WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2256/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2256/13 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: March 26, 2014 NEUTRAL CITATION: 2014 ONWSIAT 642 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated January 28, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented 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. 2256/13 REASONS (i) Background [1] The issue in this appeal is whether the worker has initial entitlement for a low back disablement, as causally related to his job duties. [2] The worker, who was born in 1954, began working for the employer as a furniture refinisher on May 17, [3] The worker claimed a gradual onset of back problems relating to his job duties. [4] The worker s job duties, as described in the ARO decision included sanding, bending, lifting and finishing wooden furniture, which included chairs, tables, dressers, beds, pianos and cupboard doors. [5] An x-ray report with respect to the lumbar spine dated November 2, 2005 noted degenerative disc disease at L3-L4 and L4-L5. A clinical note prepared by the Dr. J. Fisher, the worker s then family doctor, dated the same day, indicated that the worker had low back pain and a further note dated December 12, 2005 noted chronic low back pain and diagnosed degenerative disc disease. [6] A December 18, 2008 x-ray report of the lumbar spine noted disc degenerations at the L3-L4 and L4-L5 levels, a minor degree of retrospondylolisthesis of L4 on L5 and mild to moderate osteoarthritis involving the posterior facet joints bilaterally in the lower lumbar spine. [7] A March 11, 2009 CT scan report noted spondylosis and degenerative disc disease at L4-L5 and L5-S1, a broad based disc bulge at L4-L5 and a disc bulge with posterolateral disc herniation with right-sided foramina narrowing at L5-S1. [8] In a Health Professional s Report of Injury dated April 2, 2009, the worker s family doctor, Dr. F. Viviers, noted the area of injury to be the low back and advised that the worker would not be able to return to work. [9] In a further report dated April 17, 2009, Dr. Viviers advised that the first time he saw the worker was on December 18, 2008 for depression and he subsequently saw the worker on January 19, 2009, March 6, 2009, April 2, 2009 and April 6, 2009 for low back pain. [10] Dr. Viviers noted: His work entails moving furniture and heavy lifting, there was no specific injury date, more an accumulation of lifting and moving of furniture which started sometime in October 2008, took a few days off, returned to work in November 2008 and pain has been getting progressively worse since then subjective and objective findings: pain radiating down right leg. [11] Dr. Viviers further advised that the worker was not capable of heavy lifting and moving furniture. [12] In an April 14, 2009 Worker s Report of Injury the worker claimed that his back problems, which began in 2005, were the result of moving 5 to 100 pounds a day over time.

3 Page: 2 Decision No. 2256/13 [13] In a memorandum dated the same day, an adjudicator noted that during a telephone conversation the worker had advised that he felt his claim goes back 5 or 10 years ago due to a lift of a dresser to a customer and that he has sought medical attention here and there, no specifics given, but didn t have a family physician for the last 3 years due to the death of his FMD. [14] The memorandum further noted that the employer had stated that the worker had been offered modified work with no lifting and the worker had advised that he was unable to do anything. His doctor had given him a note to be off work for three months and he was on six weeks of EI benefits. [15] In an Employer s Report of Injury dated April 21, 2009, the employer advised that the worker s back problems were the result of no specific accident deterioration over time. [16] In an accompanying note the employer stated: In the last 8 to 10 years [the worker] has had lower back problems, which has [sic] been progressively getting worse. [The worker] has been taking more time off in the last two years, not calling in sick or just leaving mid-day. As his employer I worked with him to make his job easier by purchasing rubber fatigue mats and a hydraulic lift ranging in height from 10 to 48 from the floor to reduce strain. I always assisted [sic] to lift or move larger objects or any object he felt uncomfortable lifting. I have given him references to my chiropractor, massage therapist and my back specialist, Dr. Devillier in Hamilton and he never looked into my recommendations. The last couple of years I have taken him off the delivery truck and as of June 2008 I hired another employee to help lifting on deliveries and other shop duties. [17] The ARO denied the worker entitlement, stating: The medical evidence on file supported that the worker had a degenerative condition in his back. The diagnosis provided by the treating practitioner on the Form 8 was spondylosis, which would not be compatible with the worker s job duties. In reviewing the information on file, noting the delay in reporting a work impairment to the employer, the delay in seeking medical attention, along [sic] the diagnosis that was not compatible with the worker s job duties, and in the absence of a specific incident or more physical [sic] demanding changes to the worker s job duties, I find the worker s back impairment is not work related. (ii) The worker s testimony [18] In his testimony, the worker stated that he worked for three months wiring portable classrooms and then for nine years he operated a front end loader, without any injuries. [19] He began working for the employer in 1990 and in 2003 and 2004, he began having back problems. His back became worse over time and he regularly had difficulty getting out of bed. He would have to stay home and use a heating pad to reduce the pain. [20] He had a specific incident involving his back in 2005, when he and another worker were picking up a heavy piece of furniture. At the time his family doctor was Dr. Dunlop and the two times he saw him was for his back. [21] His back problems were primarily the result of lifting and bending over at work. He could be bent over for three hours at a time.

4 Page: 3 Decision No. 2256/13 [22] He was eventually taken off deliveries and supplied with fatigue mats and a hydraulic lift to reduce the strain on his back. The employer also hired an additional worker to help with the heavy work. [23] He stopped working in 2009 and is receiving Canada Pension Plan Disability and Ontario Disability Support payments. (iii) Law and policy [24] Since the worker was injured in 2009, 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. [25] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, #1- Initial Entitlement and #300 Decision Making/Benefit of Doubt/Merits and Justice, would apply to the subject matter of this appeal. [26] We have considered these policies as necessary in deciding the issues in this appeal. (iv) Conclusions [27] The Panel finds that the worker does not have entitlement for his lower back. [28] We accept that he had ongoing problems with his lower back but are satisfied that they are due to his pre-existing degenerative disc disease. [29] Dr. Fisher was satisfied that his chronic back pain was consistent with the degenerative conditions that were evident in the November 2, 2005 x-ray. [30] The worker has submitted that his back problems are the result of a disablement over time and Dr. Viviers supports that position based on his understanding that the worker s back symptoms began in According to the worker, he had not seen a doctor for three years before seeing Dr. Viviers, so Dr. Viviers would not have known about the worker s previous symptoms or Dr. Fisher s 2005 diagnosis. [31] This worker s back history is consistent with the Back Pain cited in the Tribunal medical discussion paper on Osteoarthritis written by the surgeons, Dr. W. R. Harris and Dr. J. F. R. Fleming, which was included in the case materials. [32] The paper states: Any discussion of back pain is often dominated by the term Degenerative Disc Disease. 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. [33] Dr. Fisher noted the worker s degenerative disc disease in 2004, when the worker was 50 and his symptoms and the radiographic evidence of the degenerative conditions have grown over the past decade, which is consistent with the discussion paper.

5 Page: 4 Decision No. 2256/13 [34] The worker referred to a 2005 incident which increased his back pain but there is no reference to that event in Dr. Fisher s notes and according to the discussion paper, the progression of x-rays which we have seen in this case, is not altered by single injury (unless it is severe) or by repetitive strain. [35] There is no evidence to support the proposition that the worker s heavy duties changed the natural course of his degenerative disc disease. The discussion paper states only that a severe injury can cause degenerative changes and suggests no other means by which such changes can be promoted except by age-related deterioration.

6 Page: 5 Decision No. 2256/13 DISPOSITION [36] The appeal is denied. DATED: March 26, 2014 SIGNED: B. Alexander, A.D.G. Purdy, M. Ferrari