WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1096/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1096/16 BEFORE: C. M. MacAdam : Vice-Chair B. M. Young : Member Representative of Employers R. W. Briggs : Member Representative of Workers HEARING: April 13, 2016 at London Oral No post-hearing activity DATE OF DECISION: May 17, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1314 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO), dated November 29, 2013 APPEARANCES: For the worker: For the employer: Interpreter: R. McGill, 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. 1096/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, dated November 29, 2013 that denied ongoing entitlement for his low back condition, including recognition of a permanent impairment and a non-economic loss (NEL) assessment. The decision also denied entitlement to loss of earnings (LOE) benefits from October 1, The issues for determination in the appeal are ongoing entitlement for the worker s low back condition, including entitlement for a permanent impairment and NEL determination, and entitlement to LOE benefits from October 1, (ii) Background [2] The worker was hired as a welder by the accident employer on November 10, [3] On May 29, 2012, the worker injured his low back when a 100 pound screen he was moving fell on him. The claim was allowed for a low back strain injury. Full LOE benefits were paid from May 30, 2012, to August 30, 2012, when he returned to modified duties at graduated hours. Partial LOE benefits were paid to October 1, [4] Medical documentation indicated a pre-existing low back condition. A May 4, 2007 x-ray report indicated moderate disc narrowing at the L5-S1 disc level and moderate-sized osteophytes at many disc levels. A May 29, 2012 x-ray report also indicated degenerative changes in the lumbar spine. A June 26, 2012 MRI report indicated degenerative changes at the L4-5 and L5-S1disc levels. No significant disc herniation, spinal stenosis or root compression was indicated. In a letter dated November 29, 2012, the Case Manager indicated there was no evidence to support ongoing entitlement for the workplace strain injury. The worker objected to that decision. The Case Manager reviewed the file on May 31, 2013, including a second lumbar MRI report from May 1, The denial for ongoing entitlement was confirmed. The worker continued to object but the denial was again confirmed on October 11, The worker continued to object. In the decision of November 29, 2013, the ARO confirmed the denial of ongoing entitlement and LOE entitlement beyond October 1, 2012, on the grounds that the medical evidence did not indicate a permanent aggravation of the pre-existing low back condition. The worker now appeals that decision to the Tribunal. (iii) Law and policy [5] Since the worker was injured in May 2012, 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. [6] Specifically, section 43 of the WSIA governs the worker s entitlement in this case. Section 43 of the WSIA provides in part that: 43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker's loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;

3 Page: 2 Decision No. 1096/16 (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). (3) The amount of the payment is 85 per cent of the difference between his or her net average earnings before the injury and any net average earnings the worker earns after the injury, if the worker is co-operating in health care measures and, (a) his or her early and safe return to work; or (b) all aspects of a labour market re-entry assessment or plan. 1997, c. 16, Sched. A, s. 43 (3); 2000, c. 26, Sched. I, s. 1 (6). [7] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [8] The standard of proof in workers compensation proceedings is the balance of probabilities. [9] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: #224, 248, 261, and 300. [10] We have considered these policies as necessary in deciding the issues in this appeal, in particular Operational Policy Manual (OPM) Document No , Aggravation Basis, states, in part, the following: 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. Definitions 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.) A pre-accident state is the worker's level of impairment and work capacity prior to the work-related injury.

4 Page: 3 Decision No. 1096/16 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. Example - No pre-accident impairment Bob suffered a work-related back injury on March 1, 2002, when he fell 10 feet off a scaffold. He was unable to return to return to his pre-accident employment because of the fall. Bob has a history of back problems and required surgery in At the time of the accident, Bob was working as a carpenter with no medical restrictions or medical treatment and was only observing proper back care. Bob sustained a moderately severe back injury on March 1, He did not have a preaccident impairment and therefore is entitled to ongoing benefits and services. In this case, there is no limitation of entitlement. [11] Section 2(1) of the WSIA defines permanent impairment as follows. [12] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [13] Section 46(1) of the WSIA states: If a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. (iv) Testimony [14] The now 59-year-old worker described his work history. He had worked as a truck driver for three or four years many years ago. He was a machine operator for five years. He then worked as a welder in a truck-assembly plant for 10 years until it closed in He then worked as a welder with the accident employer for over three years until his May 2012 accident and continued working for the accident employer for another year until he was laid off in January [15] The worker testified that the clinical testing for his low back in 2007 arose from his job duties with no particular accident. He lost no time from work and there was no follow-up. His next low back complaint was in July 2009 when he received chiropractic treatment. No claim was made and the worker testified that the low back pain worked itself out. [16] The worker described the May 2012 accident where a screen weighing about 100 pounds fell on him. [17] After being laid off by the accident employer in January 2013, the worker then worked as a labourer from January 2013 to February 2013, at which time he quit the job because the required heavy lifting aggravated his low back. He then worked as a welder from March 2013 to

5 Page: 4 Decision No. 1096/16 November 2013 at which time he was laid off due to a shortage of work. He then worked from November 2013 to July 2014, as a labourer with a temporary employment agency and was assigned performing mainly light duties until he quit the job. He was on the same company s payroll and worked from July 2014 to September 2014, at which time he was dismissed for making a mistake on the job. He worked as a spot welder with a company from September 2014 to November 2014 at which time the company had a seasonal shutdown. The worker then went on Employment Insurance until April 2015, when he obtained employment as an assembler until January In that month, he obtained his current employment, packaging vegetables. The worker has presented Records of Employment (ROE) confirming the foregoing employment periods since the accident. [18] The worker testified and the ROEs confirm the worker has been working at a wage loss since he stopped working for the accident employer. The worker testified that he has not lost time due to his low back condition since he stopped working for the accident employer. [19] The worker testified that his drivers licence was lifted in March 2016, due to seizures related to panic attacks. He now sees a psychologist after many years of refusing to do so out of pride. [20] The worker testified that his current symptoms are in the low back and radiating down his left leg. He has not complained to his doctor about his current job out of fear of being fired. He testified that he has blackouts for periods of time due to pain later retracted this evidence. (v) Documentary and medical evidence [21] As indicated above, a May 4, 2007 x-ray report indicated moderate disc narrowing at the L5-S1 disc level and moderate-sized osteophytes at many disc levels. The clinical note from May 4, 2007, attributed the problem to hard floor surfaces at the workplace. There is no further evidence of a back problem until a July 10, 2009 clinical note indicating pain under the right shoulder radiating down and around the rib cage. There is nothing further until the workplace accident of May 29, [22] The June 26, 2012 lumbar MRI report from the radiologist, Dr. D. H. Lee, indicated a central and slightly left-sided disc herniation close to the left traversing L5 root sleeve but not compressing the root. The L4 nerve root was also not compressed. At the L5-S1 disc level, there were mild degenerative changes, diffuse disc bulging, small osteophytes and no root effects. [23] An October 5, 2012 clinical note from the family physician, Dr. Tallon, indicates the worker was on graduated duties, that leg symptoms had resolved, that his back pain was improving, and he was taking Aleve as needed. [24] The next clinical note is dated January 12, 2013, and indicates the worker was in unrelenting pain in the low back with tingling in the left leg and foot. He was unable to do Karate and was taking Aleve as needed. Dr. Tallon began a trial of Gabapentin and recommended a REC assessment. The ROE in evidence indicates the worker was laid off because of a shortage of work on that date with a recall date of February 18, The subsequent ROE indicates he was recalled on March 14, 2013.

6 Page: 5 Decision No. 1096/16 [25] On April 1, 2013, the worker saw Dr. Tallon for a low back flare-up since going to bed the night before. There was no actual cause and no prior flare-ups. Pain was radiating to the left hip and leg. Flexion was 20 degrees with no extension. The April 5, 2013 note indicates the flare-up had settled and the worker returned to light duties on April 2, [26] The worker underwent a further lumbar MRI on May 1, 2013, by the radiologist, Dr. A. Leung. The report dated May 2, 2013, indicated mild degenerative changes at several disc levels and moderate degenerative changes at L5-S1 superimposed on a right paracentral disc herniation possibly contacting the traversing right S1 nerve. [27] A May 22, 2013 clinical note indicates the May 2, 2013 MRI report was reviewed, the worker was performing almost all his duties with no heavy lifting and he had pain on a daily basis. Dr. Tallon wrote to the Board on May 28, 2013, indicating the worker was in daily pain with radiation to his left hip and leg down to his foot; that he had 90 degrees of flexion and 20 degrees of extension; that the recent MRI was unchanged from the previous one of June 2012; and that the worker had a permanent restriction of no heavy lifting. [28] Dr. Tallon referred the worker to a pain clinic in January 2013 and again on June 5, The dosage of Gabapentin was increased in June [29] The worker underwent a further lumbar MRI on June 11, 2013, on referral by a neurosurgeon, Dr. Duggal. The report of that date from the radiologist, Dr. D. M. Pelz, notes a comparison with the previous two MRI reports and indicates the degenerative changes at L5-S1 and L4-5 had progressed since the June 2012 MRI. Dr. Duggal examined the worker on June 11, 2013, and a report was prepared by a Nurse Practitioner on that date. The worker reported only 50% improvement in his low back since the workplace accident with ongoing left buttock and leg symptoms. Low back pain had persisted with flare-ups depending on activities and left leg symptoms. The report indicated Dr. Duggal s opinion that the worker s current pain syndrome was provoked by a work related injury. Dr. Duggal recommended lumbar facet injections under an anaesthetist, Dr. G.A. Bellingham, to relieve the worker s pain. [30] The worker was assessed by a neurosurgeon, Dr. Wai Pui Ng, on July 8, 2013, in relation to the worker s reaction to a nerve block injection on July 4, 2013, at a pain clinic. In his report, Dr. Ng indicated that the May 2, 2013 and June 11, 2013 MRIs indicated a right paracentral disc herniation at L5-S1 with posterior displacement of the traversing right S1 nerve root. Dr. Ng s assessment was that the reaction to the previous injection was under control and further nerve block injections should continue to treat the left lower extremity symptoms radiating from the low back. [31] The clinical note of July 10, 2013, indicates the worker was at the emergency unit the night before with a facial reaction to a nerve block injection for low back pain he had received. Further injection treatment was cancelled. The clinical note of July 29, 2013, indicates the worker had chronic low back pain and the dosage of Gabapentin was increased again. [32] The worker began nerve block injection therapy with Dr. Bellingham on September 16, [33] On January 13, 2014, Dr. Bellingham reported the worker had a significant degree of spasm in the left lower back when he gave the worker a lidocaine infusion.

7 Page: 6 Decision No. 1096/16 [34] On April 14, 2014, Dr. Bellingham reported the worker was being treated with injection therapy for fairly severe focal low back pain. The report indicates the worker was using a TENS machine with some positive pain reduction and he was using pool hydrotherapy. Dr. Bellingham supported both, as well as Gabapentin and Losec, though injection therapy was stopped. [35] Dr. Tallon s 24 clinical notes from August 12, 2013 to December 21, 2015, indicate ongoing complaint and treatment/medication for low back pain. (vi) Submissions [36] The representative argues the clinical evidence indicates the worker had a pre-existing low back condition that was not symptomatic for several years prior to the workplace accident. He argues the MRI reports in evidence and the opinion of neurologist, Dr. Duggal, indicate the accident caused the nerve root involvement indicated in the May and June 2013 MRIs. He argues that the clear evidence of complaint since the accident reasonably leads to a finding that the workplace accident caused the nerve damage indicated in the two 2013 MRI reports. On this basis, he submits the Panel should find that the workplace accident caused a permanent low back impairment. [37] Concerning ongoing LOE entitlement from October 1, 2012, the representative argues the worker is a credible witness and that it should be accepted that his loss of earnings from October 1, 2012, is related to his permanent impairment. He submits the worker should be granted a Work Transition Assessment and that LOE benefits should be paid accordingly. (vii) Analysis [38] After considering all the evidence, the Panel finds the appeal should be allowed in part. We find the worker had a pre-existing asymptomatic degenerative low back condition that was aggravated by the workplace accident, constituting a work-related permanent impairment. Entitlement for a NEL determination is therefore in order. We find the issue of LOE entitlement from October 1, 2012, should be returned to the Board for further adjudication pending the outcome of the NEL determination. Our analysis follows. [39] We find, based on the May 4, 2007 x-ray report from the radiologist, Dr. J. Amann, that the worker had moderate degenerative changes in his lower back. The only evidence of further low back treatment prior to the workplace accident is a reference to chiropractic treatment in There is no evidence that the condition had been symptomatic or that the worker had lost time in the three years prior to the May 2012 workplace accident. [40] We further find that the MRI reports of June 26, 2012, and May 1, 2013, indicate a worsening of the pre-existing degenerative changes that are, on a balance of probabilities, attributable to the workplace accident. The radiologist, Dr. Lee, indicated in his June 26, 2012 MRI report that while a slight left-sided disc herniation was apparent at the L4-5 disc level, his impression was that there was no significant disc herniation, spinal stenosis, or root compression. Yet Dr. Leung s May 2, 2013 MRI report indicated mild degenerative changes at several disc levels and moderate degenerative changes at L5-S1 superimposed on a right paracentral disc herniation possibly contacting the traversing right S1 nerve. This indicates that in the year since the workplace injury, the worker s low back condition had worsened such that compromise of the L5-S1 nerve root that had not been indicated in June 2012, was indicated as a

8 Page: 7 Decision No. 1096/16 possibility in May There is then the third MRI report of June 11, 2013 from Dr. Pelz, who reported further progression of the degenerative facet changes at L4-5 and L5-S1 since the June 2012 MRI. Dr. Duggal who had ordered the third MRI, examined the worker on June 11, 2013, provided a detailed account of the worker s complaint history, indicated the May 1, 2013 MRI demonstrated signal change in the L4-5 consistent with a traumatic injury and opined that the worker s current pain syndrome was provoked by a work related injury. We place full weight on Dr. Duggal s opinion based on his detailed account of the accident history, the symptom history, his review of the MRI findings and his specialized knowledge. We note as well that the neurosurgeon, Dr. Ng, on July 8, 2013, indicated that the May 2, 2013, and June 11, 2013 MRIs indicated a right paracentral disc herniation at L5-S1 with posterior displacement of the traversing right S1 nerve root. [41] While we note Dr. Tallon s May 28, 2013 opinion to the Board that the June 2012 and May 2013 MRIs were essentially the same, we place greater weight on the clinical evidence indicating a probable compromise of the L5-S1 nerve root in the May and June MRIs and the opinions of the specialists Dr. Petz and Dr. Duggal indicating same. [42] In our view, the MRI evidence indicates on a balance of probabilities that the worsening of the worker s degenerative low back condition was aggravated by the workplace accident. There is no clinical indication of worsening in the worker s lower back from 2007 to 2012, and no evidence of complaint. We note that while the ARO provided a treatment history since the accident to the June 11, 2013 report from Dr. Duggal s office, the ARO did not comment on the reported progression in lumbar degeneration over the one-year period and does not mention Dr. Duggal s opinion that the worker s pain syndrome was related to the workplace injury. [43] In our view, the apparent acceleration in the degenerative changes indicated in the MRI reports is attributable to the workplace injury. The medical record clearly indicates continuity of complaint since the accident is evident in the clinical notes from Dr. Tallon. The note of January 20, 2014, indicated the lidocaine infusions from Dr. Bellingham were helping for two to three weeks; that the worker s average pain was 6/10; and that he was doing plant inspections with physical restrictions through a temporary employment agency. The note of May 12, 2014, indicates Dr. Tallon opined the worker realistically cannot expect resolution of [his] pain. The case materials contain a copy of a September 15, 2014 CPP disability medical report from Dr. Tallon, though the worker testified it was never submitted and an October 30, 2014 clinical note indicates the worker reporting he cannot go on disability and needs to still work. An August 21, 2015 note indicates the worker reporting he had blacked out from pain for a few seconds on August 7 th. There are no other factors that reasonably explain the acceleration of the degenerative condition apart from the workplace injury. [44] In summary, we find on a balance of probabilities that the workplace accident caused the acceleration in the worker s pre-existing degenerative low back condition. This constitutes a permanent physical abnormality related to the workplace accident that resulted in functional limitations reported by the worker and indicated in the clinical notes. We find the appropriate maximum medical recovery (MMR) date is May 1, 2013, the date of Dr. Leung s MRI report that first indicated nerve root compromise at the L5-S1 disc level. That finding in nerve root compromise was confirmed in the MRI report of June 11, 2013, and by the neurosurgeon, Dr. Ng. This evidence indicates an ongoing physical abnormality. The worker s evidence of ongoing complaint found in the clinical notes attest to the permanent nature of that abnormality.

9 Page: 8 Decision No. 1096/16 [45] Entitlement to a NEL assessment is therefore in order. [46] Concerning the representative s argument that the worker s wage loss from October 1, 2012, is related to his workplace injury, the Panel finds there is insufficient evidence upon which to make a finding on this issue without having the results of a NEL determination before us. There is little comment in evidence from the worker s treating health professionals concerning his employability or the impact of his low back condition on his employability after May 1, The clinical notes from Dr. Tallon make the occasional reference to the worker s employment since the accident, as noted above, though there is no opinion from Dr. Tallon or any other treating health professionals concerning the worker s employability or physical limitations beyond heavy lifting and repetitive bending. [47] The worker s representative relies largely on evidence of the worker s income since the accident in arguing that the loss of earnings since the accident is related to the workplace accident. Yet the ROEs since the accident indicate an unclear picture in that respect. The November 5, 2013 ROE from the accident employer indicated he was laid off for a shortage of work, yet a September 15, 2014 clinical note from Dr. Tallon indicates the worker was let go because he was unable to do the job. The clinical notes from the period after the accident and before his permanent layoff by the accident employer indicate the worker had been performing modified duties. The issue of permanent modified work does not appear to have been addressed with the employer. [48] There is little evidence concerning the worker s actual duties in the jobs he performed since leaving the accident employer and little opinion evidence from the health professionals on the suitability of that employment. Again, there is little evidence of complaint by the worker to his medical professionals concerning those jobs. There is one significant gap in employment from November 2013 to April 2014 when the worker received Employment Insurance benefits. It is unclear from the evidence before us in this appeal if the wage loss reflected in the financial statements submitted by the worker is due to his injury. [49] The Board terminated the worker s LOE benefits as of September 30, 2012, based on a finding that the workplace injury had resolved without a permanent impairment. We have found that there is a permanent impairment. In these circumstances and for the reasons given, we refer back for further adjudication the issue of the worker s employability beyond October 1, 2012.

10 Page: 9 Decision No. 1096/16 DISPOSITION [50] The appeal is allowed in part. [51] The worker has entitlement for a permanent low back impairment, and a NEL determination. [52] For the reasons set out above, the issue of LOE entitlement from October 1, 2012, is referred back to the Board for further adjudication subject to the usual rights of appeal. DATED: May 17, 2016 SIGNED: C. M. MacAdam, B. M. Young, R. W. Briggs