SUMMARY. Delay (onset of symptoms); Aggravation (preexisting condition) (spinal stenosis).

Transcription

1 SUMMARY DECISION NO. 2309/00 Delay (onset of symptoms); Aggravation (preexisting condition) (spinal stenosis). DECIDED BY: McMahon; Grande; Nipshagen DATE: 05/12/2000 NUMBER OF PAGES: 11 pages ACT: WCA

2 2000 ONWSIAT 3408 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2309/00 [1] This appeal was heard in the City of Toronto on September 14, 2000, by a Tribunal Panel consisting of: G.W McMahon : Vice-Chair, G.M. Nipshagen: Member representative of employers, A. Grande : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Mr. D. Mosser, Appeals Resolution Officer, dated July 30, That decision concluded that the worker was not entitled to benefits for a back condition arising out of and in the course of her employment on August 13, [3] The worker appeared and was represented by Mr. Andre Carr, of A.C. Consulting Services. The employer was represented by a staff lawyer. A member of the management staff of the employer was also present, as an observer. THE RECORD [4] The Panel considered the material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1) and the hearing ready letter (Exhibit #2). [5] The Panel also heard oral evidence, under oath, from the worker. Submissions were made by both Mr. Carr and by the employer representative. THE ISSUES [6] The worker started work with the accident employer as a registered nurse in May of On August 13, 1997, at the age of 58, the worker fell over extra chairs that had been left in front of the door in the change room. Initially, she reported having landed on both knees and was experiencing some pain, discomfort and swelling in the right knee. She subsequently reported the development of low back pain to the claims adjudicator on September 17,1997. [7] The worker requested total temporary benefits from August 14, 1997 and the Claims Adjudicator, on October 20, 1997, allowed a claim for a right knee strain disability on a no loss time basis, but denied entitlement for a low back injury and the worker s right calf. The denial was based on the length of time between the compensable accident and the worker s reported onset of the low back pain.

3 Page: 2 Decision No, 2309/00 [8] The worker appealed the denial of her claim but this decision was upheld throughout the internal levels of the Board. The Appeals Resolution Officer in reaching his decision, without a hearing, noted the time span as the principal reason he denied the worker s objection. [9] In his decision, of July 30, 1998, he wrote: While the representative has argued that it would not be unusual to envision that the worker also hurt her back when she fell onto her knees, it would be expected that if in fact the worker had injured her back at the time of the accident, that there would have been a complaint to the doctor at the time initial medical attention was sought, or in a subsequent medical report prior to September 24, 1997, some six weeks post-accident. [10] The Panel must decide whether the worker s back condition resulted from injuries she sustained at the time of her August 13, 1997 workplace accident. THE REASONS (i) Background [11] The Board decided the worker s appeal on the basis of a written record. [12] The employee incident report of August 13, 1997, states that the worker: Came on duty in change room there were extra chairs placed in room. I tripped and fell on both knees some pain and discomfort in rt knee. 1300hrs - Some apparent swelling. [13] Action taken to prevent recurrence of a similar incident included moving some chairs from the area and removing one chair from the room. [14] The Panel notes the employer s report of injury confirms the worker s version of the incident. [15] Dr. Nayla Zalzal, the worker s family physician, saw the worker on August 18, The doctors diagnosis was that of a right knee strain including a tender right calf muscle. Dr. Zalzal ordered an x-ray and prescribed physiotherapy. [16] Dr. Zalzal s clinical notes of the worker s appointment, September 16, 1997 records that the worker s lower back now hurts on the right side. [17] The Board case worker s memo to file, dated September 17, 1997, states: Initially she attended physiotherapy for both knees. However, she has now developed low back pain and her physician has advised her that the pain is related to the fall of August. 13, [18] Dr. Zalzal s progress report, dated September 23, 1997, still indicates the diagnosis to be right knee strain with findings of knee pain in both the left and right knees, on flexion. The doctor also indicates that the worker is being referred to a specialist, Dr. J. Singh and that a complete recovery is expected in approximately two weeks.

4 Page: 3 Decision No, 2309/00 [19] Dr. Jogindra Singh, physiatrist, saw the worker, on September 24, 1997, and his report notes the following: According to the patient, she had no significant pain in her right knee before the accident. The pain at present was quite bad, especially when climbing stairs. In addition she started complaining of pain in the low back area when being up and about. There was no radiation of pain from the back towards either lower limb. General physical examination was non-contributory to the problem, except for the patient being overweight. [20] Dr. Singh, in conveying his impression and suggestion observed that: Her back pain could be due to straining of the facet joints between L5-S1 on the right side along with spraining of the surrounding ligaments with hopefully should go away with the help of physiotherapy. [21] A Board adjudicator wrote the worker to advise her of the current status of her claim for total temporary benefits from August 14, 1997, to date. Therein she states: I have noted your doctor s report dated August 18, 1997 in which it was recommended that you return to work with the avoidance of decreased (sic) stair climbing. Your employer has confirmed that there would not have been any wage loss had you returned to work. As your medical restrictions do not permit you in returning to your essential duties, this letter is to advise you that I am allowing your claim for a right knee disability for no lost time. [22] The adjudicator went on to say that: I am not allowing entitlement for your low back, as there is no record of a back injury or complaint until September 24, [23] On October 23, 1997, Dr. Garg, the Unit Medical Advisor responding to a query from the Board adjudicator, states, after reviewing the file, that: right knee strain is compatible to the compensable injury. Low back is not compatible because of the delay in developing symptoms in low back. [24] Dr. M. T. Chapman, Orthopaedic Specialist first saw the worker on December 10, 1997 and referred her for a CT scan. This was done January 5, 1998 and Dr. J. A. Aziza, Radiologist, reported that: There is a mild spinal stenosis at L3-L4. There is a moderate to severe spinal stenosis at L4-L5 with narrowing of the transverse diameter of the spinal canal. The spinal canal is normal in calibre at the L5-S1 level, however there is a small central disc protrusion. [25] The worker was then sent for a bone scan on January 21, The report, signed by Dr. E. F. Vaughan-Neil, radiologist, states: The incidental finding of abnormal in the sacral region persists and on this occasion there is also mild increase in activity in the inferior S1 regions but also two somewhat more obvious region of linear activity on the right and left sides of the sacrum extending vertically.

5 Page: 4 Decision No, 2309/00 The appearance in the sacral area is unusual. It has a more obviously linear appearance compared to the previous study but there are two linear areas seen and the orientation of the linear abnormalities is vertical not horizontal, which is the usual appearance with sacral fracture. [26] On January 27, 98, an anaesthetist (name illegible), with the Scarborough General Hospital s Department of Anaesthesia writes: This lady has been under my care for a chronic back problem, referred by Dr. Chapman. An epidural steroid injection was done last December with transient (7-10 days) pain relief. At present she remains disabled by pain and numbness, and is unable to work. [27] Dr. Chapman wrote to the Board on January 22, Included in his observations and assessment, of the worker s medical status, were: She is now 59 and injured herself while working The story is that of increasing pain and numbness in her left leg particularly in the calf area. She continues at physiotherapy for her right knee but her major disability is that of her left leg. She has sciatica. X-rays reports demonstrate osteoarthritis at L4-5 on the left. I personally reviewed the CT scan; she does have stenosis at L4-5. Although the fall did not cause the osterarthritis, it aggravated the symptoms and caused her L5 root to become symptomatic in the sub-articular gutter. It may indeed be probable she will require surgical decompression to alleviate the pain and improve her function. [28] The worker objected to the Board s denial of entitlement for her back and provided the diagnostic imaging reports, together with Dr. Chapman s report, in support of her request for a review of her claim. On April 2, 1998, the Senior Claims Adjudicator wrote confirming the denial of the low back claim. Therein, the adjudicator stated: I have reviewed the file with this additional evidence. The diagnosis now given is osteoarthritis with stenosis associated with the osteoarthritis. Dr. Chapman suggests that this pre-existing condition was aggravated by the fall. I note Dr. Chapman s opinion, however, noting the six-week delay in the onset of back symptoms, I am still not able to accept a clear link between the compensable fall and the current back condition. [29] The worker objected to the April 2 decision on May 9, In her reasons for the objection, she stated: I disagree with the decision because the delay in the onset of back symptoms should not be the primary reason for denying the claim. There were other mitigating factors that were not considered. Attached to the worker s objection was a submission, from the worker s representative, which claimed, in part: it would not be unusual to envision that the worker also hurt her back when she fell on her knees. Dr. Chapman in his report dated January 22, 1998 stated that the fall did aggravated (sic) the injured worker s back.

6 Page: 5 Decision No, 2309/00 [30] On June 22, 1998, the same Senior Claims Adjudicator wrote to the worker s representative as follows: This letter is to advise you that my decisions of October 21, 1997 and April 2, 1998 are still upheld. [31] The Panel notes that the same adjudicator ruled on the initial denial of entitlement and on the two subsequent denials on appeal. [32] The Appeals Resolution Officer, in his decision of July 30, 1998, after summarising the accident events and early medical activity, notes: in a decision of October 20, 1997, the claims adjudicator denied entitlement to the back as the claims adjudicator noted that there was no record or complaint of a back injury until September 24, In a further decision of April 2, 1998, a claims adjudicator reconsidered this decision and once again denied entitlement to the back noting that there was a six-week delay in the onset of symptoms. [33] He goes on to say that: It is also noted by the appeals resolution officer that the first mention by the worker of pain in her back was in a September 17, 1997 conversation with the claims adjudicator in which she indicated she had now developed low back pain. [34] The Appeals Resolution Officer, while acknowledging the submission of the worker s representative, goes on to state: (ii) While the representative has argued that it would not be unusual to envision that the worker also hurt her back when she fell onto her knees, it would be expected that if in fact the worker had injured her back at the time of the accident, that there would have been a complaint to the doctor at the time initial medical attention was sought, or in a subsequent medical report prior to September 24, 1997, some six weeks post accident. The worker s testimony [35] The worker told the Panel that she arrived at work shortly before 7:00 a.m. on August 13, 1997, to begin her shift. As she entered the darkened change room, she fell over some chairs that had been newly placed by the door. She landed heavily on both knees and was helped up by two witnesses. [36] She reported the accident, indicating that her knee was bothering her and took some extrastrength Tylenol for her pain. She continued to take the extra-strength Tylenol until she saw the doctor. [37] The worker then called her family doctor (Dr. Nayla Zalzal) to arrange an appointment. She was booked to see the doctor on August 18, [38] The doctor diagnosed a right knee strain and a tender calf muscle. She was prescribed Tylenol 3, for her pain and the doctor recommended physiotherapy.

7 Page: 6 Decision No, 2309/00 [39] The worker stated she had booked for two weeks vacation time, commencing August 20, 1997 and that her sister knew of her fall and invited the worker to come and stay with her, in Brampton. [40] She testified that her back began to bother her during her two-week stay with her sister. At first, it began as a dull ache. The worker claimed to have no prior history of knee, back or hip problems. [41] The worker said she began physiotherapy towards the end of August. This she did privately and claims she told the therapist of her back pain and the therapist applied hot packs for her back. The worker then began using a moist heating pad at home. [42] The worker pointed out that her sister s home was a bungalow and she was not required to climb stairs during her stay. When she returned to her own home and began climbing stairs, her back pain intensified. [43] After the worker returned to her own home, Dr. Zalzal arranged that she begin physiotherapy, twice weekly with another therapist, commencing September 3, [44] The worker stated the physiotherapy helped, in the beginning. She said that the pain had improved a little but then worsened. [45] When asked why there was a six-week delay in reporting the back pain to her doctor, the worker pointed out that she spoke of her back pain during her appointment on the 16 September. That was approximately four weeks and not six. The worker said that the back pain had existed most of the time before and that she had called around September 10 and that it had taken that long to get the appointment. [46] When questioned, the worker stated there were no additional reports to substantiate her complaint of low back pain. [47] The worker, in pointing out how her back injury has affected her life, she stated that she had no problems with daily living before and that now it was hard to vacuum, take a bath, do her ironing, change her bed etc. [48] In response to a question from the Panel, the worker testified that she had not done anything prior to the August 13 accident or participated in any activity during her vacation, or since that time, to injure her back. [49] The worker also confirmed that she did not feel pain in her back at the time of the accident. [50] The worker testified that she weighed 204 pounds and landed heavily, with both knees bearing her full body weight, on the concrete floor of the change room. [51] She said the injury subsequently resulted in the need for surgery on her back and may yet require surgery on her knee. The back surgery took place March 31, 1998 at which time she was hospitalised for two weeks and then required home care until the end of June 1998.

8 Page: 7 Decision No, 2309/00 [52] The worker stated that her last day worked was August 18, 1997 and that she subsequently used up her sick time and has received benefits from Manulife since she used up her banked sick time allowance. (iii) The submissions [53] The worker s representative submitted that the workplace accident was the cause of the back injury and cited Dr. Chapman s report, wherein he states: Although the fall did not cause the osteoarthritis, it aggravated the symptoms and caused her L5 root to become symptomatic in the sub-articular gutter. [54] He further submitted that it was only common sense that, with the worker s age and weight, it was not unreasonable that she would injure her back as a result of such a fall. [55] He referred to a December 10, 1998, letter from Dr. N. Lalani, the worker s family physician, which states, in part: In my opinion she presented in August 1997 with right knee pain which slowly progressed to left leg pain and back pain. CT investigation showed that she had a slipped disc, which needed surgery. In my opinion, [the worker] probably presented with referred pain in August 1997 and this progressed to back pain and leg pain. [56] He referred to the worker s testimony that, while trying to recuperate during the vacation period she had limited activity and that, together with the ingestion of pain-killers, may have masked the severity of the injury. [57] In addition, he pointed out that the worker s testimony that she had complained of a sore back to her physiotherapist in late August and had heat packs applied to her lower back. [58] The worker s representative further submitted that the worker had called in early September to book an appointment with her doctor. It was the 16 before she could see him and therefore, the delay in reporting her back injury to her doctor was closer to four weeks, rather than six weeks. [59] He also submitted that in this situation the worker s delay in reporting her back pain was understandable, practical and realistic under the circumstances. [60] The employer representative submitted that the key issue, to establishing a causal link of the worker s back difficulties to her compensable accident, was the worker s delay in reporting her back pain to the doctor. [61] She further submitted there was no direct medical evidence of a causal link between the worker s compensable injury and her back injury, citing the lengthy delay in reporting symptoms. [62] The employer representative noted that the first medical report of a back complaint appeared in the family physician s clinical notes, on September 9, 1997 and the physiatrist s report of September 24, 1997.

9 Page: 8 Decision No, 2309/00 [63] She submitted that the gap in time, regardless of which of the two dates one accepted, was sufficient to deny the worker s claim for entitlement. [64] She also noted, the first x-ray examination, of the worker s lower back, did not take place until five months after the compensable accident. [65] The employer representative also noted that the diagnosis, of segmental osteoarthritis with associated spinal stenosis at L.4-5, was not made until more than five months after the workplace accident. [66] Referring to a letter from Dr. N. Lalani, the worker s family physician, wherein he provided an opinion that the worker probably presented with referred pain in August 1997 and this progressed to back pain and leg pain, the employer representative argued that the Panel should rely only on contemporaneous evidence and that Dr. Lalani had no basis for such an opinion and urged the Panel to give no credence to this evidence. [67] The employer representative closed stating that, because of the timing of the worker s complaint of back pain, and the lack of consistency in the ongoing complaints of back pain in the medical evidence, the Panel should find it difficult to accept a causal link between the worker s fall and her low back injury. (iv) Relevant law and policy [68] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers' Compensation Act, which continues to apply to pre injuries. All references to the Act in this decision mean the applicable Workers' Compensation Act. [69] A change relevant to this appeal is that the Appeals Tribunal is required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. While the Tribunal previously did consider and apply Board policy, the Act did not contain this express provision. [70] Since the worker s accident occurred on August 13, 1997, Section 4 of the pre-1997 Worker s Compensation Act is applicable in this case. Section 4 provides that: 4(1) Where in any employment, to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the worker and the worker's dependants are entitled to benefits in the manner and to the extent provided under this Act. 4(3) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment and, where the accident occurred in the course of the employment unless the contrary is shown, it shall be presumed that it arose out of the employment. 4(4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant.

10 Page: 9 Decision No, 2309/00 [71] In anticipation of this appeal, the Board wrote to the Tribunal listing the appropriate Board policy for this case as that contained in policy packages #1 and #32 (revision #3), contained in Exhibit #1. [72] Board Operational Policy Manual Document # states that In determining any claim under the Act, the decision shall be made in accordance with the real merits and justice of the case. Where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. [73] Board Operational Policy Document # states that Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the workrelated injury. [74] The following Tribunal Cases were also considered: Decision Nos. 946/88, 315/98, 251/90 and 552/91. (v) The Panel s findings [75] The assessment of the credibility of interested witnesses has been discussed as follows in the following decision of the British Columbia Court of Appeal, Faryna v. Chorney (1951), 4 W.W.R. (N.S.) 171 (which was quoted with approval by the Ontario Court of Appeal in Phillips v. Ford Motor Co., [1971] 2 O.R. 637): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness is such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [76] The Panel has found the worker s testimony to be credible and to be consistent with the circumstances surrounding the accident and subsequent events. The primary reason given by the Board for rejecting this claim is the six-week delay between the accident and the reporting of the back pain. However, we accept the worker s testimony that her back began to bother her within two weeks of the fall, and that she reported this to her physiotherapist before the end of August. We also accept that she called her doctor for an appointment within one month of the accident. There was therefore, not a great delay. [77] Dr. M. T. Chapman, Orthopaedic Surgeon, on January 22, 1998, reported that the worker has an element of spinal stenosis associated with the segmental osteoarthritis at L.4-5. He further goes on to state: Although the fall did not cause the osteoarthritis, it aggravated the symptoms and caused her L.5 root to become symptomatic in the sub-articular gutter. [78] Dr. Labni, the worker s family doctor, also opined in 1998 that the worker presented with referred pain in August 1997 that progressed to back pain and leg pain. The Board s caseworker in September 1997 noted that Dr. Zalzal related the back pain to the work accident.

11 Page: 10 Decision No, 2309/00 [79] The Panel notes that although the worker s spinal stenosis, associated with the segmental osteoarthritis, was a pre-existing condition; it was asymptomatic prior to the compensable accident. [80] Further, the Panel has heard no evidence to suggest an alternative explanation as to how or when the worker may have suffered her back injury. [81] The Panel notes that the description of the accident has never been in dispute and as such, finds that a person of the size and age of the worker could have suffered a back injury as a result of such an accident. [82] The Panel finds that the compensable accident, of August 13, 1997, aggravated the worker s asymptomatic pre-existing condition. [83] Consequently, on the balance of probabilities, the Panel concludes that the worker has suffered an impairment of the back arising from the compensable accident of August 13, [84] On this basis, the Panel is satisfied that the worker is entitled to a permanent injury assessment for the disability, which commenced in August of THE DECISION [85] The appeal is allowed. [86] The Board is directed to assess the nature and quantum of benefits, including a NEL assessment. DATED: December 5, 2000 SIGNED: G.W. McMahon, G.M. Nipshagen, A. Grande

12 2000 ONWSIAT 3408