WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 257/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 257/14 BEFORE: J. Josefo: Vice-Chair HEARING: February 11, 2014 at Toronto Oral DATE OF DECISION: March 11, 2014 NEUTRAL CITATION: 2014 ONWSIAT 516 DECISION UNDER APPEAL: WSIB decision of Appeals Resolution Officer ( ARO ) F. Bruno, dated July 12, 2012 APPEARANCES: For the worker: Mr. G. Majesky, I. B. E. W., Local 353 For the employer: Interpreter: Ms. C. Crisostomo, Paralegal 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. 257/14 REASONS (i) The worker's appeal [1] The worker appeals the July 12, 2012 decision of Board Appeals Resolution Officer ( ARO ) F. Bruno. ARO Bruno concluded that the worker fully recovered as of March 7, 2011 from the September 27, 2010 work accident. Accordingly, the ARO denied the worker additional benefits beyond March 7, [2] The ARO made the decision following a review of the submissions from the workplace parties, but without an oral hearing. (ii) Issue [3] The sole issue before me is whether the worker had fully recovered as of March 7, 2011 from the September 27, 2010 work accident. (iii) Background facts [4] The facts which underpin this appeal are not in any significant dispute. The worker, a construction electrician, was in the process of performing his physically demanding work duties on September 27, When the work accident occurred he was a little more than half way up a 14 foot ladder. The ladder apparently shifted in one direction and the worker fell off the ladder in the other direction. He landed on his back, as well as on some construction materials that he had in his hand and which fell underneath him. The worker was taken to hospital by ambulance, provided with immediate treatment, kept overnight, and discharged the next day. [5] After a Board-sponsored return-to-work mediation occurred, the worker returned to employment to perform office duties in or about January Subsequent to a Regional Evaluation Center ( REC ) assessment, it was concluded that the worker, after further and more intensive physiotherapy, would be able to return to his regular duties in approximately two months. The REC assessors also opined that the worker had not sustained a permanent impairment arising out of the September 27, 2010 work accident. [6] Based upon the REC assessment, the Board concluded that the worker fully recovered from his work accident as of March 7, Benefits were closed as of that date. [7] The worker disagrees that he has made a full recovery. He continues to complain of back pain, as well as pain in his ribcage area which he links to the fractured ribs he sustained in the work accident. The worker continues to take anti-inflammatory medication on an as-needed basis, as well as he applies over the counter rubs to his painful areas in his lower and mid back as well as to his chest area. [8] The ARO considered the written submissions of the workplace parties and concluded that there was insufficient clinical evidence of any objective ongoing impairment related to the workplace injuries that occurred on September 27, The ARO concluded that the worker achieved a full recovery once physiotherapy treatment concluded in March Thus, ongoing entitlement was denied. [9] The worker appeals from those conclusions while the employer seeks to have them upheld.

3 Page: 2 Decision No. 257/14 (iv) Law and policy [10] Since the work accident occurred on September 27, 2010, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [11] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, revision #8, would apply to the subject matter of this appeal: Policy packages 3, 227, 300 [12] I have considered these policies as necessary in considering the issues in this appeal. (v) Discussion of the evidence and conclusions [13] It is clear that the worker throughout his working life as a construction electrician has and continues to perform physically demanding work. As he testified, before the September 2010 work accident he never had any difficulty so doing. The worker, who was age 49 as of September 2010, is now age 53. He testified about getting tired as well as getting sore at the end of a workday, particularly after he performs work of a more strenuous nature. [14] Indeed, the worker continues to perform strenuous work. He returned to his regular construction electrician duties in or about late March 2011 after LOE benefits were closed. Subsequently, in or about October 2012 he and other workers were laid off from that employer. [15] Thereafter, presumably through the union hiring hall process, the worker obtained new employment as a construction electrician. The worker in this new job on occasion also acts as a foreman when, pursuant to union rules, he is called upon to supervise four or more employees. Thus, the new job is, at times, somewhat lighter, yet the worker is still involved in many aspects of the typical physically demanding work of a construction electrician. [16] I have no doubt that the worker has and occasionally continues to experience aches and pains in his low back as well as other areas. The worker, after all, testified that he can have good days when he does not have any pain, and then, and in particular if he over-exerts himself, he can have a week of bad days wherein he is troubled by pain. [17] The question before me is whether these ongoing pain complaints can be linked to the compensable accident. Following my review and consideration of all relevant evidence, I am not persuaded that the worker s pain complaints can be linked to the compensable accident of September 27, [18] I so conclude notwithstanding that I find the accident was, as Mr. Majesky described it, physically traumatic in nature. After all, the worker fell from a height, landing on a hard floor as well as on some construction debris. It is beyond any dispute, and the employer did not in fact dispute, that the worker sustained injuries arising out of the work accident. He sustained rib fractures as well as the fracture of a lumbar vertebra. [19] I thus understand why the worker was reluctant to initially return to the modified office duties. I find that the worker acted reasonably, in these circumstances, and on these facts, by only returning to modified work in January 2011, a little over three months after the work accident. Yet, notwithstanding that, the medical evidence demonstrates to me that the worker, fortunately, ultimately made a very good and, indeed, full recovery from the work accident.

4 Page: 3 Decision No. 257/14 [20] On November 12, 2010, about six weeks after the accident, the worker was assessed by orthopaedic surgeon Dr. H. Ahn. Dr. Ahn noted in his report that the worker's fractures of the lumbar spine were non-structural fractures and did not affect the integrity of the actual spinal column; these were the transverse processes only. Dr. Ahn also commented upon the worker's rib fractures which were causing him discomfort. [21] As of November 2010, Dr. Ahn was of the view that the worker then could not return to work as a construction electrician. Despite the fractures to the vertebrae not causing the worker structural damage, this orthopaedic surgeon opined that the worker's condition would be mainly symptom based rather than based on his transverse process fracture and rib fractures. Dr. Ahn explained that it may take the worker some time to heal and he could still be sore down the road. [22] About two months after the assessment by orthopaedic surgeon Dr. Ahn, the January 24, 2011 REC assessment of neurosurgeon Dr. H. Schutz and physiotherapist G. Benack occurred. The worker's physical examination by the REC assessors revealed the following: The physical examination reveals a very healthy fit, middle aged man. The general examination is unremarkable. Range of cervical and lumbar spine movement is normal in flexion, extension and rotation. There is no paravertebral muscle spasm, no loss of usual lordosis, no scoliosis. He is tender in the lumbosacral area and in the mid thoracic area. There was no evidence of myelopathy or radiculopathy. Examination for power, tone, bulk, coordination, reflex, gait was normal. Sensory examination was normal. [Diagnosis and Prognosis] The diagnosis was fractures of ribs and fracture of a transverse process in addition to soft tissue injuries as a result of the fall. The prognosis should be excellent. We believe that he is partially recovered now and full recovery can be expected in six weeks time. We recommend that he continue with light duties at work and enroll in a work conditioning program at physiotherapy. in six weeks time he should be ready for his regular duties as an electrician without any restrictions. Additional diagnostic testing and/or consultations are not indicated. [23] Following this report the Board made arrangements for the worker to continue with physiotherapy while working five hours per day. As described above, at the end of the work-conditioning physiotherapy arranged by the Board, it was concluded that the worker had by then achieved a full recovery. [24] Dr. Ahn in the November 12, 2010 report at that time documented that the worker was having pain, despite no structural damage resulting from the work accident. As his report indicated, the worker's condition was mainly symptom based. A little more than two months later, however, the worker had obviously made good progress. Neurosurgeon Dr. Schutz and the physiotherapist who assessed the worker were then of the view that the worker had made excellent prognosis and, after the work-conditioning physiotherapy to be arranged, should not be left with any residual impairment. At the time of the REC assessment itself, it was concluded that the worker was then partially recovered, with the expectation that full recovery can be expected in six weeks time. [25] There is no reliable evidence that the worker did not in fact fully recover in that approximately six weeks following the REC assessment. After the board-arranged physiotherapy concluded, the worker could have accessed certain union benefits including physiotherapy treatment and chiropractic treatment. He testified that he did use such benefits for some treatment for some time after the accident. Yet there is no evidence before me to

5 Page: 4 Decision No. 257/14 corroborate the worker's somewhat shaky recollection about his use of such benefits, when this occurred, and for how long it occurred. [26] While the worker was an honest witness who did not intend to deceive me, his recollection of specific facts and dates was often hesitant. Given that these events occurred almost four years ago, it is not surprising that the worker's memory was hesitant and lacking in specific detail. Yet again, this leaves me without reliable evidence that the worker sought and obtained treatment because of any residual difficulties he was having, which difficulties arose out of the compensable accident. Especially as these are union-funded benefits, it should not have been difficult for such evidence to have been obtained, if this existed, and if the worker's experienced representative believed that such would be helpful to the worker s case. [27] The worker was also assessed by Dr. P. Jugnundan of the Occupational Health Clinics for Ontario Workers Inc. Dr. Jugnundan s report is dated June 24, Dr. Jugnundan in the discussion portion of his report states that while the worker sustained fractures arising out of the accident, he would have almost certainly sustained soft tissue injuries involving his skin, muscles, ligaments and vertebral discs. There is reference in this report to a MRI that the worker might have had, yet it was acknowledged by the workplace parties that there was no MRI report in the materials before me. [28] The worker thought he may have had a MRI. Yet it was not clear whether, if he did so, it was because of the compensable accident or arising out of his non-compensable adrenal adenoma which was discovered and evaluated through a CT scan on March 9, 2011, as well as pursuant to the September 27, 2010 CT scan. The workplace parties were given an opportunity to consider requesting that the MRI report be obtained on a post-hearing basis, yet each of them were content to proceed with the evidence as it exists. In my view that was the appropriate decision; as it is by no means clear whether the worker actually underwent an MRI evaluation for his compensable issues as contrasted with the non-compensable adrenal adenoma condition. [29] Returning to Dr. Jugnundan s June 24, 2011 report, he recorded that the worker had sustained injuries on a soft tissue basis including to his vertebral discs. Yet neurosurgeon Dr. Schutz, the REC evaluator, confirmed in the earlier, January 24, 2011 report that there was no evidence of myelopathy or radiculopathy. According to the neurosurgeon, the worker's coordination, reflexes, gait, power, tone and bulk were all normal as was his sensory examination. Accordingly, in my view Dr. Jugnundan is merely speculating that the worker's soft tissue injuries were in some way possibly contributing to his pain. [30] Dr. Jugnundan moreover recorded that the worker's fractures have since healed. This physician, however, further opines in his June 24, 2011 report in part as follows: however he still has ongoing pain. His complaints of ongoing pain are not atypical. He does not have a diagnosis of a chronic pain syndrome; however he does have chronic pain due to his injuries. Therefore it is my medical opinion that his chronic ongoing pain is directly related to his injury. [31] In my view, this is somewhat circular and hard to follow. If the worker's injuries have healed, and also accepting that, as Dr. Schutz opined, the worker has no radiculopathy, then how can it be said that the worker's pain is due to the healed injuries? Again, I am not persuaded that Dr. Jugnundan s speculative report is more reliable than the thorough and objective assessment by Dr. Schutz and physiotherapist Benack.

6 Page: 5 Decision No. 257/14 [32] Overall, the totality of the evidence is compelling that the worker, again fortunately, likely made a full recovery from a fairly traumatic work accident, without residual impairment. In my view the date selected by the Board of March 7, 2011 is likely correct. I so state because this was after the worker would have completed the more aggressive physiotherapy treatment which, as the various memos indicate in the file, was arranged for him. [33] It is not necessary that the Tribunal identify other causes for the worker's pain complaints which he described. Yet the Medical Liaison Office ( MLO ) discussion paper entitled Back Pain authored by Drs. Harris and Fleming is in the record before me and the workplace parties. This MLO discussion paper makes it clear, under the heading Aging Change Lumbar Spine, that there will be normal age-related changes, which, unfortunately, afflict us all, whether individuals perform demanding physical jobs or are desk-jockeys. While such age-related changes are not always symptomatic, the discussion paper does describe when there can be symptoms arising out of back pain. The MLO discussion paper also makes clear that back pain is quite common, and could fairly be described as the human condition. [34] Notwithstanding the worker's impressive physical condition, which is attributed not only to his physical work but also no doubt to this own efforts regarding exercise, the worker nevertheless, at age approximately 53, is into middle age. It is therefore not surprising that he has and will likely continue to experience some degree of back pain from time to time. Yet based upon the medical evidence before me, the work accident is unlikely to be a significant contributing factor to such pain. [35] For all these reasons, accordingly, as well as for the reasons expressed by ARO Bruno in the July 12, 2012 decision under appeal, the worker's appeal must be dismissed. The decision of the ARO is upheld. [36] The workplace representatives have my thanks for a through and well-presented case.

7 Page: 6 Decision No. 257/14 DISPOSITION [37] The worker's appeal is denied. The July 12, 2012 decision of the ARO is confirmed. DATED: March 11, 2014 SIGNED: J. Josefo