WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1574/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1574/09 BEFORE: C. M. MacAdam : Vice-Chair E. Tracey : Member Representative of Employers D. Felice : Member Representative of Workers HEARING: August 18, 2009, at Toronto Oral DATE OF DECISION: October 16, 2009 NEUTRAL CITATION: 2009 ONWSIAT 2405 DECISION(S) UNDER APPEAL: WSIB ARO decision dated September 12, 2008 APPEARANCES: For the worker: For the employer: Interpreter: Ms Cheryl Misener, Paralegal Ms Melissa D Ambrosio, Paralegal N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 REASONS (i) Introduction Decision No. 1574/09 [1] The worker appeals a decision of the ARO, dated September 12, 2008, which denied initial entitlement for a work-related low back injury or impairment. This is the issue for determination in the appeal. (ii) Background [2] On March 20, 2007, the then 60-year-old worker complained to his employer that he had been suffering increasingly low back pain for a year. He had stopped working on March 5, 2007, due to low back pain and went on short-term disability benefits. [3] The worker saw a neurologist, Dr. I.B. Schacter, on May 10, Dr. Schacter reported severe osteoarthritis throughout the lumbar spine with the exception of L5-S1, and that there was degeneration in the lower back. An MRI was ordered. [4] On May 17, 2007, the family physician, Dr. M. Petrini s diagnosis was lumbosacral strain with bilateral sciatica pain. He noted as well that the worker was unemployable because of the severity of his symptoms. [5] The Board had an ergonomist assess compatibility between the worker s job and his low back condition. The report, dated July 4, 2007, concludes that the job of taper involved significant risk factors that could contribute to or aggravate a low back injury. Those factors were: Moderate to heavy lifting; Frequent awkward non-neutral postures of the back; Frequent stooping, squatting and kneeling; and Frequent overhead activity. [6] The ergonomist also stated that the position of Drywall Taper involved prolonged weightbearing. [7] On July 18, 2007, the Claims Adjudicator denied initial entitlement, despite the ergonomist s opinion. The Claims Adjudicator reasoned that the worker s job duties had not changed and hence the risk factors had not resulted in a low-back injury for over 30 years. [8] The MRI was performed on August 25, 2007, by Dr. M. Bozorgzadch. The impression was spinal stenosis due to congenital and acquired multilevel degenerative disc disease. [9] On October 24, 2007, the MRI results were reviewed by a neurologist, Dr. Farad Pirouzmand. Dr. Pirouzmand noted the worker s job as a drywall taper, and also noted the worker s description that his low back pain had started at work over the course of a year. He opined that the worker s spinal stenosis was the result of underlying degenerative changes on top of his congenitally narrow spinal canal. [10] The Claims Adjudicator reviewed the file on May 20, 2008, and confirmed the denial of initial entitlement.

3 Page: 2 Decision No. 1574/09 [11] The ARO denied entitlement on several grounds, including an aggravation basis. The ARO found there was no way to prove that the worker s condition arose from his duties. The ARO accepted that the worker has back pain, though he did not accept that the worker s history of back pain was related to his work duties. The ARO found that the medical evidence established that the worker s low back condition was caused by non-work-related factors. (iii) Law and policy [12] Since the worker was injured in March 2007, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [13] Revision #8, would apply to the subject matter of this appeal: #1 - Initial Entitlement #300 Decision Making/ Benefit of Doubt/Merits and Justice Operational Policy Manual Document # , entitled Adjudicative Process, sets out a five-point check system for ruling on initial entitlement. A claim must have an employer, a worker, a personal work-related injury, proof of accident and compatibility of diagnosis to accident or disablement history. [14] Operational Policy Manual Document No , defines disablement as a condition that emerges gradually over time, and an unexpected result of working duties. [15] In considering the issue of causation, Tribunal decisions have applied the significant contribution test. WCAT Decision No. 280 (1987) defined a significant contributing factor as a factor of considerable effect or importance or one which added to the worker s pre-existing condition in a material way to establish a causal connection. Tribunal case law has established that the work duties need not be the only or the most significant contributing factor, but they must be a significant contributing factor to the onset of a disability. (iv) The worker s testimony [16] The worker confirmed that he had been a drywall taper since 1971, and that he had been with the accident employer since He confirmed that his job did not involve lifting drywall. He described his job in detail. The job involved erecting and dismantling scaffolds, moving 60 pound boxes of drywall compound, mixing the compound with water, carrying about 10 to 15 pounds of compound in the taping mechanism at a given time, applying tape to installed drywall on walls and/or ceilings under various physical postures, then mudding the taped seams, and then sanding the seams. [17] The worker confirmed that he had low back pain radiating to the right hip in January 2004, as indicated in Dr. Petrini s clinical notes. There had been no incident that triggered the symptoms. He testified that he had physiotherapy at that time, and was off work on short-term disability benefits for 13 weeks. When it was brought to his attention that Dr. Petrini s notes from 2004 had not indicated lost time, the worker corrected himself and testified that he had been off work for 13 weeks due to back pain some 10 years ago.

4 Page: 3 Decision No. 1574/09 [18] The worker testified that his back pain in 2004 did improve and that he had little back pain in 2005 and The pain started steadily again about six months prior to March The worst pain was while he was trying to sleep. It was worse on the right side, though currently the pain was radiating to his legs. He could not explain why he waited six months before he saw his doctor about the symptoms in March [19] The worker testified that he stopped working in March 2007 because he could no longer step up to benches used to apply tape to ceilings. He testified that ceilings in new homes have been built higher in the past 10 years and hence the use of benches to reach them. His back pain was aggravated by bending over or extending to tape a ceiling. He testified that his back pain in the evening would be 10/10, and that it would be better in the mornings. He confirmed that his back pain is still the worst at night. [20] The worker testified that his activities of daily living have been limited by his back condition since He cannot play bocci, as it requires a lot of bending. He still cuts the grass with a self-propelled mower and he does some yard work. [21] The worker explained that he likely did not make a claim until May 2007, because he had received 13 weeks of short-term benefits after he stopped working in March He also thought the symptoms would pass. He testified that it was Dr. Schacter who suggested that his problem was work related. [22] The worker testified that he looked for light work at a building supplies chain store. He believes he was not hired because of his age. (v) Submissions [23] The worker s representative relies on the ergonomic report and the medical evidence in arguing that the ARO erred in denying initial entitlement. He notes that the ergonomist found the worker s duties as a taper to be very physical and that it included several risk factors for a low back injury. The representative also references the Tribunal s paper on back pain. In that paper, Dr. Gertzbein indicates that disc protrusions can result from bending, lifting, and twisting, as required in the worker s duties as a taper. Dr. Gertzbein also indicates that jobs with repetitive bending, heavy lifting and twisting, all take their toll on the disc, particularly in the face of normal aging. The representative submits that the heavy nature of the worker s job, and his age in 2007 combined to cause the bulging discs found in the MRI. [24] The representative submits that the disc herniation revealed in the MRI should be considered a disablement: a condition that emerged gradually over time as an unexpected result of the job duties. He points to the ergonomist s opinion that the worker s job duties could aggravate a low back condition. He argues that the job duties were a significant contributing factor in aggravating the worker s pre-existing back condition. He notes that the Board s Adjudicative Advice Paper on Disablements indicates that there need not be a change in the worker s duties to entitlement for a disablement to be granted. The representative has submitted Decision No. 315/98, dated January 22, 1999, in support of his argument. [25] The representative submits that the worker should not be faulted for not making a claim as it should not be assumed that a worker should know the cause of low back symptoms.

5 Page: 4 Decision No. 1574/09 [26] The employer s representative submits that the facts of this appeal do not meet the five checkpoint system for initial entitlement. There was no accident and no pre-accident impairment. She submits that the ergonomist's finding of risk factors should be discounted by the worker having done those same duties without injury for over 30 years. She submits that the worker s condition in 2007 was not an unexpected result of his duties. She submits that it would be expected that a 60-year-old worker with asymptomatic congenital and degenerative would become symptomatic at that age. (vi) Analysis [27] After reviewing all the evidence, the Panel concludes that the appeal should be dismissed. We find the worker s job duties were not a significant contributing factor to his low back condition. Our analysis follows. [28] The Panel is not persuaded that the claim can be accepted on an aggravation basis. Operational Policy Manual Document No , Aggravation Basis, sets out the following: Policy In cases where the worker has a pre-accident impairment and suffers a minor workrelated injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. [29] The Panel is not persuaded that the worker had a pre-accident impairment prior to The worker s evidence is that he had an episode of low back pain in 2004, though few symptoms in 2005 and His evidence is that his symptoms became steady about six months prior to March We accept that the worker had asymptomatic degeneration and severe osteoarthritis prior to this period, though this does not mean that the worker had a pre-accident impairment. Asymptomatic means to be without symptoms. Hence the worker s pre-accident asymptomatic condition cannot be construed as an impairment. Indeed, the worker s evidence is that he had no significant problems performing his duties in 2005 and 2006, until six months before March [30] The medical evidence indicates that the worker s back condition is congenital and degenerative. This was the opinion of the radiologist, Dr. Bozorgzadch. It was also the opinion of the neurologist, Dr. Pirouzmand. Dr. Pirouzmand reported that the worker s spinal stenosis from L2-3 to L4-5 was the result of underlying degenerative changes on top of his congenitally narrow spinal canal. Dr. Pirouzmand had noted the worker s job as a drywall taper and that the worker had developed symptoms on a construction site, yet, he does not indicate a causal relationship between the job duties and the low back condition. In our opinion, this is strong evidence that the worker s low back condition is not causally related to his job duties. [31] The worker was able to perform the job of Drywall Taper for over 30 years without any significant complaint. His evidence is that his symptoms started and remain worse at night, not on the job. His evidence is that he would be fine in the morning and become increasingly sore as the day wore on. This would be the normal condition of an aging worker with degeneration in his low back as the worker was found to be by Dr. Schacter in May 2007.

6 Page: 5 Decision No. 1574/09 [32] The worker did not identify any specific job duty that caused his symptoms. He had several duties: from setting up a new job by setting up scaffold, bringing in 50 pound boxes of drywall compound, setting up a mixing site, filling his taping box with 10 to 15 pounds of compound, then heading off to tape, plaster, and or sand, which required bending and twisting. The worker would have had access to assistive devices, like a dolly to move heavy material like the boxes of compound. These duties offered the worker a considerable variety of movement. In our view, this helps to explain why the worker was able to perform the job for over 30 years, despite his congenital low back condition. [33] While we accept the ergonomist s opinion that the worker s job involved the risk factors identified, we find that these did not present a significant risk to this worker as he was able to do the job without any significant complaint for over 30 years. [34] We note as well, that the duties of a Drywall Taper and a Drywaller are significantly distinguished in that a Drywall Taper does not handle heavy sheets of drywall. The worker testified that he did not handle drywall. Drywall sheets are awkward to handle and they are heavy. They require considerable strength to carry and install. In contrast, the heaviest aspect of a taper s job appears to be the moving of 50 pound boxes of compound. As stated earlier, the worker would have had access to a dolly for moving these boxes, though we accept that the job would require some lifting of the boxes on an occasional basis. [35] The Panel finds that Decision No. 315/98 is not applicable to the instant appeal as the facts of that case are significantly different from those of the instant appeal. Decision No. 315/98 concerned a construction worker with 24 years of experience, who, at the age of 58, began to feel low back pain in April 1992, two weeks into a job installing siding on a boathouse, and just after a three-month seasonal layoff. The worker s duties included carrying a 120 pound brake from his truck to the work site. On April 13, 1992, the worker suffered an acute episode of low back pain that caused him to seek immediate medical attention and to stop working. A CT scan revealed a massive disc herniation at the L4-5 level and a lesser herniation at L5-S1. The Panel found that the worker s duties in March and April 1992 were a significant contributing factor to the herniations. [36] In the instant appeal, there had been no change - like a three-month seasonal layoff - in the worker s duties prior to the onset of symptoms. The worker s duties had not involved regular significant lifting, like carrying 120 pound weights. The worker had suffered no acute episode prior to his stopping work. The MRI report of August 25, 2007, indicating some disc bulging and multilevel disc degeneration, though there is no indication of significant herniation. In our view, these factual differences render the reasoning in Decision No. 315/98 not applicable to the instant appeal. [37] In summary, we find that the worker s job duties were not a significant contributing factor to the onset of symptoms in 2006 and 2007.

7 Page: 6 Decision No. 1574/09 DISPOSITION [38] The appeal is denied. The worker does not have initial entitlement for his low back. DATED: October 16, 2009 SIGNED: C. M. MacAdam, E. Tracey, D. Felice