WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2005 ONWSIAT 1744 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1108/05 [1] This appeal was heard in St. Catharines on June 15, 2005, by a Tribunal Panel consisting of : B.L. Cook : Vice-Chair, D.W. Jago : Member representative of employers, D.B. Beattie : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals a decision of Appeals Resolution Officer W.D. Thompson, dated July 29, That decision concluded that the worker had suffered a new accident on January 21, 2002 and not a recurrence of an earlier injury, and that the worker had fully recovered from the effects of that injury. [3] The worker appeared and was represented by Edda Critelli, a consultant. The employer was represented by Catherine Landgren, a consultant. THE RECORD [4] The Case Record, three Addenda, and a hearing ready dated January 20, 2005 were marked as exhibits. [5] The worker testified. Ms. Critelli and Ms. Landgren made submissions. THE ISSUES [6] The Panel must decide whether the worker suffered a new injury on January 21, 2002 or a recurrence of a previous neck and shoulder injury. The Panel must also decide if the worker is entitled to a non-economic loss (NEL) award for permanent impairment. THE REASONS (i) Background [7] The worker, who is now 56 years of age, started his employment with the employer in The employer manufactures automobile parts. Prior to this employment, the worker had been regularly employed until From 1989 to 1994, he was able to find only temporary employment. [8] The worker testified that he was involved in two motor vehicle accident in the 1970 s. The first was relatively minor, but the second resulted in a significant whiplash injury. The worker testified that he experienced neck pain for several years after the motor vehicle accident but that it gradually resolved by sometime in the 1980 s. A November 29, 1999 report from a

2 Page: 2 Decision No. 1108/05 chiropractor indicates that the worker used an over the door traction unit. The report suggests that the worker had continued to use this unit a few times a year even up to However, the worker testified that this is not correct. He indicated that he used the unit from time to time for a few years after the motor vehicle accident but that by sometime in about the mid-1980 s he no longer needed it. [9] In July 1991, the worker was treated by Dr. Gerald Fulton, a specialist in physical and rehabilitation medicine. Dr. Fulton s report of September 11, 1991, indicates that the worker was complaining of discomfort in the area of his upper back. Dr. Fulton suggested a series of exercises. The worker testified that he did the exercises and received chiropractic treatments which resolved the problem. He indicated that he was not experiencing any physical difficulties when he started his employment with the employer in [10] Starting in 1995, the worker worked at a quality control job, which involved inspecting van bucket seats. A pair of seats were inspected at a time. The worker testified that he faced the seats, which were on a conveyor so that the front of the seat was facing him. He was required to reach to the back of the seat to check the headrest. To do this, he had to push the release button and then lift the headrest up and down to ensure that it moved properly. He also had to check the seat tilt function and arm rest tilt function. Finally, he had to place a plastic bag over each seat. [11] The employer s plant was in Oakville and the worker was living in St. Catharines. He generally worked 10 hour shifts with an hour and a half commute each way. This began to take a toll on his family life. He was referred to Dr. R.E. Johnston, a psychiatrist, who diagnosed Adjustment disorder with anxiety and depression. [12] The worker was referred back to Dr. Fulton, who noted that in addition to the worker s depression and irritability, the worker was suffering from right shoulder symptoms that were very distressing to the worker. He indicated that the shoulder problems were exactly the same as his shoulder problems were in The worker was also experiencing headaches and low back pain. Dr. Fulton suggested that the worker might benefit from therapy with a psychologist who did hypno-therapy. The worker attended this therapy for a few months. He testified that it helped somewhat but the hypnosis never really worked. [13] In a February 22, 1996 report, Dr. Fulton indicated that the worker s situation was improving to some extent. He reported that the worker was suffering from tension in the posterior, head, neck and shoulder supports. This condition was related in large part to the way that the worker held his head. The worker is 6 3 and he noted that he has always had a tendency to slouch and to hold his head in a forward or craning position. Dr. Fulton noted that this, plus a tendency to upper dorsal roundness to his back put a lot of strain on the muscles of the upper back and neck, resulting in muscular fatigue, ligamentous strain, joint irritation and stiffness and pain. Dr. Fulton indicated that, in addition, the worker s job was aggravating the problem, as was the long commute. [14] The worker testified that he continued to do the same job and experienced increasing right shoulder pain. He finally stopped work on February 19, A claim was established on a disablement basis, and the worker was granted benefits to February 24, He then

3 Page: 3 Decision No. 1108/05 returned to modified employment. He recalled that he did the modified job for a few months, but in 1999, he indicated to a Board Investigator that he did the modified job for only three weeks. [15] After the modified job, the worker returned to his regular job. However, the job had been significantly changed. Most importantly, the work station was changed so that the worker now stood behind the seats instead of in front of them. This arrangement was ergonomically much better than the old arrangement because most of the forward reaching was eliminated. There were also, initially, less tasks associated with the job. [16] The worker testified that he had some continuing neck and shoulder symptoms after he returned to work, but he indicated that his shoulder was 95% better. He recalled that he had gone to the employer s first aid department from time to time to get heat pads and analgesics. However, in 1999, he indicated to the Board Investigator that he had not gone to the first aid department and did not require any other medical treatment for his upper back. [17] In 1998, the worker was off work for a few months due to a non-work-related low back injury that developed after cleaning out his garage at home. He consulted Dr. Fulton for this condition in August His report concerns the worker s low back. The report indicates: There are very few changes in the posterior head, neck and shoulder supports but it is not clear what this means and there is no elaboration provided in the report. [18] The worker went off work again on February 15, 1999 due to neck and shoulder pain. He testified that this problem developed due to a change in the line. Additional job components were added and the production rate increased. He initially saw Dr. J. Gregg, his family doctor, who diagnosed rotator cuff tendonitis, and prescribed pain medication and physiotherapy. A claim was established and the worker was paid loss of earnings (LOE) benefits until March 15, 1999, when he returned to work. He was given modified work until approximately November He was then off work due to an altercation when he became angry with a co-worker who he felt was harassing him. He was reinstated on May 22, 2000, and returned to modified work and then to regular work in approximately August [19] On May 22, 2000, Dr. McMillan, a specialist in physical and rehabilitation medicine, reported that the worker was complaining of continuing neck and shoulder symptoms, with associated headache. Dr. McMillan felt that the worker had biomechanical soft tissue neck and right arm pain with no neurological findings. He felt that the worker needed to restabilize his right shoulder. The worker testified that sometime after the 1999 problems, he noted that his right shoulder had drooped, a problem that persists today. [20] On July 27, 2000, Dr. Gregory Griffiths, a rheumatologist, reported that the worker had a clinical pattern of chronic strain into the right neck and shoulder area. He understood that the worker had been experiencing some neck pain since the motor vehicle accident in the 1970 s. [21] On February 2, 2001, Dr. Fulton reported that the worker presented with three main problems, including low back pain, irritable bowel syndrome and situational anxiety related to the slowly evolved dynamic disintegration of his marriage. An April 10, 2001 report from Dr. Fulton dealt with the worker s upper back neck and right shoulder problems.

4 Page: 4 Decision No. 1108/05 [22] Despite these continuing problems, the worker was able to continue to work at his regular job until January 21, On that date, he turned his head to talk to someone as he was adjusting a head rest and experienced severe pain in the right side of his neck. The Board determined that this was a new accident and a new claim was established. The worker was granted LOE benefits for two days. At some point, the worker returned to modified work. However, in April 2002, the employer noted that the Board had determined that the worker had recovered from the effects of the January 21, 2002 injury, and advised the worker that he would have to start a graduated work program leading to a return to his regular job. The worker testified that he felt too disabled to do any work so he did not respond to the offer and he has not worked since. [23] He was on short term and then long term sickness and accident benefits, but the long term disability benefits stopped in February The worker indicated that he was not sure why this had happened. However, in January 2005, he was granted a disability pension from the Canada Pension Plan, following an appeal. [24] A report from Dr. J.M. Aubin, an orthopaedic surgeon, dated May 12, 2005, discusses the nature of the worker s disability and physical findings. Dr. Aubin noted that there had been two MRI scans done of the worker s right shoulder. A scan in 2004 showed a tear of the rotator cuff tendonitis that was not present on the 2002 scan. Dr. Aubin suggested that the tear may have been present in 2002 but was not seen because of the tendonitis condition. Alternatively, he suggested that the tear was just the progression of the degenerative process, which Dr. Aubin felt was work-related. (ii) Submissions [25] On behalf of the worker, Ms. Critelli submits that the worker has a work-related permanent impairment. In her view, the permanent impairment may be said to result from the 1999 injury although she submits that the earlier 1997 injury was also a significant factor. [26] Ms. Critelli also submitted that the 2002 claim should be amalgamated into the 1999 claim and treated as a recurrence of the earlier incident. [27] On behalf of the employer, Ms. Landgren indicated that it appears from the medical evidence that the worker likely developed a permanent impairment as a result of his work duties with the employer. In her view, this is attributable to the 1999 injury since there is very little evidence that the worker had continuing problems between the 1997 and 1999 injuries. Ms. Landgren submitted that the permanent impairment was a permanent aggravation of a preexisting condition. She noted that there is evidence of a wide variety of factors that may have contributed to the pre-existing condition, including the worker s chronic postural problems, psychological issues, and possibly the old motor vehicle accident. While Ms. Landgren s view is that these pre-existing conditions were very significant factors in respect of the worker s disability, she feels that the repetitive nature of the worker s employment was also a factor. She does not think that it would be possible to measure the degree of any pre-existing condition so this would not be a case that warranted any apportionment. The employer was granted 50% cost relief under the 1999 claim and Ms. Landgren noted that the employer is not currently seeking additional cost relief because the NEER cost window in respect of the 1999 claim is closed.

5 Page: 5 Decision No. 1108/05 [28] Ms. Landgren submitted that the 2002 claim was established in error as the problems at that time ought to have been treated as a recurrence of the 1999 injury. (iii) Conclusions [29] The parties in this case agree that the worker suffered a permanent impairment involving his right shoulder and neck as a result of the February 15, 1999 injury. That injury was a disablement injury, caused by the repetitive nature of the worker s employment and related to a change in the production process. [30] Prior to that injury, the worker had certainly experienced a number of problems. These included the 1997 injury which was also a disablement type of injury related to his work from 1995 to However, after that injury, the production process was ergonomically improved and the worker was able to continue to do his regular job. He does not appear to have required any medical attention for his right shoulder and neck between the 1997 and 1999 problems. Even though the worker was able to eventually get back to his regular job after the February 1999 injury, it appears that he continued to experience neck and shoulder problems, together with other problems, notably low back pain. The diagnosis of the worker s shoulder problems is rotator cuff tendonitis and the recent MRI scan now shows a tear of the rotator cuff. According to Dr. Aubin, the tear most likely represents a continuation of the degenerative process caused by the work-related disablements. The worker s neck problems seem to be part of his right shoulder symptom complex and they too never resolved after the 1999 injury. [31] On the basis of the available evidence and the submissions of the parties, the Panel concludes that the February 1999 work-related disablement resulted in a permanent aggravation of a pre-existing condition. We therefore conclude that the worker has a permanent right shoulder and neck impairment that results from the work-related disablement of February [32] The worker is entitled to a medical assessment to determine his entitlement to a NEL award. [33] In regards to the status of the 2002 claim and whether it should be viewed as a new accident or a recurrence of the 1999 injury, we note that the injury associated with that claim occurred when the worker turned his head to speak to someone. This would seem to be a relatively insignificant event involving an ordinary and routine event. The Board s Operational Policy Manual Document No indicates that when there is an insignificant event such as this, it is necessary to consider whether the injury is compatible with the prior injury and whether there is continuity of complaint. In this case, the problem that the worker experienced on January 21, 2002 was clearly compatible with the 1999 injury. There was also, as noted above, continuity. In our view, it follows that the problems in January 2002 were a recurrence of the February 15, 1999 injury. The claim established for the January 21, 2002 incident should be amalgamated into the claim established for the February 15, 1999 injury.

6 Page: 6 Decision No. 1108/05 THE DECISION [34] The appeal is allowed. [35] The worker suffered a permanent right shoulder and neck injury as a result of the February 15, 1999 disablement. The worker is entitled to a NEL assessment. [36] The problems in January 2002 were a recurrence of the February 15, 1999 injury. The claim established for the January 21, 2002 incident should be amalgamated into the claim established for the February 15, 1999 injury. DATED: This 5 th day of August, SIGNED: B.L. Cook, W.D. Jago, D.B. Beattie