WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1510/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1510/06 BEFORE: M. Butler: Vice-Chair C. J. Robb: Member Representative of Employers F. Jackson: Member Representative of Workers HEARING: July 26, 2006 at London Oral DATE OF DECISION: August 17, 2006 NEUTRAL CITATION: 2006 ONWSIAT 1837 DECISION UNDER APPEAL: WSIB Decision dated June 16, 2000 APPEARANCES: For the worker: For the employer: Interpreter: Ms. J. Hull, Lawyer Not Participating 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. 1510/06 REASONS (i) Introduction [1] In his decision dated June 16, 2000, the Appeals Resolution Officer (ARO) concluded that the evidence did not support that the worker s back condition was related to an accident or disablement arising out of and in the course of her employment with the accident employer (the employer ). (ii) The issue [2] The sole issue on appeal is whether the worker has initial entitlement for a low back disability claimed to have occurred on or about August 31, 1999, either as a disablement or an accident. (iii) Background [3] The worker was born in She began working for the employer as a salesperson on October 27, [4] The worker s chiropractor, Dr. Shawn Martin, referred the worker for x-rays of the lumbar spine on September 7, [5] Dr. Martin wrote a handwritten note on September 8, 1999 that the worker had presented the previous day with severe lower back pain, similar to previous episodes. He suspected disc herniation and possible stenosis of the lumbar spine. He recommended an MRI to assess the degree of nerve compromise and the possibility of appropriateness of surgery. [6] Dr. Lauren McCurdy, Radiologist, reported on September 10, 1999 on x-rays taken on September 7, No fractures or dislocations were identified. [7] Dr. David Barr, the worker s family physician, filed a Health Professional s First Report (Form 8) on September 13, 1999 in which he advised that he had rendered first treatment on September 8, 1999 and that Dr. Martin, Chiropractor, had rendered first treatment on September 7, Dr. Barr s diagnosis was right L5 radiculopathy. He referred the worker to Dr. J. McKishnie, an anaesthetist at the Pain Clinic, and to Dr. H.W.K. Barr, a neurosurgeon. [8] Dr. Roman I. Kozak, Radiologist, reported on September 22, 1999 on a CT scan of the lumbar spine taken on September 17, 1999, which showed a large posterior disc herniation at L4-5. Dr. Kozak suspected compression of the L4 nerve root on the left and recommended an MR scan for further assessment. [9] Dr. Hugh W.K. Barr, Neurosurgeon, saw the worker on November 30, 1999 and reported to Dr. David Barr on December 1, 1999 a diagnosis of central and left-sided moderately large L4-5 intervertebral disc herniation presenting with lower back pain and bilateral leg pain of sciatica, left greater than right. He recommended that, if the worker failed to improve with further conservative therapy over the next few months, she undergo a left sided L4-5 discectomy, which he scheduled for February 24, 2000.

3 Page: 2 Decision No. 1510/06 [10] Dr. Martin wrote to the Board on November 30, 1999 confirming dates of the worker s office visits in 1998 and 1999, including visits on September 7 and 8, [11] Dr. David Barr reported to the Board on February 18, 2000, which report includes the following: On September 8, 1999, she was assessed in my office with an acute lower back pain with radiation into her right leg. The radiation pattern was consistent with a right sided L5 radiculopathy. Her history indicated that she had had an acute onset of this discomfort over the preceding week related to numerous entrance/exiting of the vehicle as well as prolonged driving. As such, a WSIB claim was initiated. At the time of assessment, she was in obvious discomfort and had a positive straight leg raise on the right side with some limitation of dorsiflexion. She was treated with Percodan 1-2 tablets every six hours as necessary, and a lumbar x-ray was ordered. This showed no change from previous. Arrangements were also made at that time for a CT scan of the lumbar spine and assessment by a neurosurgeon (Dr. H.W.K. Barr) and the pain clinic (Dr. McKishnie). The CT scan was done on September 17, 1999, and a left sided L4-5 disc herniation was identified. Interestingly, by my assessment on September 22, 1999, she had developed an alternating sciatica and her symptoms were entirely left sided at that time with a pattem consistent with an L5 radiculopathy. She was assessed by Dr. Deathe (a physiatrist) on October 25, 1999, through the pain clinic. He confirmed the left sided L4-5 disc hemiation and arranged for an MRI of the lower back. She was also seen by Dr. McKishnie on that same date. He did not feel that she would benefit from epidural injections. As such, treatment was continued with antiinflammatories and physiotherapy. The MRI was done on November 7, 1999, and, although I do not have the actual report, it was apparently the same as the preceding CT scan. [The worker] was assessed by Dr. H.W.K. Barr on November 30, He confirmed the left sided L4-5 disc herniation. She has been scheduled for a left L4-5 disc decompression on February 24, In the interim, if her symptoms were to have abated, she could cancel the procedure. I last had occasion to assess [the worker] on February 14, At no point in time since her original presentation in September 1999 had her symptoms disappeared. In fact, over the preceding few days, her left sided leg pain had begun to worsen. Her intent was then to proceed to [sic] the disc decompression surgery as identified above. [12] On February 24, 2000, Dr. Hugh W.K. Barr performed a left L4-5 exploration and removal of a small to moderate sized posteriolateral disc herniation and repair of the atrogenic small dural opening left, L4-5 root sleeve. [13] Dr. Hugh Barr reported to Dr. David Barr as follows on February 28, 2000: Just a brief note to indicate that the above 40 year old patient, following her discussion with you, requested a lumbar disoectomy be performed, on the basis of the continuation of her pain syndrome. Unfortunately her pain syndrome amounted to 80% low back pain, 20% leg pain and it was for this reason that I was reluctant when I saw her on December 1, to strongly recommend an operative procedure be performed. I hope the end result is favourable for her, but she was aware of my concern regarding her decision.

4 Page: 3 Decision No. 1510/06 Operative Procedure 24 February we were able to expose the left L4-5 intervertebral disc level, verified by x-ray in the OR, the intervertebral disc hemiation was small to moderate at best and a standard L4-5 discectomy was performed. At the end of the procedure I noted there was a small opening in the dura of the L5 nerve root sheathe, minimal out-pouching of the arachnold was evident and this area was secured with aurgicele and ticele. For this reason, in order to attempt to prevent a CSF leak, we kept her on bed rest for 24 hours postoperatively and then began ambulation. There was no swelling in the operative area to suggest a CSF leak and she developed no postural headache. She was discharged on February 27, with the appropriate physiotherapy instruction booklet, a prescription for analgesics and a return office appointment to be seen by myself on Monday, March 27, 2000 at 0845 hours. I am concerned that her end result may not be as favourable as she would prefer, mainly on the basis of her major complaint being lower back pain. Unfortunately she no longer has a job to return to and this will be a problem for her. If and when she becomes more comfortable, i.e. to locate appropriate employment. [14] Dr. David Barr wrote the following To Whom It May Concern letter on October 18, 2000: I have reviewed my previous letter of February 18, 2000 and I wish to make a further clarification. I commented on her previous history of back problems in an effort to be thorough. This does not preclude the fact that the injury that [the worker] presented with on Sept. 8, 1999 was entirely new. In summary, [the worker] developed an acute L4-5 disc herniation in late August 1999 that was directly attributable to the mechanics of her occupation. If I can be of any further assistance in this matter, please do not hesitate to contact this office. [15] Dr. Patricia Morley-Forster, Anaesthetist, replied to Ms. Hull s letter of December 12, 2005 on March 14, She advised that the worker is permanently disabled due to the back and her left leg pain post disc herniation. The requirement for the long-acting opioid, Methadone, would have a long-term effect on her ability to drive and to participate in activities requiring mental alertness. Dr. Morley-Forster opined that the disc herniation injury was work-related since she experienced a sudden onset of pain while lifting boxes [sic] at work and did not have evidence of this on prior x-rays to September 17, (iv) Analysis [16] In coming to our decision to allow the worker s appeal, we considered the following. [17] We gave weight to the worker s testimony and accept the following: She first experienced back pain at age 19 or 20 when she turned and twisted. She received chiropractic and medical treatment. Pain lasted less than a week. She had flare-ups once or twice over the next ten years. They lasted less than a week. She was advised that they were muscular. She experienced more flare-ups past the age of 35. Her doctor told her they were muscular and she was prescribed Percocet, Flexeril and Tylenol No. 3 and she was referred for

5 Page: 4 Decision No. 1510/06 chiropractic treatment. She had three to four flare-ups per year and was off work for a day or two here and there. She was sent for x-rays. Everything was normal until She had been working for a contact lens supplier for about eight years when she switched to working for the employer, a supplier of eyeglasses. Her new job required her to drive about 60,000 km per year (1000 to 1500 km per week). She stated that her sample bag of eyeglasses weighed 60 to 80 pounds. Later she switched to two sample bags weighing 40 to 45 pounds each. She also carried an eyeglass frame tracer, which she described as a large mechanical unit that weighs between 60 to 80 pounds. While she did not have to take the tracer out of the trunk or back seat of her car on every visit, she did have to take it out between two and six times a day. She stated that it was a struggle to get it out. There were two tracers: one at the customer and one with her. She had to deliver and set up the tracer. None of the bags she used had wheels. She worked for the employer for about four years. Over the latter two years her territory was expanded. That required more driving. She averaged five stops per day. She noted more flare-ups over the latter two years working for the employer, for which she had to take more time off. She confirmed that she spoke to M, the Regional Sales Manager, and P, the owner of the company, on several occasions. She stated that she spoke to M more often. She stated that she did not want to make a big deal out of it because she did not want to lose her job. She was a single mother and sole provider. She thought that she had an acute flare-up in December 1998, for which she was off work for about a week. There were other occasions when she could not drive. However, she was able to do telephone contacts. She explained that on August 31, 1999, she left the town of S at about 7:00 AM. She drove to the town of L, about 1.5 hours away. She had some pain, but it was not excruciating. She did a sales call and then travelled to the town of H, an hour away. She was uncomfortable in the car and tried to get out. She travelled to the town of W, where she had to lift her legs in and out of the car. She had to re-book the appointment. She was supposed to stop at the town of W for another appointment but she drove to London instead. She stayed in bed for five days. She stated that she needed help to the washroom and to change positions. She denied reporting her back problem to the employer because she felt it would go away. She first saw Chiropractor Martin on September 7, He referred her for x-rays, which she had on the morning of September 7, She saw Dr. David Barr, her family doctor, the next day. She confirmed that it was on September 7, 1999 when she received a telephone call from P, the employer s owner, advising her that they were down-sizing and were not going to have a sales representative in south-western Ontario. P faxed a notice of termination to her after the telephone call. She denied having a meeting with the employer about her termination. [18] We gave considerable weight to Ms. Hill s submissions that:

6 Page: 5 Decision No. 1510/06 Section 2(1) of the Workplace Safety and Insurance Act, 1997 (the Act ) defines accident to include disablement arising out of and in the course of employment. The definition of disablement in the Board s Operational Policy Manual (OPM) Document No includes a condition that emerges gradually over time or an unexpected result of working duties. The worker s injury arose out of her work duties, not from non-work activities. The worker is entitled to the benefit of doubt provisions under the Act and Board policy. If the worker s injury resulted from a disablement, the worker must show that it arose out of the course of her employment. In this case, the testimony from the worker and the evidence from the case materials support the extensive driving required in her job, the repetitive heavy lifting of the sample bags and the eyeglass frame tracer unit in and out of her car, the increase of heavy lifting when the worker left her former employer to work for the accident employer, and the expansion of the worker s territory, which increased the amount of driving she was required to do. The key episode that culminated in the disc herniation occurred on August 31, The worker was unable to continue on her route. That had never happened previously. The worker had no fixed place of employment. OPM Document No provides that if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities. In this case, the worker was travelling in the course of her employment. She had been getting in an out of her car and carrying various products from the employer with her. By August 31, 1999, the worker was having an exacerbation that prevented her from being able to return home. She was bed-ridden for five days. Because of the Labour Day weekend, she was unable to see her family doctor until September 8, She did see her chiropractor on September 7, 1999, who referred her for x-rays. Her family doctor was alarmed at her condition when she saw him on September 8. She was sent for a CT scan on September 17, 1999, which showed a disc herniation at L4-5. The worker s condition led to surgical intervention. The ARO overlooked the report from Dr. David Barr dated October 18, 2000, in which he confirmed that the worker s injury that she presented with on September 8, 1999 was entirely new and that the L4-5 disc herniation in late August 1999 was directly attributable to the mechanics of her occupation. Dr. Morley-Forster opined in her report of March 14, 2006 that the disc herniation was related to the worker s lifting of boxes. Ms. Hull noted that Dr. Morley-Forster had referred earlier in that report to the worker lifting boxes of equipment samples in and out of her car while performing her duties as a sales representative for ophthalmic equipment. Decision No. 271/06 reaffirms that the principle of causation applied in compensation cases is not sole contributing factor. Rather, it is a significant contributing factor on the balance of probabilities. The Vice-Chair found that it would be unreasonable to conclude that the

7 Page: 6 Decision No. 1510/06 nature of the worker s job duties in that case were utterly insignificant in the development of his back injury. The Vice-Chair in Decision No. 2294/05 found that in the case of disablement, it is not possible to establish causation with certainty. It is only possible to identify risk factors for certain types of job tasks, and to attempt to determine if the extent of the increased risk is sufficient to make it likely that the work activity is the cause of the worker s condition. [19] In assessing all of the evidence before us, we conclude on the balance of probabilities that the worker sustained a disablement arising out of and in the course of her employment as a sales representative with the employer that culminated in her inability to continue working on August 31, We find that the worker s job duties as a sales representative which required extensive driving about 60,000 km per year and the lifting of heavy sample cases and an eyeglass tracer, were indeed a significant contributing factor in the development of the L4-5 disc herniation for which the worker had decompression surgery on February 24, [20] We are ultimately persuaded by the reports from Dr. David Barr of February 18, 2000 and October 18, 2000 and the report from Dr. Morley-Forster of March 14, 2006 that the worker s disc herniation, for which she had decompression surgery on February 24, 2000, was as a result of her workplace activities carrying sample and equipment cases. [21] Accordingly the Board shall determine the nature and extent of benefits arising out of the disablement. The worker shall have the usual rights of appeal from any decision made by the Board pursuant to this decision.

8 Page: 7 Decision No. 1510/06 DISPOSITION [22] The worker s appeal is allowed. 1. The worker sustained a disablement arising out of and in the course of her employment as a sales representative with the employer that culminated in her inability to continue working on August 31, 1999 and subsequent decompression surgery on February 24, The Board shall determine the nature and extent of benefits arising out of the disablement. The worker shall have the usual rights of appeal from any decision made by the Board pursuant to this decision. DATED: August 17, 2006 SIGNED: M. Butler, C. J. Robb, F. Jackson