WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 399/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 399/15 BEFORE: J. Josefo: Vice-Chair HEARING: February 24, 2015 at Sudbury Oral DATE OF DECISION: March 16, 2015 NEUTRAL CITATION: 2015 ONWSIAT 586 DECISION UNDER APPEAL: WSIB decision of Appeals Resolution Officer ( ARO ) M. St-Hilaire, dated April 18, 2013 APPEARANCES: For the worker: For the employer: Interpreter: S. Hart, Office of the Worker Adviser 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. 399/15 REASONS (i) The worker's appeal [1] The worker appeals the April 18, 2013 decision of Board Appeals Resolution Officer ( ARO ) M. St-Hilaire. ARO St-Hilaire concluded that the worker did not have initial entitlement for a low back injury, claimed to arise on or about October 17, 2009 as either an accident by way of disablement, or as a chance event. [2] The ARO came to that conclusion after a review of the record, without an oral hearing. (ii) Issue [3] The issue before me is whether the worker has initial entitlement for his low back injury. Ms. Hart submitted that the injury occurred by way of a gradual onset disablement arising out of workplace duties. Ms. Hart informed me that the worker was not pursuing entitlement on the basis of a chance event accident, as there was none. (iii) Background facts [4] The worker, born in 1951, was employed as a bricklayer s assistant and as a bricklayer/mason for nearly 40 years. It is not in dispute that the worker s job was physically demanding, and that he had to lift and carry heavy weights as part of his regular workplace activities. [5] On October 25, 2009 the worker reported that his back condition prevented him from continuing in employment. The worker had been laid off seasonally in late November He expected to be recalled when the construction season began in the early spring of The worker was not then recalled because his employer did not have need for him. When he was recalled in October 2009 the worker stated that he was not able to return to employment because of his back pain. [6] The Board concluded that the worker had degenerative disc disease as well as facet joint osteoarthritis. It was concluded that these non-compensable conditions were what caused the worker's back pain, and that it did not arise out of the nature of his work duties. Thus, entitlement to WSIB benefits was denied. [7] After a review of the matter, the ARO upheld the denial of entitlement. The worker appeals further to the Tribunal. (iv) Law and policy [8] Since the notional date of accident, being the date of the worker s report of injury, was October 25, 2009, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, revision #9, would apply to the subject matter of this appeal: Policy packages 241, 248, 300 [9] I have considered these policies as necessary in deciding the issues in this appeal. I have paid particular reference to Operational Policy Manual ( OPM ) Document Nos , Adjudicative Process and the five-point check system described therein. That policy

3 Page: 2 Decision No. 399/15 document, and the five-point check system, makes it clear that there must be compatibility of diagnosis to accident or disablement history. I have also considered OPM Document No , Definition of an Accident. (v) Discussion of the evidence and conclusions [10] I have considered the worker's testimony as well as the medical and other evidence on file. In my view, the worker testified candidly regarding his work history and regarding the origin of his back pain. There is also no doubt that the worker does have ongoing back pain which has, unfortunately, caused the worker difficulty with his ongoing employment as well as in other aspects of his life. [11] To be clear, I have no doubt that the worker has ongoing back pain as he described it to me and as is well recorded in the materials on record. The much more difficult question, however, is whether the worker's back pain can be concluded to likely be a disablement arising out of workplace causes. [12] Of course, in my consideration of that question, I keep in mind that there can be more than one contributing factor to an injuring process. The presence of non-compensable factors does not in some way cancel out a compensable factor, so long as the compensable factor is significant. By significant, that means that the compensable factor must be more than de minimus. [13] When considering the medical evidence in this matter, I observe that the worker's family physician, Dr. A. Abdulhusein, provided, in a December 11, 2009 report to the Canada Pension Plan adjudicator, that the worker has been having low back pain since June Dr. Abdulhusein notes that the worker had an acute exacerbation in April 2009, and that the worker had been referred to Neurosurgeon Dr. A. Adegbite. [14] Dr. Abdulhusein does not, however, express an opinion with respect to the causation of or the contribution to the development of the worker's back pain. He does, however, diagnose the worker with chronic low back pain due to multi-level degenerative disc disease. The physician also opines that the worker would not be able to return to his very labour intensive job, nor to any manual labour because of his worsening low back pain. [15] Dr. Adegbite, in a September 21, 2009 report, reviewed the worker, including the MRI scan. Dr. Adegbite states in his report in part as follows: He had an MRI scan of the lumbar spine June 2, 2009 which revealed very slight anterolisthesis of the L4 vertebral body relative to L5. The L1 vertebral body was replaced by hemangioma and there were smaller lesions in L2 and by my review in the L4 vertebral bodies. No significant spinal stenosis was evident. He had a CT scan of the lumbar spine July 6, 2009 which revealed no evidence of any significant neoplastic lesions. This patient has mechanical low back pain. It is very doubtful that he would be able to carry on with a job as physically demanding as being a bricklayer. [16] Similar to the report of the family physician, Dr. Adegbite, while knowing the worker's occupation, does not offer an opinion as to if, how, or why the worker's work duties caused or contributed to his mechanical low back pain. The other important observation is that Dr. Adegbite opined that the worker's anterolisthesis was very slight. [17] The worker was also assessed at the Occupational Health Clinics for Ontario Workers Inc. ( OHCOW ), likely in order to assist with the worker's WSIB claim. The purpose of the

4 Page: 3 Decision No. 399/15 assessment, carried out by Ergonomist Mr. T. Schell, dated May 18, 2011, stated that it was to answer the question, are [the worker s] changes in his lumbar spine and anterolisthesis related to his 40 year career as a bricklayer? Mr. Schell provides the following conclusion as an answer to that question: Several ergonomic risk factors are present in all of the work tasks mentioned above. All of these factors can cause a low back injury especially force from lifting blocks and awkward postures. After many years working as a bricklayer, [the worker] was subjected to awkward and static body positions and performed a lot of manual material handling of bricks and blocks. After reviewing the evidence presented in the client's file, including an extensive literature search and review, it is highly probable that [the worker s] work as a bricklayer has caused his anterolisthesis in his low back. This is due to the many risk factors he was exposed to daily, but mainly due to the accumulated effect of handling thousands of kilograms of bricks and blocks daily. I am however unable to comment on his hemangioma as this is not a disorder that results from ergonomic risk factors. [18] There arise a number of concerns in my view regarding this medical opinion from an Ergonomist. Mr. Schell s opinion emphasizes the worker's anterolisthesis. Yet Dr. Adegbite, in the September 21, 2009 report referenced earlier in these reasons, opined that the worker only had a very slight anterolisthesis. Moreover, Dr. Adegbite s opinion was that the worker had mechanical low back pain, without this neurosurgeon placing emphasis on the anterolisthesis, unlike the Ergonomist who claimed that this condition was caused by the work activities. [19] The opinion of the Ergonomist is also contrary to the opinions expressed in the Medical Liaison Office ( MLO ) Discussion Paper entitled Back Pain, authored by Dr. W.P.R. Harris, then a Professor of Orthopedic Surgery and Dr. J.F.R. Fleming, then a Professor of Neurosurgery. Moreover, Mr. Schell s opinion goes beyond what Dr. S. Somerville, an occupational medicine specialist and at that time physician with the OHCOW, stated in his report of August 25, Dr. Somerville, after noting the various scans which describe age-related changes, states as follows: Mr. Schell's report details [the worker s] job duties and discusses risk factors for back problems in bricklayers. There is certainly a correlation between the duties of a bricklayer and back pain, and I think it is likely that [the worker s] work activated pain [missing word: likely is ] related to his degenerative spinal condition. [20] Dr. Somerville in the above report records a correlation between the worker's duties and back pain. Yet correlation is not causation. Moreover, Dr. Somerville is only prepared to opine that the worker's work activated pain is related to his degenerative spinal condition, without explaining in his report how or why this is so. [21] As has been repeatedly discussed in Tribunal decisions as well as in the Back Pain MLO discussion paper, age-related changes in the spine will ultimately afflict us all. The MLO discussion paper states, in that regard, as follows: Any discussion of back pain is often dominated by the term degenerative disc disease. This is an inappropriate phrase because what is being described is usually not a disease but normal aging change. A better description would be age related change. [22] Dr. Somerville agrees that the worker has degenerative changes in his spine, in which opinion the family physician Dr. Abdulhusein also concurs. Yet again, while acknowledging those degenerative changes, Dr. Somerville does not explain how these arose out of the work activities. Rather, all he states is that there is a correlation.

5 Page: 4 Decision No. 399/15 [23] By contrast, the MLO discussion paper well explains that the age-related changes are not as a result of trauma. The MLO discussion paper makes it clear that age-related changes are simply part of life. When discussing injury, the MLO discussion paper states in part as follows: Can an injury precipitate aging change? Rarely. However, a severe injury, such as a fall from a height (as opposed to a lifting strain) may result in the appearance (within a year) of narrowing of a single disc with bony overgrowth (spurs or osteophytes) at the adjacent vertebral margins. Can an injury aggravate or accelerate pre-existing aging change? There is no evidence that the progression of x-ray changes is altered by a single injury (unless it is very severe) or by repetitive movement. However, people with aging change might be more prone to develop back symptoms with repetitive strain although the evidence is tenuous. But it should be noted that as the age changes progress, the back becomes stiffer so that eventually the incidents of back pain diminishes. [24] Ms. Hart referenced the MLO discussion paper on spondylolysis and spondylolisthesis. Yet these conditions are pre-existing and congenital, not caused by any work factors. Ms. Hart suggested that the worker's condition arising out of spondylolysis or spondylolisthesis, while perhaps congenital, could have been aggravated by the nature of the worker's repetitive and heavy duties. [25] Yet while Ergonomist Mr. Schell relied heavily on the diagnosis of anterolisthesis, neurosurgeon Dr. Adegbite came to a different opinion after his review of the MRI and CT scans. As discussed above, Dr. Adegbite concluded that the worker's anterolisthesis was very slight. Most importantly, the ultimate diagnosis from this physician was that the worker had mechanical low back pain, without more. [26] Given the opinion of the Neurosurgeon, which I prefer over that of the Ergonomist (who over-reached in offering a medical opinion, in my view), I am not able to consider as viable the alternative theory offered by Ms. Hart: that the worker's spondylolysis/spondylolisthesis be allowed on an aggravation basis. [27] In my view, the worker's age-related changes in his spine, which is all that has been reliably and objectively diagnosed in this matter, have not been shown to arise out of compensable causes, or that the worker's work activities made a significant contribution to those age-related changes. Indeed, as the MLO discussion paper makes clear, while those who have aging changes in their spine might be more prone to develop symptoms, even the evidence of that is described as tenuous. Moreover, one would expect that removal from the exposure would then lead to those symptoms being alleviated. The worker s testimony, however, was that notwithstanding his seasonal layoff in 2008, his symptoms did not improve. [28] It is unfortunate that the worker suffers from significant mechanical low back pain due to the age-related changes in his spine. The evidence is, however, not compelling, nor is it on the balance of probabilities that the work activities, notwithstanding the physically demanding nature of the worker's job, made a significant contribution to those age-related or degenerative changes in the worker's spine. [29] Accordingly, for all these reasons, entitlement remains denied. The decision of the ARO dated April 18, 2013 is upheld.

6 Page: 5 Decision No. 399/15 DISPOSITION [30] The worker's appeal is denied. The April 18, 2013 decision of ARO St-Hilaire is upheld. The worker does not have initial entitlement on a disablement basis for his low back. [31] The worker withdrew his claim of a chance event accident having caused his low back pain. DATED: March 16, 2015 SIGNED: J. Josefo