WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 709/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 709/12 BEFORE: R. Nairn: Vice-Chair HEARING: April 3, 2012 at Toronto Written DATE OF DECISION: June 13, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1335 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 29, 2010 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Mr. R. Cronish, Lawyer 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. 709/12 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as an apprentice steamfitter with the accident employer. [2] On November 26, 2007, the worker experienced an onset of pain in his low back while he and some co-workers were lifting a pipe. In his Report of Injury/Disease the worker described the events of November 26, 2007, as follows: Hurt my back while carrying a 14 foot long piece of schedule 4C/8 inch pipe, with two other workers and one of the workers suffered a hernia and had to let go all of a sudden leaving us two with all the weight/strain. [3] The worker sought medical attention and the Health Professional's Report of December 13, 2007, completed by the worker's chiropractor, Dr. K. McAllister, provided a diagnosis of lumbar sprain/strain, sciatica R leg. The worker had an MRI of his lumbar spine performed on December 7, 2007, and the results were interpreted by Dr. A. Rastogi (radiologist) to reveal: Opinion: There is degenerative disc disease at L4-L5 and L5-S1. Small central posterior disc protrusion L4-L5. Possible impingement upon the traversing L5 nerve roots bilaterally. Central to right posterior paramedian disc protrusion L5-S1 with possible impingement upon the traversing right S1 nerve root. No evidence for spinal canal stenosis. [4] The worker had another MRI of his lumbar spine performed on July 21, Dr. W. Montanera (radiologist) concluded: Five lumbar type vertebral bodies are identified. The conus medullaris look at T12-L1. There is normal alignment of the lumbar spine. There is mild disc height loss with disc desiccation at L4-L5 and L5-S1. The surrounding soft tissues are unremarkable. L3-L4: There is no disc herniation, central canal stenosis or neural foraminal compromise. The facet joints are normal. L4-L5: There is a minimal diffuse disc bulge with a central annular tear with no associated central canal stenosis or neural foraminal compromise. The facet joints are normal. L5-S1: There is a moderate focal central disc protrusion with an annular tear that is abutting the traversing S1nerve roots, greater on the right side. There is no neural foraminal compromise or central canal stenosis. The facet joints are normal. Interpretation: Focal central disc protrusion with an annular tear at the L5-S1 level that is abutting traversing S1 nerve roots greater on the right side. [5] The worker was assessed by a neurologist, Dr. P. Muller, and in a report dated August 19, 2008, Dr. Muller indicated in part:

3 Page: 2 Decision No. 709/12 I had the pleasure of seeing the above captioned in the neurosurgical clinic on 19 August I previously saw him last May. He had a sizeable disc rupture when I initially saw him. It was sufficient that I thought it would be appropriate to recommend surgical treatment but eventually we opted for a more conservative route. We have had his MRI scan repeated and although he does have degenerative disc changes at L4-L5 and L5-S1 the sizeable disc rupture has spontaneously resolved quite nicely. He was employed as a pipefitter which entailed a lot of heavy lifting and I do not think that he is going to get back to that kind of work but my understanding from him is that he is in the process of retraining and this will no doubt serve him in good stead. I advised him to be careful with his weight. I advised him to maintain good abdominal and lumbar muscle tone and to avoid heavy lifting. Surgical treatment as it turns out will not be necessary. [6] The WSIB (the Board ) recognized the worker's back injury as compensable and he received various periods of loss of earnings ( LOE ) benefits. In a letter dated July 21, 2009, the worker was advised that he was being granted a 22% Non-Economic Loss ( NEL ) award for his compensable back condition. [7] In 2009, the Board considered the issue of the employer s entitlement to Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this worker's claim. In a decision dated August 14, 2009, a Board Case Manager denied the employer s request for SIEF relief concluding that there appears to be no pre-existing condition, which is prolonging the recovery under this claim. The employer objected to the conclusions of the Case Manager and asked that the matter be reconsidered. In the course of considering the employer s request, the Case Manager asked for a medical opinion and in a memo dated November 17, 2009, Dr. Kanalec of the Board concluded: Medical opinion The predominant symptoms appear to be originating from the diagnosed disc herniation. The chosen impairment due to specific disorders of the spine is a standard impairment rating for a lower back injury involving the intervertebral disc or other soft tissue lesions. Based on my review of the medical information there would be no SIEF as the symptoms appear to be originating from the diagnosed disc protrusion/herniation. [8] In a decision dated November 18, 2009, the Board s Case Manager confirmed: On November 6, 2007 [the worker] injured his lower back when he was lifting a 14 foot pipe along with two co-workers when one of these co-workers dropped the pipe. The weight of the pipe is not provided in the initial accident reporting, however, a medical report on file references the weight being between 600 to 700 pounds. Although he was co-lifting the object, the weight involved along with the sudden movement would support a major accident severity. Loss of earnings has been paid from November 13, 2007 to date and a permanent impairment has been accepted. I reviewed the objective medical evidence on file along with a Board medical consultant which included the non-economic loss clinical examination. The predominant symptoms appear to be originating from the diagnosed disc herniation that has been accepted in this claim. There is no evidence that the worker s recovery has been impacted by a preexisting condition and his ongoing impairment is directly linked to the accident. Based on my review I have upheld the decision to deny SIEF.

4 Page: 3 Decision No. 709/12 [9] The employer objected to the conclusions of the Claims Adjudicator and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated November 29, 2010, the ARO denied the employer s appeal and concluded: I reviewed the medical information in the worker s claim, including x-rays taken at the time of the injury and the MRI reports dated December 7, 2007 and July 21, 2008, for factors that may demonstrate evidence of a pre-existing condition which may have contributed to the extent and severity of the injury or delayed the recovery. The MRI report did reveal evidence of a mild pre-existing degenerative condition, however, there was no objective evidence to support that the extent of this condition prolonged the workers recovery. In reviewing the assessment results for the NEL examination, the predominant symptoms the worker was experiencing were as a result of the disc herniation, not the mild degenerative disc disease present. Therefore, I find that the mild pre-existing condition did not contribute to the severity of the injury and did not delay the recovery. There is no entitlement to SIEF in this claim. (ii) Issue on appeal [10] The issue to be determined in this case is whether the employer is entitled to SIEF relief with respect to the costs of this worker's claim. (iii) Submissions of the employer s representative [11] The employer agreed to have this appeal considered by means of written submissions. On November 3, 2011, Mr. Cronish provided the Tribunal with written submissions which have been included in Addendum No. 3. I have reviewed those submissions and the attached schedules, prior to issuing my decision. [12] In his submissions, Mr. Cronish indicated in part: The labour market entry Plan, Progress Report 15, May 2010, marked as Schedule 4, indicates, Worker advised he is under stress and is experiencing marital breakdown at home. He advised he is very stressful. The one aspect of the claim that was not considered as a factor in prolonging this worker s recovery is the marital breakdown and this problem is not work-related. The worker had an examination on August 19, 2008 by Dr. Paul Muller, wherein a report to Dr. Lorne Stephen was written on the said date. I mark this report as Schedule 5. This report identifies that the worker has degenerative disc changes at L4-L5 and L5-S1. These degenerative changes are the proximate cause for the disc rupture as the worker did not have a slip, fall or twist at the time the initial hurt was incurred. St. Michael s Hospital MRI Report, dated July 21, 2008, marked as Schedule 6, corroborates the fact that the worker had central spinal canal stenosis. Narrowing of the spinal canal is a congenital defect. It is not caused by a workplace injury. The fact the spinal canal is narrow causes the pressure upon a disc which prolapsed in a central manner which is quite different where you see disc protrusions either to the right or to the left because of the nature of the injury to the spine.

5 Page: 4 Decision No. 709/12 In this case, the worker had no injury to the spine and had disc herniation because of spinal stenosis and neural foraminal compromise. L4-L5 is the area which had a central annular tear. This MRI report, dated July 21, 2008, corroborates that the worker s pre-existing degenerative conditions and congenital defects are the proximate cause for this herniation. The herniation at L5-S1 can only be explained by the fact that the stenosis was present as a contributing factor to this subsequent herniation at the lower disc level. At page 2 of the REC report, it states the worker s wife is expecting their first child. This is contradictory to the worker now being stressed because of marital problems. The stressor or the marriage breakdown becomes more significant given the statement contained in the REC report. The worker is obese. He is 5 11 in height and weighs 232 pounds. The obesity is the proximate cause for the herniation given the stressor upon his lumbar spine from his obesity. The Lakeridge Health Oshawa MRI report, dated December 7, 2007, marked as Schedule 9, identifies disc space narrowing (i.e., degenerative disc disease at L4-L5 and L5-S1). Degenerative disc disease is the proximate cause for disc herniation. The fact that this was not taken into account by Dr. Kanalec reflects, in my opinion, a gross error on the face of the record. [13] Mr. Cronish concludes that there was a moderate accident, obviously, given the weight associated with the pipe. At least 75% SIEF should issue to offset the negligent granting of LMR to this worker. (iv) The Board s amicus curiae submissions [14] Addendum No. 2 contains amicus curiae submissions provided by the Board. Addendum No. 3 contains a copy of a Board presentation to the Tribunal on the issue of SIEF relief. Mr. Cronish was provided with a copy of these materials and given the chance to make further written submissions upon them. In a letter dated March 19, 2012 (contained in Addendum No. 4) Mr. Cronish provided the Tribunal with a copy of Decision No. 499/00I and indicated: As the attached decision will demonstrate that there is no retroactivity to an Amendment, Clarification and/or Policy unless specifically set out in the enabling legislation. The WSIA has no retroactive wording. Therefore, Mr. Slinger s slides and speech have no effect upon the enforcement of fair decision making for SIEF relief. Vice Chair Smith in WSIAT decision # 2436/11 outlines that a pre-existing condition need not be symptomatic or asymptomatic to be eligible for SIEF relief. This is set out at paragraph 50. The WSIB does not allow for asymptomatic SIEF relief. At paragraph # 11, the learned Vice- Chair also discounts the WSIB position regarding new criteria for SIEF relief. I agree with this position as well as for reasons set out in WSIAT decision 499/001. [15] While the Board submissions and Mr. Cronish s response were before me, I did not need to further address them for the purposes of this appeal. I understand Mr. Cronish to be concerned

6 Page: 5 Decision No. 709/12 about the possible retroactivity of changes in Board policy. It does not appear however, that there are any retroactivity issues arising in this case. (v) Analysis [16] Since this worker was injured in 2007, the applicable legislation is the Workplace Safety and Insurance Act, 1997 ( WSIA ). [17] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies which applies to this appeal is Operational Policy Manual ( OPM ) Document No entitled Second Injury and Enhancement Fund. This policy provides in part: Policy If a prior disability caused or contributed to the compensable accident or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule I to the SIEF. Both physical and psychological disabilities are included. Guidelines There is no provision in the Act for the Fund to apply to Schedule II employers. In situations where alcoholism plays a role in the causation of an accident it is not considered to be a pre-existing condition with regard to the application of SIEF relief. The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. SIEF-application to employer costs Medical significance of pre-existing condition* Minor Moderate Major Severity of accident ** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of cost transfer *** 50% 25% 0% 75% 50% 25% % 75% 50%

7 Page: 6 Decision No. 709/12 NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition - "Severity of Accident" Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF. [18] As the above-mentioned policy suggests, deciding upon the quantum of SIEF relief to be granted in a particular claim involves determining both the severity of the compensable accident and the medical significance of the pre-existing condition. [19] With respect to the medical significance of a pre-existing condition, Board policy requires that it be characterized as either minor, moderate or major. The policy does not provide definitions of those terms but indicates only that the medical significance is to be assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. It is also worth noting, for the purposes of this appeal, that in addition to establishing that there were pre-existing conditions present, the employer bears the evidentiary burden of establishing, on a balance of probabilities, that the pre-existing condition(s) caused or contributed to the compensable accident or prolonged or enhanced the worker's recovery. [20] In his submissions, Mr. Cronish takes the position that there were a number of preexisting conditions present in this case which either contributed to the disc herniation for which the worker was granted entitlement or have prolonged his recovery from that condition. These pre-existing conditions include degenerative disc disease of the lumbar spine, spinal stenosis, obesity and non-compensable/familial stressors. [21] The MRI of December 7, 2007, confirms the existence of degenerative disc disease at L4-L5 and L5-S1 but that MRI and the subsequent MRI of July 21, 2008 both confirm that there was no central canal stenosis. However, even accepting that both of these degenerative/congenital conditions existed prior to the events of November 26, 2007, there is no medical evidence of significance supporting a conclusion that these conditions played any significant role in either causing the worker's disc herniation or prolonging his recovery from it. The only physician who has directly considered the issue on appeal is Dr. Kanalec who concluded, after reviewing the file material, that there would be no SIEF relief as the symptoms appear to be originating from the diagnosed disc protrusion/herniation. Similarly, reviewing the

8 Page: 7 Decision No. 709/12 reports provided by the worker's treating physicians, it is apparent that they do not attach much, if any, importance to the worker's pre-existing conditions. In fact, in his report of May 27, 2008, Dr. Muller noted that the MRI scan shows a sizeable central disc rupture at the lumbosacral junction which probably accounts for his symptoms. No alternate, non-compensable, theory of causation is provided. [22] While I acknowledge Mr. Cronish s submission that a pre-existing condition need not be symptomatic in order for SIEF relief to be considered, it is worth noting that the initial reporting in this claim did not reference any prior back problems or that any such conditions would be likely to delay recovery. For example, in the Health Professional's Report of December 13, 2007, Dr. McAllister answered no to the question are you aware of any preexisting or other conditions/factors that may delay recovery?. Similarly, in their Report of Injury/Disease, the employer also answered no to the question are you aware of any prior similar or related problem, injury or condition?. Given the current state of the medical evidence and the absence of any significant back problems prior to the injury, I find that the employer s position that these degenerative/congenital conditions had anything to do with the worker's accident or his recovery to be primarily conjecture. [23] With respect to the other pre-existing conditions noted by the employer, accepting for the moment that at five foot eleven inches and 232 pounds, the worker satisfies the medical criteria for obesity, I was not referred to any medical evidence of significance which supported the employer s theory that this condition contributed to his herniated disc or affected his recovery. While there are Tribunal cases which have recognized that obesity may be a pre-existing condition for the purposes of SIEF relief, where there is no proof that the worker's weight caused or enhanced an injury, SIEF relief will be denied. Once again, even accepting that the worker is obese, there is an absence of medical evidence on file supporting a conclusion that that condition made a significant contribution to the worker's disc herniation or has prolonged or enhanced his recovery. [24] Finally, while I acknowledge that there are references in the LMR reporting to the effect that the worker is under a lot of stress and is experiencing marital breakdown at home I was not referred to any medical documentation which confirmed the nature of any ongoing problems the worker might be experiencing or which provided an opinion in support of the employer s theory that the worker's non-compensable stressors were enhancing or prolonging his recovery from his herniated disc. In addition, it is worth noting that in the most recent LMR Progress Report on file, #19 from February 2011, the service provider noted that the worker stated his personal life has improved and although he stresses about his children, it is not affecting his school work or LMR plan anymore. The consultant asked [the worker] that if this changes to let the consultant know right away. [25] In summary, even if one accepts that there are pre-existing/non-compensable conditions evident in this case, I am not satisfied that the employer has established, on a balance of probabilities, that these pre-existing conditions made a significant contribution to either causing the worker's compensable injuries or prolonging his recovery from them. As such, the employer is not entitled to SIEF relief from the costs of this worker's claim.

9 Page: 8 Decision No. 709/12 DISPOSITION [26] The employer s appeal is denied. DATED: June 13, 2012 SIGNED: R. Nairn