WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1159/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1159/11 BEFORE: K. Cooper: Vice-Chair HEARING: June 1, 2011 at Toronto Written DATE OF DECISION: September 29, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2266 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated September 24, 2008 APPEARANCES: For the worker: For the employer: Interpreter: J. Romano, Paralegal WSIB account closed 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. 1159/11 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the Appeals Resolution Officer (ARO), which concluded that the medical evidence on file confirmed the worker s permanent disability (PD) award for her back at 40%. As such, no increase in the worker s PD was allowed. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issue [2] The issue under appeal is whether or not the worker is entitled to an increase in her PD award for her back. (iii) Background [3] The following are the basic facts. [4] The now 73-year-old worker started as an assembler with the accident employer in She was injured on October 15, 1973 when she sustained injuries to her low back whilst lifting boxes. [5] The initial diagnosis was of low back strain. The worker continued with her regular duties until January 1974, at which time she had to lay off work due to pain. In May 1974, the worker underwent surgery, having a protruded disc at the L5-S1 level removed and a spinal fusion performed at the same level. The worker returned to light duties in January [6] In January 1976, the worker was awarded a 15% PD rating for her low back impairment. The worker objected to this award, and in October 1976 the amount was increased to 25% on appeal. [7] The worker continued with suitable duties until August 1981 when she laid off work with a recurrence of her low back pain. This recurrence was allowed by the Board and the worker returned to her job in September [8] In January 1988 the worker suffered another recurrence. Entitlement was allowed for this recurrence. In September 1988 the worker underwent further back surgery. She had an exploration of her prior spinal fusion, and to repair lysis adhesions at the S1 level. The worker returned to work in February 1990, but then laid off again a week later and was referred to a Board Regional Evaluation Centre (REC). Its report concluded she was fit for permanent modified duties, and recommended she be examined for a possible psychological condition arising out of her injuries. In December 1991, entitlement for a psychological condition was granted, and subsequently the worker was awarded a 25% PD award for this condition. [9] In February 1993 the worker had a PD re-assessment for her organic condition and had her PD award for the back increased to 30%.

3 Page: 2 Decision No. 1159/11 [10] In March 1997, the worker was allowed section 147(4) benefits until age 65 on the basis that the worker would not benefit from vocational rehabilitation and could not return to work. [11] In December 2001, the worker underwent another PD re-assessment. This assessment confirmed the organic back award at 30%, but following receipt of further medical information the worker s PD was increased to 40% in July [12] On February 15, 2005, the worker underwent a third surgery on her back, this time undergoing a lumbar decompression at L3-4 and a spinal fusion at Level L3-5. [13] On November 8, 2006, the worker underwent another PD re-assessment for her organic back condition and this assessment confirmed the prior 40% award. On February 1, 2007, the worker objected to this finding giving rise to the ARO decision upon which this appeal is based. (iv) Law and policy [14] Since the worker was injured in 1973, the pre-1985 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1985 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. [15] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy package #41 Policy package #300 Pension Quantum; and Decision Making [16] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Determining the Degree of Disability; OPM Document No , Arrears ; and OPM Document No , The Ontario Rating Schedule. (v) Medical evidence [17] On July 22, 2002, Dr. Djan, Board Medical Consultant, examined the worker for a PD re-assessment. He noted that the worker had a left lumbosacral discotomy and fusion in May, 1974; exploration of L4-S1 fusion with L5 laminectomy and exploration of left S1 nerve root; and chronic mechanical low back pain. He also noted that in spite of all these surgical interventions this patient has remained symptomatic with chronic and painful low back. Examination today revealed tenderness and limitation of movement to the low back.

4 Page: 3 Decision No. 1159/11 [18] On October 14, 2003, Dr. Soon-Shiong, an orthopaedic and spine surgeon, examined the worker. He diagnosed her with degenerative disc disease and moderately severe spinal stenosis. She has failed response to all conservative treatment [19] On February 15, 2005, the worker underwent an L3 to L5 central and posterolateral decompression, plus revision decompression L4-5 and neurolysis of perineural fibrosis, as well as L3 to L5 fusion with pedicle screw instrumentation and bone graft harvesting from the posterior elements. [20] On May 15, 2006, the worker was seen by Dr. Logan, general practitioner, who reported his findings directly to the Board. He summarized the worker s condition as follows: This lady who incidentally has made an excellent recovery from a prior stroke, has had three back surgeries, the last being neurolysis fusion with instrumentation. The fusion aspect of the last operation has been eminently successful in that the back is virtually rigid with little movement and perhaps some subjective lessening of back pain. However, the back pain continues and the left leg pain also continues which is only partially controlled by Opioids. There has been a deterioration in her permanent impairment level compared to the last assessment in December 2001, in that there is less range of motion in the lumbar spine with complete loss of reflexes at the knees and partial loss at the ankles and more limited straight leg raising with equivalent wasting and weakness. The spinal fusion element appears to have been successful but the neurolysis, not so, with increase [sic] severe leg pain and objective bilateral loss of neuro activity in the lower limbs. Accordingly, it is suggested that she has deteriorated to the level of a so call [sic] failed back at 60% and a pension re-assessment should be requested. [21] On November 8, 2006, the worker underwent an examination by Board Medical Consultant Dr. Shore. Amongst other findings, he noted that the worker walks with a cane and uses a corset, has an alternating limp due to pain on both sides, and suffers paraspinal tenderness bilaterally from L3 to T9. He noted her range of motion (ROM) as: one degree in extension; one degree of right lateral flexion; two degrees of left lateral flexion; 5 degrees of rotation flexion to the right; and two degrees of rotational flexion to the left. His final recommendation confirmed the worker s 40% PD award while noting that there is a possibility of deterioration. [22] On August 5, 2009, the worker s family physician, Dr. Nicholas, issued a report which, in part, read: The last operation included a L3-L5 revision decompression, neurolysis and revision fusion. Since that time she has had severe lower back pain with numbness, burning pain in her legs and feet, with markedly decreased mobility. She has utilized analgesic medications including Tylenol #4s, Tylenol #3s [sic], duragesic patches and more recently Lyrica. None of these have offered pain relief. She is incapacitated and utilizes a cane and requires a back brace for support. She has difficulty walking and standing for long periods of time and walking up and down the stairs. She is unable to do many physical activities required in maintaining a household. This has required increased support from her husband and purchased services to do many of the household chores. This patient has had continued disability since 2005 and if anything her capacity and her functional abilities have decreased.

5 Page: 4 Decision No. 1159/11 (vi) Submissions [23] The worker s representative, Ms. Romano, recounted the worker s medical and surgical history as set out above. She noted that that when comparing the 2006 PD assessment to the 2002 assessment the worker suffered a decrease in spinal extension. Ms. Romano submitted that there was very minimal mobility in the spine, if any, in spite of the increase in pain medication. She went on to submit that the worker s condition has not improved since the 2005 surgery, and that the worker now has what is essentially a failed back due to severe spinal stenosis with perineural fibrosis, extensive scarring and limited, if any, mobility of the spine. [24] Ms. Romano submitted that the worker is entitled to a 60% PD award for the back retroactive to October 14, 2003, that being the date of Dr. Soon-Shiong s report which ultimately led to the 2005 surgery. (vii) Analysis [25] To determine the degree of disability for an accident date of 1973, the Board uses the Ontario Rating Schedule (ORS). It is used as a guide and shows, in percentage, the approximate impairment of earnings capacity in an average unskilled worker. The ORS does not reflect the pain and suffering of an individual, but rather the physical restrictions and attendant impact upon an average worker. [26] OPM Document No , The Ontario Rating Schedule, specifies a PD award of 60% for total immobility of the spine with the usual distribution. [27] In this instance, there is little doubt that the worker has a significant and ongoing impairment to her back. She has undergone three major surgeries that have left her with multiple spinal fusions, as well as instrumentation in her back. [28] On July 22, 2002, Board Medical Consultant Dr. Djan examined the worker for a PD re-assessment. He noted that in spite of all these surgical interventions this patient has remained symptomatic with chronic and painful low back. Examination today revealed tenderness and limitation of movement to the low back. [29] On October 14, 2003, Dr. Soon-Shiong, an orthopaedic and spine surgeon, diagnosed the worker with degenerative disc disease and moderately severe spinal stenosis. He specifically noted that she had a failed response to all conservative treatment [30] On February 15, 2005, the worker underwent an L3 to L5 central and posterolateral decompression, plus revision decompression L4-5 and neurolysis of perineural fibrosis, as well as L3 to L5 fusion with pedicle screw instrumentation and bone graft harvesting from the posterior elements. [31] On May 15, 2006, the worker was seen by Dr. Logan, who summarized the worker s condition as follows: This lady who incidentally has made an excellent recovery from a prior stroke, has had three back surgeries, the last being neurolysis fusion with instrumentation. The fusion aspect of the last operation has been eminently successful in that the back is

6 Page: 5 Decision No. 1159/11 virtually rigid with little movement and perhaps some subjective lessening of back pain. However, the back pain continues and the left leg pain also continues which is only partially controlled by Opioids. There has been a deterioration in her permanent impairment level compared to the last assessment in December 2001, in that there is less range of motion in the lumbar spine with complete loss of reflexes at the knees and partial loss at the ankles and more limited straight leg raising with equivalent wasting and weakness. The spinal fusion element appears to have been successful but the neurolysis, not so, with increase [sic] severe leg pain and objective bilateral loss of neuro activity in the lower limbs. Accordingly, it is suggested that she has deteriorated to the level of a so call [sic] failed back at 60% and a pension re-assessment should be requested. [32] It was this report which led to the worker s most recent PD re-assessment which was performed on November 8, 2006 by Board Medical Consultant Dr. Shore. Amongst other findings, he found her range of motion (ROM) as: one degree in extension; one degree of right lateral flexion; two degrees of left lateral flexion; 5 degrees of rotation flexion to the right; and two degrees of rotational flexion to the left. His final recommendation confirmed the worker s 40% PD award while noting that there is a possibility of deterioration. [33] On August 5, 2009, the worker s family physician, Dr. Nicholas, issued a report which, in part, read: The last operation included a L3-L5 revision decompression, neurolysis and revision fusion. Since that time she has had severe lower back pain with numbness, burning pain in her legs and feet, with markedly decreased mobility. She has utilized analgesic medications including Tylenol #4s, Tylenol #3s [sic], duragesic patches and more recently Lyrica. None of these have offered pain relief. She is incapacitated and utilizes a cane and requires a back brace for support. She has difficulty walking and standing for long periods of time and walking up and down the stairs. She is unable to do many physical activities required in maintaining a household. This has required increased support from her husband and purchased services to do many of the household chores. This patient has had continued disability since 2005 and if anything her capacity and her functional abilities have decreased. [34] Drs. Logan and Nicholas both opine that the worker s spine is essentially immobile and has continually deteriorated over the years despite surgical intervention. In 2003, Dr. Soon-Shiong opined that the worker s back had failed to respond to treatment and would require further surgery (done in 2005). Additionally, the worker s pain medications were added to and increased from the time of the 2005 surgery to the present, as noted by her family doctor, who went on to note that she is also increasingly unable to perform household chores and other activities of daily living. [35] Dr. Shore, who confirmed the 40% award in 2006, also noted that there was a possibility of deterioration in the worker s back. He also recorded ROM measurements of one degree in extension; one degree of right lateral flexion; two degrees of left lateral flexion; 5 degrees of rotation flexion to the right; and two degrees of rotational flexion to the left.

7 Page: 6 Decision No. 1159/11 [36] Decision No. 886/11 noted the following: The May 26, 2009 report of Dr. Grbac described the four surgical procedures that the worker had had on his low back since his workplace accident, and noted that the picture was that of a failed back syndrome. The medical consultant indicated that the failed back syndrome had been considered in the prior reassessment, in Dr. Grbac noted that the pension quantum at the time of his assessment took into account the workers arachnoiditis1 that played a role in his severe leg pain and functional disability. In his report of the reassessment, Dr. Grbac described, among other things, the pain reported by the worker; his limited tolerance for both walking and standing; his need for assistance with some activities of daily living; and the medical consultant s findings on examination. The findings on examination included the following: 10 degrees of flexion, 5 degrees of extension, and 10 degrees of lateral flexion in each direction; straight leg raising in supine to only about 10 degrees on either side, with reported increased low back pain; symmetrical, though reduced, knee reflexes; normal plantar responses; a reported loss of pinprick sensation involving the entire right leg in a glove and stocking distribution; symmetrical thigh and calf circumferences; symmetrical but somewhat reduced muscle power; and what may be some non-organic findings (for example, give way weakness in testing of muscle strength). The medical consultant recommended that the worker s PD pension be confirmed at 50%. The Board case manager advised the worker in a letter dated June 3, 2009 that his PD pension would continue at 50%. In addition to his PD pension, the worker receives supplementary benefits from the Board under sections 147(4) and (14) of the (pre-1997) Workers Compensation Act, for total benefits of approximately $1500 monthly. [...] When the Tribunal comes to consider an appeal from a permanent partial disability pension assessment, what is perplexingly different... is that on the issue of the worker s impairment of health status i.e., on the issue of the correctness of the impairment rating on which the pension is based by definition, legitimate outside expert evidence does not exist. [...] The evidence provided by the Board in this case - particularly the testimony of Dr. Young fully confirms that fact. The Rating Schedule is used only as a guide and except in very straightforward amputation cases cannot be applied in a mechanical fashion to produce automatic results. The percentage selected in the vast majority of cases depends in large measure and this is particularly true with respect to back disabilities on the application of the trained and experienced judgement of the small group of medical examiners in the impairment rating section headed by Dr. Young. The judgements are arrived at using criteria and standards implicitly understood by the members of that section and not reduced and not reduceable to writing.... In short, it is apparent that only another member of the staff of medical examiners in the Board s Impairment Rating Section is equipped to give an opinion as to the correctness of a particular pension assessment. [...] The Decision No. 915 Panel went on to consider how the Tribunal might review the assessment conducted by a Board examiner. The panel noted that the assessor s description of the injury, the disability, the description of the clinical findings, and the history can be considered on the basis of outside opinion. Where the assessor has based the rating on medical facts which are incorrect or where the sufficiency

8 Page: 7 Decision No. 1159/11 of the examination is in question for any reason, there may be a basis to question the correctness of the rating. [...] The Rating Schedule, as noted above, provides a rating of 60% for total immobility of the spine, that is, the lumbar, thoracic and cervical spine. The maximum rating for immobility of the lumbar and/or lumbosacral spine, the part of the spine injured in the workplace accident here, is 30%. The worker s rating is 50%. The Board pension medical assessors did not provide detailed reasons for their recommendations. In his memorandum following the 2001 reassessment, Board medical consultant Dr. Achar referred to the worker's functional disability, severe pain, and four back surgeries, in recommending the increase to 50%. In his memorandum following the reassessment in 2009, Board medical consultant Dr. Grbac referred to [t]aking all of the available information into account in recommending that the worker s 50% pension be confirmed. I infer that that information included the arachnoiditis and the neurological findings. (His report does not indicate a lot of neurological findings.) I have not accepted the worker s submission that there is a general rule that workers with failed backs should be rated for pension purposes at 60%. Because I do not accept that, I return to the principle articulated in Decision No. 915 and rely on the specialized and unique expertise of Board pension medical assessors in determining how a particular worker s condition fits within the framework and benchmarks of the Rating Schedule. There is no error or deficiency in the 2009 reassessment that is apparent to me and I cannot conclude that 50% is wrong. [37] This decision, amongst others in Tribunal case law, have generally held that a 60% PD award for the back reflects total immobility of the lumbar, thoracic and cervical spine; as well as other factors such as, but not limited to, functional ability, any neurological impairments, and surgeries performed. In Decision No. 886/11 I note that the worker s PD re-assessment findings were somewhat similar. While the worker in that case had a greater ROM in his low back, the worker in this case has twice the degree of straight leg raising while supine. In determining the worker in that case was entitled to a 50% PD award, the Board Medical Consultant considered the pain reported by the worker; his limited tolerance for both walking and standing; his need for assistance with some activities of daily living; and the medical consultant s findings on examination. These findings in many respects mirror those found in the case herein. [38] The Vice Chair in that decision did not accept the worker s submission of a general rule that worker s with failed backs should be automatically rated at 60%, nor do I. As noted above, and in the medical reports on file, the worker does not have total immobility of the cervical, thoracic and lumbar spine, and thus is not entitled to a 60% PD award. However, taking into account the minimal ROM in the lumbar spine, tenderness in her thoracic spine from T9 to T12, the failed surgeries, and her significantly impaired functional abilities, I do find that the worker is entitled to an increase in her organic PD award to 50%. [39] With respect to the arrears date, OPM Document No , Arrears, states that if a permanent disability award is increased after re-assessment, the increase dates from three months prior to the date of the request, or an earlier date if supported by clinical evidence. Ms. Romano submitted that Dr. Soon-Shiong s letter of October 2003 be used as clinical evidence to support the payment of arrears from this date. I note, however, that this was just over a year since the worker s PD award had been increased to 40%, and that although

9 Page: 8 Decision No. 1159/11 Dr. Soon-Shiong noted that treatment to that time has failed, the worker still retained some mobility, had not yet had her medications increased, nor had she yet had the final surgery. As such, I do not find this to be the appropriate arrears date. Instead, Dr. Logan s independent report of May 15, 2006, which specifically states that the worker s back has essentially failed, takes into account the 2005 surgery, subsequent increase in medication, and the deterioration in mobility, should be used as the arrears date for the PD award increase. I also note that it was this report which gave rise to the most recent PD re-assessment in November 2006, which is under appeal here, and at which the worker s lack of mobility and ongoing pain was documented.

10 Page: 9 Decision No. 1159/11 DISPOSITION [40] The appeal is allowed, in part, as follows: 1. The worker is entitled to an increase in her organic PD award for her back to 50%. 2. This award is to be made retroactive to May 15, 2006, the date of Dr. Logan s report and recommendation. [41] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: September 29, 2011 SIGNED: K. Cooper