WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2257/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2257/13 BEFORE: B. Alexander : Vice-Chair A.D.G. Purdy : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: December 2, 2013 at Hamilton Oral DATE OF DECISION: April 16, 2014 NEUTRAL CITATION: 2014 ONWSIAT 829 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated May 3, 2012 APPEARANCES: For the worker: For the employer: Interpreter: K. Hahn, Paralegal 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. 2257/13 REASONS (i) Background [1] The worker s representative confirmed that the only issue in this appeal was whether the worker has entitlement for a permanent impairment award for his low back arising out of a work injury on December 13, [2] The worker, who was born in 1962, began working as a warehouse/yard worker for the employer lumber company in [3] On December 13, 2007, the worker was stepping down from a tow motor in the employer s yard, when he slipped on ice and fell injuring his back, chest, neck and left shoulder. He laid off work and began receiving loss of earnings (LOE) benefits. [4] In a December 28, 2007 report, A. Yul, a physiotherapist, indicated that the worker had low back, pectoral and cervical strain, with restrictions in all of those areas. [5] On the same day, Dr. W. Cloete, the worker s family doctor, completed a Functional Abilities Form (FAF), which indicated that the worker had injured his left shoulder, chest, neck and back and was subject to restrictions on walking, standing, sitting and lifting on his return work, as well as graduated hours. [6] The worker returned to work on January 3, 2008 and after performing modified duties for two days, laid off work. [7] An ARO decision dated January 29, 2009 concluded that the worker was able to continue to perform modified duties and denied the worker loss of earnings (LOE) benefits from January 7, [8] In a report dated February 28, 2008, Dr. Cloete advised that the worker was making slow progress and continued to have pain in the lumbar spine, as well as reduced range of motion. [9] On March 5, 2008, Dr. Cloete referred the worker to a Regional Evaluation Centre (REC) for assessment. [10] The REC report, which was dated April 28, 2008, gave a history of the worker s injury, as follows: This is a 45 year old gentleman, who, while working at [the employer], injured his left shoulder, chest wall, neck and lumbar spine while climbing off his tow motor. It had snowed earlier and the area was wet and his feet slipped out from underneath him and he landed on his lower spine. He strained his left shoulder when attempting to protect himself from falling. [11] The report noted that the worker s lower back pain was described as being constant and added: The examination of the dorsolumbar spine revealed normal alignment and limited flexion with the ability to touch just below knee level. There was tenderness on tactile stimulation of the skin over the mid dorsal and lumbar area. He complained of pain on stimulated axial compression and rotation of the lumbar spine. [12] The report advised that the worker s left shoulder pain had significantly improved and his chest wall pain had resolved.

3 Page: 2 Decision No. 2257/13 [13] The report noted lumbar strain prognosis complete and recommended: In order to facilitate his successful return to work we would recommend an additional four weeks to complete an active physiotherapy program. This should be followed by continued home exercises. This should improve the range of motion and function. During this time, he should avoid heavy lifting, repetitive or prolonged neck and back activity and return to regular duties after a graduated program over four weeks. [14] An April 27, 2008 MRI report on the worker s lumbar spine noted: At L3-L4, there is very slight dehydration of the disc associated with small bilateral far posterior lateral disc bulges which are causing mild-to-moderate narrowing of the neuroforaminal bilaterally. No spinal stenosis. At L4-L5, there is mild posterior disc space narrowing, associated with a posterior disc bulge which extend [sic] slightly more to the right. At this level, there is also mild hypertrophy of the ligamentum flavum and facet joints. A combination of these factors as resulting in moderate to severe spinal stenosis. The neural foramina are moderately narrowed bilaterally. At L5-S1, there is dehydration of the disc associated with mild disc space narrowing and generalized bulging of the disc. The bulging disc almost abuts the anterior of the traversing nerve roots bilaterally. No significant spinal stenosis. The left neural foramina is mildly narrowed. End-plate Modic type changes are seen along the adjacent endplates. IMPRESSION. Multilevel degenerative disc disease from L3 to S1. The worst level of involvement is at L4-L5 where there is moderate-to-severe spinal stenosis in addition to moderate bilateral neural foraminal narrowing. [15] A May 16, 2008 physiotherapist s report noted that the worker s lumbar spine range of motion was limited to three quarters of flexion and extension. [16] The worker s physiotherapy was extended and a report dated July 23, 2008 indicated that treatment was designed to increase range of motion and strength and reduce the worker s reliance on medications. The worker was noted to be subject to limitations on kneeling, bending, lifting and sitting. [17] In a memorandum dated July 31, 2008, an adjudicator noted that after the four weeks of physiotherapy recommended by the REC report, the worker had been granted two extensions of treatment until July 28, 2008, which would be extended a further two weeks. [18] A report on another MRI report dated March 31, 2009, advised that there were no significant changes since the April 27, 2008 report. [19] In a letter dated November 14, 2008, Dr. Cloete stated that the worker was suffering from lumbar strain as a result of the work-related injury. [20] A further report on a May 31, 2010 MRI advised: Comparison with previous March 31, 2009 from the HHSC. Findings: At L3-4, there in an annular tear within the left foraminal zone of the-disc, with a small left focal protrusion, in the immediate proximity of the exiting left L3 nerve root. This is unchanged. The central canal in reasonably well maintained and the nerve roots of the cauda equine are well visualized. There is no central canal stenosis. There is some facet osteoarthritis.

4 Page: 3 Decision No. 2257/13 At L4/5, there is mild to moderate diffuse disc bulging. There is moderate ligamentum flavum hypertrophy and facet degeneration with enlargement. The thecal sac is compressed and the nerve roots of the cauda equine are clumped, with lack of visualization of CSF between them in keeping with moderate central canal stenonis. Bilateral lateral recess is identified. The neural foramina are reasonably well maintained. There has been no significant change from previous. At L5/S1, there is moderate diffuse disc bulging with small endplate osteophytes. The discophyte abuts both traversing SI nerve roots, without mass effect. Mild bilateral foraminal narrowing is noted. There is mild bilateral facet osteoarthritis. There is moderate epidural lipomatosis from the mid L5 level in the upper sacral canal. The thecal sac is markedly deformed and the CSF is effaced. The degree of epidural lipomatosis and the mass effect upon the thecal sac had progressed significantly since previous. Narrow signal and alignment is satisfactory. No fractures or bony lesions are seen. Mild degenerative endplate changes are noted at L5-S1. The conus mudallris is situated at the mid L1 level. There is a development canal narrowing. Summary: There is moderate central canal stenosis at L4-5. This is multifactorial. There is a developmentally small canal. There is a diffusely bulging disc with hypertrophy of the ligamentum flava and bilateral lateral recess stenosis. Below this level, there is significant epidural lipomatosis with marked compression of the thecal sac. This has been progressing significantly since the MRIs in 2008 and The annular tear and small left foraminal focal protrusion at L3/4 may account for the patient s left sided symptoms. [21] The ARO denied the worker entitlement for a permanent back impairment, stating: In the case before me the worker had a minor strain/sprain injury to his lumbar spine, cervical spine and left pectorals on December 13, 2007 and the worker was actively receiving physiotherapy treatment. On April 26, 2008 the worker was assessed at the REC and it was established that the worker's cervical strain, left shoulder strain and lumbar strain had resolved. As the worker had been off of work at the time, an additional four weeks of active physiotherapy treatment followed by a home exercise program was recommended. I accept the FD's testimony at the CPP Tribunal that the worker had ongoing problems in his back and his lifestyle had been significantly affected since December 2007; but the balance of probabilities would support that this is the result of the worker's spinal stenosis and other pre-existing condition. I also accept the WR's submission that the worker was asymptomatic prior to the work injury, but I do not find that OPM applies in this case as I am unable to conclude that the worker's minor injury accelerated the worker's significant pre-existing condition. [22] In a note dated February 4, 2013, Dr. Cloete advised that the worker s mobility was restricted by pain and dysfunction. (ii) The worker s testimony [23] In his testimony, the worker stated that his job with the employer was loading and unloading trucks of finished lumber using a tow motor. At the time he had no problems with his back.

5 Page: 4 Decision No. 2257/13 [24] On the day of the accident, he had driven the tow motor to the location in the yard where he was to pick up a load of lumber to be loaded on a truck. There had been freezing rain that day and ice had formed, which was usually treated with salt. He stepped straight down from the tow motor unto a patch of ice and fell, landing on his neck, shoulders, back and chest. He was able to get back on the machine and continue to work but by the end of the day he could not bend over and the next day he went to see his family doctor. [25] He was off work for two weeks and returned to work on graduated hours doing office work. He was able to work eight hours for two days and then his back got worse and his doctor ordered him to go off work again. [26] He returned to work on graduated hours on July 8, 2008, to the job of shredding paper. He tried the tow motor job but couldn t do it. [27] He continued at the shredding job until December 3, 2008 when he began making up loads of lumber by moving individual pieces from pallet to pallet, when his back pain increased and he went back to office duties, filing paper. [28] He was laid off, due to lack of work, with three others on January 5, 2009, and has not been recalled. Prior to that he was only able to do shredding. [29] He had previously hurt his back on October 29, 1997, while lifting a 100 pound bag of sand, but lost no time from work. [30] He has not worked since he was laid off and has been prescribed injections and morphine medication for his back pain. He gets some relief from physiotherapy. [31] His back pain limits what he can do at home. He can only do household chores for five to ten minutes. He has never been symptom free. (iii) Mr. Hahn s submissions [32] In his submissions, Mr. Hahn stated that each of the April, 28, 2008 REC report, the May 1, 2008 report prepared by Dr. Cloete and the May 16, 2008 physiotherapy report indicated that they anticipated that the worker would make a full recovery from the injuries he sustained on December 13, [33] This did not happen and on July 13, 2008, Dr. Cloete reported that it was unknown as to whether the worker s clinical condition would improve and on July 27, 2008, the physiotherapist reported that complete recovery was not expected. [34] In his November 14, 2008 report, Dr. Cloete stated that the worker s ongoing lower back problem was related to the December 13, 2007 work injury. [35] Mr. Hahn referred to a decision dated March 4, 2011, in which a review Panel granted the worker a Canada Pension Plan Disability award which found that he suffered from a severe and prolonged disability as defined by the Canada Pension Plan when he was first injured on December 13, [36] Mr. Hahn submitted that since December 13, 2007, the worker has had ongoing treatment including painkillers for his permanently impaired back condition and on that basis is entitled to a NEL assessment.

6 Page: 5 Decision No. 2257/13 (iv) Law and policy [37] Since the worker was injured in 2007, 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. [38] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, #32-Work Related Conditions, #61 NEL Entitlement and #300- Decision Making/Benefit of Doubt/ Merits and Justice, as well as Operational Policy Manual # Aggravation Basis, would apply to the subject matter of this appeal. [39] We have considered these policies as necessary in deciding the issues in this appeal. (v) Conclusions [40] The issue for the Panel is whether, as a result of the December 13, 2007 compensable accident, the worker sustained a permanent impairment to his lower back. [41] The worker s back was not symptomatic prior to the December 13, 2007 accident and he had been able to work at a heavy job for many years, with no apparent difficulty. [42] There is a record of the worker sustaining a previous lumbar injury ten years before, in 1997, but it was clearly minor, as he was able to return to his normal duties the next day and lost no time from work. [43] The Board decision to deny the worker a permanent impairment award was not supported by any medical opinion, while the contrary opinion that the worker s ongoing back problems related to his slip and fall, had the support of his family doctor, Dr. Cloete. [44] The ARO maintained that, as a result of the December 13, 2007 accident, the worker sustained a minor strain/injury to his lumbar spine, cervical spine and left pectoralis and as pointed out by Mr. Hahn, the early reporting suggested that he would make full recovery, in all these areas. [45] It would appear, however that, at the time of the accident, the worker s medical advisors did not understand the severity of the injury to his lower back, as it was not until the April 28, 2008 REC report that the mechanics of the slip and fall on ice, which involved the worker landing on his lower spine, were understood. The fact that the worker slipped and fell with the primary point of impact being his lower back was further confirmed in the March 4, 2011 Canada Pension Plan decision in which the worker was quoted as testifying that when he slipped he landed in his lower spine. [46] On this basis we find that the worker s accident on December 13, 2007, was significant, involving a slip and fall on ice, as a result of which, he landed for the most part on his lower back. [47] The Medical Discussion Paper Back Pain prepared by Dr. W. R. Harris and Dr. J.F.R. Fleming, which is enclosed in the case materials, sets out the circumstances in which a single injury may alter the progression of age-related degenerative change and be the cause of back pain. [48] The paper states: Any discussion of back pain is often dominated by the term Degenerative Disc Disease.

7 Page: 6 Decision No. 2257/13 This an inappropriate phrase because what is being described is usually not a disease but normal aging change. A better description would be age related change. There is no evidence that the progression of x-rays changes is altered by a single injury (unless it is very severe) or by repetitive movement. [49] The mechanics of the worker s fall suggests that the injury was sufficiently severe that it would have aggravated and made symptomatic the underlying degenerative conditions in the worker s lower back. [50] The ARO has stated that the worker s ongoing back problems were the result of the degenerative conditions shown on the worker s MRI s. [51] There is no evidence that establishes that these degenerative conditions would have caused the same level of impairment in the worker s back without the 2007 accident. What we do know is that the worker s back problems began at the time of the 2007 slip and fall and that his back never returned to its pre-accident condition. [52] On that basis, we find that the December 13, 2007 accident made a significant contribution to the worker s ongoing back problems. [53] There is adequate evidence that the worker s lower back is permanently impaired. [54] The REC report indicated that the worker s lower back continued to have constant symptoms and limited flexion with the ability to touch just below knee level. [55] The report recommended four weeks of additional physiotherapy that would improve the worker s range of motion and function and recommended that he avoid heavy lifting, and repetitive or prolonged back activity. [56] According to the physiotherapist s May 16, 2008 report, after several months of treatment, the worker s lumbar range of motion continued to be limited to three quarters of normal flexion and extension and, according to her July 23, 2008 report, after two additional months of physiotherapy, the worker was still subject to limitations on kneeling, bending, lifting and sitting. [57] In his February 4, 2013 note, Dr. Cloete advised that the mobility of the worker s back continued to be restricted by pain and dysfunction. [58] Based on the above, the Panel finds that the worker has a permanent impairment of the lower back, which is related to the December 13, 2007 work injury, and he is entitled to a NEL assessment.

8 Page: 7 Decision No. 2257/13 DISPOSITION [59] The appeal is allowed. [60] The worker has a permanent impairment of the lower back which is related to the December13, 2007 work injury and he is entitled to a NEL assessment for his lower back. DATED: April 16, 2014 SIGNED: B. Alexander, A.D.G. Purdy, M. Ferrari