WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2005 ONWSIAT 818 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 326/05 [1] This appeal was heard in Toronto on February 10, 2005, by a Tribunal Panel consisting of : B.L. Cook : Vice-Chair, D. McLachlan : Member representative of employers, D. Broadbent : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals a decision of Appeals Resolution Officer Judy Cantwell, dated December 27, That decision concluded that the worker had fully recovered from the effects of her June 18, 1990 work-related injury and that she was not entitled to benefits beyond March 26, 1991 for that injury. [3] The worker appeared and was represented by Anthony Singleton, a law student from Advocates for Injured Workers. The employer was notified of the worker s appeal but elected not to participate. [4] Maureen Doyle, a newly appointed Tribunal Vice-Chair, observed the hearing. [5] At the outset of the hearing, Mr. Singleton advised that he had recently become aware that the worker had seen two specialists at some time in the past and that their reports were not part of the record. At the end of the hearing, he asked the Panel if he could provide these reports on a post-hearing basis if he was able to find them. The Panel agreed to this request. However, in February, 2005, the Panel was advised that the worker would not be submitting any further evidence. THE RECORD [6] The Case Record, three Addenda, and a hearing ready letter dated September 24, 2004 were received and reviewed by the Panel before the hearing, and were marked as exhibits. At the hearing, Mr. Singleton produced some documents received from Dr. Verbeeten. These had been requested by the Tribunal Counsel Office pre-hearing. Dr. Verbeeten apparently sent them to Mr. Singleton rather than to the Tribunal. These documents were also marked as an exhibit. [7] The worker testified and Mr. Singleton made submissions. THE ISSUES [8] In this appeal the worker seeks to establish that she has an ongoing entitlement to benefits under the Board s chronic pain disability policy. In the alternative, she seeks to establish that she has an ongoing organic impairment as a result of the work-related injury.

2 Page: 2 Decision No. 326/05 THE REASONS (i) Background [9] The worker was employed as a security person at a hospice. She had been employed by the employer for almost two years before the accident, having started on a part-time basis. On June 18, 1990, she suffered an injury at work as a result of falling down stairs. She testified that she slipped at the top of a flight of ten to fifteen stairs and bumped all the way down on her low back and buttocks. She recalled that her feet got tangled in the railing and that her body was twisted around as a result. At the time of the injury she was 26 years of age. She is now 41. [10] The worker had a very difficult family life when she was growing up. She attempted suicide at age 17 with an overdose of a mixture of various medications. [11] In 1985, she was involved in an accident while driving a motor scooter. She testified that her scooter hit the side of a car and she was thrown from the scooter, striking her head and back. She testified that she had some continuing back pain after that accident. However, she emphasized that the pain after the motor scooter accident did not prevent her from doing her employment with the accident employer in this case. She testified that before the work-related injury, she had learned to live with her pain and that it was not really an issue if she was careful. She indicated that she was involved in sports activities such as badminton before the work-related injury, but not since that injury. [12] For some years before the work-related injury in 1990, the worker used a variety of drugs on a recreational basis. She indicated that she became friends with someone who had access to drugs such as Valium and Darvon, and that they would take quite a number of these at a time. She indicated that they mostly did this on weekends. She used cocaine only occasionally and did not drink alcohol although she was a regular user of hashish. [13] The worker testified that after the work-related injury, she started to self-medicate to an increasing extent, to deal with her pain. A few months after the accident, she was introduced to heroin through a friend and started to use it. She quickly became addicted and dependent. [14] In the months following the accident, the Board tried to have the worker referred to a Behavioural modification program and to the Downsview Rehabilitation Centre to address concerns that were noted in the medical reporting about the worker s emerging pain disability. The worker did not report for those assessments. In her testimony she noted that she probably had not been able to attend these programs because she was not functioning very well due to her developing and increasing heroin addiction. [15] The worker realized that she had a problem, and, through a family doctor, arranged to attend a hospital in Florida, for a detoxification program. This was sponsored by the Province of Ontario. She was admitted to the Fair Oaks Hospital at Boca/Delray in Florida, on February 23, She was discharged and returned to Ontario in approximately May [16] When the Board found out where she was, her benefits were stopped, effective March 26, 1991, on the grounds that the worker was not available for rehabilitation measures. The Board subsequently determined that the worker had fully recovered from the effects of the work-related

3 Page: 3 Decision No. 326/05 injury, and that by March 26, 1991, she had returned to her pre-injury condition and that any continuing symptoms she had after that date were due to her pre-existing condition. [17] The worker s evidence is that she did not return to her pre-injury condition. She testified that, in particular, she has suffered from significant right leg symptoms ever since the June 1990 accident at work. She experiences pain that starts in her right buttock and travels down her leg to her foot. The pain is always there but is aggravated by activity. She also suffers from pain in her upper back, between her shoulders. It radiates up to her neck and into her head. She suffers from headaches every few months. Although these have been diagnosed as migraine headaches, the worker is not sure that they are migraines because the headaches are not debilitating as migraines sometimes are for sufferers. The pain also radiates to her shoulders and into her arms and hands. The worker noted that she had seen a rheumatologist a few years ago and his diagnosis was fibromyalgia. (ii) Medical evidence about the worker s pre-accident condition [18] From 1986 to approximately May 1991 (when she returned from Florida), the worker s family doctor was Dr. Yvonne Verbeeten. Dr. Verbeeten prepared a report dated April 18, 1997, which documents her treatment in this period. The report indicates that the worker was seen frequently with complaints of depression and anxiety in the years before the work-related injury. She also complained of back pain, notably in February and March 1990, a few months before the work-related injury. [19] The history included in the April 18, 1997 report indicates that in January 1988, the worker advised her that she had been seeing another doctor for two years with regards to a back injury she sustained in The worker wanted Dr. Verbeeten to fill in forms to support an application for social assistance (this was prior to the start of the worker s employment with the accident employer). [20] The other family doctor was Dr. Leora Marcovitz. In a report dated August 29, 1995, Dr. Marcovitz explained her treatment of the worker s back complaints in the period before the work-related injury: Prior to June 18, 1990, [the worker] did complain of pain in her lower back dating back to a motorcycle accident in She was treated on August 5, 1987 for mid thoracic spine back pain on the right diagnosis at that time was muscle spasm of the thoracic spine. That problem resolved itself after treatment with Norflex, a muscle relaxant. [The worker] was treated again for low back pain on the right only on December 19, On that occasion, she was referred to physiotherapy and was prescribed Dolobid, an anti-inflammatory medication. Prior to June 18, 1990, [the worker] had intermittent back spasms in the right thoracic and lumbosacral spines. [21] In the period before the work-related injury, the worker indicated that she may have been double doctoring in an attempt to get more drugs prescribed to support her recreational drug use. She also testified that she probably exaggerated the amount of back pain that she was experiencing in an attempt to have more and stronger medication prescribed.

4 Page: 4 Decision No. 326/05 (iii) Medical evidence about the worker s condition after the accident [22] In September 1990, a few months after the work-related injury, the worker was assessed by Dr. Rajka Soric, a specialist in physical and rehabilitation medicine. He noted that the worker reported that she had been involved in a motorcycle accident in 1985 that resulted in low back pain and that she had been plagued with this problem ever since. Dr. Soric indicated that from the functional point of view, [the worker] is experiencing severe limitations. He felt that the worker had a moderately severe soft tissue injury but referred her for a CT scan and a body scan to rule out a skeletal injury. [23] The worker did not keep the appointments scheduled for the body scan, but did have a CT scan, which was reported to be normal. In a December 21, 1990 report, Dr. Soric reported: During our telephone conversation today [the worker] told me that she is in fact feeling better as far as the back pain is concerned. [24] Subsequent to Dr. Soric s report, the main medical information is found in the records of the Florida Fair Oaks Hospital regarding the worker s treatment there from February 1991 to approximately May These records are quite comprehensive and contain a great deal of information about the worker in respect to her history and her detox treatment at the hospital. In regards to the worker s family history, the records indicate that she had a very troubled family life that featured emotional and physical abuse. Her history of drug abuse is also of course discussed as are the difficulties she experienced in the detox process. Her problems with depression were also noted and treated. [25] Her complaints of back pain were noted and she received treatment for her back condition at the hospital. This included physiotherapy and pain medication. The history of the back problem was noted to have begun with the motorcycle accident in 1985, with an aggravation of back pain as a result of the work-related injury. An entry dated April 18, 1991, indicates that the worker was taking Parafon Forte and Motrin for her back pain. These were noted to be helping and her back pain was improving. [26] It appears that the worker left the Florida treatment facility in approximately May 1991, having had her heroin addiction successfully treated. The worker testified that she has never again abused drugs. She has taken drugs since for pain, but they have always been prescribed by her doctors. [27] The worker indicated that after the treatment at the Florida facility, she attended another medical facility in Kansas. This was also funded by the Ontario government. At the Kansas facility she received counselling related to various issues concerning her sexuality and the abuses she suffered in her childhood. She testified that this treatment lasted about one month and that it was very helpful. She feels that as a result of the treatment she was able to come to terms with these issues and to put her past behind her and feel comfortable with who she is. There are no documents about this treatment in the record. [28] As noted earlier, after she returned to Ontario, she was treated by Dr. Marcovitz. In a December 13, 1991 report, Dr. Markovitz indicated that the worker was receiving ongoing

5 Page: 5 Decision No. 326/05 treatment for her low back pain and that she was not able to return to work because of that condition. [29] In the August 29, 1995 report from Dr. Marcovitz, noted earlier, she indicated that she had continued to treat the worker in the years following the accident. [30] In August 1997, Dr. Marcovitz referred the worker to Dr. Krystyna Prutis, a specialist in physical and rehabilitation medicine specialist. Dr. Prutis noted that the worker had complaints of chronic low back pain. She understood that this started with the 1985 motor vehicle accident but that the pain had settled down after that accident and was then aggravated by the 1990 work-related injury. Dr. Prutis did electrodiagnostic testing, which was normal. Neurological examination was also normal. She felt that the worker had originally suffered a myofascial lumbar strain. She added that the worker was clearly suffering from a chronic pain syndrome. Dr. Prutis noted that a CT scan had been done in December 1990, which was reported to be normal. She referred the worker for a repeat CT scan which was reported to show some disc bulging at the L4-5 level (in the low back), but without evidence of frank herniation. Disc bulging, in and of itself, does not necessarily result in symptoms (see the Tribunal Discussion Paper on Back pain, included in Case Record Addendum No. 2). [31] The Panel notes that the worker also had a CT scan done in January 1995, which was reported to be normal, except for mild right sacroiliac joint osteoarthritic changes. [32] In a report dated January 21, 1998, Dr. Prutis reiterated her opinion that the worker suffers from a chronic pain disability. [33] The worker indicated that she has subsequently seen a pain specialist who had suggested nerve block therapy. However, she had not proceeded with that treatment. The worker also recalled seeing an orthopaedic surgeon and a rheumatologist at some point in the past. At the hearing, Mr. Singleton indicated that he wished to obtain reports from these specialists if they were available. The Panel agreed to allow him to submit these reports on a post-hearing basis, but he later advised the Tribunal that the worker would not be submitting any additional reports. (iv) Submissions [34] On behalf of the worker Mr. Singleton submitted that the worker is entitled to benefits under the Board s chronic pain disability policy. In the alternative, he suggested that she might have entitlement to benefits on the basis of an organic impairment. In this regard, he noted that a diagnosis of mechanical back pain has been suggested. [35] Mr. Singleton noted that the main difficulty in respect of the worker s claim for benefits under the chronic pain disability policy is the question of whether the worker s chronic pain disability results from the work-related injury. He conceded that there is evidence of other, noncompensable factors that may have contributed to the worker s pain disability. However, he noted that the test is not whether the worker s injury was the sole cause of the subsequent disability, but rather whether the worker s injury was a factor that made a significant contribution to the subsequent disability. He referred to the Tribunal s Decision No. 915, in support of these arguments.

6 Page: 6 Decision No. 326/05 [36] Mr. Singleton conceded that there is some evidence that the worker had pre-existing back pain. However, he noted that there is also evidence that suggests that the worker s back pain was permanently aggravated by the work-related injury. In his submission, the worker was able to work without any medical restrictions related to her pre-existing back problems before the accident, but has never been able to return to gainful employment since the accident. Mr. Singleton submitted that there is evidence of a strong temporal link between the injury and the development of the worker s chronic pain disability, and argues that this further supports that the work-related injury was a factor that contributed significantly to the worker s ongoing pain disability. (v) The Panel s conclusions [37] In this case, the worker sustained soft tissue injuries as a result of the work-related injury. In other words, the injuries did not involve the skeletal system. There was no evidence of any broken bones, or damage to the spine. A CT scan taken shortly after the injury was negative. A scan in 1995 revealed some minor arthritic change at the sacroiliac joint area. The scan done in 1997 showed some evidence of disc bulging, but no evidence that this was causing any of the worker s symptoms. Since the earlier CT scans did not show this problem, it is not clear that it could have been caused by the original accident in any event, even if it is now a factor contributing to her symptoms. It is not clear that the minor arthritis noted at the time of the 1995 scan was seen in the 1997 scan. [38] In some cases, soft tissue injuries can lead to a permanent impairment. However, in this case, it is difficult to establish that any of the ongoing complaints are due to a permanent soft tissue injury. With the exception of findings such as muscle spasm, there is no way to objectively measure soft tissue injury and it is generally diagnosed on the basis of the worker s complaints and symptoms. [39] We must also note that there is clear evidence that the worker had pre-existing low back symptoms from the time of the earlier, non-compensable motor scooter incident. While the worker testified that she was able to learn to live with those symptoms before the work-related accident, the medical reporting suggests that the worker consistently dated the onset of her back pain to the 1985 incident. The reports from Dr. Markovitz and Dr. Verbeeten concerning their treatment of the worker prior to the work-related injury also make clear that the worker was seen on a number of occasions prior to the work-related injury with complaints of back pain. The worker indicated that she might have exaggerated her complaints in an attempt to get stronger prescription medication to support her recreational drug use. While this is possible, the fact remains that the worker was seen with complaints of back pain that seems to have persisted from the time of the 1985 accident. We also note that Dr. Marcovitz indicated in her August 29, 1995 letter that prior to June 18, 1990, [the worker] had intermittent back spasms in the right thoracic and lumbosacral spines. When Dr. Soric saw the worker in September 1990, he understood from the worker that she had been plagued with back pain ever since the motor scooter accident. [40] The worker s ongoing symptoms also include headache. She feels that the headache condition is related to her back pain. She has been diagnosed as having migraine headaches.

7 Page: 7 Decision No. 326/05 According to Dr. Marcovitz s report of August 29, 1995, this condition was diagnosed and treated before the work-related accident. [41] There is no doubt and no dispute that the work-related accident aggravated the worker s pre-existing pain condition. The work-related accident was significant and the worker required medical attention for her back. She continued to complain of back pain during her treatment in Florida, although most of the treatment was focussed on her other problems. [42] However, in December 1990, Dr. Soric reported that the worker had indicated that she was feeling better as far as the back pain is concerned. As Mr. Singleton pointed out, this does not mean that the worker had fully recovered from the effects of the work-related injury, but it does indicate that she was improving. [43] The Panel accepts that the worker has had continuing back pain ever since her work-related injury and that she had continuing back pain after March 1991, when her benefits were stopped by the Board. However, as noted, she also had chronic back pain before the work-related accident. The question is whether it can be shown that the post-accident back pain was different than the prior pain condition, and whether that difference results from the work-related injury. [44] This question is complicated by the fact that the diagnosis in this case is now chronic pain disability. This is the diagnosis offered by Dr. Prutis. The worker indicated that she has also been diagnosed with fibromyalgia, which is a form of chronic pain disability, characterized by diffuse pain and sleep disturbance. The worker testified that her pain disability significantly affects all aspects of her life. The worker provided her testimony in a straightforward manner, and the Panel has no doubt that the worker is significantly disabled by her pain disability. We accept the medical diagnosis of chronic pain disability and accept the worker s testimony that this condition results in significant disability. [45] To be clear, the Panel notes that this does not mean that the worker s pain disability is entirely psychological in nature. She may very well have continuing symptoms from soft tissue damage. However, it is very difficult to establish that such symptoms result from the workrelated injury, given the history of prior problems. As well, it seems clear that the worker s overall disability could not be explained only on the basis of any ongoing soft tissue damage. [46] As suggested earlier, the available medical evidence suggests that the worker has been disabled by a chronic pain disability. In the absence of medical evidence of ongoing organicbased symptoms that could be distinguished from the pre-existing history, it seems probable that the reason that the worker continued to be disabled by pain beyond March 1991, when the Board stopped her benefits, was because she had by then developed a significant chronic pain disability. In this regard, it may be noted that March 1991 was approximately six months after the accident. In general, soft tissue injuries are expected to heal within a three month time frame (see Operational Policy Manual Document No ). [47] The Panel therefore agrees with Mr. Singleton that the main issue in this case is whether the worker s ongoing chronic pain disability results from the work-related injury.

8 Page: 8 Decision No. 326/05 [48] The Board s Operational Policy Manual Document No defines chronic pain as pain with characteristics compatible with a work-related injury, except that it persists for 6 or more months beyond the usual healing time for the injury. While there is always a possibility that the pain is attributable to an as yet undetected organic cause, chronic pain disability is generally understood to be a psychological disability, in the sense that the pain is not explicable on the basis of the organic findings, or persists beyond the point that the organic injury is expect to have healed completely. The policy goes on to establish the following criteria: A work-related injury occurred. Chronic pain is caused by the injury. The pain persists 6 or more months beyond the usual healing time of the injury. The degree of pain is inconsistent with the organic findings. The chronic pain impairs earning capacity, demonstrated by evidence of consistent and marked life disruption. [49] As noted, in this case, the problem is the second criterion, and the question is whether the worker s chronic pain disability resulted from the injury. [50] As noted by Mr. Singleton, when determining whether a subsequent disability has resulted from the original injury, the usual question is whether the original injury is a factor that has made a significant contribution to the development of the subsequent disability. The original injury does not have to be the only contributing factor, but it its contribution must be significant. The significant contribution test represents the application of the thin skull principle that Mr. Singleton referred to. It means that the consequences of the injury must be compensated, even if the disability that results from the injury is made more serious because of pre-existing problems that were aggravated by the injury. [51] However, this does not mean that any problems that develop after the accident are compensable. To be compensable, the subsequent problems must have a significant relationship to the accident. In assessing the significance of the accident-related factors, it is necessary to consider other, non-work-related factors. In some cases, the non-work-related factors may be of such significance that they outweigh the significance of the work-related factors. [52] In this case, in addition to the worker s pre-existing back pain, there is also a lot of evidence that suggests that the worker had a long and significant history of psychological problems prior to the accident. These included the worker s troubled family life situation when she was growing up, and a clear history of depression. The latter is noted in the reports from Dr. Marcovitz and Dr. Verbeeten concerning their treatment of the worker before the accident. [53] It is also clear that the worker had a fairly significant history of drug abuse prior to the work-related accident. After the accident, this problem intensified when the worker was introduced to heroin. The reports from the hospital in Florida strongly suggest that the main problem at the time of her treatment there was the history of substance abuse. The worker has not claimed that her heroin addiction resulted from the work-related accident and, in our view, this condition must be seen as a major non-compensable factor.

9 Page: 9 Decision No. 326/05 [54] The worker then received treatment at another American facility to help her deal with her other adjustment issues. The record does not include any information about this treatment. We accept the worker s evidence that this treatment was very helpful and that she learned to deal with her past. However, again, the Panel must conclude that the worker s prior life history was another non-compensable factor of major significance in respect of the development of the worker s chronic pain disability. [55] While the Panel accepts that the work-related accident is a factor that may have contributed to the development of the chronic pain disability that has disabled the worker, we are unable to conclude that it is a factor that can be said to have contributed in a significant fashion. In particular, in our view, the non-compensable factors are of such significance that they outweigh the contribution of the work-related injury to the point that it cannot be seen as a significant factor. [56] For these reasons, we must deny the worker s appeal. THE DECISION [57] The appeal is denied. DATED: This 11 th day of April, SIGNED: B.L. Cook, D. McLachlan, D. Broadbent