WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 203/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 203/08 BEFORE: A. T. Patterson: Vice-Chair M. Christie: Member Representative of Employers A. Grande: Member Representative of Workers HEARING: January 21, 2008 at Toronto Oral DATE OF DECISION: February 11, 2008 NEUTRAL CITATION: 2008 ONWSIAT 407 DECISION UNDER APPEAL: WSIB ARO decision dated November 9, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Chris Topple, Consultant Did not participate Margaret Kowalczyk, Polish 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. 203/08 REASONS (i) Introduction [1] The worker, a long-haul truck driver, maintains that an incident at work on August 28, 2004, is responsible for his ongoing back condition. [2] The Board denied initial entitlement on the basis that there was no causal relationship between the work accident and the injury. The Board noted that the worker had a pre-existing condition, a herniated disc, and that the worker suffered a flare-up of that condition on August 28, [3] The worker appeals to the Tribunal for a determination on the issues of initial entitlement and entitlement to loss of earnings (LOE) benefits. [4] The accident employer, although duly notified of the proceedings, chose not to participate in the appeal. (ii) Background [5] The now 47-year old worker began working as a long-haul truck driver in [6] The worker testified that prior to beginning work with the first trucking company he had been seen by that company s doctor who determined that he was OK. [7] The worker testified that he felt a little bit of pain in the centre-left of his low back in The clinical notes of his family physician, Dr. Roman Fedyna, contain notations relating to back pain in notes for visits on June 7, 2002 and September 27, Dr. Fedyna referred the worker for x-rays which were taken on September 30, The x-ray report, prepared by Dr. Z. Strasberg, indicates mild scoliosis of the lumbar spine convexity to the left. Mild narrowing of the intervertebral disc space noted at L5-S1. [8] The worker s spine was imaged by CT scan on January 17, The CT scan report, prepared by Dr. Paul Hagen, summarized the findings in the following terms [m]oderate to severe encroachment on the left lateral recess (L5 root) at L4-L5 secondary to a probable disc protrusion as described above. The disc protrusion was described as at L4-L5, there is a moderate to severe disc protrusion into the left lateral recess. This results in moderate to severe encroachment on the left L5 nerve root. There is also mild to moderate encroachment/stenosis of the central canal, resulting from this disc protrusion. [9] On August 26, 2003, the worker attempted to uncouple a trailer by pulling on a pin which was stuck. On one of the attempts he felt a pain in his back and fell to the ground. The worker was off work for two weeks, after which he returned to his usual duties. This 2003 accident claim was allowed. [10] The worker testified that following the 2003 accident Dr. Fedyna taught him back exercises and told him he could continue to work as a truck driver but should stop every two hours and perform the exercises. The worker testified that the exercises took approximately fifteen minutes. The worker stated that it was impossible for him to comply with Dr. Fedyna s

3 Page: 2 Decision No. 203/08 suggestion as he was on strict delivery schedules. Late deliveries did not result in direct penalties but, rather, in fines levied against the owner of the truck who, in turn, could dismiss him for noncompliance with the delivery schedules. [11] The worker testified that his back continued to hurt him in an intermittent fashion, in his words one day was pain, one day OK after the 2003 accident but that he returned to work because he needed the money. He indicated that he asked the owner of the truck for jobs which involved lesser distances, and that this request was granted on occasion. The worker testified that he was more careful after the 2003 accident so as to avoid pain. [12] On July 2, 2004 a second CT scan of the worker s back was taken. The CT scan report, prepared by Dr. Aroop Rastogi, concluded the following: 1. There is a focal left posterior paramedian disc protrusion at the L4-L5 level. There is most certain impingement upon the traversing left nerve root. Disc material does appear to extend inferiorly raising the possibility for a sequestered or extruded disc and correlation with MRI is recommended. 2. There is an element of mild to moderate acquired spinal canal stenosis at L4-L5 level. This is on the basis of broad based generalized disc bulge, thickened ligamentum flavum and hypertrophy of the facet joints. 3. Broad based generalized disc bulge at the L3-L4 level. 4. Broad based generalized disc bulge at the L5-S1 level. [13] On August 16, 2004, the worker was seen by Dr. Farhad Pirouzmand, neurosurgeon, who prepared a report dated August 19, Dr. Pirouzmand s report indicates the following: Since [the 2003 accident] he has had fairly severe and chronic low back and left leg pain. Although his symptoms have been fluctuating in recent days, he has been experiencing more disabling symptoms. He usually takes Motrin to control his symptoms. He continued to work. His symptoms usually worsen with bending or lifting and improve with leaning on his right side. This patient has been experiencing unresolved intermittent left leg pain mostly consistent with L5 radiculopathy to his L4-5 lateral recess stenosis. He could potentially benefit from operative decompression at this level. [14] On August 28, 2004, after arriving in Edmonton after six days driving from Philadelphia, the worker was unhooking the trailer when he again felt pain in his low back. [15] He went to the emergency room of a hospital in Edmonton. The emergency record contained at page 95 of the Case Record indicates pain settled but may be exacer(bation?- this portion is illegible) he thinks because of truck driving, the diagnosis is exacerbation of sciatica. The emergency record contained at page 92 of the Case Record indicates sciatica exacerbation since Sat (driving X several days). This emergency record provides a diagnosis of acute exacerbation of lumbar disc protrusion. [16] On August 31, 2004, Dr. Anne Roche completed an Alberta Workers Compensation Board physician s report indicating recent drive from New Jersey to Vancouver to Edmonton (illegible) flareup of lumbar disc herniation, she noted that the worker was unable to drive to

4 Page: 3 Decision No. 203/08 Ontario and that he needed to fly back. Dr. Roche prescribed Flexeril and Tylenol #3 for the worker. [17] After the worker s return to Ontario he was referred by Dr. Fedyna to a physiotherapist, Dr. Mlodek Witt. The physiotherapy assessment report, dated September 13, 2004, records the injury history as On August 28, 2004, pt was trying to uncoupling (sic) trailer from his truck: he pulled metal (illegible) hard ( ). On October 4, 2004, Dr. Fedyna again referred the worker to Dr. Pirouzmand, but no record of a visit to Dr. Pirouzmand is contained in the case materials. [18] The worker testified that he did not return to work but received benefit payments from the Great West Life insurance company. Great West Life also sponsored him in a basic computer course at Durham College with classes every Tuesday from 7pm to 8:30pm between January and April The worker testified that following completion of that course he looked for employment in various jobs including cashier, security officer, in shipping and receiving, and in retail sales, but did not have any success. In February 2007 Great West Life stopped making benefit payments. None of the information relating to Great West Life is on file. [19] The worker testified that he remains unemployed. He stated that he still takes Tylenol 3 and that his pain is still intermittent, with two or three good days followed by worse days. [20] The worker has not had any surgery to his back at this time. Although there was mention, in Dr. Rastogi s CT report of July 2, 2004, of a need to correlate the CT scan findings with an MRI scan it does not appear that an MRI scan was ever performed. [21] Dr. Roche indicated, in the report dated August 31, 2004, that the worker was unable to work, but that no permanent impairment was anticipated. Dr. Fedyna s clinical note for September 9, 2004 indicates that the worker would be off work for 2 months. Dr. Witt wrote, in the physiotherapy assessment report dated September 13, 2004, that a recovery was expected within three to six months. (iii) Analysis [22] Having considered the evidence before it the Hearing Panel concludes that the worker suffered, on August 28, 2004, an aggravation of his pre-existing low back condition. [23] While the Panel notes that the emergency room reports do not contain a reference to pulling his back while attempting to unhook the trailer, it is apparent from the medical information that the worker suffered an instance of acute pain after a long stint of driving. These reports do not question the worker s view that there was a causal connection between the driving and the flare-up. [24] The Panel notes that while the worker was able, despite reported increasing pain, to arrive in Edmonton and complete the delivery, he had to return to Ontario by flying as he was not able to drive. The Panel accepts the worker s testimony that he felt an onset of acute pain when he unhooked the trailer. This is corroborated by Dr. Witt s physiotherapy report completed shortly after his return to Ontario. The Panel therefore concludes from this factual context that the sixday drive from Philadelphia had taken a toll on the worker s back and that the act of placing

5 Page: 4 Decision No. 203/08 strain (minor though it may have been) on his back, as he attempted to unhook the trailer, was the precipitating event which triggered the onset of acute pain. [25] Having regard to the medical information set out in the case materials, the Panel notes that the worker has a serious pre-existing condition which was symptomatic prior to the 2003 accident. In the Panel s view the worker has initial entitlement for the 2004 accident claim on an aggravation basis. [26] Given the Panel s finding that the worker has initial entitlement for an aggravation of his pre-existing condition the matter is remitted to the Board for a determination of the extent and duration of benefits.

6 Page: 5 Decision No. 203/08 DISPOSITION [27] The appeal is allowed. The worker has initial entitlement on an aggravation basis for his back condition as a result of the accident on August 28, The matter is remitted to the Board for a determination of the extent and duration of benefits. DATED: February 11, SIGNED: A.T. Patterson, M. Christie, A. Grande.