WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2015/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2015/14 BEFORE: V. Marafioti : Vice-Chair M. Christie : Member Representative of Employers A. Signoroni : Member Representative of Workers HEARING: November 3, 2014 at Toronto Oral DATE OF DECISION: December 5, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2645 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated January 21, 2013 APPEARANCES: For the worker: For the employer: M. McGowan, Paralegal C. Huras, Paralegal C. Kosic, attended as an observer Interpreter: Not applicable 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. 2015/14 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) dated January 21, That decision denied the worker a non-economic loss (NEL) award for the work-related injury. The worker attended and provided testimony. The representatives made oral submissions. (ii) The issues [2] The Panel must determine whether the worker has entitlement for a NEL assessment for the low back. (iii) Background [3] The ARO outlined the background facts of this case and the Panel summarizes them as follows. [4] On April 27, 2008 this worker was working for a home improvement building store and reported that she had developed pain in her bilateral legs due to repetitive walking at work. The claim was originally allowed for strains to both feet and legs. The worker claimed a recurrence on May 10, 2008, due to an increase in her pain. The recurrence was denied as it was felt that the diagnosis of L5-S1 radiculopathy/sciatica was not compatible with the accident history of walking. [5] The worker objected to the decision and provided further information, which was reconsidered by the Case Manager, with an opinion of the Medical Consultant. In November 2009 the worker's appeal was allowed with a diagnosis of piriformis syndrome. [6] On October 18, 2011 the worker's representative requested that the case be reviewed for a permanent impairment. [7] The Case Manager reviewed the information provided and concluded that permanent impairment was not evident. The Case Manager found that the current diagnosis of degenerative disc disease and radiculopathy was not consistent or causally related to the original accident history. The worker objected to this decision and the ARO S. Carney in a decision dated January 21, 2013 concluded as follows: The accident history is simply related to the worker's duties as a part time retail sales clerk and walking at work. The ongoing diagnosis that is to be considered as the permanent impairment diagnosis is described by the doctor as an ongoing complex injury related to S1 joint sacroiliac joint complex pain disorder, and piriformis pain. I also note that the most recent MRI shows changes in the lumbar spine that were not present on the original MRI. I find the worker's prolonged complex injury is not in keeping with the original injury, and the uneventful accident history. For these reasons, I do not find that the worker has a work-related permanent impairment. CONCLUSION I conclude the worker's objection to the denial of a non-economic loss is denied. [8] The worker now appeals to the Tribunal.

3 Page: 2 Decision No. 2015/14 (iv) Law and Board policy [9] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. [10] Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [11] The Legal Services Division of the Board confirmed that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy Package #1 - Initial Entitlement Policy Package #61 - NEL Entitlement Policy Package #107 - Aggravation Basis/SIEF Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [12] The policies will not be duplicated here for practical reasons. The Panel has considered the policies in the context of the legislation in arriving at our decision. As the accident occurred in 2008 the WSIA applies. In particular the Panel noted section 46 of the WSIA which states the following: 46(1) If a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. [13] In addition the Panel considered section 47 of the WSIA which states the following: 47(1) If a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment. (v) The worker's position [14] The worker described her work history and her employment duties indicating she has been employed with the accident employer for 10 years as a part-time worker prior to the date of injury. Ms. McGowan, the worker's representative, submitted that the worker had a negative pre-accident history and submitted that the injury significantly contributed. The representative submitted that a NEL assessment is in order and that the impairment remains that of a S1 joint sacroiliac joint complex disorder and piriformis syndrome. (vi) The employer s position [15] Ms. Huras, on behalf of the employer, essentially submitted that the worker's ongoing issues are related to her degenerative disc disease condition and that any compensable injury that the worker sustained in April 2008 resolved and any ongoing disability is related to the underlying degenerative disc condition. In summary, Ms. Huras submitted that the worker continued to suffer from back pain related to non-compensable degenerative disc disease. [16] Both representatives reviewed the medical evidence as part of their submissions. (vii) The Panel s findings and conclusions [17] For the reasons that follow the Panel finds that the worker is entitled to a NEL assessment for the low back. The Panel notes that the medical reporting and the worker s testimony

4 Page: 3 Decision No. 2015/14 describes various co-existing conditions in the low back however a NEL assessment for the S1 joint sacroiliac joint complex pain disorder and piriformis syndrome is in order. (a) The medical evidence [18] Although the Panel considered all of the medical evidence, it found the following most relevant. Initially the Panel considered the clinical notes that are available on record from August 9, 2007 to April 16, The clinical notes contain written entries of back pain. The entries beginning in August 2007 ongoing contain several entries of pain lower back. The entries in May of 2008 do indicate pain in lower back and the worker received an EMG as well as an MRI on June 23, 2008 and chiropractic treatments. The entries note treatment for acupuncture and chiropractic treatments, and that the back continued to be sore with entries in October 2008 of back pain and December 2008 which indicated that back is not much better. There is an entry of February 9, 2009 indicating that the worker was now working for a different employer and that the back was no better. On April 16, 2009 the entry reads back still a problem. The Panel notes on April 24, 2008 there was an x-ray of the lumbar spine and the hips. The opinion was that there was mild degenerative disc disease and osteoarthritis apophyseal joints lumbar spine. The Panel notes that initially the Health Professional s Report (Form 8) indicates the areas of injury being the left lower leg and right hip, thigh and lower leg. It was diagnosed as a sprain and the low back was not indicated. The emergency report from the local hospital of May 8, 2008 indicates that the worker was experiencing low back pain and pain in the lateral lower legs and foot. The worker was referred by her treating physician Dr. N. Wright to Dr. W. Elliot, medical consultant. Dr. Elliot reported on May 12, The doctor indicated that the worker expressed symptoms in the right foot and ankle that started approximately a month ago and insidiously and since then have progressed to include her lateral shin region as well as proximally up towards the worker's hip and lower back. The pain was worse when the worker was sitting for prolonged periods of time. It was reported that the worker had not had an injury to that area. The report indicated that the worker also in pain when she was on her feet for prolonged periods of time. The report indicated that the worker did have x-rays taken of the lumbar spine which showed mild degenerative disc disease present as well as mild arthritis in her right hip, otherwise no imaging and treatment were presented. Dr. Elliot concluded as follows: Certainly her symptoms are somewhat atypical and I have suspicion that her pain is mostly coming from her lumbar spine likely a disc herniation or nerve root impingement. Given the insidious onset and some of her systemic symptoms I think that getting an MRI of her lumbar spine is warranted and I have also arranged this. In the meantime suggested that she start physiotherapy and also have placed her on a Mobicox 7.5 mgs. daily plus Pantoloc 40 mgs. daily x 3 weeks. I will see her back after her MRI. [19] A Functional Abilities Form was completed by Dr. N. Wright on an examination on May 13, 2008 and Dr. Wright indicates that the area of injury was lumbar spine and sciatic strain both legs. The x-rays of the right foot and right ankle indicated no significant bone or joint abnormality and there was no evidence of any osteoarthritic changes. [20] A Health Professional s Report completed by the physiotherapist indicated the area of injury being the lower back related to a strain. The report was completed on May 20, [21] A report was submitted by Dr. R. Ganesan, neurologist, dated May 22, The worker was referred for evaluation of the worker's tremor and back pain. Dr. Ganesan reported as follows regarding the worker's back:

5 Page: 4 Decision No. 2015/14 2. With respect to the back pain, although she does certainly seem to have a history consistent with at least right LS/S l radiculopathy, treatment seems to have resulted in more centralization of the pain and she is walking a bit better and has a bit more sitting tolerance, so I think she is improving and it still only has been about a month. She is booked for an MRI. I will arrange for an EMG in case that might affect our treatment course, but I think certainly the chiropractic seems to be helping her. [22] This neurologist reported tenderness of the low back area although sensation was reported to be intact. [23] An MRI was conducted on the lumbar spine on June 14, The MRI revealed the following: A non-contrast MRI scan of the lumbar spine was obtained. There are no significant degenerative changes, disk herniations, epidural or intradural abnormalities. There is no evidence of nerve root compression. IMPRESSION: NORMAL STUDY. [24] There was a bone scan conducted on October 28, 2008 which did not reveal significant abnormalities within the spine. There is no significant abnormality in the hip, pelvis or lower back regions. The worker was referred by her family physician Dr. N. Wright to Dr. B. Clark, physical medicine and rehabilitation specialist, who filed a report dated November 17, The doctor after a review of the history and examination concluded that the worker was suffering from right piriformis syndrome with secondary sciatic nerve irritation. [25] There is also reporting from Dr. E. Gray, chiropractor and certified acupuncturist, who reported on November 25, The worker was under the chiropractor s care since June 25, 2008 for a right piriformis strain with sciatica. [26] An MRI was completed in January 2009 of the pelvis and hip regions which was reported as unremarkable. Dr. Clark provided a follow-up report on February 9, At this time the doctor provided a diagnosis of lumbar degenerative disc disease. Dr. Clark believed that the main involvement segment was the L5-S1 area but he indicated that it was very difficult to tell from the physical examination. The worker was localizing right to the base of the spine at the sacrum. Dr. Clark indicated that given the length of time that the worker has had the symptoms she was going to be a pain management problem with no easy fixes. Dr. Clark reported again on April 27, 2009 indicating that the worker s low back pain was ongoing and gets very sore after 15 minutes of driving. It was indicated that it was fortunate that the worker can change positions as needed at work with her new employer. Dr. Clark reported again on June 8, 2009 indicating that the worker continued to have a discogenic pattern of pain aggravated by a lumbar flexed position such as when she is driving and sitting. The worker would have some relief when she was standing and walking about. [27] The worker went for consultation to Dr. G. Ko, a pain management physician. The initial consultation is dated January 6, The reason for referral given in the report by Dr. Ko was low back pain with radiation into the right leg (MRI negative for disc herniation) interested in prolotherapy. In the note Dr. Ko reports the injury to the back from lifting up a barbeque on April 17, The worker was said to be doing well before this symptomatology. Dr. Ko reviewed the prior tests and concluded on examination the following:

6 Page: 5 Decision No. 2015/14 1. Right sacroiliac joint dysfunction with probable ligamentous laxity and secondary spasming of the piriformis and hip girdle muscles. This can result in pseudosciatica. 2. Updated negative EMG study for any active lumbar motor radiculopathy or peripheral nerve lesion to account for her burning pain and pins and needles and numbness in the right foot. 3. Possible perpetuating factors also include menopause state, hormone imbalances, chronic anxiety, depression, irritable bowel syndrome and nutritional factors, ongoing stress and poor sleep. [28] The worker was seen by Dr. Ko subsequently on a number of occasions and Dr. Ko referred the worker to Dr. A. Avila, Pain Management Program at Sunnybrook Health Science Center. Dr. Ko continued to indicate that the worker was suffering from right sacroiliac joint pain as well as right piriformis syndrome. Dr. Avila reported on June 2, 2010 as the date the worker was seen and indicated that the worker had a well documented history of lower back pain, particularly at the level of the sacroiliac joint as well as hip pain and severe buttock pain. Dr. Avila indicated the majority of the worker's pain generators were multifactorial in nature and were related to the S1 joint sacroiliac joint complex pain disorder which involved not only the joint per se but also ligaments, tendons, bursae etc. In addition, Dr. Avila reported that these muscle groups of the GOGO muscle groups as well as the piriform muscles seen to be contracted and aggravating the worker's sciatic radiculopathy. [29] A further MRI was again performed on the worker's lumbar spine on April 9, The clinical history given was that of right sciatica type pain and right hip pain. The conclusion was as follows: Disc desiccation and mild eccentric bulging centrally, in the left paramedian area, into the left lateral recess and left foramen at LS-S1 with no impression upon the nerves. No disc herniation or stenosis at the other levels. Minor osteophytes at the left L4-L5 facet joint. [30] The worker was seen at the Occupational Health Clinics for Ontario Workers by Dr. M. Pysklywec who reported on June 20, This doctor diagnosed the worker with right sacroiliac dysfunction with some piriformis irritation. Dr. Pysklywec opined that as a result of the diagnosis there is symptomatology of the sciatic nerve into the right leg. Again the doctor indicates that the worker described an incident lifting a barbeque as well there were underlying walking and lifting requirements in her job. Dr. Pysklywec reported the following: In summary, [the worker] was seen regarding the work-relatedness of her low back and pelvic condition. She has right sacroiliac dysfunction with some piriformis irritation. As a result, there is symptomatology of the sciatic nerve into the right leg. She has had these symptoms since April 2008 when she hurt her back at work. She described an incident lifting a barbeque. As well, there were underlying walking and lifting requirements in her job. The temporal patterning implicates the workplace factors in contributing to the onset of her condition. There are no significant degenerative conditions that underlie her diagnosis. (b) Conclusions [31] The worker has been granted initial entitlement for her injury while working for this accident employer. The worker described that she worked since the summer of 1998 in the seasonal department of a large store as a part-time employee. The worker indicated she worked on her feet and wore steel-toed boots at work. The worker also described that her employment

7 Page: 6 Decision No. 2015/14 also involved physical work moving products from the Winter season to Spring as an example. The medical evidence indicates that the worker described right low back, right buttock, right hip and groin pain down her leg in April The Panel has reviewed extensively the medical reporting in this file. The Panel finds from the medical reporting, in particular, that the worker since April of 2008 has had ongoing symptoms for which she continued to receive a variety of treatments. The worker had been granted entitlement for a piriformis syndrome related to her workplace. Having considered the medical evidence, including the opinion of the Medical Consultant agreeing with the diagnosis of piriformis syndrome as being compatible with the accident history, the Panel is satisfied that the worker does have a permanent impairment. The medical diagnosis is provided by various doctors including Dr. Clark, Dr. Ko, Dr. Avila, and Dr. Pysklywec. The medical reporting from the various doctors indicates largely a similar and ongoing medical diagnosis and clinical condition. The Board has granted initial entitlement to the worker. The Panel is asked to determine whether the worker has entitlement for a NEL assessment for her low back. After the WSIB granted initial entitlement, there are ongoing complaints by the worker and an ongoing clinical presentation since April [32] The worker described in her testimony significant functional limitations. The Panel does not find a significant pre-existing degenerative condition that would affect the worker's low back. The more recent MRI noted above of 2011 makes notes of some disc desiccation as well as mild eccentric bulging with no impression on the nerves. The worker has pursued a variety of modalities to alleviate her symptoms such as physiotherapy, massage therapy, chiropractic treatments on a continual basis since the onset of her injury. The permanent impairment diagnosed described by the various doctors is that of an ongoing complex injury related to S1 joint sacroiliac joint complex pain disorder and piriformis pain. The Panel finds based on the medical evidence and the ongoing symptomatology since the April 2008 compensable accident that the worker has a permanent impairment. Although the worker may be experiencing a number of co-existing conditions including degenerative disc disease and chronic pain syndrome, the worker does have a significant functional limitation since the date of accident and continuing which warrants a permanent impairment assessment.

8 Page: 7 Decision No. 2015/14 DISPOSITION [33] The worker is to be assessed for the permanent impairment of the low back area. DATED: December 5, 2014 SIGNED: V. Marafioti, M. Christie, A. Signoroni