WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 585/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 585/15 BEFORE: S. Netten: Vice-Chair HEARING: March 25, 2015 at Toronto Written DATE OF DECISION: April 1, 2015 NEUTRAL CITATION: 2015 ONWSIAT 710 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated February 21, 2014 APPEARANCES: For the worker: For the employer: Interpreter: T. Troy, Union representative Not participating None 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. 585/15 REASONS (i) Issues [1] The issues under appeal are as follows: 1. Entitlement to a reassessment of the permanent disability (PD) pension for the low back, presently rated at 20%; and 2. Entitlement to coverage for physiotherapy treatment. (ii) Overview [2] The worker has entitlement for a permanent partial low back disability arising from a workplace accident on June 7, He was granted a 15% PD pension in December 1991, which was confirmed at 15% upon reassessment in June 1993 and increased to 20% upon reassessment in January The worker received health care benefits including medication coverage, a lumbosacral support and clothing allowance. In terms of active treatment, he was most recently funded for a course of chiropractic care, from March to June [3] The worker requested a further PD pension reassessment in October This request was denied at the operational level of the Board in November The worker also sought additional physiotherapy treatment in The Board denied both the pension reassessment and physiotherapy in November The worker s objection was denied by an Appeals Resolution Officer in February The worker now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In submissions attached to the Notice of Appeal, dated March 13, 2014, the worker s representative stated that the worker s physician has provided evidence of his worsening condition, and that there is no evidence that the worker no longer requires continual physiotherapy; he noted that the absence of such treatment accelerates the deterioration of the worker s condition. (iii) Medical evidence [5] Board Medical Consultant Dr. D. Dorcas examined the worker for pension purposes on January 12, 2009: He states that his back pain has become worse over the last couple of years. He is not sleeping well and he is worse in the mornings. He has constant low back pain, which he describes as a bad ache and he also has sharp pains on walking. The pain radiates into both the right and left buttock and down both lower limbs to the feet. The pain in the right lower limb is worse than on the left. His back pain is slightly worse in humid weather. He complains of numbness in the right lateral thigh, right lateral calf and the top of the right foot. He complains of a burning type pain in the soles of both feet. He has experienced some weakness in the right lower limb. He gets frequent cramps in the toes of the right foot and occasionally in the left foot. His back pain is aggravated by coughing, sneezing and straining His sitting tolerance is between 45 and 60 minutes. His walking tolerance is between 10 and 15 minutes. Standing in one place is not well tolerated. His sleep is disturbed and he estimates that he gets between 2 and 3 hours per night. He states that sometimes the pain is so bad that he can t turn over in bed

3 Page: 2 Decision No. 585/15 He wears a lumbosacral support with steel stays 7 or 8 hours a day. His medications include Tylenol #3, Acetominophen [sic] 500 mg He is independent in activities of daily living, but finds some of them very difficult. He is single and lives alone in an apartment with an elevator. He does have trouble on stairs and steps, particularly on going up. He states that he has to hire help for the housework. He walked slowly with a slightly antalgic gait on the right. There was marked flattening of lumbar lordosis There was paravertebral muscle spasm and tenderness on the right side. There was quite marked tenderness along the lumbar spine from about L3 to the sacrum. There was marked tenderness over both SI joints greater on the right than on the left, and also marked tenderness over the sciatic notches again greater on the right than on the left. He had some difficulty standing on his toes and was unable to stand on his heels. He could only manage about a 10% squat. On range of motion, lumbar flexion was 30 degrees and extension zero degrees. Lateral flexion was 5 degrees to the right and 10 degrees to the left. Lateral rotation was 10 degrees to both the right and left. The knee reflexes were slightly reduced Sensation to pin prick was decreased along the lateral aspect of the right thigh and appeared to be a little better in the right leg. There was a marked decrease in all distributions in the right foot Muscle tone and power of right hip flexors, extensors, abductors and adductors were reduced compared to the left there was a markedly positive Bowstring Test bilaterally. DIAGNOSES Multilevel degenerative lumbar disc disease. [6] Subsequently, an MRI of January 22, 2010 described mild disc protrusions without stenosis at L3-4, L4-5 and L5-S1, and degenerative facet disease with mild narrowing of the right neural foramen at L4-5. The findings are summarized as multilevel degenerative disc and facet disease. [7] On February 2, 2010 chiropractor Dr. J. Cain noted that the worker had difficulty sleeping, sitting or walking for prolonged periods, muscle spasms, and markedly reduced range of motion. He described this in correspondence of March 25, 2010 as a recent flare-up. After a partial course of treatment the worker s range of motion had increased, and Dr. Cain expected further improvement; however, the worker s range of motion upon discharge was not provided. [8] The worker s family doctor, Dr. W. Liang wrote low back pain getting worse. Should have reassessment of disability pension in a prescription note dated July 19, On August 16, 2010, nurse practitioner A. Morris (associated with Dr. Liang) measured flexion to 15, no extension, and lateral flexion to 30, with no neurological findings. [9] In March 2011 Dr. Cain reported another flare-up of the low back condition, also affecting the upper back and neck. The worker s lumbar flexion was then 5 and his extension was 1-2. [10] On April 18, 2011 Board Medical Consultant noted that the worker s 20% PD pension reflects mechanical back complaints including Rt sciatic referral on a background of multilevel DD of the lumbar spine. [11] On March 20, 2012 Dr. W. Liang wrote needs physiotherapy for his back pain related to his compensable back injury.

4 Page: 3 Decision No. 585/15 [12] On April 16, 2012 physiotherapist W. Abdel-Razek proposed active stretching and strengthening, acupuncture, pool therapy, heat therapy and manual therapy to address the worker s chronic low back pain. At the Board s request, he provided range of motion findings, including forward and lateral flexion to 50% of normal, and extension to 25% of normal. Based upon the norms found in Dr. Cain s 2010 form, this would equate to approximately 30 flexion, 6 extension, and 12 lateral flexion. [13] A Board Manager memorandum of November 8, 2012 noted that the physiotherapist s findings were not worse than those at the last PD examination. This was the basis for the denial of further treatment and a PD reassessment. [14] On January 15, 2013, Dr. Liang wrote: I am writing the WSIB on his behalf regarding coverage of physiotherapy for his compensable mechanical low back pain. He has been having chronic low back pain for many years now since his work related back injury. MRI of the lumbar spine showed multilevel degenerative disc disease. His back pain recently has been increasing to the point that he is having difficulty walking. Examination showed flexion to 15 deg, ext <5 deg, lateral flexion bilaterally were [sic] to 15 deg, all movements were associated with pain. He had physiotherapy in the past and it helped him a great deal, and enabled him to walk better. WSIB has rejected his request for physiotherapy recently, and I sincerely ask that WSIB would re-consider this, and cover his physiotherapy for 6-8 weeks, so to help him to mobilize and improve his walking. [15] Dr. Liang reiterated his findings on August 14, 2013, to support continued medication coverage. (iv) (a) PD reassessment Law and policy [16] Since the worker was injured in 1989, the pre-1989 Workers Compensation Act ( pre-1989 Act, but applicable to accidents up to January 1, 1990) applies to this appeal. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. Sections 112(3) and 126 of the WSIA require Board policy to be applied to decisions after January 1, 1998, regardless of the accident date. [17] Pursuant to section 45 of the pre-1989 Act, if a compensable injury results in a permanent disability, the worker is entitled to a PD pension calculated based upon an estimate of impairment of earning capacity. Board policy on Permanent Disability Benefits - Ontario Rating Schedule (Operational Policy Manual (OPM) Document No ), adopts a schedule of benchmarks designed to estimate the impact of specific injuries on the earning capacity of an average unskilled worker. With respect to back injuries, the Ontario Rating Schedule estimates that total immobility of the lumbar and/or lumbosacral spine corresponds to a 30% impairment of earnings capacity. [18] Tribunal jurisprudence frequently refers to Decision No. 915 (7 W.C.A.T.R. 1), which further explains the pension assessment process for the lumbar spine. The examiner looks at the totality of low back symptoms, particularly immobility and neurological impairment, to arrive at a pension rating. The testimony given by senior pension medical examiner Dr. Young at the hearing of Decision No. 915 describes the pension levels as follows:

5 Page: 4 Decision No. 585/15... an example of a person who'd be rated at 10 per cent for impairment of the back would be someone who has mild symptoms on an organic basis who obviously can't do heavy lifting, but has reasonably good tolerance for activities such as standing and walking. The physical findings would indicate mild restriction of back movements, perhaps to two-thirds of normal on all planes. No signs of nerve root irritation and no evidence of any neurological injury The 15 per cent would be someone with moderate symptoms. The physical findings would indicate restriction of mobility to approximately half normal on all planes. Perhaps signs of mild nerve root irritation, and no evidence of any neurological deficit. The evaluation of 20 per cent would be someone with moderate symptoms...on examination one would find that movement of the lumbar spine was conservatively restricted, probably only one-third of normal. There might well be some sign of nerve root irritation on the straight leg raising test. If there was a neurological deficit it would be minor in degree. In the 30 per cent category one would expect symptoms to be moderate to severe. The findings would be a marked restriction of mobility from either one-third of normal to complete restriction When you are rating at over 30 per cent, you are talking about the severity of the neurological deficits. The degree of loss of strength in the legs, the reflex changes, the wasting of the musculature, the loss of sensation, and the possibility of any involvement of bowel or bladder function [19] Board policy on Determining the Degree of Disability (OPM Document No ) states that a worker s disability may be reassessed if permanent disability worsens. [20] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. 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. (b) Discussion [21] The question to be determined on this issue is whether the worker has experienced a permanent worsening of his compensable disability since it was last assessed in January [22] Determination of permanent worsening must be made on the basis of objective clinical findings, rather than subjective complaints such as pain. Given the 30% benchmark rating for complete immobility of the lumbar spine, range of motion is the primary objective finding utilized in PD pension ratings, as a measurable proxy for more subjective limitations such as pain and activity tolerance. The presence of nerve root irritation or neurological deficits may also affect the rating. As in the description provided by Dr. Young above, the worker s 20% rating in 2009 reflected moderate symptomology and substantially reduced range of motion, along with symptoms in both lower extremities. Range of motion was approximately one-third of normal on balance across all planes: the worker s flexion of 30 was approximately half normal, his lateral flexion of 5 to 10 was approximately one-third of normal, and he had no extension. [23] The evidence of the worker s lumbar mobility from 2010 to date has varied. The highly restricted measurements noted by Dr. Cain would not, in my view, be reflective of ongoing impairment, as these describe the worker's condition during two acute flare-ups. Otherwise, relying upon measurements taken by the worker s nurse practitioner, physiotherapist and family doctor, the worker s mobility appears to have improved significantly in lateral flexion (12-15 bilaterally, to half normal or better), improved slightly in extension (0-6 ), and decreased in forward flexion (15-30, one-quarter to one-half normal). While the character of the worker s

6 Page: 5 Decision No. 585/15 lumbar immobility has thus changed since 2009, overall it continues to be in the range of approximately one-third of normal across all planes. Moreover, none of the reports from the worker s health professionals after the 2009 PD examination mention lower extremity symptoms associated with the lumbar spine, and there were no neurological findings on examination in August From this, I infer that there has been no worsening in this aspect of the worker s condition. Finally, the medical reports in 2010 and 2013 refer to difficulty walking and with activities of daily living, yet in January 2009 the worker had already reported sharp pains on walking and a limited walking tolerance, found certain activities of daily living difficult, and walked slowly with a slightly antalgic gait. In the absence of further objective findings in the recent medical reporting, I do not find the worker s functioning to have worsened beyond the moderate level recorded in As noted above, range of motion is the primary objective mechanism to assess changes in function and pain. [24] In comparing the recent objective medical findings with those in January 2009, and in consideration of the worker s 2009 rating in the category of approximately one-third mobility with some nerve root irritation or neurological deficit, I conclude that the worker s condition has not worsened significantly below the current assessed level since January As the medical evidence does not presently substantiate a permanent worsening of the worker s compensable chronic low back condition, he is not entitled to a PD pension reassessment at this time. (v) (a) Physiotherapy Law and policy [25] Section 52 of the pre-1989 Act stipulates that workers are entitled to such health care as may be necessary as a result of the injury. Board policy on Entitlement to Health Care (OPM Document No ) describes health care as including professional services provided by a health care practitioner, which includes a physiotherapist. Neither the legislation nor Board policy precludes payment for treatment or maintenance therapy after a worker has reached maximum medical recovery (MMR) and is in receipt of a PD pension. [26] While not binding on the Tribunal, the Board has produced a Best Approaches document for its adjudicators titled Maintenance Treatment, dated December That document describes maintenance treatment as treatment beyond MMR, with the purpose of preventing deterioration or reducing use of medication, rather than rehabilitation. It states that in determining whether to authorize maintenance treatment, the decision-maker must be satisfied based on objective medical findings, that the treatment is necessary to achieve one or more of the following objectives: - enables the worker to continue working; - leads to reduction in the worker s pain and/or medication use; - increases the worker s level of functioning or prevents a deterioration in the level of functioning; and - teaches the worker independent management of the condition. [27] The document elaborates upon factors to consider: Maintenance treatment should be considered when one or more of the following criteria are met. Fundamental to the evaluation is that the treatment is related to the current area of entitlement. It should always be subject to review, and the ongoing need supported

7 Page: 6 Decision No. 585/15 medically. The frequency and nature of the review will vary with the situation. Each case should be viewed on its own merits. 1. Is there current and specific medical information available to support the treatment? Is there other treatment not yet explored that might be more appropriate? Is the provider reasoning well described and supported? 2. Has the treatment to date prevented aggravation/exacerbation of symptoms? If so, is there an expectation that the proposed treatment will do so as well? 3. Is it expected that the proposed treatment will result in a decrease in the worker s pain and corresponding reduction in the frequency or dosage of medication? 4. Is it expected that the proposed treatment will increase level of function (for example increase the ability to perform the activities of daily living, increase ambulation distance, increase ability to lift/carry)? 5. Will the treatment teach/reinforce independent management of his/her condition? (For example, does it include home exercises or other suggested modifications in activity?) 6. Will the treatment enable the worker to continue working at regular or suitable work? 7. Have previous attempts at discontinuation of treatment resulted in the inability to maintain the worker s functional level and return to work status? [28] I consider the Board s criteria to be of assistance in determining whether physiotherapy treatment, as a form of health care, is necessary. Similar considerations have been made by the Tribunal; for example, in Decision No. 220/94 the Panel allowed ongoing chiropractic treatment which reduced symptoms, allowed the worker to participate in return to work efforts, and avoid medication, and in Decision No. 1036/01 the Vice-Chair considered treatment to be necessary where it maintained the worker s level of function. (b) Discussion [29] In this appeal, the worker s physician, Dr. Liang, prescribed physiotherapy for the back, without further explanation, in March and November In January 2013 he elaborated upon his recommendation, proposing a six to eight week course of physiotherapy specifically to help the worker with mobilization and ambulation. He noted positive results from physiotherapy in the past. The worker s ongoing difficulties with walking have been recognized by the Board in the 2009 pension examination, and emphasized by his health practitioners since that time. [30] Referring to the criteria cited above, I find that there is specific medical information which supports the treatment, this form of treatment has helped in the past, and it may reasonably be expected that the proposed treatment will increase or maintain function in terms of walking ability. Relying upon Dr. Liang s recommendation, therefore, I conclude that physiotherapy is warranted pursuant to the legislation as well as Board practice. [31] While the worker s representative refers to continual physiotherapy in his submissions, this has not been prescribed. Accordingly, only the single course of physiotherapy recommended by Dr. Liang is granted at this time.

8 Page: 7 Decision No. 585/15 (vi) Conclusions [32] The evidence does not substantiate a permanent worsening of the worker s compensable chronic low back condition below the 20% level established in January He is not entitled to a PD pension reassessment at this time. [33] The worker is entitled to a course of physiotherapy of up to eight weeks, as recommended by his physician to improve function. Entitlement to physiotherapy thereafter, if requested, is to be determined by the Board on the basis of updated medical information.

9 Page: 8 Decision No. 585/15 DISPOSITION [34] The worker s appeal on the issue of entitlement to a reassessment of his PD pension is denied. [35] The worker s appeal on the issue of entitlement to physiotherapy is allowed. The worker is entitled to a course of physiotherapy for up to eight weeks. Any further requests for physiotherapy thereafter are to be determined by the Board in the first instance, subject to the usual right of appeal. DATED: April 1, 2015 SIGNED: S. Netten