WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1726/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1726/07 BEFORE: M.F. Keil: Vice-Chair HEARING: July 23, 2007 at Toronto Written DATE OF DECISION: July 27, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1961 DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 10, 2006 APPEARANCES: For the worker: For the employer: Interpreter: R. McGill, Lawyer Not participating 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. 1726/07 REASONS (i) Introduction [1] This appeal was referred as part of the Early Resolution Process described in Decision No. 276/97 (April 1997). The Alternative Dispute Resolution Officer s recommendation appears as an Appendix to this decision. (ii) Conclusions [2] My own review of the case materials satisfies me that the recommendation should be accepted. To give effect to the recommendation I decide as follows. [3] I am satisfied from a review of the documentation that the worker did have a congenital back condition but, in the decade preceding the compensable accident, there was very little medical treatment and no lost time. In fact, between 1999 and 2003 there were no reports of low back pain. [4] Following the compensable injury, there is evidence of ongoing problems and an inability to perform even modified duties. The medical reports on file are supportive of a causal relationship between the work injury and the worker's ongoing low back problems. I am satisfied that the worker never fully recovered, continues to have back problems and is entitled to a Non-Economic Loss (NEL) assessment to ascertain the degree of impairment.

3 Page: 2 Decision No. 1726/07 DISPOSITION [5] The appeal is allowed. The worker has a permanent impairment of the low back flowing from his compensable accident in January of 2003 and is entitled to a NEL assessment. DATED: July 27, SIGNED: M.F. Keil.

4 Page: 3 Decision No. 1726/07 APPENDIX RECOMMENDATION OF THE ALTERNATIVE DISPUTE RESOLUTION OFFICER THE APPEAL PROCEEDINGS [6] This appeal by the worker is from the Appeals Resolution Officer s decision dated May 10, 2006, which denied the worker entitlement to a permanent impairment for the low back. arising from the workplace accident of January [7] The Alternative Dispute Resolution (ADR) Officer notes that, in accordance with s.126 of the Workplace Safety and Insurance Act, the Workplace Safety and Insurance Board has stated that a number of policies apply to the subject matter of this appeal. [8] The ADR Officer met with the parties on May 9, 2007, in London. Present were the worker and his representative, R. McGill, a lawyer. The accident employer was notified of the appeal but chose not to participate [9] The parties have agreed that the appeal be resolved on the following basis: 1. The worker s appeal is allowed. 2. The worker has a permanent impairment of the low back and is entitled to a noneconomic loss (NEL) assessment. BACKGROUND TO THE RECOMMENDATION [10] The following is a summary of the relevant facts upon which this recommendation is based: Date Source Description 1956/03/27 - worker s date of birth 1978/00/00 - train accident required exploration - no evidence to 1992 of continuing problems related to the train accident 1992/10/26 - MVA, sustained multiple injuries facial lacerations and right knee and rib cage injuries - no evidence of low back injury 1995/05/02 Dr. Ballard clinical note - worker slipped and fell, minor accident - tender L LS and left hip joint, left hip pain 1995/09/25 Dr. Ballard clinical note - lower back pain, no specific cause 1995/12/05 Dr. Ballard clinical note - back strain, minor strain lifting garbage 1998/07/30 - date of hire with accident employer 1999/01/07 Dr. Ballard clinical note - back strain from repetitive lifting 1999/07/26 - date of accident - worker twisted and injured his low back getting off lift truck 1999/07/26 Dr. Shah Physician s First Report - diagnosed with lumbar strain - light duty for 3 days

5 Page: 4 Decision No. 1726/ /07/26 Emergency Report - sudden lower back pain and bilateral. pain - low back pain while getting out of forklift 1999/08/10 Report of X-ray - unremarkable 2003/01/08 - trained on tie strap job 2003/01/13 - date of accident - pulling tie straps around the frame, had to bend over for a long period of time, felt onset of low back pain - entitlement accepted as a result of type of work - onset of back pain occurred as a result of working in a stooped position over a one week period 2003/01/14 - worker stopped working 2003/01/14 Dr. Ballard First Report - seen for low back - tenderness across the thoracic and lumbar spine muscles - complete recovery expected in 4-6 weeks - considered fit for modified employment - impairment involved low back, neck and shoulders - bending injury - no history of similar medical condition 2003/01/15 - loss of earnings (LOE) paid to January 29, /01/16 Employer s Report of Injury - lower back seizes up after he has been sitting for a while, pain entire back from lumbar, to thoracic, neck, shoulders, right leg - was constantly bent over the rails, on this job since January 8, /01/29 - returned to work on modified duties 2003/02/11 Claims Adjudicator - initial entitlement granted for low back strain, LOE granted - entitlement to thoracic strain, neck and bilateral shoulders denied 2003/05/01 Report of MRI - gentle lower thoracic scoliosis convex to right - mild mid lumbar scoliosis convex left - possible defect at the pars interarticulars of the lamina of L5 on the right - some loss of height of L1 and L2, some compression of L1 and L2 - possible spondylolitic defect at L5 on the right - pelvis x-ray revealed old fracture of the right superior public and inferior rami with no further significant abnormality 2003/05/01 Dr. Bhardwaj Physical Medicine & Rehabilitation Multi-Disciplinary Assessment - no complaints of back pain or flank pain and no history of work-related injuries pre-accident - may have had occasional odd back pain after a busy day, but did not require medical attention - diagnosis: left flank pain not yet diagnosed, possible repetitive strain - rule out bone or intra-abdominal lesion 2003/05/01 Report of x-ray - mild mid lumbar scoliosis convex left - possible defect at the pars interarticularis of the lamina of L5 on right - some loss of height of L1 and L2 - old fractures of pelvis 2003/05/08 Dr. Ballard Re-Opened Claim - on modified duties at work, pain became severe, worker unable to continue - unable to do usual work, disabled 7-14 days 2003/05/14 - returned to work on modified duties in paint area (top coat) 2003/05/21 Report of bone scan - no significant pathology identified 2003/07/11 Dr. Bhardwaj Physical - x-rays show congenital abnormality of the lumbar spine and

6 Page: 5 Decision No. 1726/07 Medicine & Rehabilitation old fracture right superior pubis and inferior pubic rami, secondary to serious MVA of investigations do not suggest any significant pathology to account for any permanent restrictions - recommend slow and gradual return to regular duties 2003/07/29 Claims Adjudicator - 75% SIEF applied 2003/09/29 Report of CT scan - minor compression of L1 and possibly L2 in the anterior part of the vertebral bodies - intervertebral disc at L5-S1 has slight posterior diffuse bulging, no disc herniation 2003/11/18 Claims Adjudicator /11/10 - stopped working - worker received short term disability benefits to April 22, 2003/12/10 Dr. Clifford Physical Medicine and Rehabilitation Specialist - Independent Medical Examination for Great West Life Assurance Company complains of left flank pain, continuous, localized, aggravated by bending over or twisting - later on, doubled over with symptoms, unable to straighten up - past medical history unremarkable - no obvious deformity noted in lumbosacral spine, active range of movement (ROM) was full and fluid - palpation overlying left SI joint most provocative - low back pain would appear to be associated with a mechanical dysfunction within the left SI joint - recommend selective injection of left SI joint if complaints represent SI joint dysfunction - may be necessary to conduct Functional Evaluation Assessment - at the very least, capable of modified duties 2003/12/17 FAE Assessment - no difficulty in performing transitional movements from lying to sitting, sitting to standing and side lying to supine - sitting tolerance 35 minutes, able to drive to clinic each day 30 minutes each way - sitting posture, leaning to right, weight off left buttock - flexion 87%, extension 44%, rotation to right 75% - will have functional limitations 2004/08/28 Dr. Pooley - has responded well, able to return to work with permanent restrictions - due to chronic instability and volatility associated with his condition, difficult to determine exactly when a full stabilization will be achieved 2004/09/27 Claims Adjudicator - back brace and further chiropractic treatment denied 2004/12/08 Dr. Thorpe Board Medical Advisor - Dr. Clifford found no obvious deformity - REC found no significant pathology - long history of back pain, probably result of previous trauma and subsequent lumbar strain injuries report with diagnosis of lumbar strain injury report cites chronic low back pain - appears that worker has a pre-existing lumbosacral pathology which may have been aggravated January however, PI as a result of aggravation does not appear to have occurred 2004/12/10 Claims Adjudicator - unable to alter decision 2005/06/17 Emergency Report - history of daily low back pain since injury 7 years ago - today has increased same back pain

7 Page: 6 Decision No. 1726/ /00/00 Dr. Pooley - chiropractor - worker seen since February 5, treated since, achieving success to the point of allowing him to return to work with restrictions - continues to experience ongoing discomfort - MyoVision MultiScan suggests symptoms consistent with other clinical presentations associated with chronic lower back dysfunction - current clinical presentation is an extension of original injury 2006/05/10 Appeals Resolution Officer - accept that worker did not sustain low back injury related to 1978 train accident or the 1992 MVA - however, satisfied that worker has been left with a residual impairment relating to the left hip from 1992 MVA - between 1993 to 2003 several episodes of low back pain, x- rays revealed a congenital abnormality, therefore reasonable to conclude that worker had a vulnerable low back condition and was susceptible to low back injuries prior to January 14, 2003 accident - Dr. Pooley did not start treating worker until after January 2003 injury, opinion based on worker s account of events - satisfied that worker suffered a lumbar strain and recovered with no evidence of PI - no doubt worker has a residual PI, unable to relate it to the workplace injury 2006/06/29 WR - requesting reconsideration - no medical evidence of any treatment for hip problems between 1992 and not until 2003 accident, that worker experienced relentless low back pain 2006/09/08 Appeals Resolution Officer - reconsideration denied RELEVANT LAW AND POLICY [11] The workplace accident, which is the subject of this appeal, occurred on January 13, Accordingly, the worker s entitlement to benefits is governed by the Workplace Safety and Insurance Act, Section 46. (1) 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. Operational Policy document Number Assessing Permanent Impairment Policy Workers who have a work-related permanent impairment are eligible for non-economic loss (NEL) benefits. To rate permanent impairments, the WSIB uses a prescribed rating schedule, the report from a NEL medical assessment (if one is conducted), and all relevant health information in the claim file. Permanent Impairment Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. A worker s degree of permanent impairment is expressed as a percentage of total permanent impairment of the whole person.

8 Page: 7 Decision No. 1726/07 MEDIATION SUMMARY [12] The parties note that between 1993 and 1999, the worker reported only five isolated incidents of lower back pain to his doctor, none of which required any lost time from work.or any follow-up medical treatment. Between 1999 and 2003, there are no reports of lower back pain. [13] The parties do acknowledge that the worker has a congenital low back condition, as revealed by the MRI performed on May 1, As noted by Dr. Bhardwaj, in his report of May 1, 2003, it would be expected that the worker may have had occasional odd back pain after a busy day because of this congenital problem. [14] Following his injury on January 13, 2003, the worker, a stoic individual, did attempt a return to modified duties on January 29, Unfortunately, his low back pain became too severe causing Dr. Ballard to request that his claim be re-opened on May 8, The worker again returned to modified duties May 14, However, by November 2003 the accident employer took him off work because of his ongoing low back difficulties. It is the parties position, therefore, that the extent of the worker s difficulties, following the January 2003 injury, is significantly different to that experienced between 1993 and [15] The parties agree that the worker never fully recovered from the injury he sustained on January 13, In support of this finding, they note the FAE Assessment report of December 17, 2003, which clearly demonstrates that the worker has ongoing functional limitations with decreased range of movement of the lumbar spine. [16] The parties agree, therefore, that the worker has a permanent impairment of the low back and is entitled to a NEL assessment. DATED: June 15, 2007 RECOMMENDED BY: B. Taylor, ADR Officer