WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1712/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1712/12 BEFORE: A.G. Baker: Vice-Chair HEARING: October 22, 2013, at Toronto Oral Post-Hearing completed April 25, 2014 DATE OF DECISION: March 19, 2015 NEUTRAL CITATION: 2015 ONWSIAT 621 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated January 22, 2010 and August 15, 2013 APPEARANCES: For the worker: For the employer: Interpreter: M. Kelly, Lawyer R. Boswell, Lawyer 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. 1712/12 REASONS (i) Introduction and issues [1] The worker appeals two decisions, the decision of Appeals Resolution Officer (ARO) D. M. Shepherd, dated January 22, 2010 and the decision of C. Ihasz, dated August 15, From those decisions, the worker requests the expansion of entitlement for a permanent impairment and Non-Economic Loss (NEL) award for the low back. The worker also appeals the denial of health care benefits, including the denial of prolotherapy, and the denial of massage therapy beyond October 22, [2] I also note that this matter arises in part from time extension Decision No. 1712/12E. I also note the prior Decision No. 1356/07 that was cited in the first ARO decision noted above. While they have been noted, I do not find it necessary to detail those decisions at length in this matter. I also noted that it was raised that a further medical opinion through the Tribunal Medical Liaison Office (MLO) might be appropriate. I have considered that submission and did not consider a further opinion necessary to reach a decision in this case. (ii) Background and testimony [3] The background to this matter was well noted by the ARO in the first decision noted above as follows: ISSUE The worker objects to the decision of February 27, 2009 to deny entitlement to a permanent low back impairment and associated health care benefits. HOW THE ISSUE ARISES On November 9, 2000, this now 41 year old worker experienced low back pain while unloading cases... At the time of injury, the worker was employed as a customer service representative in a retail store. The worker attended her doctor several days post-injury and was diagnosed with lumbar strain. X-rays revealed left-sided spondylolysis without listhesis. When she began physiotherapy on November 22, 2000, the worker complained of pain extending to the left buttock. In February 2001, the worker reported radiation of pain to the left thigh. In March 2001, the worker reported that pain radiated as far as the left knee. Initial entitlement was granted at appeal in a decision dated April 7, Entitlement was restricted to health care benefits on the basis of a finding that modified work offered by the employer was suitable. The decision to deny wage loss benefits for the period November 16 to 21, 2000 was upheld by WSIAT in a decision dated March 5, On November 21, 2000 the worker returned to pre-injury duties at reduced hours. She continued in this capacity until she laid off work in February 2001 due to anxiety and depression. Subsequent medical documentation indicated that a number of non injuryrelated factors (contributed to the psychological condition. Psychological symptoms were reported to include fatigue sleep disturbance, episodes of panic, nightmares, flashbacks, and depression. Arrangements were made for the worker to see a physiatrist in August 2001 due to persistent complaints of low back pain radiating to the left lower extremity. The physiatrist documented the results of a CT scan which revealed L5-S1 facet joint changes

3 Page: 2 Decision No. 1712/12 and a bone scan which demonstrated no significant areas of increased uptake. The doctor recommended pool-based therapy. The worker returned to work in September When the worker returned to the physiatrist in October 2001 and January 2002, she reported no improvement in her condition. By January 2002 the worker was pregnant and unable to take any medications. She went on maternity leave at that time and has not returned to work. There was no further documentation submitted to the record until According to the family doctors clinical notes, the worker attended in January 2003 and February 2003, complaining of continued low back pain radiating to the left lower extremity. In January 2004 the worker experienced pain in the area of her waist when she was caught in an elevator. In February 2004, the worker returned to physiotherapy due to an insidious increase in low back pain. In August 2005, the worker attended a neurologist, reporting hip problems and a recent onset of pain, burning and numbness in the left foot. Examination revealed slightly reduced range of left hip motion and metatarsalgia. EMG studies ruled out radiculopathy. In August 2005 the worker also underwent assessment by a new physiatrist. The physiatrist diagnosed hypermobility, tightness of certain ligaments in the left lower extremity, sacroiliac glide somatic dysfunction, and T3 syndrome, none of which, in his view, were related to facet joint degeneration or nerve root irritation. He recommended prolotherapy to stabilize the sacroiliac joint and treat T3 syndrome. In May 2006 the worker underwent bone scan and MRI. Bone scan revealed no significant areas of increased uptake. MRI revealed: L3-4 disc protrusion with indentation of the thecal sac but no nerve root impingement; L4-5 disc protrusion with no nerve root impingement; narrowing of the right L4-5 neural foramen which could result in indirect compression of the nerve root, and; L5-S1 disc protrusion with tear of the annulus but no nerve root impingement. In November 2006 the worker was assessed by a specialist at the Sunnybrook Pain Management Clinic. The specialist noted that EMG findings were normal and that MRI did not support nerve root compromise and determined that the worker s low back complaints exceeded physical findings. In September 2008, the worker attended another pain specialist who advised that the worker had an unstable left sacroiliac joint which caused popping and clicking and secondary spasms which caused sciatic-type pain. He noted that the worker reported a recent onset of similar symptoms in the right lower extremity. The worker reported an onset of left groin pain, possibly the result of a tight psoas muscle, and discomfort in the hands and shoulders. With regard for the widespread nature of complaints, the doctor suggested a diagnosis of fibromyalgia. A recommendation was made for Botox injections to address myofascial pain in the lumbar paraspinals, piriformis, and buttocks. In July 2009, the worker underwent left-sided diagnostic facet blocks from L3 to S1 with full resolution of symptoms. A recommendation has been made for a facet denervation procedure. In the interim, the worker has pursued recognition of permanent impairment and sponsorship in prolotherapy, massage therapy and Botox injections. With the benefit of advice from a WSIB medical advisor, the adjudicator found that the worker s ongoing complaints were related to preexisting spondylolysis and joint hypermobility. Entitlement to non-economic loss (NEL) assessment and health care costs was denied. The worker has objected further to denial of NEL and health care benefits. [4] The ARO in the first decision noted above found that the worker had a permanent low back injury, but entitlement was restricted to mechanical low back pain without significant neurological impairment. Put succinctly, the ARO found that a number of other difficulties

4 Page: 3 Decision No. 1712/12 suffered by the worker, including for example T3 syndrome, groin pain and leg tightness, were not caused or aggravated by the workplace accident, and were unrelated to the work-related mechanical low back condition. I also note for the purposes of this decision that the ARO also allowed massage therapy, but denied the worker prolotherapy. [5] I also noted the second ARO decision regarding the denial of ongoing entitlement to massage therapy beyond October 22, The decision noted the worker s prior low back award and that the worker received a 7% NEL award. In brief, it was found that the ongoing massage therapy was not benefiting the worker physically. [6] The worker also testified that she was currently 45 years old and had a grade 10 education. She stated she began working with the employer in July of 1999 in a retail customer service position. She stated she had a variety of duties, including cashier, stocking shelves, unloading large shipments of heavy boxes each week, and cleaning the store. She stated the weekly shipment was up to 2,000 cases, which was unloaded by 3 people over approximately a half day. She stated that she was in generally good health prior to her injury. [7] The worker stated that she injured her low back, with pain across the waist line and into the hip and buttocks. She stated she returned to modified duties and was on lifting restrictions in particular. She stated however that a number of physical activities still bothered her, such as twisting, walking and standing. [8] The worker stated she attended a number of physicians, beginning with her family doctor. She stated she was diagnosed with a lumber strain and sent for physiotherapy. She stated she continued working into February of 2001 with no real improvement in her condition. She stated she was off work for several months, with back pain, upper back tightness, and pain in the buttocks and down the legs. The worker attempted a return to work into early 2002, but stated she continued to have pain in her back. She also became pregnant and stopped working in January of She stated she has not returned to work since that time and remained in a lot of pain and discomfort in her back, hip and legs. She had some difficulty recalling the treatment she was having during that time period. [9] The worker stated she continued to attend her family doctor, as well as seeing specialists. She noted attending a physiatrist and trying pool therapy. She also attended a chiropractor and began massage therapy. She stated the massage therapy partially eased her pain and increased her functioning for 2-3 days at a time. She stated she could walk better, and increased her ability to stand and do chores around the house. She stated she had a better quality of life. [10] The worker also noted attending other specialists for injections and being told she was loose jointed. She stated she had no prior joint problems. She also stated that, while she had never had any prolotherapy, it had been recommended to her by a specialist. She noted the cost was prohibitive for her, but she would be willing to try it if it was a covered benefit. [11] The worker also noted having foot problems and custom orthotics made, which were covered under a different benefit scheme. She also noted attending a range of doctors for injections, a nerve block, and Botox treatment. She stated they generally did not provide significant pain relief. She stated however that she continued with massage therapy approximately once a week, which was helping to increase function and decrease her pain. She stated she has been able to keep up with some massage therapy once or twice a month, which she has paid for herself. She stated however that her pain has increased in the low back, buttocks,

5 Page: 4 Decision No. 1712/12 legs and feet. She also stated her level of functioning has decreased as a result. She noted for example having difficulty bending and dressing at times. [12] The worker stated she takes anti-inflammatories as needed and pain medication a number of times each week. She stated she has also attended for some chiropractic treatment one time in April of The worker also noted attending a rheumatologist recently for periodic checkups, and that she has recently changed family doctors. She stated she lives in a two floor house with her husband and daughter. [13] The worker stated her pain onsets generally all at once and never goes away entirely. She stated her pain shifted to her groin in 2005, but despite surgery, she did not have a hernia. She stated she was told it was likely radiating pain from her low back. She stated her pain has prevented her from looking for work, but that she does eventually want to return to the workforce. [14] In cross questioning, the worker noted attending a number of doctors, including being referred to her current rheumatologist for joint problems. She stated she was told she had rheumatoid arthritis, and she was taking medication for her arthritis. She stated she also had injections for her pain in the shoulders and hips bilaterally. She stated she had swelling at times in the hands and that her mother also had arthritis. She stated it was worse in the right hand, her dominant hand. She stated she now attends only her family doctor and rheumatologist. [15] The worker stated she is on the list for a pain clinic at a local hospital, and that the injections she has been receiving have not been effective. She also noted again the corrective orthotic with a raise on one foot of an inch. The worker also noted attending pain and burning in the feet, with trouble walking at times. [16] The worker was also questioned about her low back diagnosis and the ongoing difficulties in her hips and buttocks. She stated her symptoms onset with essentially any activity, including walking, sitting and driving. She also noted her groin pain was similarly a problem with activity, but again was not a hernia. The worker also apparently suffered from PTSD and had sought counseling from a social worker over a two year period in 2008 and She stated she was not treated by a psychiatrist or psychologist. (iii) Law and policy [17] The Workplace Safety and Insurance Act, 1997 (WSIA) is applicable to this appeal. I also noted section 126 of the (WSIA) requiring that I apply Board policy. In that regard, the following policy packages, Revision #8, have been stated by the Board to be applicable to this appeal: 1 Initial Entitlement 31 Secondary or Non-Work Related Conditions 95 Health Care Benefits 107 Aggravation Basis/SIEF 300 Decision Making/Benefit of Doubt/Merits and Justice [18] I have considered the above noted law and policy as necessary in reaching the below decision.

6 Page: 5 Decision No. 1712/12 (iv) Decision (a) Expanded NEL/secondary conditions and prolotherapy [19] In my view, the worker is not entitled to an expanded area of permanent impairment, or to secondary conditions, claimed to be related to the worker s compensable low back injury, or to prolotherapy. I was persuaded that massage therapy is warranted, as described below. In coming to those findings, I noted the following submissions and file information. [20] The worker s counsel provided submissions on January 17, 2014, requesting secondary entitlement for T3 syndrome, left SJ syndrome, groin pain, and a left leg condition. It was requested that the worker s NEL quantum should have been increased to include those conditions. The worker also requested further treatment that included both prolotherapy and massage therapy. [21] The records of Dr. Bensen, rheumatologist, were also noted as including a diagnosis of rheumatoid arthritis that was under treatment by the doctor. It was submitted in that regard that the worker initially attended Dr. Bensen in September of 2012, after a referral from the worker s neurologist, Dr. Savelli. Dr. Bensen noted that the worker suffered significant pain and fatigue that impacted her ability to function and quality of life. It was submitted that the worker s blood work initially supported a diagnosis of rheumatoid arthritis (RA) that subsequently improved by March of In brief, it was submitted that the worker may have initially had symptoms supporting RA, but that ongoing blood work results showed minimal inflammation. Further, that despite those results, the worker continues to suffer from pain and functional limitations that were claimed to be related to the work injury and its sequelae. [22] It was further submitted that the initial injury arose in 2000, and that blood work reviewed subsequently did not support arthritic inflammation symptoms until many years later. It was specifically submitted that Dr. Galvin, physiatry, of the Orthotic Clinic reviewed the blood work from 2006 and found normal values. Therefore, it was submitted that the condition could not have onset as early as 2006, and that the worker s RA is only in the early stages of the disease. [23] It was also submitted that the worker s left leg pain is causally linked to her mechanical low back injury. However, that was not considered when the worker had her NEL evaluation for the low back. In that regard, the records of Dr. Tuttle, family doctor, were noted both pre- and post-accident. While they are not cited in full here, it was submitted that the worker did not have a pre-accident impairment to the left leg. It was further submitted that the worker did not have treatment to the left leg or lose time due to the condition before her work injury. Rather, that the worker s bilateral leg pain was in relation to the pain in her back and left buttocks. A number of references were made in that regard to Dr. Tuttle s clinical records. The references began as early as November of 2000 and included, for example, references to radiating pain from the back and buttocks into the legs and groin; ongoing therapy; prescribed pain medication; and aggravation of the leg when standing, bending and lifting. [24] It was noted by the worker s counsel that there were at times conflicting reports of the source of the radiating pain. However, it was submitted that the leg condition arose after the compensable accident in November of It was submitted the condition was well documented and that there was continuity in the medical records regarding the worker s condition.

7 Page: 6 Decision No. 1712/12 [25] It was further submitted that there was a large amount of information regarding the worker s groin pain. However, it was submitted that the key reports indicated the pain is secondary to the low back. Again, it was submitted there was no pre-existing condition, and no clinical records regarding treatment or lost time related to groin pain. It was further submitted that the worker stated her pain onset from 2003, and that the medical reporting on file indicated radiating pain from the worker s L1-2 dysfunction. The reporting of Dr. Samways, physiatrist, was also noted as documenting the first tightness in the region in October of [26] It was also submitted that the worker continues to struggle with groin pain despite therapy, such as pool based therapy. It was further submitted that the worker s pain onset well before 2003 and only 9 months post-accident. It was further noted that, while there were not many tests conducted at the time, there were for example x-ray results showing spondylosis at the L5-level. MRI testing in 2006 was also noted as showing mild disc desiccation at all levels, particularly in the lower lumbar spine. However, it was submitted that the testing did not show substantive issues with the L1 region. [27] It was submitted that the reporting for example from Dr. Fulton, rehabilitation medicine, in 2005, identified groin complaints as related to L3 irritation, which were directly related to the workplace accident. Of course, it is important to note that the worker s chronic back problem was recognized by the ARO, with entitlement restricted to mechanical back pain. It was submitted however that the reporting from Dr. Fulton was ignored in relation to the worker s groin pain. [28] It was also acknowledged by the worker s counsel that a contrary opinion was provided from Dr. Ko, physiatry, in 2008, relating the left groin pain to muscle spasms and tightness. A further report from Dr. Fulton was also noted as relating groin pain to the symphysis pubis being higher on one side. However, it was submitted that, despite varying opinions, the back and sacroiliac joint dysfunction was causally related to the worker s groin pain. Again, it was emphasized she had no prior difficulties, which were well documented post-accident in the clinical records from the worker s family doctor. [29] In regard to the worker s claimed SJ dysfunction, it was submitted that Dr. Fulton diagnosed the worker in 2005, recommending prolotherapy to stabilize the sacroiliac joint and treat T3 syndrome. Dr. Ko also noted the worker s SJ difficulties as well as chronic mechanical back pain down the left leg. A further report was also noted from Dr. McHardy, pain management, in 2006, which also noted tenderness in the SJ. The worker was treated with a nerve block and it was noted the worker s lumbosacral nerves were irritated. It was also noted that the worker s discogenic disease seemed more severe than her radiological results. [30] Dr. Fulton was also again noted in the worker s submissions as finding a dysfunctional element in the sacroiliac joints in However, it was submitted that spinal problems had already been noted years prior. Further, that the symptoms that would have been expected from SJ dysfunction had been in place since shortly following the claimed work injury, including groin and leg pain. [31] Literature was also cited in regard to low back pain, and in particular to the diagnostic classes that are arguably relevant to low back pain. Three classes were noted, including hypermobility dysfunction, nerve root adhesion, and sacroiliac hypermobility. It was submitted that sacroiliac dysfunction is closely related with low back pain. Further, that the worker did not

8 Page: 7 Decision No. 1712/12 have any complaints, did not seek medical attention, or have lost time due to problems with her hips, legs, groin, or back, prior to the workplace accident/injury. [32] It was further submitted that a 2004 non-compensable wrist injury was not related to the worker s low back condition. It was submitted that Dr. Tuttle s clinical notes confirm the wrist was the sole injury in that case, despite a finding by the ARO that the wrist injury had also led to further low back difficulties. [33] In regard to the worker s claim for T3 syndrome, it was submitted that Dr. Fulton had cited a range of symptoms in September 2005, diagnosing the worker with T3 syndrome. A further report in April of 2011 indicated that physical dysfunction in the SJ was indirectly responsible for T3 difficulties and may have also played a role in the presentation of other spinal difficulties. A further June 2011 report stated that the worker s T3 costovertebral syndrome is common in people that have sacroiliac torsions. It was submitted therefore that the T3 syndrome was yet a further secondary injury related to the worker s SJ dysfunction, and therefore causally related to the work injury. Further literature was cited in which case studies had also related SJ injuries to the subsequent development of T3 syndrome, particularly with a history of trauma. [34] It was further submitted that the worker did not have a history of pre-existing issues with the upper extremities, the thoracic spine, or the back generally. Again, the syndrome was claimed to be a result of the worker s secondary injuries. Board policy was also cited in regard to entitlement to secondary injuries, noting that a causal link must be established between the worker injury and the claimed secondary condition. In that regard, I accept that it must be shown that the work injury was a significant contributing factor to the secondary injury. [35] In regard to the claim for prolotherapy, it was submitted that Dr. Fulton had recommended the treatment, and that it was necessary for sacroiliac treatment to be successful. In 2005, the doctor had indicated that the worker s condition could be improved with the treatment, noting that the laxity of certain ligaments could be improved, allowing for some protection in the worker s attempt to retrain. A referral was therefore made to Dr. Ko, who was submitted to have cited prolotherapy and botox injections to treat the worker s chronic pain. The worker s therapists also supported prolotherapy for the SJ joint and to treat muscle spasms. [36] Dr. Ko also evidently recommended prolotherapy or similar treatment in a number of reports in 2009 and The worker s counsel also provided further literature regarding the use of prolotherapy to treat chronic musculoskeletal pain. It was submitted, put succinctly, that prolotherapy may be effectively used to treat low back pain in conjunction with other therapies. It was also submitted that the worker s treating doctors had made such recommendations for the treatment of the worker s low back pain, T3 syndrome and SJ dysfunction. It was further submitted that such treatment was necessary and appropriate treatment as a result of the worker s compensable injuries, and that such a finding would satisfy the requirements under Board policy for health care benefits. It was also submitted that such treatment could be offered within the geographic region where the worker s resides. [37] It was also submitted in the worker s reply submissions of April 25, 2014, that the worker was diagnosed with rheumatoid arthritis (RA) in 2012, according to the records from the worker s rheumatologist, Dr. Bensen. It was submitted that the employer s position that RA was not considered in the ARO decisions was challenged by the worker. In particular, that it is not necessary to obtain a further medical opinion, as the worker s secondary conditions are related to the accident and not the worker s RA diagnosis.

9 Page: 8 Decision No. 1712/12 [38] In that regard, the worker s counsel acknowledged that the diffuse symptoms and treatment for RA may also correspond with treatment for the claimed secondary conditions. However, the worker s RA symptoms were submitted to have arisen primarily as sore and swollen fingers, for which she was prescribed medication. Yet the worker s back symptoms were submitted to have persisted, which indicated that the treatment for RA did not assist her other secondary sources of pain. [39] It was also submitted that Dr. Bensen confirmed the worker s ongoing complaints of pain in the low back, groin, and SI joint difficulties. Functional limitations also continued, but it was submitted that Dr. Bensen did not find evidence of inflammatory changes related to RA. It was also further submitted that the treatment for RA, as noted by Dr. Bensen in reporting into 2013, did not assist the worker with pain radiating to her SI joint, groin, or low back. Therefore, it was again submitted that RA was not a significant factor in regard to the claimed secondary conditions. [40] The position of the employer was also noted, as well as the test results that confirmed the RA diagnosis. It was submitted that testing and reporting from Dr. Galvin in 2006 did not reveal any indication of RA. It was further submitted that the worker s RA was minimized according to later reporting from Dr. Bensen, yet the worker continues to experience pain from the claimed secondary conditions. The EMG study from 2005 was also noted, in which it was noted that there was a family history of arthritic conditions. However, it was again noted that RA was not diagnosed until [41] The worker s reply submissions also noted the employer s claim that there is no link between the worker s compensable injury to her low back and left sided leg and sacroiliac pain. In that regard, a number of reports were highlighted, including for example EMG results from 2005 that indicated there was irritation of the sciatic nerve in relation to neural tension. An MRI from February of 2013 was also noted as confirming a right-sided L5-S1 disc bulge, yet the employer had submitted that the worker s symptoms are primarily left sided. [42] In that regard, the worker s counsel acknowledged reporting from Dr. Tuttle and Dr. Ko that confirmed numbness and pain that also impacted the worker s right side. It was noted that earlier medical reports from 2000 and 2003 also cited right sided leg pain and groin pain, with Tylenol #2 being recommended for treatment. [43] The worker s counsel also submitted that Dr. McHardy had explained in 2006 that the worker was experiencing irritation of the nerves exiting the lumbar and sacral spine. It was submitted therefore that there was an evidentiary link between the worker s compensable injury to her low back and reports of left sided leg and sacroiliac pain. [44] It was further submitted in reply that, despite the lack of thoracic impairment in MRI results from 2013, that the worker still had documented complaints for the upper back. They included for example the 2001 reporting from Dr. Tuttle that indicated upper back pain, as well as other complaints. Reporting from 2007 also noted leg pain that caused the worker to attend for medical attention. A number of restrictions were indicated, as well as Tylenol #3 prescribed. The reporting from Dr. Fulton was also noted from September 2005, in which the worker was diagnosed with classical T3 syndrome. [45] Again, it was therefore submitted that the worker s SI joint and T3 syndrome were secondary to the compensable back injury. It was also submitted that Dr. Fulton reported in

10 Page: 9 Decision No. 1712/12 April 2011 that the worker s physical dysfunction in the sacroiliac joint was indirectly responsible for the T3-T4 syndrome, and may have played a role in the presentation of other spinal difficulties. Dr. Fulton also further commented in June of 2011 that T3 syndrome is common in people with sacroiliac torsions. [46] It was further submitted that, despite the position of the employer, Dr. Fulton had recommended prolotherapy for treatment of the worker s pain in the lower buttock and for T3 syndrome. Literature was also provided on file that noted prolotherapy being used for pain relief in patients with chronic low back pain and a combination of other disabilities. I did not find it necessary to comment at length on the literature, but did note the use of prolotherapy in relation to low back pain in that context. It was submitted by the worker s counsel that such therapy was necessary and appropriate in the worker s case. [47] The worker s counsel also stated in reply, and as opposed to the employer s position, that a number of medical reports supported that SI joint instability was related to the original injury. The reporting canvassed above was again cited in brief, including the reporting of Dr. Fulton, Dr. Tuttle and Dr. Samways. That included the record of the worker s pain complaints, numbness, and tightness in various areas of the body, including the hip, finger tips, low back, right leg/hip, and PSIS region. [48] It was also finally submitted that, while the worker s SI joint condition has been referred to as congenital in nature, the condition was not symptomatic until after the work injury. In that regard, the worker was submitted to have been able to maintain employment and carry out activities of daily living without such complaints pre-accident. [49] I also noted the position of the employer in this case, as well as the records from Dr. Bensen regarding RA, dating from As the employer noted, those records were not available when the ARO decisions under appeal were rendered. It was evident that the initial assessment by the doctor was long after the worker s initial injury. She was noted to have suffered diffuse pain in the low back and lumbar spine. She also had swelling in the hands and wrists. The worker was also clearly diagnosed with RA by December of 2012, which was emphasized by the employer. [50] In that regard, the employer submitted that much of the testing that occurred was primarily to rule out other disease processes. The employer also took issue with the literature that was submitted by the worker that dealt with RA. Put succinctly, it was submitted that general literature regarding RA should not be weighed in a similar fashion to treating doctor s reports, for example from the worker s own rheumatologist. Further, that the worker is claiming an expanded area of entitlement and health care treatment that is actually related to her RA, and not her work injury. I also note again the employer s submission that a further medical opinion may have been of assistance in this case. However, in my view, that was not necessary to reach the below decision. [51] Rather, I have considered both the employer s position in regard to the onset of RA, as well as the submissions from the worker. It is possible that the onset of RA may well have played some minor role in the progression of the worker s claimed expanded/secondary conditions. However, even without considering the RA diagnosis, I was not persuaded that the worker s low back injury was a significant contributing factor to the onset of the claimed conditions. In coming to that finding, I noted the following information.

11 Page: 10 Decision No. 1712/12 [52] As noted by the employer s counsel, the worker has been assessed for a NEL award for an injury to the low back. She received a 7% NEL in 2010 that was attributed entirely to an unoperated intervertebral disc lesion. The basis for the NEL award was noted in part to have been an MRI report in 2006 that was submitted to absent comments about left sided leg pain or sacroiliac pain. [53] It was also noted that Dr. Samways reported in August of 2001 that the worker was likely having some symptomatic mechanical low back pain with less buttock referral from the spondylosis and facet changes noted on CT scan. It was submitted by the employer that the radiating pain noted did not appear to go further into the leg or foot, and an examination of the hips demonstrated a full range of motion. [54] Subsequent reporting from Dr. Galvin was noted several years later in The doctor noted the worker has a congenital left hip variant. Also important to this decision was the further reporting from Dr. Fulton in September of 2005, which noted the worker s back strain, and stated that the worker is inherently hypermobile and has a left sacro-iliac slide/glide somatic dysfunction. As noted, Dr. Fulton diagnosed the worker s T3 syndrome and recommended prolotherapy. However, it did not appear that the thoracic condition indicated by Dr. Fulton was work related, given the above noted findings of congenital variants and inherent hypermobility. [55] In reviewing the balance of the medical information, it was evident that the worker has an inherent/congenital condition that was not causally related to the compensable low back injury. In that regard, the instability of the worker s SI joint was confirmed in a number of subsequent treatment reports. [56] It was also noted for example in reporting from Dr. Galvin in May of 2007 that the worker was suffering sacroiliac dysfunction and joint instability, without referred pain from the lumbar spine. I recognize that the condition was indicated to be work related and prolotherapy was again recommended by the doctor. However, the report did not in my view address the preexisting inherent/congenital nature of the worker s SI joint condition. I also agreed with the employer s submission that, even if prolotherapy would assist the worker with her condition, there was no basis to grant the therapy given the condition was not causally related to the workplace injury. [57] It was also noted that, while the worker s symptoms arose after her work injury, they emerged over a number of years. Over the course of a number of medical reports the worker described chronic diffuse pain. It was also noted that a number of doctors described the worker as having a hypermobile left sacroiliac joint, including Dr. Fulton, Dr. Galvin, and Dr. Ko. It was also noted that objective testing did not reveal a causal relationship between the lumbar spine and the worker s more widespread symptoms. I also note again the more recent diagnosis of RA as indicated by Dr. Bensen, which may well explain such symptoms. [58] I also note again that the worker s low back injury has been recognized and a NEL award granted for the worker s ongoing mechanical low back condition. I also noted the findings of the ARO that degenerative disc disease was found throughout the worker s lumbar spine. However, the worker was granted benefits despite the degenerative problems, noting that the ARO found there to be a chronic low back condition arising as a consequence of the workplace injury.

12 Page: 11 Decision No. 1712/12 [59] That said, I also agree with the findings of the ARO and the employer in this case, that the extent of the mechanical low back pain does not include the expanded/secondary claims noted above. It was noted that physical findings and testing did not explain the sensory changes and weakness in the lower extremities. It was also noted that, while the worker s secondary conditions arose post-injury, much of the key medical reporting in regard to the claimed conditions did not arise until several years after the injury. I note for example the findings from Dr. Galvin in 2005, some five years post-injury. [60] Finally, and most important to this case, is the finding that the worker s inherent hypermobile condition and sacroiliac dysfunction were not evidently caused by or aggravated by the workplace accident. Rather, the worker suffered from pre-existing congenital difficulties. In that regard, I also finally note that the file and medical information was reviewed by Dr. Balinson, Board Medical Consultant, in February of The doctor reviewed the history of injury and subsequent reporting for example from Drs. Tuttle, Samways, Galvin, and Fulton. I understand that the mechanical low back award is not at issue. However, the worker s back condition and secondary conditions/symptoms were considered by Dr. Balinson. The doctor opined as follows: Given the lack of medical continuity, it would not appear that wkr s ongoing symptoms are related to compensable injury of Nov00 but rather to her pre-existing spondylosis and evident jt hypermobility. There are other issues relating to job dissatisfaction and desire not to rtw (as per Dr. Fulton Sep05). As such, there would not appear to be a compensable Pi in this claim nor entitlement to Botox inj ns. [61] Dr. Balinson quite clearly indicated there was a lack of medical continuity to link the worker s secondary symptoms to the work accident/injury. While I recognize the worker was subsequently granted benefits for the mechanical low back, I found Dr. Balinson s opinion did not support expanding that entitlement, again noting the worker s joint hypermobility and secondary considerations relating to job dissatisfaction. As such, I found the report did not support further entitlement in this case, noting as well that the report was provided absent the further information from Dr. Bensen and the worker s RA diagnosis. [62] I find therefore that, even without considering the worker s RA diagnosis, I was not persuaded that the workplace accident was a significant contributing factor to the worker s secondary conditions in the groin, SI joint, or lower left extremity. Rather, it is evident the worker has a non-compensable congenitally unstable/hypermobile left sacroiliac joint that appears to be related to more widespread difficulties, and not the worker s recognized mechanical low back injury. In that regard, benefits are denied for the worker s claimed expanded/secondary conditions and related prolotherapy treatment. (b) Massage therapy [63] In this case, I noted the employer s comments regarding the above noted secondary conditions and treatment. It was also submitted by the employer that, despite the ongoing request for massage therapy, it was unlikely to improve the worker s condition. Rather, the requests were on a maintenance basis only. It was further submitted that the therapy was recommended not only for the worker s low back condition, but also for some of the worker s more widespread symptoms that were related to the above claimed secondary conditions. That included the rheumatoid arthritic condition that was diagnosed by Dr. Bensen.

13 Page: 12 Decision No. 1712/12 [64] While I noted the employer s position in regard to massage therapy on a maintenance basis, the treatment was recommended not only for the claimed secondary conditions, but also for the worker s recognized low back impairment. It was further submitted by the worker s counsel that the worker had been attending for massage therapy from March It was submitted that there were numerous requests for treatment extensions. It was submitted that the therapy provides temporary relief to the worker and allows her to carry out her activities of daily living. A number of requests for maintenance treatment were noted on file. [65] I noted for example the reporting from Life Mark physiotherapy from 2010 to 2012, which continued to request treatment extensions. I noted in particular the August 2012 report from the worker s massage therapist that noted the worker s low back injury, amongst other difficulties. While maintenance treatment was requested, it was evident that the treatment was assisting the worker with relief from pain. Regular treatments were also noted to be giving the worker temporary relief that allowed her greater functional ability to carry out daily activities. [66] The worker s counsel also directed me to Tribunal decisions that have considered the issue of whether entitlement for maintenance treatment is warranted. Decision Nos. 1036/01 and 219/02 were cited in particular. It was submitted that the Tribunal has granted further benefits where such treatment supports a worker s condition and is necessary for the worker to control pain attributable to a compensable condition. In that regard, it was submitted the worker ought to have been granted ongoing benefits for massage therapy as required for maintenance of the worker s condition. [67] I am persuaded in this case that the worker s massage therapy was assisting with the worker s pain control and daily functional abilities. In that regard, I found the treatment necessary and appropriate to improving the worker s quality of life. It therefore satisfies the requirements under Board policy for granting health care benefits. I also note that such treatment is contemplated under the Board s best approaches guide document for Maintenance Treatment. [68] However, I was not persuaded that such benefits should be allowed on a perpetual basis, and that a further review of the Board ought to be conducted to gauge the efficacy of the treatment in the future. I therefore find that the worker is entitled to benefits for massage therapy beyond October 22, 2012, up to six months beyond the date of this decision. Beyond that point, the worker s entitlement to further massage therapy benefits is remitted to the Board for further adjudication. For clarity, six months after the date of this decision, the Board is to evaluate and adjudicate the worker s entitlement and need for further massage therapy benefits.

14 Page: 13 Decision No. 1712/12 DISPOSITION [69] The appeal is allowed in part. [70] The worker s claim for an expanded NEL award and/or secondary conditions is denied as noted above. [71] The worker is entitled to benefits for massage therapy beyond October 22, 2012, up to six months beyond the date of this decision. For clarity, six months after the date of this decision, the Board is to evaluate and adjudicate the worker s entitlement and need for further massage therapy benefits. DATED: March 19, 2015 SIGNED: A.G. Baker