NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: [X] Form of Appeal: Oral hearing held at Bridgewater, NS on May 6, 2010 WCB Claim No.: [X] Date of Decision: May 21, 2010 Decision: The appeal of the February 8, 2010 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Brent Levy.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: On February 24, 1987, the Worker slipped and fell on a fishing vessel injuring his back. The Worker developed meralgia paresthetica and underwent multiple surgical procedures. On June 18, 1992, the Workers Compensation Appeal Board awarded the Worker a 10.5% permanent partial disability rating effective as of June 20, This impairment rating remains in effect. The Board considered the Worker s eligibility for chronic pain benefits and services. The Board s February 24, 2006 decision concluded that there was insufficient evidence of ongoing treatment for pain related to the compensable injury. This decision was upheld pursuant to a Hearing Officer s decision dated April 28, The Worker appealed to the Tribunal. The Worker s counsel at the time requested that the Worker s appeal be referred to the Board. The Tribunal referred the Worker s file to the Board so his benefit entitlement could be considered collectively in the first instance. The Board s January 17, 2008 decision concluded that the Worker did not have chronic pain and was not entitled to a reassessment of his impairment rating. A March 13, 2008 Hearing Officer s decision concluded that the Worker was not entitled to a permanent impairment reassessment. The Worker appealed to the Tribunal. In Decision AD (October 27, 2008, NSWCAT), the Appeal Commissioner concluded that he did not have jurisdiction to consider whether the Worker had chronic pain because this issue had not been considered by the Hearing Officer. The Appeal Commissioner suggested that the Worker seek an extension to appeal the chronic pain finding made in the January 17, 2008 decision. The Board s internal appeals department accepted the Worker s appeal concerning chronic pain. Pursuant to a Hearing Officer Decision dated February 8, 2010, the Worker s appeal was denied. The Worker appealed to the Tribunal. The appeal proceeded via an oral hearing, and the Worker was represented by counsel. The Worker s counsel submitted that undue evidentiary weight was given to the presence of degenerative changes in the Worker s lumbosacral spine. The Worker s counsel submitted that it was as likely as not that the Worker suffered from chronic pain as a result of his compensable injury. This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 ISSUE AND OUTCOME: Does the Worker have chronic pain? Yes. It is as likely as not that the Worker s back pain is causally related to his injury, and such pain is not adequately explained by significant, objective, physical findings. Consequently, it is as likely as not that the Worker satisfies the definition of chronic pain. The Worker s file shall be referred to the Board so that his pain-related impairment, and its effective date, may be assessed. ANALYSIS: The Workers Compensation Act, S.N.S , c.10, as amended [the Act ] applies to this appeal. Section 186 of the Act directs that the Worker s appeal must be decided in accordance with the real merits and justice of the case. Section 187 of the Act states that the Worker is entitled to the benefit of the doubt on any issue pertaining to compensation. If there is doubt on an issue, and the disputed possibilities are evenly balanced, the issue in question must be resolved in the Worker s favour. The Board s and the Tribunal s files have been reviewed. The Worker s testimony from the oral hearing, and the Worker s counsel s submissions, have been considered. The testimony and evidence most relevant to my reasoning and conclusions shall be set out in this decision. Chronic pain is defined in section 10A of the Act and section 2 of the Chronic Pain Regulations, N.S. Reg. 187/2004. Chronic pain is defined as pain that continues beyond the normal recovery time for an injury or pain that is disproportionate to the amount of pain typically associated with an injury. The definition of chronic pain is automatically satisfied if a worker has been diagnosed with chronic pain syndrome, fibromyalgia or myofascial pain syndrome. Pain that can be explained by objective findings is not chronic pain. Chronic pain is, in effect, pain that is unusual for an injury. The Worker was diagnosed with meralgia paresthetica shortly after his injury. On January 23, 1989, Dr. Willoughby performed a left lateral cutaneous nerve neurectomy. This surgery involved the removal of nerve tissue. Such surgery only partially relieved the Worker s symptoms. Dr. Willoughby operated again on July 29, On June 4, 1990, Dr. Howatt, an orthopaedic surgeon, operated to treat recurrent fascitis of the left fascia lata.

4 4 The Worker s family physician, Dr. Jenkins, prepared a medical-legal report dated October 18, Dr. Jenkins stated that the Worker suffered from longstanding meralgia paresthetica since his shipboard injury in 1988". Dr. Jenkins stated that consultation reports from specialists unanimously supported the diagnosis of meralgia paresthetica. Dr. Jenkins opined that the Worker has chronic pain attributable to his injury which has not been successfully treated. Meralgia paresthetica is a significant, objective, and physical finding. The diagnosis of meralgia paresthetica is longstanding and multiple surgical procedures were performed to treat this condition. The medical evidence, including Dr. Jenkins chart notes, is insufficient to conclude that the pain is disproportionate to that which would be expected in someone suffering from meralgia paresthetica. The Hearing Officer concluded that the Worker s back pain was explained by degenerative changes, which were considered significant, objective, and physical findings. The degenerative changes were found to be unrelated to the Worker s compensable injury. Dr. Campbell s December 29, 1986 radiology report, concerning the Worker s lumbar spine, noted the clinical diagnosis of left-sided sciatica and the prospect of disc disease. Although there was some accentuation of the Worker s lumbar curve, his disc spacings, and all other findings, were within normal limits. It is unclear why the Worker s back was x-rayed several months prior to the compensable injury. The Worker testified that he could not recall such x-ray. The Worker testified that he did not have back pain prior to the 1987 injury. A May 31, 1989 radiology report, also prepared by Dr. Campbell, noted the presence of lower back pain. Such pain was more pronounced on the left side and radiated down the Worker s left leg. Dr. Campbell s report noted very minor hypertrophic spondylosis in the upper lumbar area. All other findings were within normal limits. An April 4, 1990 report from the local hospital s physiotherapy clinic noted, among other things, that the Worker had been given instructions concerning back care and was provided with an exercise program for his lower back. Dr. Reardon, an orthopaedic surgeon, prepared a medical-legal report dated September 26, Dr. Reardon stated that he reviewed x-rays of the Worker s lumbar spine, but the date of such x-rays was not noted. Dr. Reardon opined that the x-rays showed minimal degenerative change. Dr. Reardon opined that there was nothing in the Worker s history to suggest disc disease. Dr. Reardon noted that the Worker s thigh and groin pain was more troubling than his back pain.

5 5 The Worker was assessed by Dr. Amirault, an orthopaedic surgeon, on June 13, The Worker was diagnosed with degenerative disc disease. Dr. Amirault, however, cited undated x-rays and concluded that there had not been much change since The Worker was also examined by Dr. Alexander, an orthopaedic surgeon, who issued a report dated January 20, Dr. Alexander stated that the Worker had severe back pain with a limited range of motion. Dr. Alexander stated that all movements of the Worker s legs produced pain. Dr. Alexander opined that the Worker had severe degenerative disease in his spine, and an increase in his permanent impairment rating was recommended. Dr. Wile, who works at the Hants Community Hospital s pain management clinic, examined the Worker on several occasions. Dr. Wile s October 31, 2009 medical-legal report cited a CT scan of the Worker s lumbar spine ostensibly dated May 23, 2202". Dr. Wile opined that the CT scan reviewed did not evidence disc herniation or nerve root compromise at any vertebral level nor was there evidence of spinal stenosis. The Worker underwent a CT scan on November 3, Moderate disc space narrowing was noted at the L1-L2 vertebral level, but there was no evidence of disc herniation. The L2-L3, L3-L4, and L5-S1 discs were unremarkable. Mild central bulging was noted at the L4-L5 vertebral level. There was, however, no significant narrowing of the spinal canal. The 2009 CT scan was forwarded to a Board Medical Advisor in connection with a request for medical aid. The Board Medical Advisor opined that the degenerative changes were unrelated to the compensable meralgia paresthetica. The Board Medical Advisor opined that the CT scan showed minimal findings which would be compatible with normal findings for an individual his age. Dr. Amirault, in 1996, and Dr. Alexander, in 1997, attributed the Worker s back pain to degenerative changes. Neither orthopaedic surgeon, however, specified in their reports the abnormalities upon which their opinions were based nor were specific diagnostic tests cited. In contrast, the 2009 CT scan, and the Board Medical Advisor s opinion, indicated that minimal changes were noted. As a result, I do not consider the Worker s back pain to be explained by significant, objective, and physical findings. The evidence also does not suggest that the meralgia paresthetica was responsible for the Worker s back pain. The question remains whether the Worker s back pain is causally related to his 1987 injury. The accident reports note that the Worker slipped and fell on his back. A doctor s first report, dated May 25, 1987, noted that the Worker complained of back pain. Dr. Simard, a specialist in physical medicine and rehabilitation, prepared two reports dated February 2, Dr. Simard s report, on the Board s form, stated that the Worker s dorsal and lumbar spine muscles were tight and spastic. Dr. Simard s narrative report noted that

6 6 the Worker s symptoms included low back pain, which had been consistent over the past few years. Dr. Simard noted that the Worker could not perform lumbar movements with ease. The Worker provided testimony concerning his back pain. The Worker described the 1987 injury and testified that he has consistently experienced back pain since the injury. A report from the Worker s former family physician, Dr. Sullivan, suggested that the Worker returned to work briefly following the injury. Although the Worker was not a good historian in some respects, he was clear that he did not return to work following the 1987 injury. The Worker also testified that he is on nerve pills. The Worker attributed the need for such medication to the disruption in his life caused by the injury. The Worker testified that he has seen Dr. Wile on four or five occasions. The Worker stated that Dr. Wile advised him that he has chronic pain. The Worker stated that he has been prescribed Lyrica and Pregabalin. The Worker testified that his anticipated treatment plan involves the administration of injections. If such treatment is not successful, Dr. Wile has proposed prescribing Oxycontin. The Worker testified that Dr. Jenkins referred him to Dr. Wile because of his back pain. As noted earlier, Dr. Wile prepared a medical-legal report dated October 31, Dr. Wile opined that the Worker s pain from his injury is greater, and has persisted longer, than would be anticipated. Dr. Wile noted the results of a CT scan, the date of which was erroneously cited as May 23, Dr. Wile opined that the CT scan did not show significant degenerative changes. Dr. Wile opined that the Worker required a multidisciplinary pain management approach to improve his function. Given Dr. Wile s consideration of the lumbar spine CT scan, I infer that her opinions pertain not only to pain related to the meralgia paresthetica but to the Worker s back pain as well. The Worker s file, as noted earlier, includes Dr. Jenkins October 18, 2008 medical-legal report. Dr. Jenkins attributed the Worker s difficulties to meralgia paresthetica and opined that no other cause could be found. Dr. Jenkins chart notes reflect periodic complaints of back pain, but such entries were relatively infrequent. Much of the medical evidence provided pertains to non-compensable ailments. The Worker s permanent impairment was initially assessed by the Board on April 18, The Board Medical Advisor assessed the Worker s spinal range of motion. Such testing was accompanied by gross functional interference. The Board Medical Advisor opined as follows: It is my opinion that this man suffers from a Chronic Pain Syndrome on top of a post surgical meralgia paresthetica.

7 7 When Dr. Simard examined the Worker in 1993, he noted that the Worker s lumbar movements were very poor and that he had great difficulty performing any lumbar movements with any degree of ease. Dr. Simard s diagnosis was chronic pain in a patient with asthma and chronic neuropathy of the left femoral cutaneous nerve. A Board Medical Advisor was asked in 1995 to consider the Worker s entitlement to a permanent impairment reassessment. The Board Medical Advisor noted the impairment rating previously awarded for meralgia paresthetica and noted the fact that the Worker had undergone surgery for meralgia paresthetica in the right leg. The Board Medical Advisor opined that the Worker s main problem was pain without objective findings warranting an impairment reassessment. Dr. Muraleetharan s December 9, 2005 physician s report diagnosed the Worker with chronic lower back pain. A Board Medical Advisor reviewed the evidence and opined on February 3, 2006 that the description of pain in 2005 was not consistent with meralgia paresthetica. The Board Medical Advisor concluded that there was no evidence of a pain impairment subsequent to the early 1990s. On August 23, 2007, the Board Medical Advisor issued a substantially similar medical opinion. The Board Medical Advisor s opinions focussed on the presence of meralgia paresthetica and whether there was evidence of ongoing pain attributable to such condition. Lesser consideration appears to have been given to the Worker s back pain. The Worker testified that his back pain continued unabated following the compensable injury. Such testimony is adequately corroborated by evidence documenting the Worker s complaints of back pain. I find it as likely as not that the Worker s back pain is attributable to his 1987 injury. Given the earlier finding that the Worker s back pain is not explained by significant objective physical findings, and is causally related to his 1987 injury, I find it as likely as not that his back pain satisfies the definition of chronic pain. The Worker s counsel submitted that the evidence warrants the award of a 6% pain-related impairment rating. The Worker s counsel noted the Worker s fatigue with the seemingly circular appeal and adjudication process. I have considered the history of referrals and reconsiderations. I find, however, that it is appropriate for the Board to assess the Worker s pain-related impairment, and the effective date of such benefit, in the first instance. CONCLUSION: The Worker s appeal is allowed. I find that the Worker has chronic pain. The Worker s file

8 8 shall be referred to the Board so that it may assess his pain-related impairment rating and its effective date. st DATED AT HALIFAX, NOVA SCOTIA, THIS 21 DAY OF MAY, Brent Levy Appeal Commissioner