WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2470/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2470/09 BEFORE: V. Marafioti: Vice-Chair HEARING: December 18, 2009 at Toronto Oral DATE OF DECISION: January 19, 2010 NEUTRAL CITATION: 2010 ONWSIAT 155 DECISION UNDER APPEAL: WSIB ARO decision dated March 10, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Mr. John Gentile, Paralegal, Mississauga Community Legal Services Did not participate None 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. 2470/09 REASONS (i) Introduction [1] On August 6, 2002, the worker lifted a box of cartridges and felt a pain in the right side of her back. [2] The worker received entitlement from the Workplace Safety and Insurance Board (the Board) in the form of full Loss of Earnings (LOE) benefits from August 7 to August 29, 2002 at which time the Board concluded that she was capable of returning to her modified duties that were offered by the employer. The worker did not return to work and the Board concluded that this was as a result of personal issues unrelated to the compensable claim. [3] The Claims Adjudicator noted that there was a lack of medical continuity between August 2002 and March 2004 and determined that a relationship could not be established between the current diagnosis and the accepted injury. As such, there was no entitlement granted for further Loss of Earnings benefits from August 29, [4] The Claims Adjudicator also determined that the worker had no entitlement for Chronic Pain Disability (CPD) as the back pain was found to be consistent with the organic diagnosis of mild degenerative disc disease and, therefore, the criteria for allowance was not met. The Appeals Resolution Officer on March 10, 2009 concluded that based on the evidence on file and reasons outlined, there was no entitlement to a Chronic Pain Disability or to full Loss of Earnings benefits from August 29, (ii) The issues [5] I must determine whether the worker has entitlement under the Chronic Pain Disability policy. In addition, I must determine whether the worker has entitlement to ongoing full Loss of Earnings benefits from August 29, (iii) The law and Board policy [6] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act continues to apply to pre-1998 injuries. [7] Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies as applicable to this appeal. The Legal Services Division of the Board confirmed that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy Package #10 Chronic Pain Disability Policy Package #34 Reviewing LOE Benefits Prior to July 1, 2007 Policy Package #36 LOE Benefits

3 Page: 2 Decision No. 2470/09 Policy Package #86 Early and Safe Return to Work with Accident Employer Date of Accident as of January 1, 1998 Policy Package #300 Decision Making/Benefit of Doubt/Merits and Justice [8] The policies will not be duplicated here for practical reasons. I have considered the policies in the context of the legislation in arriving at my decision. As the accident date is August 2002, the Workplace Safety and Insurance Act applies. (iv) The Vice-Chair s analysis and conclusions [9] Mr. Gentile provided submissions on behalf of the worker and the worker testified at the Tribunal hearing. I have considered the submissions and testimony in the context of the policies and legislations in arriving at my conclusion. [10] The medical evidence indicates that the worker was initially diagnosed with a back strain in August of 2002 by her family physician. At that point, complete recovery was expected within four to six weeks. A physiotherapy assessment report was prepared, dated August 14, 2002 which provided a working diagnosis of lumbar spine strain. Complete recovery was expected within six weeks. The treatment program proposed was that of physiotherapy with active exercise therapy. A review of the clinical notes indicates that as of July 2003, the worker was experiencing degenerative disc disease of the low back. There is little objective medical evidence from that point until an MRI was conducted of the lumbar spine on March 7, The findings indicated that at the L3-L4 level, there was no focal disc abnormality identified. There was no mass effect into the thecal sac or nerve roots. At the L4-5 level, there was mild degenerative disc disease. At the L4-S1, there was a broad based disc bulge associated with a small central annular tear and mild degenerative changes of the facet joints noted, but no narrowing of the neural foramina. [11] On July 6, 2004, the worker was seen by Dr. D. Wilson, orthopaedic surgeon. Dr. Wilson examined the worker and indicated that there was no specific area of tenderness. The worker s alignment was normal, the worker could flex to touch the knee and extend it to neutral. Neurologically, the worker was found to be intact without restrictions to straight leg raising. [12] Dr. Wilson reviewed the MRI scan and indicated that it showed some decrease in the hydration of L4-5 and L5-S1 and there were annular bulges. There was no evidence of any root compression. Dr. Wilson concluded that the worker s symptoms were more muscular in origin. There was nothing from a surgical prospective recommended and the only recommendation was for a need to have managed extension exercise type program. Dr. Nada-Rajah provided a progress report on the examination of July 24, 2005 and indicated the diagnosis was of degenerative disc disease in the low back. The worker was referred to Dr. G. Chudnow. Dr. Chudnow on examination of the worker s low back found that the worker had tenderness over the left L3-L4 and L5-S1. The worker also had tenderness on the right L3-L4 and L5-S1. The worker was found to have slightly reduced range of movement in flexion, extension and lateral rotation secondary to pain. The impression was that the worker had lumbar facet joint irritation sacroiliac dysfunction, anxiety and depression and sleep disorder. A treatment plan was recommended.

4 Page: 3 Decision No. 2470/09 [13] I also note that Dr. S. Nada-Rajah reported to the Board on July 20, 2005 on examination of July 5, The worker was found to have severe low back pain and spasm of the lower spine. Her range of movements appeared to be limited as well as there was stiffness of the lower back. The worker s condition had caused anxiety and depression and it was concluded that the worker would not be able to cope in the workplace at that time. [14] Dr. G. Chudnow reported again on August 22, 2006 and indicated that the worker s chronic pain disorder was likely related to her work accident at the end of August [15] The Board Medical Consultant reviewed the file on September 30, 2005 and stated that given the lack of medical continuity from August 2002 to March 2004 a causal relationship could not be established between the ongoing low back condition or the compensable injury of August 6, [16] Dr. Chudnow reported on August 22, 2006 that the worker s chronic pain disability was likely related to her work accident at the end of August [17] Another Board Medical Consultant reviewed the file on July 26, 2007 and still concluded that there was a continuity of medical information. It was noted that between 2002 and 2004, the worker had two visits to the family doctors, one to Dr. Saheed on February 2003 and also Dr. Nada-Rajah in June The Medical Consultant stated that this was insufficient medical continuity and noted a working diagnosis of mild degenerative disc disease and mechanical back pain. The Medical Consultant also noted that Dr. Chudnow provided a November 2004 history which stated that there was onset of left radicular symptoms that were worsening. According to Dr. Hokim, the Medical Consultant, the findings were clearly different from the August 2002 physiotherapy description. Furthermore, the Medical Consultant stated that Dr. Saheed denied that there was a radiculopathy on examination. The Board Medical Consultant reviewed the file in July 2008 and stated that the period of limited continuity was still problematic. The Medical Consultant concluded that compatibility was doubtful noting poor continuity and that the current diagnosis was an underlying diagnosis of mild degenerative disc disease. The Medical Consultant noted that there was never any firm neurological findings and the MRI confirmed a non-surgical diagnosis as well. The Medical Consultant noted the fluctuating level of impairment. He concluded that the majority of reports described a back dominant pain which appeared to be consistent with the organic diagnosis as given. (a) Claims process [18] I note that the Claims Adjudicator spoke to the physiotherapist who stated that a worker was able to return to work as long as a chair with a back was provided. However, the physiotherapist wanted to complete the Functional Abilities Form before the worker returned to work. On June 29, 2004, the Claims Adjudicator noted that the worker had called recently to state that she had an MRI that showed a disc bulge. She attributed this to her August 2002 accident. On April 27, 2005, the worker told the Claims Adjudicator she had not returned to any work following the accident and she was dismissed from the employer. Following termination of benefits, the worker received 15 weeks of Employment Insurance sick benefits. On November 7, 2007, the Claims Adjudicator obtained further information from the worker who, again, stated that she had been off work since August The worker stated she was never

5 Page: 4 Decision No. 2470/09 contacted by the employer for light duties. The worker testified that her pain got progressively worse since the accident in She was initially treated by her family doctor but she concluded that she was not receiving good treatment. The worker indicated that she had no prior back problems and no other accidents since the work injury in The worker subsequently had complaints across her back, in the neck area, the shoulder area. She had problems sleeping and the worker describes difficulty with all activities of daily living. (b) CPD entitlement [19] I note Operational Policy Manual Document No on the subject of Chronic Pain Disability. The policy indicates that the Board will accept entitlement for Chronic Pain Disability when it results from a work related injury and there is sufficient credible, subjective and objective evidence establishing the disability. Not all claims involving persistent pain are adjudicated according to this policy. If the pain is predominantly attributable to an organic cause or to the psychiatric conditions of post-traumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the Board s policies on the organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder) or undetected organic sources, the pain will be considered for compensation purposes under the Chronic Pain Disability policy. [20] For a worker to qualify for compensation under the Chronic Pain Disability criteria, the following conditions must be supported by all of the indicated evidence: Condition Evidence A work-related injury occurred. Chronic pain is caused by the injury. A claim for compensation for an injury has been submitted and accepted. Subjective or objective medical or non-medical evidence of the worker s continuous, consistent and genuine pain since the time of the injury, AND a medical opinion that the characteristics of the worker s pain (except for its persistence and/or its severity) are compatible with the worker s injury, and are such that the physician concludes that the pain resulted from the injury. The pain persists 6 or more months beyond the usual healing time of the injury. Medical opinion of the usual healing time of the injury, the worker s pre-accident health status, and the treatments received, AND subjective or objective medical or non-medical evidence of the worker s continuous, consistent and genuine pain for 6 or more months beyond the usual healing time for the injury.

6 Page: 5 Decision No. 2470/09 The degree of pain is inconsistent with organic findings. The chronic pain impairs earning capacity. Medical opinion which indicates the inconsistency. Subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption. [21] In this case, I am not satisfied that the worker meets the criteria for entitlement under the Chronic Pain Disability policy. In particular, there is a lengthy gap in medical continuity after the accident, and, therefore, the evidence does not establish that the worker s disability of pain was continuous or consistent. Furthermore, I accept the opinions of the Board Medical Consultant that the back pain was consistent with a diagnosis of degenerative disc disease, an underlying condition, not with the accepted back strain. Furthermore, the worker s description of her symptoms were inconsistent with the low back injuries and the low back strain resulting from the accident. The worker s pain included areas of the neck, left arm, shoulders, and were not compatible with the injury of the diagnosed back strain. In my view, the medical evidence indicates that the worker was fit for modified work by the end of August 2002 and I am satisfied that work was available with the employer at no wage loss. In my opinion, there is no medical evidence to indicate that any permanent impairment resulted from the back strain compensable accident. In summary, I am satisfied that not all the criteria for allowance of CPD is met and I am not satisfied that the Chronic Pain Disability entitlement should be granted in this case. (c) Loss of Earnings benefits from August 29, 2002 and ongoing [22] On my review of the medical evidence, I note that by August 29, 2002, the worker was fit for modified duties which were suitable. I am satisfied that the employer was able to offer these duties at no wage loss. I am not persuaded that the worker attempted to return to work in any capacity following August 29, 2002 and I am not satisfied that the worker made any satisfactory contact with the employer in an attempt to return to work. As indicated, there is a gap of medical attention following the August 2002 compensable accident and there is little medical information on file subsequent to August 2002 to establish an ongoing impairment related to the compensable work injury. In particular, I note that the medical evidence and medical file was reviewed on several occasions by the Board Medical Consultants. On my review of the evidence as a whole, I am satisfied that the worker is not entitled to further LOE benefits from August 29, 2002 related to the compensable accident of August 6, [23] In summary, I see no compelling reason to change or vary the ARO decision.

7 Page: 6 Decision No. 2470/09 DISPOSITION [24] The worker s appeal is denied. DATED: January 19, SIGNED: V. Marafioti.