WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 414/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 414/16 BEFORE: I.R. Mackenzie : Vice-Chair E. Tracey : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: February 16, 2016 at Toronto Oral DATE OF DECISION: July 7, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1803 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated August 29, 2013 APPEARANCES: For the worker: For the employer: Interpreter: A. Nicolini, Lawyer Not participating S. Kangat, Tamil 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. 414/16 REASONS (i) Issues [1] The worker is claiming entitlement for a disc herniation of the back at L4-L5, recognition of a permanent impairment (PI) of the low back, and entitlement to loss of earnings (LOE) benefits from June 18, (ii) Context of the appeal [2] The now 61-year old worker was a packer at a dry foods plant. She had an accident when placing a box on a skid, resulting in lower back pain, on April 11, [3] The Workplace Safety and Insurance Board (WSIB or the Board ) granted entitlement for low back strain. An MRI of June 15, 2012 showed degenerative disc disease and a disc herniation at L4-5. The Case Manger (CM) determined that the disc herniation was not compatible with the accident history. The WSIB put a return to work (RTW) plan in place. The worker was unable to continue in the plan after May 14, 2012 due to back pain. Partial LOE benefits continued until June 18, 2012 at the amount that the worker would have received if she had maintained the RTW plan. [4] The CM advised the worker in a letter of March 27, 2013 that the allowed back strain was fully expected to resolve by June 18, 2012 and that any ongoing symptoms were related to the degenerative disc disease and the pre-existing disc herniation. [5] The ARO concluded that there was no strain or awkward movement to support a disc herniation. The ARO also concluded that there was no permanent impairment. (iii) Law and policy [6] The Workplace Safety and Insurance Act, 1997 (the WSIA ) applies to this appeal. Specifically, sections 13, 43 and 46 of the WSIA govern the worker s entitlement in this case. [7] The WSIB stated that the following policies would apply to this appeal: Initial Entitlement; LOE Benefits (benefits as of July 15, 2011); NEL Entitlement; Decision Making/Benefit of Doubt/Merits and Justice. (iv) Summary of evidence [8] The now 61-year old worker was a packer at a dry food plant. She came to Canada in The worker has a grade 12 education. The worker started working for the accident employer in [9] Dr. R. Loganathan advised the WSIB CM that the worker reported back pain in He prescribed Naproxen. The clinical notes at the time also refer to the possible contribution of a urinary infection to the back pain. He wrote that he did not see the worker for back pain again until after the accident of April 11, [10] On April 11, 2012, the worker was placing a box weighing approximately six pounds on a skid and could not rise back up (Worker s Report of Injury, Form 6). The Employer s Report of Injury (Form 7) states that the worker felt back pain in her lower back.

3 Page: 2 Decision No. 414/16 [11] In a telephone call to the worker on June 21, 2012, the CM reviewed the accident history with the worker. The CM reported in a memo the following description of the accident: She lifted 3 boxes in a row moving quickly by removing each box from waist height level then turning 360 degrees and putting the box low onto a skid which was approximately 6 inches from the floor. When she placed the third box on the skid she could not straighten up. [12] The worker testified that she performed the same duties with the accident employer from the beginning of her employment until the date of the accident. She testified that in April of 2012, she was packaging dry soup boxes. She estimated that the boxes with the boxes of dry soup in them weighed approximately six pounds. She was required to place two boxes at a time on skids that were three or four feet away from the conveyor belt. She had to bend to put the boxes on the skid and stack them to her height of approximately five feet. About two hours into her shift, the worker was stacking the boxes onto an empty skid. When she bent to put them on the skid she could not straighten her back. She testified that because of the pain she could not straighten up. She moved to another station on the conveyor belt where there was no bending required. She took a break from work shortly after for approximately a half-hour. She left work three hours early because of the back pain. [13] Dr. Loganathan provided a Health Professional s Report on April 12, 2012 with a diagnosis of mechanical back pain. [14] An MRI was taken on April 16, Mild degenerative changes at L2-3 and L3-4 were noted with otherwise normal lumbar spine and SI joints. [15] Dr. Loganathan provided a functional abilities form (FAF) on April 17, 2012 indicating that the worker was not physically able to return to work for three to seven days. The worker s chiropractor provided a report on the same date stating that the worker was having difficulty with prolonged standing, walking and bending. The chiropractor noted limitations in lifting, kneeling, bending/twisting and standing. [16] Dr. Loganathan provided an FAF on April 23, 2012 with the following restrictions: Standing of up to 2 hours No lifting from floor to waist Lifting from waist to shoulder of up to 5 kg Ladder climbing of 1 to 3 steps No bending/twisting of the back Able to use public transit No driving [17] The worker returned to work on April 25, 2012 and was given modified duties. However, she experienced pain radiating into her leg and left work after 2.5 hours. [18] On May 1, 2012, Dr. Loganathan provided an FAF. He indicated that the worker had full abilities in standing and ladder climbing. He maintained the restriction of no lifting from floor to waist. Lifting from waist to shoulder was limited to 2 kg. She was also restricted from bending or twisting of the back. He cleared her for driving. He recommended modified hours of work of between three and four hours.

4 Page: 3 Decision No. 414/16 [19] On May 5, 2012, Dr. Loganathan noted that the worker now had left knee pain and swelling. He set out the following restrictions: Walking of up to 100 metres Standing of between 15 to 30 minutes Lifting from floor to waist of up to 2 kg Lifting from waist to shoulder of between 3-4 kg No bending/twisting of back [20] The worker had an x-ray of the left knee on May 8, 2012, which noted minimal degenerative changes in the medial tibio-femoral and patella-femoral compartments. Also noted was probable demineralization of the bones. [21] The worker met with the employer and the WSIB Return to Work Specialist (RTWS) on May 11, The RTWS noted that the following restrictions had been accepted for the worker: Limit bending/twisting of the spine Standing of 2 hours Lifting waist to shoulder up to 5 kg No lifting floor to waist Ladder climbing 1to 3 steps Ability to take public transit [22] The RTWS noted that the worker was currently working as a spare worker, assisting workers on the production line. She was also doing general housekeeping. The worker was able to self-pace her activities and take micro-breaks (five minutes every 30 minutes). In addition, she had no production quota. A graduated return to full hours was set out in the RTWS plan, starting at five hours, increasing to eight hours (a full shift) by June 18, [23] On May 14, 2012, the worker left work early due to radiating leg pain. She went to the emergency department at the local hospital and was diagnosed with sciatica. Also noted in the emergency record was pinching and paresthesia to the left leg. An MRI was ordered. The emergency doctor noted that the worker could not return to work for seven days. In an FAF completed by the physician it is noted that the worker was not able to move because of back pain. [24] Dr. Loganathan provided an FAF on May 22, 2012 stating that the worker was not physically able to return to work. He did not provide a timeframe for this assessment. He provided the same assessment on June 4, [25] The worker s chiropractor provided a report on June 12, 2012 indicating that the worker was unable to walk, stand or bend. She also noted the worker had difficulty performing activities of daily living. She noted that a complicating factor in the recovery was disc involvement. [26] The worker had an MRI on June 15, The report noted broad based disc bulges at L1-L2, L2-L3 and L3-L4. At L4-5 there was a left paracentral disc herniation. The impression recorded was degenerative changes and L4-L5 disc herniation.

5 Page: 4 Decision No. 414/16 [27] Dr. Loganathan provided an FAF on June 18, 2012 stating that the worker was physically unable to return to work, with no specified timeframe. [28] The worker spoke to the CM on June 21, 2012 and told her that she had radiating numbness down her left leg and could not stand for more than five minutes. She also told the CM that she was using a cane. [29] Dr. Loganathan provided a note to the CM on or about June 22, 2012 stating that the worker s back pain started as a result of the April 11, 2012 injury. He provided a report on July 23, 2012 with a new diagnosis of nerve root impingement. He provided further FAFs on July 31 and August 28, 2012 stating that the worker was physically unable to work. [30] The worker was seen by Dr. G.D. Gale, a pain specialist, on August 4, Dr. Gale diagnosed a lumbosacral sprain and radicular symptoms on the left L4, L5 and S1. He provided a report on September 12, 2012 stating that the worker was not able to return to work because of back and leg pain. [31] Dr. U. Ramanathan, Neurologist, provided a report in September of 2012 stating that the worker required ongoing assessment at a pain clinic as well as ongoing therapy. He stated that a decision on her return to work would have to wait for a few months, depending on her recovery. [32] Dr. F. Pirouzmand performed a decompression and discotomy at L4-L5 on January 16, The post-operative diagnosis was a left L4-L5 disc herniation in the context of a congenital narrow spinal canal. [33] Dr. F. Pirouzmand saw the patient four weeks after the surgery (February 21, 2013). He noted that the worker still had increasing back pain mostly after prolonged sitting. Her left leg pain had improved. He also noted that she had stopped using a cane. On examination, he noted that the worker was not in pain and was able to ambulate well with a straight gait. He also noted no weakness or numbness. He concluded that the worker could gradually increase her activities and start active physiotherapy over the following two to three weeks. [34] The worker s family doctor, Dr. T.A. Masih, examined the worker on April 12, Dr. Masih stated that the worker required physiotherapy and was not able to work at this time. He noted that her range of motion was restricted and there was slight tenderness. He reported at a subsequent visit on May 17, 2013 that the worker was feeling very anxious about getting better and was reporting pain. On a visit to Dr. Masih in June of 2013, the worker did not report any back pain. In a visit on September 13, 2013, the worker reported back pain for 10 days. She reported that the pain was constant but did not radiate. Dr. Masih queried whether there was a muscle spasm. On September 23, 2013 the worker reported that the pain was better, that physiotherapy had helped and she was walking better. Dr. Masih prescribed a muscle relaxant. On October 25, 2013, he observed that her back and range of motion were normal. [35] The worker testified that she was healthy prior to the work accident and was able to do all the housework and cooking. She testified that she had no lost time or work restrictions prior to her injury of April 11, Until her surgery in January of 2013, the worker used a cane for walking. She was also not able to do any housework or cooking. [36] The worker testified that she used a cane for approximately one or two months after her surgery. She testified that she no longer has as severe pain in her lower back, although she still has some pain. She testified that she was now able to do small things. She is able to cook, but not every day. Her husband continues to do the laundry and the cleaning. She testified that the

6 Page: 5 Decision No. 414/16 radiating pain into her leg is still present. She has not worked since May of She testified that it is very difficult for her to bend. She cannot stand and cannot sit for long without back pain. She testified that she can only do light lifting and was not able to return to any kind of work. (v) Submissions [37] The worker s counsel submitted that the worker had no history of back problems prior to the accident. The worker explained that the reference to a back issue in October of 2010 related to a urinary infection and there are no further references to the back in the medical documentation on file. The worker also testified that she had not had any problems with her back prior to April Counsel submitted that the worker was a credible witness. [38] Counsel submitted that the work duties of the worker were fast-paced and required bending. He also submitted that the medical reports supported the causal connection between the diagnosis and the work performed by the worker. Counsel submitted that there was no evidence of a pre-existing impairment and the worker testified that she had performed all of the duties of her position for 13 years without incident. Counsel also submitted that the worker had demonstrated continuity of the pain from April 2012 onwards. [39] Counsel submitted that it was clear that the injury of April 2012 either severely aggravated a latent condition or caused it. He submitted that initial and ongoing entitlement should be granted. [40] Counsel submitted that there was also a permanent impairment of the back. He submitted that the evidence showed that there was a functional abnormality or loss resulting from the injury. [41] Counsel also submitted that the worker should receive full LOE benefits from June of 2012 until the age of 65. He submitted that it was the consensus of the medical opinions that the worker was not able to work. (vi) Analysis [42] The worker is seeking entitlement for a disc herniation, arising out of an accident on April 12, She is also requesting full LOE benefits from May of 2011 until the age of 65. In addition, she is requesting a finding of a permanent impairment (PI) of the lower back. For the reasons set out in this section, the Panel has determined that the worker has entitlement for a disc herniation. We have also determined that she is entitled to full LOE benefits until September 23, 2013, with the issue of further LOE benefits from September 23, 2013 returned to the WSIB for determination. The Panel also finds that the worker has a permanent impairment of the lower back (disc herniation) and is therefore entitled to a NEL assessment. (a) Entitlement for disc herniation [43] The worker was injured at work and was granted entitlement for the low back. The worker had reported a previous incident of back pain in 2010 that had resolved by the time of the accident. There is no evidence of a pre-existing disc herniation. Dr. Loganathan s opinion was that the worker s back condition arose out of the work accident. The Panel agrees, on a balance of probabilities, that the disc herniation was a result of the accident.

7 Page: 6 Decision No. 414/16 (b) Permanent Impairment [44] Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. The WSIA defines impairment as a physical or functional abnormality or loss resulting from an injury (subsection 2(1)). It defines permanent impairment as impairment that continues to exist after the worker reaches maximum medical recovery (MMR). OPM Document No , Determining Maximum Medical Recovery (MMR) states that a worker reaches MMR when she has reached a plateau in recovery and it is not likely that there will be any further significant improvement. [45] OPM Document No sets out the requirements for the WSIB decision maker: To determine that a permanent impairment exists, the decision-maker must confirm that MMR has been reached; evidence of ongoing impairment exists; and the ongoing impairment is a result of the work-related injury/disease. [46] Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence. The policy sets out the following considerations: a physical abnormality to be a change to or damage to a body part or organ system; a physical loss to be a loss of some or all of a body part or organ system; a functional abnormality to be a malfunction of a body part or organ system; a functional loss to be a loss of some or all of the functioning of a body part or organ system; a disfigurement to be an altered or abnormal appearance such as an alteration of color, shape, structure, or a combination of these, and psychological damage to be the loss of or abnormal psychological functioning. [47] Once an ongoing impairment has been found, the decision-maker is then required to confirm that the ongoing impairment is work-related by considering (OPM Document No ): whether the current diagnosis is the same as or compatible with the initial workrelated injury/disease diagnosis; whether the clinical evidence of impairment is related to the current diagnosis; and whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment. [48] If the work-related injury/disease and a pre-existing condition or non-work-related factors are both contributing to the degree of total impairment to the area, the impairment attributable to the work-related injury/disease is determined. [49] The worker was diagnosed with a disc herniation, as well as degenerative disc disease. The Panel has concluded that the disc herniation was a result of the workplace accident. The worker had surgery to repair the disc herniation. The worker continues to have some impairment after the surgery. Accordingly, the Panel finds that the worker has a PI of the low back.

8 Page: 7 Decision No. 414/16 [50] The worker is therefore entitled to a NEL assessment of the lower back. (c) LOE benefits [51] The worker stopped working on May 14, 2012 and received partial LOE up until June 18, The worker is requesting full LOE benefits from May 14, 2012 until age 65. [52] The medical evidence in the case record supports a finding that the worker was not able to continue working until over six months after her surgery. Dr. Pirouzmand examined the worker after her surgery on February 21, 2013 and observed that the worker was no longer in pain and had no numbness. He referred the worker to her family physician for follow-up. The worker reported back pain to Dr. Masih, although by September 23, 2013 she reported that the pain was better and that she was walking better. [53] The Panel concludes that the worker partially recovered and was able to work by September 23, Accordingly, the worker is entitled to full LOE benefits from May 14, 2012 until September 23, [54] The issue of further entitlement to LOE benefits after September 23, 2013 is referred back to the WSIB for determination.

9 Page: 8 Decision No. 414/16 DISPOSITION [55] The appeal is allowed in part, as follows: 1. The worker has entitlement for a disc herniation; 2. The worker has a permanent impairment of the lower back and is entitled to a NEL assessment; 3. The worker is entitled to full LOE benefits from May 14, 2012 until September 23, 2013; and 4. The issue of further entitlement to LOE benefits after September 23, 2013 is referred back to the WSIB for determination, subject to the usual rights of appeal. DATED: July 7, 2016 SIGNED: I.R. Mackenzie, E. Tracey, M. Ferrari