WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1077/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1077/15 BEFORE: R. Nairn: Vice-Chair HEARING: May 28, 2015 at Toronto Written DATE OF DECISION: August 21, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1868 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated October 16, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Mr. D. Forsyth, Paralegal 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. 1077/15 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a pump operator in the accident employer s construction business. Born in 1958, the worker started with the employer in [2] On August 21, 2012, the worker experienced an onset of pain in his back while shovelling. In his Report of Injury/Disease (Form 6) the worker described the mechanics of his accident as I was shovelling mud into a high container, walking continuously up and down a ladder then my lower right back and lower left leg started to tingle. In Memo #1 of December 7, 2012, the WSIB (the Board ) Eligibility Adjudicator noted the following accident history: when working in [northern Ontario] washing rocks and shovelling mud (weighing approximately bs) for his entire shift on 21Aug12, he felt a gradual onset of lower back pain, right hip pain/numbness and left foot numbness and attributes this specifically to the job duties he was performing on 21Aug12. bending and washing rocks with sprayer and planting his feet while shovelling and twisting continually walking on steep/slanted rocks and up and down a ladder [3] The worker sought medical attention and the Acute Low Back Injuries Program of Care Initial Assessment Report dated September 20, 2012, completed by the worker's physiotherapist provided a diagnosis of lumbar strain/disc herniation. [4] As noted in Memo #2 of January 4, 2013, the Board recognized the worker's low back injury as compensable and he was granted loss of earnings ( LOE ) benefits. [5] On December 6, 2012, the worker had an MRI of his lumbar spine performed and the results were interpreted to reveal: L5-S1: moderate disc space loss posteriorly. Moderate broad-based posterior osteochondral bar formation. Moderate hypertrophy posterior elements. Moderate central spinal stenosis. Mild to severe bilateral neural foraminal narrowing. L4-L5: Mild disc space loss. Moderate posterior and left posterior lateral disc bulge. Severe narrowing left lateral recess. Contact with the descending left L5 nerve root. Moderate left neural foraminal narrowing. Mild right neural foraminal narrowing. Mild to moderate central spinal stenosis. L3-L4: Minimal broad-based posterior disc bulge. [6] On January 3, 2013, the worker was assessed by an orthopaedic surgeon, Dr. D. Hoffman. In the report which followed that assessment, Dr. Hoffman noted: This man was seen today and we had the results of his MRI. He has quite significant degenerative disc changes at L4-L5 and L5-S1 and at L5-S1 in particular significant degenerative change, hypertrophic facet joints. The radiologist is describing moderate central spinal stenosis but I don t agree with that. The patient was attending physiotherapy ( ) but apparently funding has been stopped by WSIB. He does require ongoing physiotherapy at this stage. I don t think this man is going to be able to go back to any form of construction labour. That will also certainly result in significant re-exacerbation of pain.

3 Page: 2 Decision No. 1077/15 [7] In the course of considering the worker's ongoing entitlement to benefits, the Board Adjudicator requested a medical opinion as to the appropriate diagnosis of the worker's condition and in a memo dated January 22, 2013, Dr. C. Aldridge of the Board advised: Conclusions/Opinion/Response to Question(s): Having reviewed the above documentation, it is clear that this worker has significant degenerative disc disease. As documented on November 15, 2012 by Dr. Hoffman, it was his clinical impression that the worker either had a diagnosis of foraminal stenosis or that of a disc herniation. With the benefit of the MRI of December 6, 2012 it is quite clear that the worker does not have a herniated disc at the level of L5/S1. Moreover, the worker's medical imaging demonstrated significant foraminal narrowing at the level of L5/S1, which would be concordant with Dr. Hoffman's clinical findings at the time of his consult on November 15, As such, it is my clinical opinion that the most applicable diagnosis in this case would be that of lumbar radiculopathy due to pre-existing degenerative disc disease. Recommendations/Next Steps: It is my clinical opinion that the most applicable diagnosis in this case would be that of lumbar radiculopathy due to pre-existing degenerative disc disease. [8] In 2013, the Board also considered the issue of the employer's entitlement to Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this worker's claim. A medical opinion was requested and in a memo dated February 14, 2013, Dr. Wentzell of the Board concluded: This worker's recovery has been prolonged as related to a lumbar strain. As described previously, the worker's MRI scan revealed moderate disc degeneration, osteochondral bar formation, and posterior element hypertrophy at L5-S1, associated with central spinal stenosis and moderate to severe bilateral neural foraminal narrowing at that level. There were also degenerative findings at L4-5, as outlined above. The degeneration at L5-S1, particularly the foraminal narrowing at that level, would be in keeping with the clinical findings outlined by Dr. Hoffman on 15Nov2012, which included left leg radiculopathy. In consideration of this medical information, therefore, there appears to be a moderate pre-existing condition in this case which has impacted recovery related to the- lowerback. [9] In Memo #18 of February 15, 2013, a Board Adjudicator noted the following with respect to the issue of SIEF relief: Accident history/severity: On August 21, 2012, this then 54 year old pump operator was washing rocks and shovelling mud (weighing approximately pounds) for his entire shift. He felt gradual onset of lower back pain, right hip pain/numbness and left foot numbness. During this entire shift he was bending and washing rocks with sprayer and planting his feet while shovelling and twisting and continually walking on steep/slanted rocks and up and down a ladder. Entitlement was accepted for low back. Loss of earnings benefits were paid from August 24, 2012 to date. The accident is of moderate severity, noting the mechanics of the constant bending, twisting, shovelling and walking on uneven ground as well as climbing a ladder, which could reasonably cause a disabling injury. Pre-existing condition: ( )

4 Page: 3 Decision No. 1077/15 14 Feb Medical Consultant reviewed all the medical reports on file and agreed that the worker's recovery has been prolonged as related to the lumbar strain. There is moderate pre-existing condition that has impacted recovery. Decision I have reviewed and considered all relevant information, including obtaining the opinion of the Medical Consultant. I am satisfied that the medical information supports there is evidence of a pre-existing condition of a moderate severity with regards to the low back which may have contributed to enhance the injury and impact the recovery. In determining the SIEF value, I have combined the moderate accident severity with the moderate pre-existing condition. As required by our policy, I have granted 50% SIEF cost relief in this case. [10] In a decision dated February 15, 2013, the Board Case Manager confirmed that the employer was entitled to 50% SIEF relief from the costs of this worker's claim. [11] The employer objected to the quantum of SIEF relief granted and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated October 16, 2013, the ARO denied the employer's appeal. While the ARO did not comment specifically on the severity of the compensable accident, the following was noted with respect to the medical significance of the pre-existing condition: Though not ignoring the radiological evidence, the worker prior to August 21, 2012 was able to perform his regular work activities; activities considered physically demanding with no evidence the lower back posed a barrier. On the evidence, the pre-existing condition which was asymptomatic (Health Care provider report of September 25, 2012 notes he was unaware of any pre-existing condition) could have resulted in the worker being more likely to develop an impairment of greater severity than in a person without these radiological findings. The type of injury which followed the August 21, 2012 accident was consistent with the mechanics of the accident and expected to cause a moderate degree of injury. The pre-existing condition was a factor to the prolongation of the recovery, which the Appeals Resolution Officer finds to also be of moderate significance. [12] Information on file indicates that the worker's entitlement to LOE benefits was terminated by the Board effective February 28, 2013 with the Case Manager determining the worker's continued low back symptoms were attributable to the non-work-related condition hence, the worker fully recovered from the work-related low back strain. The worker appealed this conclusion and in a decision dated February 9, 2015, an ARO granted the worker's appeal and concluded: Having considered the above medical findings there is no question this worker has a degenerative lower back condition that pre-dates his injury. What is significant is that prior to the date of injury this worker was performing heavy work, had no symptoms, no medical treatment and no lost time from work relating to this condition. In essence, this worker was unaware of his degenerative lower back condition. It was only after his injury of August 21, 2012 that this pre existing condition was revealed. Since the date of injury the worker has had ongoing pain radiating into the left leg and decreased range of motion of the lower back. The WSIAT Medical Discussion Paper on Back Pain states that there are three conditions in which aging may cause symptoms: 1) a disc problem (herniated, sequestrated, ruptured disc); 2) spinal stenosis (narrowing of the spinal canal); and 3) facet arthritis. "The above pre-existing conditions can become symptomatic following trauma. In the case of a herniated disc, presumably the nucleus pulposus had worked its way partially

5 Page: 4 Decision No. 1077/15 through the annulus fibrosis but not far enough to produce symptoms. Then an injury, sometimes relatively trivial, permits the nucleus to escape completely. In the case of spinal stenosis, the canal is already narrowed but not sufficiently to cause symptoms. Then if an injury causes a disc to bulge or herniate, further narrowing the spinal canal, symptoms are produced". This appears to the case in this worker's claim. Dr. Hoffman's September 25, 2013 report indicates this worker has a disc protrusion and the S1 nerve root is being is being compromised as per the EMG study of January 22, Given that prior to the accident date this worker was asymptomatic and after the injury there has been consistent lower back pain with decreased range of motion, I find the worker's injury of August 21, 2013 aggravated the worker's pre existing DOD condition. The worker has not recovered from his injury of August 21, 2013 and is entitled to LOE and health care benefits beyond February 28, (ii) Issue on appeal [13] The issue to be determined in this case is whether the 50% SIEF relief granted in this claim is correct. (iii) Submissions of the employer's representative [14] The employer agreed to have this appeal considered by means of written submissions. Mr. Forsyth has provided submissions dated February 2, 2015 (contained in Addendum No. 3) and March 17, 2015 (contained in Addendum No. 5) which have been reviewed. [15] In his submissions of February 2, 2015, Mr. Forsyth noted the following with respect to the medical significance of the pre-existing condition: The appeals decision dated October 16, 2013 provides their rational for the provision of 50% SIEF, but provides little in the way of specific facts. As the Tribunal has before it all medical records for their own review, I will not reiterate everything that is contained in these reports. I think for the purpose of this issue, I would refer Case Record, page 80 & 81. This is a review conducted by Dr. S. Wentzel. He fully summarizes the medical evaluations conducted, x-rays and MRI. I believe his findings are not disputable but I would argue his conclusions as to severity are downgraded to meet with the WSIB Policy of trying not to provide SIEF to employers. The conclusions he reaches when assessing x-rays and MRI are consistently moderate to severe as per his terminology. He further references quite significant DDD at L4-5 and L5-S1''. At every level the findings interpreted by the WSIB Consultant are referenced as moderate to severe or quite significant. I would challenge the accumulative effect of these findings would lead one to support the overall underlying findings are more in keeping with severe than moderate. [16] With respect to the severity of the accident, Mr. Forsyth advised: The second part of the equation for considering levels of SIEF is the severity of the accident history and accident details and mechanics. In this case the employee is hired as a construction labourer which in itself requires these employees to be performing employment of a physical basis routinely. In this case, the employee was shovelling material which is part of a labourer's duties when for no known reason, he had an onset of symptoms. There was not a specific incident/accident but rather an onset which the employee stated was caused by the work in general. He attributes his onset to the need to shovel and the

6 Page: 5 Decision No. 1077/15 going up and down a ladder. None of these activities can be deemed severe or nonroutine in nature, but are definitely a physical aspect of a labourer's duties. An onset of back or muscular discomfort would not be considered an accident history which would result in a serious injury nor a permanent impairment. The WSIB itself has acknowledged full recovery from the effects of this injury was expected, by denying any ongoing entitlement as of February 2013, essentially stating any ongoing problems are the result of the pre-existing condition. ( ) The accident history can only be considered minor in nature when you look at the lack of a trauma or one specific incident and note the onset is simply due to regular duties assigned, which on this particular date causes discomfort. The accident details would not lend themselves to being significant in detail and the likelihood of any permanent implications from this is minimal at best and in our opinion, not likely. Therefore we would submit that with a minor accident history and a severe pre existing condition, 90% Second Injury Fund relief is applicable and in keeping with the WSIB own policies. Even if you can defend the medical level of the pre-existing condition as moderate, the accident severity would remain minor, thus allowing for an increase in SIEF to the 75% level. [17] Mr. Forsyth was provided with a copy of the ARO s decision of February 9, 2015, and was given the opportunity to provide further written submissions in support of his appeal. In his submissions of March 17, 2015, Mr. Forsyth indicated: Your letter of March 12, 2015 has been received and reviewed. I am aware of the decision rendered and this in fact essentially supports our argument for increased SIEF. This outlines from the WSIB perspective who how the underlying condition may be present and dormant for symptoms and then a minor incident allows it to become symptomatic. The facts remain the same as it relates to the history of medical problems with the preexisting issues. There is no questioning the underlying condition must be concluded as major, noting the comments by the worker's physicians and the WSIB's own medical opinions expressed. (iv) Analysis [18] Since this worker was injured in 2012, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [19] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies to this case is Operational Policy Manual ( OPM ) Document No entitled Second Injury and Enhancement Fund. This policy provides in part: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included. Guidelines There is no provision in the Act for the Fund to apply to Schedule II employers.

7 Page: 6 Decision No. 1077/15 In situations where alcoholism plays a role in the causation of an accident, it is not considered to be a pre-existing condition with regard to the application of SIEF relief. The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. ( ) SIEF-application to employer costs Medical significance of pre-existing condition* Minor Moderate Major Severity of accident** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident Minor: expected to cause non-disabling or minor disabling injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF.

8 Page: 7 Decision No. 1077/15 [20] As the above-mentioned policy provides, determining the appropriate quantum of SIEF relief to be granted in a particular case involves determining both the severity of the compensable accident and the medical significance of any pre-existing condition. [21] With respect to the accident severity, Board policy requires that it be characterized as either minor (expected to cause non-disabling or minor disabling injury); moderate (expected to cause disabling injury) or major (expected to cause serious disability probable permanent disability). The policy also requires that the accident severity is to be evaluated in terms of the accident history components such as mechanics (lift, push, pull, fall, blow, etc.); position (kneeling, standing, sitting, squatting, bending, etc.) and environment (lighting, temperature, weather conditions, terrain, etc.). [22] In this case, the Board determined that the accident was of a moderate severity while the employer takes the position that it ought to be considered minor. The employer's position appears to be based primarily on their view that the duties the worker performed were not particularly severe and were routine given the nature of his job. [23] As noted in Decision No. 48/05 for example, the definition of a moderate accident does not require an expectation of permanent impairment but merely of some degree of disability. It is also generally accepted that in determining the severity of a compensable accident, one does not take into account what eventually transpired in a particular claim. Rather, one reviews the mechanics of the accident and decides what outcome would most reasonably be expected. [24] In his Form 6, the worker described shovelling mud into a high container and walking continuously up and down a ladder. The Initial Assessment Report of September 26, 2012, completed by the worker's physiotherapist provided a history of bending while washing rocks with sprayer & felt low back pain had been working long hours. In a memo of December 7, 2012, the Eligibility Adjudicator provided additional explanation and indicated that the worker was washing rocks and shovelling mud (weighing approximately lbs.) for his entire shift on 21 Aug 12 and bending and washing rocks with sprayer and planting his feet while shovelling and twisting continually walking on steep/slanted rocks and up and down a ladder. In my view, when one considers the combination of the repetitive shovelling, lifting, bending, twisting, climbing ladders and walking on steep/slanted rocks, it is reasonable to accept that these activities could have caused a disabling injury. As such, I find myself in agreement with the ARO that the severity of the accident was appropriately characterized as moderate. [25] With respect to the medical significance of the pre-existing condition, Board policy requires that it too be characterized as either minor, moderate or major. The policy does not define these terms and indicates only that the medical significance of a pre-existing condition is to be assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. In this case, the Board has acknowledged that there is a pre-existing condition in this case which has enhanced/prolonged the worker's recovery. The issue in dispute relates to its medical significance. These particular provisions of Board policy were interpreted in Decision No. 1582/07 as follows: I interpret the policy to mean that the medical significance of a pre-existing condition should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person. If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than

9 Page: 8 Decision No. 1077/15 slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. [26] Having reviewed the evidence before me, I find, on a balance of probabilities, that the medical significance of the pre-existing condition in this case ought to have been characterized as major. In reaching that conclusion, I have taken particular note of the following: In his report of January 3, 2013, Dr. Hoffman (the worker's treating orthopaedic surgeon) noted, after reviewing the results of the worker's MRI that he has quite significant degenerative disc change at L4-5 and L5-S1 and at L5-S1 in particular significant degenerative change, hypertrophic facet joints. In his medical opinion of January 22, 2013, Dr. Aldridge of the Board indicated that after reviewing the medical information on file it is clear that this worker has significant degenerative disc disease. It was Dr. Aldridge s clinical opinion that the most applicable diagnosis in this case would be that of lumbar radiculopathy due to pre-existing degenerative disc disease. In his medical opinion dated February 14, 2013, Dr. Wentzell of the Board acknowledged that the worker's recovery from his lumbar strain had been prolonged and noted the worker's MRI scan revealed moderate disc degeneration, osteochondral bar formation and posterior element hypertrophy at L5-S1 associated with central spinal stenosis and moderate to severe bilateral neural foraminal narrowing at that level. Dr. Wentzell noted that there were also degenerative findings at L4-5. [27] In my view, the combination of the various degenerative conditions in the worker's lumbar spine rendered him extremely likely to develop a disability of greater severity than a normal person and as such, the medical significance of those pre-existing conditions ought to have been characterized as major. [28] According to Board policy, the combination of an accident of moderate severity and a pre-existing condition of major medical significance entitles an employer to 75% SIEF relief.

10 Page: 9 Decision No. 1077/15 DISPOSITION [29] The employer's appeal is allowed. [30] The employer is granted 75% SIEF relief from the costs of this worker's claim. DATED: August 21, 2015 SIGNED: R. Nairn