WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1297/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1297/16 BEFORE: M.T. McGarvey: Vice-Chair HEARING: May 17, 2016 at Toronto Written DATE OF DECISION: September 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2616 DECISION(S) UNDER APPEAL: WSIB decision of Appeals Resolution Officer (ARO) B. Romano dated February 20, 2015 APPEARANCES: For the worker: For the employer: Interpreter: J. Harte, Union Representative 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. 1297/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated February 20, 2015, which concluded that she did not have a permanent impairment for her neck and shoulder injuries from an accident dated October 28, [2] In correspondence with this Tribunal the worker s representative indicated the appeal was being advanced on the basis of entitlement for the worker s neck only, not for the neck and shoulders. [3] Although the worker s representative requested an oral hearing, this matter was listed for an appeal in writing subject to my determination whether an oral hearing was necessary. I have determined that an oral hearing is not necessary to determine the issue on appeal. (ii) Issues [4] The issue under appeal is as follows: 1. Recognition of a permanent impairment and entitlement to a non-economic loss (NEL) determination for a neck injury sustained on October 28, (iii) Background and Medical Evidence [5] The following are the basic facts. [6] The now 55-year old worker started as a wrapping operator with the accident employer in May She was injured on October 28, 2008 when she tripped on a power cord and fell face-first to the ground, landing on her forehead and injuring her head, neck, shoulders and teeth. [7] The worker had already been working in modified duties due to a compensable hand crush injury from October [8] Immediately following the accident she was treated at the workplace by a nurse. She saw her family physician Dr. S. Joshi on November 3, 2008 and again on November 10, A Functional Abilities Form (FAF) from Dr. Joshi on November 10, 2008 noted injury to the neck and head, noted some restrictions but indicated complete recovery was expected in six weeks. The worker was examined on November 11, 2008 and diagnosed by Dr. P. Kominek, a chiropractor, with cervical strain and associated myofasciitis. [9] The employer submitted an x-ray report to the Board on November 19, 2008 which is illegible. The fax cover sheet from the employer s health and wellness manager says the x-ray report indicates chronic disc degenerative disease at the two lower disc space levels. No fractures noted. The fax cover sheet does not indicate the date or source of the x-ray, nor does it indicate the area of the back that the x-ray covered, however references in other reports suggest the worker had the scan shortly after the incident. On November 20, 2008 Dr. P. Stefanik diagnosed the worker with acute neck sprain and acute shoulder sprain in relation to the October 28, 2008 accident. [10] The diagnosis of neck sprain was also noted by the worker s family physician, Dr. S. Joshi in a follow-up visit on November 29, In this report, a Form 6, Dr. Joshi

3 Page: 2 Decision No. 1297/16 indicates full recovery was expected in four to six weeks. Dr. Joshi notes continued neck pain in reports from January 29, 2009, February 14, 2009, March 7, 2009 and with great frequency for neck pain throughout Reports of neck pain and headaches continued on into In a report dated February 25, 2014 Dr. Joshi notes the worker was in a minor rear-end motor vehicle collision but continued to have pain in neck and shoulders. She was also reported at times to experience dizziness and headaches in addition to neck and shoulder pain. Dr. Joshi s conclusion notes that the worker continues to suffer from ongoing pain in both the shoulders and neck following a slip and fall at work. The pain remained despite pain medication, physiotherapy and attempts at nerve blocking. His prognosis was guarded and he said the worker could not do her regular work ; it is not clarified whether he meant her modified work or full regular work. However, a Functional Abilities Form (FAF) completed by him on September 20, 2012 indicates she had permanent restrictions with respect to bending her neck and lifting only below the shoulders. [11] Following her hand crush injury in 2005, the worker had been seen by Dr. B.Sehmi, an Orthopedic Surgeon. In a report dated November 15, 2007, Dr. Sehmi indicates the worker has also been getting pain in the shoulder and neck region. At times, the pain is quite sharp. He opined that the worker injured her left shoulder when pulling her crushed hand out of the machine it had been caught in. [12] Dr. Sehmi also saw the worker following her tripping accident. Following an examination on the 27 th of January 2009, Dr. Sehmi indicates the worker had pain in the head, cervical dorsal region and shoulder blades since the incident. He noted mild tenderness in the cervical dorsal junction and said the neck is mobile. In his view, pain in the shoulders and arms was referred from the neck strain, left shoulder more than the right. In a report dated June 25, 2009, Dr. Sehmi notes continued pain, tenderness, and stiffness in her neck and upper back, with pain radiating down the arms. [13] A spinal assessment at the Promed Rehabilitation Centre (the author s name is not legible) on May 29, 2009 notes pain in the cervical spine with minor improvement in range of motion. Range of motion for the cervical spine was measured and is noted as 50% on extension, not tolerated on flexion, 75% left and right side flexion, 75% left rotation with right rotation not tolerated. The analysis offered was chronic cervicothoracic joint dysfunction with myofascial strain, degenerative disc disease and had an uncertain diagnosis for the C5-6 joint. It also notes daily dizziness, less severe than it had been. [14] Dr. Kominek continued chiropractic treatments for the worker. In a request for extension dated February 13, 2009 he indicates he expected full symptom absolution. In a further request dated March 16, 2009 he indicates the expected improvement was to return to full time duties again. In this report, Dr. Kominek notes cervical spine extension of 10º, lateral flexion 24º left, 30º right, and tenderness at the cervical-thoracic junction. [15] Dr. G. Koponen, a neurologist, examined the worker on March 13, 2009 for her headaches and requested an MRI for the worker. The MRI report noted osteophytic lipping, fullness of the disc and desiccation changes and decreased height at C5-6 in the worker s spine. In a report dated April 6, 2009 Dr. Koponen notes the worker had partial benefit from physiotherapy but ongoing left brachial pain with an MRI showing left C6-7 disc prolapse. In a follow up report dated April 15, 2009 Dr. Koponen indicates the worker was dizzy and had digestive problems with gabapentin, slight benefit from physiotherapy and full neck rotation.

4 Page: 3 Decision No. 1297/16 After returning to work the worker was seen by Dr. Koponen in July, Dr. Koponen noted decreased range of motion in the neck and decreased pinprick sensation in her left hand. She suggested more physiotherapy. [16] The Board s medical consultant considered the issues in two memos on file. Dr. Kashani indicated on April 16, 2009 that she has headaches/tinnitus and upper back/neck pain. These are compatible with the work injury. Regarding the C6-C7 disc, it may or may not be related to the [accident]. But NCS [nerve conduction study] was normal and [the worker] does not have radicular pain in the left upper extremities, therefore disc seems to be asymptomatic and not a sig[nificant] issue. On September 22, 2009 following review of reports from Dr. Sehmi and Dr. Koponen, Dr. Kashani says It still seems to me that disc at C6-C7 is not a sig[nificant] issue in this claim but ref to upper ext clinic is suggested. [17] An X-ray report dated December 7, 2009 by Dr. A. Colantonio, a Radiologist, indicates spur formation with narrowing of the discs at C5-6 and C6-7 levels in keeping with degenerative disc disease, with some osteoarthritis at C4-5 with no other abnormalities seen. His summary is that the worker had degenerative disc disease and osteoarthritis. [18] The worker was evaluated at the Sunnybrook Health Sciences Centre on December 10, 2009 for a return to work consultation. During that consultation the worker reported that chiropractic treatment had eased the pain in her neck, but the pain returned within a day. She did indicate the chiropractic treatment helped with her range of motion. She also reported constant light headache and dizziness when she sees objects in motion. A report dated December 10, 2009 by Dr. S. Gallay, an Orthopedic Surgeon, and V. Palinkas, a Physical Therapist, focused primarily on the worker s shoulders, but noted that 13 months post-injury the initial injury was primarily to her neck with later development of referred pain into the shoulders. The diagnosis was chronic/persistent myofascial pain. In her report on this same evaluation L. Alexander, an Occupational Therapist, was of the opinion that the worker could return to her modified duties. [19] Dr. Koponen again saw the worker on February 16, 2010 and noted ongoing neck pain. Dr. A. Bhatia examined the worker on July 30, 2010 and indicated the worker s pain may be muscular or facetogenic in origin. Pain blocks were suggested. It was noted the pain was present at all times since the trauma of the original injury. Although she had tenderness throughout, the lower cervical spine was the most tender. Nerve block injections were performed by Dr. Bhatia on November 15, 2010, however in follow-up with Dr. Koponen on December 15, 2010 the worker reported the injections made her feel nauseated and dizzy, and she still had neck and shoulder pain and cervicogenic headaches. In follow up on January 10, 2011 Dr. Bhatia gave the opinion that the worker s pain was not mainly facetogenic, but muscular or myofascial. Dr. Bhatia noted the worker had tightness of the trapezius and held her head in a very immobile position. [20] The worker was referred for a bone scan, which was conducted on October 20, 2011, to Dr. I Boxen, a specialist in nuclear medicine. Dr. Boxen s opinion was that the worker had mild degenerative disease in the lower cervical spine, with a suspected lesion in this area. In April 2012 A. Reis, a Registered Massage Therapist, noted cervical spine range of motion was limited and the worker had localized neck pain. By October 30, 2013 Dr. Koponen noted ongoing cervicogenic headaches, mechanical shoulder and neck pain and decreased range of motion in the neck. The dizziness had resolved.

5 Page: 4 Decision No. 1297/16 [21] A radiological report from April 25, 2012 by Dr. G. Haroun, a radiologist, concerning the lumbosacral spine, pelvis and sacro-iliac shows no abnormalities of this area of the spine. Dr. M. Pinto, the Rheumatologist who requested this scan, noted on November 29, 2013 tenderness in the cervical region and restriction in range of motion. Brief notes from clinics in 2015 note ongoing neck pain issues. (iv) Law and policy [22] Since the worker was injured in 2008, 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. [23] Specifically, section 46 of the Act governs the worker s entitlement in this case. [24] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [25] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [26] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #262 NEL Entitlement Package #300 Decision Making/Benefit of Doubt/Merits and Justice [27] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Determining the Degree of Permanent Impairment OPM Document No , Determining Permanent Impairment OPM Document No , Pre-existing Conditions.OPM Document No , Aggravation Basis (v) Submissions [28] The worker s representative s submission is that the extensive body of medical evidence since the worker s injury in October 2008 supports the view that the worker had a minor preexisting neck condition, as noted in Dr. Sehmi s report of November 15, 2007, but that further degenerative changes are a result of the worker s October 28, 2008 injury. (vi) Analysis [29] The appeal is allowed. [30] OPM Document No , Pre-existing Conditions, indicates that entitlement for a work-related injury will not be denied due to the existence of a pre-existing condition.

6 Page: 5 Decision No. 1297/16 Asymptomatic conditions which are only manifest post-accident are included in the definition of a pre-existing condition. Decision makers must examine whether any ongoing impairment is work-related, or if the pre-existing condition has overwhelmed the work related injury or disease. Where a worker has an impairment which continues after maximum medical recovery (MMR) is reached, and it is caused by both the work-related injury and a pre-existing condition, the work-related impairment is determined. The work related injury does not need to be the sole cause of the impairment for a permanent impairment to be assessed. [31] OPM Document No , Determining the Degree of Permanent Impairment states that workers who have a work-related permanent impairment are eligible for noneconomic loss (NEL) benefits. It defines a permanent impairment as any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. [32] OPM Document No , Determining Permanent Impairment directs that to determine that a permanent impairment exists, the decision maker must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work-related injury. To identify when MMR is reached, one looks at whether there is change in the clinical condition of the worker, whether the worker is receiving or will likely receive treatment that is likely to improve the injury, and whether the worker is receiving treatment or medication to maintain the current level of recovery. [33] In my view, the worker reached MMR by the time of her December 10, 2009 return to work evaluation. After this point, although the worker continually sought treatment, there were no significant changes in her clinical condition. Prior to this, different medications were being tried in an attempt to give the worker relief. By the time of the evaluation, the worker s condition was chronic, but stable. The subsequent nerve block procedure did not change the worker s condition. I thus find the worker reached MMR on December 10, [34] OPM Document No also directs that ongoing impairment must be confirmed to be work-related by considering whether the current diagnosis is the same as or compatible with the initial work-related injury diagnosis, whether the clinical evidence of impairment is related to the current diagnosis, and whether a pre-existing condition is causing or contributing to the impairment. If the ongoing impairment is caused solely by a pre-existing condition, there is no permanent impairment. [35] The only direct evidence of a pre-existing symptomatic condition in the neck with this worker is the report of neck pain in Dr. Sehmi s November 15, 2007 report. The Tribunal s Medical Discussion Paper Neck, and Arm Pain and Related Symptoms: Cervical Disc Disease 1 indicates degenerative changes due to an injury to the cervical area will generally not be seen until a year or more has passed. The degenerative changes in the worker s cervical spine are seen by Dr. Koponen in March It is significant, in my view, that Dr. Haroun found no degenerative changes in the lumbo-sacral spine. This suggests the worker s pre-existing degenerative condition was not general and advanced, but localized. This is supported by Dr. Boxen s description of the degenerative disease as minor. 1 December 2002, prepared by Dr. JFR Fleming, Professor Emeritus, Neurosurgery, University of Toronto, revised February 2012, Dr. J. Finkelstein, M.D., M.Sc., FRCS, Associate Professor, Department of Surgery, University of Toronto

7 Page: 6 Decision No. 1297/16 [36] Dr. Kashani s opinion regarding the C6-C7 disc problems is ambiguous as to whether it was related to the accident, indicating it may or may not be related. The first images of the C6-C7 area on file are from April 2009, after the workplace injury, where Dr. Koponen notes a disc prolapse and osteophytic lipping. Whatever the state of the degenerative condition in October 2008, it was not serious enough for her physicians to order a scan of the neck; Dr. Sehmi requested an ultrasound of the shoulder and injected the shoulder for relief. The neck was not a significant medical issue. [37] Based on all of the evidence, I find the worker had a minor and largely asymptomatic pre-existing condition in her neck prior to October 28, [38] In the Tribunal s Medical Discussion Paper Neck, and Arm Pain and Related Symptoms: Cervical Disc Disease, it is noted that disc degeneration can render the cervical spine to be more vulnerable to trauma. The worker clearly suffered a trauma to her neck during the accident of October 28, Prior to this, her pre-existing neck condition was not generally symptomatic. While she did complain of neck stiffness to Dr. Sehmi in November 2007, the medical forms prior to this in relation to her 2005 hand injury refer to hand and shoulder pain; her neck is not mentioned and no restrictions are outlined concerning her neck. It is noteworthy that she was treated throughout this period by Dr. Joshi, the same doctor treating her after the October 28, 2008 injury, and his earlier FAF forms do not recommend restrictions involving the neck despite the complaint of pain in the neck and shoulders in November [39] Following the October 2008 injury, the worker s neck pain is a constant complaint. It seems to fluctuate slightly over time, particularly the headaches and degree of restriction in her range of motion, but the evidence in my view shows that her asymptomatic pre-existing condition in her neck became constantly symptomatic following the workplace injury of October Dr. Kashani finds the complaint of neck pain to be compatible with her injury, six months after the injury. I find on a balance of probabilities that the worker s October 28, 2008 workplace injury is a significant contributing factor to the worker s ongoing myofascial neck pain. I further find that it is a functional abnormality or loss which entitles the worker to a NEL determination. [40] While it is unlikely that the osteophytes would appear so soon after the worker s injury, I find it impracticable on the evidence before me to determine whether the disc prolapse is related to the injury of October 28, 2008 or the pre-existing condition. I find that the evidence in relation to this is approximately equal in weight, and I give the benefit of the doubt on this issue to the worker and find that she is entitled, in her NEL determination, to have the disc prolapse considered to be due to the work-related injury of October 28, [41] As previously noted, the worker s representative advised that the worker does not any longer claim entitlement for her shoulders. I make no findings regarding shoulder entitlement.

8 Page: 7 Decision No. 1297/16 DISPOSITION [42] The appeal is allowed as follows: 1. The worker has a permanent impairment with respect to her neck as a result of her October 28, 2008 workplace injury and is entitled to a NEL determination. [43] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: September 28, 2016 SIGNED: M.T. McGarvey