WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2505/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2505/08 BEFORE: A. Morris: Vice-Chair HEARING: November 24, 2008 at Toronto Oral DATE OF DECISION: March 25, 2009 NEUTRAL CITATION: 2009 ONWSIAT 782 DECISION(S) UNDER APPEAL: WSIB ARO decision dated April 27, 2006 APPEARANCES: For the worker: For the employer: Lois Cromarty, Lawyer Not participating 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. 2505/08 REASONS (i) Introduction [1] These are the reasons for the decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by the worker from the decision of Appeals Resolution Officer (ARO), A. Clark, dated April 27, That decision concluded that the worker is employable and therefore not entitled to full Loss of Earnings (LOE) benefits from May, 2004, and ongoing. The ARO concluded that the worker was capable of earning $8.20 per hour over a 40 hour week in the Suitable Employment or Business (SEB) of customer service representative. He was entitled to a LOE benefit based on that earnings capacity. [2] These are also the reasons for the decision of the Tribunal with respect to an appeal by the worker from the decision of ARO C. Rubino, dated June 28, That decision concluded that the quantum of the Non-Economic Loss (NEL) benefit in relation to the worker s back was correct. (ii) Background [3] The worker who is now 59 years old was working as a production worker for a manufacturing company on June 11, 2002, when he injured his back while lifting a heavy tote. He reported the injury and stopped work a few days later. (a) Medical background [4] The worker s family doctor, Dr. Shore, diagnosed a back strain in the Physician s First Report dated June 11, A CT scan dated September 26, 2002, indicated that a tiny sequestered disc fragment adjacent to the right S1 nerve root was not excluded, and that if clinical concern warranted it, correlation with a MR study was recommended. [5] A MRI of the worker s lumbar spine was carried out on November 29, The clinical history referred to the earlier CT scan which had shown increased soft tissue density adjacent to the right S1 nerve root, which was felt to be either a conjoined nerve root or a tiny sequestered disc fragment. The MRI confirmed that it was a conjoined nerve root rather than a tiny sequestered disc fragment: Note is made of a conjoined nerve root at this level on the right which would correspond with the CT findings described. The MRI also noted that there was a small focal left paracentral disc herniation. [6] The worker saw Dr. McInnes, a specialist in physical medicine and rehabilitation, on March 5, Dr. McInnes reported with respect to that visit that the worker had developed initially left lower limb pain and numbness which then switched to his right side. At that time his right limb was much more symptomatic. On the right side the worker complained of persistent sensory symptoms along the lateral aspect of his thigh and down the lateral and posterior aspect of his calf to the lateral aspect of his foot, but not to his great toe. The left lower limb had episodic sensory symptoms, particularly of the sole and lateral aspect of his left foot. [7] Dr. McInnes carried out electrodiagnostic testing. He indicated that nerve conduction studies of the common peroneal, posterior tibial, sural and superficial peroneal nerve were normal bilaterally. H-reflex was prolonged on the right but normal on the left. Needle EMG

3 Page: 2 Decision No. 2505/08 studies did not show any specific abnormalities on the left, but did show some abnormalities in an S1 nerve root distribution on the right. [8] Dr. McInnes opined that the worker s history, physical findings and electrodiagnostic studies were consistent with a right S1 nerve root impingement causing his right lower limb symptoms. He had noted earlier in the report that he did not have the results of the CT scan and the MRI. Based on the description of the worker s lower limb symptoms, Dr. McInnes thought that the worker might also have some degree of proximal S1 nerve root irritation as well, but he did not find any objective electrodiagnostic abnormalities. [9] Dr. Shore reported on June 19, 2003, that the worker s diagnosis of right-sided sciatica continued to be the same. Dr. Shore indicated that the CT scan showed a disc fragment. As indicated above, however, the MRI showed a conjoined nerve root rather than a disc fragment. There was a disc herniation, but on the left, rather than the right. [10] The worker saw a neurosurgeon, Dr. Perrin, on July 10, Dr. Perrin reported with respect to that visit, that three weeks after the worker attended physiotherapy, he developed numbness of the left leg which later switched to the right side. The worker continued to experience back pain and aching of the right leg more so than the left. He described generalized weakness in the lower limbs. [11] On physical examination, Dr. Perrin noted that erect spinal posture was approximately normal. The worker could flex forward such that the outstretched fingers reached just to his knees only. Straight leg raising was 80 degrees bilaterally. Muscle power appeared well preserved in the lower limbs. The worker could walk on heels and toes albeit with a bizarre gait. Myotatic reflexes were symmetrically brisk at the knees and hamstrings, markedly depressed at the right Achilles tendon but briskly present on the left side. [12] Dr. Perrin indicated that the MRI of the lumbar spine had been interpreted to show evidence for a left paracentral disc herniation at L5-S1. In Dr. Perrin s opinion, the worker presented with a long history of back and leg pains. Clinically, his defect was on the right side at S1 although the MRI showed a disc herniation to the left side at that level. Dr. Perrin made arrangements for electrophysiologic studies as well as lumbar myelo-ct to clarify the matter. [13] A lumbar myelogram on December 10, 2003, indicated that the lower lumbar nerve root sleeves opacified normally with no evidence of nerve root sleeve compression or deviation. The summary indicated posterior bulging of disc annulus opposite L5-S1. The worker was sent to CT for further evaluation. [14] The CT of the lumbosacral spine post-myelogram on December 10, 2003, indicated with respect to the L5-S1 level as follows: There is a small focal posterior disc protrusion associated with tiny osteophytic formations causing mild compression of the thecal sac. It is not compressing the S1 root. The facet joints are hypertrophic. There is asymmetric takeoff of the S2 nerve root with proximal takeoff of the right one.

4 Page: 3 Decision No. 2505/08 [15] The CT Opinion indicated mild multilevel degenerative changes. There was a possible small left far lateral L3-L4 disc herniation occupying the inferior aspect of the neural foramen. There was no central canal stenosis. There was a tiny posterior L5-S1. [16] Following these diagnostic procedures, Dr. Perrin reported on January 6, 2004, that electrophysiologic studies (January 6, Dr. Turley) were interpreted to show evidence for right S1 radiculopathy. Dr. Perrin noted lower limbs hyperreflexia on examination. He arranged a MRI of the cervical and thoracic spines to exclude a lesion that might be causing the lower limbs hyperreflexia. The subsequent MRI showed no cause for the leg symptoms that the worker was experiencing. [17] On January 6, 2004, Dr. Perrin also indicated that he would review the myelo-ct with the radiologist to be certain that the defect opposite the L5-S1 disc space on the right side was indeed due to a conjoined root, or whether it might be related to some other extradural abnormality that was not obvious. Dr. Perrin did not provide any further follow up or reports. [18] When Dr. Perrin did not provide a further report or opinion, Dr. Shore referred the worker to another neurosurgeon, Dr. Schutz. Dr. Schutz reported with respect to the worker on October 21, 2004, that there was a lot of functional weakness and pain behaviour. There was, however, no focal neurological deficit. Power, tone, bulk, co-ordination, reflex and gait was normal, although there was voluntary restricted movement in flexion, extension and rotation. There was no paravertebral muscle spasm, no loss of usual lordosis and there was no evidence of scoliosis. [19] Dr. Schutz indicated that he had reviewed the MRI scan of the cervical spine and thoracic spine and that these were normal except for minor degenerative changes. The MRI scan of the lumbar spine was not available but Dr. Schutz had reviewed the report which spoke of degenerative disease at L4-5 and L5-S1. The myelogram and CT scan also showed multiple degenerative changes and a tiny disc protrusion at L3-4 and L5-S1. Dr. Schutz gave his clinical impression that there was simply no surgical option at all in the case of the worker. [20] In a report of March 1, 2005, Dr. Shore indicated that it had been determined by the worker s neurosurgeon, Dr. Perrin, and also by Dr. Schutz that the worker was not surgical. (b) NEL assessment [21] The Board determined that the worker had suffered a permanent impairment in relation to his back and referred him for a NEL assessment. The medical assessment was carried out by Dr. B. W. Johnston on October 11, The NEL clinical specialist carried out the NEL rating on December 8, 2005, and arrived at a rating of 25%. [22] The worker s representative objected to the quantum of the NEL on the basis that the NEL adjudicator had not rated lower extremity neurological findings. The worker s representative also objected to the diagnosis used in the rating. The NEL clinical specialist maintained the decision on reconsideration. [23] The worker appealed to ARO, C. Rubino, who upheld the NEL rating, in the decision of June 28, 2007.

5 Page: 4 Decision No. 2505/08 (c) Prior workplace injury and work restrictions [24] The worker has a prior workplace injury. The Board allowed his claim for a right shoulder condition which resulted from repetitive overhead work in August, 1996, and awarded him a 23% NEL benefit for this condition on November 17, The worker s permanent restrictions in relation to his right shoulder condition are: no overhead work, no lifting greater than 20 lbs, no repetitive use, and no repetitive pushing and pulling. [25] The worker s restrictions with respect to his back are: no repetitive trunk movement; no prolonged weight-bearing, sitting, standing, walking; no low level work; no heavy pushing or pulling. [26] The worker s combined NEL benefit for the shoulder (23%) and back (25%) is 42% (using the combined values table of the AMA Guides). (d) LMR Services and LOE benefits [27] The employer did not have suitable modified work for the worker, and the CA referred the worker for LMR services in April, The initial SEB chosen was NOC# 2264 Construction Inspectors. This SEB would have required academic upgrading and a three year college course followed by job search training and a special work placement. [28] The worker lives in a small town and would have had to travel 80 kms and back to attend college. The worker was 54 years old at the time of the LMR assessment. He has never possessed a driver s licence and does not own a car. He did not feel that he had adequate sitting, standing or walking tolerance to manage a full day of school. The LMR service provider, CA, and the worker agreed that a second SEB, that of NOC# 1453 Customer Service, Information and Related Clerks, would be more suitable. That SEB would have required a 70 week plan consisting of computer training, job search training, a special work placement, and case management and counselling services. [29] In August, 2003, the worker attended on the first day of the Customer Service and Computer Training program. He subsequently advised the service provider that he would not, on the advice of his doctor, be able to continue with training because of pain in his low back and numbness in his leg. Surgery for the worker s back condition was a consideration at the time and the LMR plan was put on hold. [30] In May, 2004, the CA requested a medical opinion with respect to ongoing LOE benefits, the existence of a permanent impairment in relation to the worker s back, and whether the worker had reached maximum medical recovery (MMR). Board Medical Consultant, Dr. Germansky, indicated in Board Memo #41 dated May 4, 2004, that a permanent impairment was likely but that MMR had not yet been achieved pending further review at that time by Dr. Perrin. Dr. Germansky had spoken to Dr. Shore who felt that the worker was fit to attempt sedentary work. [31] Dr. Shore advised in a subsequent letter dated September 16, 2004, that the worker had visited his office on May 7, 2004 with increased pain. Dr. Shore indicated that the worker s condition had deteriorated over the year before.

6 Page: 5 Decision No. 2505/08 [32] The CA contacted the worker with a view to reactivating the LMR plan. The worker, however, felt unable to participate in the plan. The CA, in accordance with legislation and Board policy, therefore deemed the worker s earning capacity at the time of his refusal to participate in the resumption of the LMR plan, to be the earnings capacity in the SEB of Customer Service Representative. The CA reduced the worker s full LOE benefit to a partial LOE benefit based on 85% of the difference between the worker s net average pre-injury earnings of $14.67 per hour for a 40 hour week, and his deemed net average earnings in the SEB of $13.55 per hour. She so advised the worker in a letter dated May 17, [33] The worker objected to the CA s decision of May 17, 2004, but ARO, A. Clark, upheld the CA s decision in the ARO decision of April 27, [34] The worker now appeals to the Tribunal both with respect to the decision of ARO, C. Rubino, in relation to the NEL quantum, and with respect to the decision of ARO, A. Clark, in relation to the worker s employability and ongoing LOE benefit. (iii) Issues [35] The issues as set out in the Hearing Ready letter of May 1, 2008, are: An objection to the ARO s finding that the worker has employability at $8.20 an hour over a 40 hour week in the SEB of customer service representative and is not entitled to full LOE benefits from May 10, An objection to the quantum of NEL award for low back (currently at 19%). [36] Since the worker was injured on June 11, 2002, the Workplace Safety and Insurance Act, 1997 (the Act) applies. (iv) Decision [37] I have concluded that the worker is unemployable and is entitled to full LOE benefits from May 10, [38] I have concluded that the NEL quantum in relation to the back impairment is to be recalculated by including the NEL medical assessor s lower extremity neurologic findings with respect to the affected root S-1 (sensory deficit =3; motor deficit =3) in the NEL rating. The other lower extremity neurologic findings recorded by the NEL medical assessor are to remain excluded. (v) Analysis and Conclusions (a) NEL Quantum [39] Board OPM Document No (12 October, 2004) provides with respect to assessing permanent impairment that the Board uses a prescribed rating schedule, the report from a NEL medical assessment and all relevant health information in the claim file. [40] In reviewing the NEL rating with respect to the back of December 8, 2005, I am satisfied with the diagnosis of Lumbar spine Strain.

7 Page: 6 Decision No. 2505/08 [41] I have set out the relevant medical information in some detail above. It is apparent that although right-sided sciatica or right S1 radiculopathy was a suspected diagnosis at one point, this was not confirmed radiologically. As indicated in Dr. Perrin s report of July 10, 2003, clinically, the worker s defect was on the right side at S1 although the MRI showed a disc herniation to the left side at that level. [42] Dr. Schutz, in his report of October 21, 2004, found no focal neurological deficit, and indicated that there was no surgical option at all in relation to the worker. Dr. Shore indicated in his letter of March 1, 2005, that Dr. Perrin and Dr. Schutz had both found that the worker was not a surgical candidate. [43] In light of the above, I therefore see no reason to interfere with the diagnosis set out in the NEL rating form. [44] The NEL medical assessor recorded certain lower extremity neurologic findings in the assessment form. The NEL clinical specialist did not rate these findings. She did not rate the L5 motor nerve root deficit, the common peroneal motor nerve deficit and tibial nerve sural sensory deficit, on the basis that there was no documentation in the file in support of these findings. I agree with the NEL specialist in this regard and I note Dr. Mcinnes report of March 5, 2003 in which he indicated that nerve conduction studies of the common peroneal, posterior tibial, sural and superficial peroneal nerve were normal bilaterally. [45] The NEL medical assessor also recorded findings with respect to the S1 nerve root. The findings were a grade of 3 for sensory deficit and a grade of 3 for motor deficit. The NEL clinical specialist did not rate these findings on the basis of Dr. Schutz report of October 21, 2004, discussed above. Not only did the medical assessor record these findings, however, electrodiagnostic testing, both by Dr. McInnes, and by Dr. Turley (as noted in the report of Dr. Perrin dated January 6, 2004) showed some abnormalities in an S1 nerve root distribution on the right. I am therefore of the view that the findings with respect to the S1 nerve root distribution on the right, as recorded by the NEL medical assessor, should be included in the NEL rating. (b) Employability and LOE benefits from May 10, 2004 [46] At the time of the LMR assessment the worker was 54 years old. Although he has a grade 13 education which had been followed by a year and half of college, he has worked all of his working life, since 1970, as a machine operator. [47] He lives in a small town which, as noted in the LMR Assessment and Plan Proposal of June 24, 2003, does not present a large pool of employment opportunities. He has never had a driver s licence and he does not own a car. [48] In addition to the above, the worker has significant work-related permanent impairments in relation to both his shoulder and his back. His combined NEL benefit for both impairments is at least 42%. While there is not necessarily a correlation between the level of a NEL benefit and a worker s employability, a 42% NEL is nevertheless indicative of a significant disability. The worker has significant work restrictions including with respect to sitting, standing and walking, and with respect to both overhead work, and low level work.

8 Page: 7 Decision No. 2505/08 [49] As regards training, the worker tried one day of class in August, 2003, and stopped because of pain. His inability to sit for prolonged periods of time would make classroom learning difficult. Even though the worker s doctors have found that he is not a surgical candidate, I see no reason to doubt that he is in pain, given the level of his impairment. [50] For all of the above reasons, I am of the view that the LMR plan was unrealistic and that the SEB was likely not suitable. The worker appears to me to be unemployable. I am bolstered in that belief by the fact that the worker is in receipt of a Canada Pension Plan Disability Pension, effective when he stopped work in June, 2002.

9 Page: 8 Decision No. 2505/08 DISPOSITION [51] The appeal is allowed. [52] The worker is unemployable and is entitled to full LOE benefits from May 10, [53] The NEL quantum in relation to the back impairment is to be recalculated by including the NEL medical assessor s lower extremity neurologic findings with respect to the affected root S-1 (sensory deficit =3; motor deficit =3) in the NEL rating. The other lower extremity neurologic findings made by the NEL medical assessor are to remain excluded. DATED: March 25, 2009 SIGNED: A. Morris