DECISION NO. 788/91. Suitable employment; Medical restrictions (repetitive bending and lifting).

Transcription

1 DECISION NO. 788/91 Suitable employment; Medical restrictions (repetitive bending and lifting). The worker suffered three compensable back injuries between April 1982 and August He appealed the denial of benefits for periods commencing in November and December of The fact that the worker continued to bowl competitively four nights per week raised doubts about the worker's claim that he was unable to do work offered by the accident employer because of the twisting and bending involved. The reports of one doctor who was supportive of the worker were based on the worker's complaints rather than on medical findings. Another report supporting the worker's claim that he could not do work involving repetitive twisting and bending was based on the doctor's conclusion that the worker had sustained an acute ligamentous strain. The Panel did not accept that conclusion. The worker's treating physicians noted few physical findings. The Panel did not accept that the worker was unable to work for two days in 1983 because of stomach problems related to his back medication. No reference was made of this in medical reports until The appeal was dismissed. [9 pages] PANEL: Sandomirsky; Robillard; Nipshagen DATE: 06/01/92

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 788/91 This appeal was heard in Windsor on October 30, 1991, by a Tribunal Panel consisting of: J. Sandomirsky: Vice-Chairman, G.M. Nipshagen: Member representative of employers, M. Robillard : Member representative of workers. THE APPEAL PROCEEDINGS The worker appeals the Hearings Officer decision dated February 20, That decision denied the worker ongoing entitlement to compensation benefits for a back condition which he claims arose out of and in the course of his employment. The worker appeared at the hearing with his representative, J. West, of the Office of the Worker Adviser. P. Bryan appeared on behalf of the employer with its representative, C. Faye, of the Office of the Employer Adviser. THE EVIDENCE The Panel considered the Case Description and two Addenda which were marked as Exhibits #1, #2 and #3. The worker gave evidence under oath and the Panel heard submissions from Mr. West and Ms. Faye. THE NATURE OF THE CASE The worker suffered three compensable back injuries while employed with the accident employer. He claims that further lay-offs between November 29 and December 1, 1983, and subsequent to December 15, 1983, resulted from his compensable back condition. The Hearings Officer found that the worker was not totally disabled and was capable of performing the duties made available to him by the employer at no wage loss. The worker appeals this decision. THE PANEL'S REASONS (i) The accident histories The worker had three back injuries while employed with the accident employer. He worked as a machine operator and was assigned to various machining operations during the course of his employment. His first accident was on April 7, The accident occurred when the worker was reaching to the bottom of a bin to lift out a 30 pound part. While using his other hand to prevent himself from falling into the bin, he felt a pain in his lower back. He reported the pain immediately and laid off to seek

3 2 medical attention. The worker saw his family doctor, Dr. D.T. Fisher, the next day who diagnosed a lumbar strain and authorized the worker to be off work until April 22. The employer disputed this accident. According to the report of injury, the worker had had a dispute with the foreman about whether he had to do the assigned job for eight hours or four hours. He claimed the eight hour shift made his back sore. The report states that there was no accident. Nonetheless, the claim was accepted by the Board on the basis of the worker's accident history and the medical reports from Dr. Fisher. The worker had a further accident on May 17, The Board established a new claim. According to the report of accident, the worker caught a falling metal casting weighing approximately 26 pounds and injured his back. The worker was seen in the emergency department of the hospital and diagnosed with low back pain. He was authorized to take the day off work. The worker saw his family doctor on May 17, 1982, who also diagnosed lumbar strain and recommended that the worker remain off work for an uncertain period. He sent the worker for physiotherapy and prescribed analgesics. The worker was instructed by his doctor to return to work on August 16, The worker was put on indefinite lay-off by the employer on June 2, 1982, so in fact, although he was authorized to return to work on August 16, 1982, he did not begin working until June There is no record of the worker seeking medical attention between August 1982 and his return to work in June The worker injured himself again on August 29, 1983, while working as a washer. This job involved hanging manifolds, weighing approximately 24 pounds, on a five-foot high line. The worker stated that his back began to bother him a few hours after starting this job. The worker again was seen in the emergency department and diagnosed with recurrent back pain. X-rays taken of the worker's lumbar spine on September 5, 1983, showed no abnormalities. The worker was referred by his family doctor to Dr. J.R. Barber, an orthopaedic surgeon. Dr. Barber saw the worker on September 2, 1983, for complaints of persistent throbbing low back pain. Other than some tenderness in the upper lumbar spine, Dr. Barber noted all tests to be normal. He recommended conservative treatment with a physiotherapy program. The worker returned to work on November 28, This was accepted as a new injury by the Board. (ii) The period in issue The worker claims that he lost time between November 29 and December 1, 1983, because of problems with his stomach caused by a reaction to his back medication. A note on file from Dr. Fisher dated December 1, 1983, authorized the worker to be off work on November 29, 30 and 1. There is no mention of problems regarding the worker's medication. When the Claims Investigator spoke with Dr. Fisher on February 10, 1984, the doctor could not find any record that the worker complained of stomach problems due to the medication at the end of November A note on

4 3 December 6, 1983, indicated that the worker had an increase in back pain, but there was no mention of any problems with the stomach or medication. When questioned, the worker could not remember the type of medication he was taking during this period. In the employer's review of the worker's attendance it is recorded that the worker punched out after two hours of work on November 29, 1983, claiming that his stomach was upset from pills. However, on November 30, 1983, it is recorded that there was a phone call to the worker's supervisor stating that the worker was sick. In a further phone call on that date, the worker told the company president that "it feels like someone punched me in the middle of the back." The worker told the president that he had an appointment to see his doctor on December 1, The worker returned to work on December 2, A further report from Dr. Fisher dated April 15, 1988, addressed to the worker's representative, notes that the worker was unable to work between November 29 and December 1 because of gastritis. Dr. Fisher stated that "I felt that this, in all likelihood, is a result of the anti-inflammatory medicine that he had been on for back." The worker worked until December 7, 1983, when he claims to have had a slip injury in the parking lot at lunch and that this increased his ongoing back problems. No claim was made for this incident. The worker was off again and returned to work on December 15 when he was laid off by the employer. The employer told the worker that if he was unable to meet production levels he may as well stay home. When the worker was seen again by Dr. Barber on January 30, 1984, the doctor made the same findings as he did in his earlier examination of September His impression was of a persisting acute lumbar sprain with no objective findings on examination to explain the persisting symptoms. Again Dr. Barber suggested physiotherapy. The worker grieved his dismissal from work. An agreement was reached between the union and the employer that the worker would return to work after an examination by a physician chosen by the employer. The worker was examined by Dr. S. Prakash, who reported on July 26, Dr. Prakash noted that the worker had very minimal residual "lumbago with spasm and strain." Dr. Prakash felt that from the examination the worker's back problem was minimal and that he could return to work. The worker did return to work on August 4, 1984, and experienced an onset of lower back pain while pushing a trolley full of parts on August 20, This claim was accepted by the Board as a new injury and benefits were paid. The employer is contesting the acceptance of this claim. (iii) The job restrictions The only written job restrictions put on the worker by Dr. Fisher were contained in a handwritten note to the employer dated December 6, That note states that the worker should have "a sit down job for two weeks. He should not do a lot of work with twisting and bending motions." A note from Dr. Fisher dated April 25, 1984, states that he was contacted by the worker's employer in November 1983 with information about a job that was available for the worker. According to Dr. Fisher's note, it was

5 4 "described as a job in which [the worker] would sit down, it would not be required to perform any production and the description of the job seemed fine to me." Dr. Fisher goes on to state that he would not have recommended the worker return to work if he had not been offered a type of job which was satisfactory for him. The worker stated that there was work with the accident employer that he was able to do. He was able to do the work that allowed him to sit and reach for parts for the machines without bending and twisting. However, he also stated that he had difficulty meeting production quotas and this was the reason for his lay-off on December 15, The reason he had difficulty meeting production was because he had to take breaks to rest his back. On questioning from the Panel, the worker stated that he has had pain in his back every day since The pain throbs like a toothache and is aggravated on bending and twisting. He states that his back has been essentially the same since his first accident in He repeatedly claimed that he could manage the light jobs if there was no production standard. (iv) The worker's bowling activities The worker is active in competitive bowling. He told the Panel that he bowls four nights a week in four different leagues. The bowling season starts in September and runs to April or May of the following year. According to a newpaper report listing the scores of the various bowling leagues, the worker bowled 91 out of 99 games in one of his leagues with an average score of 173. When asked about his bowling activities the worker stated that bowling did not aggravate his back problem and that Dr. Fisher approved the activity. The employer challenged the worker's claim that he was able to bowl with little difficulty but was unable to work. At the Hearings Officer hearing Dr. Anthony Hammer testified on the employer's behalf regarding the physical effort required to bowl. According to the Hearings Officer's summary of Dr. Hammer's evidence, the arm motions necessary to deliver a bowling ball place stress on the back muscles and a person with a sore back would have difficulty maintaining a high bowling average. It was his evidence that the energy used in bowling would be ten times greater than that used in the worker's job. Subsequent to the Hearings Officer hearing, the worker's representative wrote to Dr. Fisher for his opinion about the worker's bowling activities. Dr. Fisher responded in a report dated July 8, 1991, stating that he was aware that the worker was bowling during the time he was off work for his back injury. He felt that the bowling would be beneficial to him as a type of exercise to strengthen his back. He stated that he could not "with any great expertise explain the difference between bowling and the mechanics of stress in the back performed during the work that he would be expected to do". However, he stated that "bowling is a pretty innocent type of exercise." He did not believe that it was a fair assessment that "because you can bowl you can work."

6 5 (v) Submissions Mr. West argued that the worker was unable to do the work offered by the employer because of his back pain. He submitted that, as the worker's family physician, Dr. Fisher is in the best position to evaluate the worker's ability to work. He noted that both Dr. Fisher and Dr. Barber authorized continued conservative treatment for the worker. Mr. West referred the Panel to a report from Dr. A.B. Deathe, a professor at the University of Western Ontario, in the Department of Physical Medicine and Rehabilitation. Dr. Deathe provided the worker's representative with a review of the worker's file and an opinion on the worker's low back condition and his capability of performing light work offered by the employer. Dr. Deathe notes that Drs. Fisher, Barber and Prakash all reported that the worker complained of low back pain. Dr. Deathe concludes that, from a review of the file, the worker did sustain an acute ligamentous sprain of the lumbar spine in April 1982 which likely injured the outer fibrous lining of the L4-5 or L5-S1 disc. In his words "[the worker] most likely had an acute disc injury which has since resulted in mechanical incompetency of the disc without disc herniation or sequestration." Dr. Deathe is of the view that the worker's chronic mechanical low back strain makes him vulnerable to repetitive demands on the lumbar spine. On reviewing the jobs described in the file, Dr. Deathe observes that they required "lumbar flexion and side bending to reach parts that may be at ground level weighing anywhere from several pounds to 35 pounds." He concludes that while light duty described by the employer involved objects of light weight, the motions involved in the machine operator job, including lumbar flexion, side bending and lateral rotation, would aggravate the worker's ligamentous or disc injury. Dr. Deathe states it is known in the medical literature that prolonged sitting, even without lumbar flexion, lateral rotation or side bending is more stressful than standing. Above all else, he notes, the medical literature states that repetitive flexion and rotation or side bending of the lumbar spine easily leads to fatigue and failure of the lumbar motion segments. Dr. Deathe commented that: In my opinion, the company's definition of "light duty" is based primarily on the weight of the objects (less than two pounds) is an inadequate definition of "light duty". Similarly, Dr. Fisher's restrictions as far as my review of the claims file suggests, is based primarily again on simply an overall weight restriction of less than 20 pounds. This also is an incomplete definition of work restrictions. A clear definition of work restrictions and/or of light work duty would not only include the weight of the objects to be lifted, but the length of time that one was in one particular posture or another, as well as the number of repetitions that were required per hour, as well as the length of time that one was required to perform these tasks throughout a day or throughout a week.

7 6 Dr. Deathe concludes that the worker's symptoms and difficulties with trying to maintain 100% production quota are believable. Mr. West submits that Dr. Deathe's report supports the worker's claim that he was unable to do the work offered by the employer because of the bending and flexing and the requirement to meet production. Ms. Faye, on behalf of the employer, argued that there was no medical evidence to support the worker's absence from work on November 29, She noted the Investigator's report in which Dr. Fisher is reported as stating that he had no memory of the worker having stomach problems. Further, the worker could not remember what medication he was taking or whether it had been changed. Regarding the December 15 lay-off, Ms. Faye submitted that the employment provided by the employer was within the worker's physical limitations which were found to be minimal in all of the medical reports. She argued that if the worker could continue to bowl on a regular basis, given Dr. Hammer's evidence at the Hearings Officer hearing, the worker could also perform the work expected of him by the accident employer. Ms. Faye noted that Dr. Fisher's work restrictions may have been inadequate according to Dr. Deathe's analysis, but that was all the company had available at the time in issue. (vi) The Panel's findings The worker claims that his ongoing back problems restricted him from performing the work offered by the accident employer on December 15, The medical reports from Dr. Fisher support the worker's claim that he was unable to do the work. However, the Panel has some concerns with Dr. Fisher's opinions. There are no physical findings reported by Dr. Fisher. His reports consist primarily of outlining the worker's complaints. The Panel notes that in a memo from the Claims Investigator, dated February 10, 1984, Dr. Fisher was reported to say that he took the worker off work because the worker "feels he cannot do the light duties supplied." The doctor told the Investigator that he "feels he has no choice but to believe the worker." The only work restrictions placed on the worker by Dr. Fisher are contained in the brief handwritten note dated December 6, Dr. Fisher restricted the worker for two weeks from work involving twisting and bending motions. The Panel also questions the worker's claim of ongoing back problems given the fact that he continued to bowl competitively four nights a week in four bowling leagues. There is no evidence that the worker's bowling scores suffered as a result of his back problems. The fact that the worker engaged in competitive bowling raised doubts about the worker's claim that he was unable to do his work because of the twisting and bending involved. The Panel reviewed Dr. Deathe's report with interest. However, Dr. Deathe's opinion that the worker would be unable to perform the duties required is based on his conclusion that the worker sustained an acute ligamentous sprain of the lumbar spine as a result of his first accident. In Dr. Deathe's analysis, this left the worker with "mechanical incompetency of the disc" and vulnerable to repetitive demands on the lumbar spine.

8 7 We accept Dr. Deathe's opinion that repetitive flexion and rotation or side bending of the lumbar spine can lead to fatigue and failure of the lumbar motion segments. However, we do not accept the conclusion that the worker suffered an acute ligamentous strain in 1982 which made his back vulnerable to repetitive motions. The worker's treating doctors diagnosed lumbar strain, but few physical findings are noted. Furthermore, despite the worker's testimony that he has had pain in his back since his first accident in 1982, he did not seek medical attention or treatment during the period of his lay-off between June 1982 and June On balance the Panel concludes that Dr. Fisher's reports, while supportive of the worker, are not based on medical findings, but rather on reports given to Dr. Fisher by the worker. Reports from Dr. Barber are more reliable but make minimal findings. Dr. Deathe's report, while interesting from a theoretical point of view, makes findings of fact about the worker's back condition that the Panel does not accept. The Panel concludes, therefore, that the medical evidence does not support the worker's claim that he was disabled from doing the work provided by the accident employer subsequent to December 15, We also conclude that the medical evidence does not support the worker's claim that he could not work on November 29 to December 1, 1983, because of stomach problems. The worker could not recall the medication he was taking at the time and there was no response to the Board's request that he obtain information from Dr. Fisher regarding the medication. The employer's attendance record did note that the worker booked off after two hours on November 29 due to stomach problems, but the worker phoned in twice the next day to say he would not be at work because of back problems. It was only in the report of 1988 to the worker's representative that Dr. Fisher stated that the worker could not work because of gastritis caused by anti-inflammatory medication. When interviewed earlier by the Claims Investigator, Dr. Fisher had no record of the worker having stomach problems. The Panel concludes that the balance of evidence does not support the worker's claim that he was unable to work between November 29 and December 1, 1983, because of stomach problems related to his back medication. THE DECISION The appeal is denied. DATED at Toronto, this 6th day of January, SIGNED: J. Sandomirsky, G.M. Nipshagen, M. Robillard.