WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 73/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 73/09 BEFORE: N. Jugnundan: Vice-Chair HEARING: January 12, 2009 at Toronto Oral DATE OF DECISION: January 20, 2009 NEUTRAL CITATION: 2009 ONWSIAT 174 DECISION(S) UNDER APPEAL: WSIB ARO decision dated August 16, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Z. Robinson, Union Representative Not participating Not applicable 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 Decision No. 73/09 REASONS (i) Issue [1] I must determine whether the worker has entitlement for a low back condition on the basis that her job duties aggravated her pre-existing condition. (ii) Background [2] In a Board decision dated July 4, 2005, this now 59 year old worker was granted initial entitlement as well as Loss of Earnings (LOE) benefits on a disablement basis, arising from her general duties as a cashier. The accident employer was also granted entitlement to SIEF relief at 75%, in lieu of the worker pre-existing degenerative low back condition. [3] Entitlement was also initially extended to include surgery that the worker underwent on October 26, 2004, for the right L5-S1 posterolateral decompression aimed at relieving right leg sciatica, and not aimed at eradicating the low back pain. [4] On review, on the basis of an employer appeal, the ARO determined that while the Board s medical consultant indicated that the nature of the worker s job duties may have aggravated her asymptomatic pre-existing DDD and facet joint osteoarthritis, there was no change in the worker duties of a cashier or a specific incident to result in the aggravation. He concluded that the worker s significant pre-existing degenerative back condition was the major factor that contributed to her ongoing low back condition and that the nature of her job duties was not a significant contribution. The ARO rescinded initial entitlement. [5] This issue is now on appeal before the Tribunal. (iii) The worker s testimony [6] The worker gave the following account: She has been employed as a cashier with the accident employer since Following the complaints of low back pain, she continued to work on average 24 to 30 hours a week. She then increased her hours (she was not sure when) to 37 hours per week, until a month prior to the hearing. She had a slip and fall accident in February She did not complain to her doctor until six months after the accident. She did inform a Manager on duty about the incident, but she cannot recall to whom she spoke. She missed no time from work and did not require any medical treatment at this time. Her duties as a cashier required her to pick up articles from a moving belt, scan the articles and place them in a bag. This was all that she did. She feels that moving from side to side resulted in her low back pain. Her doctor did not tell her this. Neither did her doctor suggest that she file a WSIB claim. She met a retired union representative at the doctor s office and he told her that she should file a WSIB claim since she had worked for the accident employer for such a long time. She has flat feet and believes this was also caused by her standing all day long.

3 Page: 2 Decision No. 73/09 [7] The worker s representative made the following submissions: The worker s long duration of employment as a cashier with the accident employer was a significant contributing factor in the gradual onset of the low back pain. Dr. Kumar, the Board s Medical Consultant, agreed that the nature of the worker s job duties could have aggravated the worker asymptomatic condition. The worker s low back complaints resulted in her undergoing surgery. Dr. Wong, the family doctor indicated that she was not aware of the worker having any significant low back problems in the past. The nature of the worker s duties resulted in wear and tear of her back. The worker is claiming entitlement on a disablement basis, arising out of and in the course of her employment. (iv) Analysis and findings (a) Law and policy [8] Operational Policy Manual (OPM) Document No , 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 the accident or disablement history. [9] OPM Document No entitled Aggravation Basis, states: In cases where the worker has a pre-accident impairment and suffers a minor work related 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. [10] According to the Board's OPM Document No , the definition of disablement includes: a condition that emerges gradually over time, an unexpected result of working duties [11] In determining causation, Tribunal decisions have applied the significant contribution test. This test corresponds with the material contribution test at common law (see Decision No. 2839/01R). [12] The nature of the injury claimed by the worker is an injury by accident in the form of disablement. This form of accident under the legislation was discussed in the Tribunal s Decision No. 559/87, 9 WCATR 103. At page 145, the Panel stated: The disablement part of the definition of accident has typically found its application in the case of injuries over time as a result of repetitive stressful motions in the employment context.

4 Page: 3 Decision No. 73/09 [13] Other Tribunal decisions have accepted that interpretation of the disablement portion of the definition of accident and have also generally applied the following test in determining whether disablement has occurred: Was there an injuring process associated with the employment that made a significant contribution to the worker s disability? [14] The question of what a significant contributing factor might be was considered in the Tribunal s Decision No. 280, 6 WCATR 27. In that decision, the Panel stated: A significant contributing factor is 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. [15] I note this excerpt from the Tribunal s Decision No. 652/87, 10 WCATR 75: This case raises the issue of the distinction between disabling symptoms appearing as the result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as reflecting a compensable exacerbation or acceleration of a pre-existing condition, and the disabling symptoms appearing as a result of the impact of employment on a pre-existing degenerative condition which symptoms may be fairly taken as merely evidence of the disabling nature of the pre-existing condition. [16] Finally, I note a summary of the Tribunal case law in this area, from Decision No. 1592/01 (August 31, 2001), at paragraph 21: It is now commonplace in Tribunal case law that for entitlement to succeed on an aggravation basis, one must be satisfied that the worker duties or a work incident changed the natural course of the underlying condition. (b) The medical evidence [17] The CT scan of October 21, 2003 was clear in its findings: Mild scoliosis convex left L3-4 mild to moderate facet osteoarthritis L4-5 minimal disc bulge, mild to moderate facet OA particularly on the right L5-S1 moderate right posterolateral disc protrusion with a small foraminal component which compresses the existing L5 root. Mild facet OA Summary Right posterolateral disc protrusion at L5-S1, which compresses the right S1 root [18] In a report dated June 3, 2004, Dr. Soon-Shiong, an orthopaedic and spine surgeon, noted that the worker presented with right sided leg pain. He further noted that the worker had ongoing sciatica, secondary to a right L5-S1 posterolateral disc herniation and mechanical low back pain secondary to degenerative disc disease at L5-S1. He further indicated that they would not be treating her back pain surgically. [19] The chiropractor, K. Ramsay, noted in a report dated February 4, 2005, that the worker was referred for acupuncture for the right gluteal discomfort that began in April 2003 that

5 Page: 4 Decision No. 73/09 radiated down into the right calf. She further noted that after one month of treatment, with another chiropractor, the worker s condition worsened. No mention was made of the low back. (c) Was the nature of the worker s job duties a significant factor that contributed to her claim for disablement? [20] At the outset of the hearing, the worker s representative was asked to clarify whether the worker was pursuing entitlement on a disablement basis or as a result of a specific injury since the worker seemed to suggest by way of her testimony that the injury to her back resulted from a specific slip and fall incident at work. After consulting with the worker, the representative clarified that the worker was pursuing the claim on a disablement basis and not as a result of the slip and fall incident that the worker alleged occurred in February [21] In noting the testimony of the worker and the evidence in the case record, I find insufficient compatibility between the nature of the worker s job duties - which were consistent since she began working for the accident employer as a cashier in and the diagnosis of an aggravation of her pre-existing asymptomatic DDD that resulted in low back pain. To find that the worker s pre-existing condition was rendered symptomatic due to the nature of her work duties would mean that the worker s job duties was a significant contributing factor that rendered her pre-existing asymptomatic low back condition symptomatic. For the reasons noted below, I do not find that to be the case. [22] The question of what a significant contributing factor might be was considered in the Tribunal s Decision No. 280, 6 WCATR 27. In that decision, the Panel stated: A significant contributing factor is a factor of considerable effect or importance or one that added to the worker s pre-existing condition in a material way to establish a causal connection. [23] The CT scan referenced above indicated that there are two underlying pre-existing conditions (scoliosis and degenerative facet disease) that could cause the worker s pain. The Tribunal s Discussion Paper on Back Pain describes scoliosis as follows: Scoliosis: This is sideways curvature of the spine. It can be congenital, secondary to paralysis (such as poliomyelitis) or idiopathic (i.e. no known cause)...any type of scoliosis is often associated with premature aging changes in the discs at the apex of the curve. It can cause back pain. But...a considerable proportion [of patients in a survey] had scoliosis with aging change but had no back symptoms... [24] The Discussion Paper also describes how certain age-related changes occur in the lumbar spine. One of the conditions in which aging may cause symptoms of back ache is facet arthritis a condition in which there are wear and tear changes (often described as degenerative ) changes in the facet joints. The Discussion Paper states:...facet arthritis is the result of loss of disc height distorting the facet joints. It can be the cause of chronic intermittent back ache. When seen soon after an injury it is a preexisting condition as it takes years for the x-ray changes of facet arthritis to occur. Whether or not it is aggravated by trauma is a moot question. For this to be true, the injury would probably have to be severe rather than a simple lifting strain...

6 Page: 5 Decision No. 73/09 [25] In noting that the worker has these age related changes to her lumbar spine, the issue is whether her complaints of low back pain resulted from this non-compensable underlying back condition which simply become symptomatic in due course because of its natural progression, as she engaged in her duties as a cashier, or whether the work activities actually were an injuring process that significantly contributed to the asymptomatic back condition becoming symptomatic. [26] As noted by the Vice-Chair in Decision No. 1014/99, Tribunal case law draws a distinction between disabling symptoms that appear as a result of the impact of the work on an underlying condition and symptoms which are merely evidence of the disabling nature of the underlying condition. I find the latter to be circumstance of the case before me. The worker s asymptomatic DDD may well have been made symptomatic while she was at work but this does not mean that just because she was at work, her low back condition was the result of the nature of her work. [27] The worker s family doctor, Dr. Wong, noted in her report of December 28, 2004, that the worker felt it was brought on by the repetitive activity at her work, none of the treating physicians provide an objective opinion in this regard. Dr. Soon-Shiong does however state that the worker s mechanical low back pain is secondary to her degenerative disc disease. He did not make a casual connection between the work and the back problems. [28] I note that Board Medical Consultant, Dr. Kumar, suggested in Board Memo No. 9, dated June 15, 2005, that the gradual onset of back pain might be related to the worker s job duties. In a Board Memo dated March 7, 2005, he noted that the consulting orthopaedic surgeon (Dr. Soon Shiong) had not mentioned a causal relationship. I prefer the opinion of the treating specialist who had the benefit of seeing the worker and taking a history directly from the worker. [29] I also note that there is a significant hiatus between the worker s initial complaint of low back pain, as documented in the file (early 2003) and the reporting of the incident as a WSIB claim in November This suggests to me that the family doctor who was monitoring the worker s condition did not consider her back condition to be work related. My conclusion is further supported by the worker s testimony as she confirmed that it was not her family doctor but a retired union representative who indicated to her that she was entitled to a WSIB claim, considering how long she had worked for the accident employer. [30] In addition, I note that the focus of the medical reports on file are in regard to the worker s complaint of sciatica, not low back pain, which Dr. Soon-Shiong commented was secondary to the right L5-S1 posterolateral disc herniation. I also note that the chiropractor indicated that the worker s complaints of right gluteal discomfort and pain radiating down the right calf (not the low back) became worse after she began physiotherapy treatment, suggesting that it was the physiotherapy treatment rather than the worker s job duties that resulted in increased and more frequent low back pain. [31] As noted in Decision No. 1592/01, it is common place in Tribunal case law that for entitlement to succeed on an aggravation basis, one must be satisfied that the worker s duties or that a specific work incident changed the natural course of the underlying condition. In addition, I note as per Board Operational Policy Manual Document No disablement is defined

7 Page: 6 Decision No. 73/09 as a condition that emerges gradually over time, and as an unexpected result of working duties. Thus, in order to establish that a disablement arose out of and in the course of employment, the disablement must have a causal relationship with the work being performed. [32] The worker described her duties as moving her upper body slightly from the left to right as she picked up the article from the moving belt and scanned it, before turning slightly to her right and then sliding the article into a bag that was just below the scanner. She clarified that this was all that she was required to do as a cashier, since she began working for the accident employer. I find no evidence to suggest that there was a causal relationship between the aggravation of the worker s low back condition and the nature of her duties as a cashier. The evidence does not suggest that there was a change in the nature of the worker s job duties or a specific incident at work that resulted in the asymptomatic condition becoming symptomatic. [33] I find that the preponderance of evidence suggests the significant mechanical back pain that the worker began to experience was secondary to the DDD, resulting from the aging process rather than being causally related to her work duties. [34] Accordingly, I find the preponderance of the evidence establishes the worker s job duties did not significantly contribute to an aggravation of her underlying condition or to that condition becoming symptomatic.

8 Page: 7 Decision No. 73/09 DISPOSITION [35] The appeal is denied. DATED: January 20, 2009 SIGNED: N. Jugnundan