WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1068/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1068/15 BEFORE: J. Frenschkowski : Vice-Chair B. M. Young : Member Representative of Employers R. J. Lebert : Member Representative of Workers HEARING: May 27, 2015 at Windsor Oral Post-hearing activity completed on January 4, 2016 DATE OF DECISION: July 27, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2027 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 2, 2012 APPEARANCES: For the worker: For the employer: Interpreter: J. Cantwell, Paralegal K. Melanson, 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. 1068/15 REASONS (i) Introduction [1] The worker was employed as an educational assistant ( EA ) for special needs students with the accident employer, a school board, when she sustained a neck strain on March 25, 2009, after being struck in the head with a basketball. The worker was assessed and awarded a Non- Economic Loss ( NEL ) of 29% in recognition of the permanent impairment that arose as a result of the compensable accident. [2] The employer appeals the decision of the Appeals Resolution Officer ( ARO ), dated October 2, 2012, in which the ARO confirmed both the worker s entitlement to a permanent impairment and the quantum of the NEL award. [3] Upon completion of the worker s oral testimony at hearing, the Panel requested further medical records from the worker s chiropractor and from a local health care facility. The requested documentation was received and compiled into Post-Hearing Addendum No. 1, dated August 20, 2015, and Post-Hearing Addendum No. 2, dated November 13, This material was distributed to the parties, and the representatives were invited to provide written submissions. These written submissions were compiled into Post-Hearing Addendum No. 3, dated January 4, (ii) Issue [4] The issues to be determined in this case are whether the worker is entitled to a NEL award and whether the worker s non-economic loss (NEL) award was correctly assessed at 29%. (iii) Background [5] The worker began her employment as an EA for special needs students with the accident employer in Over the course of her employment, the worker has sustained four compensable injuries involving her neck: 1. On October 2, 2006, the worker was hit on the right arm, kicked in the left lower leg, and punched in the chin, when she attempted to stop a student from throwing a computer. The worker experienced a recurrence of symptoms from this injury in September (Claim No. 1) 2. On October 20, 2008, a student pushed an easel up against her, resulting in injuries to her right and left lower legs, the toes on her right foot, and her neck. (Claim No. 2) 3. On February 2, 2009, the worker reported an injury to her neck that arose after a student continuously pulled on her arms and her left hand. (Claim No. 3) 4. On March 25, 2009, the worker was hit in the head by a basketball. (Claim No. 4) [6] The worker had received medical attention from her chiropractor, Dr. Carter, after each incident, but did not lose any time from work. [7] The worker was referred to a Regional Evaluation Centre ( REC ) for a multidisciplinary assessment. She was assessed on December 23, 2009, by Dr. Bartol, an orthopedic surgeon, and

3 Page: 2 Decision No. 1068/15 a physiotherapist. In their initial report, the assessment team noted that the worker had been taking Celebrex prior to her injury and that an MRI, performed on September 3, 2008, had revealed a disc bulge at C5-6 and a significant disc herniation at C6-7, both without significant nerve root compression. Neck range of motion ( ROM ) was found to be reduced: flexion was ¼ of normal, extension, left lateral bending and rotation were ⅔ of normal with pain at the end of the range, and right lateral bending and rotation were full. The worker also had tenderness and muscle spasm over the left trapezius muscle and along the left scapula. [8] An MRI was ordered and performed on January 18, It showed degenerative changes at the C4-C5, C5-C6, and C6-C7 levels, specifically: At the level of C4-C5, moderate degenerative disc dehydration, mild asymmetric broadbased uncovertebral disc osteophyte complex flattening the right paracentral aspect of the thecal sac is noted without significant central canal stenosis however associated with moderately right-sided hypertrophic neuroforaminal bony spur resulting in at least moderate degree of right-sided neural foraminal narrowing. At the level of C5-C6, moderate broad based disc osteophyte complex indenting the anterior surface of the thecal sac and flattening the anterior aspect of the spinal cord are noted, resulting in an almost 40% loss of the AP diameter of the spinal canal. Mild associated bilateral ligamentum flava hypertrophy and minimal left-sided facet joint disease are noted, resulting in a mild degree of spinal canal stenosis which should be reassessed based on clinical examination. Mild to moderate right and mild left-sided uncovertebral joint arthropathy and hypertrophic neural foraminal bony spurs are noted, resulting in mild left and mild to moderate right-sided neural foraminal narrowing. At the level of C6-C7, mild degenerative disc dehydration is noted, associated with minimal broad based annular disc bulge slightly effacing the anterior surface of the thecal sac without significant central canal stenosis. Mild asymmetric right-sided uncovertebral joint arthropathy is also noted without remarkable neural foraminal narrowing. [9] In his final report of January 25, 2010, Dr. Bartol recommended electro-diagnostic testing, as well as a four week trial of cervical traction and cervical traction exercises, followed by a repeat assessment, if the worker did not show improvement. No work restrictions were recommended at the time. [10] The worker began physiotherapy treatment on February 18, She was seen in consultation with a neurosurgeon, Dr. Dang, on September 3, The worker reported no neurological symptoms and the physical examination showed normal power, sensory and deep tendon reflexes in both arms. Dr. Dang was of the opinion that the worker s neck pain was due to multifactorial causes and that her symptoms were mainly myofascial and soft tissue in nature, and recommended that she try Botox injections and/or acupuncture. He did not recommend surgical intervention. [11] The worker underwent botox injections to her cervical spine, which resulted in significant improvement in her cervical ROM, as well as decreased neck pain and muscle hypertonicity. Dr. Carter wrote to the Workplace Safety and Insurance Board (the Board ) on February 28, 2011, requesting another course of the treatment. [12] On March 14, 2011, the Case Manager determined that the worker had been left with a permanent impairment of her neck as a result of the March 2009 compensable accident. The NEL assessment was conducted on April 29, 2011 and the worker s impairment was rated at 29%.

4 Page: 3 Decision No. 1068/15 (iv) Worker s testimony [13] The worker described the accident of March 25, She explained that she had her back towards the child with the basketball that struck her and initially believed it had been thrown, however, a colleague told her that it had been kicked and launched across the gym. She saw stars and was stunned for a few moments after having been struck. She went to her chiropractor, as she had regular appointments for adjustments. She participated in all the recommended treatments, including traction which she found to be unhelpful, and physiotherapy which helped to alleviate the pain but did not assist in restoring her ability to turn her head fully to the left. Due to the lack of mobility in her neck, the worker must work with students placed on her right-hand side. She explained that, typically, an EA would place herself beside a student based on their handedness, but that she cannot sit and work with students to her left. [14] When discussing her prior compensable injuries, the worker stated that these had resolved with treatment from Dr. Carter. She could not recall the circumstances that led to the MRI of 2008 being ordered, nor could she recall whether she had been treated by Dr. Carter prior to her first compensable accident of October (v) Law and policy [15] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA) and section 42 of the pre-1997 Workers Compensation Act, as amended, provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [16] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [17] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [18] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions. [19] The Board also supplied the following policies that are relevant to the determination of the matters under appeal: Operational Policy Manual (OPM) Document No , Determining the Degree of Permanent Impairment ; OPM Document No , Calculating NEL Benefits ; and, OPM Document No , Effect of a Pre-existing Impairment.

5 Page: 4 Decision No. 1068/15 (vi) Submissions [20] The employer s representative submitted that the worker is not entitled to recognition for a permanent impairment arising from the March 25, 2009 compensable accident. In support of his position, he highlighted the fact that the worker had no limitations in performing her duties or functional restrictions after the incident. He pointed to the worker s pre-existing disc herniation as well as her long-standing, symptomatic neck condition, as the source of the worker s ongoing complaints and suggested that the worker may have had a permanent impairment prior to the March 2009 accident as a result of these non-compensable problems. [21] The worker s representative submitted that the nature and severity of the compensable accident were such that the accident could have contributed to the worker s impairment, along with the underling condition. He highlighted Dr. Carter s report of November 9, 2009, in which she wrote that a full recovery was not expected. (vii) Analysis [22] There is no doubt that the worker had a pre-existing neck condition. The MRI report obtained post-hearing and dated May 21, 2008, revealed degenerative changes throughout the worker s neck, from the C2 to C6 level. Interestingly, there is no mention of a disc herniation at the C6-C7 level, and no MRI report dated September 3, 2008 could be located by the hospital. In any case, the evidence supports a finding of an underlying condition. [23] It is also clear from Dr. Carter s chart and treatment notes, which were amongst the documentation that was obtained post-hearing, that the underlying condition was symptomatic. Dr. Carter s records show that the worker began making complaints with respect to her neck in January 2005, about nine months after the worker began seeing her in April 2004 for thoracic and lumbar back problems. Dr. Carter s notes also reveal a pattern to the treatment of the worker s neck complaints. Prior to each work-related accident, the worker would see Dr. Carter about once every three weeks. After each of the compensable accidents, the frequency of the worker s treatments would increase to once every 2-4 days, tapering off over time, and eventually returned to the pre-accident schedule of treatment. The compensable accidents prior to March 2009 would exacerbate the worker s pre-existing condition, which would eventually settle and return to its pre-accident state. [24] The worker s neck condition did not return to its pre-accident state after the March 25, 2009, as the ROM in her neck remained reduced, despite participation in treatment. As noted in the forms that Dr. Carter submitted after each of the worker s previous compensable accidents, the worker had a reduced ROM after the incidents, which she then re-gained. This was not the case after the March 2009 incident. The reduced ROM constitutes a physical or functional loss, which is sufficient to satisfy the definition of a permanent impairment. [25] Although the worker did not lose any time from work and did not require functional restrictions after the March 25, 2009 accident, this is not determinative of the issue of a permanent impairment arising from the incident. The nature of the worker s job as an EA was such that it did not require modification and remained suitable, despite her injury. [26] We further find that the worker s underlying condition was not the only cause of the limited ROM in the worker s neck. Although the worker had an underlying herniated disc and other degenerative changes in her neck, which had been symptomatic and for which the worker was receiving treatment prior to the accident date, we find that the impact of being struck in the

6 Page: 5 Decision No. 1068/15 head with a basketball with some force was severe enough for the incident to contribute to the worker s ongoing impairment in a significant fashion. Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. There may be more than one significant contributing factor to an injury or impairment. See, for example, Decision No [27] In arriving at our conclusion that the compensable incident contributed to the worker s ongoing impairment, the Panel relied on Dr. Dang s report, which indicates that the worker s ongoing complaints were multifactorial. While the degenerative changes had clearly caused problems in the past, and were likely to cause problems in the future, this does not exclude the workplace accident from being a significant contributing factor in the ongoing problems. [28] The Panel has found the workplace accident to be a significant contributing factor to the worker s ongoing impairment. The worker is therefore entitled to recognition of a permanent impairment arising out of the March 25, 2009 compensable accident and to a NEL award. [29] As we have found that the worker had a pre-existing, symptomatic condition, the Panel must now determine whether and/or how the pre-existing condition will affect the quantum of the NEL award. OPM Document No addresses the matter of the effect of a preexisting impairment on a NEL award. [30] OPM Document No outlines a process for calculating NEL benefits in cases where a worker has a pre-existing permanent impairment. In the case of a pre-existing nonwork-related impairment in the same area affected by a new injury, decision-makers are directed to : Rate the total impairment to the area Determine the rating for the pre-existing impairment, and Subtract the rating for the pre-existing impairment form the total impairment rating to get the rating of the new work-related impairment. [31] In this case, the NEL assessor recorded ROM findings for the worker s neck, which resulted in an impairment due to abnormal motion that was rated at 24%. The assessor also noted that the worker had a specific disorder of the spine, specifically, an unoperated [intervertebral disc or other soft tissue lesion], with medically documented injury and a minimum of six months of documented pain and rigidity with or without muscle spasm, associated with moderate to severe degenerative changes on structural tests; includes unoperated herniated nucleus pulposus with or without radiculopathy. This corresponds to a disorder in Table 53, at page 80 of Chapter 3.3 of the AMA Guides, attracting an impairment rating of 6%. [32] It is clear from the MRIs conducted in 2008 and 2010, that the degenerative changes and disc protrusions in the worker s neck pre-existed the compensable injury and impairment. Dr. Dang s medical opinion, as noted in his report of September 3, 2010, was that the degenerative changes in the worker s cervical spine had not worsened from the 2008 MRI to the post-accident 2010 MRI. This condition should, therefore, be factored into the calculation of the worker s NEL award as a pre-existing condition. Therefore, in accordance with the process set out in OPM Document , the 6% impairment associated with the disc/soft tissue lesion must be subtracted from the total impairment rating of 29%, resulting in a NEL award of 23%.

7 Page: 6 Decision No. 1068/15 [33] The employer s appeal is allowed in part. The worker is entitled to a NEL award, however, the award is reduced from 29% to 23%, in order to account for the worker s preexisting neck condition.

8 Page: 7 Decision No. 1068/15 DISPOSITION [34] The appeal is allowed in part as follows: 1. The worker is entitled to a permanent impairment and NEL award for her neck arising from the March 25, 2009 compensable accident and injury. 2. The worker s NEL award is to be reduced from 29% to 23% in recognition of a preexisting, measureable, non-compensable neck impairment. DATED: July 27, 2016 SIGNED: J. Frenschkowski, B. M. Young, R. J. Lebert