WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2389/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2389/14 BEFORE: A.G. Baker: Vice-Chair HEARING: December 22, 2014, at Toronto Written DATE OF DECISION: March 30, 2015 NEUTRAL CITATION: 2015 ONWSIAT 692 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated May 29, 2013 APPEARANCES: For the worker: For the employer: Interpreter: R. Fink, Lawyer Not Participating n/a Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2389/14 REASONS (i) Introduction and issues [1] The worker appeals the decision of Appeals Resolution Officer (ARO) P. Bouwman, dated May 29, From that decision the worker appeals the denial of benefits for a permanent low back impairment. [2] I have also noted the submissions from the worker s representative in this case. I also noted that the employer was provided the opportunity to participate in this case. They chose not to provide any written submissions. (ii) Background [3] The ARO noted the background in brief in the decision under appeal as follows: It was clarified in preliminary discussion that the issue being pursued is a permanent impairment for the low back only, which was denied January 13, The worker is now 53 years of age and has been employed as a Registered Nurse with [the employer] since She has had claims for her back dating back to 1989 and feels that she has entitlement to a permanent impairment. The worker had back surgery for a disc herniation on July 31, A Claims Investigation was conducted to obtain additional information and all relevant medical reports. The Case Manager could not establish a relationship between the surgery and work related injuries. A permanent impairment for the low back was denied as outlined in the decision of January 13, The worker objected and the matter was referred to the Appeals Branch for further consideration. [4] As noted above, the worker has now appealed the denial of benefits for a permanent low back impairment to the Tribunal. (iii) Decision [5] Under section 126 of the Workplace Safety and Insurance Act, 1997 (WSIA), I am required to apply Board policy. In that regard, the following policy packages, Revision #9, have been stated by the Board to be applicable to this appeal: 1 Initial Entitlement 38 Recurrences 44 Pension Entitlement 107 Aggravation Basis/SIEF 261 NEL Entitlement 300 Decision-Making/Benefit of Doubt/Merits and Justice [6] I have considered the above noted Board policy as necessary in reaching the below decision. I also note that, if a worker s injury results in permanent impairment, the worker is entitled to compensation for Non-Economic Loss. Permanent impairment means impairment

3 Page: 2 Decision No. 2389/14 that continues to exist after a worker reaches maximum medical recovery (MMR). Under Board Operational Policy Manual (OPM) Document No , MMR is reached by a worker when it is not likely that there will be any further significant improvement in their medical condition. [7] I also noted that the basic position of the worker is that she had a history of back injury, which played a significant role in permanently aggravating an underlying back condition. This was submitted to have led to the worker s back surgery. In that regard, the ARO noted the following claim history: Summary of Worker's Claims: On July 29, 1989 the worker experienced low back pain after working a heavier caseload over the weekend. At the time the worker was 28 weeks pregnant. Diagnosis - lumbar strain. There was no lost time and claim was allowed for health care. On July 2, 1992 the worker injured her low back transferring a patient. The injury was reported the same day. Medical attention was sought on July 3, 1992 and she was diagnosed with a low back strain. The worker was off work for 3 days and then returned to modified work for 2 weeks, resuming her regular duties as of July 20, On March 22, 1994 the worker was lifting a patient up in bed and injured her right shoulder and right upper back. She was diagnosed with right bicep tendonitis and right shoulder/upper back strain. She fully recovered, returning to her regular work August 15, On July 31, 2001 the worker was bent over to change an IV, stood up and felt low back pain. This was her first shift back to regular work after performing modified work for a non work related issue. The worker was diagnosed with an acute low back strain. Entitlement was accepted and LOE benefits paid August 1-20, On July 7, 2004 the worker was pulling a G tube. The patient grabbed her left arm and pulled it. She was diagnosed with braxial plexus syndrome. Entitlement was accepted for no lost time. On June 23, 2006 the worker was transferring a patient from bed to stretcher with 4 staff, injuring her neck, low back and left shoulder. She was diagnosed with a neck and left shoulder strain. Entitlement was accepted for no lost time. On April 6, 2009 the worker reported an increase in low back pain with pain radiating down the left leg. No specific incident reported. She was diagnosed with acute/chronic low back pain.

4 Page: 3 Decision No. 2389/14 X-rays showed severe DDD at L5-S1 Claim was denied as there was no evidence of work related injury. On August 31, 2010 the worker reported that excessive bending/standing contributed to an increase in upper and low back pain. There was no diagnosis. A medial note indicates the worker was unable to work for medical reasons. The claim was denied as there was no evidence of a work related accident. On July 11, 2010 the worker claimed she injured her right neck and shoulder by turning her head. Entitlement was denied. On August 31, 2010 the worker reported excessive bending and standing contributed to an increase in upper and low back pain. Entitlement was denied. On March 9, 2011 the worker experienced pain in the left hip and left arm after she bent over and reached forward to take a patient's blood pressure. It was slightly busier than usual that day. The Form 8 provided a diagnosis of left hip pain, query bursitis. Entitlement was denied. [8] The worker also provided an affidavit dated August 22, She stated that she was a registered nurse from 1986 to 1992 for the accident employer. She stated she suffered back injuries in 1989 and 1992, and missed short amounts of time from work as a result. No accommodations were made for her injuries. [9] The worker stated she continued her nursing duties for the employer from 1992 to 2001, with her duties involving lifting patients. She stated she had episodes of back pain every few months between 1992 and She stated she used Vioxx and continued working with the exception of some brief periods of lost time. She stated her family doctor retired in 1994, and she attended walk-in clinics three times per year. However, she could not obtain the records for that time period. [10] The worker also stated that she worked part-time from 1992 to 1999 due to her back and child care, working 24 hours per week, and on night shifts. She returned to full-time duties in She stated she missed about 20 days from work in 2001 due to disabling pain caused by lifting a patient. She stated that since that time she missed a considerable number of days from work on account of her back and the subsequent surgery. She stated she now has permanent medical precautions at work. [11] I also noted the information in the ARO decision on file. The information confirmed a history of back problems, injury, and the more physical nature of the worker s duties. The patient lifting and transferring aspect of the job was emphasized by the worker in her prior testimony. She also confirmed her more recent restrictions on work duties and since her surgery, such as no lifting over 20 pounds.

5 Page: 4 Decision No. 2389/14 [12] The ARO also noted assessments conducted by Dr. English, orthopaedic surgeon, and an ergonomic report from the Health Recovery Group. However, I noted that the reports were not dealt with in any depth by the ARO. It was however noted by the ARO that the worker underwent surgical right L4-5 and L5-S1 posterolateral decompression, discotomy and foraminotomy in The work-related history leading to the back surgery was also noted. [13] The worker evidently suffered a back injury in July of 1989, a back strain while transferring a patient. There was no lost time from work. The ARO also emphasized that x-rays in 1990 were normal. A further low back strain was noted from 1992, again from transferring a patient. The worker was off work for two days, then two weeks of modified work before returning to regular duties. X-rays were again noted to be normal in The remainder of the history involving the low back was noted above. [14] However, the ARO concluded that over the next 9 years there was no evidence of further back injury or need for medical attention until At that time, the worker was bending and then straightened and experienced low back pain. This was at a time when she had just returned from non-work related surgery, and she was off work for three weeks. [15] The ARO also noted an April 2001 x-ray that showed mild DDD in the lumbar and cervical spine. It was determined that there was evidence of degenerative changes in the lumbar spine. [16] The ARO also noted the non-work related episode of back pain the worker experienced in the shower at home in A subsequent MRI in October of 2002 noted L4-5 disc protrusion, L5-S1 larger posterior central disc protrusion and multi-level DDD. A subsequent myelogram and CT scan in 2003 confirmed a central disc herniation at L4-5. [17] It was concluded that there were two minor strains in 1989 and 1992, with a substantial gap in the medical information for some 9 years. The ARO found that there was a record of degenerative difficulties in the worker s low back, along with low back pain in non-work related daily activities that would not normally cause such pain without degenerative problems. The ARO therefore denied the worker s objection, finding that the work related injuries did not contribute to what is essentially an age related degenerative condition that has ultimately required surgery. [18] However, I have noted the worker s testimony regarding the nature of her back strains, and in particular the heavier nature of her work duties over many years. That includes the time period from 1992 to 2001, after which the worker s back became a particular difficulty leading to surgery. Of course, one cannot ignore the information cited by the ARO regarding degenerative changes to the spine, which evidently played a role in the onset of the worker s back condition. That said, the prior injuries and work related duties over a number of years need not have been the sole basis for the worker s low back injury. They need only have been a significant contributing factor to what is clearly an ongoing and permanent low back condition. [19] In that regard, I noted the ergonomic and specialist reporting submitted by the worker s counsel. I note first that the reports were provided in July 2012, at which time the worker was only 52 years of age. The worker therefore had her 2003 surgery when she was in her early 40 s, and the majority of the circumstances that are claimed to be related to the worker s back difficulties evidently arose when she was in her late 20 s and throughout her 30 s. The worker was therefore relatively young in age when she initially injured her back and began to experience

6 Page: 5 Decision No. 2389/14 low back problems. Therefore, I did not find that age related degenerative difficulties were responsible for the worker s low back condition to the extent that the work injuries and duties were rendered insignificant. [20] It was also ergonomically concluded that several aspects of the worker s regular employment, such as manual patient transfer, posed ergonomic risk of injury. I noted the conclusions of the ergonomist in July 2012 that a number of tasks particular to this worker s job, including manual patient transfers and lowering patients, were associated with a significant risk of injury, and in need of redesign. The report did not comment on medical causation in regard to the worker s back injury. However, the analysis of the registered nursing positions that were specifically held by this worker (Adult and Elder Health Service and Rehab/ALC Team lead), indicated several ergonomic areas of risk for injury to the upper extremity. Such findings are also consistent with the worker s affidavit and prior testimony regarding the physical demands of the worker s job over the course of her employment with the accident employer. [21] I also noted the conclusion from Dr. English in July 2012, and after providing a very thorough report, that repeated work injuries significantly contributed to the compromise of the worker s lumbar spine, leading to her current pain and work restrictions. The summary from the doctor s report stated in part: This 52 year old lady has a long history of lower back problems starting in 1989 and then developing problems in the cervical spine in She has had recurrent episodes where she had minor bending and lifting activities at work, which strained her back and prevented her from working. She did have a motor vehicle accident in 1989 when she was on maternity leave, but the majority of her injuries, which date back to 11 different Workplace Safety and Insurance Board claims, have caused her significant difficulty and significant job modifications limiting her ability to function. [22] Dr. English continued by noting the worker s surgery and resulting functional limitations that have impacted the worker at work and in her home life. She was diagnosed with chronic low back pain with nerve root irritation and sciatica; lumbar radiculopathy associated with chronic scar tissue post-surgery; and, myofascial strain to cervical spine with degenerative difficulties. Again, I do not ignore the degenerative aspect of the worker s condition. That said, the doctor concluded that the worker has recurrent episodes of pain with nerve root irritation in the cervical and lumbar spine related to chronic, ongoing lower back problems and recurrent repetitive work-related injuries to her spine. [23] Dr. English also provided what I found to be thorough responses to questions posed regarding the nature and origin of the worker s low back condition. While I have not cited all the responses, I note that the doctor addressed the worker s restrictions and found that she has reached maximum medical recovery (MMR) without a prognosis for a full recovery. The doctor concluded that the worker has a permanent impairment in her back function with radicular symptoms. The report also again addressed the relationship between the ongoing back condition and the worker s injuries and subsequent duties. Put succinctly, the doctor concluded that the worker s injuries and duties have aggravated her long-term symptoms in the lower back. [24] In summary, I have noted the findings on file of degenerative difficulties and non-work related episodes of back problems. However, I also noted the worker s statement, the record of compensable back injuries, and notably the ergonomic and specialist reporting on file from Dr. English. In my view, and on a balance of probabilities, I find it is more likely than not that the worker s injuries and subsequent job demands were a significant contributing factor to the

7 Page: 6 Decision No. 2389/14 aggravation of her underlying low back condition. It is also evident the worker has reached MMR and it is not likely that there will be any further significant improvement in her medical condition. Therefore, I find that the worker is entitled to benefits for a permanent low back impairment, and a NEL assessment in that regard.

8 Page: 7 Decision No. 2389/14 DISPOSITION [25] The appeal is allowed. [26] The worker is entitled to benefits for a permanent low back impairment and a NEL assessment in that regard. DATED: March 30, 2015 SIGNED: A.G. Baker