WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1065/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1065/15 BEFORE: S. Netten: Vice-Chair HEARING: May 26, 2015 at Toronto Oral DATE OF DECISION: July 22, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1651 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated January 31, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Oliverio, Paralegal R. Orrico, Paralegal J. Blanes, Spanish 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. 1065/15 REASONS (i) Issue [1] The issue under appeal is the recognition of a permanent impairment, and corresponding entitlement to a non-economic loss (NEL) award, for the low back (which includes symptoms in the right hip) and for the left foot. [2] The worker s representative confirmed at the hearing of this appeal that the worker is not pursuing permanent impairment for any other areas of injury. (ii) Overview [3] The worker, a school custodian, slipped and fell down six or seven steps at work on November 27, The diagnoses were a back sprain and a left toe contusion. Following a graduated return to work program, the worker resumed her regular duties, full-time, by late February In November 2009 the worker claimed ongoing back problems, and the Board accepted in November 2010 that her symptoms were the result of her workplace accident. While the decision letter did not specify which symptoms, the Recurrence Case Manager s memorandum of November 3, 2010 underlying the decision letter noted medical continuity for the upper and lower back. Full and then partial loss of earnings (LOE) benefits, from November 25, 2009 to September 16, 2010 (when the worker had increased her hours to full-time), were granted on appeal in November [4] The worker s December 2011 request for recognition of a permanent low back impairment was denied by a Case Manager on May 3, 2012, on the basis that the worker s back condition in 2010 was similar to her pre-accident condition. Permanent impairment of all other areas of entitlement was also denied. [5] The worker s objection to this decision was denied by an Appeals Resolution Officer on January 31, [6] The worker appeals to the Tribunal, taking the position that the evidence establishes a permanent impairment with permanent restrictions, warranting a NEL award. The employer takes the position that the worker had a progressive pre-existing condition responsible for the ongoing impairment; however, in the event that a permanent impairment is recognized, he seeks a reduction in the NEL quantum associated with the pre-existing condition. (iii) Law and policy [7] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. [8] Pursuant to section 46, a worker is entitled to compensation for non-economic loss if his or her injury results in permanent impairment. As defined in section 2(1), a permanent impairment includes a physical or functional abnormality or loss which continues to exist after maximum medical recovery (MMR). [9] In this appeal, the Case Manager noted that entitlement for the low back was granted on an aggravation basis, in light of previous back problems. Board policy on entitlement on an aggravation basis (Operational Policy Manual Document No ) states:

3 Page: 2 Decision No. 1065/15 In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. A pre-accident state is the worker's level of impairment and work capacity prior to the work-related injury. Permanent impairment In some cases, workers never return to the pre-accident state. If there is a permanent worsening of the pre-accident impairment, the decision-maker may determine that the work-related injury/illness has permanently aggravated the pre-accident impairment. If medical evidence confirms that the work-related injury/illness permanently increased the worker's pre-accident impairment, the worker may be entitled to a non-economic loss benefit. [10] As such, whether entitlement is granted on an aggravation basis or not, recognition of a compensable permanent impairment always requires that the impairment be causally linked to the workplace injuries. To the extent that a pre-existing condition has worsened over time, the permanent worsening must have resulted from the compensable injury. In such situations, the Tribunal frequently asks whether the compensable injury changed the natural course of the underlying condition. There is no entitlement for a permanent worsening resulting from the progression of a pre-existing condition in which the compensable injury did not play a substantial role. [11] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Prior to the workplace accident [12] In a prior claim, the worker fractured the left 5 th metatarsal, mid-shaft, in September The worker s foot was casted, followed by physiotherapy. X-rays showed the fracture as healing in November 2000, with no further medical reports on file. However, the worker testified that this injury had never resolved. [13] Radiology reports of August 17, 2005 indicate that the lumbosacral and thoracic spines were unremarkable. A CT scan of the thoracic spine of March 2, 2006 noted a clinical history of numbness from T4 to T6, and identified mild degenerative disc disease (DDD) and a tiny right paracentral osteophyte at T6. X-rays of the lumbosacral spine dated September 21, 2007 noted a previous study in January 2006, and found DDD with mild osteophyte formation at L4-5. [14] The worker s family doctor, Dr. L. Sabetti, summarized the history (along with the imaging cited above) in a letter to the worker s representative dated January 31, 2011: I became [the worker s] family physician on August 11, 2004 On December 1, 2006, she came into the office with lumbar flexion decreased by approximately 50% on examination. Flexeril 10 mg po bid and Naproxen E. 500 mg po bid were prescribed for lumbar strain and she was asked to followed [sic] up in two weeks if symptoms persisted.

4 Page: 3 Decision No. 1065/15 I saw her again on October 2, 2007 for family related issues at which time she also stated that she was suffering from upper back ache and a diagnosis of mechanical back pain was made. She was advised to continue Advil as needed [15] In testimony, the worker described her pre-accident condition as a minor pain in my back, and stated that taking medication allowed her to do her job. She stated that there was no known cause, and she did not receive treatment. The worker agreed that she had been sent for medical imaging of her back, and stated that this was perhaps because she had been complaining about the pain. She testified that she took Naproxen and/or Flexeril prior to the workplace injury but only as needed, for a day or several days at a time. When working as a part-time school attendant she did not lose any time from work, but once she became a full-time custodian in 2006 she did use sick days, once or twice, for back pain. Her regular custodial duties included such things as sweeping and mopping floors, wiping desks and chalkboards, collecting garbage, steering the autoscrubber, outdoor maintenance (snow, leaves, grass), moving furniture and buffing floors in the summer. (v) Following the workplace accident of November 27, 2007 [16] Two days after the slip and fall at work, Dr. Sabetti s colleague, Dr. C. Ang diagnosed a back sprain and left toe contusion on November 29, A Physiotherapy Assessment Report of December 1, 2007 noted pain in the thoracolumbar area and bruising of the fourth and fifth left toes; the working diagnosis was right paravertebral spasm. On January 17, 2008, Dr. Ang provided a diagnosis of lumbar strain, for which the worker received physiotherapy and massage therapy. [17] As outlined in file correspondence, the worker returned to modified duties on January 28, 2008, increasing to full time regular duties by February 25, [18] On February 12, 2008, physiatrist Dr. L. Chizen found reduced range of motion in the back, with full hip movement and no referred discomfort, and no neurological deficits or signs of disc herniation or central stenosis. [19] Dr. Ang reported improved mobility and less back pain, with continued complaints, on February 21, [20] References to right hip pain appear in the chart notes beginning in May 2009, with a three-month onset. [21] Lumbar spine and right hip x-rays of May 25, 2009 were unremarkable, as were lumbar and thoracic spine x-rays of August 27, [22] Dr. Sabetti provided a note dated November 9, 2009 that the worker was experiencing ongoing/chronic back strain which was aggravated by repetitive bending, pulling, pushing and lifting at work. A Functional Abilities Form (FAF) completed that day similarly proposed sedentary duties due to chronic low back/r hip pain which is exacerbated by her custodial duties. As noted above, a recurrence was eventually accepted by the Board. [23] Dr. F. Kahn assessed the worker on December 2, The worker reported to him having had no symptoms prior to the 2007 accident, after which her pain had become severe. Dr. Kahn found range of lumbar motion to be 60% of normal, with significant tenderness at L4-5 and S1, in addition to cervical spine limitations, and no neurological deficits. He diagnosed

5 Page: 4 Decision No. 1065/15 myofascitis of the cervical, thoracic and lumbar spine, and started the worker on a course of laser therapy. [24] A CT scan of December 10, 2009 found very mild bulging of the annuli at L4-5 and L5-S1, with no evidence of disc herniation or spinal stenosis. [25] Dr. Kahn recommended part-time light duties, beginning on February 1, It appears that the worker returned to work on February 5, [26] The Board referred the worker for a multidisciplinary assessment, which took place on May 25, Orthopedic surgeon Dr. H. Weinberg and physiotherapist C. Case noted decreased range of motion, full straight leg raising and symmetrical reflexes. For the back, a strain was diagnosed, with a prognosis of gradual improvement, although it is difficult to provide a time frame. There were separate diagnoses for neck strain, trochanteric bursitis, and patellofemoral irritation. Dr. Weinberg concluded: The importance of exercise was stressed to [the worker], and she was reassured that her injuries were not serious or permanent, and that she should gradually get better She would likely benefit by strengthening exercises for the neck and back She should continue with graduated hours and modified duties at work, and hopefully she can build up to full hours and full duties over 8 to 10 weeks. [27] The Summary Report noted that full recovery was anticipated for the low back strain, and that temporary restrictions were required on lifting, repetitive bending, pushing/pulling, and walking as tolerated, with a graduated return to full working hours. [28] On June 1, 2010, chiropractor Dr. J. Tran diagnosed cervical, thoracic, lumbar and SI joint irritation with associated myofascial pain, and recommended physiotherapy and massage therapy. [29] An MRI of the lumbar spine, dated June 11, 2010, found mild broad-based central disc protrusions at L4-5 and L5-S1 with no compressive effect on the nerve roots or stenosis, as well as degenerative arthropathy of the facet joints. [30] Orthopedic surgeon Dr. H. Cheah assessed the worker on July 27, He noted imaging findings of minimal degenerative changes and mild arthritic changes with no compressive lesions, and a history of low back pain radiating to the right buttock. There was no indication for surgery. Dr. Cheah recommended conservative management, including active strengthening and an increase of work hours. [31] A note from Dr. Sabetti dated August 18, 2010 said that the worker would like to return to 8 hours/day light duties for 1 month. On September 15, 2010 she wrote that the worker may return to regular custodial duties on a trial basis for 4 weeks. If tolerated, she can continue. [32] The worker testified that she had slowly worked up to her regular duties. She did not immediately resume certain duties, such as mopping, using the buffer, or shoveling snow. The worker further stated that she had successfully applied for a custodial position at a closer school in 2010, and resumed all regular duties when at the new school. She confirmed that there was no discussion or agreement, either formal or informal, about performing different duties from other custodians. She occasionally traded duties with her co-workers. She noted that she takes sick days for her back at times, perhaps every month or two. She felt that it took longer to get her work done than before, though still within regular shift hours, and stated that if she has pain at work then she has to sit down.

6 Page: 5 Decision No. 1065/15 [33] Dr. Sabetti s letter to the worker s representative dated January 31, 2011 concluded as follows: [The worker] is currently working. She is taking Elavil 1 20 mg po qhs and Immovane mg op od for pain management and sleep maintenance. On September 15, 2010 she stated her pain persists but she was coping better. In summary, [the worker] appears to be suffering from mechanical back pain which could be aggravated by the repetitive lifting, bending, pushing, and pulling required by her custodial duties. She had evidence of pre-existing recurring mechanical back pain and work related stressors, however a fall down six steps certainly could have aggravated her condition. Avoidance of repetitive bending, pushing, pulling or lifting of >10 lb would likely be beneficial to [the worker], however, as I am not an orthopaedic specialist, I cannot comment further [34] On February 16, 2015, Dr. Sabetti wrote to the worker s representative that the worker continues to suffer from right low back pain, having reported symptoms in May, July and October 2014, and was coping with her job duties by trying to exercise and taking medications (Elavil and anti-inflammatory Vimovo). She noted chronic bilateral foot pain and plantar fasciitis since January 2014, for which orthotics were recommended. Dr. Sabetti also outlined new incidents including a fall while shoveling snow at work in December 2014, and another fall in January Dr. Sabetti had then diagnosed a lumbar strain, among other injuries. The current back strain was expected to improve to the pre-2015 state following physiotherapy, but the ongoing symptoms were chronic and due to repetitive strain and the nature of her employment. [35] In testimony, the worker explained that she was taking four medications permanently : Naproxen (a non-steroidal anti-inflammatory drug), Elavil (an antidepressant which the worker stated was for fibromyalgia), Tecta (to reduce stomach acid) and Dexilant (for gastroesophageal reflux disease). However, she also stated that, because of side effects, she now only takes Naproxen when the pain is strong, and otherwise she takes over-the-counter Tylenol. The worker stated that she had been diagnosed with fibromyalgia about three years previously, for which she has muscle pain everywhere in her body. She confirmed also having ongoing pain under her feet for which she used orthotics, as well as mid and low back pain, right hip pain, and right knee pain due to fluid between the knee and kneecap. She sees her family doctor monthly for prescription refills, but has had no further investigations or active treatment for the back or toes. (vi) The left foot [36] With respect to the left foot, the compensable injury in this claim consisted of bruising to the two smallest toes. Medical evidence establishes a remote fracture of the 5 th metatarsal mid-shaft and recent bilateral plantar fasciitis, both of which involve different parts of the foot than the 2007 bruising. The worker described ongoing pain, but referred to the bottom of the foot which is associated with plantar fasciitis. There is no indication that the worker suffered anything more than a contusion in 2007, and there is no medical evidence suggestive of a continuing physical or functional abnormality or loss to the left foot associated with the An anti-depressant For insomnia

7 Page: 6 Decision No. 1065/15 fall. As such, I find that the worker did not sustain a permanent left foot impairment in this claim. (vii) The low back [37] I find the medical evidence and the worker s testimony to be generally consistent with Dr. Sabetti s summary of the worker s organic low back condition: she has had, since 2006 or earlier, underlying mechanical back pain which is aggravated by stressors such as heavy work. [38] In addition, the worker had, by June 2010, two small disc herniations and facet arthritis. The worker s pathology was summarized by orthopedic surgeon Dr. Cheah as minimal or mild degenerative and arthritic changes. The worker was then 59 years old, an age when such changes would not be unexpected, as set out in the Tribunal s Medical Discussion Paper on Back Pain. 3 Moreover, there is no suggestion medically or temporally that the 2010 findings on imaging were the result of the 2007 workplace accident, rather than a progression of age-related degenerative disc disease. The worker was also diagnosed with fibromyalgia some years after the workplace accident, affecting the low back and multiple areas of the body. [39] The worker s entitlement is for an aggravation of underlying mechanical back pain. By September 2010, the worker had finished active treatment, returned to full-time regular duties, and, according to her doctor in January 2011, was not taking painkillers or anti-inflammatory drugs. The worker has indicated that she was put permanently on Naproxen, though she has recently switched to Tylenol as her primary pain medication. [40] As such, I find that the worker returned to her pre-accident work capacity, as a full-time custodian. I find further that her level of organic impairment, being recurrent mechanical back pain controlled by medications and subject to flare-ups with activity, is similar to that preaccident. [41] To the extent that the worker may now have more subjective pain and require greater medication use to maintain her full-time custodial occupation, the evidence does not support a finding that this progression is likely attributable to the work injury. Dr. Sabetti wrote that the workplace accident could have aggravated the pre-existing condition (which has been accepted by the Board as the basis for entitlement), but she provided no opinion as to whether this aggravation changed the course of the underlying condition or constituted a permanent aggravation. Dr. Sabetti s description of the worker s condition was the same both pre- and post-accident; the worker had and still has mechanical back pain, being pain associated with mechanical stresses upon the vertebral structures. Moreover, the worker has non-compensable mild degenerative changes and facet arthritis in the low back which may or may not contribute to her symptomology, as well as fibromyalgia which involves widespread pain affecting, among other areas, the worker s low back. I find therefore, on a balance of probabilities, that the worker has not sustained a permanent impairment or a permanent aggravation attributable to the workplace accident. (viii) Conclusion [42] As I have not recognized a permanent compensable impairment of either the left foot or low back, there is no entitlement to a NEL award in this claim. 3 Prepared by orthopedic surgeon Dr. W. Harris and neurosurgeon Dr. J. Fleming in March 1997, revised February 2003

8 Page: 7 Decision No. 1065/15 DISPOSITION [43] The appeal is denied. DATED: July 22, 2015 SIGNED: S. Netten