WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 328/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 328/15 BEFORE: B. Alexander: Vice-Chair HEARING: February 17, 2015 at Toronto Oral DATE OF DECISION: March 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 594 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 26, APPEARANCES: For the worker: For the employer: Interpreter: B. Napoleone, Paralegal Not participating 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. 328/15 REASONS (i) Background [1] The issue in this appeal is whether the worker is entitled to a non-economic loss (NEL) award for her bilateral shoulders and neck. [2] In September 2006, the worker began working 20 hours a week as a sales associate at the employer s retail store. [3] On May 5, 2007, she laid off work due to pain in her neck and upper and lower back which began when she started working for the employer and was assisting in setting up a new store. [4] The worker was granted entitlement for neck and shoulders and began receiving LOE benefits. She was not granted entitlement for her low back, as under a prior claim she received a 17% NEL for her low back, and a medical consultant found that her back had not deteriorated below its NEL level. [5] On September 1, 2007, the worker returned to work in a greeter position, working three shifts of four hours a week. [6] In November 2007, she stopped working due to pain and in May 2008, she returned to work in the greeter position. She was denied LOE benefits for the period she was off work on the basis that there was no medical justification for her absence from work or for her reduced hours of work. [7] The ARO decision, which was based on the written record without an oral hearing, denied the worker a NEL award for her bilateral shoulders and neck, stating: Based on my assessment and review of the evidence before me the worker recovered from the work related strain as of May 01, 2010, and I do not find evidence of a permanent work related impairment. (ii) The medical record [8] The worker sought medical attention on May 29, 2007 and was diagnosed with neck, bilateral shoulder and low back pain/strain. [9] A June 22, 2007 report by the worker s family doctor, Dr. J. Vant Voort, indicated that on June 11, 2007, the worker s neck had 60º of lateral rotation to the right and 80º of lateral rotation to the left, as well as well as 10 to 15º of lateral flexion on the left and 0º on the right. The worker was to continue with physiotherapy. [10] In a progress report dated July 16, 2007, Dr. Vant Voort completed a Functional Abilities Form (FAF) which noted that the worker had neck, lower and upper back pain and restrictions on standing, sitting, bending, twisting, stair climbing and above shoulder activity. [11] In a September 7, 2007 (FAF), Dr. Vant Voort noted that the worker had restrictions on walking, standing and sitting, bending, twisting, stair climbing, with no pushing or pulling of the worker s arms.

3 Page: 2 Decision No. 328/15 [12] The worker was assessed by Dr. T. Han, a Physical Medicine and Rehabilitation Specialist, who reported on November 2, 2007, that the worker had complained of neck and upper back discomfort for six months. [13] Dr. Han added: Cervical range of movements were full, except for a slight decrease of the left lateral rotation range, which she claims causes a slight discomfort of the left trapezius muscle. Shoulder ranges of movement were also full with reaching behind the back on the left causing slight discomfort over the left shoulder area. The doctor's impression was that the worker has repetitive muscle strain/spasm. She was advised to remain as active as she can tolerate, and that pain does not certainly mean any more harm or damage. [14] A Functional Abilities Evaluation (FAE), which was based on testing on November 14 and 15, 2007, noted: [The worker] complains of constant bilateral neck and upper shoulder pain. She describes the pain as burning, heavy soreness of the left side worse than the right. She rates the pain as 7 out of ten on an ascending pain scale. She reports that prolonged sitting makes the neck pain sore and that walking and laying down cause the neck and shoulder pain. She denies experiencing any dizziness or headaches. She demonstrated 35 degrees of cervical flexion with tightness reported at end range. She demonstrated full cervical extension with no complaints of end range pain. Right side bend was limited at 30 degrees and left side bend was limited at 15 degrees. Both rotation to the left and right were limited at 50 degrees with end range pain on the left side during movements. [15] The FAE noted that the worker reported mild tenderness in the suboccipatal muscles and moderate to severe hypertonicity over the upper fibres of trapezius bilaterally and diagnosed cervical and lumbar myofascial pain, as well as lateral epicondylitis of the left elbow and extensor tendonitis of the right elbow. [16] The worker had a cervical MRI on March 11, 2008 which indicated that at C5-C6 there is a moderate broad-based osteochondral bar which resulted in mild to moderate central canal narrowing and mild left neural foramen narrowing. [17] On March 12, 2010, Dr. Vant Voort reported: With respect to the neck problem, my suggestion is that this is going to be a permanent condition as there has been no improvement over an extended period of time and she has structural changes in her neck on the MRI with a cyst and an osteochondral bar at the C5-6 level with an indentation of the spinal cord and narrowing of the left foramen which of course would involve the nerve existing at that level. She has symptoms corresponding to these findings. [18] Dr. Vant Voort added that on a recent examination the worker had restricted rotation of her cervical spine at about 70-80º as well as flexion bilaterally of 0 to 10º. [19] In a further report dated July 06, 2012, Dr. Vant Voort advised the worker s neck had 60º of bilateral rotation, 10º of bilateral flexion at times reduced to 0º bilaterally. The worker is found to have tight swollen and tender trapezius and rhomboid muscles on palpation. The report concluded that the worker had been left with a permanent impairment to her upper back, shoulder and neck area and set out recommendations as to permanent restrictions. [20] In a final November 12, 2014 report, Dr. Vant Voort advised:

4 Page: 3 Decision No. 328/15 Up until June of 2012, [the worker s] baseline findings in her neck were as follows: lateral flexion in both directions 10 degrees, rotation in both directions 50 to 70 degrees. There was some tenderness and spasm in her cervical and trapezius muscles (shoulders). With respect to shoulders my notes indicate full range of motion. Unfortunately [the worker] course has been complicated in June of 2012 when she was struck by a car in a parking lot and by a motor vehicle in July of In both instances, her range of motion in her neck and shoulders worsened. As a result it is difficult to determine whether her current condition is a direct result or her work injury of May of My opinion is that her work injury of 2007 caused a baseline deficit and resulted in her neck and shoulders being more sensitive to her subsequent injuries. Her baseline findings in her neck noted above would have been her maximal recovery from her 2007 injury. My opinion remains the same in the [the worker] has been left with a permanent impairment in her neck and trapezius muscles as a result of the injury of (iii) The worker s testimony [21] In her testimony, the worker stated that prior to her May 5, 2007 injury, her neck and shoulders were 100% and she had no issues with them. [22] When she returned to work, her job included greeting shoppers, moving carts out of the way and pulling tags off items for which the security alarm had gone off. During this time she continued to have problems with her neck and shoulders and would see her family doctor, Dr. Vant Voort. [23] In June 2012, she was involved in a motor vehicle accident (MVA) in which another car backed into her and she had whiplash and concussion. Just prior to the accident the pain in her neck and shoulders was six to eight out of 10. After the MVA it was eight to 10 out of 10. She returned to work in a fitting room where she had to unlock doors and hang and fold garments and those duties aggravated her neck and shoulders. [24] She had a second MVA in July 2014, when she was rear ended and the pain in her neck and both sides of her neck increased. She also had pain in her shoulder and upper back. Her pain prior to the MVA was six to eight out of 10 and after nine to 10 out of 10. She was laid off by the employer in (iv) Mr. Napoleone s submissions [25] In his submissions, Mr. Napoleone stated that the medical evidence makes it clear that prior to her injury, the worker was without neck or shoulders symptoms. [26] At the time of the ARO decision, which found the worker had fully recovered from her injury, the worker s neck and shoulders continued to be the subject of pain complaints as well as range of motion and work restrictions. [27] In her November 12, 2004 opinion, Dr. Vant Voort, who has been the worker s family doctor since 1992, noted that it was clear that the worker had a baseline permanent impairment prior to the two MVAs.

5 Page: 4 Decision No. 328/15 (v) Law and policy [28] Since the worker was injured in 2007, 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. [29] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, #261 NEL Entitlement and #300 Decision Making/Benefit of Doubt/ Merits and Justice, would apply to the subject matter of this appeal. [30] I have considered these policies as necessary in deciding the issues in this appeal. (vi) Conclusions [31] I find that the worker is entitled to a NEL assessment for a permanent impairment of her neck. [32] Operational Policy Manual No , which is contained in package #261, provides that a worker who has a permanent impairment is eligible for a NEL. The policy defines a permanent impairment as a permanent or functional abnormality or loss which results from an injury. [33] There is no evidence that prior to her May 5, 2007 injury the worker had any injuries or accidents that affected her neck or shoulders or that they were impaired or restricted in any way. [34] Subsequent to the injury, no one predicted that the worker would fully recovery from it and the evidence is that she sustained permanent functional loss to her neck. [35] In her June 22, 2007, March 12, 2010 and July 6, 2012 reports, Dr. Vant Voort noted that the worker had significant reductions in her cervical ranges of motion. [36] Although in his November 2, 2007 report Dr. Han reported that the worker had almost full cervical range of motion (the exception being a decrease in the left lateral range), he provided no specific range of motion findings and just two weeks later a more comprehensive FAE report found that the worker had restrictions in five of the six measured ranges. [37] In all of her reports, Dr. Vant Voort emphasized that the worker was permanently restricted in the work that she could perform. [38] The involvement of the worker in MVAs in June 2012 and July 2014, which, according to Dr. Vant Voort, may have worsened the condition of her neck, should be taken into consideration when the NEL assessment is performed. [39] I find that the worker does not have a permanent impairment of her shoulders. Neither the FAE, nor any of Dr. Vant Voort s reports, provided any diagnosis for the worker s shoulders, and there are no range of motion findings that suggest impairment. [40] In her November 12, 2014 report, Dr. Vant Voort indicates that as of June 2012, there was tenderness and spasms in the worker s cervical and trapezius muscles but notes that the shoulders had full range of motion. She concludes that only the worker s neck and trapezius muscles are permanently impaired.

6 Page: 5 Decision No. 328/15 DISPOSITION [41] The appeal is allowed. [42] The worker is entitled to a NEL award for her neck arising out of her 2007 workplace injuries. DATED: March 17, 2015 SIGNED: B. Alexander