SUMMARY DECISION NO. 529/97. Recurrences (compensable injury).

Transcription

1 SUMMARY DECISION NO. 529/97 Recurrences (compensable injury). The worker suffered a low back injury in The worker appealed a decision of the Appeals Officer denying entitlement for recurrences in 1985, 1986, 1987 and The evidence established that the worker laid off in 1985, 1986 and 1987 due to acute episodes of back pain. The worker had entitlement for those recurrences. However, the evidence did not establish that the worker was disabled beyond his pension level in The appeal was allowed in part. [6 pages] DECIDED BY: Zimmerman; Rao; Barbeau DATE: 29/09/2000 ACT: WCA BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Document No CROSS-REFERENCE: Decision No. 529/97I

2 2000 ONWSIAT 2729 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 529/97 [1] This appeal was heard in Sudbury on April 18, 1999, by a Tribunal Panel consisting of: A.G. Zimmerman: Vice-Chair, P.A. Barbeau : Member representative of employers, F. Rao : Member representative of workers. THE APPEAL PROCEEDINGS [2] The employer appeals the decision of Appeals Officer S. Marangoni dated March 4, 1996 and Appeals Resolution Officer R. Horne dated November 15, [3] The employer was represented by N.J. Deacon, a consultant. The worker attended and was represented by E. Bowman from the Office of the Worker Adviser. A French interpreter was present to provide assistance as required. THE RECORD [4] The following were marked as exhibits: Exhibit #1: Case Record; Exhibit #2: Addendum #1; Exhibit #3: Addendum #2; Exhibit #4: Post-Hearing Addendum #1; Exhibit #5: Post-Hearing Addendum #2; Exhibit #6: Post-Hearing Addendum #3. THE ISSUES [5] The Panel was asked to determine the worker s entitlement to benefits stemming from a workplace accident on June 20, The employer objects to the payment of benefits for recurrences beyond July 17, THE EVIDENCE (i) Background [6] The worker is a 56-year old hard rock miner. On June 19, 1984 he was injured in a rock burst and was laid off with benefits until July 17, Soft tissue injuries to the low back and upper left leg were sustained. Recurrences of the initial disability were recognized in July 1985, July 1986 and January A claim for a recurrence on November 16, 1994 was denied in the

3 Page: 2 Decision No. 529/97 first instance but was allowed on appeal at the Board. The employer launched an appeal with the Tribunal of the latter decision. Prior to the hearing of that appeal it became apparent that the employer intended to expand the ambit of the appeal to include objections to the granting of entitlement for the recurrences of 1985, 1986 and These issues had not previously been raised at the Board. [7] In Decision No. 529/97I the Tribunal declined jurisdiction over the new objections and directed the employer to return to the Board to have these issues adjudicated. The employer did so and in an Appeals Resolution Officer decision dated November 15, 1999 the worker s entitlement for the recurrences in 1985, 1986 and 1987 was confirmed. (ii) The worker s testimony [8] The worker testified that he returned to work on July 17, 1984 but that he did not go back underground until two months later and did not resume his pre-accident job until late He continued to have pain in his back and left leg and laid off work from July 12 to July 26, 1985 complaining of pain in his left thigh. Although his recollection of medical treatment subsequent to the 1984 accident was somewhat sparse, the worker stated that his back has bothered him since that time. He said that the likely reason for not seeking medical treatment was his fear of losing his job. He treated himself with non-prescriptive analgesics but in 1993 felt that the condition of his back had deteriorated. Between 1987 and October 1994 the worker was employed by a mining contractor and spent several years working in Quebec. In 1994, while working in Quebec, the worker had what he described as two incidents involving his back. In one incident he fell on his back and in the other he strained his back while lifting. Neither involved any lost time. He returned to Ontario in 1994 and lost his job in October of that year when he was accused of carelessness. (iii) Medical reports [9] The worker was seen by Dr. R. Seguin on June 20, 1984 and treated for soft tissue injuries to his body, arms and legs. Dr. Seguin saw him again on July 4, 1984 and noted pain left upper leg and back. [10] On July 12, 1985 the worker was seen by Dr. J. Fantin, a chiropractor, complaining of sharp low back pain radiating down left leg. Dr. Fantin s diagnosis was L4-5 vertebral subluxation causing L4-5 nerve root entrapment which he treated with spinal manipulation. Dr. Fantin treated the worker for similar symptoms beginning July 15, [11] The worker laid off work from January 12 to February 4, 1987 complaining of low back pain. On February 2, 1987 he saw Dr. Seguin who described the worker as having exacerbation in pain in his lumbar spine. Between 1987 and 1994 there are no records of medical treatment. Tribunal Counsel Office confirmed the lack of treatment during this period in correspondence with both the Ontario and Quebec policy health insurance plans. [12] The worker saw Dr. A. Martin, a chiropractor on December 12, 1994 complaining of pain and swelling in his low back and left leg. Dr. Martin expected that he would be off work for 6-8 weeks.

4 Page: 3 Decision No. 529/97 [13] In 1995, the worker was treated by Dr. L. Bouvet who saw him on occasion concerning his low back strain and persistent low back pain radiating to the left leg. [14] Dr. Bouvet s findings are summarized in a report dated October 24, 1995: An x-ray done last September reveals discrete anterior and right lateral osteophytosis in the middle and lower portion of the thoracic spine. There is no collapse as such of the intervertebral discs. The x-ray of the lumbar spine reveals disc space narrowing that is severe at L4-L5 and much less pronounced at L5-S1. For its part, the CT-scan reveals a certain degree of spinal stenosis at L3-L4, due to a certain facet osteoarthritis and slight circumferential disc bulging. However, there is no sign of disc herniation. At L4-L5 also, there is a certain degree of spinal stenosis, perhaps slightly more pronounced than at L3-L4. There is narrowing of the left intervertebral foramen due to a small osteophytic spur pointing toward the intervertebral foramen. As at L3-L4, there is fairly significant bilateral facet osteoarthritis. At L5-S1, there is significant facet osteoarthritis. It should be noted there is no frank disc herniation at any of these levels. The x-ray of the sacroiliac articulations is normal without any sign of inflammatory lesion. Consequently, we have an individual who presents mainly with a phenomenon of facet osteoarthritis causing a certain degree of spinal stenosis and an osteophytic spur at the intervertebral foramen. This almost totally explains his low back pain and left sciatica. The fact that this osteoarthritic phenomenon is much more advanced in his case than in other persons his age leads me to believe that the osteoarthritis has no doubt been accentuated by trauma. [15] Dr. R. Hickman, a Board Medical Advisor, reviewed the worker s file in April In Board Memo #32 Dr. Hickman expressed the opinion that the worker s recent low back and leg symptoms were not related to the 1984 injury since he had not sought medical attention between 1987 and He also attached significance to the fact that the worker had several independent low back strains in 1993 although no treatment was sought for these. [16] A pension examination of the worker s low back was carried out on May 1, 1996 by Dr. P. Zeindler, a Regional Medical Advisor. Dr. Zeindler diagnosed mechanical back pain with facet joint arthritis. He also felt that there was an element of discogenic back pain. The worker was granted a 15% pension effective May 24, 1995 with full arrears at 10% retroactive to June 20, THE SUBMISSIONS (i) The employer [17] The employer submitted that although the worker could establish continuity of complaint regarding his low back, the various medical reports render medical compatibility highly questionable. In 1984 the worker sustained soft tissue injuries to his body, arms and legs and complained of pain in his left upper leg and back. In subsequent medical reporting, the worker s back problems are attributed to spinal stenosis, nerve root entrapment and osteoarthritis. These differing diagnoses suggest that the post-1984 back problems are not related to the original

5 Page: 4 Decision No. 529/97 injury. In support of this conclusion the employer points to the April 1995 opinion of Dr. Hickman. (ii) The worker [18] The worker submitted that the accident of June 19, 1984 was severe and has caused him to have ongoing problems in his low back and left leg. His history of complaint is well documented and although the medical records are thin, the absence of ongoing care can be explained by the worker s stoicism. THE REASONS [19] Board Operational Policy Manual, Document # establishes guidelines for recognizing a recurrence of a work-related injury. Medical compatibility of the original injury with the recurrent complaint is often sufficient to conclude that they are related. In addition, continuity of such things as complaint, symptoms and treatment can be looked at in conjunction with compatability to establish a relationship. [20] In our view, there is an abundance of evidence upon which we could conclude that the worker has had recurring problems in his low back and left leg since the workplace accident of June, [21] There is little or no evidence to challenge the assertion that the lay-offs in 1985, 1986 and 1987 were the result of acute episodes of back pain. On each occasion, the worker sought medical attention, immediately in 1985 and 1986, belatedly in The Board accepted each of these episodes as recurrences of the 1984 back injury and, in the absence of evidence to the contrary, it would be speculative of us to do otherwise. With respect to the 1994 claim we are unable to come to the same conclusion. [22] While we accept that the worker has had ongoing low back and left upper leg pain since 1984, this issue was addressed in the 1996 pension assessment which granted the worker a 10% pension from June May 25, 1995 and a 15% pension thereafter. We find nothing in the rather vague circumstances surrounding the November 1994 recurrence to suggest that the worker s condition had deteriorated below that subsequently recognized by the Board. No new accident was referred to and medical (chiropractic) treatment was not sought until December 12, Earlier in 1994, the worker had re-injured his back on two occasions but not severely enough to warrant lost time. In these circumstances we find it unlikely that he suffered a spontaneous onset of acute back pain in November 1994, at a time when he was not working. [23] In reaching this conclusion, we are mindful of Dr. Bouvet s report of October 1995 and reiterate that, while we accept that the worker s ongoing back and leg pain is related to the June 1984 workplace accident, the disabling effect of that pain has been appropriately recognized in his pension award.

6 Page: 5 Decision No. 529/97 THE DECISION [24] The employer s appeal is allowed in part. The worker is not entitled to temporary total disability benefits for the period November 16, 1994 to May 24, The pension awards and lost time benefits for 1985, 1986 and 1987 should not to be disturbed. DATED: September 29, SIGNED: A.G. Zimmerman, P.A. Barbeau, F. Rao.