WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1672/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1672/10 BEFORE: M. M. Cohen : Vice-Chair A. D. G. Purdy: Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: August 25, 2010 at Hamilton Oral DATE OF DECISION: September 29, 2010 NEUTRAL CITATION: 2010 ONWSIAT 2183 DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 12, 2009 APPEARANCES: For the worker: For the employer: Interpreter: M. Platt, Union representative E. Persad N/A 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. 1672/10 REASONS (i) Introduction [1] This is a worker appeal from a decision of an Appeals Resolution Officer (ARO) S. Marangoni of the Workplace Safety and Insurance Board (the Board), dated May 12, 2009, denying the worker initial entitlement for the low back related to her job duties performed as a postal clerk/manual sortation clerk. (ii) Background [2] On February 19, 2007 the worker, who was employed as a postal clerk/manual sortation clerk, complained of low back pain which she attributed to the constant standing, lifting of containers and dispatching mail into monotainers involved in her job. She was diagnosed with a lumbosacral strain. [3] During the roughly two years prior to her February 2007 complaint the worker had been moved to a new job sorting oversized mail. She was assigned this job as a modification from earlier work on machines which caused previous injuries to her shoulders and which were no longer within her restrictions. [4] In 2005 the worker began to have problems in her left leg. She was not aware that her back was causing the problem until she was told by an acupuncturist. [5] Subsequent to February 2007 she received physiotherapy and nerve block injections to relieve the symptoms in her leg. [6] By May 2007 her doctor recommended a gradual return to work, which she did at a four hour per day level. By June 2007 her back had improved to the point where she resumed practically all of her full-time activities. [7] In January 2008 she laid-off work due to physical problems but is not relating her current problems to her complaint of February 19, [8] The worker admits to a pre-existing condition and seeks health care benefits and Loss of Earnings (LOE) benefits for a flare-up in her back which caused her to be unable to return to her duties until June [9] The ARO considered that the worsening of the worker s condition was more likely caused by the progression of her pre-existing, non-compensable problems rather than any significant aggravation caused by work duties. (iii) The issue [10] The issue is whether the worker s duties at work caused or significantly contributed to the aggravation of her back condition, which caused her to be off work from February 19, 2007 until she was able to resume full-time hours by June 2007.

3 Page: 2 Decision No. 1672/10 (iv) The worker s evidence [11] The worker testified that she has worked 20 years for her employer as a postal clerk. She stated that she has worked in different sections such as manual sortation, using machines to conduct short and long sorting, and lastly, in manual oversize sortation. [12] The worker testified that a number of years ago she suffered from a right shoulder condition for which she received a 10% Non-Economic Loss (NEL) award for permanent injury. [13] She stated that it was only in recent years that the accident employer altered her duties. From sometime in 2003 she worked on machines, performing long and short sortations, but found that this bothered her left arm, shoulders and neck. Starting in 2004, she required modified duties for her shoulders. The modified duties involved manual sorting of oversized mail. This job involved retrieving polyflutes from monocontainers. These polyflutes measured about 18 inches by two feet. She then manually sorted the mail into slots in a sorting cabinet. The job involved standing, lifting and bending. She stated that as well she had alternate jobs sorting and dispatching U.S. mail and late mail, both of which jobs also involved standing, lifting and bending. [14] She stated that she told her family physician that her left leg was bothering her as early as 2005 but she was not told that the problems with her leg related to her back. [15] In 2005 she began to have significant left thigh pain and took painkillers but was advised to stay active, so that staying off work was not an option. She confirmed her evidence as reported by the ARO that the pain would come on mostly at work and would intensify with standing. She confirmed that she did not think the back was then a problem at the time as the pain was concentrated to her leg. She stated that the job of standing and sorting factored into the increasing problems with her leg and ultimately her back, and that this involved bending. She stated that the job lacked variety in her movements. [16] She testified that by February 2007 she reached a point where she had so much pain she could not function and had to lay off work. [17] She stated that previously she required short periods of time off for her ailments, as a result of which her family physician, Dr. L. S. Sewchand provided a letter to her employer, as requested, on December 21, 2006 describing her ailments. She stated that she had a couple of unrelated injuries that had no effect on her back, including an ankle injury of November [18] She explained that Dr. Sewchand confirmed that she needed to take some time off from work and recommended physiotherapy. She stated that she found this helpful and that later she went for assessment by Dr. J. D. Pudden, a pain management specialist and received nerve blocks, which were also helpful. She stated that even prior to taking time off work she could not do things. She stated she could not lift or walk to any great extent. Her husband had to help her with any serious housework and with shopping. She believed that her physiotherapy was covered under her company plan.

4 Page: 3 Decision No. 1672/10 [19] She explained that while at work the extent of her pain in her back elevated from what she rated as four/five out of ten to eight out of ten and that she would then go home and take medication for pain. [20] She explained that pursuant to a Program of Care (physiotherapy) which she undertook, she was first recommended to come back to work for two hours per day. She stated that her supervisor told her that two hours were unacceptable and that she would need a four hour start. When she returned to work in May 2007 she returned to the four hour level. [21] She denied participating in any sports i.e. golf or bowling or other recreational activities that would affect her back. [22] She stated that when she resumed her oversized sortation duties she was relieved of retrieving the polyflutes from the monocontainers, which was the initial step in that job. She said that she did, however, continue to sort mail and put them in slots. She agreed that she was not required to sort mail into the higher slots, which would affect her shoulder. [23] It was the worker s position that manual sortation of oversized mail was easier than her former job, but having to stand and to pivot while sorting into a stand-up case caused her problems. [24] The worker confirmed the ergonomic description of manual sortation (oversized sortation) in which sorting the mail into oversized cabinet sorting slots comprised 70% of the time in which the work was performed. (v) Medical evidence [25] Dr. Sewchand s clinical notes indicated the worker s complaints of leg pain in October and November The clinical notes also indicated the worker having neck and hip pain on the left side in May 2005 and described several medications that the worker was taking. In July 2006 the clinical notes mentioned the worker s leg pain which was being relieved by acupuncture therapy. In December 2006 it was noted that the employer needed a letter to explain her occasional work absences. [26] Dr. Sewchand s letter of December 21, 2006 explained the worker s medical problems as 1) neck pain radiating into her arms; 2) lower back pain radiating into her legs; 3) depression. [27] He added: These problems are chronic and will flare-up from time to time leading to absences from work. Please excuse her absences over the past few years. I should add that these problems are not easily resolved and she is likely to miss more time at work in the future. [28] In his Form 8 dated February 27 th Dr. Sewchand stated that the worker was suffering from repetitive bending and twisting of her lower back at work leading to a flare-up of lower back pain. His Form 8 indicated a similar problem/complaint in His diagnosis was lumbosacral strain. He noted that the worker was receiving physiotherapy and was attending a pain clinic. He indicated restrictions to avoid repetitive bending, twisting of lower back. In his Functional Abilities Form (FAF) dated February 27, 2007 Dr. Sewchand stated that the worker was then unable to work.

5 Page: 4 Decision No. 1672/10 [29] An x-ray reported on March 5, 2007 described the worker s lumbar spine: moderate degenerative arthritic changes involving the facet joints at L4 and L5 and there is a minimal grade 1 spondylolisthesis of L4 on L5 as part of the degenerative process. There is early degenerative disc disease at the L4-5 level. [30] The worker attended a Program of Care for acute low back injuries. A report of March 12, 2007 indicated that the worker required stretching and strengthening of lower extremity. There was to be no heavy lifting or prolonged standing. This initial assessment report also noted that the worker had longstanding bilateral leg pain/achiness and low back ache that was gradually worsening since September On April 2, 2007 a FAF from the physiotherapist indicated the worker could start working graduated hours but with limited lifting and no twisting while lifting. [31] On April 19, 2007, Dr. J. D. Pudden, from the Pain Management Center indicated that the worker was suffering from chronic, progressive and recurrent low back pain and that x-rays as well as clinical appraisal have suggested osteoarthritic changes with pain related to radiculopathy. [32] His report stated that any physical exercise particularly bending and stooping causes pain in her low back and she must rest to regain her composure. He noted that straight leg raising does not bother her and pain is only increased with bending or arching extension of her back. The worker was to return for peripheral nerve blocks. [33] A May 11, 2007 physiotherapist report noted that the employer could not accommodate a two hour work start. The worker was noted as having a concern about the dispatch area and lifting/lowering boxes into it. [34] On May 14, 2007, Occupational Health Services suggested four hours work to start. [35] An x-ray report of May 27, 2008 indicated severe degenerative disc changes at L4-5 with a grade 1 anterior spondylolisthesis of L4 on L5. (vi) Submissions [36] Mr. Platt submitted that the worker aggravated a pre-existing condition while performing modified duties arising from the worker s previous shoulder problems. He submitted that her evidence and the description of her duties indicate that she was constantly standing and bending and twisting. While performing this job her worsening condition started in 2005 and became acute in 2007 when she had to lay off work. [37] He submitted that she suffered a soft tissue injury which caused her a loss of earnings for about three months. He specifically stated that the worker was not seeking a permanent impairment for her development of a low back condition. He observed that the physiotherapist s initial assessment report of March 12, 2007 indicated that the Board was already covering her health benefits. [38] He submitted that the worker s evidence indicated that she was standing, bending and twisting repetitively and that Dr. Sewchand s Form 8 described that this activity at work led to

6 Page: 5 Decision No. 1672/10 her flare-up of lower back pain. He referred to the worker s evidence that she had to reduce her activities generally both before and after the layoff in February. He made reference to the ARO s comment that the worker s condition would not be best suited to the job that she was performing. [39] He submitted that the Board s Aggravation policy should apply for the flare-up. He submitted that the worker cooperated entirely with proposed medical care and it was not her fault that the employer would not return her to work for light duties for two hours per day. [40] Mr. Persad submitted there was no proof of an accident and submitted that the work did not cause the worker s flare-up. He submitted that the worker s job was already modified and that her dispatching duty was accommodating her general condition. He noted that Dr. Sewchand described the worker s leg and back pain as long-standing. He submitted that the health professionals never made a connection between the worker s back and her work. Although he saw the worker and described her conditions, Dr. Sewchand expressed no reservations on her ability to perform her assigned work until February [41] He noted that the x-rays in 2007 referred to her degenerative arthritic condition as moderate, but in 2008 referred to them as severe. He submitted that the worker s problems were that of long standing degenerative arthritic changes. He submitted that in any event she would have been able to resume her modified duties by April (vii) Conclusion (a) Law and policy [42] Board policy expresses that the definition of an accident includes a disablement arising out of and in the course of employment. The definition of disablement includes a condition that emerges gradually over time or is an unexpected result of working duties. [43] The Board s Operational Policy Manual (OPM) Document No , Aggravation Basis, provides in part: Policy In cases where the worker has a pre-accident impairment and suffers a minor workrelated injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. Guidelines Decision-makers should first determine entitlement in the claim (see , Accident in the Course of Employment). Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state. Definitions

7 Page: 6 Decision No. 1672/10 An aggravation is the effect that a work-related injury/illness has on the pre-accident impairment requiring health care and/or leading to a loss of earning capacity A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. (Although the period of time cannot be defined, a decision-maker may use a one to two year timeframe as a guide.) NOTE For the purpose of this policy, pre-accident disability refers to a pre-accident impairment plus a loss of earning capacity. As defined in , Second Injury and Enhancement Fund (SIEF), a pre-accident disability is a condition which has produced periods of disability (impairment/illness/wage loss) in the past requiring treatment and disrupting employment. A pre-accident state is the worker's level of impairment and work capacity prior to the work-related injury. Aggravation basis - determining entitlement Entitlement in a claim is accepted on an aggravation basis when a relationship is shown between the pre-accident impairment and the degree of impairment resulting from the accident, and an increased degree of impairment occurs, which exceeds the usual, owing to the pre-accident impairment. Determining pre-accident impairment Before the allowance on an aggravation basis is considered, decision-makers must determine if a pre-accident impairment exists. Evidence of this includes, but is not limited to, a worker having a previously identified and symptomatic medical condition/impairment, medical precautions/restrictions and performing modified work prior to the accident, receiving regular health care treatments prior to the accident, lost time from work prior to the accident. (b) Analysis [44] The Panel finds that the worker s activities in manual sortation significantly contributed to the flare-up or the aggravation of her pre-existing back condition, with the result that she ceased working in February [45] The worker has admitted to having a pre-existing back condition prior to February 2007, although she did not realize it until told by her acupuncturist that it was her back that was causing the pain radiating down her left leg. The x-rays demonstrated a back condition that was gradually worsening. [46] She had problems with her left leg between 2005 and The significant left-sided pain commenced in 2005, which was shortly after she began her modified work doing manual sortation of oversized mail. The ergonomic description of the essential duties expressed that 70% of the time this job involves sorting the mail into oversized cabinet sorting slots. This was a

8 Page: 7 Decision No. 1672/10 job that the worker did standing, along with some lifting and bending. Although the back was not identified as the source initially, it came to be identified as a back problem [47] We observed that the worker missed some time from work in Dr. Sewchand described lower back pain radiating into her legs as one of the reasons for her short prior absences from work in his December 2006 letter. It is rather prophetic that he described her as likely to miss more time at work in the future. [48] The worker has described that through her working day the pain in her leg and subsequently her back worsened. Given her absences from work and Dr. Sewchand s information, we accept the worker's description of her worsening leg condition while performing the manual sortation of oversized mail. We also accept the worker s evidence that she already had to modify her outside activities even before she laid off in February [49] Dr. Sewchand attributed the flare-up of the worker s back condition to the worker s activities at work. The medical evidence from February 2007 forward supports that there was a flare-up or worsening of her back condition that caused the worker to be off work from February 19, 2007 until she returned to work in May 2007 to the four hour per day level. [50] It was not her fault that she could not be accommodated to start earlier at the two hour per day level. She certainly appears to have cooperated in all medical treatment and underwent recommended treatment in the Program of Care. Her treating health professionals recommended a gradual return to work and she returned to work on a graduated basis. [51] We agree with Mr. Platt that the Board s policy on aggravation fits this case. The worker went through an acute episode during which she could not work or could not be accommodated when she was ready to gradually return to work. Her degenerative arthritic condition did not prevent her from returning to work and continuing work duties for about eight months. The x- rays in March 2007 described her condition as moderate and early degenerative. This is in contrast to the severe degenerative conditions described in an x-ray a year later when the worker was off work and is not presenting a claim for compensation. [52] We are persuaded that the evidence supports the worker s position that the nature of her work was likely a significant contributing factor in the onset of her acute back pain to such a degree that she could not return to work for three plus months. We find she is entitled to full LOE benefits and related health care benefits during the period in February through June 2007 when she was not yet returned to full duties.

9 Page: 8 Decision No. 1672/10 DISPOSITION [53] The worker s appeal is allowed. [54] The worker is entitled to her LOE benefits for the period from February 19, 2007 through June 2007 on an aggravation basis, together with any health care benefits for treatment received as described in the Case Record. DATED: September 29, 2010 SIGNED: M. M. Cohen, A. D. G. Purdy, K. Hoskin