WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2010/06 BEFORE: A.V.G. Silipo: Vice-Chair HEARING: October 17, 2006 at Toronto Oral DATE OF DECISION: October 20, 2006 NEUTRAL CITATION: 2006 ONWSIAT 2359 DECISION(S) UNDER APPEAL: WSIB ARO decision dated December 16, 2004 APPEARANCES: For the worker: For the employer: Mr. Chris Topple, Consultant 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. 2010/06 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolutions Officer Mrs. C. Whittaker (the ARO) dated December 16, That decision, rendered without an oral hearing, concluded that the worker was not entitled to benefits beyond November 27, 2002 with respect to a back injury that he sustained on April 30, (ii) Analysis and Conclusions [2] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and I have considered them as necessary. [3] The worker was employed as an assembler with the accident employer since On April 30, 2002 he injured his low back while squatting to place parts in a box. In January 2003 a Claims Adjudicator granted the worker entitlement to benefits until November 27, 2002 based on the medical reporting from the family doctor. The worker objected to the denial of ongoing benefits. In her decision of December 16, 2004 the ARO confirmed the Claims Adjudicator s decision. [4] As the ARO noted, and the worker and his representative acknowledge, the worker has underlying degenerative disc disease in his back. Therefore, the Board appropriately established his claim on an aggravation basis. [5] The worker testified that he had back problems prior to his injury of April He described a constant pain from his low back to his shoulder blades. He stated that his back problems began about three months after he began working for the accident employer. He described the work duties which included picking up car seats from the assembly line and turning to place them on his workstation. He rotated to other jobs over the years. [6] The worker described his injury of April 30, He stated that the springs which he lifted weighed about 30 lbs. and were in a box which was located on the floor rather than on a shelf as it had been earlier. That required greater bending and lifting. The worker stated that he felt a pain immediately in his low back after lifting the springs for the second or third time during the day s shift. [7] The worker testified that after the April 30, 2002 injury, his back was in constant pain and was more severe than prior to that injury. [8] The ARO denied the worker entitlement beyond November 27, 2002, relying on the reports from the worker s family doctor, Dr. Diamond Charania, particularly the following: On August 15, 2002, Dr. Charania reported a diagnosis of resolving myofascial back strain. He noted that the worker could return to work to full duties beginning on August 19, 2002 starting at four hours per day and increasing one hour each week.

3 Page: 2 Decision No. 2010/06 On November 27, 2002, Dr. Charania reported a diagnosis of myofascial back strain. He noted the objective clinical findings as tender lumbar spine; full ROM no long tract signs. Has completely recovered. [9] The worker testified that on November 27, 2002, he told Dr. Charania that his back was not right. [10] The worker s representative submits that the worker s back aggravation did not resolve in November 2002 but has continued to date and has worsened. He argues that Dr. Charania s reporting is not completely accurate and should be distinguished. Mr. Topple submits that the injury of April 30, 2002 was severe and caused more than a muscle injury, as Dr. Charania appears to have diagnosed. He relies on a CT scan done on March 4, 2005, which indicates degenerative disc disease including disc protrusions at the L3-4, L4-5 and L5-S1 levels. Finally, Mr. Topple argues that the worker continued to perform work unsuitable to his back condition, which contributed to the further and ongoing aggravation of his back. [11] My assessment of the evidence leads me to disagree with Mr. Topple s analysis. [12] First, it is evident from the balance of his medical reporting that Dr. Charania was aware of the degenerative changes in the worker s back. In his May 1, 2005 report he noted that he had ordered x-rays. They were taken on June 4, 2002, and showed degenerative disc disease at all levels of the worker s lumbar spine and particularly at the L4-5 and L5-S1 levels. Dr. Charania also noted the worker s degenerative disc disease in a Functional Abilities Evaluation dated June 16, [13] Second, it is evident from the worker s testimony that his underlying degenerative disc disease was symptomatic before his injury of April Therefore, in assessing the duration of the aggravation which resulted from his April 30, 2002 injury, I must note that his pre-accident level was not symptom free. In addition, the extent to which the worker s job duties may have aggravated those underlying changes prior to the April 30, 2002 injury is not an issue before the Tribunal. [14] Third, the worker continued working with the accident employer after the April 30, 2002 injury. While the worker undoubtedly worked with some pain, it is also evident that the extent of the injury was such that he could continue working. He continued working after November 2002 and did not leave work until January 2004 after he sustained a workplace injury to his thumbs. [15] Fourth, I am not sure that the extent to which the worker performed work which was unsuitable to his back condition is relevant to the issue at hand. To the extent that it is, I note that the worker accepted that situation. Noting the various other claims which the worker established with the Board for other injuries, I do not accept his explanation that he did not bother to complain to the Board because the accident employer would have misplaced his paperwork and would have harassed him. [16] Fifth, I did not find the worker s testimony regarding the extent of his ongoing back pain particularly reliable. For example, the worker stated that the accident employer did not place

4 Page: 3 Decision No. 2010/06 him on modified work after his April 30, 2002 injury, but I note that on November 27, 2002, the Claims Adjudicator noted that he advised that he was still on modified work. [17] Finally, I also note that, as the worker testified, Dr. Charania was his family doctor for several years and therefore, was in good position to gage the worker s level of recovery against his previous levels of back problems. [18] Those considerations lead me to conclude that, just like the Claims Adjudicator and the ARO did, I should rely on Dr. Charania s reports and find that the worker s injury of April 30, 2002 caused a temporary aggravation of his underlying degenerative changes from which he recovered by November 27, 2002, returning to his pre-accident, symptomatic level. As a result, the worker s appeal is denied.

5 Page: 4 Decision No. 2010/06 DISPOSITION [19] The appeal is denied. DATED: October 20, SIGNED: A.V.G. Silipo