WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2002 ONWSIAT 1669 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 925/02 [1] This appeal was considered as a written case without a hearing in Toronto on July 4, 2002, by Tribunal Vice-Chair M. Crystal. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer M. DeMarco, dated January 29, That decision concluded that no measurable residual impairment resulted from either compensable accident which had been the subject of the appeal and that the worker was not entitled to a non-economic loss assessment. [3] The worker was represented by Ms. Juliana Vieira, consultant. The employer was represented by Ms. Hilary Amolins, consultant. THE RECORD [4] The material in the Case Record (three volumes) dated October 13, 1998, prepared by the Tribunal Counsel Office (Exhibit #1) was considered. In addition, Addendum No. 1, dated April 17, 2002 (Exhibit #2) and Addendum No. 3, dated June 21, 2002 (Exhibit #3) were considered. [5] Written submissions were made by Ms. Amolins. THE ISSUES [6] The issue to be determined in this appeal is whether the worker is entitled to a non-economic loss assessment in relation to injuries arising out of her workplace accidents which occurred on August 24, 1990 and/or September 1, THE REASONS (i) Background [7] The worker suffered a workplace accident on August 24, 1990 when she lifted a roll of stretch wrap film and experienced a muscle strain to her neck and right shoulder. The roll of film weighed about 50 lb. At the time of the accident, the worker was employed as a stock person by the accident employer who carried on a manufacturing business. [8] The worker was treated for her injury on August 24, 1990 by her family physician, Dr. Eunice Lau, who prepared a Physician s First Report of the same date. The report provided a diagnosis of cervical/trapezius muscle sprain. Conservative treatment, including Advil, Robaxisol and rest, was prescribed.

2 Page: 2 Decision No. 925/02 [9] The Board allowed initial entitlement for the worker s claim in September 1990 [10] A Physician s Progress Report from Dr. Lau dated October 1, 1990 provided the same diagnosis as she provided in her August 1990 report, but in addition, also provided the diagnoses of degenerative disc disease of the cervical spine and rotator cuff tendonitis of the right shoulder. The report also noted that the worker had been referred to Dr. Sennik, orthopaedic surgeon. Dr. Sennik consulted with the worker on October 22, 1990 and prepared a report of that date which stated in part: This patient basically presents with two problems. One is a slight sprain of the neck which I think can be treated quite easily with some exercise program. However, the main problem seems to be bursitis of the shoulder joint. Her x-rays show calcification in the shoulder joint itself and I think the patient needs to have an injection of cortisone. I will also start some physiotherapy exercises after that. Hopefully this will improve her status. [11] The worker continued to experience problems with her neck and shoulder throughout She began chiropractic treatments in December A Chiropractor s First Report was prepared by D.B. Fligg, D.C. dated January 15, 1991 which stated that the worker experienced aching, soreness and stiffness in her neck and upper back to the shoulder. Chiropractic treatment and exercises were prescribed. [12] In early 1991, the worker returned to work in a graduated program, increasing her work hours over the period of re-entry. A report prepared by Dr. Lau dated February 7, 1991 noted that the worker had an increase in shoulder pain after returning to work at six hours per day. Restrictions were provided for no lifting or excessive exertions of the arms and shoulders and no prolonged standing or bending. [13] The worker was referred by Dr. Lau to Dr. Dana Wilson, orthopaedic surgeon, who consulted with the worker on August 23, 1991 and prepared a report of that date, addressed to Dr. Lau, which stated in part: As you know, last August she was lifting a heavy object at work and developed severe neck pain. There was no radiation of this pain and was not associated with any neurological symptoms. She was managed with physiotherapy and chiropractic manipulations and her pain settled so that by January of this year she returned to work. Last week she had a recurrence of her pain which is mainly right side of her neck and will radiate to the right shoulder. There is no neurological symptoms with this and her legs have no symptoms as well. Bladder and bowel function is intact. She is complaining of some headaches and dizziness. Muscle relaxants and Tylenol have relieved her symptoms somewhat but she still remains disabled. On examination she has a full range of motion in her cervical spine. She is neurologically intact. Examining her shoulders is normal. Her x-rays reportedly show some degenerative changes at C-5, 6. Her CAT scan shows a small osteophyte at this level. This lady has mechanical neck pain. She says she benefits from the chiropractic manipulations so I told her to continue with these. I have given her a list of exercises to do to strengthen her neck muscles to see if we can prevent these episodes from coming back. I will see her again at any point.

3 Page: 3 Decision No. 925/02 [14] The worker was referred by Dr. Lau to the Canadian Back Institute where she was assessed by Tim Black, registered physiotherapist, on September 17, Mr. Black s report dated September 19, 1991 reviewed the worker s history of symptoms and treatment, including the August 1991 recurrence referred to by Dr. Wilson. The report concluded by noting: On examination, the patient sat with a forward head posture. Movement into flexion and extension were moderately restricted and reproduced her symptoms. Lateral flexion and rotation were full range of motion and pain-free. Retraction gave suboccipital pain while protraction reproduced her trapezius pain. Neurological and shoulder exam were entirely clear. Initial impression is of musculo-skeletal dysfunction in the cervical spine. Initial treatment will consist of pain control exercises, posture correction and an active exercise program. I will keep you informed of her progress. I anticipate anywhere from 4 to 6 weeks on the program [15] The worker returned to modified duties at work in November 1991 but continued to have pain in her neck and shoulder. A report prepared by Dr. Lau dated June 5, 1992 stated that the worker s condition again became exacerbated at work in April The report noted that the worker had had further exacerbations of her neck condition in May and June. The worker continued with chiropractic treatment and was referred by Dr. Lau to Dr. Ruth Smith, physiatrist. [16] Dr. Smith saw the worker and prepared a report on the consultation dated July 3, The report concluded by noting: Assessment: This lady appears to have mechanical neck and back pain. She has documented DDD in her cervical spine, primarily at C5,6. She appears to be more wide spread [sic] to accessory movements with discomfort over the spinous processes and right sided facets of C3, 4 and 5. She has soft tissue findings of spasm in her rhomboids and trapezius. Her nuchal ridge is exquisitely tender and tests in this area are subjective of some occipital neuralgia. She has rotator cuff calcific tendonitis. She has done a good job at maintaining her range of motion and strength with the chiropractor, however, she is at risk for injury to this area with a lot of overhead work or repetitive mid height work and I think that the total collection of her complaints are going to necessitate some permanent restrictions in her job. She is a highly motivated lady, she likes to work and desperately wants to return to work, however, her numerous attempts have been fought [sic] with failure and she understandably is becoming depressed and is fearful that she is not going to be able to get to work. I think it is very important that this lady be facilitated in every way to return to the workforce. [17] The worker was referred by the Board to the Orthopaedic and Arthritic Hospital Regional Evaluation Centre (REC) where she was the subject of further assessment. Dr. Peter Welsh and S. Lurch, physiotherapist conducted the REC assessment and prepared a report dated July 6, 1992 which stated in part:

4 Page: 4 Decision No. 925/02 Current Situation: Pain was described in the back of the neck with tightness in the right shoulder blade area and there was some referral into the upper arm. There was discomfort also in the left side of low back. This was mechanical in character. Her discomforts were eased by resting. She has become as a consequence quite sedentary in her whole activity program. Musculoskeletal review: There was some increase in the normal thoracic kyphosis. The overall alignment was otherwise satisfactory. Spine movements were limited in the low back with flexion to knee level and extension was ¾ range. She tended to climb up her thighs with reversal of the normal rhythm. Cervical spine movement was normal. Shoulder movement showed some discomfort at the extreme of range. There was some tenderness over the acromioclavicular joint. Straight-leg raise testing showed no sign of limitation. There was good effort in strength testing but rather unusual global diminution of touch and pin-prick appreciation in the right upper extremity. Impression: This woman has some ongoing problems from mechanical back pain following a strain injury. Undoubtedly there are in the background some degenerative changes contributing to the ongoing complaints. There are also features of anxiety evident. Recommendations: There should be no specific restriction placed on her activity but rather she should be encouraged to increase her activities, to participate in the work hardening programme with a view to considering a return to her regular line of work. This should be accomplished over the course of 4-6 weeks. Prognosis: Short-term limitation will be seen. No long-term disability should be encountered although she may be prone to relapses from time to time. Continuance of her own exercise program will be essential and to that extent further rehabilitation will be motivation dependent. [18] Following the worker s assessment at the REC, the worker s entitlement was reviewed by Dr. Hadjiski, the Board s Unit Medical Advisor. In an internal Board memorandum dated August 7, 1992, Dr. Hadjiski noted that no permanent impairment was evident in the worker and that further significant improvement was expected. The memorandum also noted that it was apparent from the worker s x-ray reports that she had a minor pre-existing condition. [19] By letter dated September 28, 1992, the Board advised the worker that no organic permanent impairment was evident. The worker s benefits were made final effective August 28, [20] The worker consulted with Dr. Smith again in October, 1992 and a report dated October 9, 1992 prepared by Dr. Smith indicated that the worker s range of motion had improved although extension was approximately half of normal range. A further report prepared by Dr. Smith dated March 4, 1993 focussed primarily on the problems that the worker was experiencing with her lower back. In a further report dated April 30, 1993, Dr. Smith stated that based upon an examination of that date, the worker had minimal spasm in her cervical spine. She had good range of motion, technically within normal limits. Flexion was one inch, chin to chest, extension 70 degrees, side flexion 30 degrees bilaterally, and rotation 70 degrees bilaterally.

5 Page: 5 Decision No. 925/02 [21] In a further report from Dr. Smith to Dr. Lau, dated June 25, 1993 Dr. Lau noted that the worker had completed a course of therapy and returned to work after taking holidays, when a different foreman asked her to perform work that was not suitable for her. As a result, the worker s neck condition flared up. The report suggested that the worker keep copies of her medical reports in her pocket so that they might be available to show new supervisors who might not be familiar with her medical history. [22] In correspondence from the employer to the Board dated July 15, 1993, the employer sought to increase the amount of Second Injury and Enhancement Fund (SIEF) relief that the Board had awarded to the employer in relation to the worker s claim. In that correspondence, the employer noted that the worker had a history of arthritis which dated back to The letter referred to arthritis in the worker s chest, fasciitis, and a number of other inflammatory conditions. Notably, the correspondence refers to a 1980 episode of neck pain during which the worker was off work for two weeks. The letter also refers to shoulder pain that the worker experienced in [23] The worker s condition was reviewed by the Board s Unit Medical Advisor, Dr. Colaco, in an internal Board memorandum dated December 22, That memorandum stated that the worker s recurrences appeared to be the result of aggravation of her underlying degenerative disc disease. The memorandum stated that the worker did not have a permanent impairment which was compensable, but that her degenerative disc disease should be considered a noncompensable permanent impairment. The view that the worker did not have a compensable permanent impairment was communicated to the worker by correspondence from the Board to the worker dated February 6, [24] The worker had a further workplace accident on September 1, 1994 when she was driving a lift truck. The worker saw Dr. Lau on September 6, 1994 who prepared a Physician s First Report of the same date in relation to the accident. A diagnosis was provided of Exacerbation of mechanical neck pain, trapezius sprain. [25] The Board accepted the worker s claim for entitlement arising from the September 1994 incident. [26] The worker saw Dr. Ruth Smith again on October 21, In a report of that date addressed to Dr. Lau, Dr. Smith described the September accident and commented on the cause of the worker s ongoing neck condition. That report stated in part: she has had a recurrence of neck pain. She was working doing primarily paperwork at her employment site when the foreman asked her to do some tow motor work. She stood on the tow motor for most of the day. This requires standing and driving the tow motor, rotated looking over behind her. She became painful towards the end of the day and by the second day was having so much pain and swelling that she was not able to get to work. She started back to work on the 19th of September. She has done all the right things. She is going to have intermittent flares of cervical pain because of underlying degenerative disc disease whenever she has to do a lot of repetitive or rotational or extension type manoeuvres.

6 Page: 6 Decision No. 925/02 I really don't have any other comments apart from saying that despite this lady's underlying degenerative disc disease in her neck she was asymptomatic until the work related injury and therefore I do not think that it is fair to blame all of her continued problems on her underlying disc disease. There is a component that was brought to threshold by the work-related injury and is going to be exacerbated when she has changes in her work demands imposed by her employment. [27] The worker continued to have neck pain throughout 1994 and In a report dated May 26, 1995, Dr. Smith noted that many of the tasks she was asked to perform by the employer were difficult or inappropriate for her. Reports prepared by Dr. Lau dated July 6, 1995 and August 8, 1995 indicated that the worker was also experiencing problems in her left shoulder, upper arm and elbow. [28] The worker s entitlement was reviewed by Board Medical Advisor Dr. D Souza in early In an internal Board memorandum dated February 8, 1995, Dr. D Souza reiterated the Board s view that the worker s ongoing problems were related to her degenerative disc disease which it considered to be non-compensable. The memorandum also stated that entitlement for chronic pain disability (CPD) was not in order, given that there was an organic basis for the worker s continuing symptoms, namely, her underlying degenerative disc disease. Dr. D Souza repeated his view that the worker s underlying degenerative disc disease was the cause of her problem and that there was no compensable basis for a permanent impairment to the worker. [29] The worker continued to see Dr. Smith in 1995 and In a report dated March 22, 1996 Dr. Smith stated that the worker had been treated by Dr. Stewart, although the case materials do not include any reports from Dr. Stewart. Dr. Smith s report stated that Dr. Stewart injected the worker s left shoulder on three occasions and sent her for a course of physiotherapy which ended in December The report noted that the employer was having difficulty providing the worker with suitable work. It stated in part: When I examined her posture today she is still somewhat forward positioned. Her cervical range of motion is blunted and her neck is achy. The left shoulder shows a restricted pattern of movement in elevation, abduction and internal rotation. I really don't have any concrete suggestions for her medically. The board is unlikely to pay for any further physio. She is participating in a home program and she will likely continue to improve as she has been slowly doing over time as the soft tissues about the shoulder gradually mobilize. It sounds like there is not going to be any kind of suitable work at [accident employer] despite the worker's motivation to return to the workplace and in all likelihood she is not going to have a job to return to and I have suggested to her that she should start to try and prepare herself for the possible inevitability. If there is no job for her to return to at [accident employer] I think that she should be assessed for a permanent partial disability, taking into account her chronic cervical problems which have been resistant to intensive medical management and also taking into account her continued left shoulder problems which are going to require in all likelihood some permanent restrictions.

7 Page: 7 Decision No. 925/02 [30] In an internal Board memorandum dated May 29, 1996 Dr. D Souza reiterated the Board s view that the worker s ongoing problems with her cervical spine and shoulders was attributable to the worker s underlying condition of degenerative disc disease, and that the evidence did not support a compensable permanent impairment. [31] Dr. Smith provided a further report dated August 6, 1996 which reviewed the worker s history. The report noted that at least part of the worker s problem was due to the type of work that the employer provided to her. The report stated in part: (ii) According to the history which she reported it certainly would not be unreasonable to speculate that the repetitive lifting, pulling, pushing, etc. had a role to play in initiating the complaints with respect to her left shoulder. There is no other history of motor vehicle accident or other trauma sustained on her own time and it is quite possible that repetitive movements required by her job have played a role in the left shoulder complaints. She has had evidence of right calcific tendinitis in the past and had some mild range of motion restriction on outside as far back as I'm not sure that I would agree with the Workers Compensation Board decision of June 1996 that she has reached a maximum rehabilitation point. I certainly have seen the worker almost pain-free with good functional ranges of motion in her cervical spine and shoulders in the past. This occurred after a course of therapy which I had prescribed and helped to supervise up to April the 30th, After that time she has come to my office on numerous occasions and been in touch with me many times because of her employer's demands for work participation which [the worker] feels is inappropriate. Basically when she has des cribed these jobs to me I have agreed with her that she would have extreme difficulty participating in those types of heavy and/or repetitive job components. I believe that if the worker could have a course of appropriate therapy that she would once again come under reasonably good symptom control. I do not think that she is going to stay under reasonably good symptom control unless she is allowed to do non-provocative work. Applicable law [32] In this appeal the worker is seeking benefits in relation to two accidents which occurred on August 24, 1990 and September 1, 1994, respectively. Accordingly, the worker s benefits in this appeal are governed by the pre-1997 Act. [33] It is well understood that the "Thin-Skull Doctrine" applies to workers' compensation cases. Decision No. 63/98R 48 W.S.I.A.T.R. 105 notes that the Act does not contemplate the "discounting" of worker's benefits to account for a pre-existing condition. The decision notes at 108: If a worker has suffered a personal injury by accident arising out of and in the course of employment, the Act requires the Board to provide benefits for the consequences that 'result from' the injury. If a consequence 'results from' the injury, nothing in the Act permits the Board to reduce the benefits to account for any non-work-related factors that may have combined to contribute to that consequence. If the accident is found to be work-related, the worker is entitled to the full benefit provided by the statute for any consequence that results from the accident. If the accident is not work-related, the worker may not receive any benefits under the statute.

8 Page: 8 Decision No. 925/02 (iii) Analysis [34] In this appeal the worker suffered a workplace accident on August 24, The Board accepted the worker s initial entitlement to benefits but expressed the view, as noted in Dr. Hadjiski s memorandum of August 7, 1992, that the worker did not have a compensable permanent impairment in relation to her neck or right shoulder problem. The Board noted, however, that any permanent problem experienced by the worker was attributable to a preexisting degenerative problem in the worker s cervical spine. [35] This view was expressed by Dr. Colaco in his memorandum dated December 22, 1993 in which he referred to the worker s degenerative disc disease of the cervical spine as a non-compensable permanent impairment. The view that the worker s ongoing neck and shoulder problems were non-compensable was also expressed by Dr. D Souza in his memoranda referred to above. [36] As noted above, the Thin Skull Doctrine applies to workers' compensation cases. That doctrine applies such that if a worker has a pre-existing condition which is not symptomatic prior to the subject workplace accident, but which becomes symptomatic as a result of the accident, the existence of the worker s pre-existing condition will not limit the worker s entitlement to benefits. [37] Where, however, a worker suffers from a pre-existing condition which is symptomatic, to the extent that it is aggravated by a workplace accident, benefits are limited to the period of the acute episode. Once the worker s symptoms resolve to their pre-accident level, the worker is no longer entitled to benefits. [38] I find that, on a balance of probabilities, immediately prior to the worker s accident on August 24, 1990, the worker was essentially asymptomatic. There is some evidence that the worker was bothered by some neck problems prior to In correspondence from the employer to the Board dated July 15, 1993, reference is made to the worker losing time from work as a result of arthritis or other inflammatory problems. In particular, reference is made to a neck problem from which the worker suffered in or about This evidence, however, does not support a finding that the worker was symptomatic at the time of her 1990 accident, or that she had symptoms which were of a permanent or ongoing nature prior to that accident. [39] In order to find that the worker is not entitled to benefits for a permanent impairment as a result of her 1990 accident, it would be necessary to find that subsequent to the accident, the worker returned to her pre-accident state. As noted above, I have found that prior to the 1990 accident the worker was essentially asymptomatic. I find that the condition of the worker described by Dr. Colaco as a non-compensable permanent impairment in 1993 was not her pre-accident condition. The worker s condition subsequent to her 1990 accident was symptomatic and, apparently in the view of Dr. Colaco, permanent (although in his view, also not compensable). The fact that the worker had a permanent impairment is also supported by Dr. Smith s statement in her March 22, 1996 report that the worker would require permanent restrictions as a result of the condition of her cervical spine. [40] Rather than returning to her pre-accident, asymptomatic condition, I find that the worker s pre-existing degenerative disc disease was permanently aggravated in that it became permanently

9 Page: 9 Decision No. 925/02 symptomatic subsequent to the 1990 accident, and that the worker is entitled to benefits for a permanent impairment as a result of such permanent aggravation. The medical evidence noted above, and in particular Dr. Smith s March 22, 1996 report, supports a finding that the worker s condition remained symptomatic long after the usual healing times for such a soft tissue injury. [41] I adopt the analysis provided by Dr. Smith in her October 21, 1994 report in which she stated: despite this lady's underlying degenerative disc disease in her neck she was asymptomatic until the work related injury and therefore I do not think that it is fair to blame all of her continued problems on her underlying disc disease. There is a component that was brought to threshold by the work-related injury and is going to be exacerbated when she has changes in her work demands imposed by her employment. [42] I find that the worker is entitled to benefits for a permanent impairment in relation to her cervical spine and right shoulder. I find that while these problems are related to the worker s underlying degenerative disease, that condition was essentially asymptomatic prior to the 1990 accident. I find that the worker s condition became permanently aggravated as a result of the 1990 accident. I find that the accident of September 1, 1994 did not contribute significantly to the worker s permanent impairment. THE DECISION [43] The appeal is allowed. 1. The worker has a permanent impairment to her cervical spine and right shoulder which became symptomatic as a result of the workplace accident of August 24, The Board is directed to conduct a non-economic loss assessment of the worker s cervical spine and right shoulder. 3. The Board is directed to pay the worker a non-economic loss benefit commensurate with the level of disability disclosed by the Board s assessment. DATED: July 31, SIGNED: M. Crystal