 2004, the worker s family doctor, Dr. H. Rudner, advised that the worker was suffering from mechanical back pain, left shoulder tendinitis, epicondylitis and neck pain. [9] A May 4, 2004 letter from a benefit plan administrator indicates that in 2004, the worker was off work and received short term disability benefits for an extended period. [10] A CT scan report dated October 23, 2004 noted that the worker had multiple level degenerative disc disease with a disc herniation at L4-L5 and a small disc herniation at L5-S1. The report advised that prior to the scan the worker had experienced increasing back pain. [11] On March 13, 2006, the worker completed a Worker s Report of Injury which indicated that on January 17 and 18, 2006, while doing an annual inspection of apartment unit fire alarms, which involved a lot of walking, and after changing the heavy garbage bins, he could not perform his duties because of severe pain in his back and knee. [12] An x-ray report on the worker s right knee dated February 3, 2006, noted that a there might be joint effusion although the skeletal and joint structures of the knee were normal. The same day the worker laid off work. [13] In a note dated February 9, 2006, a chiropractor, Dr. K. Kuretzky, reported that the worker had presented with symptoms of a bulged L4 disc and advised that his symptoms were so severe that he should be absent from work for several weeks. [14] On February 13, 2006, Dr. Rudner completed a short term disability form which noted that the worker s back symptoms had first appeared in July 2004 and reappeared on January 30, He had examined the worker on February 3, 2006 and noted that he would probably be off work for three to four weeks. [15] Dr. Kuretzky completed a report dated February 24, 2006, which stated that the worker had a stiff neck and pain in the lower back and right knee and recommended that he continue treatment and not return to his pre-injury duties. He noted that the worker s right knee had patella femoral degenerative wearing and commented that his injuries were as a result of repetitive strain and physical stress at work. [16] In an Employer s Report of Injury dated March 3, 2006, the employer noted that on February 6, 2006, the worker had advised that he could not show up for work as his back was bothering him and that it was not work related. [17] In an addendum to the report the worker s supervisor noted that on two occasions the worker had clearly stated that his injury was not work related. [18] An adjudicator recorded his conversation with the worker in a memorandum dated March 8, 2006, in which the worker advised that on February 3, 2006, his back and legs became extremely painful and he laid off work. He could not recall any specific incident that triggered the pain but found that the moving of garbage bins (2x/week) causes him increased back pain and the walking involved in the fire alarm inspection aggravated his back.

4 Page: 3 Decision No. 1012/10 [19] On April 24, 2006, the worker was interviewed by an investigator who reported that the worker s job as a superintendant involved responsibility for a building that contained 317 units. He was responsible for minor repairs, keeping the lobby area clean and maintaining the garbage compactor room. He was also required to move eight large garbage bins a distance of 20 to 20 feet, twice a week, for garbage pickup. [20] The investigator noted that the worker stated that the onset of his back problems took place on January 17, 2006, when he was doing an inspection of smoke alarms in all the units, replacing the batteries or the alarms as required. He would push the shopping cart from unit to unit and use a small three step ladder to access the devices. The inspection was completed on January 18, [21] The report further noted: The worker does not describe any specific incident or accident but simply noticed that during the evening of January 17, 2006 after he finished walking through the building all day, his back was tight and sore in the lower lumbar area. He did not think too much of it at the time thinking that he had just been on his feet all day and it would get better. The following day during lunch break he went to move a full garbage compactor and replaced it with an empty one. These garbage compactors are on wheels but when they are full they are quite heavy and awkward to move. As he was pushing on the compactor to move it he felt an increased pain in his back as well as a sore right knee. Once again he does not describe a specific incident but just a gradual noticing it was sore while he was doing his work and throughout the afternoon continued to get increasingly sore as he walked around. [The worker] does acknowledge that he was able to work for the next two weeks basically hoping that the back pain and the knee pain would clear up on its own. [22] The investigator further noted that the worker s supervisor did not learn of the worker s absence from work until February 6, 2006, when he called to advise that he would be off work for a couple of days. The supervisor stated that she asked him what the problem was at the time and he said it was not a work related issue. The supervisor further stated that on February 9, 2006, she again asked the worker what the problem was and he stated that his injuries were not work related. [23] The investigator noted that the worker advised that he first claimed for short term disability benefits because he did not want to bother the WSIB and that when his doctor indicated it was a work related problem the disability carrier denied his claim. [24] In a further memorandum dated April 5, 2006, the adjudicator noted the worker called to clarify details of his activities on January 18 and 19, 2006, as follows: When checking the smoke detectors, he Pushed a cart from unit to unit. The cart contained a ladder, a package of batteries, smode detectors, window locks. The cart was not heavy. Once in the apt, he took a ladder out of the cart setting it up either directly under the detector or to the side of the detector. (where space permitted)

5 Page: 4 Decision No. 1012/10 Climbed the ladder to third step reached upward or to the side for the detector. At times he had to twist his back due to the spacing in the apt. and the position of the detector. Unscrewed the detector, replaced the batteries and then screwed back the cover. In the middle of day two (at lunch) he pushed two industrial garbage bins. One bin was filled with garbage, the other was empty. He pushed them approx feet. Took 20 minutes. [25] The memorandum noted that the worker worked with another worker while checking the smoke detectors and was alone when he moved the garbage bins. [26] In a letter dated April 28, 2006, Dr. Rudner noted that he treated the worker for lower back and right knee injuries on February 3, 13, 24, 2006, March 1, 2006 and April He added that there had been no acute incident and that the worker had a history of severe degenerative disc disease at L5-S1 with facet joint neuralgia of L4 and L5, made worse by heavy physical work as a superintendant. He added that the worker s right knee had been strained about mid-january 2006 secondary to repetitive physical work stress and diagnosed knee strain patellofemoral syndrome. [27] Dr. Rudner noted that he had previously seen the worker for lower back problems on five occasions in 2003 and four occasions in [28] In a medical report dated May 29, 2006, Dr. Kuretzky noted that the worker had acute chronic low back pain and right knee patella femoral syndrome which was the result of no acute incident. He added that the worker was incapable of performing any kind of gainful employment for the forseeable future. [29] In a letter dated June 22, 2006, Dr. Jerome reported: [The worker] is a 61 year old gentleman, who has known degenerative disc disease, as well as, some past disc bulge. He had an aggravation of this pain with work and despite his therapy, he continues to suffer with back pain. It is clear that he has problems with forward flexion and any extension. Lifting would be very difficult for this gentleman and I agree he is unlikely to be able to work in his current state. I think he is doing the right things with his therapy. Regarding his knee pain, it is difficult to exam his knee. There is no clear effusion and he does not seem have significant osteoarthritis. I wonder if he has a ligament or meniscal injury however I cannot truly assess his knee today. He has had an x-ray done, but I do not have the results. I have asked him to bring those in with his next visit and we can consider a therapy, such as an injection. [30] In a memorandum dated June 15, 2006, Dr. M. Chain, a medical consultant, reviewed the worker s medical history and concluded: Clearly from all the attending family GP/rheumatologist/chiro, IW has a major and severe pre-existing back, with intermittent recurrences. Acute on chronic recurrence is possible and compatible, if claims confirms a heavy lifting episode and work this DOA under the claim. Non work related or work related events need to be recorded for temporal association of the claimed acute episode (which occurred on same day). Knee pain also needs to be associated with an acute event at work such as kneeling/crouching/twisting/climbing/- stretching etc. P-F syndrome is not compatible, as the specialist commented on it prior existence.

6 Page: 5 Decision No. 1012/10 Has claim obtained evidence of a specific event, as above at DOA? [31] In a memorandum dated July 20, 2006, an adjudicator set out his reasons for denying the worker entitlement: The MC s comments on file state that the IW had a major and severe pre-existing back condition with intermittent recurrences. With respect to the back CA notes there was no episode of heavy lifting and for the knee the worker was not kneeling/crouching/twisting etc. [32] The ARO denied the worker s appeal stating the worker s injuries were not the result of an identifiable workplace accident or a disablement arising out of the worker s ongoing duties. [33] The worker testified that after his 1997 back injury, he received physiotherapy for three to five weeks, twice a week. His back continued to be painful and he would take Tylenol extra strength to manage it. [34] According to the worker, there was no specific incident in 2003 that increased his back pain, but that at the time he was assigned additional duties which included cleaning a swimming pool. [35] On January 18, 2006, the day after he began the annual inspection of smoke detectors, he felt increasing soreness in his back and knee. He was able to combine days off, in recognition of overtime, and regular days off, to remain away from work from January 20 to January 25. While he was off work he took Tylenol and his knee and back were not so bad. [36] The worker advised that when he returned to work his soreness returned and on February 3, 2006, he saw Dr. Rudner. He did not say that his problems were work related because it was quicker to obtain benefits by applying for short term disability. His last day of work was February 2, He did not get any better so could not go back to work and in January 2007, he took a package and retired. [37] The worker further testified that his right knee pain began in 1997/1998 and he would control it with Tylenol extra strength. In February 2007, he had laparoscopic surgery on the knee. [38] Mrs. Rangin submitted that in January 2006, as a result of his work duties, the worker sustained a permanent aggravation of his underlying degenerative back condition. [39] In 1997, the worker was granted entitlement for his low back when his underlying condition was aggravated as a result of a flare-up relating to his work duties. The worker had a further flare with his back in 2004 that resulted in his laying off work for a period of time and returning to light duties on June 14, In his June 24, 2003 report, Dr. Jerome noted that the worker had experienced back pain for five to six years but that it had become worse after an acute episode three years before. [40] Mrs. Rangin submitted that although the worker did not experience an acute incident in January 2006, his injuries at that time constituted a similar flare up in his underlying condition as a result of his work duties, which included the new task of fire alarm inspection.

7 Page: 6 Decision No. 1012/10 [41] At the time the worker, who was not sophisticated in medical matters did not think that his injuries were work related but his family doctor did and on March 3, 2006, he filed a Worker s Report of Injury. [42] Board policy in relation to aggravations provides that if there is a permanent worsening of the pre-accident impairment, it may be determined that the worker has permanently aggravated the pre-accident impairment as is entitled to a non economic loss award. [43] According to Mrs. Rangin, there is evidence of permanent aggravation. Prior to the worker s January 2006 injuries, he was able to perform his work duties without restriction. Subsequently his doctors indicated that he would be unable to return to his pre-injury job. [44] The worker was not involved in any outside activities that might have caused his back or knee problems. (iv) Law and Policy [45] Since the worker was injured in 2006, 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. [46] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, # 31- Initial Entitlement, #107 Aggravation Basis/SIEF and #300 Decision Making/Benefit of Doubt/Merits and Justice would apply to the subject matter of this appeal. (v) (a) Conclusions Lower back [47] The worker has a long standing severe degenerative back condition, which has been subject to regular flare ups. [48] The worker s 1997 accident involved a specific injuring event, in which the worker twisted his back when the wheel of a garbage bin he was pushing became stuck and aggravated his underlying degenerative condition. The worker appeared to recover from the accident as he lost no time from work and returned to his regular duties. [49] In his 2003 report, Dr. Jerome noted that the worker had experienced back and pain stiffness for at least a five to six years. During that period his pain had been on and off but had spontaneously worsened in the previous three months. [50] In his April 28, 2006 letter, Dr. Rudner indicated that he had seen the worker for back pain on five occasions in 2003 and four occasions in He did not relate these visits to the worker s job duties. [51] The extent of the worker s underlying condition was revealed in an April 15, 2003 x-ray report which noted degenerative disc disease (DDD) at three levels with severe conditions at L5- S1 and a October 23, 2004 report on a CT scan, which noted multiple level DDD with disc herniations at L4-L5 and L5-S1.

8 Page: 7 Decision No. 1012/10 [52] In 2004 and again in 2006, the worker lost time from work due to his back pain and filed claims for short term disability on the understanding that his back problems were not work related. In 2004 he received disability benefits and in 2006 he was denied such benefits. [53] The worker s superintendant noted that the worker advised on more than one occasion that his 2006 injuries were not work related. [54] Dr. Chain advised that the worker had a major and severe pre-existing back condition that would be aggravated by an acute event at work and asked whether such an event occurred at the time of the worker s injuries. [55] There is no evidence of such an acute event and the investigator noted this. In an interview with an adjudicator recorded in a March 8, 2006 memorandum, the worker indicated that he did not recall a specific incident that triggered his pain. In his testimony the worker did not refer to any specific event causing an increase in his symptoms but indicated only that he felt increasing soreness after his January 16 and 17, 2006 work activities. [56] Neither Dr. Kuertzky, nor Dr. Jerome referred to any acute event and Dr. Rudner specifically stated that there had been no specific accident. [57] It should be noted that neither the worker s normal duties nor those he performed on January 16 and 17, 2006 involved the type of repetitive activity which would suggest a disablement. [58] The Panel is satisfied that the worker s back symptoms in 2006, were more consistent with a severe deteriorating back condition than the result of an workplace accident or of a disablement as a result of workplace duties. We find, therefore, that the worker has no ongoing entitlement for his low back. (b) Right knee [59] Dr. Chain commented that the worker s right knee patello femoral syndrome pre-existed the worker s January 16 and 17, 2006 activities and was therefore not compatible with them. [60] He also indicated that to claim an aggravation of the knee condition, a specific activity such as, kneeling, crouching, twisting, climbing or stretching, would have to accompanied it Although both Drs. Kuretzy and Rudner diagnosed the condition, neither identified any specific event or activity that might have aggravated it. [61] Dr. Jerome did not attempt to diagnose the worker s knee problem, indicating that further investigation was necessary. She did not suggest that it was work related. [62] For these reasons, we find that the worker s right knee condition is not work related and he has no entitlement for it.

9 Page: 8 Decision No. 1012/10 DISPOSITION [63] The appeal is denied. DATED: August 25, 2010 SIGNED: B. Alexander, M. Christie, D. Felice